R v Zazu [2022] SBHC 123; HCSI-CRC 282 of 2022 (18 February 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Zazu
Citation:
Date of decision:	18 February 2023
Parties:	Rex v Niva Griffin Zazu
Date of hearing:	16 February 2023
Court file number(s):	282 of 2022
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	Accordingly, there is no case for the defendant to answer. Court will acquit the defendant of the three charges of rape.
Representation:	Mr Meioko for the Crown Mr Kwalai for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 S 136F (1) and (b), Criminal Procedure Code [cap 7] S 269 (1)
Cases cited:	R v Somae [2005] SBCA 18, Bosamete v Regina [2013] SBCA 16

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 282 of 2022

REX

V

NIVA GRIFFIN ZAZU

Date of Trial: 16 February 2023
Date of Ruling: 18 February 2023

Mr Meioko for the Crown
Mr Kwalai for the Defendant

Keniapisia; PJ

RULING ON A SUBMISSION OF “NO CASE”

1. The trial of this matter commenced at 8:30am. Defendant was tried on three charges or counts of rape contained in the information the Crown filed on 26/10/2022.
2. Defendant was indicted with three different counts on the same offence of rape contrary to Section 136 (F) (1) (a) and (b) of the Penal Code (Amendment) (Sexual Offences) Act 2016 (No 3 of 2016). Three different charges are for three different times which, the prosecution alleged the defendant committed the offence of rape with the complainant, Ms Marilyn Qila.

First charge

3. Defendant was charged with rape contrary to Section 136 (F) 1 (a) and (b). Prosecution alleged that on the 11/06/2020 the defendant had sexual intercourse with the complainant in a dwelling house at Barasipo Village, Western Province, by inserting his penis into her vagina, without her consent and at that time he knew about or was reckless about the lack of consent.

Second and third charge

4. Second and third charges have the same offence and particulars, as the first except, that the dates of the two subsequent alleged offending were 16/06/2020 (second charge) and 21/06/2020 (third charge).

Arraignment

5. Defendant was arraigned and pleaded not guilty to the three charges.

Prosecution first witness – the complainant

6. Prosecution’s primary witness, the complainant, gave evidence. But there was no evidence at all that came out from her to support the second and third charges. On the first charge, the complainant gave evidence that, the defendant touched her breast on 11/06/2019. She said on that date, she was sitting down. And her father (defendant) came and touched her breast. But said that was made on their agreement. Note that the allegations in the three charges are about sexual intercourse (penis and vagina penetration) without consent, not about breast touching without consent.
7. The last of the questions the prosecutor asked of the witness was, “Was this the only time Mr Griffin touched your breast or did anything to you”? Witness said “Yes”. Then the prosecutor requested a short adjournment.
8. When Court resumed, prosecutor submitted that based on what transpired (lack of evidence – complainant changed her story from that she initially gave to the police), he was moving to close the Crown’s case. And that he will not be calling any other witnesses. Defence did not see fit to cross-examine the witness and moved to submit a “no case”. Crown conceded with “no case” submission.
9. Counsel referred me to two Court of Appeal authorities on “no case”. I have read the two cases. The starting point for a “no case” in Solomon Island is Section 269 (1) of the Criminal Procedure Code (Cap 7). I read the two Court of Appeal decisions and their application of the law in Section 269 (1). In view of what transpired through the primary witness, I was satisfied beyond reasonable doubt that, at the conclusion of evidence of the witness for the prosecution, I considered that there is no evidence, that the accused or the defence may be required to answer. Hence, I will record a finding of not guilty. I am satisfied beyond reasonable doubt that there is no evidence to support any of the essential elements of the charge of rape, not even the elements of the “accused” or the “other person” – two of the five elements of rape.
10. Crown conceded that there is insufficient evidence pointing to the five essential elements of rape. Based on the insufficient evidence, the Crown submit this case does not meet the prima facie case, required by Section 269 (1) and expounded in the Court of Appeal cases of Somae^[1] and Bosamete^[2].
11. Accordingly, there is no case for the defendant to answer. Court will acquit the defendant of the three charges of rape.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] R v Somae [2005] SBCA 18; (2005) 2 LRC 431 (4^th August 2005).
^[2] Bosamete v Regina [2013] SBCA 16; SICA-CRAC 5 & 6 of 2013 (8^th November 2013).