R v Tiliwewe [2018] SBHC 94; HCSI-CRC 175 of 2017 (17 October 2018)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Tiliwewe
Citation:
Date of decision:	17 October 2018
Parties:	Regina v Patrick Tiliwewe
Date of hearing:	30-31 August 2017, 1 September 2017, 4 September 2017 and 22 -23 Novem 2017
Court file number(s):	CRC 175 of 2017
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Kouhota PJ
On appeal from:
Order:	The Court precluded from convicting the accused under section 166 of the Criminal Procedure Code.
Representation:	Ms. S Ramosae for the Crown Mr. N Galo for the Accused
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) 2016. Penal Code Act
Cases cited:	Regina v Karibe, Criminal Procedure Code provides

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 175 of 2017

REGINA

v

PATRICK TILIWEWE

Date of Hearing: 30-31 August 2017, 1 September 2017, 4 September 2017 and 22 – 23 November 2017
Date of Judgment: 17 October 2018

Ms. S Ramosae for the Crown
Mr. N Galo for the Accused

JUDGMENT

Kouhota PJ: The accused, Patrick Tiliwewe, was charged with the 5 counts of rape contrary to section 136F (1) (a) of the Penal Code (Amendment) (Sexual Offences) 2016.

The allegations against the accused are contained in the information filed by the Director of Public Prosecution on 18^th August 2017. The information contained five allegations of rape alleged to have been committed by the accused between the 1^st August 2015 and 31st July 2016. All the charges are made and framed under section 136F (1) (a) of the Penal Code (Amendment) (Sexual Offences) Act 2016.

At the commencement of the trial, the court raised its concern with the crown counsel about how the charges were framed and give her the opportunity to consider amending the charges. An application to amend the particulars was made and the particulars were accordingly amended but no application was made to amend the sections under which the accused had been charged, hence, no amendment was made in that regard. The accused was therefore tried for charges under section 136F (1) (a) of the Penal Code (Amendment) (Sexual Offences) Act 2016. The particulars of the offences and the evidence, however, shows that the offences were alleged to have been committed prior to the date the Penal Code (Amendment) (Sexual Offences) Act 2016 came into force which is 1^st June 2016.

Neither counsel nor the court noticed the issues during the long form preliminary inquiry or during this trial. I only picked this up when writing this judgment but felt that I am obliged to make a ruling on the issue since the facts and issues are before the court. Four of the five alleged rape incidents allegedly took place prior to the Penal Code (Amendment) (Sexual Offences) Act 2016 came into force but due to what seem to be an oversight by the prosecution, the charges were laid under section 136F (1) (a) of the Penal Code (Amendment) (Sexual Offences) Act 2016. In view of this, I consider that section 10 (4) of the Constitution apply to the 4 charges.

Section 10 (4) of the Constitution states “No person shall be held to be guilty of a criminal offence on account of any offence or act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time it was committed”

While rape was an offence under the repealed section 136 of the Penal Code, the charges were not brought under that provision but for rape under section 136F (1) (a) of the Penal Code (Amendment) (Sexual Offences) Act 2016, an offence which the definition includes acts from which the allegation was made at that time do not amount to rape. All the 5 charges against the accused alleged that accused penetrated the complainant’s vagina with his finger. Penetration of the vagina with a finger or any part of the body is not rape at the time of the alleged commission of the offence. Rape under section 136F (1) (a) is a new offence, different from the offence under the now repealed 136 of the Penal Code. Although the name of the offence may be the same, it is a new and different offence. It has a new definition and new elements, different from the offence under the repealed section 136 of the Penal Code. Consequently, by section 10(4) of the Constitution, the accused cannot be held guilt of the offence of Rape under section136F (1) (a) of the Penal Code (Amendment) (Sexual Offences) Act 2016, because at the time of the alleged commission of the offence, the acts complaint of do not amount to rape. Rape under 136F (1) (a) and as defined under section 136D of the Penal Code (Amendment) (Sexual Offences) Act 2016, does not exist then. For these reasons the charges against the accused in counts 1, 2, 3 and 4 are dismissed and the accused is acquitted of the 4 charges.

The dismissal of the 4 charges leaves only one charge remaining against the accused that was not affected by section 10(4) of the Constitution that is count number 5. In count 5, the prosecution alleged that the accused raped the complainant between 1^st and 31^st July 2016.

To prove the charge against the accused, the prosecution has to prove all the elements of rape, these are;

(a) The accused had sexual intercourse with the complainant as defined under section 136D of the Penal Code (Amendment ) (Sexual Offence ) Act 2016; and
(b) That such sexual intercourse was without the complainant’s consent or that accused knowing about or being reckless as to lack of consent.

The complainant evidence was that on an unknown date, she went with Edlyn and LJ to pick cabbage along the road to Heuhonu. Somewhere along the road the accused came, held her and pushed his finger into her (vagina). She said it hurts.

PW3 is Edlyn Awakeni, she was with the complainant at that time of the alleged raped incident. PW3 is a little girl, in 2016, she was in pre-class. From her appearance when giving evidence in court, I observed she would now be about 7 or 8 years old. Her evidence was that she was picking cabbage when she saw the accused removed Karesi’s clothes and touched her back. She went on and said that the accused touched Karesi’s vagina and that Karesi was sitting down when the accused was touching her vagina. She also said, Karesi told her that the accused had touched her vagina. The evidence of the complainant, Karesi, and Edlyn are quite different. Karesi never said anything about the accused removing her clothes or she was sitting down when she said the accused pushed his finger into her vagina. While the complainant said the accused pushed his finger into her vagina, she did not make it clear whether the accused’s finger actually went into her vagina, or just touching her as stated by Edlyn.

The medical evidence shows that the Complainant’s hymen is intact. The complainant was about 9 years old at the time of the alleged offence. She medically examined some three months after the alleged incident. The doctor’s report confirmed that there were no injuries, abrasion or scar noted. While the doctor said this, does not necessarily mean that the vagina had not been perforated. I am of the view that if the accused had pushed his finger into the complainant’s vagina, in the manner she described to the court including the four earlier incidents, the possibility of the hymen been raptured was highly likely. How the complaints hymen remain intact after she alleged the accused had pushed his finger in her vagina on five different occasions remains doubtful.

One of the elements of rape under the Penal Code (Amendment) (Sexual Offences) Act 2016 is penetration of any part of the female genitalia, this makes it more difficult to prove the element because of the ordinary meaning of the word penetration, which means to go in so how the external genitalia can be penetrated is uncertain and open to imagination.

The other element of rape is consent, the prosecution in this case, however, made no attempt to prove lack of consent. I believe this was because the prosecution assumes as was later shown in its submission that since the complainant is only 10 years old, consent is not an issue as they submitted, she is not of consenting age. With respect, I am afraid I do not agree. Rape under section 136F is the act of a person having sexual intercourse with another person without the other person’s consent. Section 136F does not exclude consent for persons of tender age. If Parliament had intended that should be the case, it would have clearly stated so as it did for the offences under section 139 of the Penal Code (Amendment) (Sexual Offences) Act 2016, where section 139 (3) clearly excluded the prove of consent is no defence. Thus in charges of rape under section 136F, my view is, even if the complainant or victim is of tender age, the prosecution has to prove that she or he did not consent to sexual intercourse with the accused because lack of consent is an element of the offence and the Crown must prove the element.

In the Papua New Guinea case of Regina v Karibe [1967-68] PNGLR 333, the accused was charged with rape of a 13-year-old girl, Mann CJ in his judgment, referring to the English case of Howard [1966] 1 W.L. R. 13; Cr.App.R 56 stated. “From the judgment of the Court of Criminal Appeal in Howard’s case, it is clear that the question of consent or no consent is an essential issue of fact and the onus is on the crown. It is not correct to say that, as a matter of law, a child of tender years cannot consent. It is a question of whether she did or did not”.

In the present case, prosecution adduces no evidence to prove that the complainant did not consent to the act thus one of the elements of the offence of rape had not been proven. Consequently and in view of the inconsistencies of the evidence of the complainant and PW3 Edlyn Awakeni’s evidence about the alleged rape incident, I am left with reasonable doubt as to whether the accused had raped the complainant. The doubts must go to the accused favour and I must against him of the charge of rape.

Section 166 of the Criminal Procedure Code provides “when a person is charged with rape and the court is of the opinion that he is not guilty of that offence but he is guilty of an offence under sections 141(1), 142, 143,145 and 163 of the Penal Code, he may be convicted of that offence although he is not charged with it.”

Unfortunately for the prosecution and fortunately for the accused, Part XVI of the Penal Code had since been repealed by the Penal Code (Amendment) (Sexual Offences) Act 2016, while section 166 of the CPC was not amended to accommodate or correspond with the provisions of the Penal Code (Amended) (Sexual Offences) Act 2016, hence, I am precluded from convicting the accused pursuant to section 166 of the Criminal Procedure Code.

IRA.

THE COURT
..............................
Emmanuel Kouhota
Puisne Judge