Regina v Tenu [2015] SBHC 77; HCSI-CRC 118 of 2014 (10 September 2015)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua, J)

Criminal Case No. 118 OF 2014

REGINA

V

THOMAS TENU

Date of Judgment: 10 September 2015

Counsel for the Crown: Ms. Sirepu Ngava
Counsel for the Accused: Mr. Stanley Aupai

JUDGMENT

1. Thomas Tenu ("Accused") is charged with two counts of indecent assault contrary to section 141 (1) of the Penal Code and four counts of defilement contrary to section 142 (1) of the Penal Code. He pleaded not guilty to these counts upon arraignment.
   
2. The first count of indecent assault was allegedly committed on an unknown date between 1 and 31 January 2012. And the second count of indecent assault was allegedly committed on an unknown date between 1 and 30 April 2012.
   
3. First count of indecent assault. The victim's evidence is that she and Alice were sitting down on the Veranda of a house when the Accused approached them and grabbed her breast. He then gave her $2.00. The victim denied that she had asked the Accused for the money to buy rubber bands to play game with other children. Alice's evidence is that she and the victim were lying on the floor and not sitting when the Accused approached them and grabbed the breast of the victim.
   
4. Defence counsel submits that the Accused be acquitted of this charge because there was conflict in the evidence of the victim and Alice regarding the posture of the victim at the time the Accused grabbed the breast of the victim. This court will reject Counsel's submission because the issue is whether there was indecent assault on the victim by the Accused. And not whether the victim was sitting or lying down on the floor when the Accused grabbed her breast. The purpose of Alice's evidence is to corroborate the evidence of the victim on the grabbing of the victim's breast. The court will accept the evidence of the victim that the accused grabbed her breast.
   
5. Second count of indecent assault. This incident occurred on an unknown date between 1 and 30 April 2012. The evidence of the victim is that Accused touched her breast when she pressed sego palm leaves for the Accused to nail them to the wall of Rex's Cocoa drier. She said that the Accused would pressed her breast whenever Trevish was not looking at him or went out from them to fetch sego palm leaves. It seemed to this court that this count would be bad for duplicity. That is to say that the charge relate to more than one incident of indecent assault. There is doubt in the mind of the court on the specific act being charged.
   
6. The court will now consider the four defilement charges. The first count of these offences allegedly occurred on an unknown date between 1 and 31 January 2012, in the bush near a kumara garden owned by the victim's family. The victim's evidence is that she, Alice and the Accused went to dig kumara at her parent's garden in the bush. Her parents have a garden house in an old garden about 100 meters away from the kumara garden. The Accused told Alice to go to that house to take a dish for her and the victim to carry their kumara home. When Alice left to collect the dish, the Accused told the victim to go into the bush and he would follow her. She did that and they had sexual intercourse in the bush. The Accused then licked the vagina of the victim and gave her $10.00
   
7. Counsel for the accused pointed to inconsistencies in the evidence of the victim. But none of those inconsistencies are fatal to the evidence of the victim. Such evidence merely refer to the wall of the garden house; the distance from the kumara garden to the garden house; the accused telling Alice not to return to the kumara garden quickly; and that Alice returned to kumara garden before the Accused and the Victim did so. These evidence and others not referred to here are not relevant to the first count of defilement.
   
8. On an unknown date between 1 and 30 April 2012 the Accused asked Victim to go with him to the seaside so that he would pick dry coconuts for him. The Victim suggested that he ask her sister Charisha to accompany him. He opposed that proposal and the victim accompanied him alone. As he was looking for coconuts, he pulled the victim to the seaside, lay her down at the bottom of a tree and had unlawful sexual intercourse with her. He afterwards licked her vagina and pay $9.00 to her. They returned home after the incident.
   
9. The defence submitted that the victim lied about this incident. The reason being that the victim agreed earlier that she bled from her vagina but later said that she did not bleed while the Accused had sexual intercourse with her. I consider that the bleeding is not an element of defilement. The view of this court is that there is evidence that Accused penetrated her vagina with penis. Further, the Accused did not deny that he gave her $9.00 on that occasion.
   
10. On an unknown date between 1 and 30 April 2012 the victim alleged that the Accused had unlawful sexual intercourse with her. On that day the Accused, the victim and Trevish participated in community work. After that they decided to cook their meal. Trevish was selected to collect dry coconuts while the Accused and the Victim were to pick some cabbage from the SDA mission place. There is evidence that Trevish fulfilled her task when she collected dry coconuts, while the Accused and Victim arrived back just before sunset. The victim's evidence is that she wanted to urinate so she went into the bush. When she was about to come out the Accused went and had sexual intercourse with her. The Defence pointed to inconsistencies in her evidence. She later gave a statement to police on 11 June 2012 denying the veracity of her earlier statement to the police. The court does not believe the evidence of the Victim on this count.
    
11. On 10 May 2012, the victim went to the Pastor's house. She was reading books when the Accused entered room and had sexual intercourse with her. The Accused also licked the victim's vagina after he had sexual intercourse with her, and gave her $10.00 The Accused did not deny giving the victim this money. The Pastor came to the house and saw the accused with her daughter. The Accused said he was searching for the Pastor's knife. In fact, the Pastor's knife was with victim's father. The court does not believe the evidence of the Accused on this count.
    
12. I have considered the evidence adduced by the crown to support each of the six charges laid against the Accused. He is acquitted of charge of indecent assault on an unknown date between 1 and 30 April 2012 referred to in paragraph 5 above. That charge is bad for duplicity. He is also acquitted of having unlawful sexual intercourse with the victim on an unknown date between 1 and 30 April 2012 (see paragraph 10 above).
    
13. He however convicted of indecent on the victim on an unknown date in January 2012, and convicted of unlawful sexual intercourse with the victim on an unknown date in January 2012; on an unknown date in April 2012; and on an unknown date in May 2012. The common practice of the Accused was that he paid money to the victim after he committed each of his offences and licked the victim's vagina after having unlawful sexual intercourse with her.
    

THE COURT