R v Kaneta [2019] SBHC 51; HCSI-CRC 112 of 2018 (3 July 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v kaneta
Citation:
Date of decision:	3 July 2019
Parties:	Regina v Roger Kaneka
Date of hearing:
Court file number(s):	CRC 112 of 2018
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Maina; PJ
On appeal from:
Order:	The accused Roger Kaneta was convict for sexual intercourse with a child who is under 15 years of age
Representation:	Mr. I Kekou/Mr. Dalipanda for the Prosecution Mr. C Ruele for the Defence
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment Sexual Offences Act 2016., s139(1)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 112 of 2019

REGINA

V

ROGER KANETA
Accused

Date of Judgment: 3 July 2019

Mr. I Kekou/Mr. Dalipanda for the Prosecution
Mr. C Ruele for the Defence

JUDGMENT

Maina PJ:
Introduction

The accused Roger Kaneta is charged with intercourse with a child under section 139 (1) of the Penal Code as amended by the Penal Code (Amendment Sexual Offences Act 2016.

It is said that on 24^th may 2017 at Jean Beck’s residence accused had sexual intercourse with a female child under the age of 15 years, namely Tamoli Aledao Toka who was 7 years of age. On arraignment the accused entered plea on not guilty.

Facts

The Crown and Defence accepted or agreed on these facts that the complainant was born on 16^th December 2009 and at the time of incident she was seven (7) years old and resided at Noro with relative Ms Jean Beck. The complainant attends Noro Primary School.

Roger Kaneta is the accused was drunk with alcohol and went to Jean Beck’s residence on the night of 23^rd May 2017. He stayed there until next morning of 24^th May 2017. At Jean Beck’s house, accused went into the complainant’s room to take a pillow.

Issue

Whether the defendant had sexual intercourse with the Complainant?

The Law

The charge is intercourse with a child under section 139 (1) of the Penal Code as amended by the Penal Code (Amendment Sexual Offences Act 2016. And that provision provides that a person commits an offence if the person has sexual intercourse with a child who is under 15 years of age. The definition of sexual intercourse is that the slides’ penetration

The Crown’s Case

Complainant gave evidence that she was living with her sister Jean Beck at Noro. She lived and slept in a room. Accused Roger Kaneta went in the room and she woke up and ran away to another bed outside the room. Accused followed her and he pulled the complainant’s trousers and also pulled his trousers.

Accused then pushed his finger in the complainant’s kende (vagina) but it was pain to her. Accused pushed his penis to the complainant’s vagina but was very pain to her. Accused told the complainant that he was to be her friend and advise her not to tell anything to her sister. Complainant did not tell anything back to the accused. Complainant recognised this man was accused Roger Kaneta.

PW2 Jean Beck gave evidence on recent complaint by the complainant that after the school the complainant told her that accused went into her room and woke her up. She stood up and went to another bed. The accused was fully naked and he inserted his finger in her vagina. Accused rubbed his body with the complainant’s shirt.

EPW1 Semieta Tarakabu’s statement was tendered to the court by consent which he stated that on 24^th May 2017 at about 2am or 3am he woke up to go to the toilet and he saw Accused Roger in the complainant’s room. Semieta came out from the toilet and went to the living room and there he saw the complainant was sitting and watched the movie. Accused was also at the living room. Roger told him that he was looking for a boy who used to live in the house but that boy had gone out. Semieta also sat at the sitting room and then saw the complainant went and took a toilet roll and went back to the room. Accused Roger then slept at the three-seater-at-chair at the living room. Semieta then went back to sleep in his room.

PW3 Dr Richard Jespo Hapa conducted the medical examination to the victim on the request of the Police and he gave evidence in the court. The examination was conducted on 31^st May 2017 and he stated the examination discovered that the hymen was breached as a result penetration of a foreign object and bleeding with colour by fluid at the vagina carnal. The doctor at the examination - in – chief stated that there was penetration of an object and that can be a finger or if a big penis, then a partial penetration is sufficient to cause the breach of the hymen. At the re-examination he reiterated that his finding of the breach of hymen in victim’s vagina can be from a partial introduction of a big penis in the victim’s vagina.

Defence Case

Accused himself gave evidence and stated that he came to the house to watch the movie but when the movie started he did not have any pillow and so he asked and the old man (Simieta) who went to the room opposite the girl’s room. Accused went to the room which the complainant was sleeping and took a pillow. He then came out from the room.

The accused said he was watching the movie and when pictures came to the sexual part, he started to nanali – masturbate. He continued to masturbate until he poured out his sperm towards the girl at the screen. He said as he was doing that, the small girl or complainant was watching him but continued with his masturbating until the sperm poured out from the penis. He described that movement in Pidgin English as “bosta”.

The Court

It is not disputed that at the alleged time of the incident the accused was there at the house. I deal with the question of which evidences of the parties to accept and if I accept the defence case then the Crown case is necessarily fails or proof not its case beyond reasonable doubt.

The accused went to the room where the complainant was sleeping and she went out from the bed. He was also seen by EPW1 Semieta at that particular time of the incident with complainant at the house.

The evidence is accused pushed his finger in the complainant’s vagina but it was pain to her. Accused also pushed his penis into the complainant’s vagina but was also very pain to her.

And the medical examination conducted on the complainant discovered that her hymen was breached as a result penetration of a foreign object and bleeding with fluid in colour at the vagina carnal of the complainant.

The accused do not dispute the evidence of pushing his finger and a partial insertion of his penis into the complainant’s vagina. However he admitted that he went into the complainant’s room. And at the living room he watched the movie and masturbated to the sexual part of the movie or watched and masturbated until he poured out his sperm to the girl at the movie screen.

There is evidence to defend the Complainant’s evidence except the defence’s submission of demeanour of the prosecution witnesses when they gave evidences and is term as inconsistency of the evidences from what appears in the PW’s statements and evidence adduced to the court on oath. For the court the sworn evidences as with this case prevails in their consideration and analysis. There is an argument on related aspect of a big penis and vagina with the age of the complainant. However this victim as the doctor stated in evidence there was a breach of hymen in victim’s vagina can be from a partial introduction of a big penis in the victim’s vagina. Accused also gave sworn evidence but he was talking his masturbation when watching the movie.

I accept the evidence of the Crown and I am satisfied and find the Crown has proof its case beyond reasonable doubt and therefore I convict the accused Roger Kaneta for sexual intercourse with a child who is under 15 years of age.

The Court
Justice Leonard R Maina
Puisne Judge