R v Sialo [2023] SBHC 81; HCSI-CRC 521 of 2021 (18 August 2023)

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Case name:	R v Sialo

Citation:

Date of decision:	18 August 2023

Parties:	Rex v Jarret Sialo

Date of hearing:

Court file number(s):	521 of 2021

Jurisdiction:	Criminal

Place of delivery:

Judge(s):	Maina; PJ

On appeal from:

Order:	1. Jarret Sialo is not guilty and acquitted on the charge of rape, 2. To be released from custody immediately, 3. No further order

Representation:	Auga J for the Crown Harunari B fo for the Defence

Catchwords:

Words and phrases:

Legislation cited:	Penal Code(Amendment) (Sexual Offences) Act 2016 S 136 F (1) (a)

Cases cited:

You, Jarret Sialo pleaded not guilty on the amended information of rape contrary to section136F (1) (a) of the Penal Code (Sexual Offences) Act 2016.

The Crown alleged that the accused had sexual intercourse with the complainant without her consent.

The Crown and Defence Counsels agreed on the facts that the accused had sexual intercourse with the complainant. The incident occurred on 18^th October 2021 between 5pm and 7pm inside a Caldina car, beside the fence near the Kausimae Building at Panatina area in Honiara.

There is no issue on who are defendant, complainant and incident of sexual intercourse except on the consent.

Whether the complainant had consented when the accused had sexual intercourse with complainant in the car.

On the 15^th October 2021, the complainant was walking from Point Cruz to the Central Market and at the Commonwealth Street, a Caldina car driven by the accused stopped and he invited the complainant in the car. The accused was unknown to the complainant but she went in the car and took the back seat.

In the car, the complainant asked the accused if he knew her and the accused said that he knew her and they reside at Vura 3 and she agreed to. Accused told her that he is medical doctor was working at the NRH in the surgical ward.

The car did not stop at the Central Market and drove on until it stopped a Kukum SDA bus stop. Accused asked for the complainant’s phone number and she gave it to him. She dropped off at the SDA bus top.

On 18^th October 2021, the complainant was walking to catch the bus at the Central Market when the accused rang her. He asked her where she was and the complainant told him that she was going to the market. Accused told her that he was driving and on the que at the road. Accused drove and stopped at SPOL to the complainant and she went in the car.

Complainant told the accused that she was to drop at Kukum SDA car park area. When they reached the SDA bus stop, the accused did not stop but drove on until he pulled over beside the fence of the Kausimae Building opposite Panatina Plaza.

When the car stopped, it was lock and the complainant asked the accused, “Okay what na iumi duim hia”

The accused jumped over to the complainant at the back seat and tried to pull down her skirt but he cannot do it. Accused laid on top of her and tried to pull down the complainant’s underpants but he still cannot do it. Accused pulled down his trousers, put his penis at the side of her underpants, and pushed his penis in the complainant’s vagina.

Complainant said the accused was stronger to her and he managed to have sex with her and it was when she had a menstruation or period. She told the accused about the menstruation but the accused said, “Hem orite nomoa”. After the accused had sexual intercourse with her, the accused drove and dropped of the complainant at SDA bus stop.

The accused asked and took the complainant’s mobile phone and later he made demand to her before he can return the phone or he would report their relationship to her husband.

In the Record of Interview (ROI) with the Police, the accused stated he went to the back seat and held under the complainant skirt. Complainant told him that she had menstruate or period but had sexual intercourse in the car.

The accused decided to remain silence but his counsel submits that the consideration of the court must involve the whole circumstances of the event leading of the sexual intercourse as from the facts or at the end, it suggested different story. Counsel submits that what the complainant is saying does not reflect well on the actions and behaviours displayed through her evidences on 18^th October 2021.

Counsel for the Prosecution submitted that these evidences supports the Crowns case against the accused. The accused did not stop at SDA bus stop and continued to drive easterly direction despite the complainant insisted for him to stop at SDA bus stop. Complainant told the accused that she had menstruation or period but the accused said, “Hem orite nomoa” and the counsel submits that this shows her mind of being reluctant to have sex, an evidence of lack of consent or defendant being reckless.

The accused did not deny that he sex with the complainant in the car beside the fence of the Kausimae Building opposite Panatina Plaza. Both counsels also agreed that there was no violent or force used by the accused.

The relationship between complainant and accused started on the 15^th October 2021 when the accused invited the complainant to a car and she went in the car. She dropped off from the car at the SDA bus stop and gave her phone number to the accused.

On 18^th October 2021, the accused rang the complainant and picked her up at the SPOL area. They drove on easterly direction until the car pulled over beside the fence of the Kausimae Building opposite Panatina Plaza.

The scenario with the sexual intercourse or what had happened in the car as stated by the complainant in her oral evidence. The evidences has uncertainty or ambiguity in them and with the manner of sexual intercourse in the car. It all started when the car stopped beside the fence of the Kausimae Building and when complainant said that the accused jumped over to her at the back seat in the car.

This uncertainty or ambiguity of the complainant’s evidence can be noted from followings:

By common knowledge, the jumping over from the front seat to the backseat is not simple as stated in the evidence of the complainant. For person at the driver’s seat in a car to jump over or even to easily go over to the back seat of a car has practical difficulties. In my view, it is impossible to easily over to the backseat from the driver’s seat in a car as described by the complainant in her evidence. This complainant description of the act of the accused raises element of doubt or uncertainty on genuineness of her evidences.

Obviously, there should be some indication of a struggle by any person to go over to the back seat from front seat of a car, than just jump over. There is no evidence to explain this part or the jumping over in the car.

Interesting to note from the evidence that the accused tried to pull down her skirt and underpants, it should at least have elements of violent or force but there is none at all.

With the evidence that he pulled down his trousers, put his penis at the side of her underpants, and then pushed, his penis into the complainant’s vagina was plainly described in the complainant’s evidence. Again, if there was no consent as alleged then there should be, at least elements of violent, or force but there was none at all.

The only closest evidence is when the Complainant stated the accused was stronger to her and he managed and had sexual intercourse with her. At the time, she had a menstruation or period and she told the accused but the accused said, “Hem orite nomoa”. Again, if the accused was stronger, then what act or force did he used to her? There is no evidence to support that the accused was stronger to her.

When the complainant was giving evidence, she appeared not settled and tried to recall or to put in the context although she is a mature woman and bank officer. She tried to relate her evidence or story to what she opted to be than telling what actual occurred and in particular the moment of sexual intercourse in the car.

To prove the rape charge, the Crown must provide the evidences and proof the case beyond reasonable doubts.

I have considered the facts and with the jumping over to the back seat of the car, the method of the sexual intercourse by putting the penis at the side of the under pants and then push the penis into the vagina. The fact the complainant gave to the accused her mobile phone. There was no force and no evidence to support the act of the accused. The evidences of the complainant raise doubts in my mind.

With the evidences now before me, I am not satisfied and the prosecution has not proved its case beyond reasonable doubts. The accused Jarret Sialo is found not guilty on the charge of rape and he is acquitted.

High Court of Solomon Islands

R v Sialo [2023] SBHC 81; HCSI-CRC 521 of 2021 (18 August 2023)