Regina v Soga [2015] SBHC 13; HCSI-CRC 198 of 2011 (20 February 2015)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Criminal Case No. 198 of 2011

REGINA

–V-

ANDREW SOGA

Date of Hearing: 16 to 20 February 2015
Date of Judgment: 20 February 2015

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

JUDGMENT

MWANESALUA J:

1. The Defendant is Andrew Soga. He is charged with one count of rape under section 136 of the Penal Code. He pleaded not guilty and was tried at Gizo from 16 to 20 of February 2015. He gave evidence and called witnesses after the Prosecution closed their case. Rape is generally regarded as the most serious offence of all the sexual offences.

2. The brief background of this case is that the Complainant is Rachel. She gave evidence during the trial. She said at dusk on Sunday, 29 May 2001, she boarded the Defendant's canoe at Saika Village to go to Namba Karua Settlement where she has been living with her aunty, her father's sister. She said that the distance from Saika Village to Namba Karua is about three hundred metres. She said that the Defendant assured her that he would drop her off at Namba Karua before he continued his voyage to Sabarana, where his family members were living at the time.

3. The evidence of the Complainant is that there was no one else in the canoe with them. She left the canoe when they arrived at the landing area at Namba Karua. The Defendant quickly went out of the canoe and pulled her hand from leaving. They struggled with each other and he forced her to the ground. He sat on her and shut her mouth from shouting out. He used his right hand to remove her skirt, bra and under pant. He then undressed himself. He separated her legs and penetrated her vagina with his penis. She felt severe pain in her vagina and cried. The Defendant left her at the scene, pushed his canoe into the sea and, resumed his voyage to Sabarana.

4. The Complaint remained at the scene until the pain subsided. She said she was completely disabled by the pain and unable to walk to her aunty's house. She arrived back in her aunt's house at one o'clock in the early morning of 30 May 2011. Her aunty saw her entering the house but said the Complainant made no complaint to her about the alleged incident.

5. The Complainant said that the Defendant told her that if her aunty asked her why she returned very late, she was to say that she went with Melvin and Deloris to Kinamara village for a video show. The Defendant denied instructing the Complainant to put up such excuse for her lateness to arrive back at her aunt's house. Melvin and Delrose were not called by the Prosecution.

6. On 30 May 2011, her aunty and her husband went to her brother, the father of the Complainant. She reported the Complainant's late arrival at her house on 29 May 2011. She returned to her parents at Saika village. Upon her arrival, she confined herself to her room crying as she was frightened of her father. She finally reported the alleged incident to her father on 4 June 2011.

7. The Defendant heard that he was implicated as the accused in the offence. He and his wife went to see the father of the Complainant. The father of the Complainant told him that he would not report the incident to the Police if he admitted the offence. But the Defendant denied ever raping the Complainant.

8. The Church elders at Saika Village investigated the allegation. They found no case against the Defendant. It is clear from the evidence of the Complainant's father that it was him who reported the case for investigation by the Police. There is nothing wrong with that as the statement of the Complainant implicated the Defendant of committing a very serious offence.

9 The evidence of the Defendant is that he left Sabarana on Saturday, 28 May 2011 to Saika village to collect provisions and attend church service on Sunday, 29 May 2011.

10. The Defendant made preparation to return to Sabarana in the evening of 29 May 2011. He loaded sago palm leaves, shells and cassava in his canoe. He was assisted by Lamu Pitu, who is married to his daughter. Lamu Pitu confirmed that in his evidence for the Defence. Juvena Matepio is the second witness for the Defence. She saw the Defendant at her house and asked him for betel nut. He told her that there were betel nuts in his canoe. In her evidence, she confirmed going to the canoe and given three betel nuts by the Defendant. This witness is not related to the Defendant.

11. The Defendant denied that the Complainant boarded his canoe to be dropped off at Namba Karua. He said that he saw the Complainant talking with his son, Willar Losa, when he left his anchorage to return to Sabarana. The Complainant was not in his canoe when he left Saika for Sabarana.

12. The Complainant was examined by a medical doctor some days after the alleged offence. It is up to the Prosecution to exhibit such reports. It was not produced as documentary evidence in this case. Such reports usually show vital evidence of violence to rape victims.

13 In this case, the Prosecution must prove the guilt of the Defendant beyond reasonable doubt. There is doubt on whether the Complainant boarded the Defendant's canoe to be dropped off at Namba Karua in view of the Defendant's and Lamu Pitu's evidence. The Complainant did not raise any fresh complaint against the Defendant to her aunty when she returned to the house where she lived at Namba Karua. The Complainant did not tell her father about the offence until the Defendant denied having sexual intercourse with her. It was the Complainant's father who then reported the case to the Police after the Defendant denied being involved. There is grave doubt on whether the Defendant raped the Complainant.

14. The Court is therefore of the view that the Prosecution had failed to establish beyond reasonable doubt that the Defendant is guilty of the charge of rape. In the circumstance, the Defendant is acquitted of the charge and is accordingly discharged. The Prosecution has a right to appeal to the Court of Appeal if they disagree with this decision.

THE COURT