Regina v Volimana [2014] SBHC 152; HCSI-CRC 119 of 2012 (2 December 2014)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)
Criminal Case No. 119 of 2012

REGINA

V

PATTERSON VOLIMANA

Date of Judgment: 2 December 2014

Ms. Joel and Mr. Anisi for the Prosecution
Mr. A Kesaka for the Accused

JUDGMENT

Mwanesalua, J. The Accused has been charged with two counts of rape and one count of indecent assault contrary to sections 136 and 141 (1) of the Penal Code. The Accused pleaded not guilty to all the charges when he was arraigned. The Accused elected to remain silent while the victim gave evidence under oath.

The particulars of the charges laid against the Accused in the information are as follows: Count one, the Prosecution alleges that on an unknown date between 31 of January 2013 and 29 of March 2013 the Accused had sexual intercourse with the complainant, in his house at Tirotonga village with her consent which was obtained by means of false representation; count two, the Prosecution alleges that on an unknown date between 29 of March 2013 and 7 of July 2013 the Accused took the complainant to the bush which he claimed to be where the devil lives and indecently assaulted her on top of a stone by holding her breasts and sucking her tongue; count three, the Prosecution alleges that on an unknown date between 7 of July 2013 and 1 of November 2013, the Accused had sexual intercourse with the complainant, in his house at Tirotonga village with her consent which was obtained by means of false representation.

The case for the Accused is that the evidence of the victim is self-contradictory. That evidence should thus be rejected and the court to acquit the Accused of the charges. The Prosecution concedes that there were some inconsistencies in their evidence, but such inconsistencies were merely on peripheral matters, and not the central issue of consent which is in dispute between the Prosecution and the Accused in this case.

The Prosecution and the Defence agreed four documents and their contents before the trial began. The first is the caution statement which the Police recorded from the Accused on 10 December 2013 and marked Exhibit P-1; the second is a medical report of the victim made on 9 December 2013 and marked Exhibit P-2; the third is a sketch plan of Tirontonga village and its surrounding areas and marked Exhibit P-3; and the fourth is a statement of Agreed Facts and issues filed on 5 August 2014 and marked Exhibit P-4.

The material parts of Exhibit P-4 are as follows: the Accused is Patterson Volimana also known as 'Bole' as his other name; the Accused is well known to the victim, since they all lived together at Tirotonga village in the Isabel Province; in the evening on an unknown date between 31 January 2013 and 29 March 2013, the victim went over to the Accused's house at Tirotonga village so that he would heal her using custom medicine; during the cause of applying the custom medicine, the Accused had sexual intercourse with the victim; during the day time on an unknown date between 29 March 2013 and 7 July 2013, the victim and the Accused went to a secret site in the bush at the Tirotonga area. They reached that secret place and the victim sat on a stone and the Accused indecently assaulted the victim; In the evening on an unknown date between 7 July 2013 and 1 November 2013, the victim again went to the Accused's house at Tirotonga village so that he would heal her with custom medicine; during the cause of applying the custom medicine, the Accused had sexual intercourse with the victim; and on 9 December 2013, nurse Marau medically examined the victim at Buala Hospital. The Medical examination confirmed that the hymen of the victim was already broken.

There are two issues posed for determination by the court. The first is whether the Accused had consensual intercourse with the victim on the said two occasions? And the second is whether the Accused had indecently assaulted the victim?

The Court will now consider the issues in relation to the offences in this case, beginning with the first offence. Within the period of the commission of this offence, the victim went to the house of the Accused for custom healing for the return of her missing skirt by a devil which allegedly took it. She entered the house and sat on a bed at the veranda. The Accused took some water and pour it on the bark of a tree. He took a leaf of a tree and rubbed it on her leg. Then he took the bark of the tree and rubbed it on her leg, abdomen and other parts of her body. He pulled off her shirt, skirt and trousers. The victim was shaking fright and pulled up her clothes and sat down. The Accused told the victim not to interfere with his actions so as to achieve better healing. The Accused then had sexual intercourse with her and sucked her breasts. After committing these acts, he poured powder into her vagina, explaining to the victim, that the powder was to dry her vagina. The victim wore her clothes, sat down and cried. The Accused put on his trousers and walked out of the house. As she was leaving to her house, he pulled her hand and apologized to her for committing wrongful acts on her. The Accused admitted committing this offence in his caution statement to the Police.

The second offence against the Accused is indecent assault. It is alleged that he on an unknown date between 29 of March 2013 and 7 July 2013 at a tambu site outside Tirontonga village and indecently assaulted the victim. The Accused denied this offence in his caution statement.

These are the relevant evidence relating to this charge. The Accused invited the victim to go with him to visit a hole in the bush so that the devil would recognise her. They went to the hole after the victim returned from school that day. The hole is situated about two kilometres from Tirontonga village. They walked along a bush track to the top of a hill. When they reached the top of the hill, they rested on a huge boulder. He told her that the place was owned by his ancestors in the past. They then continued walking until they reached a place where the Accused told the victim they were walking over land where no questions should be asked by the victim. They arrived at the hole and descended into it. He sat on a stone and he told her that they have arrived at the place where the devil who took her skirt has lived. They then went to see the Accused's ancestors tambu stone on which the Accused sat, while the victim sat at the side of the stone. The Accused asked the victim to lie on him which she did. He pulled her shirt up and pressed her breasts with his hands. He sucked her breasts and tongue which she felt painful. He then left to cut some leaves. When he returned with the leaves he told her to lie on them. She refused. He told the victim that her refusal meant that she did not like the devil. They then left the tambu site. On their way home they followed two separate roads. The victim followed the road ended at her garden, while the Accused followed another road, which ends at their village.

The third count against the Accused is rape. The evidence of the Prosecution on that count is that: the victim's trousers went missing from the line. It was the Accused who told her about that information. The Accused then told her to see him for custom healing for the return of the missing trousers. At 2 o'clock in the afternoon on an unknown date between 7 July 2013 and 1 November 2013, she went to the Accused's house for custom healing. The Accused first fed her with rice and gave her water to drink upon her arrival. After she finished eating he squeezed bark of a tree and gave her to drink it. He then told her to go into his room and lay down. She did and he rubbed her body with leaf and bark of a tree. He pulled her trousers and skirt to a position below her buttock. Then he had sexual intercourse with her and sucked her right enlarged breast so that water could be removed from it.

The victim and the Accused knew each other well. Their houses are close to each other in their village. The victim would go to Accused's house to eat. And on a number of occasions the victim and her girlfriends slept at the Accused's house.

The court will now consider the two issues posed for determination. As to the first count, the Accused had sexual intercourse with the victim at the time mentioned above. The medical examination report of the victim of 9 December 2013 revealed inter alia, that her hymen was broken and old scaring noted below the forchet. It was expressed by the examining nurse that the victim had been sexually abused. This court finds that the Accused raped the victim without her consent as set out in the first count. The evidence proving this count can be viewed in paragraph six above.

The court assessed the evidence leading up to the alleged commission of second and the third counts and the evidence of the victim and the Accused before and after the incidents. The evidence of the victim in relation to those counts left the court with grave doubts on whether the Accused committed those offences without the consent of the victim. Her actions in relation to those two counts demonstrated that she was co-operating with intention of the Accused to commit those offences and not otherwise. It became clear during cross examination that the victim went to the Accused for custom healing not merely for the devil to return her missing clothes but also for the healing of her enlarged right breast. In the result, the court will acquit the Accused of counts two and three of the information.

Verdict: Count 1 guilty
Count 2 not guilty
Count 3 not guilty

THE COURT