Magiaro v R [2017] SBHC 148; HCSI-CRC 197 of 2012 (15 November 2017)

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Case name:	Magiaro v R

Citation:

Date of decision:	15 November 2017

Parties:	Martin Magiaro v Regina

Date of hearing:	30-31 August 2016

Court file number(s):	Criminal Case No. 197 of 2012

Jurisdiction:	Criminal

Place of delivery:

Judge(s):	Kouhota

On appeal from:

Order:	The Court not satisfied so that I am sure that the accused had sexual intercourse with the complainant in circumstances which amounts to rape. The prosecution therefore has failed to prove beyond reasonable doubt that the accused had unlawful sexual intercourse with complainant without her consent hence I must acquitted him of the charge against him.

Representation:

Catchwords:

Words and phrases:

Legislation cited:	Interpretation General Provisions Act. The Penal Code (Amendment) (Sexual Offences) Act 2016 came into force on 1^st June 2016.

Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION
Criminal Case No. 197 of 2012

The accused Martin Magiaro was charged with the offence of rape contrary to section 136 of the Penal Code, Cap 26. The prosecution alleged that the accused committed the offence between 1^st September and 30^th November 2010. On arraignment he pleaded not guilty to the charge. He was committed for trial in the High Court on 26^th August 2011. After a number of adjournments the matter was finally set for trial on 29^th August 2016.

However, by the time of this trial, section 136 of the Penal Code had been repealed by an amendment to the Penal Code, the Penal Code (Amendment) (Sexual Offences) Act 2016. The Penal Code (Amendment) (Sexual Offences) Act 2016 came into force on 1^st June 2016.

When the trial commences the prosecution applied to amend the charge to fall under section 136(f) of the Penal Code (Amendment) (Sexual Offences) Act 2016 on the basis that the accused had been charged under a section of the Penal Code that has been repealed by the recent amendment to the Penal Code. Prosecution submits that the trial cannot proceed on a charge based on a section of the law which has been repealed.

The defence on the hand objected to the prosecution’s application on the basis that the accused could not be charged under section 136(f) of the Penal Code because when he was alleged to have committed the offence the new section was not part of the law, that is, the new offences did not exist then. Counsel for the defence, Mr. Ifutoo submitted that any amendment would be contrary to section 10(4) of the Constitution. Section 10 (4) states;

After hearing submissions by counsel the court ruled that, by virtue of section 24 of the Interpretation General Provisions Act, Cap 85 the case against the accused will proceed on the original charge under 136 of the Penal Code.

The prosecution called two witnesses, the complainant Ms. Jenean Keniava Ramoga whom I shall refer to her in this judgments as the complainant or PW1 and Mrs Ruth Asisai, I shall refer to her in this judgment as PW2.

PW1 testified that on unknown date between 1^st November and 30^th November 2010, she was returning home after school when she met the accused Martin Magiaro at seleiju plantation, Maravari village, Vella Vella. With her at that time was her classmate a girl by the name of Karen. PW1 stated that when they met the accused he called her to follow him so she asked Karen to go with her but Karen was afraid and refused to go with her so she went with the accused by her herself. It was apparent from the bundle of committal documents submitted to the High Court that the Police never took any statement from Karen and she was not call as a witness.

Complainant said she followed the accused because she was afraid and went with him into the plantation and had sex. She gave no evidence of any resistance, struggle or even telling the accused that she did not want to have sex with him. The complainant said she had sex with the accused because he threatened her and made her afraid. She however, gave no evidence that accused physically threatened her. The only thing she told the court that could be taken as a threat was that the accused took her under pant and said he would spoil or curse her. After having sex, she went home. When she arrived her aunty (PW2) asked her why she was late, she cried and told her aunty that the accused Martin Magiaro had sex with her. She said in her evidence she told her aunty (PW2) everything the accused did to her including that the accused had taken her under pant and said he would spoil or curse her and that the accused had given her money. However, PW2, in her evidence said the only thing the complainant told her was that Martin Magiaro asked her to have sex and told her that the two of them should ran away to the Shortlands.

When cross examined, complainant said she did not plan to have sex with the accused that day. She said her aunty (PW) expected her to arrive home early or straight after school and said her aunty (PW2) would be cross with her if she arrived late. She was also afraid her aunty might hit her if she arrived late. She also said her aunty was looking for her before she arrived. She was afraid of her aunty and started crying and talking as soon as her aunty started asking her questions.

She also stated under cross examination that the accused had given her money on previous occasions before the date of the alleged rape and also admitted having sexual intercourse with the accused prior to the alleged rape incident.

PW2‘s evidence was that, when the complainant was late arriving home from school, she followed the sea side looking for her. She did not find her so she returned to the house following a different route. As she approached the house, she saw the complainant near the water supply stand pipe. She went and asked her why she was late. She asked her three times. When she asked her the third time, the complainant started crying and told her that she met Martin on the road and that Martin had asked her to have sex. PW2 said the complainant was afraid and shaking when she told her these things.

The accused Martin Magiaro gave evidence on oath and denied what the complainant said in her evidence. His evidence was that the complainant was his girlfriend. He used to give her money to buy things like perfume and other things. That he was in a relationship with the complainant and that they had had sex a number of times prior to date of the alleged rape incident. He said on the day of the alleged rape, he told the complainant that they will meet at Seleiju plantation after school. He said after school, he met the complainant and another girl at Seleiju plantation. He called them but the other girl followed a different footpath and went away. He and the complainant then followed another footpath and went and had sex. After that he told the complainant to go home quickly because he knew her aunty always gets angry. He denied threatening the complainant or forcing her to have sex.

Apart from the issue of whether sexual intercourse was with consent or not, the accused’s evidence about what happened after school that day was consistent with complainant’s evidence. His evidence confirm the complainant evidence that Karen was with the complainant when they met at Seleiju plantation and that Karen refused to follow the complainant when he called the complainant to go with him. His evidence also confirms that they went into the plantation and had sexual intercourse and that her aunty will get angry with her if she arrived late.

I had observed complainant in court and while she appeared competent and calm when giving her evidence, something of the things she told the court just does not logically add up. They include the following; while she said that accused raped her she never mention in her evidence that she refuse to have sex with the accused, nor did she give any evidence that she resisted or struggled with the accused before or during sexual intercourse. There was no evidence of force, like torn cloths, injuries to her body or vagina, or dirt on her body and cloths. When she was seen by her aunty PW2 shortly after the incident there were no dirt on her body or cloths or sign of distress. These are the things that are usually present when a girl or women is raped especially if rape took place in the bush or a coconut plantation as alleged in this case.

Although she was crying and was shaking when PW2 asked her why she was late, I believe that was because she was afraid of her aunty because she arrived home late and not because she was raped. It could also be a cry for mercy to her aunty because she knew her aunty might hit her for coming late or afraid her aunty who just came back after been out looking for her might discover she had sex with the accused

Human experiences have shown that allegations of rape can be made by women or girls for various reasons. They include when a woman or girl suspects that her husband, boyfriend or relatives are likely to find out the affair. Sometimes they are made to deflect blame or to hide their shame or embarrassment. It was said that allegations of rape are easy to make but hard to rebut. I believe this was one of the reasons for the old common Law rule of practice, where in cases of sexual nature a judge is required to warn himself of the danger of convicting the accused on uncorroborated evidence of the complainant.

In Solomon Islands that rule was abrogated by the Evidence Act 1999. Since statue had abrogated the need for corroboration in sexual offences, if I accept the complainant’s evidence as true I can convicted the accused on her evidence alone.

In present case however, I have doubts about the veracity of the complaint’s evidence. Her evidence contradicts PW2 evidence. I believe the complainant did not tell PW2 what she said in the court she told PW2. PW2 never mentioned in her evidence that the complainant told her that accused had raped her and taken her under pant or that he will curse her. It seems the complainant only stated these things in court. I believe the story about the accused taking her under pant and the threat of a curse were invented purposely to support her allegation of being raped. An allegation which I believe was invented to deflect her aunty and relatives anger away from her if they found out that she willing had sexual intercourse with the accused and to mitigate her embarrassment and shame of been found having an affair with a married man old enough to be her father. This is not an unusual thing for a young girl to do when caught in such a reprehensible situation.

With regard to her relationship with the accused, I accept the evidence of the accused rather than the complainant. I believe they had been in some form of sexual relationship prior to the alleged incident. In analyzing the evidence I believe the meeting at Seleiju plantation that day was not a coincident or accident but an arrangement between the accused and the complainant as stated by the accused in his evidence. For if it was not, then why should she follow the accused if she was afraid of the accused as she told the court? She could have easily refused his request to go with him and safely escape with Karen. She has all the opportunity to escape but choose to go with the accused instead. Her action points to a willing participant rather than a scared teenage girl.

I had considered all the evidence before the court and I am satisfied that the accused and the complainant have known each other for some times. I am also satisfied that the accused had given the complainant money on previous occasions prior to the date of the alleged rape incident. I am also satisfied that she and the accused had sexual intercourse on previous occasions prior to the time of the alleged incident.

Having considered the evidence and all the reasonable inferences that could be drawn from the facts before the court; I am not satisfied so that I am sure that the accused had sexual intercourse with the complainant in circumstances which amounts to rape. The prosecution therefore has failed to prove beyond reasonable doubt that the accused had unlawful sexual intercourse with complainant without her consent hence I must acquitted him of the charge against him.

That is the verdict but having read the bundle of committal documents filed in this court in this matter, it is in the interest of justice that I must again raise the concern that this is another case where the prosecution case fail because investigators and their supervisors fail to properly consider and evaluate the evidence and decide on the most appropriate charges to lay against the accused.

High Court of Solomon Islands

Magiaro v R [2017] SBHC 148; HCSI-CRC 197 of 2012 (15 November 2017)