Regina v Meoblir [2016] SBHC 111; HCSI-CRC 410 of 2015 (14 July 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Jurisdiction

CRC No. 410 of 2015

Regina v. Michael Meoblir

Dates of Hearing: 12th - 13th July 2016
Date of Judgment: 14^th July 2016

Mr. Suifasia M with Rizzu E: For the crown

Mr. Holara M for the accused

JUDGMENT

Kouhota PJ:

Introduction

The accused Michael Meoblir was charged with 1 count of rape contrary to section 136 of the Penal Code.

The Prosecution alleged that the accused committed the offence on the complainant, Ms Emily Sala, on the 25^th July 2009 at Meloli plantation.

Rape is defined in section 136 of the Penal Code as ‘any 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’.

At the outset, I remind myself that the onus is on the Prosecution to prove the accused guilt by proving all the element of the offence beyond reasonable doubt, that the accused does not have to prove anything and that any reasonable doubt must go in favour of the accused.

The Evidence

The evidence of the complainant (PW1) Emily Sala was that on the morning of Saturday 25^th July 2009, she left Venga village between 7 am and 8 am to her garden purposely to dig kumara. As she was walking to her garden, the accused, Michael Meoblir, grabbed her from the back and pulled her to Meloli plantation, laid her down and had sexual intercourse with her. She struggled but the accused quickly removed her cloths, undressed himself and pushed his erected penis into her vagina. The accused then had sexual intercourse with her. She said during that time she felt pain in her back. The sexual intercourse lasted about three minutes and while having sex with her, the accused said to her “today hem time blo umi tufala for fake naoia”. Complainant said she struggled and stops the sexual intercourse continuing because she did not want to have sex. Throughout the sexual intercourse she said nothing to the accused nor did she shouted or called for help but only said she struggled but went no further to describe how she struggled, such as, she was pushing the accused away, hitting him or kicking him, shutting her legs or any similar resistance. She also did not give any evidence that the accused threatened her physically or used threatening words to her before or during the sexual intercourse. She only told the Court the accused said during sexual intercourse that “tude hem day blo umiutufala for fake nao ia”. After sexual intercourse, accused put on his cloths and went back to the village but before he left he told the complainant that he will come back to her at the garden.

After the sexual intercourse, complainant went to her garden. On her way to the garden she felt no pain and did not notice any bleeding or blood on her body or cloths. Complainant said her garden was 2 kilometres from Meloli planation where the accused had sex with her. She arrived at her garden which was 2 kilometres away and was digging kumara when she noticed the bleeding and try to stop the bleeding by putting a piece of cloth between her legs.

After digging kumara, she put the kumaras in her bag and was returning home when she met two women, Selina Mola and Elizabeth Ivaio. The two women saw blood on her skirt and asked her what happened; she told them that Michael had spoiled her. The statements of these two witnesses were tendered by consent and corroborate the complainant’s evidence but only with regard to the bleeding and the blood on her legs and cloths. The same could be said about the statement of Karen Salome Ikai also tendered as evidence by consent.

The evidence of these three witnesses corroborates the complainant evidence about the bleeding and blood on her skirt but did not assist the prosecution cases regarding the main issue, which is consent.

When the complainant arrived at her house, her father was at home and some other people also came around to her house including Karren Salome Ikai. The accused also came around to the house. Karen helped in fetching water to wash the complainant before she was transported to Lata hospital. She was seen by a nurse and later by Doctor Jackson Rakei.

From the time complainant met the other women on her way back to the village, at her house when she was assisted to wash herself to the time she arrived at Lata hospital, complainant never mentioned that she was raped. Two days after the alleged rape, she gave a statement to the Police on 27^th July 2009, and told police that the accused raped her while she was weeding in her garden at Dalinpao bushland. In her evidence before the court, she changed her story and said she was raped at Meloli plantation some 2 kilometres away. When asked in cross examination to explain why she was telling two different stories she remained mute.

The accused exercised his right and gave a statement from the dock. He did not deny having sexual intercourse with the complainant but gave a different version of the events. He stated that the complainant went past his house in morning of that day on her way to the school. She asked him for betel nut so he gave her betel nut and asked her to have sex with her. Complainant said she will go to the school first then she will come back. Accused asked her where they will meet and she said at Meloli plantation. The accused did not denied sexual intercourse with the complainant. So the crucial question for the Court to determine is whether sexual intercourse was consensual or not and the burden is on the Prosecution to prove that the complainant did not consent to the sexual intercourse with the accused and all the elements of the offence.

Assessment of evidence

I had the opportunity of observing the complainant in the witness box and must say the manner in which she gave her evidence was unimpressive and unconvincing. On a number of occasions during cross examination, she would pause for a long time before answering questions that were put to her and remain muted a times. A case in point is when she was asked by the Defence Counsel to explain why she told police when they record her statement that she was raped in her garden at Dalinpao bushland but changed her story and told the Court that she was raped at Meloli plantation. This behaviour could be expected of a simple village uneducated woman but the complainant is not a simple uneducated village woman. She was a primary schoolteacher when the incident happened and still is.

Parts of the accused statement from the dock were consistent with the evidence of the complainant, eg. that they had sexual intercourse at Meloli plantation, that he said to her that today hem time blo umitufala fake nao ia and that he told the complainant before he returned to the village that he will return later to her at the garden.

The alleged rape took place closer to Venga village than the complainant’s garden. I am satisfied on the evidence of the complainant as corroborated by the accused statement from the dock and believe that the accused told her that he will go back to the village and will come back later to her in the garden. Therefore, if it was true that the accused had raped her she should have returned to the village immediately rather than proceeding on to her garden which was 2 kilometres away knowing that the accused who she said has raped her, said that he will come back to her in the garden and may be did the same to her again.

The complainant failed to explain why she has to go to the garden if she was indeed had been raped by the accused. She gave no reasonable explanation thus her action of going to the garden when a man whom she said had earlier raped her promised that he will return to her in the garden defies logic. She did not report the alleged rape to anyone including her father who was at their house when she arrived from the garden. In rape cases, normally that is what is expected from the victim. Her explanation why she did not report the matter to her father was unconvincing and left the Court with doubt about the truthfulness of her evidence and open to speculations. In assessing the evidence of the complainant, I find it most unconvincing.

The medical evidence of Doctor Rakei was that the laceration to cervix could be caused by anything that penetrates the vagina. He also stated that in consensual sexual intercourse, the vagina may be lubricated and ready for the penis. If not then it will be dry and laceration may occur. Dr. Rakai stated that he could not say how much force is needed to cause the laceration on the cervix but states any continuous pounding on the cervix can traumatise it. He gave an opinion that his finding was that the laceration was consistent with forced sexual intercourse. He also stated that the pain in the complainant’s back was directly related to when the laceration occurred. I accept the doctor’s opinion but he did not state that it is impossible that such injury could occurred during consensual sexual intercourse depending on the size and the length of the male’s penis and the size and length of the woman’s vagina which he said would normally be between 4 to 6 inches. Thus in my view, there is still doubt that the injury to the complainant’s cervix was a result of forced sexual intercourse.
The Prosecution evidence has left reasonable doubt in my mind as to whether the accused had actually raped complainant or whether it was consensual sexual intercourse as stated by the accused. I had considered the submission by Counsel and considered the case authorities cited in support of the submission. However, due to my rejection of the complainant’s evidence as unreliable and unsafe to convict on, it is not necessary for me to rely on any of the authorities.

In any event, I am satisfied that the Prosecution has not proved beyond reasonable doubt that the accused raped the complainant. He is acquitted of the charge against him.

IRA

THE COURT

Emmanuel Kouhota

Puisne Judge