Regina v Simba [2013] SBHC 174; HCSI-CRC 289 of 2011 (12 October 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Criminal Case No. 289 of 2011

REGINA

–v-

ODU SIMBA

Dates of Hearing: 7-12 of October 2013

Mr. Andrew E Kelesi for the Crown
Mr. Benham Ifuto'o with Rachel Olutimayin for the Accused

JUDGMENT

1. The Accused, Odu Simba, was initially charged with one count of rape, contrary to section 136 of Penal Code. He pleaded not guilty to the charge and the trial proceeded. At the close of evidence from the complainant, Elvina Valory Pio, the crown withdrew the rape charge. The Accused was acquitted of that charge. The Prosecution then filed a fresh information.
   
2. The Accused was charged with one count of indecent assault, contrary to section 141 (i) of the Penal Code. The Accused was arraigned and he pleaded not guilty to that charge as well. The evidence of the complainant remains as evidence on the charge of indecent assault.
   
3. Two additional witnesses were called by the crown in support of the indecent assault charge. The Accused then gave evidence on oath on behalf of himself after the close of the case for the crown.
   
4. In his closing address, Mr. Kelesi reminded the court on sections 7, 8 and 19 (b) of the Evidence Act of 2009. In relation to section 19 (b), he submits that the court need to exercise caution before convicting an accused in reliance on evidence adduced by a victim of offence against morality, such as indecent assault as in this case.
   
5. As a general principle of law, the prosecution must establish the guilt of the Accused beyond reasonable doubt before this court can convict him on the offence of indecent assault.
   
6. The Accused, Odu Simba, is charged with one count of indecent assault, contrary to section 141 (i) of the Penal Code (Cap. 26). It is alleged that he Odu Simba at Maravai village, Western Province at Marovai Village on 22 March 2011 did unlawfully and indecently assault Elvina Valory Pio.
   
7. There is no dispute that complainant is a woman who is physically and mentally retarded. She did not testify directly to the court, but did so through an interpreter in Roviana language to pidgin. Questions from counsels are put to her through the interpreter in the same manner.
   
8. Her evidence is that on 22 March 2011, she walked from her village on the hill to the seaside to have a shower from a tank. While she was walking back to her village, she met the Accused on the road. He asked for sex but she refused. He grabbed her hand and pulled her from the road to the bush, which she resisted. He threatened to stub her with his knife and she then followed him. When they reached a spot in the bush, he removed his cloth and her cloth. He lay her down on the ground and lay on top of her. She felt his penis, which she variously described as ball, boa, betelnut pocking her hole. She pointed to her vagina as the place where her hole is situated. When the Accused left her, she wore her cloth and continued walking to her village. She reported the incident to her Aunty, Jenesi Pio. Jenesi Pio and another woman took her to a nurse aid post for the nurse aid to attend to her. No medical report on the victim was not collected documentary evidence for this trial.
   
9. The Accused gave evidence on oath. His evidence is that he met the complainant on the road on 22 March 2011. He asked her for sex and wanted her to be his friend. He denied holding any knife on that day. He said he and the complainant took off their own clothes. He said he laid over her body while they on the ground, both naked, but his body did not touch her vagina and her breasts. He said that the vagina of the complainant was still small and so did not have sexual intercourse with her. He told the court that the victim gave her consent for him to have sex with her.
   
10. There are two important issues in this case. The first is whether there is evidence of indecent assault. The second relates credibility. That is whether the Accused or victim is telling the truth in their evidence.
    
11. The evidence from the victim is that she felt his penis thrusting at her vagina when he was lying on top of her while were both naked. The Accused said that the vagina of the victim was small. The court does not believe his evidence that he did not use his knife to threaten the complainant with it and that his body did not touch her breasts and vagina when he lay on her. The court accepts the evidence of the victim and not the Accused as being truthful.
    
12. I am satisfied so am sure that he is guilty of the offence of indecent assault. I am of the view that the particulars of the charge are sufficient for the purpose it was framed. There were conflicts in the evidence but they relate to issues not connected with the offence charged. The Accused is according convicted of the offence of indecent assault as framed in the indictment. He is accordingly sentenced to 12 months imprisonment commencing 12 October 2013.
    

THE COURT