R v Theodi [2021] SBHC 142; HCSI-CRC 488 of 2019 (15 February 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Theodi
Citation:
Date of decision:	15 February 2021
Parties:	Regina v Philip Theodi
Date of hearing:	2, 3, 4, 8 and 10 February 2021
Court file number(s):	488 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry PJ
On appeal from:
Order:	1. The verdict of the Court is therefore that the defendant is acquitted on the charge of having sexual intercourse with a child under the age of 15 years in September 2018, contrary to section 139(1)(a) of the Penal Code as amended by the Penal Code (Amendment)(Sexual Offences) Act 2016.
Representation:	Ms Belapitu for the Crown Mr W Ghemu for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 s 139 (1) (a), Evidence Act s 58, Criminal Procedure Code s 269 (1)
Cases cited:	Natai v Regina [2013] SBCA 14

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 488 of 2019

REGINA

V

PHILIP THEODI

Date of Hearing: 2, 3, 4, 8 and 10 February 2021
Date of Judgment: 15 February 2021

Ms Belapitu for the Crown
Mr W Ghemu for the Defendant

Lawry PJ

JUDGMENT

1. The Defendant Philip Theodi was charged with two counts of sexual intercourse with a child under the age of 15 years contrary to section 139(1)(a) of the Penal Code as amended by the Penal Code (Amendment)(Sexual Offences) Act 2016. The particulars of the offence for Count 1 are set out as:
   • “That Philip Theodi of Kologaru Village, Isabel Province, at Kologaru Village, Isabel Province on an unknown date between 31^st August 2018 and 1^st October 2018, did have sexual intercourse with Rency Esther Teila a child under 15 years of age, to wit 11 years old.”
2. The information contained a second count also numbered Count 1, the particulars of which are set out as:”
   • “That Philip Theodi of Kologaru Village, Isabel Province, at Kologaru Village, Isabel Province on an unknown date between 30^th November 2018 and 1^st January 2019, did have sexual intercourse with Rency Esther Teila a child under 15 years of age, to wit 11 years old.”
3. This Court treated the second Count in the Information as Count 2.
4. The Defendant pleaded not guilty to both counts. At the conclusion of the Crown case the Defence made a submission that there was no case to answer pursuant to section 269(1) of the Criminal Procedure Code, in respect of both counts. The prosecution conceded that there was no evidence on which the Court could convict in respect of the second Count. The Court agreed and upheld the submission on the second count. The Defendant was discharged in respect of that count. The Defendant was found to have a case to answer in respect of the first count.
5. On 10 June 2020 the Prosecution and the Defence filed a document entitled “Agreed facts, Issues, List of Witnesses and Exhibits.” The agreed facts are recorded as follows:
   • “1. The Defendant in this matter is Philip Theodi.
   • 2. The Complainant in this matter is Rency Esther Teila.
   • 3. The alleged incidents occurred on unknown date between 31^st August 2018 and 1^st October 2018 and unknown date between 30 November 2018 and 1^st January 2019.
   • 4. The alleged place of incident is at Kologaru Village, Isabel Province.”
6. The issue is recorded as “Whether or not the Defendant had sexual intercourse with the complainant.”

The case for the prosecution

7. The prosecution in opening their case set out the evidence on which it would rely to prove count 1. The prosecutor said that the complainant was playing with other children. The defendant called the complainant into his house and she went inside. The defendant took her to the verandah. He pulled up the complainant’s skirt, moved her legs apart and licked her vagina. He then laid on top of her belly and pushed his erect penis inside her vagina. He gave her $10.00 and told her to not tell anyone.
8. In closing the prosecution repeated same allegations as being the Crown case.
9. In support of the prosecution case the Crown called the complainant and her father. In addition, the Crown tendered the Record of Interview [Exhibit P1], a medical report dated 27 June 2019 from the Honiara Private Medical Centre concerning the Defendant [Exhibit P2], a medical report dated 7 May 2019 from the Buala Provincial Hospital [Exhibit P3], and statements from Elliot Ngili and Deidre Taramata both dated 27 May 2019 relating to their dealing with the defendant at the time of his interview by the Police.

The case for the defence

10. The defence acknowledge that the complainant is related to the defendant, lives in the same village and refers to him as “Granny”. He denied the Crown allegations including the allegations of calling the complainant to his house, removing her clothing and having sexual intercourse with her.

The evidence

11. The prosecution called two witnesses, the complainant and her father PW2. The complainant was called first, however, it became clear that she was having difficulty with giving evidence and with the consent of both the prosecution and the defence was stood down to allow PW 2 give his evidence first, so that he could sit with the complainant afterwards, as a support person.
12. PW2 gave evidence of the complainant’s age and that the Defendant is his uncle. He said the Defendant’s house is in the same village as his but in a different area from his own. He said his children call the Defendant Granny.
13. The complainant’s evidence was contradictory and inconsistent. It is recorded at this stage that no evidence was elicited from the complainant about the allegation of licking her vagina, no evidence was led about being given $10.00 and no evidence was led about her being told to not tell anyone.
14. The complainant said that her shirt and then her skirt were removed but she did not know who had done that. She was asked if she knew Philip Theodi and she said she did not. She was then asked if she knew anyone named Theodi and she said she did not. She gave evidence of someone having sexual intercourse with her, although the clothing she said was removed changed from being a skirt to being trousers then later in cross examination she said she did not know whether she had a skirt or trousers.
15. The complainant then said that the person who removed her shirt and her trousers was someone named Tupa. When asked whether she knew Tupa by another name, she said she did not. After breaks in the evidence she then changed her evidence to say that it was Theodi who did these things to her. In cross examination she acknowledged he had not done these things.
16. Of significance she said she had not previously seen the person who did these things to her and various described the person as “looking nice”, “being tall”, “being old” and “being young as opposed to old”.
17. The prosecution tried to have the complainant conduct a “dock” identification at a time when the complainant had not described the person at all. She eventually did not identify anyone other than to say over there indicating where three males were. The descriptions could be regarded as subjective, but, overall, the description given fitted the other two persons at the same end of the Courtroom better than they fitted the Defendant. Had the complainant identified the Defendant in these circumstances the Court could put little if any weight on such an identification. The Court considers it inappropriate to conduct a dock identification of someone who the complainant says she had not seen before and she could not describe with any particularity at all.
18. It is true that after a while she did refer to the offender as Theodi. The Court does not know how many people in the village would share that surname though it notes the defendant gave evidence of his having 6 children and 15 grandchildren.
19. In cross examination the complainant confirmed that she did not know of anything happening to her in September 2018. She confirmed that she did not know Theodi and had not played at his house. She confirmed her earlier evidence that she did not know who had taken off her shirt. She did not know whether she was wearing a skirt or trousers on the day she was referring to. She confirmed that the person who she said took off her clothes and who had sexual intercourse with her was a young man. [The Defendant was 75 years old at the time]. Finally, she agreed with defence counsel that the event of sexual intercourse with the Defendant had not happened.
20. The Defendant gave evidence denying the allegations and confirming the denial he gave to the Police. He was not cross examined about anything he may have said to the Police nor was any submission made in the Crown closing address about anything he may have said to the Police.

Onus and standard of proof

21. The onus is on the Crown to prove the essential elements beyond reasonable doubt. That is to the point where the Court feels sure.
22. In this case the defence gave evidence. It is recorded that when a Defendant gives evidence there may be three possible effects. Firstly, the Court can accept what the defence says in which case a defendant would have proved his innocence although there is no onus on him to do so. Secondly the Court may be left in a position of being unsure whether to accept his evidence or not. In that event the defence will have successfully raised a reasonable doubt and the Court would need to find him not guilty. A third possibility is that the Court may reject his evidence altogether as being untruthful. In that event the Court must not assume guilt but must then turn to the prosecution case to assess whether the evidence is so credible and reliable that it takes the Court to the position of feeling sure of the guilt of the defendant in which case a guilty verdict would be returned, there being proof beyond reasonable doubt.

Assessment of the evidence

23. In assessing the evidence of the defendant the Court cannot reject what he says as being untrue. On that basis the Court has a reasonable doubt about the proof of the prosecution case.
24. The Court recognise that the complainant is a young person and the Court must take care as to the significance of any inconsistencies and discrepancies in that light. In Natai v Regina [2013] SBCA 14 the Court of Appeal considered the issue of credibility and reliability and said at paragraph [22]:
    • “We have examined the various discrepancies and inconsistencies referred to by the appellant and are satisfied that the trial judge had them in mind when giving his judgment. He warned himself correctly as to the significance of the complainant's evidence. His conclusions are clearly supported by the evidence and were made with a clear awareness that the decision depended effectively on her evidence alone. On that foundation and analysis he found the complainant honest and reliable. We do not find any reason to interfere with that decision.”
25. In this case both counsel drew the Court’s attention to answers given by the complainant recorded as “I don’t know” to questions that it seems incredible that she would not know. In assessing the credibility of the complainant, the Court does not find her to be a reliable witness. Overall, the medical evidence supports an allegation that there is likely to have been some blunt penetrating force to the complainant’s vagina but it does not prove what that force was nor by whom. The inconsistencies of the complainant are so great and the denials of the very evidence the prosecution relied on were such that the Court is left in no doubt that the prosecution case falls well short of proof beyond reasonable doubt and the defendant is, as a result, acquitted on Count 1, the only remaining charge before the Court.

Verdict

26. The verdict of the Court is therefore that the defendant is acquitted on the charge of having sexual intercourse with a child under the age of 15 years in September 2018, contrary to section 139(1)(a) of the Penal Code as amended by the Penal Code (Amendment)(Sexual Offences) Act 2016.

Addendum to the verdict

27. Section 41 permits various orders to be made where a Court considers that the capacity of a witness to give evidence satisfactorily may be limited. This includes remote audio visual taking of evidence and the Court has access to equipment that can be used effectively but applications supported with appropriate evidence should be made before the day of trial.
28. Secondly the Court reminds counsel of the importance of bringing an application pursuant to section 58 of the Evidence Act before embarking on questions that would infringe that section, preferably before trial. If such a course cannot be anticipated, then counsel should ask to see the Judge in the absence of the witness before asking such a question.”

By the Court
Justice Howard Lawry
Puisne Judge