Regina v Palaso [2013] SBHC 51; HCSI-CRC 279 of 2009 (16 April 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Jurisdiction

REGINA

-v-

JOHN HARRISON PALASO

Date of Hearing: 8th, 9th, 10th, 12th April 2013

Date of Judgment: 16th April 2013

Mr. A. Aulanga for the Crown.
Mr. A. Kesaka for the accused.

JUDGMENT

Apaniai, PJ:

The charge.

1. The accused is charged with two counts of rape contrary to section 137 of the Penal Code.
   
2. It is alleged that the accused had sexual intercourse on two occasions with Ms. Marvis Salini ("complainant") without her consent on an unknown date between 1st January and 27th July 2007 at Polomuhu village, Big Ngella, Central Islands Province, and again, on the 27th July 2007 also at Polomuhu village.
   
3. The accused has denied both charges saying that he never had sexual intercourse with the complainant as alleged.
   

The law.

4. Rape is an offence under section 136 of the Penal Code. To be guilty of rape, there are two basic elements that the prosecution must prove beyond reasonable doubt. These are:-
   

[a] whether the accused had sexual intercourse with the complainant; and,

[b] whether the complainant had not consented to the act of sexual intercourse.

5. In many cases, sexual intercourse is not normally contested. However, where, as in this case, sexual intercourse is denied, the first issue that must be determined is whether or not sexual intercourse occurred. If sexual intercourse is not proved, the issue of consent does not arise.
   
6. In the light of the accused's denial of sexual intercourse in this case, and having regard to the evidence before the court, the first question to ask is whether there is evidence to prove beyond reasonable doubt that the accused had sexual intercourse with the complainant. If sexual intercourse is proved to the required standard then the next issue is that of consent.
   
7. The question whether or not sexual intercourse occurred is a question of fact and in determining this question, credibility of witnesses and discrepancies or inconsistencies in witness testimonies, whether in the testimony of a witness or as between witnesses, are evaluated and considered.

Crown evidence.

8. The Crown had called 2 witnesses. They are the complainant, Marvis Salini (PW1) and her mother, Susan Koigara ("Koigara") (PW2). Also tendered into evidence by consent are the record of interview conducted with the accused on 1st August 2007 (Exhibit "P1"), Medical Report by Dr. Michael Vavala (Exhibit "P2"), a Psychiatric Report on the complainant by Dr. Paul Orotaloa (Exhibit "P3") and a photograph of one of the crime scenes (Exhibit "P4").
   
9. The Crown has also tendered into evidence a statement made by a deceased witness, the late Thompson Fakaia ("Fakaia"), who had died before the trial. Fakaia was the husband of Koigara and step father of the complainant. The defence had consented to the application subject to objections to the admissibility of certain parts of the statement. Counsels have agreed that these objections would be addressed at the closing addresses.
   
10. The Crown's evidence is that at the time of the alleged offences, the complainant was 17 years old. She is now 22 years old. According to a psychiatric report[1] made by Dr. Orotaloa, the complainant is suffering from a mild mental retardation due to a bout of malaria when she was about 3 months old.
    
11. In classifying her condition as mild mental retardation, Dr. Orotaloa said that the complainant is intellectually capable of living and interacting meaningfully by being able to follow simple instructions and hold rational conversations though with mild degrees of difficulties in the occasional use of childish words and pronunciations. Dr. Orotaloa concluded that she is capable of giving her side of the story in court through an interpreter should she be asked questions and if the questions and instructions are given and explained in simple language.
    
12. On the basis of that report an interpreter was made available to the complainant to translate questions to the complainant from English to her own language and then to translate her answers from her language into English.
    
13. At the outset, I must say that having heard the evidence of the complainant and that of her mother, Susan Koigara, and considering all other evidences produced in court, the most important evidence which will determine the outcome of this case is that of the complainant.
    
14. The evidence of the complainant is as follows:
    
15. The first time she had sex with the accused was on a date between 1st January and 27th July 2007. At that time, she and her younger sister, Tamaris, had gone to a stream to wash dishes. That was at night and it was dark. When they arrived at the stream, the accused was already there.
    
16. The accused then started to tease them by making some kind of signs. Then he waived to her beckoning her to come over to him. At first, she did not respond but continued to wash the dishes. The accused asked her the second time to come to him. That time she responded and went to him. The accused was already naked when she came to where he was.
    
17. The accused then pushed her from the back to a house nearby. The house belonged to persons known as Tom and Kere. She was naked when the accused pushed her towards the house. In fact she said they both were naked as they were going towards the house. However, a little later she changed her story and said that the accused took off her clothes when they were in the house.
    
18. When they reached the house, Tom and Kere were in the other room and were talking. She then heard Tom telling Kere to see what would take place between her and the accused.
    
19. When they were in the house the accused told her to lie down and, at the same time, telling her that he would have sex with her. Her hair stood up when she heard the accused saying that he would have sex with her.
    
20. The accused then said he would lick her vagina. She said that in fact the accused did lick her clitoris. After that, the accused pushed his penis into her vagina and had sex with her. After having sex with her, the accused asked her to come back again.
    
21. She said she did not agree to have sex with the accused but that the accused threatened to kill her with a knife if she refused. She said the accused had used threatening words that he would kill her if she did not allow herself.
    
22. She said that after having sex with the accused at Tom and Kere's house, she went back to her house where her grandmother asked her where she had been. She told her grandmother she had just come from the bush. She said the grandmother did not believe her and said to her that she must have been with the accused. She then told her grandmother that she had been with the accused.
    
23. When asked whether she knew the accused, the complainant said she knew him very well. She confirmed that the accused was in the court room and pointed towards the accused who was sitting in the dock. She said that she knew the accused was married and had children and that they all lived together at Polomuhu village. However, she said she did not know the names of the accused's wife and children.
    
24. That was the first sexual encounter between her and the accused.
    
25. According to her evidence, the second sexual encounter between her and the accused occurred on the 27th July 2007. At that time, her father and mother had gone to the garden and that she had stayed back in the village with her small sister. Her sister then asked her to go and play "rubber" with two girls named Daisy and Eunice. She said the "rubber" game happened at Paul Kuko's house which was close to Mary Rora's house.
    
26. As she was playing "rubber" with Daisy and Eunice, the accused came and waived to her to come to him. At that time, the accused was standing at Mary Rora's house. When the accused waived to her, he also showed her a one dollar coin and at the same time he was pointing to the bush indicating to her to go there.
    
27. She said they went to the bush after the accused gave her the one dollar coin. In the bush, the accused took off his clothes and showed her his penis. He then forced her to him and pushed his penis at her vagina. The accused then laid her down on a banana leaf, opened her legs and pushed his penis into her vagina. She said the accused's penis was inside her vagina for quite a while and that at that time the accused was also pushing his fingers up and down inside her vagina. She said she did not agree with what the accused was doing to her.
    
28. She said that this incident happened close to Bishop Koete's house in a coconut plantation. A photograph had been taken of the scene of this alleged offence and produced by consent as exhibit "P5". Unfortunately, there was no house in the photo and no banana leaf could be seen at the spot where the complainant was indicating as the spot where the sexual intercourse occurred.
    
29. However, she said that after the sexual intercourse, the accused gave her a one dollar coin and then she returned home.
    
30. She said that when she got home, her brothers asked her where she got the one dollar coin from. She told them she got it from the accused. She said her brothers then went to look for the accused. She said at that time her grandmother had just arrived and had had her shower. She said they both arrived at the same time and that she then asked her grandmother where she had been.
    
31. However, her grandmother had, at the same time, seen the one dollar coin in her hands so she asked her where she got it from. She said she then told her grandmother where she got the one dollar from.
    
32. The complainant continued in her evidence saying that the next day the accused again asked her to go to Bishop Koete's house to meet him there.
    
33. She said however that the next day she talked with her mother in their house. Her mother had asked her what was happening. She said her mother had told her that she (her mother) had heard stories. She said her mother also asked her where she got the one dollar coin from. She said that at first she did not want to tell her mother but her mother threatened to take her to the priest to find out where she got the one dollar from. She then told her mother that it was the accused who gave her the one dollar. She said on hearing that her mother whipped her and her uncle, Laloga, who was also there in the house also wanted to kill her. She said her father had gone out to the sea at that time.
    
34. In cross examination, the complainant said she had sex with the accused on two occasions, the first was at Tom and Kere's house and the second time was near Bishop Koete's house in the coconut plantation.
    
35. She also said in cross examination that she gave a statement to the police at Tulagi in connection with the alleged offences and that at that time only her mother was with her and translating her statements to the police. She said her father stayed at home and was looking after the children. In her evidence, however, the mother said that both she and her late husband, Thompson Fakaia, were with the complainant when she gave her statement to the police at Tulagi.
    
36. She agreed that when she gave her statement to the police at Tulagi she said that the accused had sex with her four times. She also agreed that she told the police that the first time she had sex with the accused was in Bishop Koete's kitchen. She also agreed that when she talked with Dr. Orotaloa last year (2012), she told him that the first time was near a stream under a nut tree.
    
37. When asked by the court how many times did the accused give her one dollar coins, her answer was that the accused had given her two one dollar coins. When asked by the court when and where was the first one dollar given to her, she said the first time was when she was going towards the bush behind the accused's house. She said they had sex that time and that was the fifth time they had sex.
    
38. She further said that the accused also gave her a further one dollar coin near Bishop Koete's house and that was the third time the accused gave her money. She also said that the second time the accused gave her money was near Pitia and Thomas' house which she said was a different house from that of Tom and Kere.
    
39. The complainant's mother, Koigara, also gave evidence. Her evidence is that the complainant is her first daughter and is mentally handicapped. She said that on the 27th July 2007, she and her son went to the garden and came back in the afternoon. They met a lot of people on the road.
    
40. She said that the next day, her mother, Alice Sasau, gave her a one dollar coin telling her that she got it from the complainant. She then asked the complainant in the presence of her mother and her late husband who gave the one dollar coin to her. She said the complainant did not respond at first. She then asked her the second time whereupon the complainant then said that it was the accused who gave her the money.
    
41. In cross-examination, however, Koigara said that when she first asked the complainant about the one dollar coin, the complainant said that she found it under a koilo tree. She, however, admitted that the complainant had only told her that the money was given to her by the accused when she told the complainant that she would report the one dollar coin to the priest. She agreed that the complainant told her that the money was given to her by the accused because the complainant was afraid when she said she would report the matter to the priest. She said the complainant told her that the accused had given her a one dollar coin only once. When asked who was with the complainant when the complainant gave her statement to the police at Tulagi, she said she and her late husband were present at that time.
    
42. A written statement of Koigara's late husband, Thompson Fakaia, was admitted into evidence under section 118 of the Evidence, subject to objections to certain parts of the written statement.
    
43. In that statement, the deceased said that about midday on Friday 27th July 2007, the complainant came and showed him a one dollar coin. She told him that it was money that she had found. His son (Dauburi) also requested him to buy lollie with one dollar coin but he refused to do so.
    
44. He said that the complainant later gave the one dollar coin to her mother after her mother threatened to report the matter to the priest. It was then that the complainant told him, along with his wife and his mother-in-law, that it was the accused who gave her the money. He said that his wife then asked the complainant why the accused had given her the money and that the complainant then told them that the accused had given her the money and then had taken her into a coconut plantation and had sex with her. He said that the complainant then led them to the plantation and showed them the spot where the sexual intercourse occurred. He said the place was brushed and there was "karo" leaf on the ground at the spot.
    
45. Those were the evidence adduced by the Crown in its attempt to prove the charges against the accused.
    

Accused's evidence:

46. The accused had called no witness. He had, however, decided to make an unsworn statement from the dock where he had denied the truth of the allegations about him giving one dollar coin to the complainant and having sexual intercourse with her.
    

Did the accused have sexual intercourse with the complainant?

47. The complainant was medically examined by Dr. Michael Vavala on the 3rd August 2007 and compiled a report ("medical report") (exhibit "P2") on his findings that same day. That was approximately 7 days after the date alleged as the date of the offence in count 2 and also the last date on which the offence in count 1 could have been committed.
    
48. The medical report shows that the complainant had had sexual intercourse at some previous occasion. However, the report did not say, and Dr. Vavala could not say, when that previous occasion was. Hence, the report is helpful only in so far as it shows that the complainant had been sexually penetrated on a previous occasion. It provides no assistance in determining whether or not the sexual penetration occurred at the times of the alleged offences or whether it was the accused who had sexually penetrated the complainant.
    
49. As earlier stated, in determining whether the accused had had sexual intercourse with the complainant, the crucial evidence is that of the complainant. Unfortunately, she was not consistent in a number of important respects.
    
50. The first inconsistency relates to the number of times she said the accused had sex with her. In her statement to the police dated 31st July 2007, she said the accused had sex with her 5 times. In her discussions with the psychiatrist, Dr. Orotaloa, she informed him that the accused had sex with her 3 times[2]. In the witness box, she said the accused had sex with her 5 times[3].
    
51. The second relates to the scenes of the sexual encounters. In her statement to the police, she said the first incident happened at night at Bishop Koete's kitchen; that the second incident happened at night at Tom and Kere's incomplete house; that the third incident happened at night under a Aroaro tree close to Ori's house; that the fourth incident happened during the day under a apple tree in a coconut plantation; and, that the fifth incident happened between 10am and 11.30am on the 27th July 2007 in a coconut plantation.
    
52. In the witness box, however, she said the first incident happened at night at Tom and Kere's house and that the second incident happened in a coconut plantation near Bishop Koete's house. She did not say when and where the third, fourth and fifth incidents occurred. I am mindful of the fact that the accused was not charged in respect of these alleged third, fourth and fifth incidents. However, in my view, the reference to these incidents by the victim is relevant to the question of the credibility of the victim's evidence.
    
53. The third inconsistency relates to chronological order in which these sexual incidents were alleged to have occurred. In her statement to the police, the victim said that the first incident occurred at Bishop Koete's kitchen while the second incident happened at Tom and Kere's house. In her discussions with Dr. Orotaloa, she said that the first time they had sex was in a coconut plantation then followed by the second incident which occurred in the common room of Bishop Koete's residence[4]. However, in her evidence, she stated that the first incident happened at Tom and Kere's house while the second incident occurred on the 27th July 2007 in a coconut plantation near Bishop Koete's house[5].
    
54. The fourth inconsistency relates to the $1.00 coins allegedly given to her by the accused. In her statement to the police, she said that the first time the accused gave her a $1.00 coin was after they had sex in a coconut plantation. This happened after her game of "rubber" with Daisy and Eunice. Her discussions with Dr. Orotaloa, however, suggests that the first time the accused gave her a $1.00 coin was after they had sex in the common room of Bishop Koete's house. In her evidence she said that the accused first gave her a $1.00 coin under Bishop Koete's residence[6]. She said the accused had given her $1.00 coin three times, the first was when he had sex with her in the coconut plantation after the "rubber" game, the second was beside Pitia and Thomas' house[7] and the third was when the accused gave her a $1.00 coin beside Bishop Koete's house[8].
    
55. Apart from these inconsistencies, there are also certain aspects of the victim's evidence that have cast doubts about the credibility of the victim's evidence.
    
56. In relation to the alleged incident in Tom and Kere's house, she said that Tom and Kere were in a room next to the room in which the accused was having sex with her. She said she could hear them talking and that Tom had told Kere to keep a look out to see what the accused was going to do with the victim[9]. She said Tom and Kere knew that she and the accused were in the adjoining room. Strangely, however, it seems that neither Tom nor Kere came to the assistance of the victim. In her statement to the police, the victim had mentioned the accused having sex with her in Tom and Kere's incomplete house. One wonders why Tom and Kere were not called to give evidence.
    
57. I think I have referred to sufficient instances which showed that the victim's evidence could not be relied on to warrant a conviction in this case. Her evidence is incoherent, inconsistent and contradictory in itself. My view is that it would be very unsafe to convict the accused on such evidence. The evidence by Susan Koigara and Thompson Fakaia contains nothing to substantiate the victim's evidence.
    
58. The Crown has urged me to consider the complainant's mental disability and to accept her evidence as credible. It was submitted that she had tried her best to recollect what happened to her and, having regard to her condition, her evidence should be accepted as the truth.
    
59. I accept that the complainant had tried her best to recollect what she said had been done to her. I am satisfied that her mental condition had affected the manner in which she could remember events and the chronological order of the events.
    
60. Unfortunately, it is a cardinal rule of the criminal law that for a conviction to be made, the offence must be proved beyond reasonable doubt. Proof depends on the credibility of the evidence produced. Coherence is an important factor that goes to the credibility of evidence.
    
61. In this case, the complainant's evidence is incomprehensible and so incoherent that, in my view, it would be very unsafe to convict the accused on it. In other words, I am not satisfied to the required standard that sexual intercourse had occurred at the places and at the times stated by the complainant in her evidence.
    

Verdict:

62. I therefore find the accused not guilty of the charges against him and accordingly he is acquitted.
    

THE COURT

______________________
James Apaniai
Puisne Judge

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^[1] Exhibit “P3”.
^[2] See exhibit “P3”.
^[3] Transcript, p. 17.
^[4] Exhibit “P3”.
^[5] Transcript, p. 14.
^[6] Ibid.
^[7] Ibid, p. 19.
^[8] Ibid, p.18.
^[9] Ibid, p. 21.