R v Apolos [2023] SBHC 53; HCSI-CRC 405 of 2020 (10 July 2023)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Apolos
Citation:
Date of decision:	10 July 2023
Parties:	Rex v Breshman Apolos, Selwyn Gaza, Junior Pado
Date of hearing:	25 & 26 May, 20 & 21 June 2022
Court file number(s):	405 of 2020
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Bird; PJ
On appeal from:
Order:	Consequently, all three defendant are hereby acquitted of the charge pursuant to section 139 1) (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 as read with section 21 (c) of the Penal Code (cap 26). I order accordingly. Right of appeal.
Representation:	Ms Helen Naqu for the Crown Mr Allan Tinoni for the Defendant Breshman Apolos Mr Lazarus Waroka for the Defendant Selwyn Gaza Mr Ron Dicky Pulekera for the Defendant Junior Pado
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 [cap 26] S 139 (1) (b), S 136 (D) (1) and (2) Penal Code [cap 26] S 21 (c), S 21,
Cases cited:	R v Valentine [1996] 2 Cri App R 213, Regina v Ferris [2004] SBHC 124, Spooner v The Queen [2004] WWCA Crim 1320, Kory White v The Queen [1998] UKPC 38; [1998] 3 WLR 992,

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 405 of 2020

REX

V

BRESHMAN APOLOS, SELWYN GAZA, JUNIOR PADO

Date of Hearing: 25 & 26 May, 20 & 21 June 2023
Date of Decision: 10 July 2023

Ms Helen Naqu for the Crown
Mr Allan Tinoni for the Defendant Breshman Apolos
Mr Lazarus Waroka for the Defendant Selwyn Gaza
Mr Ron Dicky Pulekera for the Defendant Junior Pado

JUDGMENT

Bird PJ:

1. These three named defendants are jointly charged with the offence of sexual intercourse- child under 15, contrary to section 139 (1) (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 as read with section 21 (c) of the Penal Code (cap 26). They all pleaded not guilty to the charge.
2. In any criminal trial, I must remind myself that the duty to prove the offence charged rests with the prosecution. At no time during the trial does that burden shifts to the defendant. The burden of proof that must be satisfied is proof beyond all reasonable doubt and the prosecution is required to prove all the necessary elements of the offence to that standard. If after hearing evidence from the prosecution and the defence (if any) and the court is left with a doubt even as slight as it may be, the accused person ought to be acquitted.
3. In this present case before me, the elements that the prosecution must prove to the required standard are the following:
   1. identity of the accused;
   2. has sexual intercourse;
   3. with a child;
   4. under 15 years of age.

In this trial, the third and fourth elements of the offence charged are not in issue. The complainant’s birth certificate has been tendered as exhibit “PE4” with the consent of the defence. At the time of the offending, the complainant was under 15 years of age.

4. I must also add that the defendants Breshman Apolos and Junior Pado are charged with allegation of aiding the defendant Selwyn Gaza into commission of the offence under s.139 (1) (b) of the 2016 amendment to the Penal Code (cap 26) as read with s.21 of the Penal Code (cap 26). On that allegation, the crown must also prove beyond all reasonable doubt the following elements:
   1. identity of the person;
   2. aids another in commission of offence.
5. It is important to note at this juncture, that the court had delivered a ruling after a voir dire hearing on the 26^th October 2022 whereby voice identification evidence was admissible in the trial. The trial proper commenced on the 27^th October 2022 till the 2^nd November 2022. The crown called five witnesses and tendered five exhibits including:
   1. Record of interview- Breshman Apolos -Exhibit “PE1”
   2. Record of interview of Selwyn Gaza -Exhibit“PE2”
   3. Record of interview of Junior Pado -Exhibit “PE3”
   4. Birth certificate of the complainant -Exhibit “PE4”
   5. Medical report -Exhibit “PE5”
6. The issues for consideration by the court during trial are whether or not Selwyn Gaza did have sexual intercourse with the complainant and second whether or not Breshman Apolos and Junior Pado aided Selwyn Gaza in having sexual intercourse with the complainant. The case for the crown is that on the night of the 24^th January 2020 at Kava Village, she was returning home from a store. Selwyn Gaza grabbed her from her back and closed her mouth with his hands. Two other boys approached and spoke and she could recognised their voices. She recognise the voice of the person that grabbed her was that of Selwyn Gaza. The other two were Breshman and Junior. The two boys assisted Selwyn by holding her hands and legs as Selwyn Gaza had sexual intercourse with her. She was struggling to free herself and was crying. She tried to scream but could not because one of the boys shut her mouth. She then heard her father’s voice calling out her name and the boys fled leaving her on the ground. She reported the matter to her sister the next morning and eventually, the matter was reported to the police.
7. The defendants denied the allegation of the complainant. It was Selwyn Gaza’s case nonetheless that on that evening of the alleged date, he went to see the complainant upon prior arrangement with her. He said the complainant was his girlfriend and the intention for them to meet up that evening was for the complainant to return his sim card to him. He said they met up that evening but he denied having sexual intercourse with her. Mr Pado’s case on the other hand was dependent on an alibi. He was not at Kava Village. He went to Mablosi Village to see his wife there.
8. Having stated the basis of the case for the crown and the defendants, I will now discuss the evidence as was presented before me in court. The first prosecution witness was the complainant Camlyn Elsie Vesi. She told the court that on the night of the 24^th January 2020, she was returning home from a store to buy cooking oil for her mother. On her way back, it was raining so she stopped at Willie Betu’s house for some time. She then walked on to the direction of her house as the rain was not too heavy. She had a torch with her. As she was walking along, she felt someone grabbed her from her back. She also noticed two other people approaching. She was grabbed along the road side but it was bushy. She said the person that grabbed her was Selwyn. She said Selwyn grabbed her and shut her mouth. Then he had sexual intercourse with her. She said Selwyn pushed his penis inside her kijo. On that occasion, she said Breshman took hold of her hand and shut her mouth. She further stated that Junior held her legs. The complainant also said that she recognised the three defendants’ voices as they were talking. The complainant stated that she recognised the three defendants’ voices at the night of the offending. She said they come from the same village. On numerous prior occasions they have talked with each other, share jokes together and she could not have been mistaken as to their distinct voices on that occasion. She said through their voices, she could tell that it was Selwyn Gaza that had sexual intercourse with her. The defendant Breshman was the one that held her hand and shut her mouth and Junior Pado held her legs. She said that Breshman and Junior Pado held her hand and legs so that Selwyn could have sexual intercourse with her. She also stated that she heard Junior Pado saying “bae mi fucken gele ia bae mi go long girl-friend blo mi tu ia”. She heard Selwyn said “filim nomoa gele ia no save stay quiet”. She heard Breshman said “hidim oil blo hem, hidim oil blo hem”. In summary therefore, the only admissible evidence on identity of the defendants was from PW1, the complainant herself. That identification is by way of voice identification.
9. On behalf of the defendant Breshman Apolos, it is raised by Mr Tinoni of counsel the discrepancies in evidence by PW1 on the tone of the defendant’s voice at the time of offending. Mr Tinoni submitted that the complainant had described Mr Apolos’s voice in her police statement, during the voir hearing and during the substantive trial of this matter. The first description of the defendant’s voice was a “deep bass voice”. The second description was “light winim Selwyn”. The third description was that “hem olsem high osem bass but hem nating bass tumas”.
10. It is further submitted by Mr Tinoni that even though the prosecution could rely on voice identification pursuant to the voir dire ruling, this court must be satisfied beyond all reasonable doubt that in fact the identification by the complainant was reliable in the circumstances. It is submitted that it is not reliable because the complainant had given three different versions and descriptions of Mr Apolos’s voice.
11. In relation to the defendant Selwyn Gaza, Mr Waroka of counsel submits that identification is not an issue. This defendant told the court that he went to see the complainant that night upon the complainant’s request. They walked together to a place where they sat down and tell stories until the complainant’s father called out for her and they separated. Apart from telling stories, this defendant denies having sexual intercourse with the complainant on the night of the incident. Mr Gaza told the court that he was alone with the complainant that night. Mr Apolos left him and the complainant and went back and Mr Pado also left to go and see his girl-friend.
12. The defendant Mr Junior Pado has a different story to tell the court. He was at Kava Village earlier in the evening on that date. Identity is an issue in Mr Pado’s case. The only evidence on the identity of this defendant is the voice identification of the complainant. The complainant described Mr Pado’s voice as “olsem voice bass but nating bass tumas”. It is submitted that the complainant had given two different descriptions of Mr Pado’s voice. In her evidence in chief, the complainant stated that this defendant’s voice was “bass but not bass tumas”. In cross-examination, the complainant contradicted herself and described Mr Pado’s voice as “lighter than Selwyn’s voice”. She also described Selwyn’s voice as “gele gele”.
13. It is therefore submitted by Mr Pulekera of counsel for the defendant Mr Pado, that the discrepancies in evidence of the description of Mr Pado’s voice goes against the crown’s case on identification. It is submitted that the complainant had agreed in cross-examination that she did give two different descriptions of Mr Pado’s voice in this case. The complainant’s evidence on identification therefore could not be trusted.
14. As to the element of having sexual intercourse, the evidence adduced by the prosecution comes from the complainant and Miriam Conference Teonoda (PW3) as evidence of fresh complaint. Sexual intercourse is defined in section 136 (D) (1) and (2) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. It means penetration, to any extent, of the genitalia or anus of a person by any part of the body of another person.
15. The complainant told the court in this case that the defendant Selwyn Gaza had sexual intercourse with her by inserting his penis into her kijo. He was assisted by Breshman and Junior. She said Junior held her and used his hands to pull her legs apart, allowing Selwyn to climb ontop of her and inserted his penis into her kijo. Breshman further assisted Selwyn by holding the complainant’s hands. The nurse Ms Salome Goha (PW5) gave medical evidence in court and stated she examined the complainant and produced a report marked as exhibit “P5” to assist the court. She told the court that upon examination, she found out that the complainant’s hymen was already broken which is indicative of prior sexual intercourse or penetration.
16. The prosecution also relied on fresh complaint in support of the second element in this case. The complainant’s sister Miriam Conference Teonoda gave evidence in court that the complainant informed her on the next day what the defendants had done to her the night before. She said the complainant was afraid to tell the truth on the same night and made up a story about being attacked by a devil along the road. She was afraid because her mother would beat her up if she told her the real story. Her mother does not allow her to befriend any boy from their village. Her mother infact whipped the complainant on the night of the incident and Miriam told the mother to stop whipping her.
17. Ms Naqu of the prosecution had cited a number of cases in support of her argument that the evidence of PW3 should be accepted by the court as amounting to a fresh complaint and should be made admissible in this case. She argues that certain principles should be observed by the court in order to admit fresh complaint as evidence in the trial. Firstly is that the complaint must be made at the first reasonable opportunity. Secondly that the evidence must be consistent with the alleged complaint and thirdly is that the complainant and the witness must give evidence of the complaint. Ms Naqu relied upon the cases of R v Valentine [1996] 2 Cri App R 213, R v Ferris [2004] SBHC 124, Spooner v The Queen [2004] EWCA Crim 1320 and Kory White v The Queen [1998] UKPC 38; [1998] 3 WLR 992.
18. In considering the judgments in the above cases, it is further submitted by Ms Naqu that because the complainant’s mother was angry with her on the night of the incident and because she was frightened, she did not immediately tell anyone about the incident. She did tell her sister PW3 the very next morning about what happened to her the previous night. It is also submitted that the story the complainant and PW3 told the court was consistent and that both of them were called to give evidence in the trial. It is therefore submitted by Ms Naqu that all three requirements of fresh complaint to be admissible as evidence are met by the prosecution. The evidence of PW3 should therefore be admitted as evidence of fresh complaint.
19. It is the case for the defendants that the evidence of PW3 should not be admitted by the court as evidence of fresh complaint. It is submitted that the evidence of the complainant in court to that of PW3 were inconsistent to each other. In her evidence in court, the complainant stated that she told her sister, PW3 that the three defendants raped her. PW3 on the other hand told the court that the complainant told her, the three defendants masturbated on her. In any event, it is also the defendants case that the complainant contradicts her own evidence in court. In examination-in-chief she told the court that she mentioned the three defendants names to PW3. In cross-examination, she admitted that it was Christopher that identified the three defendants to her as the persons that raped her. In cross-examination the complainant stated the three defendants identities after Christopher prayed and healed her. What she said in cross-examination was contrary to her evidence in chief on identification of the three defendants. These inconsistencies would go to the credibility of the evidence of the complainant and PW3. It is therefore submitted by the defendant that the element of sexual intercourse is not made out in this case.
20. The defendant Selwyn Gaza gave sworn evidence in court. He told the court that the complainant was his girl-friend. The complainant told him to go and meet her that night. They did meet on the night of the incident but he denied having sexual intercourse with her. Mr Gaza further told the court that the defendants Breshman Apolos and Junior Pado were not with him and the complainant on the night of the incident. Mr Apolos informed him to meet with the complainant that night so she could return his sim card. Mr Pado also left them to go and see his girl-friend at Mablosi Village.
21. From the above evidence, I am able to conclude that the defendant Selwyn Gaza had gone to meet the complainant on the night of the incident. Having said that I must also be satisfied to the required standard that the defendant Selwyn Gaza had sexual intercourse with the complainant on the night of the 24^th January 2020. The issue of identity is not disputed by this defendant and so the only issue is one of sexual intercourse.
22. Mr Gaza told the court that the complainant is his girl-friend. The complainant denied that relationship with Mr Gaza. I have perused the exhibit marked “PE5”, which is the medical report by a nurse who examined the complainant on the 6^th February 2020, about 12 days after the incident. On page 5 of exhibit “PE5”, the nurse stated inter alia that in her opinion, the complainant had had sex before the incident of the 24^th January 2020. It went to state that she was of that opinion because the complainant told her that she did not feel any pain and she was not bleeding on the night of the incident. There was no inflammation and tenderness noted on the complainant’s vagina. There was no tear or graze marks noted and her vaginal vault is that of adult girls. Those pieces of evidence put together would confirm that the complainant had had sexual intercourse before the incident of the 24^th January 2020.
23. In this case, it is the complainant’s words against the words of Mr Gaza. I must remind myself that it is for the prosecution to prove the element of sexual intercourse in this case. The complainant in this case had given numerous inconsistent evidence in court. The content of her police statement is also brought into the picture because she had given contradicting stories to the police and to the court. It is obvious that she is trying to hide from her parents what she was up to. She was having a discreet sexual relationship with someone. She kept it discreet because her parents do not approve of her having any boy-friend in the village. If they found out that she had gone to meet her boyfriend, she will be punished and infact she was whipped by her mother that night. Upon those circumstances, she would have a motive to lie about the whole incident. Firstly she told her parents that she was taken by a devil. She then told them that she was raped by the three defendants. She only knew it was the three defendants after Christopher prayed and healed her. In cross-examination. She told the court that the identities of the three defendants was revealed by the custom man Christopher. It is therefore obvious that she wanted to cover up and hide her sexual relationship with Mr Gaza which in my considered view had been ongoing for sometime. I am of the view that the complainant is not a credible witness and I do not believe her version of the story.
24. Owing to the above discussion, I am inclined to believe the version told by Mr Gaza. His evidence in court is straight forward. He did not deny having a relationship with the complainant. He, however denied having sexual intercourse with the complainant on the 24^th January 2020, because her father was calling out her name. They have to separate before they were seen and their relationship would be exposed.
25. In light of the various inconsistencies in evidence from the complainant as to voice identification as well as to the identities of the three defendants and upon the evidence of Mr Gaza in court and the evidence of Mr Pado and his alibi witness, I am not satisfied beyond all reasonable doubt that Mr Apolos and Mr Pado aided Mr Gaza to have sexual intercourse with the complainant on the 24^th January 2020 at Kava Village, Isabel Province. I am also not satisfied beyond all reasonable doubt that Mr Gaza had sexual intercourse with the complainant on the 24^th January 2020 at Kava Village, Isabel Province. Consequently, all three defendant are hereby acquitted of the charge pursuant to section 139 1) (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 as read with section 21 (c) of the Penal Code (cap 26). I order accordingly. Right of appeal.

THE COURT
Maelyn Bird
Puisne Judge