Regina v Kazi [2016] SBHC 32; HCSI-CRC 351 of 2014 (17 March 2016)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 351 of 2014

REGINA

V

Job Kazi

Hearing: 15 – 17 March 2016

Judgment (ex tempore): 17 March 2016

For the Crown: R. Olutimayin (Ms.) and Mr. I. Kekou
For Defence: S. Karani (Mrs.)

Palmer CJ.

1. The defendant, Job Kazi is charged with six counts of rape contrary to section 136 of the Penal Code, that on six separate occasions from the 3rd – 8th February 2014 respectively, did rape Christina Masi at Gizo. He pleaded not guilty to all charges and a trial was convened at Gizo from the 15 – 17 March 2016.
   
2. The prosecution called a total of 11 witnesses including the complainant, who was called last. She was the main witness of the allegations of rape.
   
3. A number of witnesses were also called including the mother of the victim. They gave evidence of encounters they had with both the victim and the defendant and described observations they had inter alia of what they saw and what was said to them by the victim and the defendant.
   
4. At close of prosecution case, Mrs. Karani of counsel for the defendant made submission of no case to answer pursuant to 269(1) of the Criminal Procedure Code, that there is no evidence or insufficient evidence, to put the defendant to his defence. If on the other hand the court finds that there is evidence against the defendant then he shall be called upon to enter into his defence [section 269(2) of the Criminal Procedure Code].
   
5. The standard of proof in such cases is proof beyond reasonable doubt and the onus lies with prosecution to establish this from the outset.
   
6. The gist of the prosecution case is that the complainant was forced, to be more exact, pulled by the defendant to accompany him on those occasions, more specifically the 6th and 7th February 2014, to a leaf hut and then to a house, or building at the JFK Stadium[1] where it was alleged the rapes were committed. Oral evidence however, adduced from the complainant were confined primarily to incidents alleged to have occurred on only two days of the 6th and 7th February 2014. No evidence was adduced of the alleged rapes of the 3rd – 5th February 2014. The matter was reported to the police on the afternoon of the 8th February 2014 and the defendant arrested and charged thereafter.
   
7. The evidence of the complainant during examination in chief was that she was plied with drinks (beer) and marijuana and then sexually violated against her will. She told the court that she basically passed out and so did not know what happened to her. Later during examination in chief however, she proceeded to describe how the defendant raped her three times. She told the Court he took off her clothes and then proceeded to have sex with her and thus contradicting herself.
   
8. In cross examination, she further contradicted herself by virtually agreeing almost entirely with the propositions put to her by the defence, that in all these from beginning to end, she was a willing participant throughout. Nothing could be clearer from her responses to simple and carefully phrased questions and propositions put to her by learned defence Counsel, Mrs. Karani. In fact learned Counsel for the prosecution conceded that her evidence was riddled with inconsistencies, contradictions and rendering her evidence virtually unreliable.
   
9. I find it quite unusual, rather extraordinary, that if she was not a consenting party, that she would go out with the defendant on consecutive nights when she had the opportunity to report him to police, to relatives or, to other responsible persons at the earliest opportunity and seek refuge and protection from either the police or others, but she did not. She had for instance, after been discovered at the building at JFK stadium on the morning of the 6th February 2014 by two police officers and two girls and escorted away and returned by the two witnesses Raen Hahoiseu (PW 7) and Juteku Soabe (PW8) to her relatives at the market, to report the defendant or seek refuge and protection from them but she did not. The very next night of the 7th February 2014 she went out again with the defendant.
   
10. I find her evidence with respect to be vague, ambiguous, contradictory, confusing and very unsatisfactory, noting that, the fact she may have been shy did not help much when giving evidence in court. She was very slow, hardly audible and had to be repeatedly encouraged to speak up, as well, questions and propositions had to be repeated before an answer can be obtained. At times there was no response to simple questions put to her. At the end of the day her evidence had been so discredited to the point that its veracity and reliability destroyed so much so, that I find that no reasonable tribunal would be able to enter a conviction if that were the only evidence before the court. I find her evidence to be of a tenuous character[2], inherently weak, vague and full of inconsistencies and as conceded by learned Counsel for the prosecution, riddled with contradictions.
    
11. Even if the evidence of other prosecution witnesses as to their observations of what was seen and heard is taken into account, the value and weight of such evidence in my considered view remains inadequate and insufficient to require the defendant to be put to his defence and accordingly it is only proper to stop the case, direct that the information be dismissed and the defendant acquitted. I so order.
    

ORDERS OF THE COURT:

(i) Allow the submission of no case to answer in respect of the defendant Job Kazi and to direct that the case be stopped herewith.

(ii) Direct that the information containing all the six counts of rape be dismissed herewith.

(iii) Direct that the defendant be acquitted and to be released at the rising of the Court.

The Court.

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^[1] A sports stadium named after the famous American President, John F. Kennedy
^[2] R. v. Galbraith [1981] 1 WLR 1039; [1981] 2 All ER 1060; (1981) 73 Cr App R 124 (CA) (at 1042; 1062; 127).