Regina v Saru [2016] SBHC 222; HCSI-CRC 40 of 2015 (3 August 2016)

REGINA

-V-

Davis Saru

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 40 of 2015

HEARING: 4-6, 8, 14 July 2016

Judgement: 3 August 2016

For the Crown: R. B. Talasasa (Jnr.) (DPP) and J. Anisi (Jnr.)
For Defence: H. Kausimae and J. Namo (Ms.)

Palmer CJ.

1. The defendant in this case is charged with two offences, rape contrary to section 136 and 137 of the Penal Code and grievous harm contrary to section 226 of the Penal Code. Both relate to the same incident which was alleged to have occurred on the night of the 1^st October 2015 at a spot close to the Honiara City Council Enforcement Officer’s building.
   
2. A total of four (4) witnesses, the victim herself and three Honiara City Council Enforcement Officers, who attended the scene that night, were called to give evidence. As well six exhibits have been tendered in court, including the record of interview of the defendant dated 3^rd October 2014, the medical report by Dr. Augustin Gasivaka Melly who carried out the medical examination, a psychiatric report by Dr. Paul Orotaloa dated 7 October 2014 and the agreed statement of facts filed 12 April 2016.
   
3. At the close of prosecution case, Counsel for the defendant, Mr. Kausimae made a submission of no case to answer.
   

Submission of no case to answer.

4. In a submission of no case to answer, section 269(1) of the Criminal Procedure Code provides that:
   

“When the evidence of the witnesses for the prosecution has been concluded, ..., the court if it considers that there is no evidence that the accused or any one of several accused committed the offence, shall, after hearing, if necessary, any arguments which the public prosecutor or advocate for the prosecution or the defence may desire to submit, record a finding of not guilty.” (emphasis added).

5. The power of the High Court to consider a submission of no case to answer had been considered by the Court of Appeal in the cases of Bosamate v. Reginam^[1], R. v. Tome^[2] and R. v. Somae^[3]. In R. v. Somae^[4], the Court of Appeal made reference to the test in Doney v. The Queen^[5] and stated the test as follows:
   

“It is important to note that the evidence that is to be considered for the purposes of a no case submission must be capable of proof beyond reasonable doubt of the accused’s guilt. It is not enough if it is merely capable of proving the possibility of guilt. It must be capable, if accepted, of proving guilt beyond reasonable doubt. As the High Court of Australia said in Doney, ‘To put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.’ It follows that it must be such as to permit proof of guilt without inappropriate speculation. Whether it is right to take the evidence at its highest or most favourable to the Crown is, of course, ultimately a matter for the tribunal of fact. But, in order to establish a case to answer, there must be some evidence capable of establishing, whether directly or inferentially, every element of the offence charged beyond reasonable doubt.”

The accepted test in Solomon Islands now is the same test adopted in the Australian Courts, as set out in Bosamate v. Reginam^[6] by the Court of Appeal that “a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will sustain a verdict of not guilty.”

Rape charge- issue of whether sexual intercourse took place and issue of consent.

6. There are two crucial issues that the Crown is obliged to prove to the requisite standard, that sexual intercourse did take place and that it was done without consent.
   
7. This raises the first issue of whether there is credible evidence that sexual intercourse did take place. On this particular issue I am satisfied based on the evidence of the two Honiara City Council Enforcement Officers, Jimmy Bea and Necksly Wailumu that they actually witnessed the defendant having sex with the victim. This is to be contrasted to the evidence of the victim in which she denied that sexual intercourse had taken place. I am satisfied in spite of her denial that there is credible evidence that sexual intercourse did take place.
   
8. I come to this conclusion based on my observations of the mental capacity of the victim when giving her evidence in court. It is my view that her mind has been so affected by her mental condition that I am unable to accept and believe her account that there was no sexual intercourse at that time in the light of the clear, objective, impartial and more reliable evidence of the other prosecution witnesses who witnessed what happened that night.
   

Issue of consent.

9. The issue of consent is the crucial issue in this case whether it has been shown there is sufficient credible evidence that sexual intercourse was without consent.
   
10. Having listened to the evidence adduced in court particularly that of the victim, noting her medical examination report and the Psychiatrist’s report, and balancing these with the evidence of the Honiara City Council Enforcement Officers, I am unable to find that there is sufficient credible evidence to support the allegation that sexual intercourse was done without consent.
    
11. The difficulty in coming to such conclusion has not been made any easier by the fact that the victim suffers from what has been described by the Psychiatrist as “chronic psychological condition”, which it would seem can cause hallucinatory experiences, pressured speech, circumstantiality and over-familiarity. The report noted that someone in such a position can suffer memory loss, develop a tendency to delve into unnecessary details, such as talking about minute details which may not be necessary before coming back to the core story. As well her memory functions could be affected.
    
12. I note it was quite obvious in court when she was giving evidence that at times her evidence was incoherent, with a tendency to focus on unnecessary details and not answering questions put to her directly. It was obvious that her understanding, memory and capacity to recall events in a clear, concise, structured and orderly manner were affected by her condition and that it was quite difficult to determine whether what took place was without consent or not. In parts of her evidence she described or referred to the defendant as a very good friend and that there was no sexual connection and interest between them. She denied that they had had sexual intercourse that night although he tried that night. The evidence of the Security Enforcement Officers from the Honiara City Council however, contradicted her evidence, that sexual intercourse did take place between the two of them.
    
13. I do bear in mind that in such circumstances it is important that there is corroborating evidence from other witnesses of the allegations but the most that can be deduced from the evidence of the City Council Enforcement Officers is that of seeing them having sexual intercourse and accosting them. I find it difficult to infer anything further from their evidence and observations of what they saw. It is possible the sexual intercourse may have been without her consent in that she may not have had the mental capacity to withstand the defendant’s approaches and actions that night but there is simply insufficient credible evidence to support that allegation and which would warrant this court requiring the defendant to be put to his defence.
    
14. I am not satisfied that their evidence is sufficient to support the assertion by prosecution that what took place was without consent.
    
15. As to the statement of the defendant obtained under caution, I am not satisfied that much can be inferred against the defendant although he denies that sexual intercourse took place. While my finding contradicts his statement it does not necessarily follow that what happened was done without her consent.
    
16. I remind myself that the onus lies with prosecution to provide evidence that meets the standard of proof required. After carefully analysing and considering all the evidence adduced before me, I am simply not satisfied there is sufficient evidence that meets that basic requirement and which would require the Court to put the defendant to his defence on this charge of rape. He should be acquitted therewith of that charge.
    

Charge of grievous harm.

17. Section 226 of the Penal Code defines this offence as:
    

“Any person who unlawfully does grievous harm to another is guilty of a felony, and shall be liable to imprisonment for fourteen years.”

18. Grievous harm in turn is defined in the definition section, (section 3) as:
    

“means any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense;”

19. There are two crucial elements, which prosecution is required to prove. First, that of an unlawful action and secondly, that it caused grievous harm to the victim.
    
20. In terms of the evidence adduced by prosecution, this came solely from the victim herself. Her evidence on this issue is quite clear and virtually un-contradicted, that is, the injury was incurred when sexual intercourse occurred. She told the court that her knife was in her bag which she carried at her back and that she got injured during sexual intercourse. She even mentioned in court that the defendant would not have known that the knife was in her bag.
    
21. Again the onus lies with prosecution to show that the injury was caused by an unlawful action of the defendant. Having found that there is insufficient evidence that sexual intercourse was done without consent, I find that there is simply no evidence available to link this defendant to any unlawful action which may have been liable for the injury incurred by the victim and accordingly I am satisfied the defendant must also be acquitted of this charge.
    

ORDERS OF THE COURT:

(i) Allow submission of no case to answer in respect of both charges.

(ii) Direct an acquittal in respect of the defendant herewith.

(iii) He is entitled to be released at the rising of the Court.

The Court.

---

^[1] [2013] SBCA 16
^[2] [2004] SBCA 13
^[3][2005] SBCA 18
^[4] [2005] SBCA 18
^[5] [1990] HCA 51
^[6] [2013] SBCA 16, p. 6, para. [20]