R v Livia - Verdict [2014] SBHC 62; HCSI-CRC 47 of 2012 (4 June 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
AT GIZO
PALLARAS J

Criminal Case Number 47 of 2012

R

v

PULE LIVIA

Coram: PALLARAS J
Crown: Mr. A. Kelesi and Mr. J. Naigulevu (Advisor)
Defence: Mr. B. Ifuto'o and Ms. G. Nott
Hearing Dates: 2-3 June, 2014
Verdict Delivered: 4 June, 2014

VERDICT

1. Pule Livia ("the accused") was charged that between 1st- 31st December 2010 and between 1st -30th June 2011, at Keara village, Ranongga Island, Western Province, he did rape the complainant contrary to s.136 of the Penal Code [Cap. 26]. To these charges he pleaded not guilty.

2. I remind myself that with his plea he has put the Crown to proof and that they must therefore establish their cases beyond reasonable doubt if they are to succeed. If at the end of the evidence there remains any reasonable doubt in respect of either or both counts, the accused is to be given the benefit of that doubt and is to be acquitted. He bears no onus of proof at all, the onus resting entirely on the prosecution to prove his guilt beyond reasonable doubt.

3. Prior to the calling of evidence, the defence raised two issues for determination. The first issue was the capacity of the complainant to give evidence in a way that would be understood. The second issue related to the admissibility of a Record of Interview between the police and the accused.

4. In relation to the first issue, after the Crown announced that it had obtained the services of an interpreter, independent of the complainant and of the case itself, and that she was able to understand and interpret what the complainant said, the issue of the capacity of the complainant to testify was not pursued further.

5. In relation to the second issue, after a voir dire was held with the Crown calling the interviewing officer, the Record of Interview was not accepted into evidence.

6. The Crown in opening its case, indicated that they would be calling only one witness, the complainant. However, the Defence required the Crown to call the father of the complainant for cross examination which they did. In due course, the accused elected to give sworn evidence in his own defence. He called no other evidence. As a result, the trial became one of word against word.

7. I remind myself that in such a case, it is not a matter of whether I prefer the version of the complainant or that of the accused. The accused has no onus to prove to me that he is innocent, he has no onus to prove anything at all. He is to be acquitted unless the Crown, upon whom the onus of proof falls, satisfies me beyond reasonable doubt of the guilt of the accused in respect of each count. Even more care must be taken where, as in this case, no independent evidence is led that might add corroboration or support to the complainant's evidence.

8. The Defence have pressed upon me that I should follow a particular formula in reaching my verdict. While I do not accept that a formulaic approach has anything in particular to recommend it over a more analytical approach, I include the formula and my responses to the questions it raises, herein.

9. The first issue that I am asked to address is raised as follows:

" First, if you believe the evidence of the accused, obviously you must acquit."

10. I do not believe the evidence of the accused. He presented as a witness who was evasive in aspects of his evidence and was prepared to accuse the complainant and members of her family of entering into a criminal conspiracy against him. This conspiracy, he alleges, resulted in him being falsely charged with these offences.

11. The father of the complainant was called by the Crown at the request of the Defence. He presented as an articulate and honest witness. He denied the accused's suggestion that he had falsely reported the rape of his daughter because the accused had "helped" his other daughter. When asked as to the details of this "help" the accused was only able to say that he knew the boy who had made that other daughter pregnant.

12. I find the allegation of a conspiracy lacking in any credibility whatsoever and to be a complete fabrication by the accused. I accept totally the evidence of the father of the complainant in this regard.

13. The second issue that I am asked to address is as follows:

"Second, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit."

14. In so far as this suggests that an accused may have some burden of leaving the Court with a reasonable doubt, I reject this approach. In considering all of the evidence of the Crown and the Defence, I am not "left in reasonable doubt by it."

15. The third issue raised is as follows:

"Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused."

16. I have asked myself whether, on the evidence which I accept, I am convinced beyond reasonable doubt by that evidence of the guilt of the accused and have come to the conclusion that I am so convinced.

17. The complainant is now a 22 year old girl. She was brought into Court in a wheel chair, she being unable to use any of her limbs. It was also quickly apparent that she has great difficulty in talking and is, at least to the inexpert observer, possibly suffering from some degree of mental retardation. Despite these afflictions, she gave clear evidence of the accused raping her on two occasions. There were discrepancies in her evidence in relation to whether the second offence occurred during the day or at night. Other discrepancies were pointed out by the Defence, in particular some discrepancies between the way in which the Crown opened its case and the evidence given by the complainant.

18. I have given careful consideration to these discrepancies and have considered whether they are of such significance as to cause me to have a reasonable doubt about the honesty or the reliability of her evidence. I have concluded that they are not.

10. These offences are said to have occurred in 2010 and 2011, and I am of the view that to expect a young woman in the condition of the complainant to testify without discrepancies after the passage of several years, is an unrealistic expectation. It is not that discrepancies might exist in the testimony of a witness, but rather the significance that they have and what impact they might have on the Court's assessment of honesty, reliability and credibility. Of course, discrepancies even if small may be so numerous that in their totality, the combined effect may produce in the mind of the Court a reasonable doubt on these issues.

11. However, the discrepancies in this case could not be said to be so numerous or so significant as to cause me to have a doubt about her evidence establishing the elements of the offence beyond reasonable doubt. In my judgment, she gave her evidence honestly and credibly and her instantaneous horrified reactions to Defence suggestions that she was lying and making up her allegations, were impressive and genuine. She impressed as a witness who, although struggling under enormous disadvantages was, above all, honest. I accept her evidence that the accused, on two separate occasions, had sexual intercourse with her against her will.

12. As a result of these findings, I judge that the Crown has proven both charges beyond reasonable doubt and the accused is convicted of both counts as charged.

Order:
The accused is convicted of two counts of rape contrary to section 136 of the Penal Code [Cap. 26].

The accused is remanded in custody for sentencing in Honiara on a date to be fixed.

Written sentencing submissions are to be filed on or before 18th June, 2014.

THE COURT