R v Ngala [2024] SBHC 109; HCSI-CRC 365 of 2023 (29 July 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Ngala
Citation:
Date of decision:	29 July 2024
Parties:	Rex v Uziah Ngala
Date of hearing:	5 July 2024 (Closing Submission)
Court file number(s):	365 of 2023
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	In the absence of the calendar I am not too certain whether UN and NK had sex on 9/6/2022. The evidence before me says that UN and NK enjoy sex multiple times in the year 2022. UN and NK were in a romantic relationship. What this means is that I have a slight doubt about the crown’s case. And once that is the case, I must give benefit of the doubt to UN and acquit him of the charge of rape. I find that UN was present at BV on 9/06/2022 but he did not rape NK. I acquit UN of the charge of rape.
Representation:	Mr Auga and Ms Oroi for the Crown Mr Bosa for the Defendant
Catchwords:
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Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 365 of 2023

REX

V

UZIAH NGALA

Date of Hearing: 5 July 2024 (Closing Submission)
Date of Judgment: 29 July 2024

Counsel; Mr Auga and Ms Oroi for the Crown.
Counsel; Mr Bosa for the Defendant.

KENIAPISIA; PJ:

Judgment

1. Mr. Uziah Ngala (“UN”) and Ms. Nester Kaoho (“NK”) are neighbours from Barabaraora village (“BV”), East Bauro, Makira/Ulawa Province. Ms NK complains that UN raped her at the water pump at BV, around 8:00 pm at night on 9/06/2022.
2. Mr UN pleads alibi. UN assert, he was absent from BV at that time.
3. The issues I must determine are: –
   • 3.1 Whether or not UN was present at BV?
   • 3.2 If UN was present at BV, did he rape NK?

Whether or not UN was present at BV?

4. On the night of 9/06/2022, Mr UN assert he was absent from BV. Mr UN was a security officer working for SIC logging company. On the night of 9/06/2022, UN was on night shift duty at SIC logging company’s camp at Marere. Working night shift duty with UN are two other company security officers namely Mr. Francis Teresuka (“FT”) and Alfred Watoto (“AW”). All 3 security officers reported for night shift duty at Marere camp and signed the company’s time sheet on 9/06/2022.
5. Mr. FT and AW both confirmed having departed Hagaehu log bond with UN, around 4 pm on 9/06/2022 to go for night shift duty at Marere camp. Marere camp is located in land about 30 km away from Hagaehu log pond at the coast. It takes about 2 hours to get there on company truck. Nathan Nalve (“NN”) also confirmed he saw UN, FT and AW board the company’s white Land Cruiser and departed for Marere camp from Hagaehu log pond at 4 pm on 9/06/2022. NN was another company security officer working day shift duty at Hagaehu log pond. Nathan assisted UN, FT and AW to load a 44-gallon drum fuel for Marere camp and bid them farewell.
6. Two further witnesses, Mr. Philip Paraku and Netty Hagatea also supported Mr UN to confirm that he was absent from BV on the night of 9/06/2022. UN went to work on night shift duty at Marere camp on the night of 9/06/2022. Philip Paraku, a resident of BV denies there was feasting in the village on the night of 9/06/2022. He also confirmed UN was absent from BV on the night of 9/06/2022.
7. Netty Hagatea, wife of UN also gave evidence confirming that UN was not present at BV on the night of 9/06/2022. Netty also denied there was feasting in the village on the night of 9/06/2022. Netty said UN went to work on night shift duty at Marere camp on 22/06/2022, which is located 30 km away from BV.
8. The problem with all the witnesses UN called is none of them were neutral or impartial. They are either a friend, work colleague or wife of UN. Because of their relationships to UN, they will want to render assistance to UN. This is especially true with respect to Philip and Netty as they benefit from UN remaining in BV. Philip is UN’s friend (wantok) from Choiseul who like UN has made BV his dwelling place in year 2022. Netty is UN’s wife.
9. The only independent and credible evidence, I had in mind was the time sheet that UN, FT and AW signed to work on night shift duty at Marere camp on the night of 9/06/2022. UN wanted trial to adjourn to allow him to obtain the time sheet from the company’s head office at Lunga in Honiara. I refused to adjourn and instead issued orders for the company to produce the time sheets. The orders were perfected on 5/6/2024. Attempts to implement the orders were futile. The company’s head office could not be located in Lunga, Honiara.
10. The alibi defence is refused. I find UN was present at BV on the night of 9/06/2022.

If UN was present at BV, did he rape NK?

11. NK complains that UN raped her at the water pump at BV, around 8:00 pm at night on 22/06/2022. NK was returning after searching for her 13 years old son. Her son was at a banquet being held at the other end of BV. She arrived at the water pump, where UN was showering naked. She was talking on the phone with her back to UN. Just then UN came, grabbed and dragged her some distance away and forcefully had penial sexual intercourse with her without her consent.
12. In the examination in chief, I noticed that NK was an intelligent and smart witness. She answered questions with confidence. I held this strong view even though I noticed NK had some signs of disability in her outward appearance. She has hormone disorder which caused horrific facial tumor hanging from her forehead downwards covering her face. There is no reason to doubt her mental capacity to comprehend things despite her disability.
13. In the examination in chief NK focused on the incident of alleged rape at the water pump. That was the only time UN had sexual intercourse with her without her consent. Under cross- examination however, it transpired that UN and NK were sex partners and neighbours. At the start of cross-examination, NK maintained her confidence and denial to defence counsel suggestions that she had a romantic relationship with UN.
14. Defence counsel even asked if UN sometimes had sexual intercourse with NK. NK firmly denied. NK also denied a question that she had sexual intercourse with UN sometimes in March 2022. She even denied having sexual intercourse with UN in November 2022. When defence counsel grilled NK further requiring a “Yes” or “No” answer to whether she had sexual intercourse with UN in November 2022, she eventually answered “Yes”.
15. Defence counsel further asked NK to confirm that in November 2022, when they had sex UN told her they will have to stop because his wife was suspicious. NK confirmed and said “It is true, he said that but I already decided to report the incident of rape that took place on 9/06/2022”.
16. Defence counsel repeated that UN had sex with her in March 2022. NK denied. NK also denied a question suggesting that they have been having sex since the beginning of year 2022. NK later admitted under cross examination that she had had sex with UN 3 additional times to the rape incident on 9/06/2022.
17. Because NK changed her story, I was attracted to the defence theory that NK and UN were in a romantic relationship since the beginning of year 2022. And that they were involved in having mutual sex multiple times since March 2022. NK was afraid to talk about it to the court or to her people, because it is not common practice to talk openly about sex. I asked NK to give a detailed account of the 3 additional times UN had sex with her excluding the 9/06/2022 rape incident. NK said the 3 additional times were between June to November 2022.
18. First incident they had sex in a cocoa plantation at night. Second, they had sex next to NK’s house at night. Third time was in the coconut plantation. On all 3 occasions they had sex at night. UN was the one who called NK on her phone to arrange for their meeting to have sex at night.
19. Taking whole of the evidence together, it came out clearly that UN and NK had a romantic relationship in year 2022. They were close neighbours around the vicinity of the water pump at BV. UN would freely call NK at night (implying there was existing mutual relationship). NK and UN’s house are not far from each other. The water pump is a common spot close to their respective houses. On the 3 additional occasions they had sex at night. UN says they had sex many other times from January to November 2022. I believe UN on this because NK changed her story. I have doubt about NK’s evidence. NK did not want to speak openly about their sexual relationship. The rape incident was only reported about 8 months later in February 2023. There was no early complaint (implying consensual sex).
20. I find that UN and NK had a romantic relationship in year 2022. And in year 2022, according to UN they started having sex in March 2022. The last time they had sex was in November 2022, before the matter was reported to Kira Kira police in February 2023.
21. UN and NK are sex partners and neighbours. They have had sex multiple times in the year 2022. But it was this sex incident on 9/06/2022, which NK complained about. And she already marked this 9/06/2022 incident, in her diary or calendar. That calendar which NK marked is an important piece of evidence that the crown failed to place before the Court. UN and NK have had sex multiple times in the year 2022. In order for me to be sure, that they did have sex on 9/6/2022, which NK did not consent to, I need to see the diary/calendar. I am fearful NK might confuse the dates because they have had sex multiple times in the year 2022, being sex partners. NK changed her story casting some slight doubt about the credibility of her evidence.
22. In the absence of the calendar I am not too certain whether UN and NK had sex on 9/6/2022. The evidence before me says that UN and NK enjoy sex multiple times in the year 2022. UN and NK were in a romantic relationship. What this means is that I have a slight doubt about the crown’s case. And once that is the case, I must give benefit of the doubt to UN and acquit him of the charge of rape. I find that UN was present at BV on 9/06/2022 but he did not rape NK. I acquit UN of the charge of rape.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE