Regina v Baetalua - Verdict [2013] SBHC 9; HCSI-CRC 260 of 2012 (13 February 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALLARAS J)

CRC No. 260 of 2012

REGINA

v

BAETALUA

Hearing Dates: 11-12 February 2013
Verdict Delivered: 13 February 2013

Coram: Pallaras, J.
Crown: Ms S. Ngava
Defence : Mr. S. Aupai

Verdict:
(Pallaras J)

1. The accused was charged that on 8th June 2012, he raped Ms Linda Kahaia (the Complainant). The offence was said to have occurred at Kaibia Valley in Honiara.

2. The issue between the parties was whether or not the act of sexual intercourse which was agreed to have occurred was with or without the consent of the Complainant.

3. The prosecution case was fraught with difficulties in that three of the witnesses had refused to come to court to testify and after Bench Warrants had been issued for their arrest, were unable to be located by the police. Consequently, the prosecution case was limited to the viva voce evidence of the Complainant, photographs and two statements tendered by consent.

4. At the conclusion of the Crown case, the defence called the accused to give evidence on oath. The trial therefore was essentially one of "word against word".

5. As with every criminal case, the onus of proof is on the Crown to prove its case. The accused does not have to prove his innocence nor indeed anything else.

6. The Crown must prove its case to the high criminal standard, beyond reasonable doubt. It is only if I am satisfied to that standard is the accused then liable to be convicted. If there is a reasonable doubt remaining in my mind at the end of the evidence, the benefit of that doubt is to be given to the accused. This is not an act of charity, it is his legal right.

7. Allegations of criminal conduct are sometimes easier to make than they are to defend. Particularly when the case consists of one word against another, I am reminded that it is not a question of choosing whose evidence is to be preferred for that would distort the burden of proof. It is the Crown that must satisfy me beyond reasonable doubt that it has proven its case, not simply that its version is to be preferred over the defence version.

8. I am also conscious that, particularly where the allegation is one of rape, that I should be very slow to convict on the basis of the Complainant's evidence alone. Cases are often greatly strengthened by evidence which serves to corroborate the principal allegations made by a Complainant. The absence of corroboration does not necessarily mean that the Crown case must fail, but the presence of corroboration can often greatly assist in deciding whether a case has been proven beyond reasonable doubt.

9. In summary only, the Complainant testified that she was engaged as a child minder in a home owned by the uncle and aunty of the accused. Around noon on 8th June 2012, she saw the accused approach the house. Without being invited in, the accused entered the house and asked the Complainant to put the television on. He appeared to be drunk and was carrying a large knife.

10. The Complainant told the accused that the television was not working. The accused then told the Complainant that he wanted to have sex with her. The Complainant refused saying to the accused that he should respect the home of his uncle and aunty. The Complainant ran into another room, the "changing room", with a view to escaping from a window in that room. She was prevented from doing so by the accused following her into the room while carrying the knife and threatening her with it.

11. The accused then again said to the Complainant that he wanted to have sex with her. He removed his trousers and showed her his penis, demanding that she too remove her clothes. At this time the accused had placed his leg across the door preventing the Complainant from leaving and continued to threaten her with his knife if she did not comply. The Complainant testified that she was extremely frightened at this stage and was fearful that the accused would use the knife against her.

12. The accused lay down on the floor and told the Complainant to sit on his erect penis. She complied with this demand, she said, because she was terrified of the knife. When she sat on the accused the two had sexual intercourse in that position. During her testimony, the Complainant said that she had struggled with the accused to get away from him while she was sitting on him. When questioned on this point and, in particular, why her fear of the accused and the knife did not prevent her from struggling although it had prevented her from attempting to escape, she changed her testimony and said that she did not struggle.

13. After the two had stood up, the Complainant was able to grab hold of the knife, go to the front door of the house, and throw it out. The accused then left the house and the Complainant, fearing that he would return, took one of the young children in her care and ran to her aunty's house which was nearby.

14. The version given by the accused did not differ very much from the version of the Complainant. He testified that the reason that the Complainant went (not ran) into the change room was to look for a plug for the television. He then told her that he wanted to have sex with her to which she replied –

"Don't be silly, this is the house of your uncle and aunty."

15. Despite this apparent rejection, the accused then undressed himself, exposing his penis to the Complainant and for a second time, asked her for sex. He said that he did not have the knife in his hand having earlier placed it on the floor. He said that the Complainant did not say anything in response to his second request for sex but simply proceeded to undress herself. He then lay down on the floor and the Complainant voluntarily sat on him and instituted the sexual intercourse.

16. The accused testified that at no time did he ever threaten the Complainant with the knife and when she told him that she was frightened of the knife, he threw it out of the house.

17. In response to questions from the court, the accused revealed that he had been drinking heavily from the afternoon of the day prior to the alleged rape, through the night and into the morning of the 8th June. In fact he was still drinking shortly prior to entering the house occupied by the Complainant. The Complainant had testified that she smelt alcohol on the body of the accused and I am in no doubt that he was substantially affected by alcohol at the time of the alleged offence.

18. When he testified as to the Complainant's response of –

"Don't be silly, this is the house of your uncle and aunty."

the accused at first said and repeated that he regarded this as an indication of agreement by the Complainant to have sex with him. When he was asked to explain how this could be so he conceded that it was in fact a refusal to comply with his request for sex but that when he asked the Complainant a second time, she then consented. He took her to be consenting not from anything she said because she said nothing. According to the accused, her consent was conveyed by her actions.

19. There are two aspects of the accused's evidence which in my view support the evidence of the Complainant. First, the Complainant's case is that she did not consent and that she told the accused so. The accused while ultimately conceding that the Complainant refused his demands for sex nevertheless, immediately after she did that, undressed and exposed himself. He did this apparently in the full knowledge that the Complainant had rejected his demand but ignoring and caring little for it. His initial claim that her response was in fact an acceptance of his demand for sex can only be explained by a wilful disregard of the facts or that in his drunken determination it would not have mattered what the Complainant had said to him. He would not be deterred.

20. The Complainant's evidence and conduct relied heavily on the fact that she claimed to be frightened into submission by the presence of the knife. The accused again conceded this point in evidence to the extent that he said he threw the knife out of the house for the very reason that the Complainant had told him that she was terrified of it. In my view, this adds weight to her evidence that she was acting out of fear for what a drunken man might do to her with a large knife.

21. On these two vital issues therefore, whether consent was given or refused and whether the Complainant was fearful of what might happen to her at the hands of the knife wielding accused, I find support for the Crown case in the evidence of the accused. So while the aspect of the Complainant's evidence relating to whether or not she struggled with the accused may be less than satisfactory, I am not prepared to say that because of that she should be regarded as an untruthful or an unreliable witness.

22. As I have outlined, I find support in two vital aspects of the Crown case coming from the mouth of the accused himself which fact strengthens my conclusion as to the reliability and credibility of the Complainant.

23. It is not that I find that the version of the Complainant is to be preferred over that of the accused. On the vital issues in the case I do not accept the account given by the accused and I find that his testimony in significant respects in fact buttresses the version given by the Complainant. For that reason, I am of the view that, notwithstanding the question of whether she struggled or not, the account given by the Complainant can be safely accepted and that once accepted satisfies the onus on the Crown to prove the allegation of rape beyond reasonable doubt.

24. The necessary outcome of these findings is that the accused will be convicted of one count of rape as charged.

THE COURT