R v Patare - Verdict [2014] SBHC 81; HCSI-CRC 49 of 2013 (17 July 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALLARAS J)

Criminal Case Number 49 of 2013

R

v

ALLEN PATARE

Coram: PALLARAS J
Crown: Ms. F. Joel
Defence: Mr. C. Rarumae
Hearing Dates: 14-15 July, 2014
Verdict Delivered: 17 July, 2014

VERDICT

1. Allen Patare (the accused) was charged with one count of rape (Count 1) and one count of assault causing actual bodily harm (Count 2). The complainant in each count was the same person, his 15 year old niece, the daughter of his sister. To Count 1 he pleaded not guilty. To Count 2 he pleaded guilty.

2. By his plea he puts the Crown to proof on each of the elements of the offence of rape. Upon the Crown therefore rests the burden of proving the charge against the accused. The accused bears no onus to prove his innocence nor indeed to prove anything else. The case must be proven by the Crown to the criminal standard of beyond reasonable doubt. What that means is that if, at the end of the evidence, there remains a reasonable doubt as to the guilt of the accused, he must be given the benefit of that doubt and be acquitted. It is only if and when I am satisfied beyond reasonable doubt of the guilt of the accused that he may be convicted of rape.

3. In this matter the Crown case for rape consisted of the evidence of one witness (PW1) who testified that on an unknown night towards the end of November 2012, she was asleep in bed and awoke with the need to use the toilet. Her elder brother's one year old baby was sharing the bed with her. When she awoke she saw a man standing at the foot of her bed. Given that the only light in the house was coming from another room, her bedroom was dark and she could not initially see the face of the person before her.

4. While still in bed, the complainant asked who was there and the person said "oh, it's me." Recognising the voice of her uncle she said "Uncle Alan?" and the person seemed to grunt an acknowledgement. In cross examination the complainant said that at this point she could see the person's face as he was standing at the foot of the bed and was quite close. He then said to her "where do you want to go?" and the complainant said "to the bathroom".

5. The complainant then said that the accused got onto the bed with her and held a 10 cm knife to her throat. He told her that if she shouted he would cut her neck. He then removed the complainant's jeans and underpants and pushed open her legs. The accused then had sexual intercourse with the complainant while holding the knife to her neck. Under cross examination the complainant denied the suggestion that she couldn't recognise the accused during the rape and repeated that she did recognise her uncle.

6. The complainant testified that she was very frightened at what was happening and was fearful that the accused would use the knife. The accused said to her "fucking you is nice" and that if she told anyone what had happened he would cut her throat. The accused left by climbing out of the window of the bedroom. The complainant said that she did not want the accused to have sexual intercourse with her, that she felt frightened during the incident and when he left, felt bad about what the accused had done. She did not then tell anyone about it because she was too frightened by the threat made by the accused.

7. The defence case consisted of the sworn evidence of the accused who testified that the complainant had mistakenly identified him as her attacker and that he was never in the house and never had sexual intercourse with the complainant. He was not an impressive witness and his testimony was riddled with numerous inconsistencies and reversals.

8. The complainant presented as an unsophisticated (now) 17 year old, who had very little schooling and, although she claimed to be able to write, could not read. Her testimony was at times very laboured and at other times quite fluent. On the occurrence of the rape, she was definite and consistent in her evidence during which she described what happened to her with the authenticity of experience. On her identification of her uncle, although she was closely questioned about the accuracy of her identification, she was certain and unshakable.
9. There is nothing in her evidence as to the occurrence of the rape that leaves me in any doubt that it did occur. There is nothing in her evidence concerning her identification of her uncle as the rapist that causes me to be in any way concerned about its accuracy. It is true that the room was relatively dark with the only light coming from another bedroom. In those circumstances mistakes can be made in the identification of people. However this was a case of recognition in its true sense. She had known the accused all of her life, had quickly recognised his voice when she first woke up and, hardly surprisingly, when he was on top of her was able to see that it was him. She recognised his voice, recognised his face and recognised him as the person who was raping her. It was her uncle, the accused.

10. I am very conscious of the fact that the case is one of word against word. In those circumstances a court needs to exercise even more care not to come to a conclusion based on which version is preferred. I have reached my conclusion not because I prefer the version of the complainant over that of the accused. To do so would be to misapply the onus of proof which remains throughout upon the prosecution. It would also suggest that the accused has some onus to convince me that his version should be preferred to the version of the complainant. Of course the accused has no such onus. This is not a decision based on who gave the preferred version, it is a decision based upon all of the evidence presented which has satisfied me that the prosecution has proven the elements of the offence of rape, including the identity of the accused, beyond reasonable doubt.

11. The accused is convicted of one count of rape contrary to section 136 of the Penal Code and on his plea, convicted of one count of assault causing actual bodily harm contrary to section 245 of the Penal Code.

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THE COURT