Regina v Sale [2014] SBHC 74; HCSI CRC 175 of 2013 (27 March 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Criminal Case No. 175 of 2013

REGINA

v

TIMMY SALE

Mr. A. Kelesi for the Prosecution
Mr. B. Ifuto'o for the Accused

Hearing at Gizo : 25 and 26 March 2014
Ruling at Gizo : 27 March 2014

RULING

1. The Accused, Timmy Sale, was charged with one count of rape, contrary to Section 136 of the Penal Code. The crown alleged that the Accused raped the victim, Sakatuwe Zunika, in the bush at the Noro Ports road on 2 January, 2013 in the Western Province. The Accused pleaded not guilty of the charge.
   
2. The Victim's evidence was that she left Gizo on 2 January, 2013 to Noro by ship. She arrived there at day time and stayed with her in-law's family. At night, she went to her Aunty's house but the door was locked and she went to stay with her in-law at the market. She drunk some beer and went to Russell Club for a dance. She met the Accused on the way to the club who forced her to go with him. She refused but he pulled her to a dark area by her shirt where he removed her cloth, laid her down and had sex with her. She heard noise of people from the road. She struggled with him and shouted out but he squeezed her neck. She pushed him away from her and ran naked to the road. She said the Accused had sex with her for an hour but later changed her evidence to say that he merely had sex with her for only short time. She met two boys on the road after wearing her trousers. These two boys were Tise Bosalalu and Langani Gorakona. That night they helped her by accommodating her in their house until the morning of 3 January 2013.
   
3. In the early evening of 2 January 2013, Eddie Willy Meto met the victim with some boys at Island Enterprises. On his return from Boza to Baru where he lived, he met the victim at B.T.M with Tisa Bosalalu and Gorakona on the road. Meto saw that the victim was crying.
   
4. The Police Officers who investigated the case were not called to give evidence during the trial. After the close of the prosecution case, the Defence made a no case to answer submission on behalf of the Accused. The submission was made on the basis that the victim maintained silence on questions as to whether the Defendant penetrated her vagina with his penis. The Defence was asking these questions in relation to the definition of "sexual intercourse" as defined in section 168 of the Penal Code.
   
5. Section 168 is in these terms: "168. Whenever, upon trial for an offence punishable under the code, it may be necessary to prove sexual intercourse, it shall not be necessary to prove the completion of the intercourse by the actual emission of seed but the intercourse shall be deemed complete upon proof of penetration only".
   
6. The Prosecution submitted that it is sufficient proof for the purposes of the said section that the victim said that the Accused had sex with her. The medical doctor who made the report on the victim was not called because he was not in the country during the trial.
   
7. The Defence further submitted that the Prosecution must prove that the Accused had sexual intercourse with the victim without her consent beyond reasonable as defined under section 168 of the Penal Code.
   
8. The Victim maintained silence when the Defence repeatedly questioned her on what she meant by the Accused having sex with her. The Defence could not obtain any clarification from her by describing what she meant when she said that the Accused had sex with her.
   

In the circumstances, the Accused has no case to answer. He is accordingly acquitted of rape as charged in the information laid against him before this court. Order accordingly.

THE COURT