Regina v Ta'asi [2015] SBHC 104; HCSI-CRC 321 of 2011 (14 August 2015)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 321 of 2011

REGINA

-V-

Itaka Ta'asi

Hearing: 20-22 July and 13-14 August 2015
Judgement: 14 August 2015

A. Kelesi for the Crown
B. Ifuto'o and H. Lowry for the Defendant.

Palmer CJ.

1. The defendant, Itaka Ta'asi ("the Defendant") is charged with one count of rape, contrary to section 137 of the Penal Code that on the 20th March 2011 he raped the victim at Niu (also spelled "New") Manda village.
   
2. The prosecution's case is that the Defendant committed sexual intercourse with the victim without her consent. She was accosted at the beach in the presence of her cousin sister and other witnesses, abducted, that is forcefully pulled away, and forced to have nonconsensual sexual intercourse at an isolated brick house. She was later rescued after a search later that night and the matter reported immediately to police.
   
3. The defence case in essence is that any sexual intercourse that took place was consensual and simply that it was for prosecution to prove its case beyond reasonable doubt for the Defendant had elected to remain silent and did not call any witness in his defence.
   
4. It is for prosecution to prove its case beyond reasonable doubt that any sexual intercourse alleged was committed without the consent of the victim. If any reasonable doubt exists, not merely doubt, this must be go in favour of an acquittal.
   
5. In the light of the fact the Defendant had elected to remain silent and did not call any witness in his defence, the only evidence for assessment before this Court is that which had been adduced by prosecution and tested under cross examination.
   
6. As rightly submitted by Crown Counsel Mr. Kelesi, there are four main elements to be established in the offence of rape, (i) identity of the offender, (ii) that he had unlawful sexual intercourse, (iii) that it was with a girl or woman, and (iv) that it was done without her consent.
   
7. Prosecution called four witnesses in support of its case, the victim, her cousin sister who was in her company at that particular time and two others who were around the vicinity at that time. Apart from the evidence of the victim herself regarding the actual allegation of rape, all the other witnesses testified of what they observed immediately prior to the victim being pulled away forcefully by the Defendant.
   
8. Having heard the evidence in court on this, I am more than satisfied so that I am sure that the alleged offender had been sufficiently identified by the victim, her cousin sister, Lucy Moke (PW4) and the two other witnesses, Antonio Tenamo (PW2) and Piri Tesika (PW3). Both PW2 and PW3 simply confirmed the evidence of PW1 and PW4 as to the identity of the man who was seen at the beach struggling with the two girls.
   
9. The third element that the victim was a girl or woman is not in dispute.
   

Issue of unlawful sexual intercourse and consent.

10. The second and third elements form the crucial issues for determination in this case, that unlawful sexual intercourse was committed without the consent of the complainant or victim.
    
11. It is for prosecution to prove beyond reasonable doubt that the Defendant committed unlawful sexual intercourse without the consent of the victim, that is, he raped her.
    

Findings of the Court.

12. It is not in dispute that the two girls encountered the Defendant as they were walking along the beach from Niu Manda village. The Defendant was at the beach at that time and called out to them. They responded and went towards him and sat down with him.
    
13. The victim says that he gave them twisties, which was confirmed by PW4 in her evidence in court. Counsel Ifuto'o raised issue with the credibility and accuracy of this piece of evidence with PW4 on the basis that it was not in her statement made to police, however I am not satisfied this omission in her statement sufficient to discredit this evidence. It is consistent with what the victim also told the court and has not been sufficiently challenged and contradicted in court and I accept it as correct.
    
14. I am also satisfied that there is clear and uncontested evidence that the Defendant was drinking at the beach when he called them. Although the victim did not say that they were offered beer it was PW4 who stated in her evidence in court that he offered them beer but that they declined. Again this omission from the statement of PW4 was raised in cross examination against PW4 to test her evidence as to the accuracy and veracity of her evidence in court but she remained firm and maintained her evidence in court that he offered them beer. I am not satisfied this omission to be significant to cast doubt to her credibility and the reliability of her evidence. It is not inconsistent but consistent and possible and credible that he should offer them beer. I accept her evidence on this as accurate and truthful.
    
15. Without having to get bogged down with too much unnecessary details because of the time factor, it is sufficient for purposes of this judgment to simply state that it is not in dispute that sometime thereat, the Defendant started to make sexual advances towards the victim by stating that he liked her. This is corroborated by the evidence of PW4 who stated that the Defendant told her that he liked the victim and wanted to take her.
    
16. It was at this juncture that things changed because according to the victim and PW4 they declined his advances and there and then decided to leave. It was at this point of time according to their evidence that things turned violent and the struggle which consisted mainly of pulling by the Defendant to drag the victim away occurred.
    
17. The defence sought to challenge the evidence and version of prosecution primarily on the grounds of truthfulness and accuracy of the accounts as to what transpired thereafter.
    
18. In particular much has been referred to in the evidence of PW4 as to supposed inconsistencies that should raise doubt or uncertainty in the mind of the court as to the accuracy of her account and its veracity.
    
19. Her evidence in court however as to the events that transpired prior to the actual alleged rape do not stand alone as rightly pointed out by Counsel Kelesi. Her evidence on the substantive matters pertaining to the struggle, pulling and pushing at the beach and later as they made their escape away from the Defendant along the main road is entirely consistent with and corroborates the account of the victim.
    
20. I have had the opportunity to consider the evidence of PW4 in court, her demeanour and conduct in court and form the concluded view that her evidence in court is credible, consistent, certain and reliable. Even though there were omissions as rightly pointed out by Counsel Ifuto'o in her statement to police she emphatically denied when it was put to her that what she told the court were made up and freshly constructed to shed blame on the Defendant. I am more than satisfied she is a witness of truth as to the events that occurred that evening and that I can rely on her account as not merely accurate in terms of her recollection of events but also in terms of the veracity of her account.
    
21. I am more than satisfied, having heard the evidence in court, observed the witnesses giving evidence, including their demeanour and appearance in court, and having had the opportunity to assesses issues of credibility, accuracy and truth, that unlawful sexual intercourse was committed without consent.
    
22. The other two witnesses PW2 and PW3 adequately corroborated the evidence of the victim and PW4 of the struggle that ensued, consisting of pulling between the Defendant and the two girls, the Defendant pulling on one hand of the victim and PW4 pulling the other hand in the opposite direction to get away from the Defendant. I find their uncontested evidence consistent, unambiguous and reliable, supporting the version of prosecution of a violent struggle that ensued between them that evening as it was getting dark. I find no reason not to accept their evidence as credible.
    
23. I find on the evidence despite being expressly refused in his advances by the victim and her PW4, the Defendant unduly persisted in imposing himself on the victim to the extent of using force and violence to overpower her, violently wresting control away from the grip of PW4 who was also pulling in the opposite direction.
    
24. I find overwhelming evidence of a struggle at the beach, which continued on the main road. I am satisfied so that I am sure there is clear and consistent evidence of a struggle, consisting of pulling on the hands of the victim in opposite directions, from all prosecution witnesses, the victim herself, PW2, PW3 and PW4. Her evidence in particular is entirely consistent throughout from the outset to the moment her hand was forcefully released when the Defendant bit her hand on her left wrist. She remained firm and unshaken in her evidence during cross examination. I am satisfied she is a witness of truth that this court can rely on as supporting in particular the evidence of the victim right up to the final moments when the Defendant succeeded in gaining the upper hand and eventually taking the victim away before raping her.
    
25. It wasn't the case of the absence or lack of any eye witnesses, uncertainty, ambiguity or doubt as to what transpired. The actions of the Defendant were described as openly violent, blatant, unduly persistent and forceful. There were eye witnesses to the ensuing struggle starting at the beach which is consistent with and supports the version of the victim and PW4 of force being used and that what transpired thereafter culminating in the rape could not be supported by any suggestions of consensual sexual intercourse.
    
26. Even right up to the final moments of being separated there is clear evidence of the absence of any form of consent on the part of the victim, demonstrated by clear and uncontested evidence that she told PW4 to get help. She told PW4 to report the abduction to her father so that her father could come to her rescue. There couldn't be clearer evidence of lack of consent on her part.
    
27. As well the actions of PW4 in immediately seeking help from the first people she met on her way, a couple, also supports their version of an unlawful abduction. The couple assisted her to report the matter to the victim's father and others and a search conducted shortly thereafter.
    
28. I am not satisfied this version of events has been sufficiently discredited or any doubt raised as to its accuracy and veracity. There is simply no evidence to suggest otherwise that she willingly accompanied the Defendant at the beach and later followed him. To the contrary the only credible evidence before this court is one of being forcefully removed and taken away against her will.
    
29. In terms of recent complaint there couldn't be clearer evidence as well that the report was done contemporaneous to and or almost concurrently as the offence was committed. If it was by consent there was no reason for PW4 to seek help from the couple she met and to have the matter reported. The father would not have known that the victim had been forcefully taken away until he was told by PW4. Any suggestions that it was concocted to cover the victim's tracks simply cannot be substantiated by any iota of evidence.
    
30. Briefly on the medical evidence it needs to be borne in mind that the absence of injuries on the genitalia does not necessarily discredit or negative any evidence of unlawful sexual intercourse and consent. On its own it is insufficient if there is simply no other supporting evidence to suggest that sexual intercourse took place by consent. There is virtually no evidence of that in this case. Judicial notice can be taken of knowledge that specifically relates to the anatomy of the genitalia and its attributes as to a variety of factors why the absence of any injuries is not necessarily inconsistent with nonconsensual sexual intercourse.
    
31. The evidence of unlawful sexual intercourse is simply overwhelming that they did not want to have anything to do with him thereafter.
    
32. I am more than satisfied the evidence adduced by prosecution has not been contradicted and or discredited in any substantive manner, is accurate, consistent and credible and the Defendant should be convicted of the offence of rape herewith. I so find a verdict of guilty.
    

Orders of the Court:

1. Find the Defendant guilty of the offence of rape.
2. Convict him accordingly.
   

The Court.