R v Kwalagau [2023] SBHC 133; HCSI-CRC 527 of 2021 (25 August 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Kwalagau
Citation:
Date of decision:	25 August 2023
Parties:	Rex v John Kwalagau
Date of hearing:	28 July 2023 (Closing Submission)
Court file number(s):	527 of 2021
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	In conclusion when I weighed the credibility and trustworthiness of the complainant’s whole evidence and behaviour that night, I am left to doubt her trustworthiness in view of the inconsistent and contradictory evidence she gave. If I have doubt in my mind, slight it may be, I must give the accused the benefit of doubt and acquit him. That is what I will do here. I will acquit JK of the charge of rape. Order accordingly.
Representation:	Ms Naqu for the Crown Mr Alasia for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016, S 136 (f) (1) (a) and (b) [cap 26]
Cases cited:	R v Donovan [1934] 2 KB 498, Regina v Nickson [2008] SBHC 20; Regina v Iroi [1991] SBHC 56

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 527 of 2021

REX

V

JOHN KWALAGAU

Date of Hearing: 28 July 2023 (Closing Submission)
Date of Verdict: 25 August 2023

Ms Naqu for the Crown
Mr Alasia for Defendant

Keniapisia; PJ

JUDGMENT ON A CHARGE FOR RAPE

Introduction

1. By information filed on 24/09/2021, Mr John Kwalagau (“JK”) was charged for rape contrary to Section 136 (F) (1) (a) and (b) of the Penal Code Act (Cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act, 2016 (No.3 of 2016). Particulars of offence alleged that John Kwalagau of Kakara village, West Kwara’ae, at Fa’asitoro area Auki, Malaita Province, on an unknown date between 1^st of April to 31^st of May 2017, did have sexual intercourse with Ileen Ladoa, without her consent and knowing about lack of consent or being reckless as to the lack of consent.
2. Mr. JK was arraigned and pleaded not guilty. Prosecution was obliged to prove the allegation beyond reasonable doubt that Mr. JK raped Ileen Ladoa (“IL”). Prosecution called three witnesses in support of its case - complaint IL (PW1); John Yates (PW2); Lucy Faulkner (PW3) and tendered by consent statement by Jerry Ladoa, statement by Clera Leque (CL) and JK’s record of interview and JY’s house plan.

Elements of the offence and issues

3. The 5 elements of the offence of rape which the prosecution must prove beyond reasonable doubt are: -
   • (i) Identity of the offender,
   • (ii) Who has sexual intercourse,
   • (iii) With a person,
   • (iv) Without the other person’s consent,
   • (v) Knowing about or being reckless as to the lack of consent.
4. The identity of the defendant (JK) is not contested. Same for elements (ii) and (iii) - who has sexual intercourse and with a person respectively. That is to say Mr JK admitted having sexual intercourse with IL and says it was with prior consent (thereby negating elements (iv) and (v) – without consent and knowing or being reckless about lack of consent).
5. The two remaining issues for trial which the prosecution must prove are elements (iv) and (v): -
   • (i) .Whether or not IL consented to have sexual intercourse with JK?
   • (ii) . Whether or not JK knew about IL’s lack of consent or was reckless as to lack of consent?

Prosecution’s case
PW1 – IL, complainant

6. Crown’s key witness was IL. I must recount and analyse the whole of her evidence in chief from the start to the end.
7. On the evening of the night of the incident, IL was at her canteen located opposite the Correctional Centre next to the power house in Auki town. John Yates (“JY”), the commandant in charge of Auki Correctional Centre, invited IL and Lucy Faulkner (“LF”) to his residence on the hilltop at Fa’asitoro to have beers (drinking party). It was on a Friday evening during the pay week for Correctional officers in Auki. JY called IL on the mobile phone and told her that he was sending a taxi. The taxi was coming up from Kwaibala to pick IL and LF from IL’s front canteen. That was around 8 pm at night, IL estimated. I was thinking was it possible to have a high-ranking disciplined law enforcement officer doing this (hosting drinking party at his residence)?
8. The taxi arrived, picked up IL, LF (IL’s niece house girl) and a neighbour friend CL from Vella, Western Province. IL invited CL to accompany her. They arrived at JY’s residence and IL said she saw JK inside the taxi. On arrival at JY’s house IL saw JK got out from the taxi carrying a carton of beer and a plastic of whisky cola. JK led the way into JY’s house. The 3 girls followed. IL’s evidence had me thinking initially that she did not know JK would come with them in the taxi, because IL said JY made the invitation and arranged the taxi pick up. And IL said she saw JK inside the taxi and saw JK carry beers on arrival implying that she had no prior knowledge about JK coming to the drinking party.
9. They went into JY’s residence, sat outside at the veranda and JK started to share the beers amongst them. JK was the bar man. They all sat together drinking beer, smoking cigarettes, telling stories, playing music and dancing to the music. One can already imagine the type of noisy and heart-warming environment at the veranda, that night.
10. That was a Friday night. The ship will be arriving into Auki town, from Honiara at 12:00 mid night as usual. Before 12 mid night, the beers JK brought initially run out. JK and John Aiba (driver Correctional Services Auki) went out to buy more beers (around 10 pm). JY told IL to accompany John Aiba and JK on the trip. IL’s evidence had me thinking initially that JY was the main instigator of the drinking party and was commanding the activities for the night to buy more beers.
11. John Aiba (driver), JK and IL went to buy more beers from Kwaibala. They returned to JY’s house. The drinking party continued at the veranda, until JY asked them to move inside to the living area. In the living area, they sat around the music box. IL, LF and JK were dancing to the music. Then JY’s father in law (“in law”) arrived on the ship. This must be after midnight (1:00 am). JY went outside to the veranda to meet his in law. JK and the girls continued to drink inside the living area. From this time on JK and the girls’ activities (drinking, music, dance and story) cut down. They reduce their noises to respect JY’s in law’s presence in the house, IL said in her evidence. This made perfect sense to the Court. After JY’s in law arrived there was supposed to be silence to show respect to an elderly person (JY’s in law).
12. Then JY and his in law came inside. JY’s in law was going to bed. IL says from then on, they continued to drink in the living area. However, their noises cut down. They were drinking quietly. And then they wanted to go outside to the veranda again. So, JY, JK, IL and LF went outside to the veranda. Only CL sat on the couch in the living area inside. And JY’s in law went to sleep in room 2. By this time, it was after mid-night may be 1:00 am, 2:00 am or 3:00 am.
13. Then LF went inside to use the bathroom. She finished and IL went inside to use the same bathroom. IL finished and was coming out when JK also went to the bathroom and met up with IL along the corridor. JK came straight to IL. So, IL stepped to the side to give way for JK to go past. To IL’s surprise, JK came and grabbed her two hands. IL swung and freed her hands from JK. Then JK bend down and tackle IL with his hands on her 2 thighs/legs from the front and carried her up in the air. IL started to scream. IL screamed at JK to put her down and tried to get JK’s hands off her. JK walked very fast through the corridor, went inside room 1 and locked the door from inside. All the while IL was screaming. IL was screaming and shouting at JK to put her down and continued to hit JK’s head. CL who was sitting on the coach in the living room, next to the main entrance door from the veranda adjacent to room 1 shouted at JK saying - “What do you want to do. Put IL down. What are you doing?” This time I am starting to think that there must be a lot of disturbances (noises from screaming, shouting, struggling and talking). By now everyone was drunk. The silence rule/intent in respect of JY’s in law was broken.
14. From inside room 1, IL heard LF and CL run towards the door of room 1 and shouted at JK to open the door. JK answered back CL and said “Fuck You. CL you go out”. Inside the room IL continued to struggle. JK carried IL up in the air. IL was scared, because she feared JK will throw her down on the bed. JK eventually threw IL onto a high single bed on top of the mattress. JK’s hands still held on tightly to IL’s two legs, underneath IL’s buttock. On the bed JK pulled down IL’s tights and trousers at once. IL continued to swear and said JK was raping her. IL tried to kick JK out. But JK held onto her legs firmly and widened her two legs. JK was too strong for IL. All these must have caused a lot of disturbing noises to JY’s in law sleeping in room 2. The silence rule was broken.
15. Then next thing JK did was to lick inside IL’s vagina. JK lowered down his head between her two legs and licked inside her vagina. Then JK went on top of IL, put his two hands on top of IL’s two hands. And JK pushed his penis into IL’s vagina. IL felt very bad, was angry but helpless as JK continued to have sexual intercourse with her. Then IL plucked out for 2 seconds. She felt like someone shook her body. And she woke up only to see JK still having sexual intercourse with her. JK eventually pulled out from her vagina and was masturbating. So, IL knew JK had ejaculated. Court was thinking it is not possible for someone raping/struggling/forcing a girl (who is resisting) to be licking the vagina first and then going on top to have sexual intercourse (penetration) afterwards. But then I noted IL said she plucked out for 2 seconds. So JK may have licked her vagina so swiftly inside that 2 seconds. But if she plugged out will she know?
16. Then JK went and slept on another bed in the room. IL tried to get up but her thighs/legs were painful. IL then told JK that he raped her. But JK just laughed and said that IL wanted it too (it is not rape). By this time, it was already day break/in the morning. IL put on her tights and pants and went to room 3 where CL and LF were sleeping. IL woke CL and LF up. This time I was thinking that IL knew exactly where CL and LF slept before she went with JK inside room 1.
17. CL, LF and IL came outside to the veranda. JK already left. Only JY was sitting at the veranda. IL told JY, CL and LF before they left JY’s house that JK raped her. The 3 girls then left in a Rav 4 taxi to go down to IL’s canteen. IL did not report the matter to police or anyone else quickly. It took her more than one year to report to her husband Jerry and Jerry lodged a police case. IL did not report quickly and was waiting for the right time, because she was ashamed. She had a family problem (husband separate) so she was under stress. She was scared too because it happened at JY’s house, the commandant (boss) at Auki Correctional Centre. And that IL’s two teenage sons/boys knew JK very well. IL did not want them to know that JK raped their mother. Reasons for not reporting quickly sounds logical. But if IL was really angry about the alleged rape, will these logical reasons truly stop her from making a protest at the earliest opportunity?
18. IL gave statement to police on 31^st August 2018. By that time IL’s husband (Jerry Ladoa) already came back to reunite with her. The report to police was triggered by a swearing incident on a Friday night, whereby JK swore at IL and her husband Jerry, because IL deducted JK’s money for a $46.00 standing credit. Swearing incident also triggered IL to report the rape matter to her husband Jerry. Then Jerry Ladoa took compensation from JK. And Jerry Ladoa also opened the police case.

Analysis - contradictions and inconsistencies discovered in IL’s story

19. There were a lot of half-truths, inconsistencies and contradictions discovered in IL’s evidence from cross-examination and even from evidence of other crown witnesses. I will discuss the inconsistencies because they cast doubt in my mind about the credibility and truthfulness of the complainant’s whole evidence: -
    • (i) JY the initiator of the drinking party – IL painted the picture that JY was the organiser, initiator and financier of the drinking party at his residence. JY, a crown witness denied this. JK’s case through his counsel’s questions in cross- examination and JK’s record of interview suggested that JK and IL jointly organised/initiated the drinking party.
    • (ii) JY invited IL and sent a taxi - JY invited IL and LF to drink beers at his residence. JY sent a taxi that evening (around 7 or 8 pm) to pick IL and LF from IL’s canteen. IL invited CL to join her out that night (her neighbour girl friend from Vella, Western Province). JY denied inviting and sending a taxi to pick IL and LF up. JK’s case through his lawyer’s questions and from his admitted record of interview is that JK and IL planned the Friday night’s drinking party. JK took the taxi, had the beers inside and went to pick IL, LF and CL at IL’s canteen. They all went up to JY’s house on the hill top at Fa’asitoro, above the Auki Correctional Centre and IL’s canteen.
    • (iii) Trip out to get more beers - Beers run out around 10:00 pm. IL said JK and John Aiba (driver) went out to buy more beers at Kwaibala. IL said JY told her to go out with JK and driver to buy more beers. JY denied asking/sending IL to go with JK and the driver. By this time, it seemed clear that JK and IL were jointly taking active roles in buying more beers for the night. I noted in paragraph 8 that JK and IL also arrived with the initial beers in the taxi at JY’s residence earlier that evening.
    • (iv) Drinking beers at the veranda – IL said that they started drinking outside at the veranda of JY’s house. Drinking that night was shifting between the veranda outside and the living area inside the house. They were telling stories, smoking, drinking and dancing to the music. JY denied that they were drinking outside at the veranda. JY said that the veranda was too public. JY did not want the public to see them drink outside. So, they had to confine their drinking activities to inside of the house (living area). This made perfect sense to me. JY was the commandant at Auki Correctional Centre. The last thing a high-ranking disciplined officer will do is to allow his house to be publicly known as a drinking spot, in a small town like Auki.
    • (v) CL drinking or not? - IL and LF said that CL was not drinking beer with them that night. CL’s statement to the police admitted by consent said that she was drinking that night. Earlier in their evidences IL and LF say that CL was drinking that night. Then later changed their stories and denied CL was drinking.
    • (vi) IL told JY about rape at the veranda – IL said that she told JY in the morning at the veranda before the girls went back that JK raped her. IL also told JY later at her canteen. JY denied and said that, the only time he became aware was when the police case was opened.
    • (vii) In the morning – At day break IL came out from room 1 and checked on CL and LF who were sleeping in room 3. IL woke the two of them up. IL told the two of them that JK raped her. They all went outside and saw JK leaving. Only JY was outside at the veranda. Whilst IL said she told CL and LF in the morning, LF in her evidence in chief denied IL telling her anything in the morning. Additionally, IL said she came outside with CL and LF and saw JK leaving. But LF said herself, CL and IL were with JY at the veranda, when JK came and they all sat at the veranda. CL too said in her admitted statement that JK accompanied IL out to the veranda from room 1. After congregating outside at the veranda, CL, LF and IL took a Rav 4 taxi back to IL’s canteen.
    • (viii) IL said LF was outside at the veranda with JY and heard IL scream. So LF came inside, opened the main entrance door and shouted at JK as JK carried IL towards room 1. LF gave contradictory evidence. After JY’s in law arrived, they all went inside the living area. JY was outside at the veranda with his in law. LF said she was with JK, CL and IL in the living room, when she saw IL went to the bathroom, came back and JK carried IL to room 1. Then JK locked room 1. LF and CL, came knocked on the door to room 1 but JK locked it from inside. So, LF went outside to the veranda and shouted to JK through the window in room 1, facing the veranda.

Further Analysis

20. IL gave a clear, direct and short account of the core of her complaint (rape). I will adopt the same core evidence which I already discussed above at paragraphs 13 to 14. LF also gave corroborated evidence on how JK tackled and carried IL against her will into room 1. Supporting core oral evidence from LF, I will recount as follows: -
    • “Aunt went to the wash room. She came back and met up with John Kwalagau. I sat in the living room facing the wash room. John Kwalagau walked towards Ladoa grasped her from the back, lift her up and carried her to room 1. Ilene Ladoa was screaming saying, let me go down. I do not want it. John Kwalagau just carried her quickly to room 1. I shouted at him because he was doing that against Ilene Ladoa’s consent. I run to the door of room 1, but it was already locked from inside. So, I went outside to the veranda and shouted through the window to room 1. No one answered me so I came back quickly.”
21. On the core evidence of rape, it is clear, corroborated and short. However, I need to consider the whole of the evidence and not just that part of the evidence. On the whole of the evidence, I am convinced that JY did not plan or organise the drinking party and did not invite them that night. In all probabilities the drinking party was organised by JK and IL. It was JK’s fortnightly salary that Friday. JY is JK’s boss. JK and IL along with LF and CL arrived at JY’s house with the initial beers. JK and IL went out to get more beers.
22. JK and IL knew each other very well as friends and business partners (egg supplier and egg buyer), JK was a regular customer at IL’s canteen, they live close to each other’s work place (canteen and Auki Correctional Centre), JK bought powder for IL during one of JK’s trips to Honiara and JK knew IL’s two teenage sons very well (implying JK knew IL very well too).
23. IL was at liberty to engage in organising those events/drinking party with JK because she was living by herself then (husband with another woman in Honiara). JK picked IL, LF and CL in a taxi with the initial beers and went up to JY’s residence. JY deny inviting them and deny calling a taxi to pick them up. JK and IL arriving together in a taxi with the initial beers imply that they planned the event. They bought the beers. They took a taxi to JY’s residence.
24. The initial beers finished around 10 pm. JK and the driver went out to get more beers before ship arrived from Honiara at 12 mid-night. IL said JY asked her to accompany JK and driver to get more beers, a fact JY denied. By now it was clear that IL was taking active roles in getting more beers for the night together with JK. JK and IL as friends were going out together at night with the driver.
25. JK and IL got additional beers before the ship arrived. Normally ship arrive at 12 mid night from Honiara. JY’s in law arrived on the boat and must have reached JY’s house around 1 am. After that IL said in evidence, JY stayed at the veranda with his in law. CL, LF, JK and IL went inside to the living area. IL said from there on, they lowered their music. They cut down on their noises and were drinking and telling stories quietly because JY’s in law was in the house. So, in my mind there were no more noises (from screaming, shouting, hitting the door and struggling) after 1 or 2 or 3 am as a show of respect for the presence of JY’s in law in the house.
26. Sometime after 2 am, JY’s in law went inside to have his rest in room 2. JY remained outside at the veranda. CL, LF, JK and IL sat and continued to drink their beers quietly with their music low inside the living area. I noted that the bath room is further down from room 1 next to room 3. To come back towards the main entrance door on the walk way you will have to come past room 2 before you reach room 1. Room 1 is located next to the main entrance door. If JK tackled IL close to the bathroom and IL was screaming, shouting and swearing at JK, it would cause loud noises and a big disturbance to JY’s in law who was sleeping in room 2 which adjoins to room 1.
27. JK and IL knew JY’s in law was sleeping inside room 2. And they will not make a lot of noise like talking, screaming or shouting inside room 1. In support of my view here, JK and IL slept quietly in room 1 next to room 2 till day break, because they must have gone into room 1 around 2/3 am.
28. If IL did not like what JK did to her, she would not stay with JK inside room 1 until day break. JY said he woke up at around 4 am and came inside the living area. He saw CL sleeping on the couch. LF, IL and JK were no longer inside the living area. So, at 4 am IL was already inside room 1 with JK. JY’s in law was sleeping inside the adjoining room 2. LF went to sleep inside room 3. CL must have joined LF to sleep inside room 3 after 4 am. This is because when IL come out from room 1 at day break, she went straight and woke CL and LF from inside room 3. I imply that before going into room 1 to sleep with JK, IL knew exactly where the 2 girls slept. JY who was alone at the veranda after his in law went to sleep denied hearing any unusual noises – shouting, screaming, struggling or hitting the door etc.
29. I do not know and it does not make logic in my ears that someone who is struggling to rape a resisting girl or woman can also lick her vagina first. Raping is something that is done quickly because of fear and resistance/struggle. And you will not have the time and space to be licking first and followed by sexual intercourse later.
30. CL said, at day break (in the morning) JK led IL out from room 1 and met up with JY, CL and LF at the veranda before the three girls went back to IL’s canteen in a Rav 4 taxi. This imply to me that JK and IL came out together silently in the morning from room 1, the same way the two of them silently went inside to sleep from around 2/3 am. I noted above that at 1/2/3 am silence became the golden rule to respect JY’s in law sleeping inside the adjoining room 2.

Conclusion and Orders

31. Court took the above approach spending a lot of time reviewing the whole of the evidence to understand the behaviour of the complainant in terms of her alleged lack of consent. On review of the complainant’s conduct, viewed as a whole, I am satisfied beyond reasonable doubt that IL consented. In other words, IL’s conduct viewed as a whole as discussed in the foregoing paragraphs, tells me that JK and IL planned to drink beer that night at JY’s residence. JK and IL got the initial beers for the night. JK and IL went out together at night to get additional beers. JK, IL, LF and CL were drinking quietly in the living area from 1 am to 3 am or thereabout. JY was outside at the veranda alone after his in law went inside to sleep around 2/3 am. JY did not hear shouting, screaming, struggling or unusual loud noises from outside the veranda. JK and IL went quietly into room 1 and sleep in there for the remaining hours before day break and have sexual intercourse to conclude their drinking party as jointly planned. If there was screaming and shouting it would be very loud noise because by 3 am everyone was very drunk. If there was screaming inside room 1, or in the living area, JY’s in law sleeping in the adjoining room 2 will be awaken. Equally if there was screaming and shouting in the living area, or at the veranda, JY would be concerned to come and attend to the problem happening in his house (JY being a senior disciplined officer of Correctional Service at Auki). JY deny hearing any unusual noises – screaming and shouting.
32. Two cases that Counsel cited to me allow me to take this approach. First case says: -

“Consent, being a state of mind, is to be proved or negated only after a full and careful review of the behaviour of the person who is alleged to have consented. Unless a jury is satisfied beyond reasonable doubt that the conduct of the person has been such that, viewed, as a whole, it shows that she did not consent, the prisoner is entitled to be acquitted”^[1].

33. The second case is a local authority^[2] and also express, adopt and apply the same sentiments. And so, I feel very safe to take this above approach.
34. In conclusion when I weighed the credibility and trustworthiness of the complainant’s whole evidence and behaviour that night, I am left to doubt her trustworthiness in view of the inconsistent and contradictory evidence she gave. If I have doubt in my mind, slight it may be^[3], I must give the accused the benefit of doubt and acquit him. That is what I will do here. I will acquit JK of the charge of rape. Order accordingly.

THE COURT

JUSTICE JOHN A KENIAPISIA

PUISNE JUDGE

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^[1] R v Donovan [1934] 2 KB 498, page 504.
^[2] Regina v Nickson [2008] SBHC 20; HCSI-CRC 328 of 2006 this Court applying Donovan.
^[3] Regina v Iroi [1991] Muria