R v Kiedea [2023] SBHC 14; HCSI-CRC 606 of 2019 (25 April 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Kiedea
Citation:
Date of decision:	25 April 2023
Parties:	Rex v Michael Kiedea and Eric Nelirual
Date of hearing:	17 April 2023, 18 April 2023, 19 April 2023 & 21 April 2023 (Closing Submission)
Court file number(s):	606 of 2019
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	I am not satisfied beyond reasonable doubt that the co-accused are guilty of the charge of rape or unlawful sexual act without consent. I will acquit the co-accused accordingly. Michael and Eric, I acquit the two of you of the allegations of rape.
Representation:	Mrs Manu and Ms Mutukera for the Crown Mr Kwalai for the Defendants /Co-Accused
Catchwords:
Words and phrases:
Legislation cited:	Penal Code [cap 26] S 136
Cases cited:	Regina v Tafilanga [2007] SBHC 98

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 606 of 2019

REX

V

MICHAEL KIEDEA AND ERIC NELIRUAL

Date of Hearing: 17 April 2023, 18 April 2023, 19 April 2023 and 21 April 2023 (Closing Submission)
Date of Decision: 25 April 2023

Mrs Manu and Ms Mutukera for the Crown
Mr Kwalai for the Defendants/ Co-Accused

VERDICT ON A CHARGE OF RAPE

Introduction and single issue for trial

1. Mr Michael Kiedea and Mr Eric Nelirual are the co-accused. The co-accused are jointly charged with rape contrary to Section 136 of the Penal Code Act (Cap 26), the old Act, because the offending took place prior to the Sexual Offences Amendment Act coming into force in 2016. The particulars of offending shows that, the co-accused both from Nenumbo Village, Temotu Province, on the 4^th February 2016, had unlawful sexual intercourse (penetration) with Matilda Ngawi (complainant/victim) without her consent.
2. Mr Eric Nelirual came late to trial. Court wanted to commence trial without Eric. It is for the Crown to prove Eric’s guilt. Eric does not have to do anything. He may as an option choose to remain silent. Court wanted to use the previous plea, which the co-accused took in year 2021, before Chief Justice. Co-accused pleaded not guilty. Counsel Kwalai did not have issue with Court’s proposal. Counsel’s instruction on “not guilty plea” remain unchanged. Michael took his “not guilty plea” on 3/05/2021. Eric took his “not guilty plea” on 01/10/2021. Court proceeded on the basis of the 2 previous “not guilty pleas”. The only issue for trial in terms of the elements of this offence is – “Whether or not Michael Kiedea and Eric Nelirual had consensual sexual intercourse with Matilda on the night of 4/02/2016?”

Prosecution’s evidence against Michael

3. The victim gave evidence. Her evidence shows that, Michael Kiedea had sexual intercourse (penetration) with her on the night of 4/02/2016, after 10:30pm, inside a house that belongs to Michael or his elder brother – inside Michael’s room. Her evidence shows that the sexual act with Michael was prior arranged. The prior arranged sexual act took place under dark cover of the night and away from victim’s house (at Michael’s house). The co-accused and the victim come from the same village of Nenumbo, Reef Islands, Temotu Province.
4. The sexual act with Michael was prior arranged because the victim’s evidence in chief shows the following: -
   • (i) On the night of 4/02/2016, Michael came twice to Matilda’s house. He first came at around 9:00 pm. Michael came back again at around 10:30 pm. On both occasions, Michael came to ask Matilda to go with him to his house. Michael came back at around 10:30 pm and asked Matilda to follow him to his house. Matilda agreed and told Michael to go first. She will come later. Matilda had a small rest (laid down) and later followed Michael. Matilda was accompanied by another of her sister, Ms Victoria Taua. She went to Michael’s house (house belonging to Michael’s big brother) and they had sex in a room. She gave in to have sex with Michael because they were friends before. And that she knew Michael. Court took this to mean Michael was Matilda’s boyfriend before.
   • (ii) After they had sexual intercourse, Michael left to go to the seaside because he had a belly run or belly ache. Matilda stayed behind alone in Michael’s house/room.
5. Defence Counsel chose not to challenge the essence of the victim’s evidence in chief against Michael in cross examination. Defence Counsel’s cross examination concentrated on Eric. Prosecutor did not succeed in re-examination to cast doubt on the essence of Matilda’s favourable evidence against Michael – favourable because her evidence shows she had prior arrangement to have sex with Michael that night. Prosecutor realised that the complainant had changed her story from the one she gave to the police, but did not want to put into motion an application to declare the witness hostile.
6. On the evidence of the complainant, I found beyond reasonable doubt that Matilda had prior arrangement to have sex with Michael on the night of the 4/02/2016, at Michael’s house at Nenumbo Village, Temotu Province. The sexual act with Michael that night was secured by prior consent. Prosecution conceded at closing submission that Michael had sex with Matilda by consent. Hence, I will acquit Michael of the charge of rape without consent.

Prosecution’s evidence against Eric

7. With respect to Eric the victim’s evidence in chief is as follows: -
   • (i) Matilda and Michael had sex inside Michael’s house in a room, under dark cover of the night on 4/02/2016.
   • (ii) After they finished sex, Michael left Matilda in the house to go to the seaside. Michael had belly ache or belly run (diarrhoea).
   • (iii) Whilst Michael was out, Eric came in and Matilda thought it was Michael returning from the seaside. Eric came, lay down with Matilda and had sex with her too (fucked her too).
   • (iv) Matilda was talking to Eric (thinking it was Michael) that she was having sex with. But Eric was not talking to her. Then she asked if it was Michael, who was having sex with her (fucking her). Then she realised (saw) that it was Eric, when Eric was on top of her, doing the act of sex.
   • (v) If Matilda knew it was Eric, she would not give in to have sex with him. By the time she recognised it was Eric, they already had sex. So, she had no choice and just gave in.
   • (vi) Upon realising it was Eric, Matilda wanted to shout, but Eric stopped her not to shout.
8. The preceding evidence in chief from the complainant had me thinking initially that Eric had sex (penetration) with Matilda under some kind of a trick or deception or false representation. Hence there was no consent. However, under cross-examination the evidence changed and it casted doubt on my original conclusion. Matilda did not answer some questions under cross examination. There were few questions put to Matilda under cross examination, the answers to which, brought doubt to my mind about false representation: -
   • (i) Defence Counsel Mr. Kwalai had asked Matilda (repeating twice) about when she left Michael’s house, if Michael and Eric were at Michael’s house. And that, did she leave the 2 of them behind at night at Michael’s house. Matilda answered “Yes”. (Analysis – this evidence may not be reliable because it was not related to the time of intercourse, not prior to the time of the sexual act).
   • (ii) That before Matilda left Michael and Eric, she asked the 2 of them not to tell anyone about the 3 of them having sex at that house. Matilda’s answer was “Yes”. (Analysis - this evidence may not be reliable because it was not related to the time of intercourse, not prior to time of the sexual act. However, this answer had me thinking that sex between the three was by consent).
   • (iii) Eric fucked Matilda on top of the bed and not on the floor, after Eric asked her to go on top of the bed. Matilda’s answer was “Yes”. (Analysis – this evidence is reliable because it was related to the time of intercourse, prior to time of the sexual act. Matilda knew about Eric before sex because Eric had asked her to go from the floor to on top of the bed and then they had sex. This evidence contradicts what Matilda said in her evidence in chief about her talking to Eric and that Eric was not answering back before they had sex (repeat 7 (iv)).
9. Then in re-examination the victim remained silent to most of the questions that the prosecutor asked her. To one important question the answer was damaging to the prosecution’s case. Prosecutor asked: “My friend asked and you said you left Eric and Michael at Michael’s house. But earlier on you said in your evidence in chief that you go back around to your house and Michael was walking back from the seaside”. Prosecutor asked, “Which of the two stories is the true one? The victim’s answer was “Two fala stay lo house” – meaning – when she left, Michael and Eric stayed behind at Michael’s house (Analysis – same analysis in paragraph 8 (i) and (ii) apply here. Matilda gave contradictory evidence).

Doubt from the complainant’s changed story

10. The inference in my mind from the changed story (contradictory evidence) of the victim is that the 3 of them (Michael, Eric and Matilda) had consensual sexual acts that night. After having sex, Matilda left the 2 gentlemen and went back to her house. In reference to paragraph 8 (iii) above I had a lot of doubt in my mind. I am doubting that Eric had sex with Matilda under some kind of trick, deception or false misrepresentation. If I have the slightest doubt in my mind then I must give Eric the benefit of doubt and also discharge him of the charge of rape without consent (Regina v Tafilanga Snr [2007] SBHC 98; HCSI-CRC 329 of 2005 (11^th September 2007). I must say though that the doubt in my mind is not a slight doubt. It is a big doubt. Prosecution submitted that Matilda was confused under cross examination. I was careful to observe that Counsel Kwalai was not asking tricky or confusing or difficult questions. The questions I observed were simple and straight forward. Prosecution had the opportunity to repair the damage. But Matilda refused to answer important questions prosecutor was asking in re-examination.

Conclusion and Acquittal Orders

11. I am not satisfied beyond reasonable doubt that the co-accused are guilty of the charge of rape or unlawful sexual act without consent. I will acquit the co-accused accordingly. Michael and Eric, I acquit the two of you of the allegations of rape.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE