R v Hina [2013] SBHC 208; HCSI-CRC 375 of 2013 (11 December 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS

PALLARAS J

Criminal Case Number 375 of 2013

R

v

PHILIP BONIE HINA

Coram: PALLARAS J
Crown: Mr A. Aulunga
Defence: Mr M. Holara
Hearing Dates: 21-26 November & 2 December 2013
Verdict Delivered: 11 December, 2013

VERDICT

1. Mr Philip Bonie Hina ("the accused") was charged that on the 25th May 2013, he committed one count of intimidation contrary to Section 231 of the Penal Code [Cap. 26], four counts of common assault contrary to Section 244 of the Penal Code [Cap. 26], four counts of indecent assault contrary to Section 141(1) of the Penal Code [Cap. 26] and four counts of rape contrary to Section 136 of the Penal Code [Cap. 26]. To these charges he pleaded not guilty.
   
2. Evidence was called that in the early hours of the morning of 25th May, 2013, the accused was attending a community fund-raising function at Kingdom Harvest area, Henderson. The function consisted of those attending paying for the right to play card games for the chance to win prizes such as food items and beer. The function began in the early evening of the 24th May 2013, and continued on into the early hours of the following morning. The accused attended the function and remained in the location after the card playing had ceased. The Complainant, an 18 year old girl, also attended the function and sometime after midnight was assisting a friend (Jenny Tukulele – "PW2") to cook fish for sale at the markets later on that morning. So much was agreed by the parties.
   

The Prosecution Case:

3. The prosecution case is that the accused approached and entered the small open kitchen where the Complainant was assisting to prepare the fish with the initial purpose of asking PW2 for some beer. PW2 had won some beer earlier on in the night and the accused thought that he could buy beer from her at a reduced price.
   
4. As he entered the kitchen, and seeing the Complainant there, he formed the view that he wanted to have sexual intercourse with her. He spoke to PW2 who was older than the Complainant and a good friend of his, saying that he wanted the girl to go with him. It is alleged that the Complainant refused his advances and fearful of what he might do, ran out of the kitchen. She was pursued by the accused. The Complainant ran back into the kitchen and sought PW2's protection. The accused persisted and became aggressive and when told by PW2 to leave the Complainant alone, he swore at her and threatened to throw the burning oil that was being used to cook the fish, over the two females. The Complainant became very frightened at this stage and when the accused grabbed her hand and pulled her from the chair, she unwillingly went with him out of the kitchen.
   
5. The Complainant says that the accused poured beer over her, grabbed her shirt and pushed her out of the kitchen.
   
6. A police officer, Elisabeth Riria (PW1) from Henderson Police station produced a sketch-map (Exhibit P2) of the area which she drew as a result of being taken by the Complainant to the various sites where she alleged that she was raped and assaulted by the accused. She visited the sites with the Complainant four days after the alleged offences occurred.
   
7. Exhibit P2 was shown to the Complainant and it was suggested to her in cross examination that she was wrong about where she had been taken to have sex by the accused. It was suggested that she had gone to the right of the kitchen with the accused as shown on the sketch-map. She denied this saying she had never gone off in that direction.
   
8. From there, the Complainant says that she was forcibly taken to various places in the bush around the village where the accused digitally penetrated her and raped her on four separate occasions. The actions of the accused included pushing and slapping the Complainant, forcibly removing her clothes, pushing her to the ground, biting her on the face and preventing her from donning her clothes.
   
9. When pulling off one of the two skirts that the Complainant was wearing, the accused caused all of the buttons on the skirt to be torn off. A black skirt with all of the three buttons missing was tendered by the prosecution (Exhibit P3) and as the cotton threads were all pulled out away from the skirt, it was apparent that the buttons had been removed with some force.
   
10. The Complainant says that on each occasion and throughout the incident, she resisted the accused but was overpowered. She said that she constantly told him that she did not want to have sex with him, that she was tired and that she wanted to go home. On one occasion when they were near the sea, she ran into the water and tried to escape by swimming away. The accused threw rocks at her and told her to return to the shore. Fearing that the accused would come to drown her and being unable to escape him in this way, she returned to the shore.
    
11. After the first act of sexual intercourse, the Complainant was kept naked and as she was taken to other sites by the accused, he would constantly touch her on her buttocks.
    
12. After several hours, the accused finally released the Complainant and she was left alone to try to find her clothes. Eventually, she found some of her clothing at the site of the first alleged rape.
    
13. Evidence suggests that the accused approached the kitchen "sometime after midnight", estimated by him to be around 2:30 a.m. Evidence from PW2 and from Deary Sikola ("PW3") indicates that the Complainant returned to PW2's house at about 6 a.m. This was somewhere between 2 ½ - 3 ½ hours after she had been taken from the kitchen by the accused.
    
14. A medical report was tendered by consent (Exhibit P1). Doctor Augustin Gasivaka Melly, a medical practitioner with Sexual Abuse Care, examined the Complainant on 29th March, 2013. His examination revealed multiple generalised crusted linear abrasions and scratches on the Complainant's back. On her right breasts he found multiple suction bruises. Genital examination showed linear abrasions and lacerations to the posterior fourchette and fossa navicularis of her vaginal area. While these injuries may have been consistent with aggressive but consensual sex, they can also be regarded as consistent with the Complainant's account.
    

Crown's Application to Re-Open its Case:

15. The Crown initially called only one witness, the Complainant, to establish its case. This was despite the fact that there were two other adults in the kitchen at the time of the alleged offences. There were also three other potential witnesses (companions of the accused) who were outside the kitchen at the time. This was a most unsatisfactory state of affairs particularly as little effort seemed to have been made by the prosecution to provide the Court these witnesses. The Court was simply told that they were unavailable.
    
16. Section 133 of the Criminal Procedure Code [Cap.7] provides the Court with the power at any stage of a trial, to summon or call any person as a witness if the evidence of that witness appears to the Court to be essential to the just decision of the case. It is clear that each of these potential eye-witnesses were in a position to give crucial evidence as to the events in and around the kitchen and the Court indicated to the prosecution that attempts should be made to find the people who were inside the kitchen. The prosecution agreed to do so.
    
17. I was told that the defence would be calling those witnesses who were outside the kitchen as part of their case. This was also a matter of concern as to why the prosecution were not calling them for they were clearly available to testify. The proper course was for the prosecution to call the witnesses as part of its case, even although they did not support it.
    
18. At the end of the defence case, the prosecution applied to re-open its case to call the two witnesses who were inside the kitchen. They had apparently now been found by the investigating police officers and were available to testify. The issue was raised with the defence and counsel for the accused indicated that he had no objection at all to the application by the Crown. After considering the provisions of Section 64(3) of the Evidence Act 2009 and with the attitude of the defence in mind, I allowed the application by the prosecution. I indicate here that had the prosecution not called these witnesses then I would have exercised my powers under Section 133 of the Criminal Procedure Code [Cap. 7] and had them brought to Court to testify, their evidence being "essential to the just decision of the case."
    

Other Prosecution Witnesses
PW2 – Jenny Tukulele

19. PW2 said that she was at the fundraising event after midnight on the 24th May 2013 and saw many people there playing cards. She too played cards. There were prizes of noodles, tuna, rice and beer. There were about ten people playing cards and she knew all of them. As the fundraising finished soon after she arrived, she spoke to the Complainant and told her that the two of them should go back home. The Complainant is the daughter of her in-laws.
    
20. She saw Alex Tom (DW2), Charles Fox Nadu or "Fox" (DW3), and the accused at the function. The accused was chewing betel nut and the other two were playing cards.
    
21. She returned to the kitchen with the Complainant at around 2:30 a.m. – 3 a.m. Soon thereafter, Fox arrived and asked for a beer. PW2 gave him a beer and he went to lie in the hammock outside the kitchen. He slept in the hammock. A short time later, the accused arrived with Tom. Tom remained outside the kitchen and the accused entered the kitchen. When he came inside the kitchen he asked the Complainant to go out. The Complainant said that she did not want to go with him. He asked again for her to go with him and the Complainant said "where are we going?"
    
22. The Complainant was frightened then ran outside around the house and the accused ran after her. Not long afterwards, the Complainant ran back into the kitchen and PW2 told her to sit down beside her. When the accused returned, PW2 said to him "She's my people, so you respect me and don't take her away." When the Complainant did not stand up the accused said that he would pour the hot oil that they were using to cook the fish over both women. PW2 felt threatened and frightened. The accused then swore aggressively at PW2. The Complainant then alleged that the accused had poured beer over her head. After the accused swore, he grabbed the Complainant by the hand, made her stand up and pulled her outside.
    
23. That was the last that PW2 saw of the Complainant until 6 a.m. when she returned to PW2's house. The Complainant said that her body and her back was in pain. She was only wearing one skirt that was pulled up to cover her chest. PW2 gave her a towel and they went to wash together.
    
24. PW2 then began to give evidence of what I anticipated was going to be evidence of "recent complaint". The defence and the Court were taken by surprise by this evidence as no notice of it had been given. The evidence was not opened by the prosecutor and the defence had been given no statement relating to it. The prosecutor was totally unable to give any explanation as to his conduct in attempting to lead the evidence by surprise and why this potentially crucial evidence had not been foreshadowed and served upon the defence. The prosecutor confirmed the nature of the evidence about to be given by the witness and, when he did so, I did not permit him to lead it. I regarded it as a matter of unfairness to the accused that the prosecution had attempted to lead the evidence in this manner.
    
25. PW2 indicated that she was related to the accused and that he wasn't "very aggressive" in the kitchen. She said that she did not see any tooth or bite marks on the Complainant's cheek.
    
26. It is most significance that PW2's evidence that the accused had entered the kitchen was never challenged by the defence. Her evidence that he threatened to throw the boiling oil at the two women was also never challenged by the defence.
    

PW3 – Deary Sikola

27. This witness testified that she lived at Henderson with PW2. She described how on the night in question she was cooking fish and chips in the open kitchen. With her was the Complainant, Jenny (PW2), the accused, Alex (DW2), Fox (DW3) and Watson. She had been sleeping in Jenny's house which was very close to the kitchen and woke up when Jenny, the Complainant and Fox arrived. She went out to join them in the kitchen.
    
28. Fox asked for a beer. Jenny gave it to PW3 who then gave it to Fox who was in the hammock. Later, while they were cooking fish, the accused Alex and Watson came to the small kitchen. The three men walked into the kitchen and, because there was little room, she went outside. The accused forced the Complainant and he wanted her to go with him. The Complainant said that she didn't want to go, she pulled her hand away from him. She didn't want him to touch her. The accused said "if you don't want to come with me then I will pour the oil on you."
    
29. The Complainant stood up and ran outside and the accused ran after her. The Complainant ran back into the kitchen and then the accused came back in. He continued to force the girl to go with him but she refused, she did not want to go. The accused reached over and pulled her hand, he pulled her before she stood up. Jenny said "Don't force the girl to go with you" and then the accused swore at her. PW3 didn't see the accused holding any beer although he spoke like someone who had been drinking and he didn't walk normally. He was unsteady. After the accused swore, he reached over to the oil and was about to lift the dish. It was then that the girl stood up. She didn't want to go with him but he held her and was pushing her out and they went.
    
30. The complainant came back at about 5 a.m. or 6 a.m. I didn't talk to her. I was lying down, she came and she was changing in the same room. It was 6 a.m.
    
31. In cross examination it was put that the accused was not "pushing hard" when he was pushing the Complainant inside the kitchen. While the witness agreed, the proposition was totally at odds with the defence case to that point. It is also significant that, again, the suggestion that the accused was inside the kitchen was never challenged by the defence nor was the suggestion that the accused had threatened the two women with the oil.
    

The Defence Case:

32. The accused agreed that he went to the kitchen to ask PW2 for beer. He denied ever entering the kitchen and stated that he remained outside at all times. He said that he asked the Complainant to come outside for a chat and that she did so willingly. She then agreed to go with him to have sexual intercourse. He denied ever grabbing or pushing the Complainant and also denied threatening the Complainant and PW2 with the hot oil.
    
33. He testified that he and the Complainant walked off together and that they had one act of consensual sexual intercourse, after which he went home to his wife. While some prosecution witnesses had said that he was or appeared to be drunk, he denied having any alcohol for the whole time that he was at the fundraising function. He said that while all of his friends were drinking beer that night, he did not drink at all. He denied that he pulled off the Complainant's clothing, denied assaulting her or indecently assaulting her and said that the Complainant was at all times willing to be with him.
    
34. The accused testified that Jenny (PW2) was his best friend. While he had seen the Complainant along the road a few times and made some remarks to her, he had never had any long conversations with her.
    
35. The accused arrived at the fundraising function at about 10 p.m. on the 24th May 2013. His wife arrived shortly after him and she left somewhere between 10 p.m. and midnight. He was asked by Tom to buy him a beer and so he went to Jenny's house at about 2:30 a.m. he saw Jenny and the Complainant cooking and saw fox on the hammock. He arrived at the kitchen with Tom and Watson and all of them stayed outside.
    
36. When asked why he didn't go in the kitchen, he gave three reasons[1], namely –
    
    • The kitchen was too small and he didn't want to disturb the women;
    • The women were cooking and it was too hot in the kitchen; and
    • He could look into the kitchen from outside and hear what was said inside.
      
37. He said he saw the Complainant in the kitchen and asked her to come with him because he wanted to "tell stories with her". He says that the Complainant smiled In response, so he asked Jenny to tell the Complainant to go with him. Jenny replied that he could ask her himself. He said that he liked the Complainant and that he wanted to have a chat with her and ask her for sex.
    
38. The Complainant came to the doorway and chatted with him he spoke softly to her so that the others could not hear what he said. He said to the Complainant "I like you, so follow me so that we can go." He said that the Complainant then willingly followed him as he walked off into the bush.
    
39. When asked later to indicate on Exhibit P2 the location to where he took the Complainant and had sex with her, he indicated a position on the upper left hand corner of the map. This was precisely in the opposite direction to that which was put to the Complainant by his counsel in cross- examination that she had "gone to the right" with the accused.
    
40. He did not pull or push or slap the Complainant and she came willingly. She followed him across a bush track and they sat under a tree where he asked her to have sex with him. She agreed. She removed her skirt and he undressed himself and they had sexual intercourse. After having sexual intercourse he said to the Complainant "I am satisfied with you"[2] and he told her to follow the bush track to go home while he followed the main road.
    
41. When he arrived home, his wife asked him where he had been. He did not reply except to tell her that he would sleep outside so that the truck could collect him for work that morning.
    
42. He said that the Complainant had made up the idea that they had sexual intercourse in three other places because she was afraid of her uncle and also because he was a married man. When asked if she had told him that he said, in effect, "No. She made up the story and she didn't just admit having sex once. She didn't report it to the police, her uncle did. She didn't report it on the same day."[3]
    
43. In cross-examination, the accused said that Fox, Tom and Watson are wantoks, not close friends. He agreed that Exhibit P3 was the skirt that the Complainant had been wearing and said that she had removed it normally by undoing the buttons. He could not say how the buttons had been removed from the skirt. There was nothing in the way that she removed her skirt that would explain why all of the buttons have been pulled off it. He said that it is forbidden in his culture for a young girl to have sexual intercourse with a married man. When asked, he said that it is also forbidden for a married man to have sexual intercourse with a young girl.
    
44. When asked by the Court what was the Complainant lying on when they were having sex, the accused replied that they gathered leaves together. When asked why they didn't use their clothing, he replied that the Complainant said that they would get dirty. He later said that she did not say that but that he just thought it.[4]
    
45. When asked about the injuries to the Complainant, the accused said that there was nothing about the way that they had sexual intercourse that would explain the injuries to her back and to her vagina.[5]
    

DW2 - Alex Tom

46. This witness attended the fundraising function on 24th May, 2013. He arrived between 9 p.m. and 10 p.m. and played cards for half an hour. He was playing with Fox and other family members. The fundraising stopped after midnight, at about 2 a.m. There were a lot of drunken men there.
    
47. Later, after cards, the accused, Watson and DW2 went to Jenny's place to get some beer. DW2 wanted the beer and when they reached the house, the accused asked for a beer as DW2 didn't have any money. DW2 had been drinking beer with Fox. He heard the accused ask Jenny for beer - she said that she didn't have any. This took place at the kitchen and DW2 was outside the kitchen about 3-4 meters from it. He was next to the accused at the kitchen. After that he moved to the side of the kitchen with Watson. The accused was at the door and he asked Jenny if he could talk to the Complainant.
    
48. Jenny said "talk to her, we're cooking fish and chips". The accused asked a second time and the Complainant said to Jenny "wait, I'm going to talk with him." The two of them talked together. The accused walked out from the kitchen first followed by the Complainant. After they spoke they moved off. He didn't see any aggressiveness or hear any shouting. They were talking quietly. When the accused left, the Complainant followed him.
    
49. He did not see the accused push, slap or grab the shirt of the Complainant. The two of them walked from the kitchen in the direction of the seaside.
    
50. He did not see the accused drinking beer that night. The accused is his wantok and also his best friend. He has never spoken to the accused about the case - he was too ashamed to ask the accused about it.
    
51. Shown the sketch-map (Exhibit P2) he agrees that the direction indicated by the accused as being the direction he walked off with the Complainant was in the opposite direction to that which he described.
    

DW3 - Charles Fox Nadu

52. Aged 53, married with seven children, regarded as an elder of the community and when problems arise he is called upon to resolve them. He was at the fundraising and played cards, winning some beer. Afterwards, he went to Jenny's house at around 2:30 a.m. He saw Tom Alex and the accused. He had been drinking that night but didn't count the beers. He did not see the accused drink any beer, just chewing betel nut.
    
53. When he left, Tom was still playing cards at around 2:30 a.m. He followed Jenny to her house because she said she had some beer and he asked her for beer. Jenny and the Complainant began coking fish and chips and he lay in the hammock. The light inside the kitchen was bright. The fundraising area was about 300-400 metres away from Jenny's house. The kitchen was about 2 metres by 2 metres with wire netting.
    
54. He had been in the hammock for about half an hour when Watson, Tom and the accused arrived. They asked Jenny for beer and she told them that she had none left. He heard the accused say to Jenny that he liked the Complainant. Jenny told him to speak to the Complainant. She said that the Complainant was there to help with the cooking.
    
55. After a while, the Complainant came out and spoke to the accused for some time. The accused walked off and the Complainant followed him. He did not see the accused enter the kitchen or hit or chase the Complainant around the house, saying that if that had occurred they would have passed him.
    
56. He could not hear what the accused and the Complainant were saying because they were talking quietly. He said that he was "not very drunk", that although he had a few beers his senses were good. The accused seemed to be sober. They did not walk towards the sea or towards the airport. He did not know in which direction they walked.
    

DW4 - Annie Wavu

57. She is the wife of the accused. They have one child and live at Henderson. She went to the fundraising at 10 p.m. and left around 11:30 p.m. the accused came home at about 4 a.m. the next morning. He was home later than she expected. She expected him home around 3 a.m. when the fundraising had finished. Music was still playing at the fundraising at 3 a.m.
    
58. Evaluation of the Evidence:
59. It is obvious from this description of the evidence that the accounts given by the prosecution witnesses differ markedly from those given by the accused and his witnesses. While I note that there were some aspects of the demeanour of witnesses on both sides which caused me concern, I am conscious that too great a reliance on demeanour in these stressful circumstances and when witnesses are giving their testimony with the assistance of an interpreter, can sometimes be positively misleading. While there may be occasions where cross-examination might detect a bad liar, the instances where that happens should not conceal the fact that a witness suffering from self-deception through reinforcement or even a witness with an imperfect memory can rarely be detected through demeanour alone.
    
60. I am also conscious that this case should not be decided upon the basis of which version is preferred. It is not a question of preference. The only relevant question is whether or not the prosecution has, on all of the evidence, proven each and every count beyond reasonable doubt. The accused bears no onus of proving that his version of events is to be preferred. The accused bears no onus of proving anything at all. If there is a reasonable doubt as to the guilt of the accused in relation to any of the counts, then the benefit of that doubt is to be given to the accused and he is to be acquitted of that count. This is not as a result of any largesse offered by the Court, it is his legal right. It is only if and when the Court is satisfied beyond reasonable doubt of the guilt of the accused in relation to any one or all of the counts that he can be convicted of one or more of them.
    
61. Because of findings that I have made and note below, I will begin with my assessment of the Defence case. Again, I am conscious that even if I were to reject the Defence case in its entirety, that this would not avail the prosecution. They have the onus of proving the guilt of the accused positively and not as a result of the Defence case defaulting.
    
62. I am satisfied (and where in this Judgement reference is so made, I mean satisfied beyond reasonable doubt), that a considerable amount of alcohol had being drunk between the hours of 9 p.m. on the 24th May 2013 and 2:30 a.m. on the 25th May 2013, by many of the men who attended the fundraising function. Several witnesses related that many men were drinking beer as they were playing cards and the position was put concisely by DW2 who said that "there were a lot of drunken men there".[6]
    
63. The Complainant alleged that she saw the accused drinking beer and PW3 said that while she did not see the accused drinking, he was speaking like a person who had been drinking and was walking unsteadily. While I find it unlikely that the accused was the only person in his group of friends and card partners who did not drink any beer whatsoever during that night and early morning, I am not satisfied that the prosecution have proven that he was drinking. Each of the Defence witnesses testified that the accused had not been drinking or that they did not see him drinking.
    
64. I am satisfied however that DW2 had been drinking at the function and continued to do so after it ended. Indeed, it was he who wanted to find more beer when the fundraising ended. I am also satisfied that DW3 had been drinking at the function and continued to do so after it ended. He was the person who obtained beer from PW2 and retired to the hammock somewhere between 2 a.m. and 3 a.m. that morning. While DW3 said that he wasn't "very" drunk, I am satisfied that he was affected by alcohol at least from midnight onwards. I am satisfied that the evidence of PW2 that DW3 was sleeping in the hammock, is accurate.
    
65. For these reasons and for others which I will note, I do not find either DW2 or DW3 to be credible witnesses. While I have some doubts about the honesty of these two witnesses, I am not satisfied that they were in a position to give reliable evidence. The impact of alcohol, their close relationship with the accused, but more importantly the logic of the case, does not enable me to accept them as witnesses who are credible or reliable.
    
66. As indicated above, I am not satisfied that the account given by the accused is similarly affected by alcohol. However his description of events left me with serious doubts about his honesty. An example of his evidence that had all the hallmarks of dissembling was when he gave three different answers when asked why he did not go into the kitchen.[7] It was important for the Defence case that the accused at no stage entered the kitchen, however I found his varying explanations for remaining outside to be unsatisfactory.
    
67. PW2 and PW3 both testified that the accused did enter the kitchen. Significantly, neither witness was challenged on this evidence and cross-examination proceeded on the basis that the accused was in the kitchen.
    
68. DW2 also testified that after the accused had spoken to the Complainant, "he walked out first". The transcript of that passage reads as follows[8] –
    

After they spoke then Phillip walked out first and then Alison went after him.

Philip walked out first?

Yes, and then Alison.

Out from where?

From the kitchen.

So was he in the kitchen?

Who?

Was he in the kitchen? When you said he walked out of the kitchen, what did you mean?

After Alison came out when they were talking, they were talking at the door not exactly in the kitchen.

Did I mishear your evidence or did you just make a mistake, did you not say that Philip walked out first and then I asked you from where you said from the kitchen, is not what you say?

I did not hear clearly.

69. I do not accept the witness' explanation that he did not "hear clearly" and I am of the view that his original explanation that the accused walked out of the kitchen first was closer to the truth.
    
70. The accused gave evidence that he came to buy beer from Jenny. He intended to bargain with her over the price of the beer and then take or receive it from her. In order for him to do so and seeing that she was busy with hot oil and frying fish, it seems more rational for him to have gone inside so that he could speak with her and collect the beer he wanted. When he saw the Complainant in the kitchen, he immediately wanted to talk to her and, he says, have sex with her. It is in my view more likely that this expressed unabashed desire for the Complainant would have resulted in him approaching the Complainant as she and others have described, in order for him to press his case with her.
    
71. Even if I have misjudged DW2 on this point and my comments as to the logic of the case in the preceding paragraph can be disputed, I unreservedly accept the evidence of the Complainant, PW2 and PW3 that the accused did enter the kitchen as credible, truthful and reliable. I also find their evidence to be logical.
    
72. The Complainant's account that she was kept for some hours by the accused, that he forcibly ripped off her skirt and that he raped and indecently assaulted her several times finds some circumstantial support in other aspects of the prosecution case.
    
73. The accused said that only one act of sexual intercourse took place and when it was over, they each went home. Although the evidence varies, the time when the accused and the Complainant first left the kitchen seems to be somewhere between 2 a.m. and 3 a.m. Evidence from the Complainant and other prosecution witnesses suggests that she did not return to Jenny's (PW2) house until around 6 a.m., some 3-4 hours later. The accused in his evidence gave no indication that the sexual intercourse was other than perfunctory and gave no indication that it was prolonged in any way, certainly not for 3-4 hours.
    
74. The timing of the events as described by the Complainant and the two prosecution witnesses is consistent with the description of the events given by the Complainant and is inconsistent with the events as described by the accused.
    
75. I note here the evidence of the accused's wife (DW4) who testified that her husband arrived home later than she expected. She said that she was asleep and woke up shortly before he arrived home. She estimated the time that her husband returned as being around 4 a.m. I did not find DW4 to be an impressive witness. She contradicted herself on matters of detail and testified that she expected that her husband would return after the fundraising ended, which she said was at 3 a.m. Other witnesses testified that the fundraising events ended at an earlier time. I reject her evidence in so far as it relates to the estimate of time.
    
76. The Complainant testified that she was wearing two skirts on the night of the fundraising. One of the skirts, a black one, was tendered as Exhibit P3 in evidence and agreed by the accused to be a skirt worn by the Complainant. According to the accused, the Complainant removed the skirt herself by undoing the buttons normally. According to the Complainant, the accused forcefully pulled the skirt from her resulting in the buttons being pulled from the garment.
    
77. An examination of the skirt revealed that the cotton holding the buttons to the skirt had been pulled away from and almost out of the surface of the skirt. It was clear that the buttons had not been cut from the skirt but had been removed by the application of some force.
    
78. The physical condition of the skirt was consistent with the account given by the Complainant that it had been forcibly pulled off her. The physical condition of the skirt was not consistent with the accused's account that the Complainant had removed the skirt herself by undoing the buttons.
    
79. In my view these two aspects of the evidence, the timing and the condition of the skirt, add some circumstantial support to the account given by the Complainant and are inconsistent with the accused's version.
    
80. I have carefully examined the evidence presented in respect of each of the 13 counts on the Information. After taking into account the capacity of each witness who testified to give testimony unencumbered by alcohol, the evidence given in relation to the timing of events, the condition of Exhibit P3 and also the logic of the cases put by the Complainant and the accused, I find that the prosecution has satisfied me beyond reasonable doubt of the guilt of the accused in respect of Counts 1, 4, 5, 6, 7, 8, 9, 12 and 13. I am not so satisfied in respect of Counts 2, 3, 10 and 11 and the accused will be acquitted of those four counts.
    
81. The Orders of the Court are that the accused will be convicted of one count of intimidation (Count 1) contrary to Section 231 of the Penal Code [Cap. 26], four counts of indecent assault (Counts 4, 6,8 and 12) contrary to Section 141(1) of the Penal Code [Cap. 26]and four counts of rape (Counts 5, 7, 9 and 13) contrary to Section 136 of the Penal Code [Cap. 26]..
    

THE COURT

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^[1] Transcript 22^nd November 2013, pp.39-40.
^[2] Transcript, 22^nd November 2013, p.46.
^[3] Ibid, pp.52-54.
^[4] Transcript, 25^th November 2013, p.18.
^[5] Ibid, pp.28-29.
^[6] Transcript, 25 November 2013, p.53.
^[7] Transcript, 22^nd November 2013, pp.39-40.
^[8] Transcript, 25^th November 2013, pp.58-59.