R v Tuha [2021] SBHC 72; HCSI-CRC 450 of 2019 (13 August 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Tuha
Citation:
Date of decision:	13 August 2021
Parties:	Regina v Richard Tuha
Date of hearing:	26,27, 29 July 2021 and 5 August 2021
Court file number(s):	450 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Lawry; PJ
On appeal from:
Order:	1. The Accused is therefore convicted of rape as charged.
Representation:	Mr A Kelesi for the Crown Mr G Muaki for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment)(Sexual Offences) Act 2016 S136 (F) (1) (a) and (b), S 136 F
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 450 of 2019

REGINA

V

RICHARD TUHA

Date of Hearing: 26, 27, 29 July 2021 and 5 August 2021
Date of Judgment: 13 August 2021

Mr A Kelesi for the Crown
Mr G Muaki for the Defendant

Lawry; PJ

VERDICT

1. The Accused Richard Tuha is charged with one count of rape contrary to section 136F (1) (a) and (b) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. He pleaded not guilty to the offence.
2. The complainant comes from Tubi in Isabel Province. In 2017 when she is said to have been 12 years old she was brought from Isabel Province to live with PW3 who is from the same village. The complainant works as a house girl for PW3.
3. On Friday 8 February 2019 the complainant had a disagreement with PW3. PW3 was unhappy with her because there were some tasks that she had not undertaken. PW3 was to go to a family function that night and the complainant did not want to go. PW3 was disappointed that the complainant did not accompany her. The following morning the complainant was still unhappy and PW3 was unhappy with her. PW3 was to be involved in a work party and PW3 refused the offer of assistance from the complainant because of the disagreement the previous evening. PW3 was busy in the morning. She came back by lunchtime and was upset that nothing was prepared for lunch and there was no water. The complainant and PW2 went to St Nicholas School to get some water. PW3 and her husband also went to get water from a different place. After they returned food was prepared and after the meal PW3 went back to work. The complainant was still at home after the meal.
4. I find that by this time it was well into the afternoon. PW2 was clearly very aware that the complainant was unhappy. After PW3 had left, PW2 suggested that the Complainant and she go to stay with the aunt of PW2. PW2 told the complainant to wait at the shops, which she did. PW2 had called the Accused who came to the Bahai area where the complainant and PW2 were. PW2 directed the complainant to get into the taxi. PW2 also got into the taxi. Then PW2 said she had to get her bag. She got out of the taxi and immediately the taxi left. The complainant asked both the Accused and the taxi driver where they were going but neither of them answered her. She did not know either of them. The taxi drove to the side of the golf course at Ranadi. The driver got out. The Accused then climbed over the seats and got into the back seat with the Complainant. It is clear that the Accused had earlier made an arrangement with the taxi driver (DW1) to do this. DW1 left the taxi, locking the doors of the taxi and went to a market stall which was a little further up the road.
5. The complainant said that the Accused said he wanted to have sex with her. He pulled down her lavalava and tied her hands with the lavalava. He removed her tights. She struggled with him unsuccessfully. He used his fingers, putting them in her vagina. She said she was crying. She said the Accused then licked her vagina, used his fingers again and had sexual intercourse with her. She said he had sexual intercourse with her several times and described him ejaculating. She said he put his penis on her breast. He then gave her clothes back to her to put on. She said that he then called the taxi driver back. He also gave her money which she said was $500.00. She said that the Accused told the taxi driver then to leave and they drove back to St Nicholas area. On the way PW2 rang the phone of the Accused. The taxi stopped to collect PW2 then drove them to Kobito market near Naha. The Accused gave money to PW2. PW2 and the complainant then walked to the house of the aunt of PW2. Once there the complainant had a shower and washed her clothes. They stayed there the night.
6. The next morning PW3 had found where the complainant was. Her husband arrived in the car and collected her. Once back at St Nicholas, PW3 talked with the complainant and learned what had happened to her. She took the complainant to the clinic at Kukum where she was examined by PW4.

The onus and standard of proof

7. As this is a criminal charge the onus of proving each element of the charge lies on the Crown from the beginning until the end of the trial. The standard of proof required is proof beyond reasonable doubt.

The case for the prosecution

8. The prosecution case is that the complainant was unhappy with PW3. She was then aged 15 years and was not very familiar with Honiara. PW2 arranged for her to go and stay at Naha and contacted the Accused to assist them to get there. He is a 60 year old man who is very short. When the complainant was in the taxi PW2 left her to collect her bag. The taxi drove to Ranadi. The driver left the vehicle and the Accused then raped the Complainant in the rear of the vehicle. After the rape the driver returned, then collected PW2 and drove them to the market close to Naha. The medical examination the following day provided evidence that supported the Complainant’s account.

The case for the defence

9. There is no dispute that the Accused was in the car with the Complainant. The defence says, is it not likely that that the Accused would have had sexual intercourse with the complainant in a vehicle that was just on the side of the road. The defence says that although there was tinting on the car windows, the tinting was light tinting only on the windows at the side, contrary to the evidence led from the Crown of the car being fully tinted. The defence also says that the timing suggested to PW2 was such that it is unlikely that there could have been sexual intercourse in the vehicle. The defence says that passersby would have seen what happened in the vehicle and the car would have rocked with the struggle. There is no evidence of a member of the public seeing such things. The defence says that if the hands of the complainant were tied she would not have been able to put her clothes on after the alleged rape. The defence says that the complainant is said to have looked happy afterwards and used the phone of the Accused to play games on the return to St Nicholas. The defence says, how reliable is the complainant if she was unsure about her own age. The defence also submits that the injuries observed by PW4 were injuries observed because of the medical history that had been taken on Sunday 10 February 2019. The defence says that if the Complainant had been raped why were her clothes not damaged and stained with blood. The defence says that the Crown has not proved beyond reasonable doubt that the Accused had sexual intercourse with the Complainant and says that if the Court finds there was sexual intercourse the Crown has not proved that it was without consent.

The evidence

10. The Court is satisfied that the Complainant was either 14 or 15 by the date of the alleged offence. The events occurred around two and a half years ago. The Complainant impressed as a reliable honest witness. She described being in the back of the taxi, after the taxi driver had left, locking the doors. She described how the Accused climbed into the back seat, tied her hands together and performed various sexual acts on her including the penetration of her vagina with his penis. I record that the Accused is short. Evidence was not given of his actual height but from observation in Court it is likely that he would not be as tall at 5 feet. This would have made it quite easy for him to move from the front seat of the taxi into the rear as described by the Complainant. The Complainant confirmed that she struggled with the Accused and was clearly not consenting to the sexual acts of the Accused.
11. In cross examination she confirmed her evidence. The only challenge to whether or not she had been subjected to non-consensual sexual intercourse was a challenge to whether or not the taxi was fully tinted, whereabouts beside the road it was parked and the likelihood of other people and vehicles being close by. She was not challenged about whether there had been sexual intercourse and not challenged at all about whether she had consented to sexual intercourse. Significantly it was not suggested to her that she had used the cell phone of the Accused to speak with PW2 or to play games on the cell phone. I put no weight on the evidence of DW1 and indeed PW2 in that regard. There may have been other vehicles in the vicinity and even others walking by on the road. Whether or not the people in that area noticed anything unusual in the taxi is not known. The submission by the defence that nobody noticed anything needs to be put in context. All that can be said is that there was no evidence put before the Court of passersby noticing anything untoward. That is a very different concept from that submitted by the defence. Whether the car was fully tinted or only tinted at the sides does not need to be resolved in the circumstances. Even tinting on the side windows would make it unlikely that passersby would see what was happening in the car.
12. PW4 was an impressive witness. She described examining the complainant confirming that a duty nurse who was not specialized in conducting such examinations took the history details from the complainant in accordance with the usual protocol. PW4 noted the labia were swollen and there were some minor lacerations. On the internal examination she found bruising, lacerations and grazing on the walling of the vagina. She confirmed her report and confirmed the absence of the hymen and signs of bleeding around the vaginal canal. She concluded that the evidence was consistent with penetrating force in the genitalia of the complainant. In cross examination she confirmed the penetration and considered it unlikely to have been self-inflicted. It is noted that the defence did not suggest to the Complainant that the injuries she suffered were other than the result of the Accused having non-consensual sexual intercourse with her.
13. PW2 gave evidence that could not be reconciled with other parts of her evidence. I accept that she had contacted the Accused to ask for assistance. Her evidence is important in identifying the Accused as the person who was in the taxi beside the driver. Her evidence of getting into the car then leaving the Complainant in the car while she said she went back to the house to get her bag and let others know she was going to stay at her aunts’ house in Naha did not make sense. This is especially so as she said she did not return for 20 to 25 minutes. She later asked the Complainant if the Accused had done something to her. That is not consistent with her description of the Complainant being upset before they got into the taxi, then playing on the cell phone of the Accused and apparently happy afterwards. I reject that evidence. PW2 was clearly a friend of the Accused and in her evidence attempted to do all she could to assist the Accused. I accept that the Accused gave her money when they reached Kobito market, as confirmed by DW1. In the circumstances it is understandable why the Complainant thought that PW2 had planned the opportunity for the sexual attack with the Accused. I find that PW2 was not a credible witness.
14. PW3 gave evidence of the background and the disagreement with the Complainant. She gave ‘recent complaint’ evidence and took the Complainant to the Kukum clinic. She also gave evidence that assists with the timing of the events. She had been busy throughout the morning and was angry that lunch was not prepared when she came back to the house. She gave evidence of going to collect water which was well after lunchtime. The Complainant had been there at lunch time but had left by the time PW3 had returned from taking an employee to work. From her evidence I am satisfied that when the Complainant got into the taxi must have been well into the afternoon and not in the morning.
15. DW1 was less impressive than PW2. His evidence about picking up the Accused who he says he did not previously know, could not have been in the morning. If he had been to the wharf area looking for customers coming from the ship from Malaita that must have been after 3.00 pm. I reject the evidence asked in a leading way that he had gone to collect passengers from the ferry which arrived at 5.00am. If it was the 3.00pm ferry that he had been to meet, that would fit in with the evidence of PW3 and the Complainant. The Complainant had said that as they walked to Naha after being dropped off from the taxi it was starting to get dark.
16. When DW1 stopped the taxi at the side of the road next to the golf course he must have done as a result of a pre-arrangement with the Accused. His evidence of pulling over with two passengers he did not know and without any explanation getting out of the taxi and walking some distance further along the road to buy betelnut, which he says he does not use, also buying a drink and cake did not make any sense except that he must have left the taxi as a result of the pre-arrangement and returned to the taxi as the Complainant said, only after he was called back by the Accused. Overall I found he was not a credible witness and reject his evidence of timing. I have also referred to his evidence about the Complainant using the cell phone of the Accused. I reject that evidence. It was not put to the Complainant. In any event there was no evidence given about how he would know which cell phone may have belonged to Accused if the Accused was a passenger he had not previously known. Overall, I reject his evidence as being unworthy of credit.

Discussion

17. The evidence of PW4 supports the evidence of the Complainant. I am satisfied beyond reasonable doubt that the Accused climbed into the rear of the taxi. He restrained and undressed the Complainant, he performed various sexual acts on her including penile penetration of her genitalia. I am satisfied beyond reasonable doubt that she did not consent to the sexual intercourse. This was an attack by a mature man on a girl who was aged either 14 or 15. He had restrained her by tying her hands together. It is clear that she did not consent and that must have been clear to him.
18. Although the defence did not argue that the Accused did not know about or was reckless as to the lack of consent, I am satisfied beyond reasonable doubt that he knew she did not consent but proceeded to have sexual intercourse with her without her consent.
19. In assessing the evidence, I repeat that neither PW2 nor DW1 were credible witnesses. I turn to the evidence that I find reliable and am satisfied that the Crown has proved beyond reasonable doubt that the Accused had sexual intercourse with the Complainant, the did so without her consent and he did so knowing that she did not consent. It follows that the Crown has discharged the onus on it to prove the essential elements of section 136F of the Penal Code as amended by the Penal Code (Amendment)(Sexual Offences) Act 2016, beyond reasonable doubt.

Verdict

1. The Accused is therefore convicted of rape as charged.

By the Court
Justice Howard Lawry
Puisne Judge