Regina v Tobimaoma [2015] SBHC 45; HCSI-CRC 116 of 2014 (29 May 2015)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua, J)

CRIMINAL CASE NO. 116 OF 2014

REGINA

–v-

SIMON SAMANI TOBIMAOMA

HEARING : 11,12,15 and 18 May 2015
DECISION : 29 May 2015

MR. A. E. Kelesi for the Crown
Mr. D. Hou for the Defendant

JUDGMENT

1. The Defendant in this case is charged with one count of rape under section 136 of the Penal Code. The case for the Crown is that the Defendant on an unknown date between 1st and 15th April 2013, at Olomaoma Village, in the Malaita Province, had unlawful intercourse with the victim without her consent. The Victim who was a very young girl at the date and year of the alleged offence gave evidence under oath. Her brother David also gave evidence for the Crown.
   
2. The case for the Defendant is that he never had sexual intercourse with the Victim at all as alleged by the Victim. He gave evidence under oath. His only witness could not travel to Honiara on time to give evidence during the trial.
   
3. The first information laid against the Defendant was filed on 22 May 2014. The date of the offence in that information was 7th April 2013. However, that information was amended by the Crown before the trail commenced on 11 May 2015. But that amended information was again amended on 26 May 2015.
   
4. The responsibility for the correctness of the information is on counsel for the prosecution. Any amendment to the information should occur before the case is opened by the prosecution. In R –v- Smith[1]Humphreys J. said (at 55; 682: 183):
   

"The responsibility for the correctness of an information lies in every case on counsel for the prosecution and not upon the court. No counsel should open a criminal case without having satisfied himself on that point. If in his opinion the indictment needs amendment, the necessary application should be made before the accused are arraigned and not as in this case, after all the evidence for the prosecution has been called. There may be amendments which would be properly made at the commencement of a trial which would be oppressive and embarrassing to the accused is made at the close of the case for the prosecution"

5. The victim's evidence in chief: The Defendant is her father's brother. In April 2013 she lived with her brother David near the Defendant's house at Olomaoma Village in the Malaita Province to attend Primary school. On the day of the alleged offence, she carried her brother's baby and went to the Defendant's house. The Defendant met her outside the house and pulled her with the baby up the ladder into the house. He told her that he would do something wrong to her while showing her a knife. He directed her to leave the baby in a room and took her to another room where he laid her on a bed, removed her clothes and had unlawful sexual intercourse with her without her consent. She felt pain in her vagina. He bit her checks and sucked her breasts while having sexual intercourse with her. She told him that he would report the incident to her brother. She said she did not shout out for help because she was afraid of the knife. She said the Defendant stopped having sexual intercourse with her when he heard a man talking outside. She went to the room where the baby was, carried him and they returned to her brother's house.
   
6. The victim's evidence in cross examination: That she was still on the ground outside the house when the Defendant climbed up the ladder to get to the veranda. She then climbed up the ladder with the baby and put the baby's umbrella on the floor of the veranda. The Defendant then grabbed her on the middle of the body and told her to leave the baby on a bed in a room. He pulled her to another room, removed her clothes and had sexual intercourse with her. She said she did not agree for him to have sexual intercourse with her. She said that the Defendant had sexual intercourse with her on 7 April 2013 which was on a Saturday. She said she reported the incident to her brother on the same Saturday. She then changed her evidence to say that the offence was committed by the Defendant on a Thursday after school and not on a Saturday.
   
7. The victim's brother David was called as a Crown witness. He confirmed that the victim reported to him that the Defendant had shown a knife to her and then had sexual intercourse with her. In his statement to the police David said that he could not recall the date when the victim reported the incident to him. However, in his evidence at the trial, he said that the incident occurred on a Thursday in April 2013. His evidence now supported the evidence of the victim. This shows that the victim and her brother had discussed this point before the trial.
   
8. The Defendant elected to give evidence under oath. He said: The victim went to his house on a Saturday 4th April 2013. She came from Kwaiba and not from the school. He denied showing her any knife and raping her. He did not do these things to her. She came to the house and sat near the side of the ladder and they engaged in a conversation. He denied touching her and said an old man Peter Baetoloa came. At that time the victim was sitting at the door. The victim left his house after Peter joined them at his house. He reiterated that he never showed her any knife nor pulled her into the house and had sexual intercourse with her. He never held any bush knife and pointed it at her neck. He merely held a small knife which he normally used to cut homemade tobacco called Savusavu in his language. The next house from his house was merely about eight to ten metres away. The victim usually came to his house before the alleged rape. She never mentioned carrying the baby to the Defendant's house in her statements to the police.
   
9. The Defendant said that it was not a Thursday that the victim went to his house with the baby. It was a Saturday that she went there with the baby. He denied having sexual intercourse with the victim. He said that David went to his house with a stick and a knife but he did not use them on him but merely spoke to him. The Defendant said he went with his wife to Fouia because David's brothers chased him out from Olomaoma Village, when they heard rumours that he raped the victim. They then demanded a compensation of $2,000.00 from him, which was paid to them by his brother in-law.
   
10. The victim had not been examined by a doctor after the alleged rape. The court has heard evidence from the victim and the Defendant. The Defendant denied ever committing the offence. The court is left in double about the veracity of the victim's evidence against the Defendant. The crown has therefore failed to prove the guilt of Defendant beyond reasonable doubt. He is acquitted of rape and is discharged accordingly.
    

THE COURT

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^[1] In R v Smith [1951] KB 53; [1950] 2 ALLER 679; 34 Cr Apr 168 (CCA).