Regina v Dime [2015] SBHC 105; HCSI-CRC 199 of 2014 (21 August 2015)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 199 of 2014

REGINA

-V-

Francis Dime

Hearing: 18th, 20th, 21st August 2015
Judgement: 21st August 2015

M.Suifa'asia (Mrs.) for the Crown
N.Galo for the Defendant.

Palmer CJ.

1. The defendant, Francis Dime ("the Defendant") is charged with two counts of rape (counts 1 and 3) and one count (count 2) of indecent assault contrary to sections 136 and 137 for the rape charges and section 141(a) of the Penal Code for the indecent assault charge. The particulars in respect of the rape charges were that he had unlawful sexual intercourse with the complainant twice that night of the 22nd of March 2014 and the early morning hours of the 23rd March 2014, while the indecent assault charge also occurred during that period at the home of the complainant at Kilu'ufi Hospital compound area.
   
2. The complainant is an elderly widow of about 54 years old and the Defendant a young man of about 25 who grew up around the neighbourhood with the children of the complainant and frequented her house when he was young. He often visited her house as a child and he was well known to her.
   
3. The prosecution's case is that the Defendant committed unlawful sexual intercourse with the complainant twice that night and indecently assaulted her as well after gaining entry to her house by breaking the wall and unlocking the lock of the door from inside. She did not invite him into the house that night.
   
4. The defence case on the other hand was that the door to the extension, the room where she was sleeping in was not locked, the Defendant opened the door and entered the house. He says the sexual intercourse and supposed indecent assault charges were voluntary and consensual and the complainant willingly participated throughout.
   
5. The Defendant gave sworn evidence, he did not call any witness.
   
6. It is for prosecution to prove its case beyond reasonable doubt that any sexual intercourse alleged was unlawful and committed without the consent of the complainant including the indecent assault charge. If any reasonable doubt exists, not just doubt, this must be go in favour of an acquittal.
   
7. Prosecution called three witnesses, the complainant herself, her daughter who received her call in the early morning hours of Sunday the 23rd March 2014 and reported the matter to Auki Police immediately, and her neighbor who she called out to that night to come and see her and to whom she also reported the matter to. Three other statements were also admitted by consent in evidence, one by her other daughter living in Auki who drove to her house early that morning to see her at about 3:00 am and two statements from two police officers who were part of the investigation team to the alleged crimes. As well a sketch plan of the duplex building and extension to her house and the medical report of the Doctor who examined her were also admitted in evidence as exhibits.
   
8. In any rape charge, there are four main elements to be established by Crown: (i) the identity of the offender; (ii) that he had unlawful sexual intercourse with her; (iii) that it was with a girl or woman; and (iv) that it was done without her consent or if by consent that it was obtained by force, threats or intimidation of by fear of bodily harm or false representations etc.
   
9. The identity of the offender is not in dispute, that it was the Defendant who entered her house that night and that the complainant in this case is a woman. The primary issue of contention is that the sexual intercourse was unlawful and without consent or if by consent that it was obtained force, threats, intimidation and fear of bodily harm.
   

Findings of the Court.

10. It is not in dispute that the Defendant was never invited at any time by the complainant to come to her house that night. Secondly, that he unlawfully entered her house that night. While he alleges the door was unlocked or open when he went to her house that night that did not make his entry lawful. He trespassed into her house that night.
    
11. Thirdly, because he was not invited, the complainant did not expect him. I find that it is consistent with her evidence that when she woke up she was startled or shocked to find someone inside her mosquito net when she woke up. Anyone waking up in the middle of night to suddenly find someone beside her bed, more so an elderly woman would be terrified and frightened. It is absurd to suggest that she could not be startled or shocked on waking up and finding an intruder in her room for that is what happened when she got up to go to the loo (toilet). It was only afterwards that she realized that the intruder was the Defendant. I believe and accept her evidence on this.
    
12. Was the door to the extension open or left ajar? I have had the opportunity to assess their evidence in court and choose to believe the evidence of the complainant as being more credible that he broke into her house by breaking the thatched leaves on the side of the door before putting his hands through that hole and unlocking the door from inside; entry was gained unlawfully. I am satisfied I can accept her evidence as being credible and reliable in that this is the most normal, logical and reasonable thing to do, especially for an elderly woman living alone. She would be expected naturally to lock the doors unless she forgot somehow, before going off to bed, but that was not her express evidence. Her evidence is that she locked the door and denied any suggestions that she could have made up the story about the breach caused to the wall and subsequent entry. I accept her version on this and reject the suggestion by the defence that it was deliberately constructed to mislead evidence in court. Secondly, she had no motive or reason to lie about that fact.
    
13. In contrast, the Defendant had the motive or reason to lie about that in order to try and make it appear less serious or bad, that his entry was not unusual in the circumstances, when it could not be, for he was never invited to enter the house by the complainant and more so, when she had retired for the night. As the maxim goes, a man's or woman's house is his castle or fortress and to be respected whether it is made of steel and brick or thatched leaves. If his entry was supposedly genuine enough he would have tried to wake the complainant up and failing to do that, simply leave. He had no right to enter the house at any time that night and was a trespasser in law. Whether the door was locked or unlocked he had no right to enter the house without her express permission. That is also a serious breach in the circumstances of how he gained entry into the house.
    
14. Once unlawful entry was achieved did at any time his unlawful entry and presence become lawful or consented to and especially did the complainant at some point in time consent to and agree to have consensual sexual intercourse with the Defendant when the subject supposedly was broached by the Defendant? That would seem to be crux of defence case, that at some point in time when she realized it was the Defendant that she consented thereafter to his advances and agreed to participate voluntarily in his sexual requests.
    
15. It is here that their evidence and version diverge going in opposite directions.
    
16. The complainant's evidence primarily revolves around the allegation of a knife and force and threats that were used by the Defendant to carry out the alleged offences. She told the court that although she did not see the knife she felt the tip of the knife against her back towards her neck area when he jumped onto her and held her tightly from behind. She told the court that he threatened to stab her with the knife if she shouted.
    
17. The version of the Defendant in contrast differs as to what transpired between them that night. He paints the picture of a woman who on realizing and recognizing the Defendant willingly consented thereafter to his sexual advances. He describes in great detail supposedly discussions and comments between them that night and made by the complainant towards him encouraging or egging him on to have sex with her. He described how he helped her to go towards the toilet, assisting her to go out and rest outside when he realized she was struggling to breathe or short of breath because of her inert condition related to hypertension, including withdrawing in the first sex act because of this. He describes an encounter of consensual and mutual understanding the relationship and sexual intimacy between them. He also described in detail what he said supposedly happened with the complainant expressing a desire to suck his penis in contrast to the version of the complainant that he forced his penis into her mouth.
    
18. I do not need to go into other details of other conversations and what supposedly occurred between them, these are recorded in the evidence adduced in court and counsels have made lengthy submissions on them in particular his Counsel, pitching the defence case that these supposed activities could not amount to rape or any suggestions of non-consensual intercourse. Suffice to point out that the version of defence is that at some point in time during the encounter that night, the complainant consented to his entry and presence and willingly participated in the sexual activities thereafter.
    
19. The issue for this court is to determine essentially whose version I find as being more credible and reliable, for both gave sworn evidence and so it is her word against his word. As well I am obliged to consider the surrounding events immediately prior to and after the event to assist me in making determination as to where the truth of this case lies and whose evidence I find credible and reliable.
    
20. In considering and assessing their evidence and the totality of the evidence, the surrounding circumstances and events that occurred that night, I am satisfied so that I am sure, that the version of the complainant stands out as being more credible and reliable. I make this considered conclusion for the following reasons.
    
21. First, I find her evidence to be simple, clear, straightforward and consistent throughout. She comes out as being more a witness of truth in that she willingly admitted matters that did take place in terms of conversations that were put to her in cross examination but maintained throughout in her evidence that she did not consent or if there was any element of consent it was obtained by force, threats and intimidation.
    
22. Counsel for the Defendant sought to suggest throughout that her version should not be accepted or believed by this court because throughout the ordeal or encounter that night, she had the opportunity to demonstrably resist or raise alarm and that her failure to do so was inconsistent with the actions of a reasonable desperate woman or girl caught in such circumstances. Unfortunately such submission oversimplifies human nature and each complainant must be taken on her own personal circumstances, reactions and responses on the evidence. These will vary depending on the personality of each victim. The personal circumstances of the complainant already place her in a much more vulnerable and quite disadvantageous position. As pointed out by Counsel Suifa'asia, she is not merely elderly, but to some extent suffers from an inert medical condition which greatly hampers her mobility and ability to move around freely. She is feeble and weakly, which was quite obvious in court for she came into court with a walking stick, was quite slow in her movements and obviously not alert physically. The undisputed evidence was that she suffered an attack of breathlessness that night when the alleged offence was committed. Any suggestions therefore that her failure to call out for help or act in such a way as to distract or resist the Defendant or attract help do not in my finding indicate in any way that she was a willing participant thereafter to his sexual advances and negates any claim of lack of consent. To the contrary, her personal circumstances, fear and her belief that he had a knife, being forced and threats applied, I find to be consistent with her actions and explanations in not being able to resist the Defendant until he had left.
    
23. Of significance in this case is the issue of recent complaint or contemporaneity of her complaint to the immediate persons who could help her. I accept the submissions of Counsel Suifa'asia and the analogy provided that it is more likely than not, that is unusual, that the complainant would not have reported the complaint to anyone immediately after the alleged incidents if it was consensual. I accept her submissions on this point but more so because the facts actually support the analogy in total. No one knew about the intrusion and the subsequent sexual activities and what the complainant requested to do in sucking the penis of the Defendant. She would not be in her right mind to tell anyone about this if it came from her. His version may have had more substance and credibility if she had remained silent about the whole matter and perhaps a complaint made after a lapse of time. But that is not the situation here. As soon as he left that same night she reported the matter not merely to her daughters but to the neighbor next to her room. I find her actions entirely consistent with that of a woman who did not consent to any sexual activity that was performed on her or done to her that night and entirely consistent with her account of what happened. It may have been different and doubt may have arisen in my mind if the report was made after sometime had elapsed.
    
24. When this proposition was put to the Defendant he did not have any explanation as to why she would have reported the matter to her nearest relative and neighbor that same night. I find her actions that night contradict his version of events and destroy any legitimacy or credibility to his assertion that it was consensual and voluntary.
    
25. I also do not believe the account of the Defendant and his explanations as to any suggestions that he believed and somehow was misled or could have been misled by the complainant that she was a willing and consenting participant throughout to the sexual activities that occurred that night. Their versions diverge and having rejected his version I find ample evidence to support Crown's version and case that the complainant was raped and indecently assaulted that night.
    
26. I will turn briefly to the medical report and suggestions that the absence of any injuries to the genitalia of the complainant supports the defence case of consensual sexual intercourse. I think it also needs to be borne in mind that there is ample medical evidence as well which provides that that absence of any form of injury to a recent complaint of rape does not rule out force and violence and the absence of consent. There are numerous factors bearing in mind the general anatomy of the genitalia and its attributes as to why the absence of injuries is not necessarily inconsistent with non-consensual sexual activity. Suffice to point out that the complainant is an elderly woman, a widow and had grown children.
    

Decision.

27. I am more than satisfied prosecution have established its case against the Defendant on the two counts of rape and indecent assault and I find the Defendant guilty of those offences.
    

Orders of the Court:

1. Find the Defendant guilty of the two counts of rape, counts 1 and 3 and of the offence of indecent assault (count 2).
   
2. He is convicted accordingly of the two counts of rape and one count of indecent assault.
   

The Court.