Regina v Nyiea [2017] SBHC 116; HCSI-CRC 106 of 2017 (21 April 2017)

REGINA

–V-

NOEL NYIEA

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua, DCJ)

Criminal Case No. 106 of 2017

Ms. Rachel Olutimayin for the Crown
Mr. Douglas Hou for the Defendant

Date of Hearing : 7^th April 2017
Date of Ruling : 21^st April 2017

RULING ON COMPETENCY AND COMPELABILITY

Mwanesalua, DCJ: The Defendant was charged with one count of incest with the complainant Ester Rugaura on an unknown date in June 2010. On that unknown date the complainant, was thirteen years and eight months old.

The defendant was arraigned on 5^th April 2017 and he pleaded not guilty to the charge. Crown counsel then opened the case and called the complainant to give evidence under oath. After answering preliminary questions in chief, she said that she wanted to withdraw the charge laid against the defendant.

Her reason for wanting to withdraw the charge was because the offence occurred while she was a young girl. But at the present time, she has a husband with their young daughter.

She explained that if she continues with the case, her husband would take their child away and leave her. She does not want to loose her child, her husband and her house.

After the complaint told the court about these matters, counsel for the crown saw the Director of Public Prosecution about the case. There was no response from the Director of Public Prosecution on what to do with the case thereon.

Counsels for the Prosecution and the Defendant then posed two questions to be considered by the court. They are followers:

1. Whether the complainant is a compellable witness?
2. If she is not a compellable witness whether she can be treated as an unavailable witness?
   

In relation to the first question, the complainant is not a compellable witness to give evidence for the prosecution. She can be treated as an unavailing witness.

It is the view of this court that the burden of proving the competence of a witness is on the prosecution. If the issue of competence of a witness is raised, the prosecution must satisfy the court of the witness’s competence beyond reasonable doubt. The court heard submission on that issue before expressing its view.

THE COURT