R v Boselalu [2020] SBHC 79; HCSI-CRC 346 of 2019 (29 August 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Boselalu
Citation:
Date of decision:	29 August 2020
Parties:	Regina v Phocus Boselalu
Date of hearing:	26, 27, 28 August 2020
Court file number(s):	346 f 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	I am also satisfied beyond reasonable doubt that the defendant is guilty of common assault contrary to section 244 of the Penal Code (Cap 26).
Representation:	Mr. Andrew Kelesi for the Prosecution Mr. Chris Rarumae for the Accused
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016, S.139 (1) (b), S. 136 (1) (a) (b) [cap 26], S.244 [cap], Criminal Procedure Code, S.68
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 346 of 2019

REGINA

V

PHOCHUS BOSELALU

Date of Hearing: 26, 27, 28 August 2020
Date of Decision: 29 August 2020

Mr. Andrew Kelesi for the Prosecution
Mr. Chris Rarumae for the Accused

JUDGEMENT

Bird PJ:

1. By information filed on the 12^th June 2019, the defendant, Phochus Boselalu was indicted with 4 counts of rape contrary to section 136 (1) (a) (b) of the Penal Code (cap 26). He was also indicted on one count of common assault contrary to section 244 of the Penal Code (cap 26). He pleaded not guilty to all 5 charges.
2. On the 25^th August 2020, the Director of Public Prosecution filed a nolle prosequi in respect of the information filed on the 12^th June 2019, and the Defendant was discharged. An amended information was filed on the same date.
3. In the amended information, the defendant was indicated with the following offences;
   • Count 1: Sexual intercourse with a child under 15 years contrary to section 139 (1) (b) of the Penal code (Amendment) (Sexual Offences) Act 2016.
   • Count 2: Sexual intercourse with a child under 15 years contrary to section 139 (1) (b) of the Penal code (Amendment) (Sexual Offences) Act 2016.
   • Count 3: Sexual intercourse with a child under 15 years contrary to section 139 (1) (b) of the Penal code (Amendment) (Sexual Offences) Act 2016.
   • Count 4: Sexual intercourse with a child under 15 years contrary to section 139 (1) (b) of the Penal code (Amendment) (Sexual Offences) Act 2016.
   • Count 5: Common assault contrary to section 244 of the Penal Code (Cap 26)

Upon being re-arraigned on the amended information, the defendant pleaded not guilty to all 5 charges.

4. A trial into the matter was conducted thereafter. The prosecution called a total of two witness which included the complainant and her biological mother. The prosecution evidence against the defendant also included the following exhibits which were tendered with the consent of the defence.
   • (i) Exhibit ‘’P1’’ – Medical report of the Complainant dated 27/9/18;
   • (ii) Exhibit ‘’P2’’ – Reconciliation report dated 28/9/18;
   • (iii) Exhibit ‘’P3’’ – Record of interview of the defendant dated 26/9/18

PW1 – Christopher Qilavaku

5. The Complainant states that she lived with the defendant since she was little. The defendant is her mother’s brother. In 2017, she lived with the defendant and his family at Pangobiru. She attended class 6 at Pangobiru School. She looked upon the defendant as a father-like figure. The defendant was married to Joana.
6. In December 2017, Joana and the younger children went to Honiara by boat. The defendant remained with the complainant and Darren, one of his two sons. On the day of the offending, the defendant went to Taro. He arrived back drunk at the house. He told the complainant to go and return the speaker he was using. The speaker belongs to Poloso. He told the complainant he will follow her later.
7. The defendant further instructed the complainant to wait for him at the ladder of his office. The defendant went to where the complainant was waiting and he instructed her to go into his office.
8. Unsuspectingly, the complainant went into the defendant’s office and waited. The defendant then followed her into the office and closed the door. He then grabbed the complainant and told her to be quiet. It was about 8:00pm.
9. She tried to struggle to free herself but could not. He held her neck and caused her to fall on the floor. She was frightened. He then removed the complainant’s clothes and had sex with her. After he ejaculated, he wore his clothes. She looked for her clothes but could not find them so she asked the defendant and he gave them to her. She then went back to the house. She did not know where the defendant went.
10. On another occasion in September 2018, the complainant was asleep in her room. Joana the defendant’s wife was admitted at Ogho clinic. She was sleeping on her stomach and the defendant entered her room and turned her up. He told her not to make any noise. The defendant removed the complainant’s clothes and had sex with her. He left and went back to his room after he ejaculated. The complainant was frightened and did not tell anyone about the incident.
11. On the morning of the 21^st September 2018, the complainant was in the house. The defendant told her to get oil and massage him in his room. The complainant did as instructed and massaged the defendant in his room. The defendant grabbed her and she fell down on the bed. He then pushed his finger into the complainant vagina. The complainant struggled and managed to free herself and she ran out. She went and sat at the ladder of the house.
12. The defendant followed her outside and kicked her on her back. He then told the complainant to go up the house and he whipped her with a cable. The complainant ran away from the house and hid in the bush. She then stayed with her cousin until her mother arrived on Sunday the 23th September 2018 and took her to Ogho.
13. She told her mother what the defendant had done to her and why she ran away from the house.
14. In cross-examination the complainant maintained her story. When pressed by the defence that her story was not true, she maintained that the defendant had sexual intercourse with her. She could clearly recall the incident of the 21^st September 2018 and was unmoved.

PW2- Jethruth Manana

15. PW2 is the complainant’s biological mother. She is the defendant’s sibling. She was very emotional when she was about to give evidence in court. She however gained her composer and gave evidence. She confirmed in court that her daughter, the complainant told her about what the defendant did to her. The complainant now lives with her at Ogho village.

Exhibit Evidence

16. Exhibit ‘’P1’’ is the medical report of the complainant dated the 24^th September 2018. The said report confirmed that there was no hymen present. The cervix was smooth but appeared reddish and inflamed.
17. Exhibit ‘’P2’’ is a reconciliation report between the defendant’s family and the complainant’s family. It was dated 28^th September 2018.
18. Exhibit ‘’P3’’ is the record of interview (ROI) by the police with the defendant dated 26^th September 2018. The court had taken particular note of questions and answers to 53, 54, and 55 of the ROI. The summary of the questions and answers is that the defendant asked the complainant if he could have sex with her. The complainant consented and he had sex with her.
19. At the close of the prosecution case, Mr Kelesi of Counsel for the Crown made an oral application to nolle count 3 of the amended information pursuant to section 68 of the Criminal Procedure Code. The defendant was therefore discharged of that offending.

The Defence Case

20. In his defence, the defendant had opted to give sworn evidence. The summary of his evidence is a complete denial of all allegation of sexual intercourse and common assault.
21. The defendant states that the alleged sexual intercourse in December 2017 could not possibly have occurred because he was not at Pangobiru at that time. He said he left Pangobiru on the 20^th November 2017 and went to drop the complainant and another girl at Tabarato and he and his son Darren went to Taro and caught a plane to Honiara.
22. In relation to the incident at night time in September 2018, he merely denied it. The defendant had his own version in relation to the incident of the 21^st September 2018. It is however, not disputed by the defendant that he instructed the complainant to massage him. He nonetheless denied pushing his finger into the complainant vagina. He admitted whipping the complainant with a usb cable because she refused to carry Gladys outside. He said he disciplined her for disobeying his instructions.
23. His record of interview with the police dated 26^th September 2018 was asked of him by Mr. Kelesi of Counsel for the Crown. Specific questions were put to him in relation to questions and answers 53, 54 and 55. As an explanation, he said he answered carelessly because he was angry with the police. He nonetheless agreed that the answers were what he told the police during the interview.
24. The defendant had called his 12 years old son Darren and Mary Tovalyn, his adopted daughter to give evidence on his behalf. The summary of DW2 and DW3 evidence is that the alleged offending by the defendant could not have occurred. They were living in the same house and they could have known if the allegations have in fact occurred. They nonetheless confirmed that the defendant whipped the complainant with a cable.
25. In this judgment, I am inclined to discuss the evidence of both the prosecution as well as the defence. I have seen the complainant giving evidence in court and have observed her demeanor. She was very composed while giving evidence both in-chief and in cross-examination. She was very sure of herself. She stood her ground in cross-examination. She was not swayed in any way by the defence.
26. Another aspect of the complainant’s evidence is that why would she lie about her own uncle, the man that brought her up as a father. There was no suggestion that there was any family feud before the offending.
27. The complainant’s mother is the defendant’s sibling had also chose to give evidence against the defendant. She was placed in a very difficult situation to give evidence on behalf of her daughter as against her own brother. These are peculiar circumstances in this case. Under the peculiar circumstance, I am inclined to believe the complainant’s evidence. She has no reason to tell lies about her uncle in court.
28. The evidence of the complainant is corroborated in substance by the evidence of PW2 as well in the exhibits marked ‘’P1’’,” P2’’ and ‘’P3’’ respectively.
29. The exhibit marked ‘’P1’’ confirmed that the complainant’s hymen was not present. It further confirmed that the cervix was smooth but was reddish and inflamed. There was no other evidence that suggests that the complainant had had sex with other males apart from the defendant.
30. In the exhibit marked ‘P3’ the defendant admitted to having sexual intercourse with the complainant. The exhibit was tendered with the consent of the defence.
31. Exhibit ‘’P2’’ is evidence of reconciliation between the family of the defendant and the complainant. It was done after the defendant had given his statement to the police.
32. The defendant’s evidence in court on the other hand was superficial. His demeanor was that of a person that intends to conceal the truth. He had offered no real explanation to the offending. His witnesses are not independent. DW2 is his son and DW3 is his adopted daughter. They came together from Choiseul for this case. In any event, DW2 and DW3’s evidence in court are of very little assistance to the defendant.
33. In view of the above discussion, I am satisfied beyond all reasonable doubt that the defendant is guilty of having sexual intercourse with a child under 15 years contrary to section 139 (1) (b) of the Penal Code (Amendment) (Sexual Offences) Act 2016. I am also satisfied beyond reasonable doubt that the defendant is guilty of common assault contrary to section 244 of the Penal Code (Cap 26).

Orders of the court

Count 1 – Guilty
Count 2 – Guilty
Count 3 - Discharged
Count 4 – Guilty
Count 5 - Guilty

THE COURT
Justice Maelyn Bird
Puisne Judge