Regina v Sapi [2016] SBHC 220; HCSI-CRC 69 of 2009 (17 May 2016)

REGINA

-V-

John Sapi and David Koti

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 69 of 2009

HEARING: 12 – 14 May 2015, 2 July, 15 July 2015, 9 December 2015

Judgement: 17 May 2016

For the Crown: Mrs. M. Suifa’asia
For Defence: Mr. W. Ghemu for John S. Sapi

Mr. C. Rarumae for D. Koti.

Palmer CJ.

1. The defendants are charged with one count of rape contrary to section 136 of the Penal Code, that on the 22^nd day of August 2008 at Galailau Community School, Central Islands Province John Selwyn Sapi did have unlawful sexual intercourse with the victim, aided and abetted by David Koti of Hagalu Village, Central Islands Province.
   
2. The defendants entered not guilty pleas and a trial was held.
   

The case for prosecution.

3. Prosecution alleges that on the night of the 22^nd August 2008, at Galailau Community School, during a funny night show put on for entertainment by the school, the victim was accosted while urinating on a nearby road by three boys including the two defendants and then sexually assaulted without her consent. It was alleged John Sapi (“Sapi”) raped the victim while the second defendant David Koti (“Koti”) assisted him. After completing the rape Koti sought to rape her but the victim resisted and managed to escape and ran away back to her house.
   

Case for the defence.

4. The defence say that sexual intercourse between Sapi and the victim was consensual, by agreement. Sapi does not deny having sexual intercourse with the victim, but that it was consensual; he denies that it was rape.
   
5. Koti on the other hand denied being present at the scene and that he did not participate in any way in abducting the victim or attempting to rape her.
   

Issue for determination.

6. The issue for determination in this case is primarily one of fact. It depends ultimately on whose version of events the court accepts, for two different versions of the events were presented before this court. It is clear someone has lied to this court about the events that transpired that night. As the final arbiter of the facts it is pertinent to be reminded that the burden of proof lies with the prosecution to prove its case beyond reasonable doubt.
   

Findings of the Court.

7. Prosecution called a total of seven witnesses, made available one witness and tendered four documents as exhibits.
   
8. I have had the opportunity to carefully consider the evidence adduced by prosecution, tested as usual in cross examination and re-examination, contrasted with the sworn statements of the defendants, and come to the following conclusions.
   
9. I find on the evidence before me that the real reason for the victim to go out from where she was sitting under the local ‘apple tree’ that night of the 22^nd August 2008, was to go to the sea side to relieve herself and not by any pre-arrangement to meet up with Sapi. On her way she felt the urge to urinate and so walked across to a ‘short-cut road’ to urinate. It was there she was accosted, dragged away and raped.
   
10. Her evidence on the reason for going to the seaside has been supported by PW2, she was with the victim when she asked her to accompany her to the seaside but declined as she was more interested to watch the entertainment than accompanying the victim. Her evidence has been virtually unchallenged.
    
11. The victim’s version of urinating at the short-cut road has also been confirmed in the recorded statement of of Koti made to police dated 25^th August 2008. He states that Kukuha returned and told him that he saw the girl urinating beside the short-cut road (see Question 38 and Answer 38). In his (Koti) evidence in court he agreed that Kukuha returned to them and told them that he had seen the girl urinating. While Kukuha denies this in his evidence in court, it is pertinent to note that he (Kukuha) has motive/reason to lie as he is also directly implicated by the victim in her evidence as one of three persons who were involved in accosting her and dragging her away to be raped by Sapi, although it appears Kukuha left after helping to carry her. I will say more on his evidence later. This inconsistency in their evidence does not assist the defence case when compared to the case of the Crown.
    
12. I find on the evidence before me the version of the victim of being raped as more credible and believable, has the ring of truth, consistent and the accounts of what happened supported by the evidence of other witnesses, including that of the two defendants. She maintained her version throughout of the absence of any plan or agreement with Sapi to meet him at that spot where she had gone to urinate. I accept her evidence that she went to that spot to urinate and not to meet Sapi.
    
13. Her version of events is supported by observations of bruises on her body that the Deputy Principal of the School, (“PW4”) noted when he spoke with the victim on the next day. He noted bruises on the exposed part of her arms and legs. He told the court of the demeanour of the victim when he spoke with her, that she was crying and told him she had been raped by Sapi and that Koti assisted him. I am satisfied his observations of bruises on her body, which is undisputed, consistent with the evidence of the victim of a struggle and that when she ran away from them on her way back home she fell about three times. If as alleged by Sapi it was pre-arranged and consensual there would not have been any particular reason for the victim to run away and as a result incur bruises on her body. She told the court after pushing the second defendant Koti away, she ran away with all her might back to her house. This evidence has been undisputed.
    
14. If as alleged by Koti in his evidence that she ran off when he shone his torch at her, there would not have been any real cause for her to flee in such a frightened manner. There is a big difference in fleeing for one’s life and just running away casually. Her undisputed evidence is that she had to flee from them.
    
15. Secondly, I note from her evidence and that of Elvis Kekerina (“PW3”) and Mishack Tupita (“PW6”) that they observed (heard) her crying loudly when she got back to their house. I find this to be inconsistent with any suggestion of consensual sexual intercourse. Why would the victim cry so loudly as soon as she got back home and appeared to be in so much distress? Common sense and logic must prevail and be applied in such peculiar situation that something drastic must have happened to elicit such behaviour from the victim unless some clear reasonable and logical explanation can be provided. None has been provided although it was suggested she cried out of fear or shame if found out that she had sex with Sapi that she would be fined. I do not accept this submission, her unusually loud crying I find to be inconsistent with such suggestion and of consensual sexual intercourse. To the contrary, I find her reactions more consistent with her version of having been forcefully sexually violated. I am not satisfied it was all made up, or put on for a show, the witness PW2 confirmed as well that when she returned later that night to the house the victim still crying.
    
16. As well when asked why she was upset she told PW3 that same night that she had been chased by two boys, Koti and Sapi. Again while she may have mixed the names up, when contrasted to her recorded statement to police in which she named Kukuha and Koti, her explanation is consistent with having to escape and run away from a violent and traumatic scene as opposed to the suggestion of merely going away from having had consensual sexual intercourse. The contrast in her behaviour in my considered view is too drastic and unusual to be ignored and brushed aside as merely arising out of a sense of fear or shame of being found out and of being reported and possibly fined. I believe and accept her version that she was escaping from a nasty encounter and was too traumatic for her emotions and will to suppress or control, that was why she was crying out loudly that night.
    
17. It has been suggested that she did not complain of rape until the next day, which is not denied, but she also sought to explain that she could not discuss it with her brother that night because it was forbidden in her custom to discuss such matters with a brother relative. This was why she could not tell PW3 that night until the next morning. I accept her explanation as being reasonable, that such customary practice exists in her community or tribal grouping and that it has not been challenged.
    
18. Again I find her reporting of the incident almost immediately, with minimum delay to be consistent with her version of a rape than suggestion of consensual sexual intercourse. If it was consensual there would have been no reason for her to behave in such an abnormal and irregular manner and there would have been no reason to allege rape.
    
19. I find the evidence of PW2 supports the evidence of the victim in terms of her observation that when she got back the victim was crying loudly at their house. I find such observation to be consistent with that of others who observed the demeanour of the victim that evening as being very upset and traumatised.
    
20. The evidence of the Doctor who made the medical report is also consistent with her version of being sexually violated. In his report the Doctor, PW7 made the following observations:
    

“...dried clotted blood noted around the perineum and the medial thigh and more clotted blood noted on the introitus (vaginal opening). There is no obvious tear ..., but there is continuous bleeding or oozing of blood on the external os, and it is very tender on contact with a gauze.

Note: the cervix is very friable and is prone to injury during hard sex, so the finding of continuous oozing of blood on the external os is a sign of injury. This patient still requires further follow-up examination and follow-up blood investigation 6 months from the time of rape.”

21. Note the medical examination was done on the 24^th August 2008, about two days after the alleged rape. In his evidence in court the Doctor told the court that according to what the victim told her she experienced heavy bleeding straight after the alleged rape encounter. He noted that by the time he saw her it was still bleeding albeit not heavily and that it was still very painful for the victim.
    
22. His evidence has been unchallenged and supports the victim’s version of having been raped rather than any suggestion of consensual sexual intercourse; the injury sustained was more consistent with forced sexual encounter than otherwise.
    
23. As well, in contrast I find the evidence of the defendants in their defence to be inconsistent and contradictory.
    
24. Sapi states that he had told the victim to wait for him at an agreed place, supposedly where she was seen at the ‘short-cut road’. In examination in chief he says he did not know where the two boys had gone when he met up with the victim before walking off and having consensual sexual intercourse. During cross examination however, he admits that when he got there, he met up with Kukuha and Koti. When it was put to him about what he said in his recorded statement to the police at Question 30 and his answer to Question 30 were different, he agreed with it.
    

“Q30. What moa hem happen?

A.30. Kukuha hem askem mitufala Koti that who nao bae hem askem girl (Mary) for her. Then mi say for mi.”

25. The inconsistency that arises in this instance is why Sapi had to ask Kukuha to ask the victim for him if he had already made an agreement with her to meet her at that spot. That is unusual and inconsistent with his version. All he needed to do was to tell them about their agreement or plan to meet together there; he did not and that contradicted his version of any pre-arranged plan to meet.
    
26. This inconsistency is accentuated when the next question and answer are noted:
    

“Q31. Then what?

A31. Kukuha go and askem Mary for mi but mi herem go girl ia hem say “mi less” bae mi reportim iu

fala”.

27. The answer adduced in that statement supports the evidence of the victim which she told the court before being abducted and contradicts Sapi’s account of a supposed agreement to meet.
    
28. As well it is pertinent to note the inconsistencies in the evidence of Koti. In court he said he was with Kukuha that night and were going to the seaside for a smoke when they met up with Sapi and Sageli. He told the court that as they walked towards the boy’s dormitory, Kukuha shone his torch and saw the victim walking towards the ‘short-cut road’. At about the same time Sapi and Sageli were coming towards them. He told the court that Kukuha then suggested that they should all have sex with her. Kukuha then walked towards where the victim was and returned and told them he had seen her urinating. Kukuha then offered to ask the girl for them and Sapi responded and told him to ask her for him.
    
29. Again it is pertinent to note that his evidence is consistent with the victim’s account that she had gone there to urinate but inconsistent with any suggestion that Sapi may have had a previous agreement to meet there with the girl. In cross examination when his statement on this was put to him, he conceded that when Kukuha went to talk to the victim she had responded angrily at him, supporting her account.
    
30. I will turn to Kukuha’s evidence. In his evidence in chief he told the court he saw the girl run past them (Koti and him) when they were standing outside the boy’s dormitory. He told the court they did not know who it was and so shone his torch at the figure and noticed it was the victim. He told the court Sapi then came up with the idea to follow the girl. He also said something about Sapi forcing them to do something but that he disagreed with it. He was not asked what it was that Sapi was forcing or asking them to do. He told the court he then went to the seaside for a smoke. He said he did not know if the two (Koti and Sapi) followed her or not.
    
31. What is relevant to be noted in his account of what happened thereafter is that it is different to what Koti says happened. In his account he told the court that when he left them he went down to the beach for a smoke. Koti then followed him about fifteen minutes later and not long after that the girl’s brother, PW3 arrived, asked for Koti and Sapi and then assaulted Koti.
    
32. Koti on the other hand says that he returned to the boy’s dorm and met with Sageli who told him to go and check for Sapi. When he returned he saw them (Sapi and victim) and shone a torch at them, the victim then ran off. His version however changed to say that he looked for Kukuha and followed him to the beach. It was on their way back that he saw Sapi with the victim. He told the court he was walking in front and Kukuha was behind him. The victim then fled when he shone his torch at her.
    
33. He then returned to the dorm where the victim’s brother, PW3 met him and assaulted him.
    

Decision

34. The crucial issue is whether it has been established beyond reasonable doubt that Koti, Kukuha and Sapi abducted the victim before she was raped by Sapi or whether the victim and Sapi had pre-arranged to meet together and then went off together to have sexual intercourse.
    
35. In the case of Sapi I am more than satisfied there is clear evidence that he was the one who raped the victim. Apart from being adequately identified by the victim as one of the three who abducted her and helped to carry her before raping her, Sapi does not deny that he had sex with the victim. What he denies is that it was rape. I do not believe his account of a pre-arranged meeting. I am satisfied prosecution have established beyond reasonable doubt that he was one of the three persons who abducted the victim and that he raped the victim that night. He should be convicted herewith of the offence of rape.
    
36. In the case of Koti however, I am unable to be satisfied that he has been adequately identified by the victim. The only identification of Koti in the account of the victim was in terms of his voice that she heard. In re-examination she told the court that she heard his name being called that night but she did not say when she heard that. Neither in her evidence in chief or cross examination did she state that she heard Koti’s name being mentioned, other than Sapi and Kukuha.
    
37. While she did mention there were three persons involved, apart from Sapi and Kukuha she did not mention Koti’s name until during re-examination. I note she may have been confused about the two persons who held her mouth and the one who held her belly and hands. At one point the person who appeared to be holding her mouth was identified as Sapi but then when the rape actually occurred, she identified the person who was holding her belly and hands as the one who raped her.
    
38. Apart as well from her allegation that it was Koti and Sapi who remained and that it was Koti who she struggled with and escaped from after Sapi had raped her, I am not satisfied he had been adequately identified. While it is quite probable and likely that it was Koti who was assisting Sapi to carry out the rape that night and that he was the one that she escaped from, I am not satisfied Crown had discharged the onus of proof beyond reasonable doubt and accordingly the benefit of the doubt in this instance must go in his favour and he is acquitted.
    
39. Now in terms of Kukuha, he was clearly identified by the victim not only when his name was called out that night but she also confirmed identifying him as the person with the torch and the one who held and carried her by her legs. She told the court that he was the one who approached her, shone the torch on her face when she was urinating, spoke to her and told her that one of the boys liked her. This has not been disputed and confirmed by the evidence of Koti as well. She also told the court that she was also able to identify him clearly when he put the torch down at one stage and she was able to recognise him as Kukuha from the light or reflection from the torch. I note that Kukuha has not been charged together with these two defendants but the evidence of his involvement is clear and the Director of Public Prosecutions may consider charging him for the offence of rape as an aider and abettor as well.
    

ORDERS OF THE COURT:

(i) Find the defendant John Sapi guilty of the rape of the victim in this case and order that he be convicted of that offence herewith.

(ii) Find the defendant David Koti not guilty of the offence of rape and order that he be acquitted herewith.

The Court.