Regina v Bosamete [2013] SBHC 48; HCSI-CRC 97 of 2009 (27 March 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALLARAS J)

Criminal Case No. 97 of 2009

THE QUEEN

- V –

JEFFEREY PHILIP BOSAMETE

Date of Hearing: 25 – 27 March 2013
Date of Judgment: 27 March 2012

Coram: Pallaras J
Crown: Mr Nelson Dhita and Mr Josaia Naigulevu
Defence: Mr Wayne Ghemu and Ms Linda McSpedden

SUBMISSION OF NO CASE TO ANSWER – JUDGMENT

1. The Accused is charged with two counts of raping the Complainant, Ethel Gerelete. The first offence is alleged to have occurred on 26th June, 2008 and the second offence is alleged to have occurred on 29th June, 2008.
   
2. In support of these offences, the Crown called the Complainant, her mother Serah Ngelea (PW2), Cynthia Philip (PW3) and Sam Subasi (PW4) who was tendered for cross examination by the Defence.
   
3. At the conclusion of the Crown case, I invited the parties to address me on whether there was a case to answer. Both Counsels tendered written submissions, the contents of which I shall not repeat here.
   
4. Both parties agree that there are two bases upon which a no case submission can be made at the end of the Crown case. The first is if there is no evidence going to the commission of the crime alleged by the accused, or no evidence going to the proof of an element of the offence charged.
   
5. The second basis goes beyond a mere consideration of evidence of the elements of the offence but involves a consideration of matters such as the weight and reliability of all of the evidence and whether or not that evidence can be relied upon to found a safe conviction.[1] This proposition is supported in the decision of R v Somae [2005] SBCA 11; CA-CRAC 003 of 2004 (4 August 2005).
   
6. In a trial by judge alone, the presiding judge is of course both the judge of the law and of the facts. At the close of the Crown's case, the judge must be satisfied not only that there is evidence capable of proving the case against the accused beyond reasonable doubt, but also that if the evidence is accepted, that it is sufficiently reliable and of sufficient weight so as to form the basis of a sound and safe conviction.
   
7. In a trial by judge and jury, the judge rules on the admissibility of the evidence while the jury is tasked with assessing its weight, reliability and credibility. In a trial by judge alone, it is the trial judge who must make those assessments, which would be otherwise made by a jury.
   
8. Consequently, if at the end of the Crown's case a trial judge is of the view that the evidence of the Crown, although on a strict reading is capable of proving the elements of the offence – such as for example where a complainant says that she was forced to have sexual intercourse without her consent – where the judge assesses her evidence to be so lacking in reliability and weight that her evidence cannot be accepted as forming the basis of a sound and safe conviction, then the trial judge is entitled to rule that the accused has no case to answer and acquit him of the charges he faces.
   
9. That is the position that I find myself in with the Prosecution evidence in this case. The Complainant has said that she was raped by the Accused. To that extent, her evidence is capable of proving the elements of the offence. However, her testimony was attended by illogicality and contradiction, which caused me to have serious doubt as to her reliability and to look for corroboration of her evidence in the rest of the prosecution case.
   
10. There was little corroboration to be found.
    
11. Even the witness (PW3) who was called in the expectation of supporting the Complainant's evidence of complaint, contradicted the complainant and did not provide evidence of recent complaint.
    
12. The Complainant's mother (PW2) did give some evidence of a complaint made by her daughter but her evidence was otherwise confusing, vague and unsatisfactory. She was not a witness upon whom any reliance could be placed. It is of note that the prosecution made no application to treat her as hostile in the clear acceptance that her vagueness and imprecision was not a deliberate attempt to mislead the court but rather a function of the time that had passed since the relevant events had occurred and also perhaps, without any unkindness being intended, her general level of education.
    
13. Sam Subasi (PW4) was tendered for cross-examination. He gave some evidence which contradicted the Complainant on a relatively minor point. Notwithstanding the relative lack of significance of his evidence, I found him to be a thoroughly dishonest, conniving and evasive witness. He was obviously intent on testifying in support of his friend and relative, the accused, and his evidence was based far more on this agenda than on any concept of being open and truthful to the court. I totally reject everything he had to say in his evidence as being deliberately untruthful, evasive and unhelpful.
    
14. When the Crown's case is analysed in this way, it can be seen that there is little support to be found in it for the Complainant. I did not assess this young girl to untruthful, after all she was just 12 years of age when these events occurred and several years have passed since then. However after considering the content of her evidence and the Crown case as a whole, I have more than a little doubt about her reliability and do not believe that a conviction based on her evidence would be safe.
    
15. As a result, I rule that on the two counts of rape, the Accused has no case to answer and those charges are dismissed. The Accused is acquitted of both counts of rape on the Information.
    
16. Section 166 of the Criminal Procedure Code provides as follows:
    

"When a person is charged with rape and the Court is of the opinion that he is not guilty of that offence but that he is guilty of an offence under one of the sections 141(1), 142, 143, 145 and 163 of the Penal Code, he may be convicted of that offence although he was not charged with it."

17. I do find as a matter of law that the Accused does have a case to answer under section 142 of the Penal Code and I call upon him answer the case against him.
    

THE COURT

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^[1] See R v Galbraith [1981] 1 WLR 1039; R v Prasad [1979] 23 SASR 161; and R v Ayles 919930 [1993] SASC 3987; 66 A Crim R 302