R v Tesinu [2021] SBHC 38; HCSI-CRC 548 of 2019 (17 May 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Tesinu
Citation:
Date of decision:	17 May 2021
Parties:	Regina v Willie Tesinu
Date of hearing:	11, 13, 14 and 15 May 2021
Court file number(s):	548 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1. The defendant is not guilty of the charge of rape contrary to section 136 F (1) (a) & (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. 2. The defendant is hereby acquitted of the said charge. 3. The court is unable to convict on a lesser charge of ACABH contrary to section 245 of the Penal Code (cap 26). 4. The defendant is to be released at the rising of the court.
Representation:	Mr. Andrew Meioko for the Crown Mr. Benham Ifuto’o for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 [cap 26] Section 136 (F) (a) (b), Section (F) (1) (a) & (b), evidence Act Section 118, Penal Code Section 245, Constitution 1978 Section 10 (2) (b)
Cases cited:	Regina v Mede [2010] SBCA 4, Regina v Oli [2018] SBCA 3

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 548 of 2019

REGINA

V

WILLIE TESINU

Date of Hearing: 11, 13, 14 and 15 May 2021
Date of Decision: 17 May 2021

Mr. Andrew Meioko for the Crown
Mr. Benham Ifuto’o for the Defendant

JUDGMENT

Bird PJ:

1. The defendant Mr Willie Tesinu is hereby charged with one count of rape contrary to section 136 F(1) (a) (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. After having admitted the police statement of the complainant (now deceased) dated 5^th June 2019, Mr. Andrew Meioko of counsel for the prosecution had sought time to finalise the PTC document in this case. Upon resumption, the PTC document was filed and tendered in court. At this stage, the defense had indicated their intention to object to the calling of two prosecution witnesses on the basis that their evidence on the issue of fresh complaint would amount to hearsay because the complainant had not stated in her statement dated 5^th June 2019 that she in fact told those witnesses about the alleged rape incident. The court raised the issue with the prosecution in court.
2. After having sought further advice from the Director of Public Prosecution, Mr. Meioko for the prosecution did not adduce further evidence from the two proposed prosecution witnesses. Having admitted the police statement of the complainant (deceased) as evidence in the trial against this defendant, that statement is the only evidence against the defendant at this instant. The case for the prosecution was then closed.
3. Upon the close of the case for the prosecution, Mr. Benham Ifuto’o of counsel for the defendant informed the court that his client had opted to remain silent. The court had further gather from the defendant in court that he will exercise his right to remain silent.
4. The offence of rape is very serious and carries a maximum sentence of life imprisonment. It is that serious because it intrudes into the privacy of the complainant/victim. In any criminal case, I must remind myself that the burden of proof rests with the prosecution all through out. That burden does not shift to the defense at any stage of the proceeding. That burden of proof is proof beyond all reasonable doubt. If in a case, the court has some doubt even as slight as it may be, the court must acquit the defendant. With that test in mind, I now turn to state the elements of the offence of rape that the prosecution must prove beyond reasonable doubt.
5. The elements that the prosecution must prove in this case against the defendant are the following:
   1. The defendant
   2. Date
   3. Place
   4. Had sexual intercourse
   5. With the complainant
   6. Without consent
   7. Being reckless as to lack of consent

Discussion

6. The only evidence against the defendant in this case is the police statement of the complainant who is now deceased dated 5^th June 2019. Because the complainant was deceased and was an unavailable witness, that piece of evidence was not subject to any cross-examination by the defense.
7. The relevant parts of the witness’s statement are that on the alleged date of offending, the defendant tied her neck with a rope. She fell unconscious. When she regained consciousness, she was the defendant on top of her. She fell the defendant’s penis slightly penetrated her vagina. She struggled but her body was numb and weak. When she regained consciousness again, the defendant was gone. She had a shower, got changed and walked to the main village where she was taken to Gizo Hospital.
8. The evidence of a further two prosecution witnesses was objected to by the defense and there were put to the court as they will both amount to hearsay evidence. The only other evidence before this court against the defendant is the finding of Dr Angeline Naqu dated 5^th June 2019. The doctor stated inter alia that there was no blood or laceration/bruises on the complainant’s genital area.
9. In this case, it is unfortunate that the complainant is deceased. I have also noted that the police had obtained a further statement of the deceased witness on the 3^rd July 2019. That statement was more detailed and if the prosecution had also included that statement in their application under section 118 of the Evidence Act 2009, they would have been able to call the other two witnesses on the issue of fresh complaint.
10. The only admissible evidence before me now is the unchallenged police statement of the deceased witness and the medical report. The evidence of the deceased witness is very brief. It is not corroborated by independent evidence on all material issues. The complainant was examined by Dr Angeline Naqu a day after the alleged incident. It was noted that there was no blood and laceration or bruises seen during examination.
11. If the court accepts what the deceased witness had stated in her police statement of the 5^th June 2019, then the circumstances of the alleged rape incident was somewhat brutal. She alleged to have been tied with a rope by the defendant. That allegation could have been confirmed by the medical report dated 5^th June 2019. On that issue, the doctor stated there was noticeable bruises over her neck 2.2cm width and 3cm across. There was also superficial patchy bruises at along the neck.
12. On the above discussion, it is important to note that there must be some evidence to corroborate the evidence of the deceased witness. Section 10 of our Constitution confers the rights of an accused person for a fair trial within a reasonable time by an independent and impartial court. That right includes the right to cross-examine prosecution witnesses either by himself or through counsel of his choice. That right has been highlighted in the case of R v Mede [2010] SBCA 4, CA- CRAC 20, and I quote:
    • “Where a citizen of the Solomon Islands is deprived of the right to cross-examine a crucial witness by counsel of his choice the trial must be regarded as unfair and resulting conviction unsafe and unsatisfactory”.
    • The court had further gone on to say that “it was preferable to determine that matter on the ground of unfairness in that the accused person was deprived of the opportunity of putting forward his defense through the lawyer of his choice”
13. With the above views of the Court of Appeal, it is incumbent on this court to make sure that a person accused of committing a criminal offence is afforded a fair trial within a reasonable time by an independent and impartial court.
14. Having noted the guidance provided by the Court of Appeal in the above case, I am of the view that notwithstanding the fact that I have admitted into evidence the statement of the unavailable witness, there is no independent evidence to corroborate that evidence in any or all material respect.
15. If the court convicts on the uncontested and uncorroborated statement of the unavailable witness, it would result in an unfair trial for this defendant.
16. Having discussed the above circumstances, I am not satisfied that the prosecution had proved beyond reasonable doubt all of the elements of rape contrary to section 136 F (1) (a) & (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. I am not satisfied beyond reasonable doubt that the defendant had sexual intercourse with Ms. Joana Terariki without her consent and being reckless as to lack of consent at Nusabaruku on the 4^th June 2019.

Alternative charge of Assault causing actual bodily harm (ACABH)

17. I am further asked by the prosecution that if I do not find the defendant guilty of rape, I should be entitled to convict him on a lesser charge of assault causing actual bodily harm (ACABH) contrary to section 245 of the Penal Code (cap 26).
18. As discussed earlier in this judgment, there is evidence of assault on the unavailable witness. From the witness statement exhibited “A”, there is evidence of assault. That evidence is corroborated by the doctor’s report.
19. This court is entitled to convict an accused person on a lesser charge notwithstanding that he was not specifically charged for that offence. The Court of Appeal had discussed that issue in the case of R v Oli [2018] SBCA 3, SICOA-CRAC 32 of 2017.
20. If there was evidence to convict on a lesser charge, the court has that power to so convict an accused person accordingly. In the case of Oli, the Court of Appeal convicted the respondent on a lesser charge notwithstanding he was not charged with that offence.
21. In this particular case, the defendant is charged with the offence of rape. The lesser charge under the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 is one of indecent act on a female. These are offences against morality under our Penal Code.
22. I am asked to convict on a lesser charge of ACABH. That type of offending comes under the offences of endangering lives and assaults. The highest offence in that category would be one of murder, to manslaughter to grievous harm, to ACABH and to common assault.
23. In this case, the defendant is not charged under the provisions of endangering lives and assaults. He is charged with an offence under the offense against morality. On that basis I am unable to convict him on a lesser charge of ACABH.
24. Section 10 (2) (b) of the Constitution provides;
    • Every person who is charged with a criminal offence shall be informed as soon as reasonably practicable in detail and in a language that he understands, of the nature of the offence charged
25. This defendant had never been charged with the offence of ACABH and the like offences under endangering life and assaults as required under section 10 (2) (b) of the constitution.
26. It is evident from the statement of the unavailable witness and the doctors report that the witness was assaulted. Apart from the charge of rape, it could have been prudent for the prosecution to also charge the defendant with the offence of ACABH or the like offences they have failed to do that in this case.
27. For the above reasons I am unable to convict the defendant on a lesser charge of ACABH contrary to section 245 of the Penal Code (cap 26).
28. It is unfortunate for me to say this but in passing, I would say that there has been poor investigation conducted by the police in this case. The drafting of the information on file also does not take into account that whole factual situation of the case. In that regard, I would urge the police and the prosecution to be more vigilant in their respective duties to the court so that the court can be fully assisted to dealt with cases expeditiously and justly.

Orders of the court

1. The defendant is not guilty of the charge of rape contrary to section 136 F (1) (a) & (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. The defendant is hereby acquitted of the said charge.
3. The court is unable to convict on a lesser charge of ACABH contrary to section 245 of the Penal Code (cap 26).
4. The defendant is to be released at the rising of the court.

THE COURT
Justice Maelyn Bird
Puisne Judge