R v Kari [2023] SBHC 145; HCSI-CRC 8 of 2020 (8 December 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Kari
Citation:
Date of decision:	8 December 2023
Parties:	Rex v Solomon Junior Kari
Date of hearing:	1 September 2021, 2 September 2021 and 15 November 2021 (Trial) 7 November 2023 (Submission)
Court file number(s):	8 of 2020
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	In all that I said, I am not satisfied beyond reasonable doubt with the prosecution’s case. I will acquit Mr Kari of the 2 charges. I will also dismiss any Court order made in the Court below prohibiting Mr Kari and his wife not to access their children. Concerned file should be brought to my attention. The prohibited children will reunite with their parents. Inside one year the children and their parents will spend time together and receive pastoral care and counselling. In the same time period, the children will not be allowed to go down to Doma or to be accessed by their grandmother. I feel on the evidence that the children are listening to 2 different voices (parents and grandmother). This is not good for their upbringing. Parents and grandparent shall enter into some kind of heart to heart reconciliation. I will review these social or spiritual healing or reconciliatory orders, as is necessary inside one year or at the lapse of one year. If there is need, I will still extend the one-year prohibition order against the grandparents. Court has played its role in giving freedom to Mr. Kari and his family. Mr Kari’s family in my view should receive spiritual freedom. Hence my call for pastoral care and counselling. I will review these restorative orders in December 2024.
Representation:	Mrs Waisanau and Ms Mono for the Crown Mr Kwalai for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code Act [cap 26] S 141 (1), Penal Code (Amendment) (Sexual Offences) Act 2016 S 139 (1), S 139 (1) (a), S 139 (2) Criminal Procedure Code [cap 7] S 159 (2)
Cases cited:	R v Oli [2018] SBCA 3

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case 8 of 2020

REX

V

SOLOMON JUNIOR KARI

Date of Hearing: 1 September 2021, 2 September 2021 and 15 November 2021 (Trial) 7 November 2023 (Submission)

Mrs Waisanau and Ms Mono for the Crown
Mr Kwalai for the Defendant

Judgment

Introduction

1. By information filed on 17/2/2020, the defendant, Mr Solomon Junior Kari (Mr Kari), was charged with 2 separate offences. In the first charge or count the statement of offence alleged that Mr Kari was charged for indecent assault contrary to Section 141 (1) of the Penal Code Act (Cap 26). Particulars of offence alleged that Mr Kari, of Bouna village, East Guadalcanal, Guadalcanal Province, on an unknown date between 1^st January 2015 and 31^st December 2015, did indecently assaulted a girl namely Itiarei Kari, by touching her vagina.
2. In the second count, the statement of offence alleged that Mr Kari was charged for sexual intercourse, with a child under 15 years contrary to Section 139 (1) (a) of the Penal Code Act (Cap 26), as amended by the Penal Code (Amendment) (Sexual Offence) Act 2016 (No. 3 of 2016) – “the 2016 Act”. Particulars of offence alleged that, Mr Kari, of Bouna village, East Guadalcanal, Guadalcanal Province, at Vavaya Ridge, Central Honiara, on an unknown date between 1^st September 2019 and 30^th September 2019, did have sexual intercourse with a child namely Itiarei Kari, who is under 15 years of age, to wit, 7 years old by inserting his finger into her vagina.
3. Counsel filed agreed facts and issues on 1/09/2021, which contain the following agreed facts and issues: -

Facts

(i) Defendant is Mr. Solomon Junior Kari from Bouna village, East Guadalcanal, Guadalcanal Province.
(ii) Complainant is Itiarei Kari. She was born on the 12^th of April 2012. Complainant and the defendant are related as daughter and father.

Issues

(iii) Whether or not the defendant indecently assaulted the complainant?
(iv) Whether or not the defendant had sexual intercourse with the complainant by inserting his finger into her vagina?

Count 1 – Charge – Elements of the Offence - Section 141 (1) of the Penal Code Act (Cap 26)

4. There are 4 elements of the offence that prosecution must prove beyond reasonable doubt through the evidence. The 4 elements are: -
   • (i) Person/identity/defendant,
   • (ii) Unlawfully,
   • (iii) Indecently assaults,
   • (iv) Girl or woman
5. Elements (i) and (iv) are proved by consent as in paragraph 3 (i) and (ii) above. Elements (ii) and (iii) are outstanding and the two corresponding issues are as in paragraph (3) (iii) and (iv) above.

Prosecution’s case – The evidence

6. Prosecution called 2 witnesses in support of its case – Itiarei Kari, the complainant (“PW1”) and Angela Anea, the grandmother (“PW2”). Prosecution alleged that Mr Kari indecently assaulted the complainant – by touching her vagina. This allegedly happened any time between 1^st January 2015 – 31^st of December 2015.
7. Prosecution’s evidence in chief from the primary witness, PW1, was short and not entirely satisfactory or clear. It starts from page 22 of the transcript, day 1. I will recollect the entire/short/brief evidence in chief: -
   • (i) “When I was small my mother went to the bank. I was in the car with my dad. My dad took off my pant and trousers and pushed his hand inside my vagina”.
   • (ii) “This was inside our red car normally driven by my dad.”
   • (iii) “My dad sat in the driver’s seat. I stood up like this looking for my mum, when my dad opened my pant and trousers and pushed his hand into my vagina.”
8. PW1 recalled the incident took place when she was small. PW1’s evidence in chief did not reveal a particular date or year. Defence counsel in cross-examination narrowed the date of the first incident to year 2015 (page 45, of transcript, day 1), by suggesting to PW1, that the incident took place when she was 3 years old, to which PW1 agreed. From agreed facts, PW1 was born on 12^th April 2012. So, 3 years old would be from 12 April, 2015, as suggested by defence counsel. Particulars of offence alleged first incident, took place between 1^st January 2015 and 31^st of December 2015.
9. Going by PW1’s evidence that she was small when the first incident happened – then it would mean that she was only a small girl. Going by defence counsel’s evidence adduced through cross-examination, PW1 was still a toddler (toddler is a small girl of 1 - 3 years old, just beginning to walk). Being a toddler, I am left wondering, whether what PW1 was saying in her evidence is trustworthy. Whether as a small child (toddler) she is able to recollect or to even understand or to know what happened to her in year 2015. A toddler who is “just beginning to walk” means PW1 was only a baby. Just beginning to walk, I am not sure if she was able to talk or to understand or to even know what was happening to her or to be going around in town without wearing a diaper. In that case, how reliable could she be in her recollection of events/facts/things that happened to her in year 2015?
10. I have to lean on the evidence of the parents. Evidence by the parents tells me that in year 2015, PW1 was still wearing diaper, at 3 years old, notwithstanding denials by PW2. PW2 is not the parents of PW1. Wearing a diaper at 3 years old resembles my understanding of small or a child or a toddler (just beginning to walk). I would also accept the evidence of the parents that PW1 was raised by them from birth until 3/4/7 years old, with liberty to visit her grandparents at Doma, West Guadalcanal, on weekends, when she turned 3/4 years old. I found illogical evidence from the grandmother (PW2) that PW1 resided with her from childhood or from birth until 4/7 years old. At 7 years old, PW1 was sent to school in Honiara and no longer permanently staying at Doma with her grandparent, PW2 said in her evidence. From birth to 3/4 years, my view is that the toddler (PW1) would still be breast feeding. This is at an age that the toddler would still be sleeping on and feeding from her mother’s breast. There is no evidence before me, to suggest that the mother’s breast was problematical. The evidence from PW2 suggested that PW1 and Baltaza were both small (only 1 year apart). So PW1 was taken in to be looked after by the grandmother (PW2), at birth. The parents on the other hand gave evidence that both PW1 and Baltaza were small (about 1 year apart). So, the parents shared a hand in raising their 2 toddlers and managing their real estate business. Only when the 2 toddlers were big (3/4/7 years), they would go to spend weekends with their grandparents at Doma (Toba village).
11. From the evidence of the prosecution, I cannot be sure if Mr Kari was touching PW1 in an inappropriate manner amounting to indecent assault. Taking the prosecution’s evidence at its best along with Mr Kari’s own evidence, I accept that Mr Kari touched PW1’s vagina in the family red car, next to Tong’s building at Point Cruz. This was after PW2 dropped PW1 to Mr Kari (father) in the red family car. I say above that PW1 is a toddler just beginning to walk and must have been wearing a diaper. I rejected the combined evidence of PW1 and PW2 that PW1 was wearing pant and trousers only and not diaper as illogical. Prosecution did not produce evidence to satisfy me beyond reasonable doubt that Mr Kari was unlawfully touching PW1’s vagina to the extent that the touching can be classified as indecent assault or inappropriate touching - sexual in nature.
12. Indecent act in my mind is an act that is contrary to community accepted standards of decency. It follows that a father should take care of his children and help his wife to raise up their children. In this case, this is what the evidence from the parents revealed to me at trial. The wife told me in her evidence that her husband (Mr Kari) was her helpmate with domestic duties and in managing their family business. The husband and she would take turn in things like feeding the baby, looking after the baby, bathing the baby and even changing the diapers for the baby. No wonder, defence counsel described Mr Kari as a caring/loving husband, in his oral closing submissions.
13. On the day of the alleged incident, according to Mr Kari’s evidence, which I found logical, the grandmother (PW2) dropped PW1 to him in the car. PW1 was wearing a diaper (toddler). Defendant saw the need to change the diaper. He changed the diaper. To change the diaper Mr Kari must use his hand to touch the private part of PW1. But here is a father changing the diaper and touching the vagina of his baby daughter, PW1. There is no evidence before me to suggest that in touching the vagina, the father acted indecently or acted sexually inappropriate or unlawfully. There is no evidence to show sexual ill-motive in the touching of PW1’s vagina. The father touching the vagina in changing the diaper is the normal or decent act that fathers or mothers do in looking after their small children (toddler). In my mind, a father changing the diaper and touching his small girl’s vagina is no different from touching his toddler’s nose or ear or hand or shoulder or legs or thighs etc. These are all parts of the body of a child/toddler that the father must touch, when performing domestic duties like bathing or changing diapers.
14. On the evidence, I am surprised to learn that Mr Kari is a father who performs domestic/female duties like child rearing and bathing. This is surprising because it is deemed a female/mother’s duty to bath or feed or look after toddlers. I will recite some of the evidence that helped me to reach this conclusion: -
    • Janet Anea (wife of defendant) at page 53, transcript, day 3 says - “Yeah, husband blo me hem save help lo feedim oketa, hem save help lo changim diaper blo olketa, hem save help lo foldim kaleko blo oketa, readim kaleko for go school, ironim kaleko, hem save helpem oketa lo combin hair blo oketa, sometimes lo feedim oketa or even cookim rice fo oketa kakai, hem been assistim me lo staka things that me sometimes cannot doim, bae hem save doim. Hem save also if osem for swimming oketa, hem swimim oketa, hem swimim oketa until may be 4 years old nomoa then hem stop - that one lo side lo swimim nomoa hem stop, but side lo combin hair or helpem with any other things hem continue for hem save doim”.
15. I do not have to translate the wife’s evidence word for word. In essence the wife said that her helpmate in terms of her domestic and child rearing duties, is her husband. He can cook, wash, change diapers and prepare children for school. He can even comb their hair. I can conclude that Mr Kari is like another house girl assisting the wife in the house. The couple also gave evidence that they have a house girl, but sometimes she goes to the village. The wife’s evidence revealed that she had good support from her husband because Baltaza and Itiarei were babies together (only 1 year apart). So, the couple worked together in raising them up.
16. On the day of the allegation Mr Kari was changing PW1’s diaper in the car. And in so doing he touched PW1’s vagina, a part of her body that is not restricted from the domestic duties that Mr Kari can do to take care of PW1 as a father. I will dismiss the charge in the first incident accordingly. There is just so many questions and hence so many doubts in my mind about the evidence produced in support of the first incident.
17. First incident in 2015 was not reported to police until the second incident in 2019. PW2 gave evidence that when PW1 reported to her on the first incident she called PW1’s mother (Janet) but Janet told her on the phone that PW1 was only a child and could not be telling the truth. PW2 said they have an argument on the phone. PW2 decided she will not act on the first incident until something further came to her knowledge. In 2019, when the second incident happened PW2 opened a police case incorporating the two incidents, in this case.

Count 2 – Charge - Elements of the offence – Section 139 (1) (a) of the Act 2016

18. There are 3 elements of the offence that the prosecution must prove beyond reasonable doubt through the evidence. The 3 elements are: -
    • (i) Person/identity/defendant,
    • (ii) Had sexual intercourse – insert finger into vagina.
    • (iii) With a child under 15 years old.
19. Elements (i) and (iii) are not disputed. Defendant is Mr Kari. And Itiarei was 7 years old child in 2019. The remaining element is (ii), and the corresponding issue is as stated in paragraph 3 (iv) above.

Prosecution’s case – The evidence

20. Prosecution called 3 witnesses in support of its case – PW1, PW2 and Dr Metolo Sila (PW3). Prosecution alleged that Mr Kari, on an unknown date between 1^st September 2019 and 30^th September 2019 did have sexual intercourse with his daughter Itiarei (PW1), who was 7 years old, by inserting his finger into her vagina.

PW1 – Complainant, Itiarei Kari

21. I start with PW1’s brief evidence in chief. That in a bathroom downstairs in a house at Vavaya Ridge, PW1’s father (Mr Kari) put his hand inside PW1’s vagina. That time PW1 went to urinate. Her father followed her to give her bath. Mr Kari bathed PW1. Mr Kari took a towel belonging to PW1 and rubbed her body. And in doing so Mr Kari put his hand inside PW1’s vagina. Mr Kari and PW1 were alone in the bathroom at that time. There were so many repetitions on the evidence in chief from pages 12 – 17, of transcript, day 1. Essentially the core of the evidence repeatedly adduced in chief is that, when Mr Kari bathed PW1 inside the bathroom underneath a house at Vavaya Ridge, Mr Kari pushed his hand inside PW1’s vagina. By hand I took it from the evidence to mean a finger on Mr Kari’s hand. That Mr Kari pushed his finger into PW1’s vagina. PW1 felt pain inside her vagina. After that Mr Kari washed PW1’s full body and dried her body with a towel.
22. Two days after the bathroom incident, PW1 went down to visit her grandparents at Doma and reported the incident to PW2 (pages 37 and 38, transcript, day 1). I noted that according to PW2, PW1 reported to her on 28/09/2019. This is a contradiction (see below). At Doma, PW1 was still feeling pain inside her vagina from what her father allegedly did to her inside the bathroom at Vavaya Ridge. PW1 however did not give exact details on what she reported to her grandmother at Doma, in her evidence in chief.

PW2 – Angela Anea, Grandmother

23. Angela Anea (PW2) is PW1’s grandmother and mother of Janet Kari. Janet is wife of Mr Kari and mother of PW1. PW2 talked about how she told her daughter Janet Kari, the second time, what PW1 told her and Janet got angry with her saying PW1 is only a child and cannot be telling the truth.
24. On the weekend of 6/09/2019 PW1 went down to Doma/Toba. PW2 noticed that PW1 was scared when going to have shower. PW2 would accompany PW1 to go to the shower. PW2 noticed PW1 was not washing her private part. PW2 told PW1 to wash her vagina. She refused. PW2 dropped PW1 back at Vavaya Ridge to her parent after 6/09/2019 weekend trip.
25. On the 13/09//2019, PW 2 came and picked PW1 to go down to Toba/Doma for another weekend trip. That time PW2 noticed that PW1 was more fearful – could not go to dark places, or cannot go to have bathe alone. PW2 had to accompany PW1 and had to bath her. PW2 asked PW1 to wash her vagina but PW1 refused, saying it’s alright. On the 20/09/2019, PW2 picked PW1 again for weekend trip. PW2 noticed the same things that happened to her on the first weekend trip (6/09/2019) – frightened and not washing her vagina/private part. PW2 did not ask.
26. PW1 went again for a third weekend trip to Toba/Doma on 26/09/2019 (Thursday). PW2’s husband picked PW1 from her parent, because PW1’s mum was busy with some function/ party. On 28/09/2019, PW2 asked PW1 to have shower. PW1 was still refusing to wash her private part. PW2 was curious. She asked PW1 what was wrong with her private part. PW1 replied it was painful. PW2 asked why it is painful. PW1 did not say anything. PW2 told PW1 that there was nobody around. She should not be afraid to share anything. PW2 locked the door and told PW1 that there was no one, except the two of them inside the room. PW2 insisted for PW1 to talk about what was wrong with her vagina. Finally, PW1 told PW2 what happened to her.
27. PW1 revealed, it was her father Mr Kari, who put his finger inside her vagina. He took her to have shower down below, in a house at Vavaya Ridge. He opened the door because it was empty. And took PW1 to the bathroom downstairs, put her in the shower and told her to take off her clothes, to raise her hand up and to bend down. PW1 did as instructed and bend down. Mr Kari also bend down and put his finger inside PW1’s vagina. PW1 felt pain inside her vagina. PW1 shouted out loud. Then Mr Kari told PW1 not to shout like a boy (loud), but to shout like a girl (small). PW1 shouted like a girl (small shout). Mr Kari again put his hand inside PW1’s vagina, pushed his finger inside, pull his finger out and told PW1 not tell anyone. If PW1 tells anyone, Mr Kari will hit her with a big stick until she bleeds. PW1 was scared to tell her mum until PW2 asked PW1 at Toba, on the weekend of 28/09/2019. Same night PW2’s sister, Mary Reo came and saw PW2 locked the door. PW2 opened the door and told her sister Reo, what PW1 told her.
28. On Sunday, PW2 asked PW1 again. PW1 told PW2 the same story. When PW2 asked about the stick, PW1 drew a picture of the size of the stick, using biro and paper. PW1 also drew a picture of her father’s finger. On Monday with assistance from PW’s sister Reo, they reported the matter to Police. They went to the Police. Police directed that they should go to Seif Place first. They went and spent the night at Seif Place. The doctor will come and see them on Thursday 3/10/2019. On Tuesday they went back to Doma because they did not bring any clothes with them. PW1 and PW2 returned to Seif Place on Thursday to see the doctor. The doctor and nurse checked and confirmed that it was true that her father’s finger caused it (see page 82, transcript day 1).
29. Before I consider the doctor’s evidence, I want to quickly analyse PW1 and PW2’s evidences. I feel that there is a big gap between what PW1 and PW2 told the Court in their respective evidences. PW1 only said that her father touched his hand or finger inside her vagina in the shower room downstairs in a house at Vavaya Ridge (repeat paragraph 21). She did not say Mr Kari asked her to bend down and then he also bend down and pushed his finger inside PW1’s vagina. She did not say it was painful so she shouted out loud like a boy and her father told her not to shout out loud like a boy but to shout out small like a girl. According to PW2, Mr Kari also said if PW1 tells anyone, he will beat her with a big stick until blood spills out from her. PW1 did not say these things in her evidence to the Court. Yet when PW2 came afterwards, she gave evidence that these were the matters that PW1 reported to her at Doma on the weekend trip of 28/09/2019 (repeat paragraph 27). Because of the missing link (gap) I am left to doubt if what PW2 told the Court actually came from PW1.
30. Turning to the doctor’s medical evidence. Doctor’s evidence in chief revealed that: -
    • (i) She is the doctor at Seif Place in 2019.
    • (ii) She examined PW1 on 3/10/2019. PW1 was shy. Doctor had to obtain consent of PW2 to examine PW1. Doctor noted that PW1 had a fractured hand (back slap). Doctor did not use specular examination. She only examined PW1 on the pelvis by observation.
    • (iii) Doctor observed “redness” from the urethra region to the vaginal opening area. Doctor observed that the hymen was stretchable (meaning hymen was left open). But there were no scratch or small cuts around the area, except just redness. There was no sign of infection (sores or nana/pus), or no scratch or itchiness.
    • (iv) Doctor explained that the most likely cause of the redness could be – a little bit of force applied onto the area (page 4, transcript day 2) from sexual abuse, or from a fall onto an object. But ruled out fall because no bleeding or cut was seen. Most probable cause could be a blunt object like a hand or tongue.
    • (v) Doctor said, if a hand has been rubbed harshly against the area or a tongue had sucked inside the area, it could also cause redness.
    • (vi) On the stretchable hymen, if the child is active (playful) or was climbing at a height or something, it can also cause redness, but only rarely.
    • (vii) On the finger, if it is poked inside the vagina and rubbed or forced inside while the victim resisted, it could also cause redness in the area. Even one finger pushed can cause redness. It does not matter whether you do it repeatedly or just once.
    • (viii) Doctor ruled out fall from climbing or fall onto object because there were no internal injuries she observed inside the area. And PW1 was stable – no crack, or no cut or no bleeding or no poor condition.
    • (ix) Doctor also ruled out itchiness or scratch inside the area because there was no sign of itchiness on PW1 and there were no discomfort feelings noted. Doctor noted that there were no small sore or cuts inside the area or no watery sores or even no smell.
    • (x) In terms of time, the doctor said if scratch/itchy for one month, doctor will still see scars of healed up sores. If is an ongoing activity then redness will still be maintained. If the cause of redness is finger insertion and it happens only once in one month (or it happened a month earlier) there will be no redness. If it happens within one week, there will be redness. If 2 weeks, redness will slowly disappear but some redness will still be seen. If 8/9 days ago or earlier, redness will have disappeared, although feint redness can still be observed around.
31. In this case the evidence of PW2 says they picked PW1 on the 6/09/2019. Evidence also shows the shower room incident occurred 2 days prior to the 6/09/2019 first weekend trip (repeat paragraph 22). PW2 also gave evidence that she noticed PW1 was scared when going to have shower at Doma on 6/09/2019 (repeat paragraph 24). I will infer that the shower room incident in fact took place on the 4/09/2019. Doctor examined PW1 on the 3/10/2019. This was about one month later. According to the doctor’s evidence, if the activity causing redness (insertion of finger) had lapsed one month, then there will be no redness or redness will have disappeared by 3/10/2019.
32. The evidence before me did not reveal defendant pushed his finger inside PW1’s vagina and she resisted any other time after 4/06/2019 or 6/09/2019. The evidence however showed that in the month of September 2019, PW1 fell from a tree at St. Nicholas and broke her hand. She was climbing a tree. When you climb a tree, your private part will rub strongly against the tree. Could it be that climbing could have caused redness or the stretched hymen? Other evidence also shows that PW1 was an active and playful girl. Could that have caused redness, even though the doctor noted there was no injury from objects that PW1 could have fallen on to? Doctor did say that being active or playful could be a rare cause for the redness and stretched hymen. Could this be the rare case? PW2’s evidence said around 28/09/2019 or every trip to Doma in September 2019, she would ask PW1 to bath and wash inside her vagina. Did PW1 washed inside her vagina? Could that be the cause of redness knowing that by that time PW1 had one hand broken and using one hand only? Prosecution did not produce evidence of ongoing activity like pushing of fingers by Mr Kari and resistance by PW1 in the month of September 2019. Therefore, on the doctor’s evidence, I cannot really pin down the redness as being caused by Mr Kari pushing his finger inside of PW1’s vagina. Equally the same, I could not pin down the broken hymen and connect it to the defendant’s alleged pushing of fingers on the 4/09/2019. The evidence did not reveal PW1 resisted Mr Kari’s pushing of fingers. PW1 shouting fell short of resistance in my mind. I rejected the evidence on shouting anyway.
33. There are just so many doubts in my mind about the real cause of the redness or broken hymen inside PW1’s vagina. If I have doubt in my mind, slight it may be, I will have to give the benefit of doubt to the defendant.
34. The joint evidence of the parents was that in the beginning of September 2019, PW1 fell from climbing a tree at Saint Nicholas and broke her hand. On that particular day (on or around 4/09/2019), Mr Kari bathed PW1 on returning from playing tennis late in the evening. Mr Kari went and gave PW1 a bath in the bathroom down stairs, at a Vavaya Ridge house. Mr Kari’s wife was also present at that time. That was the only time Mr Kari bathed PW1, after he stopped bathing her from the age of 4 years and up. She preferred her father to bathe her because of her broken hand. I have no reason to doubt the parent’s joint corroborated evidence.
35. On the other hand, I do not trust PW2’s evidence because I feel that she was not telling me the truth on 2 occasions (repeat paragraph 10). First was when she said PW1 and Baltaza grew up with her down at Doma from birth. And she only took them to Vavaya Ridge to their parents at the age of 4 years and up when they started going to school. The parents denied this (repeat paragraph 10). Second, PW2 deny seeing PW1’s broken hand in September/October 2019. Yet when the doctor examined PW1’s vagina on 3/10/2019 she also noted her broken hand (back slap). Broken hand or back slap is not something that is hidden. Broken hand is not some minor injury. So, I do not know why PW2 denied knowing about the broken hand (see pages 100 and 101 of transcript, day 1). She explained in cross-examination that all she was giving attention to was the shower room incident and sexual abuse not the broken hand. She also explained or clarified that she forgot because it was a long time ago in 2019. This leaves me to doubt the credibility of PW2’s evidence – a leading witness for the prosecution.
36. Prosecution also submitted that should the charge in count 2 fail then Mr Kari can still be convicted for a lesser offence pursuant to Section 159 (2) of the Criminal Procedure Code (Cap 7) as held in R –v- Oli (2018) SBCA 3; SICOA-CRAC 32 of 2017 (11^th May 2018). With that submission I agree. But I still feel that even on the lesser charge under Section 139 (2) of the 2016 Act, a case is still not made out on the required standard against Mr Kari. Elements of the lesser charge offence are – (i) person/identity/defendant, (ii) commits an indecent act and (iii) with a child under 15 years. Elements (i) and (iii) are established as discussed already for count 2 above. Element (ii) is not established as discussed for count 2 above because I did not find on the evidence for count 2 that Mr Kari touched PW1’s vagina indecently when he bathed PW1 in the shower room at Vavaya Ridge. Mr Kari’s wife was also present and she testified that her husband bathed PW1 when she was 7 years old because she broke her hand on or around 4/09/2019. And she testified Mr. Kari did not wipe PW1’s vagina.
37. In all that I said, I am not satisfied beyond reasonable doubt with the prosecution’s case. I will acquit Mr Kari of the 2 charges. I will also dismiss any Court order made in the Court below prohibiting Mr Kari and his wife not to access their children. Concerned file should be brought to my attention. The prohibited children will reunite with their parents. Inside one year the children and their parents will spend time together and receive pastoral care and counselling. In the same time period, the children will not be allowed to go down to Doma or to be accessed by their grandmother. I feel on the evidence that the children are listening to 2 different voices (parents and grandmother). This is not good for their upbringing. Parents and grandparent shall enter into some kind of heart to heart reconciliation. I will review these social or spiritual healing or reconciliatory orders, as is necessary inside one year or at the lapse of one year. If there is need, I will still extend the one-year prohibition order against the grandparents. Court has played its role in giving freedom to Mr. Kari and his family. Mr Kari’s family in my view should receive spiritual freedom. Hence my call for pastoral care and counselling. I will review these restorative orders in December 2024.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE