Regina v Bonuga - Judgment [2014] SBHC 2; HCSI-CRC310 of 2012 (19 February 2014)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Criminal Case No. 310 of 2012

REGINA

v

CASPER KWANE BONUGA

Date of Hearing: 3,4,5,6 and 11 February 2014
Date of Judgment: 19 February 2014

N. Dhita for Prosecution
A.Kesaka for Defendant

JUDGMENT

1. The Defendant is charged with 8 counts of rape, contrary to section 136 of the Penal Code. He pleaded not guilty to all counts on arraignment. A no case to answer submission on all counts was made on behalf of the Defendant at the close of the Prosecution Case. On consideration of the evidence adduced by the victim, there is no case to answer on counts 4 and 7; but there are cases to answer on counts 1, 2, 3, 5, 6 and 8. The Defendant was acquitted on counts 4 and 7. The Defendant elected to remain silent. Counsels for the Prosecution and the Defendant respectively filed written submissions and made oral submissions.
   
2. Count 1. The Particulars of this count show that the Defendant on an unknown date between 1 January 2008 and 31 December 2008 at White River raped the victim during day time. The evidence of the victim is that on the day of the incident, the wife of the Defendant was away at work and the daughter of the Defendant and was away at school. Only the victim and the Defendant were at the family home. The Defendant asked the victim for them to have sexual intercourse but she refused. He forced her by holding her tightly and pulled her clothes down and thrust his penis into her vagina. She felt pain in her vagina. In that year, the victim was 12 years old.
   
3. Count 2. The victim said the second time which the Defendant had sexual intercourse with her was on unknown date in 2009, at White River. The evidence of the victim is that on the evening of that day, the Defendant asked her to accompany him to the store to purchase biscuits and coffee mix. The store is situated further down from their house. On their way back to their house, he pulled her to a damaged Hilux at the side of the road. He laid on the vehicle and told her to remove her clothes but she refused. He then pulled down her clothes and thrust his penis into her vagina, which was painful for her. She was thirteen years old in that year.
   
4. Count 3. The victim said that this offence occurred at the family house at Henderson. The victim's evidence is that in 2010 at night the Defendant came to her bed and pinched her on her leg to wake her up. She refused and moved her legs. He then pull out her blanket and went to the door where the ladder is situated. She followed and sat near the ladder. He asked her to have sexual intercourse with him but she refused. She said that he force her by holding her tightly while she was sitting on the ladder, removed her clothes, spread her legs apart, stood up, and thrust his penis into her vagina which was painful to her. He told her not to tell anyone about the incident by sign in using his finer to block her mouth. The victim could not remember the enact year when this incident took place. But she said it must be in 2011.
   
5. Count 5. In 2012, the wife of the Defendant went home. This is at Temotu Province. Her evidence is that during the month of June 2012 during her school holiday break he asked her for sex but she refused. He treated her as his wife by stopping her from going out, he would remove her clothes and have sexual intercourse with her. The Defendant had sexual intercourse with her several occasions in June 2012. She could not recall the exact number of times he had sexual intercourse with her.
   
6. Count 6. During the Arts Festival in July 2012, the Defendant had sexual intercourse with the victim almost every night. During that month, the Defendant's wife was still at her village at Temotu Province.
   
7. Count 8. The victim said in her evidence that in September 2012, the Defendant had sexual intercourse with her before her uncle took her away from the Defendant's house at Henderson. She said during this last occasion the Defendant asked to have sexual intercourse with her but she refused. He forced her head down to suck his penis and then had sexual intercourse with her after he removed her clothes. Her Uncle, Mr. Balu came and removed her from the Defendant's house after this incident.
   
8. In all occasions before the acts of sexual intercourse took place, the victim refused the Defendant's requests for them to have sexual intercourse. Further, he threatened to kill her if she ever report to other people that he has been having sexual intercourse with her without her consent.
   
9. The court is of the view that the sexual act charged in count 3 was done with the consent of the victim. This is because if the victim remained in her room and not followed the Defendant to the door, the Defendant might not have raped her on the ladder. There is doubt as to whether the Defendant had raped the victim in this count.
   
10. Counts 5 and 6. Each of these counts have more than one offence charged in them. The view of this court is that a count in an information must not be double; that is to say, no one count of the information should charge an accused with two or more offences. That would cause uncertainty as to the offence charged in the count.
    
11. The Defendant is further acquitted of counts 3, 5 and 6. He is found guilty of rape in counts 1, 2 and 8. Case adjourned to 27 February 2014 at 9.30am for mitigation.
    

THE COURT