Regina v Kingsley [2015] SBHC 51; HCSI-CRC 98 of 2014 (10 June 2015)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua, J.)

Criminal Case No. 98 of 2014

REGINA

V

DESMOND KINGSLEY

Date of Judgment: 10 June 2015

Ms S N Ramosae'a and Ms R Olutimayin for the Crown
Mr. G Gray for the Defendant

JUDGMENT

1. The Defendant here is charged with one count of rape contrary to section 136 of the Penal Code. The Prosecution case is that the Defendant had unlawful sexual intercourse with the Complainant on 20 November 2013 at Tanageu village in the Isabel Province without her consent.
   
2. The Defendant pleaded not guilty to that charge on arraignment. He exercised the right to remain silent after the close of the Prosecution case. And called no witness in defence.
   
3. There were agreed facts by the Prosecution and the Defence before the trial commenced. They included that the Complainant was 7 years old when the alleged rape was committed. And that it was committed on 20 November 2013 in the afternoon.
   
4. There were also two agreed issues set for the trial. They were framed in question form as follows:
   
   • (1) Whether or not the Defendant had sexual intercourse with the Complainant?
     
   • (2) If the answer to (1) above is in the affirmative, then whether or not the said sexual intercourse was consensual between the parties?
     
5. There were two medical reports admitted for the Prosecution during the trial. The first report was from the Registered Nurse Aide Emiliana Gaseiho marked Exhibit P2. Two paragraphs of that report state:
   

"Inspection: There are few black spots or scratches on the labia majora, labia minora and the perineum. The abrasions appear to have been caused by friction due to rubbing over the parts mentioned. There is also evidence of swelling on the surrounding labia majora and minora.

Examination: The child complained of pain on the surrounding labia majora and labia minora and surrounding the vaginal opening. The child also complains of pain at the hips when her legs are put apart and especially at the inner thighs. There appears to be no tear in the surrounding hymen but does admit the index finger on vaginal examination".

6. The Medical doctor's report stated that the "Hymen was not intact". The doctor examined the Complainant at Buala Hospital after the Nurse Aide examined the Complainant at Tasina Clinic by pushing her index finger into the vagina of the Complainant. Her finger penetrated for a depth of half an inch. This Medical report is marked "Exhibit P3".
   
7. The Complainant's evidence is that the Defendant met her at sea while he was diving. He asked for sex. He threatened her and she paddled her canoe to the mangrove where he removed her clothes. She said he pushed his finger into her vagina and had sexual intercourse with her. She paddled her own canoe home after the incident with Catherine Kest.
   
8. On 20 November 2013 Catherine Kest paddled her canoe through a passage along the mangrove. She came upon the Defendant with the Complainant at the side of passage in the mangrove. She came within approximately 7 meters of them. She saw the Defendant stood with one leg at the side mangrove. He carried the Complainant on the thigh of his other leg. The Complainant was naked at the time. He moved his buttock forward and backward at the vaginal area of the Complainant. He left the Complainant down and jumped into the sea when he became aware that Catherine Kest was watching them. Catherine Kest then told the Complainant to board her canoe and they returned home in their own canoes. When arrived back at Tanageu village, the Complainant went to the water pipe to have a shower and returned to her house. The mother of the Complainant is Nancy Everlyn. Her evidence is that she saw the Complainant at the water pipe crying and looked as though she was sick. She reported the incident to the village Chiefs and later took the Complainant to Tasina Health Clinic first. She later took her to Buala Hospital and Buala Police Station for assistance.
   
9. Rape is a serious offence in this jurisdiction. It is committed by the penetration of the human female vagina by the human male penis without the consent of the female. It seems to this court that the word vagina means the passage between the cervix and hymen. It does not include the external genitals of the female, such as the clitoris, the labia majora, the labia minora and the orifice. In R v Attorney General (1997) 129 ACTR I Higgins J followed Holland[1]. He heard medical evidence and in his ruling he noted (at 2): "From an anatomical perspective, the vagina is defined as the passage between the cervix and the hymen. The area from the external genitalia to the Hymen is called the introitus".
   
10. The court will now consider the issues for determination posed in paragraph 4 above. "Sexual intercourse" is not defined in the present penal code. But it seems to this court that it means, the act of a male putting his penis inside the female vagina. But for rape to be proved, the penis of the male must penetrate the vagina of the female. It is not necessary to prove the completion of intercourse by the emission of seed, but the intercourse is deemed complete upon proof of penetration only.
    
11. In this case, the Nurse Aide examined the hymen of the complainant. The hymen is the fold of mucous membrane that partly covers the entrance to the vagina and which is usually raptured when sexual intercourse takes place for the first time. The Nurse Aide who first examined the Complainant at Tasena Clinic said, "there appears to be no tear in the surrounding hymen". She then pushed her index finger through the vagina of the Complainant which penetrated in for about half an inch. She said she did not have the medical equipment to examine the inner part of the vagina for injuries. It appears to this court, that the instrument which the Nurse Aide was referring to is the instrument known as the speculum.
    
12. After the examination by the Nurse Aide, the Complainant was then examined by a doctor at Buala Hospital. The Doctor's report stated that the hymen was not intact. That means that the hymen had been damaged. The questioned then is what caused that rapture? The doctor failed to offer any explanation. It may well be done by the Nurse Aide who pushed her index finger into the vagina of the Complainant at Tasina Clinic. She did that was because there was no speculum at the clinic.
    
13. There is therefore doubt by this court that the Defendant raped the Complainant. The injuries sustained by the Complainant were on the Labia majora, Labia minora and the perineum. These parts of the female are situated outside the vagina. The Nurse Aide described the injuries as abrasions. In summary, abrasions are blunt impact injuries[2]. She described them as black spots. They may be blood stains owing to coagulation.
    
14. There is no evidence proving that the Defendant penetrated the vagina of the Complainant with his penis. There is merely evidence of attempted rape. He is accordingly acquitted of the rape charge. The Defendant is accordingly convicted of attempted rape under section 138 of the penal code pursuant to section 160 of the Criminal Procedure Code (Cap.7). Order accordingly.
    

THE COURT

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^[1] 117 ALR 193
^[2] I see Homolid – Nash. Jaisimaha Rao