Regina v Tebitanga [2013] SBHC 23; HCSI-CRC75 of 2009 (1 March 2013)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 75 of 2009

REGINA

-V-

Beniamina TEBITANGA

Hearing: 14 February 2013
Judgment: 1st March 2013

F. Taeburi and J. Naiqulevu for the Crown
B. Ifuto'o and S. Valenitabua for the Defendant;

Palmer CJ.

1. The defendant, Beniamina Tebitanga ("the Defendant") is charged with three counts, rape, contrary to section 137 of the Penal Code, attempted rape, contrary to section 138 of the Penal Code and indecent assault, contrary to section 141(1) of the Penal Code. All three offences were alleged to have been committed on the same day, 28th March 2008 at Canaan village, Kohingo Island, Western Province.
   
2. The prosecution's case is that the offences were committed at an isolated spot at night when the victim and the Defendant were walking back to Canaan village. The victim was accosted by the Defendant from the back, pushed down and then dragged away from the road into a clearing where he indecently assaulted her, raped her and made further attempts to rape her. They were disturbed by someone who shone a torch at them. When they got up from the ground she managed to hit him with her hand and escaped from him. She ran to the house of Tebitara Reo and his wife Anna Reo and took refuge there. She was then taken by them to the house of a police officer for safety but because he was drunk they took her to the house of Tekaisi where they spent the night with her before escorting her to Noro Police Station on the next day.
   
3. The defence case is that nothing happened between them. It was not denied they walked back together to Canaan village that night. He was however, walking in front and she followed behind. She had asked to accompany him back so she could go to her Granny's place to collect her clothes. On the way, she changed her mind and instead decided to go to her Aunty's place to have her bath first. Her name was "Tekaro". She then asked for his hat and glasses and so he gave them to her. He then left her and walked back to his house, stopping for a smoke at his nephew's house, Kaipuke and his wife Aterenga and then stopping also at his wife's niece's house married to a man from Choiseul, called Kosma. He then asked him to drop him off at his house with his torch, as it was dark.
   

Facts not in dispute.

4. It is not in dispute that there was a party at Dominic's house at Canaan village and that the Defendant and the victim both attended the birthday party on the 28th March 2008. It was also not in dispute that the Defendant was drunk at that time having drunk a bottle of "kwaso", the size of a Schweppes bottle, a locally brewed drink. The Defendant conceded having taken such drink.
   
5. There is dispute about their conversation and the reason for going to Canaan village and why the victim accompanied the Defendant, which I will deal with later on in this judgment. The victim's version was that she was "forced" to accompany him to Canaan village having been told that he would wash or bathe her in oil to enable her to be an attractive dancer according to their traditional practices. He however told the court that she had asked to accompany him to go to her Granny's place to collect her clothes.
   
6. It was not disputed that the two of them left Dominic's place sometime at night, possibly around 8 o'clock or so and took the road to Canaan village.
   
7. What is also not in dispute is that the Defendant was wearing a hat and a sunglass at that time and so the issue of the unavailability of these objects as exhibits is a non-issue, other than the issue of the underpants and the "lavalava" of the victim, which were also collected at the scene of the crime but then not produced at the trial which I will refer to later in this judgment.
   

Issues in the trial

8. The main issue in this trial is that of credibility. Whose evidence or version is credible, can be relied on and truthful? To do this entails an examination of the evidence adduced in this case by the prosecution and the defence, and comparing them to determine where the ring of truth lies. This further requires an assessment of the evidence of witnesses' called, their consistency, and issues on verity or proof.
   

(i) The account by the victim.

The victim told the court that the Defendant had forced her to accompany him back to Canaan village and although she did not want to go with him, she feared disobeying him because he was in a position of authority, in a Granny relationship to him and did not want to be told off by him later for disobeying, she went along with him. She told the court she was walking in front of him. She also pointed out the Defendant had a sunglass and a hat at that time.

At a particular point in their journey, he pushed her to the ground, held her with one hand over her mouth and the other hand around her belly, pulled her to a clearing where he threw her onto the ground, held her hands, pulled out her shirt or top and her undergarment, she called it her "one string top", this got stuck part way up around her breast area but eventually he managed to pull that out as well, all the time they were struggling. He then took hold of that piece of garment and pushed it into her mouth, preventing her from being able to shout. At this point of time she was on her back; he was sitting on top of her. He then used his legs to pull out her trousers and pant.

She told the court that she also had a lavalava which she used to tie her trousers with as it was slack. When he pulled the trousers out the lavalava was still tied on. He then pulled her legs up onto his shoulders and licked her vagina. He then sought to push his penis into her and she described it as penetrating partially for it was "not strong". They then rolled to one side and when she felt one of her legs coming free she kicked him with it. This caused him to fall down but he quickly jumped back onto her and sucked her breasts. She also told the court that he was also trying to push his penis into her again but did not succeed and felt it on top of her vagina. They rolled to one side and it was at this point of time when someone shone a torch on them. He then heard that person saying words to the effect "hao hem inside now". She felt the Defendant standing up from her at this point and so sought to stand up to run to that person as well as responding with words to the effect "yah" but he held onto her mouth again with one hand, squeezed her neck and pushed her down. She said she felt like vomiting when he did this. He then told her to wear her trousers so that they can go and have sex at his house.

When she stood up, her lavalava fell off. She then got her trousers and her shirt and wore them. He held onto her with one of his hands but with her free hand she hit him. When she felt his hand letting go, she took off and escaped from him. She ran off and came to the house of Tebitara Reo.

9. There are a couple of points to note about the victim's account which in my view support her version, give credibility and therefore reliable. The first point would be her escape from the Defendant and arrival at Tebitara's home, for this has been confirmed by Tebitara himself and his wife Anna Reo. Their son, Terabena Reo was also present at that time but he was not asked to confirm this or not, although he was called. His evidence was more of the discovery of items at the scene of crime on the next morning 29th of March 2008.
   
10. The evidence of Tebitara and Anna Reo is significant for it supports the evidence of the victim of her escape from the Defendant as opposed to his version that when they parted and she left him she went to the house of her Aunty, "Teikaro". Apart from his own evidence there is no other supporting evidence from anyone else that that is where she went. The Aunty, "Teikaro" also was never called to give evidence of this fact.
    
11. As well, Tebitara and Anna Reo's evidence of her demeanour and their observations of her conduct that night are entirely consistent with her account of having had something terrible and traumatic done to her such that she was in an extremely frightened and distressed state. If the version of the Defendant is to be believed and accepted as true, that the first house she entered after leaving him peacefully was Tebitara's house, then why was she in such a state of fear? It is totally inconsistent with his version of events. This is also to be contrasted with his evidence that she stopped over at Tekaro's house to bathe before continuing on to her Grandmothers place to collect her clothes. The evidence adduced did not support any such visit or confirmation of her visit to those houses.
    
12. The victim told the Court that when she got to their house she jumped onto the floor of their house. Tebitara confirmed that the victim ran to their house when they were having dinner and jumped onto the floor of their house. Her voice was shaking, she was breathless and she appeared very frightened. He told the court that because she was so frightened and did not want to stay at their verandah, they told her to hide behind their mosquito net.
    
13. She also told them what the Defendant did to her as evidence of recent complaint and supports the issue of credibility of her account. She described to them where the struggle and the crime was committed and had asked them to go and get her lavalava which had fallen off. Tebitara told the court that they could not go at night but in the morning, his son Terabena Reo went to the spot described and found the lavalava including the hat, glasses and the two underpants, one belonging to a male and the other one belonging to a female.
    
14. The discovery of the hat, glasses, lavalava and underpants all support the version of the victim that a struggle took place at that spot between her and the Defendant. No other reasonable explanation has been provided for their presence at that spot.
    
15. It is critically important to bear in mind as well that the credibility of Tebitara Reo, Terabena Reo and the reliability of the statement of Anna Reo have never been challenged or contradicted. The court is therefore bound to accept their evidence, which swings the issues of veracity and credibility of the version of events in favour of the victim. If the hat and the glasses were found at the scene of the alleged crime, then the version or account of the Defendant could not be true.
    
16. If the victim was in such a terrified and distressed state when she appeared at the residence of Tebitara, then the Defendant's account that she left him in a normal, peaceful state could not be true as well. No explanation has been provided by him as to why she should be in such a state of fear of apprehension of him when she arrived at Tebitara's house.
    
17. Tebitara and Anna Reo's reactions that night, is also entirely consistent with their perception of her state of mind. Tebitara told the court that because she felt so frightened and unsecure to stay at their house that night, they decided to take her to her Aunty's place, Mrs. Teara Bwerei. He told the court they were also rushing to Mrs. Teara's place and told them to guard the girl while they tried to contact a police officer. They were also trying to find transport to take her across to Noro Police Station that night but because of difficulties encountered could not until the next morning.
    
18. Later that night at Tekaisi's house, the victim recounted in more detail to Anna Reo what the Defendant did to her. Again her recollection of what she was told was entirely consistent with the evidence of the victim in open court and therefore further supports the credibility of her account.
    
19. The scene of the crime was visited in the company of a police officer, Tohia Tarakabu towards the evening of the following day, 29th March 2008. Tarakabu drew a sketch of the scene and observed the spots where the lavalava, sunglasses and the two underpants were found by Terabena. He also noticed that the grass around that spot had been disturbed consistent with a struggle having occurred at that spot.
    

Assessment of the evidence

20. The reason given by the Defendant for going to Canaan village was to return to his wife and children and denied forcing the victim to accompany him. The victim's version in contrast was that he had "forced" her to accompany him to bathe her in custom oil.
    
21. Her version has been supported by her Aunty, Avita Tererei ("Tererei") who also gave evidence confirming her version. I have had the opportunity to listen to their evidence, observed their demeanour in court and noted any discrepancies in their evidence but come to the clear conclusion that their version of events has been consistent, clear and reliable.
    
22. Both witnesses expressed some sense of apprehension and fear at the behavior and conduct of the Defendant towards them that afternoon at the birthday party. Apart from being drunk or under the influence of alcohol, he was forceful, loud and persistent in his approach to the extent that they tried to avoid him. Tererei told the court how she had to hide from him to avoid him. The victim on the other hand, because of her relationship to him as a Granny and feared being scolded by him, he being in a clear position of authority and trust, felt cornered and obliged to go as he had insisted.
    
23. I accept their version of events regarding the matters, which occurred that afternoon prior to the victim accompanying him to Canaan village. I find this version entirely consistent with the subsequent events that occurred later that night as opposed to his version that literally nothing happened and his denials.
    
24. One of the issues sought to be raised was in relation to the height of the trees, shrubs and bushes around the area where the alleged offences were committed on the suggestion that it was impossible to have occurred that night and on the suggestion that there were no injuries or bruises sustained by the victim.
    
25. Those who went to the scene of the crime confirmed that there were small trees and shrubs and that where the alleged offences were committed was an area of clearing as described by the victim. I have had the opportunity to consider their observations and evidence of the scene of the crime but do not find anything significant to raise any doubt in my mind of the impossibility or even the plausibility of the occurrence of the crime in those conditions.
    
26. Nothing as well appears to have been raised with Tebitara or Tarakabu regarding any observations they might have of the victim in terms of any possible injuries or bruises.
    
27. The account of what happened that night by the victim has been fairly consistent throughout, clear, unambiguous, quite detailed and supported by the evidence of those immediately prior to and after the events.
    
28. Tarakabu for instance observed that the grass and shrubs around that area were observed to have been in a state of disturbance. Of significance as well were their observations of broken glass which came from the sunglass that was picked up from the scene of the crime by Terabena. They all gave evidence that the sunglass was broken in place and had one side of it missing. Again this is entirely consistent with the version of the victim of a struggle at that place as opposed to the version of the Defendant that he gave his hat and glasses to her.
    
29. When Tebitara and Anna Reo saw her for the first time that night, there was no mention of any hat or sunglasses or that they observed her holding onto this. No explanation as well has been provided by him as to why or how the hat and the sunglasses could have been found at the alleged scene of the crime and why the sunglass was broken. The victim did not have any sunglasses or hat with her that night or even the next morning and when she reported the crime to the police at Noro Police Station. If they were with her, no one could possibly have missed seeing those objects with her.
    
30. The evidence of Tebitara and Terabena regarding the location of those items, including the lavalava and the two underpants are quite significant in terms of supporting the account of the victim. Tebitara told this court that the victim actually described to them the location of the incident that night and had asked them to go and collect her lavalava, but decided not to go as it was night time. Terabena instead went the next morning and found the lavalava at that place. He found all those items within the same vicinity, and described the distance of around half a meter or so.
    

Unavailability of the exhibits

31. An issue has been raised regarding the unavailability of the exhibits although it was confirmed in evidence in court that these were handed to police and duly recorded. It is not clear where or how the exhibits went missing while in the custody of the police but this is something which should never have occurred and the police should ensure that their procedures for receiving, recording, storage and releasing exhibits to be enquired into so that there is an open transparent and accountable process in place. It is also important to note that when a committal is being done, that the exhibits should then be handed over into the custody of the committing court and to be handed over in turn to this Court.
    
32. In the circumstances of this court however, I am not satisfied that their unavailability has been prejudicial to the Defendant or the trial, for there had been ample witnesses, who had given testimony of their existence, including the police officer who received them and handed them over for recording and storage at the Noro Police Station and been available for cross examination. These were then later transferred to Gizo Police Station but somehow misplaced and could not be located.
    
33. I am satisfied the evidence in terms of their existence and location has been fairly consistent, inherently reasonable and probable. No other reasonable explanation has been offered regarding how or why those items could have been located at that place other than the explanation provided by the victim in this case. She confirmed for instance that she was wearing underpants that night and that the Defendant had pulled this down as well with his legs. Tarakabu told the court that the female underpants was fairly new and that it was torn on one side of it. This is fairly consistent with the evidence of the victim that a struggle ensured between them. The male underpants he told the court was old. While the Defendant denied wearing any underpants that night, it was fairly plausible that the male underpants could have belonged to no one else other than him. I am not satisfied the testimony of the existence of those items had been discredited in anyway so as to raise any doubt in my mind as to their existence.
    

The medical report of the victim.

34. An issue has been raised regarding the report that the hymen was intact and lack of injuries or bruises to her private part. The Doctor who prepared the report was not available to be cross examined on his findings.
    
35. The prosecution did seek to call another Doctor, to give his opinion on the issue of whether partial penetration could be achieved without affecting the hymen, but this was objected to by the defence and upheld on the basis that insufficient notice had been given to enable defence to call any other witness of their choosing on the same issue and therefore the possibility of prejudice did not justify granting the application.
    
36. I do not think however that this report of the Doctor can be relied on as discrediting or contradicting the evidence of the victim that partial penetration did not take place, for the evidence of the victim was clear and concise. She told the court that when he penetrated her, his penis only penetrated her partially. She was clear in her evidence that she felt it going in part of the way. She also told the court that his penis at that time was "not strong", meaning not hard.
    
37. It has been sought to be suggested in cross examination to her that if his penis was not erect that it could not have achieved any penetration at all. She however maintained her evidence that it went in partially. I also note that it would not be open to the defence to raise this in cross examination for this was never the case for the defence. Their defence was that it never happened. This meant either the victim's account was a fabrication or his denial and account not true.
    

Conclusion

38. I accept the evidence of the victim and her account regarding what happened as being truthful, inherently reasonable, probable and credible and reliable. I accept her version of accounts regarding the partial penetration of her vagina, the indecent act on her and the attempt to further rape her.
    
39. I reject the version of events by the Defendant as vague, ambiguous, inconsistent and full of contradictions, lacking in detail, inherently unreasonable and improbable with many unexplained matters. I do not believe his account that nothing happened that night.
    
40. I am satisfied on the evidence before me that prosecution have discharged the onus of proof that the Defendant committed those acts complained of on her and he is convicted accordingly of all three counts.
    

Orders of the Court:

1. Find Beniamina Tebitanga guilty of the charges of rape, attempted rape and indecent assault and convict him accordingly.
   

The Court.