R v JS [2023] SBHC 160; HCSI-CRC 401 of 2020 (19 May 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v JS
Citation:
Date of decision:	19 May 2023
Parties:	Rex v JS, CLT, AR & PL
Date of hearing:	25 & 26 May, 20 &21 June 2022
Court file number(s):	401 of 2020
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	1 The defendants PL, JS, AR and CLT are hereby acquitted of the charge of rape contrary to section 136F (1) (a) and (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. 2. I direct that JS, AR and CLT are to be released from custody. 3. Right of appeal
Representation:	Ms Helen Naqu for the Crown Mr Allan Tinoni for the Defendant JS Mr Frank Kama for the Defendant CLT Mr Ben Alasia for the Defendant AR Mr Bobby Harunari for the Defendant PL
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 [cap 26] S 136 F (1) (a) and (b) Criminal Law Consolidations Act S 35 (1A),
Cases cited:	R v Olughoja [1981] 73 Cr, R v Saragozza[ [1984] VicRp 15; 1984] VR 187[1983] 9 A, R v Sperotio [1970] 1 NSWR 502,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 401 of 2020

REX

V

JS, CLT, AR & PL

Date of Hearing: 25 & 26 May, 20 & 21 June 2022
Date of Decision: 19 May 2023

Ms Helen Naqu for the Crown
Mr Allan Tinoni for the Defendant JS
Mr Frank Kama for the Defendant CLT
Mr Ben Alasia for the Defendant AR
Mr Bobby Harunari for the PL

Judgment

Bird PJ:

1. These four juveniles are jointly charged with one count of rape contrary to section 136F (1) (a) and (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 (hereinafter referred to as the ‘Act’. They all pleaded not guilty to the charge and a trial into the allegation was conducted by the court.
2. In any criminal trial I must remind myself that the burden to prove the allegation against an accused person rests with the prosecution all through out. The burden of proof is proof beyond all reasonable doubt and the prosecution must prove all the elements of the offence charged to that standard. That burden does not shift to the defence at any time of the trial and if the court is left with a doubt after hearing all of the relevant evidence, even as slight as it may be, the accused person must be acquitted of the charge.
3. In this case, the allegation against these four accused persons is one of rape. Consequently, the prosecution must prove the following elements beyond all reasonable doubt namely:
   1. Identity of the accused;
   2. Had sexual intercourse;
   3. With another person;
   4. Without that person’s consent; and
   5. Was reckless as to the lack of consent,
4. It is noted on the outset that the three first elements are not in issue in this trial. All of the defendants are well-known to the complainant. They all live in the same village and have attended the same school and identification is not one of the contested issues by the defence. The act of sexual intercourse is also not an issue in this trial. The only elements that the crown has to prove beyond reasonable doubt are elements iv and v.
5. Consent in this regard means ‘free and voluntary agreement’. The crown had referred the court to “Questions of Law Reserved on Acquittal Pursuant to section 35 (1A) Criminal Law Consolidation Act (No 1 of 1993 [1993] SASC 3896; (1993) 59 SASR 214, in which King CJ stated “The law on the topic of consent is not a doubt. Consent must be a free and voluntary consent. It is not necessary for the victim to struggle or scream. Mere submission in consequence of force or threat in not consent. The relevant time for consent is the time when sexual intercourse occurs”.
6. In the case of R v Olughoja [1981] EWCA Crim 2; [1981] 73 Cr. App R 344, the court was of the view that the prosecution need only prove the absence of consent. It is not necessary to prove force, fear of force or fraud. It is further the crown’s submission that element (v) can be understood in the case of R v Saragozza [1984] VicRp 15; [1984] VR 187; [1983] 9 A Crim R 185 (CCA) whereby it was held that an element of the offence of rape is that the accused either was aware that the woman was not consenting, or else realised that she might not be and determined to have sexual intercourse whether she was consenting or not
7. So on the issue of consent, the prosecution had called a total of 3 witnesses. The complainant in this case is PW1. She testified that on the 5^th April 2020, she attended a singing practise at their church. They finished at about 9.00pm. She was approached by PL and was told that her boyfriend PW3 would like to meet with her. She refused because she was frightened. PL told her three times and assured her that he will also accompany her to meet the boyfriend. PW1 then followed him and they met up with her boyfriend together with the defendants JS and AR at the bridge. They then walked together to Compolio Village where PW3’s house was located. As they were walking along the road, AR and JS poked her body. PW3 then told the complainant and PL to go on ahead and he went to his mother’s house which was some meters away from his house. PL left the complainant at PW3’s house and not long after JS and AR arrived. They told the complainant to go into the room because Petero, their uncle might see her there. She went inside the room and waited for PW3 to return from his mother’s house. PW3 arrived and went inside the room where the complainant was and they had consensual sexual intercourse. After that, PW3 told the complainant that he will go and get fruit leaf for betelnut from his mother’s house. He left the complainant in the room and went out.
8. PW1 testified that when PW3 left the room, PL entered through the door and instructed her not to go outside when she wanted to leave. PL kissed her but she did not kiss him back. He hugged her from her back and put her on the bed. He pulled out PW1’s underpants, held on to both of her hands and had sexual intercourse with her. PW1 stated that she struggled to free herself but PL held her tightly. She shouted but PL shouted over her voice. She felt weak because PL held on to her very tightly. PL had sexual intercourse with her for a while.
9. It is noted by the court that PW3, the complainant’s boyfriend confirmed in his evidence that when he left the room, he saw PL went inside the room where the complainant was. He was standing at the bottom of his house when he saw PL went inside the room. He left to look for fruit leaf after seeing what PL did.
10. PW1 further stated that after PL had sexual intercourse with her and left the room, the defendant JS entered. PW1 wanted to leave the room but JS pushed her back inside. JS threatened PW1 that if she refused, he would cut her with a knife that he got from a corner in the room. PW1 was afraid. JS put PW1 on the bed. PW1 struggled but JS was stronger than her and held her tightly. PW1 did not want JS to remove her skirt and held on tightly to it. They struggled and JS managed to removed her skirt. JS went ontop of PW1, pushed his penis inside her vagina and had sexual intercourse with her. PW1 felt very weak and tired from her struggle. She said she did not agree to have sexual intercourse with JS.
11. PW1 also stated in court that after JS had sexual intercourse with her, PL brought in the defendant CLT into the room for CLT to have sexual intercourse with her. PW1 stated that PL held her down and illustrated in court how PL held her down on the bed. Whilst PL held her down on the bed, CLT went ontop of her and had sexual intercourse with her by penetrating her vagina with his penis. By then, she was too weak even to shout. She nonetheless stated that she did not allow CLT to have sexual intercourse with her nor did she allow the defendant PL to hold her whilst CLT had sexual intercourse with her. After CLT had sexual intercourse with her, they both left the room.
12. PW1 also stated that after PL and CLT exited the room, the defendant AR entered. By then PW1 had sat up from the bed. PW1 was weak and felt she had no strength. When AR approached her. She tried to resist but she was too weak. She did not allow AR to have sexual intercourse with her but he continued nonetheless and had sex with her. She tried to resist AR by rolling on the bed but she could not struggle enough because she was too weak. After having sexual intercourse with PW1, AR left the room.
13. From the above evidence, PW1 stated that she did not agree to have sexual intercourse with any of the four defendants. She only consented to have sexual intercourse with her boyfriend being PW3 prior to what is alleged against each of the other defendants. She was informed by PL to go with him because PW3 would like to meet with her. She told PL that she could not go because she was afraid. PL insisted and she agreed to go with him and met PW3 and others at the bridge. Whilst giving evidence in court, PW3 stated that he did not instruct PL to tell PW1 that he wish to meet with her. That in my view could have been the starting point of the defendants’ plan to lure PW1 into her peril. My view is supported by the fact that it was PL that first had sexual intercourse with PW1 without her consent after PW3 had left her in his room.
14. PW1’s evidence is that not long after PW3 left the room, PL entered and instructed her not to leave the room. PW1 stated that she struggled with PL and also shouted. PL held on tightly on PW1’s hand against the bed, PL also shouted over PW1’s voice when she shouted. It is therefore submitted by the crown that the actions of the defendant PL showed that sexual intercourse was not consensual. It is further submitted by the crown that the actions of the defendant PL showed recklessness on his part as to the lack of consent.
15. In respect of the defendant JS, the evidence against him was that he threatened to use a knife on PW1. She said she previously saw that knife at a corner in the room. She struggled with JS when he tried to pull out her shirt. She held on tightly on her shirt but she was overpowered by JS. He managed to remove her shirt and had sexual intercourse with her. It is submitted by the crown that the fact that PW1 tried to resist JS from removing her shirt clearly showed that sexual intercourse was not consensual. It is further submitted by the crown that in overpowering PW1 who had struggled to keep her shirt on would show recklessness on the part of JS. The crown relied on the case of R v Sperotio [1970] 1 NSWR 502; 71 SR (NSW) 334 in support of their submission. In that case it was stated that “consent obtained through threats or terror is not a consent to the act of intercourse but merely submission to it, and the law does not require a woman to resist the sexual intercourse”.
16. In the case of the defendant CLT, PW1 stated that the defendant PL brought in the defendant CLT into the room for CLT to have sexual intercourse with her. PW1 illustrated in court how PL held her down on the bed and how CLT went on top of her and had sexual intercourse with her.PL held PW1 with his left hand while CLT penetrated her vagina with his penis. By then she was too weak even to shout. She said she did not allow CLT to have sexual intercourse with her and she also did not allow PL to hold her whilst CLT had sexual intercourse with her. She further stated that after CLT had sexual intercourse with her, PL and CLT left the room. It is submitted by the crown that after having struggled with PL and JS who had previously had sexual intercourse with her, PW1 was weak and unable to even shout. She was overpowered by PL whilst CLT had sexual intercourse with her. It is submitted by the crown that the act of the defendant PL of pushing PW1 down on the bed whilst CLT had sex with her showed that PW1 did not consent to the act of sexual intercourse. It is further submitted that having had to restrain PW1 by pushing her down on the bed would show that both PL and CLT were reckless and did not even give a thought that PW1 was not consenting to the act of sexual intercourse.
17. In her evidence in-chief, PW1 stated that AR entered the room as PL and CLT exited the room. PW1 was sitting on the bed as AR entered the room. At that time, PW1 expressed that she was weak and felt that she had no strength. When AR approached her, she tried to struggle but she was too weak. PW1 did not allow AR to have sexual intercourse with her and tried to struggle by rolling on the bed. She could not struggle enough because she was weak. After the consensual sex with PW3, AR was the fifth person to have sexual intercourse with her that very same night. After AR had sexual intercourse with her, he exited and left the room.
18. It is submitted by the crown that the struggle and the act of rolling on the bed to resist sexual intercourse with AR would indicate to AR that PW1 did not consent to sexual intercourse. It is further submitted that AR had no thought to the fact that PW1 was not consenting. He saw her struggling and rolling on the bed and that would have been a sign of her resistance to sexual intercourse. It did not even bother him that PW1 was trying to resist him and went ahead and had sexual intercourse with her. When asked in cross-examination, PW1 maintained that she did not plan with the four defendants to have sexual intercourse with her. In her evidence PW1 stated that she only agreed to accompany PL because her boyfriend PW3 had asked to see her. That was denied by PW3 when he gave evidence in court. He said he never told PL to tell PW1 to go and see him.
19. The evidence of PW2 is of some assistance to the crown. PW2 is the complainant’s mother. She stated in court that she observed the complainant on the morning of the 6^th April 2020 to be not her usual self and she looked dirty and sick. She looked sad and was not interacting with her other sisters as usual. PW2 did not know her daughters story until the 10^th April 2021 when her mother told her. She confronted and enquired of her daughter on the 11^th April 2020. PW1 then relayed to her mother (PW2) what had happened to her on the 5^th April 2020. PW1 told her mother that she was raped by the four defendants. PW1 stated that she did not tell PW2 about the incident because she was afraid that her mother and father would whip her. She was also ashamed of what happened to her on the night of the 5^th April 2020 and that people in the village will be talking about it. PW2 reported the matter to the police on the 11^th April 2020.
20. PW3 was the complainant’s boyfriend. He told the court that he did not inform PL that he wanted to meet the complainant on the 5^th April 2020. PW3 had contradicted the story told by the complainant that she was informed by PL that PW3 wanted to meet her. It is noted that none of the defence counsel had cross-examined PW3 on that issue. Defence had vigorously cross-examined the complainant (PW1) that her boyfriend (PW3) had set a plan for all the defendants to have sexual intercourse with the complainant. The very same issue and those propositions were not put in cross-examination to PW3. That in my view would shade some doubt on the intentions of the defendants in this case.
21. Apart from building the defence cases through cross-examination of PW1, PW2 and PW3, all four defendants had opted to remain silent. The only evidence for the court’s analyses in this trial is from the prosecution. The crux of the case for all defendants is that sexual intercourse with the complainant was consensual. They say that the complainant agreed to have sexual intercourse with all of them at the materiel time.
22. The defence had also raised the issue of credibility of the complainant. Counsel for the four defendants have raised inconsistencies of the evidence of the complainant in court as opposed to her police statement. In the case against PL, it is alleged by the complainant that as soon as PW3 left the room, PL entered and instructed her not to leave the room. He kissed and hugged her, removed her underpants and had sexual intercourse with her. She struggled with PL but PL overpowered her.PW3 stated in evidence that after he had sex with the complainant, he went down and told stories with the defendants. He also said that after he left the room, PL entered the room and went inside. It is incredible that the boyfriend had seen PL went inside the room where the complainant was and did not object or ask questions. It would be obvious that PW3 was still at the bottom floor of his house when PL went inside the room where the complainant was. He said he stood there for about 3 minutes and went to another house not far from his to get leaf for betelnut. If what the complainant had said is true, why was it difficult to call out to PW3 and asked for help. She did not even tell PW3 what the defendants did to her upon his return to the house. She agreed to sleep with PW3 for the rest of that night.
23. In the case of JS, it is alleged in evidence that this defendant threatened her with a knife on that occasion. In cross-examination, the complainant stated that the room was dark and she was unable to see. Her boyfriend, PW3 took the torch with him and she was alone in the dark room. She also stated that the knife that JS used was already in the room. The room was dark, even during day time and the court had observed that when the photos contained in the album of photographs were taken, the room looked dark in itself. Another aspect of that evidence is that if the knife had already been in the room before JS went inside, how could he see and use that knife. There was no torch in the room and it was dark. It is submitted by the defence that the evidence of the complainant cannot be relied upon.
24. In the case of AR, it is also alleged that he had sexual intercourse with the complainant without her consent. It is submitted on behalf of AR that PW1’s evidence was full of inconsistencies and could not be relied upon by the court. When asked in cross-examination, that her evidence in court was forced on her by the police, she said yes. PW2 was the complainant’s mother. She also said in cross-examination that she reported the matter to the police as a rape complaint because she and her husband had standing in the community and it would be bad for their reputation for people to know that their daughter, the complainant had had sexual intercourse with the four defendants. PW2 stated in evidence that she was very angry when she knew about the story.
25. Having stated my observations in the case of PL, it is very suspicious why the complainant did not call out for help when PW3 was standing at the bottom floor of his house for about 3 minutes. PW3 did not even show any disapproval for PL to enter the room the complainant was in. Even after the event, the complainant continued to talk with and laugh with the 4 defendants as if nothing had happened.
26. In the case of CLT, there is also allegation that he had sexual intercourse with the complainant without her consent. Inconsistencies of evidence was also raised on behalf of the defendant. There was evidence to confirm that after the alleged incident, the complainant mingled freely with all of the defendants. She did not complain to her boyfriend what the four defendants did to her. She did not try to run away that night but continued to stay at PW3’s place and slept there. She did not immediately tell her parents about the incident until after PW2 find out about the story from her mother. If the complaint was one of rape then the complainant should have felt relieved to tell her mother about it unless it was one of consensual sex.
27. I have assessed the evidence adduced by the crown in this trial as well as matters raised in cross-examination of the three prosecution witnesses. I have found the complainant’s evidence to be all over the place. The issues raised in cross-examination discussed above are issues that attacks the credibility of PW1. Her conduct prior to and immediately after the alleged incident are very questionable and also goes to the credibility of her evidence. I feel that PW1 is not a credible witness and I am therefore left with a doubt as to the truthfulness of her evidence in court. I am also left in a doubt as to the truthfulness of the evidence of PW2 and PW3. On that basis, I am not satisfied beyond all reasonable doubt that these four defendants are guilty of the offence of rape contrary to section 136F (1) (a) and (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (sexual Offences) Act 2016. I hereby acquit them accordingly.

Court order

1. The defendants PL, JS, AR and CLT are hereby acquitted of the charge of rape contrary to section 136F (1) (a) and (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. I direct that JS, AR and CLT are to be released from custody.
3. Right of appeal

THE COURT
Justice Maelyn Bird
Puisne Judge