Regina v Tebaia [2016] SBHC 110; HCSI-CRC 169 of 2014 (29 June 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Jurisdiction

CRC No. 169 of 2014

Regina v. Mose Mote Tebaia

Dates of Hearing: 2^nd - 14th March 2016, 20^th June 2016
Date of Judgment: 29^th June 2016

Mr. Talasasa R : For the Crown

MR. Gray G: for the Accused

JUDGMENT

Kouhota PJ:

Introduction

The accused Moses Mote Tebaia was charged with 3 offences namely;

1. Rape contrary to section 136 of the Penal Code,
2. Indecent Assault contrary to section 141 of the Penal Code and;
3. Assault Causing Actual Bodily Harm contrary to section 245 of the Penal Code.

The Prosecution alleged that the accused committed the offences on the complainant on the 26^th December 2013.

At the outset, it is desirable that I set out the definition of rape. Rape is defined in section 136 of the Penal Code as ‘a person having unlawful sexual intercourse with a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or in a case of a married woman, by personating her husband’.

Evidence /Facts

The evidence of the complainant (PW1) Miss Carol Eden Tebaia was that, on the evening of 25^th December 2013, her friends picked her up at 5 pm. Sometimes after 6 pm they went to drink alcohol at the White River playing field. Sometimes after midnight they ran out of drinks so they walked to the White River second bus stop (commonly known as 02 Bus Stop) in search for more drinks. In the vicinity of 02 Bus Stop, the complainant and her friends met the accused, Mr Moses Mote Tebaia. The accused is the complainant’s uncle. He is a younger brother of her late father. According to PW1’s evidence when she saw the accused, she informed her friends that he is her uncle and went to him and greeted him saying “happy Christmas” but the accused instead was angry and hit her on the right eye and asked what she was doing around there that time of the night. He also said he was ashamed of her been drunk in public. The complainant after been hit by the accused ran away to a different spot and said she thought then that the accused had left.

However, after a while the accused returned. Her friends saw him and said to her, he is back. Complainant said when she turned back the accused was right behind her with a knife. She said she tried to tell her friends to help her but they were afraid. Accused in his evidence under oath admitted taking a knife with him but said he hid it under his shirt. Complainant said to avoid getting her friends into trouble she decided to go with the accused to his house. On the way she wanted to run or walked faster but the accused held onto her tight. When they reached the accused house, the accused led her into his room. She went and sat on the accused bed but then told the accused she wanted to go to her aunt Asenta’s house but the accused refused her request and told her to stay with him. She said she wanted to go out but the accused was fierce and did not allow her to leave. She looked down at the knife and was scared.

The accused then asked her about her boyfriend and she told him that they are having little problem. She then tried to take his mind off that topic by telling him that he looked like her father. She then said it was hot so the accused went and turned the fan towards her and then she said he was right in front of her.

The complainant told the Court that she thought that the only way for her to escape was to give him what he wanted so they have sex. When asked by the Prosecutor what she meant by having sex; she replied “by sucking nipples, vagina and pushing penis into vagina”, that kind of sex. Complainant said she wanted to go out but she feared him so she just sleeps it off until morning. She said she acted as if she was cool with it because she said that was the only way she could go out. Then in the morning she ran off towards White River School because she saw her boyfriend by the name of Junior ahead. She reported to Junior that she had sex with the accused because she was scared, then to White River Police and her mother.

That is as far the Prosecution evidence regarding the allegation of rape is concern. The evidence of the Prosecution witnesses as to what happened before the alleged rape were consistent apart from few inconsistencies which include Carol Eden’s evidence about the type of alcohol they were drinking that night which Carol said was SB beer but two other Prosecution witnesses PW3 Rosa Chottu and PW5 Walton Suamana said was Kwaso.

Assessment of evidence and decision

The Prosecution witnesses’ evidence about the assault on the complainant were consistent and corroborates each other. The accused in his evidence under oath also admitted assaulting the complainant. On the evidence before the Court, I am satisfied beyond reasonable doubt that the accused assaulted the complainant causing her actual bodily harm, I find him guilty and convict him as charged.

With regard to the charge of rape, the accused did not deny having sexual intercourse with the complainant but gave a different version of the event and stated that it was the complainant that initiated the sexual intercourse. In his evidence under oath, the accused said when they arrived at the house, they went into his room and the complainant went and sat on his bed. He told her to rest and then she will go back in the morning. Complainant did not reply or say anything. He took a doll and threw it on a mat on the floor where he intends to sleep and use the doll as a pillow. He saw the complainant took off her clothes; he said when he saw this he did not think of anything, but he did asked her if she was hot, then went and turn on the fun and faced it towards her.

He then went back to where he put the doll. It was then that he said the complainant held his balls (testicles). He asked her what she was doing but she pulled him to lay down with her and told him to have sex with her. He said the complainant Carol tried to remove his trousers so he took it off for her. Carol then held his penis, sit on top of him, and had sex with him. He said he did not ejaculate. After this she lie at the corner of the bed beside the wall and slept while he went down and slept on the floor. When he woke up in the morning he did not see Carol on the bed so when his brother, Iotepa, came to ask for Carol, he said she was not with him.

I had view the photographs of the room tendered as evidence and noted that the distance from the bed on which the complainant went to sleep and the mat on the floor where the accused said he slept were some distance apart hence it is not possible for the complaint to hold his testicles or penis in the manner described by the accused. I reject his evidence on this on this and the sexual intercourse.

Most of the matters contained in the accused version of sexual intercourse were never put to the complainant in cross-examination for reasons only known to the accused and may be his counsel. As a matter of practice, the omission goes against the Rule in Brown v Dunn (1893) 6 R.67 H.L. The claim that it was the complainant who initiated the sexual intercourse by holding the accused ball (testicles) and asking him to have sex with her and that she climbed on top of him and have sex with him are crucial matters relevant to the charge against the accused and if he is going to raise them in his defence as he did, they should be put to the complainant in cross-examination so that she has the opportunity to respond to them.

In Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at p16, Hunt J observed “It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner’s intention to rely upon such matter, it is necessary to put to an opponent’s witness in cross-examination the nature of the case which it is proposed to rely in contradiction of his evidence, particularly where the case relied upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the interference to be drawn from it, and allow the other party the inferences sought to be drawn.

Lord Herschell originally explained this in Brown v Dunn (1893) 6. R.H.L. by stating: “ I cannot help saying that it seem to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross examination showing that that imputation is intended to be made and not his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him the opportunity of making any explanation which is open to him, and as it seems to me that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.”

It was submitted on behalf of the accused that there was no evidence that the accused made any sexual advances to complainant or asked her for sex on their way to the house or when they were alone in the room and that no evidence was adduced by the complainant that the accused had sexual intercourse with her by force or that he uttered any threatening words to the effect, such as if she did not have sex him he will harm her. In fact the Defence submitted the evidence of the complainant herself showed that it was she herself who thought that the accused wanted sex so she gave him what he wanted, she even removed her cloths herself.

Unfortunately, these important matters were never put to the complainant in cross- examination; I do not believe this was an oversight by accused or his counsel. Rather I believe why the matters were never put to the complainant in cross-examination was that the accused was not telling the truth but he made up this story merely trying to save himself and escape the charge against him.

I had the opportunity of observing the witnesses in the witness box and there is nothing to make me doubt the complainant’s evidence. She has been under immense pressure of having to give evidence of a sexual intercourse with a close relative and was emotional but I believe she is a truthful witness and her evidence about the sexual intercourse.

It may be true that the accused may not use force or threat to have sex with the complainant but there is clearly evidence of intimidation and fear of bodily harm which led the complainant to willingly have sex with the accused. The accused is an older person than the complainant; he was angry with the victim and had earlier assaulted her. He led her to his house and into his room while she was under some form of apprehension because all along the complainant was aware that he had a bush knife with him.

The complainant saw him when he put the bush knife beside the box near the door when they entered the room. She was looking at it when she was sitting on the bed. Having considered all the evidence and the circumstances surrounding the event of sexual intercourse, I am satisfied that the Prosecution has proved elements of rape beyond reasonable doubt. Even if the complainant consented to have sex with the accused, I am satisfied beyond reasonable that her consent was obtained by intimidation and fear of bodily harm that amounts to rape. I find the accused guilty as charge and convict him accordingly.

With regard to the charge of Indecent Assault contrary to section 141 of the Penal Code, there was evidence that the accused licked the complainant’s vagina and sucked her breasts. Again the accused did these acts by intimidation and at a time the complainant was under fear of bodily harm hence her consent was vitiated by the fear of bodily harm and the intimidation. I am satisfied the Prosecution has proved the elements of the charge beyond reasonable doubt. I find the accused guilty and convicted him as charged.

IRA

THE COURT

Emmanuel Kouhota

Puisne Judge