Regina v Pole [2013] SBHC 131; HCSI CRC 193 of 2009 (5 September 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

REGINA

v

JAMES POLE

Date of Hearing: 2nd, 4th & 5th September 2013.
Date of Judgment: 5th September 2013.

Ms. Fineanganofo for the Crown.
Mr. Rarumae for the accused.

JUDGMENT

Apaniai, PJ:

Introduction.

1. The accused, James Pole, is charged with one count of rape contrary to section 136 of the Penal Code and one count of indecent assault contrary to section 141(1) of the Penal Code.
   
2. In regards to the rape charge, the prosecution case is that the accused raped Ms. Alice Opla ("complainant") at Baenga in Temotu Province on the 9th November 2004. The indecent assault charge is also alleged to have been committed at the same time and place and on the same date as those of the rape charge.
   
3. The accused has pleaded not guilty to both charges.
   

Burden and standard of proof.

4. Where an accused person pleads not guilty to a criminal charge, the burden is on the Crown to prove each and every element of the offence beyond reasonable doubt. Where there is doubt as to the existence of any one or more of those elements, the accused must be given the benefit of the doubt, which means that the charge against the accused must be dismissed and the accused acquitted. There is no burden on the accused person to prove his or her innocence.
   

Elements of rape and indecent assault.

5. In the present case, the accused is charged with rape and indecent assault.
   
6. To prove rape, the Crown must produce evidence to show beyond reasonable doubt that the accused had sexual intercourse with the complainant and that the complainant did not consent to the accused having sexual intercourse with her.
   
7. Similarly, to prove indecent assault, the Crown must produce evidence to show beyond reasonable doubt that the accused touched the complainant in an indecent manner without her consent.
   

Proving consent.

8. As stated above, one of the elements in both these offences is consent. Consent is a state of mind which cannot be proved as a fact but which can only be inferred from facts which have been established by the evidence. That means the Crown must produce evidence from which an inference can be drawn to show beyond reasonable doubt that the complainant did not consent to sexual intercourse, in the case of rape, or, to being indecently assaulted, in the case of indecent assault. Where the evidence is such that it is not clear whether or not the complainant had consented, the charges must be dismissed.
   

The Charge of rape - evidence.

9. In the present case, the Crown has called only 1 witness to give testimonial evidence in support of its case. This witness is the complainant herself, Alice Opla.
   
10. The Crown has also tendered, with the consent of the accused, a number of witness statements including the accused's record of interview and a sketch of the location where the offences are alleged to have been committed.
    
11. These witness statements are those of Rachael Inublir (exhibit "P1"), Ambrose N Deva (exhibit "P2"), Mary Kapene Bula (exhibit "P3"), John Lakwolly (exhibit "P4"), Morris Lea Mepobu (exhibit "P5") and John P. Bakila (exhibit "P6"). The accused's record of interview was also tendered by consent and marked as exhibit "P7". The sketch of the crime scene was also tendered by consent and marked as exhibit "P8".
    
12. A witness by the name of Miriam Inapiki was also made available by the Crown for examination on request by the defence.
    
13. The accused has also called only one witness, Rose Melemi, in support of his case. The accused, however, has opted to remain silent.
    
14. I will deal first with the agreed witness statements.
    
15. The admissible evidence contained in the statement of Rachel Inublir (exhibit "P1") is simply as follows:- that she went with her husband to their garden at around 9am on Tuesday 9th November 2004, which was the day of the alleged incident, and had spent the whole day working in their garden; that the complainant came to their garden at around 5pm that day; that the complainant came back with them to Baenga village that afternoon; that she did not see any blood stains on the complainant's clothes; that on Saturday 13th November 2004, she, along with her sister Inatu, and Inatu's husband Tengapiri, accompanied the complainant into the bush where the complainant showed them the spot where the offence is alleged to have occurred; that after returning from the bush, she accompanied the complainant to the hospital where the complainant was admitted into the hospital for 6 days. In terms of the proving the issues in these two charges, Rachel Inublir's evidence does not offer much help.
    
16. Next is the statement by Ambrose N Deva (exhibit "P2"). His evidence is that on the 9th November 2004, he and Ambrose Tengapiri were in his (Deva's) garden at Malore, Baenga, when the complainant arrived at about 4pm. She was limping as though one of her legs was injured and she appeared weak and in pain. He asked the complainant what happened to her but the complainant did not respond and went on her way. Again, in terms of the proving the issues in these two charges, Ambrose Deva's evidence does not offer much help.
    
17. Another statement is that of Mary Kapene Bula (exhibit "P3"). She is a police officer and her evidence is that she was one of the police officers who attended at the crime scene in the bush at Baenga on 23rd November 2004. It was the complainant who led them to the scene. Photographs were taken of the scene by Staff Sergeant Adam Steward and a rough sketch was also drawn of the scene by Detective Constable John Lakwolly. Measurements were also taken from the road to the spot where the incident happened. Mary Kapene Bula's evidence also does not assist in determining whether or not there was consent on the part of the complainant.
    
18. Another statement tendered by consent was that of John Lakwolly (exhibit "P4"), a police officer who also visited the crime scene along with Mary Kapene Bula and others on 23rd November 2004. At that visit, he drew a sketch of the crime scene. That sketch is exhibit "P8". Measurements were also taken of the distance from the main road ("A") to the spot where the accused met the complainant ("B") and then from "B") to the spot where the alleged rape took place ("D"). According to the measurements, the distance from A to B was about 80 meters and the distance from B to D was about 35 meters (exhibit "P8"). Nothing in this statement is of any assistance in determining the issue of consent in any of the two charges.
    
19. A statement by Morris Lea Mepobu (exhibit "P5") was also tendered by consent. Morris was a police officer in-charge at Lata Police station in October 2004. He was present at an interview conducted between the accused and the police. His evidence is that the interview was free and fair and not force was used upon the accused. The record of the interview is marked as exhibit "P7". Again, there is nothing in Morris Lea Mepobu's statement, which is of any assistance in determining the issue of consent in these two charges.
    
20. The last statement tendered by consent was that of Chief Nursing Officer, John P. Bakila (exhibit "P6"). He was the nursing officer in charge at Lata hospital and the one who carried out a medical examination on the complainant on Saturday 13th November 2004. According to the statement, the medical findings after the examination revealed that the abdominal area was tender which was painful when touched; that the vaginal walls were intact but contained blood and pus, which smelt offensive. The examinations also revealed a small laceration to the cervical area where the blood came from. While this statement contains some evidence of injury to the cervix of the complainant, it is not of much assistance in regards to the issue of consent.
    
21. The accused's record of interview was also tendered by consent (exhibit "P7"). In it, the accused had admitted having sex with the complainant but denied it occurred on Tuesday 9th November 2004. His case is that the incident happened on Monday 8th November 2004 and that it was a planned sexual encounter between him and the complainant. So, what has been said in the record of interview is completely the opposite of what the complainant said in regards to the question of consent.
    
22. It follows therefore that to prove beyond reasonable doubt that the complainant did not consent to sexual intercourse with the accused, the crucial evidence is that of the complainant herself. That evidence is as follows.
    
23. On the 9th November 2004, the complainant went to the bush to get firewood. She went by herself. She cut a piece of rope and came out onto the road. When she came on to the road, the accused came to her and took hold of her right hand with his right hand. He was holding a coconut fruit and a $2.00 note in his left hand. He held her hand and led her into the bush. She told him to let go of her hand but the accused did not respond so she just followed him into the bush.
    
24. When they came to the spot where the sexual intercourse occurred, the accused told the complainant to sit down. She followed his instructions and sat down on the ground. The accused then took off his lavalava and trousers and pulled out a bottle of Schweppes from his pocket and washed his penis with the water from the Schweppes bottle. The accused had a knife with him at that time, however, as he was washing his penis, he pushed the knife into the ground at his side. He was using his right hand to wash his penis while he held the Schweppes bottle in his left hand.
    
25. The accused then inserted his penis into a condom using only his right hand. After that, he pushed the complainant onto the ground then lay on top of her and had sex with her. During the time when the accused was on top of her, the complainant tried to swing from side to side in an effort to escape from the accused but she could not manage to do so because the accused was too heavy.
    
26. After he ejaculated, the accused got up and sat on the complainant's legs then he inserted his 4 right hand fingers into the complainant's vagina. He then pulled his fingers out and at that time blood came out from her vagina. When the accused pushed his fingers into her vagina, the complainant felt as if something was shaking inside her belly. She didn't like what the accused was doing so she held her hand down towards the accused's hand to pull his hand out but could not do so. At that time, the accused just pushed his fingers further into her vagina. The accused then pulled his fingers out, stood up from the complainant, washed himself and then left. The complainant sat there for a while then got up and cleaned her hand with a piece of cloth and then left to gather her firewood.
    
27. As she went to gather the firewood, she saw Ambrose Deva and his wife in their garden. She just went past and did not speak to them. She got some firewood and then came down to the seaside. There she put the firewood down and sat on it. She was ashamed to go to Inublir's house because she had blood on her.
    
28. A short while later, Inublir and Inatu came past and asked her to accompany them to get some betel nut. She went with them. As they approached the place where the betel nut was, she remained by the side of road and waited while Inublir and Inatu went to get the betel nut. Her legs were tired so she could not go on with them. After Inublir and Inatu got the betel nuts, they returned to the complainant and they all then proceeded towards Inatu's house. It was there that Inublir accused Inatu of not feeding the complainant well. She made the accusation because the complainant fell into the mud earlier on. As a result of Inublir's accusation, Inatu tried to motion to the complainant to come to her but the house was full of people so the complainant also motioned to Inatu indicating that her that she did not want to come to her because her house was full of people.
    
29. In the morning of the next day, Inublir and her husband, Tengapiti, then took the complainant to the hospital for medical check-up.
    
30. The above facts were the complainant's evidence in chief. Of course I must remind myself that in sexual cases, I am not obliged to look for corroboration and that I can convict on the evidence of the complainant alone if I am convinced that she is telling the truth.
    

The rape charge - Is there evidence of no consent.

31. As earlier stated, the only issue in regards to the rape charge is the question of consent and consent or no consent is to be inferred from the facts, which have been proved by the evidence in the case.
    
32. In this case, the complainant says that she did not consent to sexual intercourse with the accused. Was her conduct as disclosed by the evidence consistent with her assertions of no consent? In other words, was she forced or threatened by the accused to submit to him?
    
33. In regards to this issue, the evidence shows that the accused had a knife with him at the time he met the complainant in the bush. However, there is no evidence that he threatened the complainant with the knife in order to force her to accompany him into the bush. The complainant followed the accused into the bush because he held onto her hands strongly. There is no evidence to show that she followed him into the bush because he threatened her with a knife. The complainant says that the accused pulled her into the bush, but the word "pull" in this context is ambiguous. It can mean that she was held by the hands and led into the bush without resistance on her part or it can also mean that she was dragged into the bush. If she was dragged into the bush then some evidence should have been produced to prove that there was struggle especially along the road from point B to point D on exhibit "P8". No such evidence has been produced.
    
34. In fact, in her evidence in chief, the complainant never mentioned being threatened by the accused at all, let alone being threatened with a knife. The only time she mentioned being threatened with a knife was when it was suggested to her during cross examination that the accused never threatened her at all. It was then that she said the accused had threatened her with the knife by pushing the knife towards her neck and telling her to be quiet. The threat, however, was issued only when the complainant had already laid on the ground with her legs open and ready for sex. There is no evidence that she was threatened with the knife because she refused to open her legs. There is no evidence to suggest that she was threatened with the knife because she was calling out for help or because she was making noises to attract the attention of any person nearby. Her evidence is simply that the knife was pushed towards her neck with instructions not to make any noise. I do not believe this has happened.
    
35. The evidence also shows that when they were in the bush, the accused pushed the knife into the ground and then took out his penis and washed it with water from a Schweppes bottle, which he had pulled out from his pocket. It seems that the complainant just sat there on the ground watching him. She did not make any attempt to escape. That is also not consistent with a person who does not want sex.
    
36. After the sex encounter, the complainant went passed Ambrose Deva and his wife. She could have complained to Deva and his wife. In fact Deva noticed that she was not walking properly and asked her what happened to her. She did not respond but just walked past them. She had had the opportunity to complain about what the accused did to her but chose not to do so. Again, her behaviour was not consistent with those of a person who was not happy with what was done to her.
    
37. After leaving Deva and his wife, she also met up with Inublir and Inatu. She never complained to them or even mentioned to them about what the accused did to her. It was Inatu who took the initiative of trying to find out what happened to her by making signs for the complainant to come to her. Again, the complainant refused to come to Inatu.
    
38. From the evidence, it is clear the complainant never took any initiative to complain about what the accused did to her. She only told people about the incident when asked. Such conduct is not consistent with that of a person who did not consent to sexual intercourse.
    
39. Furthermore, she agreed that it was Tengapiti who forced her to report the incident to the police. I do not believe her when she said she would still have reported the incident to the police even if not forced by Tengapiti.
    
40. Again, her own evidence is that the place where the incident occurred was quite close to Inapiki's garden. There is no evidence that she made any attempt to call for help.
    
41. Finally, her evidence shows that she also had a knife in her possession at the time of the incident. She said in her evidence that she had gone to the bush to gather firewood and that she had cut a piece of rope and then came out on to the road when the accused pulled her hand. If she had indeed not wanted sex with the accused, she would have at least tried to fend off the accused with the knife. There is no evidence that she tried to do that with her knife.
    
42. I think I have said enough. The point I am making is that the conduct of the complainant has given rise to an irresistible inference that she was quite agreeable to having sexual intercourse with the accused.
    
43. I must therefore say that I am not satisfied to the required standard that the complainant had not consented to sexual intercourse with the accused. The evidence by the complainant is such that, it would, in my view, not be safe to convict the accused on that evidence. There is nothing in the witness statements admitted by consent that could alter that unsatisfactory nature of the complainant's evidence.
    

Verdict – rape charge.

44. The accused is therefore acquitted of the charge of rape.
    

The indecent assault charge - Is there evidence of no consent.

45. I now turn to the indecent assault charge.
    
46. The complainant has alleged that after the accused had ejaculated, he sat down on her legs and pushed the four fingers on his right hand into her vagina. She said that as a result, she had received injuries to her vagina. She said she did not consent to the accused assaulting her in that manner.
    
47. The medical evidence (exhibit "P6") shows very clearly that the complainant had received injuries to her cervix. There was a tear to the cervix are where blood was coming from. There is no evidence to suggest that she could have received those injuries from causes other than the insertion by the accused of his fingers into the complainant's vagina.
    
48. I am satisfied beyond reasonable doubt that the accused had inserted his fingers into the complainant's vagina after he had finished having sexual intercourse with her and as a result, she had received injuries to her cervix. I am also satisfied beyond reasonable doubt that the complainant had not consented to her being assaulted in that manner.
    

Verdict – indecent assault charge.

49. The accused is therefore convicted of indecent assault as charged.
    

Sentence - indecent assault charge.

50. You have been convicted of indecently assaulting Ms. Alice Opla ("victim") at Baenga village, Temotu Province, on the 9th November 2004. The maximum sentence for indecent assault under section 141 of the Penal Code is 5 years.
    
51. Your conduct has caused injury and great inconvenience to the victim. It is a very ungrateful act having regard to the fact that she had allowed you to satisfy your sexual urge on her. The victim had to unnecessarily spend 6 days in hospital as a result of your conduct. These are aggravating factors in this case.
    
52. However, you have very strong mitigating factors in your favour as well.
    
53. First and foremost is the delay in prosecuting this case. The offence was committed on 9th November 2004. All necessary witness statements have been taken also in that same month. Despite that, you were not charged until 2009 and your trial came to eventuate only in September 2013 - a delay of 8 years and approximately 9 months. It is not clear what the cause of the delay was, but a delay of more than 8 years is very unacceptable to say the least.
    
54. Secondly, you are a first offender and therefore you deserve some leniency.
    
55. Thirdly, this was a one off incident. You have not been in breach of the law since then. You have become a law-abiding citizen.
    
56. In these circumstances, a heavy fine would be an appropriate sentence to reflect society's disapproval of your conduct. I therefore sentence you to a fine of $2,500.00 to be paid to the Magistrate Court here at Lata by 4pm on Friday 6th September 2013 - in default 6 months imprisonment.
    

THE COURT

James Apaniai
Puisne Judge