R v Murusiruru [2022] SBHC 73; HCSI-CRC 465 of 2021 (29 September 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Murusiruru
Citation:
Date of decision:	29 September 2022
Parties:	Rex v James Murusiruru
Date of hearing:	7 September 2022
Court file number(s):	465 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1 All 4 counts of defilement against the defendant pursuant to section 143 (1) (a) of the Penal Code (cap 26) are hereby dismissed as they are time barred under s.143 (2) of the Code. 2 Consequently, the defendant is hereby acquitted. 3 Right of appeal.
Representation:	Mr. Jonathan Liu Auga for the Crown Mr. John Resly Brook for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code [cap 26] S, 143 (1) (a), S 143 (2), Penal Code S 137 [cap 26]
Cases cited:	R v Davi [2020] SBHC 109

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 465 of 2021

REX

V

JAMES MURUSIRURU

Date of Hearing: 7 September 2022
Date of Decision: 29 September 2022

Mr. Jonathan Liu Auga for the Crown
Mr John Resly Brook for the Defendant

Judgment

Bird PJ:

1. The defendant Mr James Murusiruru is charged with 4 counts of defilement contrary to section143 (1) (a) of the Penal Code (cap 26). The defendant had pleaded not guilty to the charge and a trial into the allegations was heard by the court on the 7^th September 2022. Closing submissions were made on the 8^th and 9^th September 2022 and I now deliver my decision in this case.
2. At the time when I was in the process of considering my judgment after a trial, I have had the opportunity to peruse in detail the provision of the Penal Code that was allegedly contravened. I set out section 143 of the Code:
   • s.143 (1)Any person who –
   • (a) has or attempts to have unlawful sexual intercourse of any girl being of or above the age of thirteen years and under the age of fifteen years; or
   • (b) .......

Shall be guilty of a misdemeanour and shall be liable to imprisonment for five years:
Provided that it shall be sufficient defense to any charge under paragraph (a) of this subsection if it shall be made to appear to the court before whom the charge is brought that the person so charged had reasonable cause to believe and did in fact believe that the girl was of or above the age of fifteen years.

• (2) No prosecution shall be commenced for an offence under paragraph (a) of this section more than twelve months after the commission of the offence.
• (3) .................

3. Having perused the provision of s.143 (2) of the Code, I was inclined to dismiss the charges against the defendant. However, to be fair to the parties and to afford them the opportunity to be heard, I directed the Registrar of the High Court to bring to the prosecution and the defence’s attention the said provision. I also directed that they file submissions on that issue. To that direction, I am in receipt of submissions from both the prosecution and the defence on point. Having perused the respective submissions, there is no issue that the information against the defendant filed on the 13^th August 2021 was in fact time barred pursuant to s. 143 (2) of the Code.
4. The brief facts of the case are that the alleged offending occurred in about November 2010. When the matter was reported to the police, investigations were carried out and the defendant was charged for the offence of rape contrary to section 137 of the Penal Code (cap 26). Due to various reasons, the matter did not proceed to finality until several years after. The matter was committed to this court on the 2^nd October 2020 on the rape charge. The office of the DPP filed information on the 13^th August 2021, not on the rape charge but on a complaint of defilement under s.143 (1) (a) of the Penal Code. That information was therefore filed more than 10 years after the commission of the offence. These brief facts clearly shows that s.143 (2) of the Code was overlooked and was not taken into account by the office of the DPP at the time of the filing of the information.
5. In passing, I wish to say that lawyers from both the prosecution and the defence must always be vigilant in their reading and construction of the laws that are applicable in each case. It was unfortunate in this case that the one of time limitation under s.143 (2) of the Code was not even picked up by the prosecution as well as the defence and a trial was therefore conducted at the expense of the Solomon Islands Government. Such huge costs could have been avoided, had lawyers were there vigilant in their preparation of their cases.
6. In effect, there is case authority in this jurisdiction on the provision of s.143 (2) of the Code. Mr Brook for the defendant had referred to the case of R v David Davi [2020] SBHC 109, HCSI-CRC 142 of 2019. In that case the Honourable Chief Justice dismissed a charge of defilement against the defendant as it was time barred under s.143 (2) of the Code.
7. Having noted s.143 (2) of the Code and having perused the Davi case cited above, I order that all the charges against the defendant for defilement pursuant to s.143 (1) (a) of the Code are hereby dismissed. Consequently, the defendant is acquitted of all the charges contained in the information filed on the 13^th August 2021.

Order of the court

1. All 4 counts of defilement against the defendant pursuant to section 143 (1) (a) of the Penal Code (cap 26) are hereby dismissed as they are time barred under s.143 (2) of the Code.
2. Consequently, the defendant is hereby acquitted.
3. Right of appeal.

THE COURT
Justice Maelyn Bird
Puisne Judge