Regina v Palmer [2015] SBHC 29; HCSI-CRC 150 of 2014 (20 March 2015)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 150 of 2014

REGINA

V

Edwin Palmer

Hearing: 16-18, 20 February 2015
Judgement: 20th March 2015

Florence Joel for the Crown;
Lazarus Kwaiga for the Defendant.

Palmer CJ.

1. The defendant, Edwin Palmer ("the Defendant") is charged with one count of rape, contrary to section 137 of the Penal Code, that on or about the 23rd November 2013 at Pebokisi village, North Guadalcanal raped the victim in this case.
   
2. The prosecution's case is that the victim was on her way to the village store when she was pulled from behind by the Defendant into the nearby bushes and raped.
   
3. The defence on the other hand denies that any sexual intercourse took place.
   
4. The issue in this case is primarily one of fact, whether the offence as alleged by the Crown took place.
   
5. The Crown called a total of five witnesses, the victim, her brother and mother, a police officer who testified about the clothes that were given to her as exhibits and the Doctor who carried out the medical examination report. His reports have been admitted by consent as exhibits F/1 and F/2.
   
6. The standard of proof in this case is that of proof beyond reasonable doubt. Prosecution is required to prove beyond reasonable doubt that not only did sexual intercourse occur but that it was without consent.
   

Facts not in dispute.

7. It is not in dispute that the Defendant is related to the victim. In the agreed facts it is described as an uncle relationship. In the evidence of Elizabeth Mae (mother of the victim) however, the relationship would appear to be more of a second cousin relationship. In any event because of that common understanding, it appears the Defendant was a frequent visitor in the house where the victim lives.
   
8. On the day of the alleged crime, he went to the home of the victim. He had gone to her house earlier that day and after asking for betel nut went and sat on the hammock in their kitchen area.
   
9. A number of items including clothes of the victim, a black skirt, white blouse, and striped underpants, worn by the victim that day were collected by police and tendered to court as Exhibits "I", "J" and "K" respectively.
   
10. Some issue about the colour of the underpants was raised by Counsel Kwaiga but the fundamental issue of identification and ownership of the pants was never discredited. I accept those items as belonging to the victim and were the clothes worn by her at the time of the alleged incident.
    
11. Of significance as well is that the black skirt contained a tear, which the victim alleged was caused when she was pulled by the Defendant and raped. This is uncontested and I accept her evidence as to the circumstances under which the tear was caused.
    

Facts in dispute

12. There are two main issues in this case, (i) whether sexual intercourse occurred, and (ii) whether it was without consent. It would seem that the defence case is that what happened that afternoon between the victim and the Defendant was consensual, or by agreement and that the victim was a willing participant agreeing to meet with the Defendant. Apart from that, it would seem as well, that the defence version is that no sexual intercourse occurred that time.
    

Findings of the Court

13. The evidence adduced before the court does not support in any way any suggestions that what happened that afternoon was by consensus, agreement or pre-arranged in anyway. Noting that the Defendant elected to remain silent and did not call any witnesses, the burden remains on the prosecution to prove beyond reasonable doubt that sexual intercourse occurred and that it was without consent.
    
14. I find to the contrary on the evidence adduced, that when she was accosted by the Defendant on her way to the store at Jericho village, it was unexpected and that she was taken by surprise. She told the court that when she looked back and saw the Defendant walking behind her she did not think much of it because as she described it in her own words, "he was no different to me", that is, he was related to her.
    
15. However, when she heard someone walking quickly towards her from behind she turned to look behind her but by then the Defendant grabbed her hand and pulled her into the bushes. She told the court she became very frightened by then. When she attempted to shout he closed her mouth with his hand and threatened to kill her. She told the court that this was when her skirt was ripped. The skirt has been tendered in court as Exhibit "I".
    
16. I accept her evidence on this as being consistent with force being applied. If it was consensual there would not have been any tear to her skirt. It is unusual for a skirt to be torn in consensual sexual arrangements. In any event, no evidence has been adduced to contradict her evidence and or to account for the torn skirt. I accept her evidence that it was torn by force and consistent with her claim that she did not consent to what was done to her by the Defendant.
    
17. The evidence of her little brother, James Kogana ("James") is also consistent with her account that she met him when she came out from the side of the road. James told the court he had followed his sister all the way to the store but did not see her and only met her on his way back. He confirmed that he saw her coming out from the side of the road with the Defendant behind. He told the court he noticed she was crying and looked sad. He also noticed grass on her head and dirt. He then accompanied her back to their house.
    
18. His observations have also not been challenged and consistent with the version of the victim of having been forced to lie down on the ground against her will. If there was consensual sexual intercourse or the meeting pre-arranged, it was unlikely there would be grass on her head or dirt on her body.
    
19. As well his observation that she was crying and looked sad is consistent with trauma and distress associated with her claim of being raped than if it was consensual. If she was a willing participant to the meeting and sexual intercourse, it is unnatural or unusual that she should be crying and looking sad. Such demeanor is inconsistent with any suggestions of a prior existing relationship.
    
20. I accept her explanation that she lied to James by answering in the affirmative when asked if she had gone to look for "leaf" for betel nut in the bushes, for in her custom it is inappropriate (disrespectful) to disclose such incidents to a brother.
    
21. Her evidence is also consistent with that of James as to the absence of any prior relationship with the Defendant. He confirmed that she went to ask him to accompany her to the store but he told her that he would follow her later. He went later and saw her when she came out from the side of the road. If the meeting was pre-planned between her and the Defendant, then she would not have needed to ask her brother to accompany her to the store for she could have gone off with the Defendant without his knowledge or simply to let him know where she was going without asking him to accompany her. Her actions do not support the version of the Defence of a prior existing relationship.
    
22. I also find her action in reporting the matter to her mother when she returned later that night as being consistent with evidence of recent complaint; that is, reporting the incident at the earliest opportunity.
    
23. In the case of R. v. Munday[1], Ormiston JA said[2]:
    

"The basis for admission of true recent complaint evidence must rest on a premise to the effect that people offended against will ordinarily make some prompt complaint."

24. As soon as it was possible she promptly reported the offence to her mother. This supports her story that she did not consent to what the Defendant did to her that afternoon.
    
25. Her story is confirmed by her mother, Elizabeth Mae ("PW3"). She told the court that the victim told her later that night after she and her husband had arrived back from attending a wedding later that night. She told the court that when she heard this she got a broom and whipped her daughter with it. When asked why she did this, she explained she did this out of shock as it was the first time that this had happened to her family. She also told the court that she immediately woke her husband up that night and told him about it. He also responded by going immediately to the home of the Defendant to confront them about the incident.
    
26. It has been sought to be suggested by Mr. Kwaiga for the Defendant that the actions of the mother were inconsistent with that of the victim being raped and that it was more in line with the version of the defence that there was an affair by agreement between the Defendant and the victim. The mother however remained firm in her response that she reacted in this way out of shock in hearing what had happened. I am not satisfied this reaction of the mother in any way discredits or reduces the credibility of the evidence of the victim that she had been raped.
    
27. The report of the Doctor which referred to abrasions on her left neck and lower back are also consistent with the victim's version of having been forced to lie down on the grass and dirt. The Doctor noted the appearance of the abrasions as recent, that is, they were still moist (no bleeding). He conducted the examination on the following day (24th November 2013) of the alleged incident.
    
28. The genital examination was described as normal, that is, it did not reveal any abnormality such as injuries to the genital area. At paragraphs 25 – 28 he made the following comments:
    

"25. The skin and tissue of the genital area are able to stretch when there is penetration of vagina. It is normal and common for penetration (consenting or not consenting) to occur without injury.

26. Injuries may also be seen following penetration of these areas. When they do occur, such injuries are usually minor for example bruises, small lacerations and abrasion.

27. Following alleged vaginal penetration, the common reasons for the absence of observed injury include:

• No injury was sustained due to the nature of the physical contact.
• The contact involved in the penetration of the distensible tissues (eg. Vagina, anus, hymen) that stretched (dilated) without sustaining an injury.
• Injuries healed by the time the patient was examined.
• No recent contact had occurred.
  

28. The likelihood and extent of genital injury following penetration is dependent upon several factors: for example age of the person, the degree of force involved, general health, lubrication, the size of the penetrating object, the stretchiness of the orifice."

29. In a second report (Exhibit "F/2") and in his evidence in Court he sought to explain that the absence of any injury to the genital area does not necessarily imply that penetration did not occur. He explained that the hymen for example is a tensile tissue and has the ability to stretch. He also explained that literature on genital injury in sexual assault is extensive and in general the rate of genital injury sustained in alleged sexual assaults to be quite low about 30 – 40%. He concluded his report by pointing out that the fact that the hymen looks normal did not rule out any sexual intercourse that might have taken place.
    
30. I am not satisfied the evidence of Dr. Gasivaka in any way undermined or discredited the evidence of the victim, that the Defendant did not rape her or that there was no evidence of penetration.
    
31. The victim gave direct evidence of the rape, of penetration and sexual intercourse, that the Defendant inserted his penis into her vagina and moved his buttocks up and down. This evidence is un-contradicted and it is not open to the defence to suggest in the absence of any evidence to the contrary, that that is not the case.
    
32. She also told the court that she noticed her skirt was wet after the Defendant stood up from her. This is consistent with evidence of emission or ejaculation during intercourse and is also un-contradicted.
    
33. I am satisfied I can rely on the evidence of the victim in this case as to what happened that day. Her evidence is consistent and credible. While I note at times the witness would not answer and remained silent for some time despite repeated requests and directions from the court to answer fairly simple and straightforward questions, I am not satisfied this reflected any conscious effort to lie on oath or to mislead the court other than that it seemed that she may have been traumatized severely by the incident. There is no suggestion whatsoever and I find none that would indicate she was a willing participant, or in any form of relationship with the Defendant prior to and leading to the alleged incident.
    
34. I am satisfied so that I am sure beyond reasonable doubt that sexual intercourse occurred when the Defendant accosted the victim at Pebokisi area, pulled her aside into the nearby bushes and raped her. I am satisfied this was done without her consent. I accept her evidence as containing the truth of what happened that day.
    
35. I find prosecution have established the charge against the Defendant and I find him guilty of the rape of the victim in this case and convict him accordingly.
    

Orders of the Court:

1. Find Edwin Palmer guilty of the charge of rape and convict him accordingly.
   

The Court.

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^[1] (2003) 7 VR 423; 143 A Crim R 318 (CA)
^[2] At pages 433; 328 [24]