Regina v Masua [2013] SBHC 196; HCSI-CRC 252 of 2012 (16 December 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
MWANESALUA J

Criminal Case Number 252 of 2012

REGINA

V

PETER MASUA

Hearing Dates: 10, 11, December 2013
Judgment Delivered: 16 December, 2013

Mr Kelesi and Mr Hauriae for the Prosecution
Mr R Olutimayin and Mr C Rarumae for the Defendant

JUDGMENT

1. The Defendant is charged with one count of rape, contrary to Section 136 of the Penal Code. It is alleged that the Defendant, Mr Peter Masua of Komuhauru Village, Marau Sound, Guadalcanal province, at Kaipopora Village on 4th October 2004, did rape Janet Ngelelonga. The Defendant pleaded not guilty to the charge on arraignment and a trial was conducted.
   
2. However, after hearing the evidence of two Prosecution witnesses, the Prosecution withdrew the case against the Defendant and the Court acquitted the Defendant of rape. The prosecution then charged the Defendant with one count of Indecent Assault, contrary to Section 141(1) of the Penal Code. The Defendant pleaded not guilty and the Prosecution closed its case.
   
3. The Prosecution then relied on the evidence adduced in the charge of rape to establish the guilt of the Defendant of the indecent assault charge. The court heard closing submissions from the Prosecution and Defence in respect of the Indecent Assault charge.
   
4. The case against the Defendant for rape was withdrawn because it became clear during the trial that there was no evidence at all that the Defendant had sexual intercourse with the victim as alleged by the victim
   
5. It also became apparent during the trial that the victim could not identify the person who had allegedly raped or indecently assaulted her. The only evidence of identification of the Defendant came from the second prosecution witness.
   
6. The alleged indecent assault occurred at night. There was no identification parade conducted by the police during the investigation for the witnesses to identify the Defendant.
   
7. The victim alleged that the person kissed her on the neck and belly. The person striped her legs causing her to fall to the ground and then the person got on top of her. The person wrapped his head with cloth. She went on to say that the person dragged her off the road into the bush.
   

8. This is a case where an identification parade should be held with the view of confirming the evidence of the second State Witness. This Court is therefore, left with a doubt as to the real identity of the person who had indecently assaulted the victim.

9. The Crown has not proved its case beyond reasonable doubt as required in law. The Defendant is therefore, acquitted of Indecent Assault as charged.
   

THE COURT