Regina v Roy [2018] SBHC 22; HCSI-CRC 618 of 2017 (2 February 2018)

REGINA

V

BISMARK ROY

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
(Maina J)

Civil Case No. 618 of 2017

Date of Hearing: 31^st January & 1^st February 2018
Date of Judgment: 2^nd February 2018

(Sitting at Gizo, Western Province)

Mr. I Kekeu and R. Talasasa for the Prosecution
Mr. L. Chite, B. Ifuto’o and H Lawry for the Defendant

JUDGMENT

Maina PJ:
Introduction
The accused, Bismark Roy has been charged with one offence of Rape contrary to sections 136 and 137 of the Penal Code. And the particular of the offence is that on the 4^th November 2014 the accused, Bismark Roy unlawfully intercourse with Unice Ludukolo.

The Charge

At the close submission of the case by the prosecution they raised that the information filed by the prosecution did not stated in the particulars of the offence that the accused raped the complainant than stating unlawful sexual intercourse.

That is noted but the particulars is enough or satisfies the requirement of section 120 of the Criminal Procedure Code and for rape charge. For the purpose it is accordingly construed to read “raped Unice Ludukolo.

Brief Fact

The complainant Unice Lukuko was born on 24^th April 1998 and resides at Sunfly Village, Bava Island, Vella La Vella, Western Province. And the Accused Bismark Roy, date of birth unknown. At that time of the alleged offending he was residing at Somolo village, Bava Island, Vella La Vella, Western Province.

The complainant and the accused are first cousins as their fathers are real brothers.

The accused had sexual intercourse with the complainant on 4^th November 2014 under or among the pandanas trees between Somolo village and logpond Village, Bava Island in the Western Province.

The complainant said the accused had chased her and to the sea, pulled her back to the shore and he had sexual intercourse with her under or among the pandanus trees.

Issue

It is not dispute and the accused had said he had penetrated his penis in the vagina of the complainant. And the issue is whether the complainant had consented to that intercourse?

The Defence case

Accused did not give any sworn or oral evidence nor did call any witness to give evidence for his case. However he challenges the credibility of the Complainant’s evidences, accuracy in the recall of events, consistency and correctness of evidence adduced and presented in court. In all or the defence case is based or presented in the cross-examination of the prosecution witnesses and assessments of the responses of the prosecution witnesses.

The case

The offence was alleged to have occurred and the Defendant cornered the complainant whilst she was walking alone and had unlawfully sexual intercourse with her.

After attended a reef opening occasion in the afternoon on 4^th November 2014, the complainant left Number 2 village on Bava Islands and started to walk home towards her village at Sunfly. She was carrying her cousin sister’s son and she him with his grandfather at Samolo village and continued home along the seaside road.

As she walked she felt that someone was following behind her. As she looked back the accused was running to catch with her. Complainant concerned on the acts or attitude and started to run along the road as no one else around. She decided to run out to the sea and she did but the accused caught up to her and grabbed her hair with his right hand and pushed in the sea or underneath the water.

The accused pulled back the complainant to the shore and he removed and tore her lava lava and also removed the complainant trousers. He pulled the victim under the pandanas trees and there accused lay on top of her and attempted to insert his penis into her vagina. The complainant struggled however the accused managed to insert his penis into her vagina and proceeded to have sex with complainant.

The accused stood up and told the victim not to tell anyone and if she does he would kill her. He left the victim of the ground and walked away.

After some time complainant put on her trousers, took her underwear and torn lava lava and walked back to her village. On arrival at home she told her cousin sister Seilyn on what the accused had done to her

Matter was reported to the Police in March 2015 when he parents returned back to Western Province and upon hearing what had happened to complainant.
Seilyn Lupateki gave evidence stating that the complainant came back home and went direct to the water but not as usual. She looked unhappy and after the water she went in her bedroom and started crying. Seilyn went to her and asked why she was crying she told her what occurred or the accused had done to her. Victim told Seilyn on what accused had done to or raped her.

The Law

Rape is defined in s.136 of the Penal Code in the following terms:

“Any person who has unlawful sexual intercourse with a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman by personating her husband, is guilty of the felony termed rape”.

And the penalty is in section 137 with maximum life imprisonment.

The Court

For the rape charge, the prosecution must establish four main elements to prove the charge:

(i) the identity of the offender;
(ii) that he had unlawful sexual intercourse with her;
(iii) that it was with a girl or woman; and
(iv) that it was done without her consent or if by consent that it was obtained by force, threats or intimidation of by fear of bodily harm or false representations etc.

There is identity of the offender, accused followed the victim and had sexual intercourse with the complainant who is a woman. For this case penetration is not disputed it is that the consent that it was obtained by force, threats, intimidation and fear of bodily harm.

For the case laws in this jurisdiction as in R. v. Selwyn Sisiolo (unreported CRC 5-98) per Lungole Awich J. at page 3) and R v Matthew Mumane Kamania (HC SI CRC 432 of 2012) penetration does not need to be complete - once tnis has been placedlaced even the smallest slight is penetration. From the cases and I would emphasis or reiterate that a small way into the vagina by the penis then this part of the actus reusatisfied.

Nevp>Nevertheless, sexual intercourse is a continuing event which ends in withdrawal.

This is important in circumstances where a man becomes aware after penetration that a woman is not consenting to intercourse but continues nevertheless to have intercourse. In this instance, the man starts to commit rape after he becomes aware of the fact of lack of consent. But such is not a matter in this case as the alleged lack of consent starts or deem occurred when the victim felt some coming behind her and she started to run when he saw the accused until the occurrence of the intercourse.

And the burden is always on the prosecution to prove lack of consent and the standard is beyond reasonable doubt. The accused must be acquitted if any doubt that the offence occurred.

Every woman has control over their own bodies and what they do with them in an intimate way with other people. A woman does not have to push someone away as she is entitled to be treated with courtesy and respect. With this case there is a claim by the accused that he had sexual relationship with the victim.

In this jurisdiction there are case laws that consent not to have been given in the circumstances are where a woman or girl does not have the capacity to consent i.e. a woman or girl may not have the capacity to consent if she has been drugged, intoxicated and a minor, a true consent as opposed to consent through fear or fraud.

These similar circumstances is also commented in a Fiji case (Attorney General and Tamalemai Fereti CA.5/93 (1994) when the court stated that a mere submission through fear of threats of violence or through fraud does not amount to true consent as true consent can only be given by a person in a position freely able to make a rational decision with a full understanding of the situation.

“Absence of consent” is the essential element in the offence of rape and itself in the form of a conflict of opposing oral testimony by the complainant and the accused, with one claiming ‘no consent’, and the other saying ‘with consent’. Here credibility must be determined. And I would agree with the defence’ submission on that but with this case there is no conflict on oral testimony as the accused did not give or make any oral evidence in the court.

With the evidences so far, I am satisfy the prosecution’s burden to prove lack of consent is done and the question now is whether it is proved on the standard of beyond reasonable doubt.
The challenge on the credibility of evidences as shown to the court is by way Cross-examination of the prosecution witness or the defence tries to establish their case by this method. The demeanour of the complainant from the attitude in taking or delay in answering questions and they give rise to credibility and doubt. Counsel for the Defence submitted that the evidence or the prosecution has not proven the charge against his client beyond reasonable doubt.

The Blood Relationship

Counsel for defence submitted the accused and complainant is first cousins and they have been engaged in sexual relationship as the accused had frankly told the Police. Exposing that makes no credit to his client but would to the complainant.

There is no evidence on that sexual relationship except they are cousins. But if it is so and whether a woman or complainant has consented to a sexual encounter on one occasion is no authority or licence for him to assume that she consents on any subsequent occasion.

The knife

The knife was suggested by the counsel for the defence as core for this case however it was not mentioned by the complainant in evidence in chief. It arose in complainant’s evidence in the cross-examination when asked by the counsel if the accused was holding anything. And she said a small knife. Complainant further stated that she did not mention any knife when giving statement to the Police.

Defence Counsel submitted that complainant had told his mother that the accused was holding a bush knife when he did this to her. This part of evidence is contained in the Police statement of the mother and that part alone was tendered to court as agreed by the Prosecution and defence.

Defence questioned the fact the bush knife was not mentioned to the Police by complainant but just to the mother after 3 months. Also as put by the defence it cannot possibly be used in the sea on the alleged rape thus rises the witness not credible.

The bush knife can easily be noted as from the information allegedly passed to the mother Accused did not produced nor deny that he was not holding a knife.

I accept the evidence of the complainant adduced in the cross-examination on the knife.

Clothes

Defence Counsel tried to pick on PW 2 Seilyn or at the time when the complainant arrived at home by questioning the condition of the complainant’s clothing. The evidence of this witness is quiet clear that complainant went direct to the water. Victim was unhappy and after the water she went in her bedroom and started crying.

Seilyn went to her and asked why she was crying. Victim told Seilyn what the accused had done to her or raped her.

There was no evidence relate to the clothes with this witness and that alone makes that just an argument.

Injuries

Again the Defence Counsel tried to pick on PW 2 and the way she tried to answer at the cross-examination on what injuries this witness saw on the complainant’s body. PW 2 said there were scratches on victim’s arm that be from thorns of the pandanus leaves. The complainant did not tell this PW2 about the injuries nor did this witness asked about it.

Defence Counsel suggests that may be the injuries or at the occasion and in that the complainant has lied about the action of the accused. This defence holds no merit.

Making Complaint to the Police

The defence hinted on the manner this matter was reported to the Police after about several months or when the mother arrived back at home after been away. To the defence this circumstances of reporting rises issue of credibility or truthfulness of the complainant’s evidence.

There is no merit on this argument as credibility relate directly the types or evidences presented or adduced to the court. Again this is a mere submission type and this argument is dismissed.
In all, the defence submissions or arguments on the credibility of the prosecution witnesses are unsatisfactory and based on assumptions or no evidence to support them.

There is no issue of penetration but whether there was consent or not.

With the evidence before the court, I am satisfied the Prosecution has adequately discharged the onus of proof in this case and they have establishing the elements of lack of consent in the evidences.

Victim gave evidence in the court on what the accused had done to her and supported by the recent complaint to PW2. The response or explanation by the accused has been weak being presumption and highly improbable to be credible and reliable. I am satisfied that accused had sexual intercourse without the consent of the Victim.

I am satisfied Prosecution have discharged the burden of proof and Defendant is therefore found guilty of rape and convicted.

Findings: Guilty of rape.
Order: Enter conviction on rape.

THE COURT

......................................................
Justice Leonard R Maina
Puisne Judge