R v Navi [2024] SBHC 132; HCSI-CRC 57 of 2024 (30 September 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Navi
Citation:
Date of decision:	30 September 2024
Parties:	Rex v Gravis Navi and Walter Leonard
Date of hearing:	21, 26, 27 September 2024 (Trial)
Court file number(s):	57 of 2024
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	Accordingly, I will acquit LW and GN of the rape charges made against them.
Representation:	Mr Beto and Rehomora for the Crown Mr Houa for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Penal Code (Amendment) (Sexual Offences) Act 2016 S 136A (1) (2) (a), S 136 A (1) (2) (c)
Cases cited:	R v Wilson [1991] SBHC 56

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 57 of 2024

REX

V

GRAVIS NAVI AND WALTER LEONARD

Date of Hearing: 21, 26, 27 September 2024 (Trial)
Date of Verdict: 30 September 2024

Counsel: Mr Beto and Rehomora for the Crown
Counsel: Mr Houa for the Defendant

Judgment

1. Ms. Lister Dawi is from Malo village, an island just opposite to Luava village, in Lata township, Santa Cruz, Gracious Bay, Temotu Province. On the afternoon of 7/10/2022, Ms. Lister Dawi (“LD”) came across to Luava village to attend a fundraising event at Melisha’s invitation. Two other girls, namely Laura and Leonita, accompanied LD.
2. The fundraising at Luava village went late into the night of 7/10/2022 and into the early hours of 8/10/2022. The fundraising stopped around 03:00 or 04:00 am on 8/10/2022. After the fundraising closed, LD joined Leonard Walter (“LW”), Gravis Navi (“GN”) and Jaydee Ipea (“JI”) to walk from Luava village on the eastern side of Lata airport to Nela beach on the western end. LD spent the entire time at the fundraising with LW, GN, JI and other boys, drinking alcohol (kwaso) and smoking cigarette
3. LD complains that on the journey from Luava village to Nela beach LW, GN and JI took turns to have sexual intercourse with her without her consent.
1. There are two issues that I must determine: -
   1. Whether or not LW had sexual intercourse with LD without her consent and LW knew about or was reckless as to the lack of consent?
   2. Whether or not GN had sexual intercourse with LD without her consent and GN knew about or was reckless as to the lack of consent?
4. LW, GN and JI are jointly charged for raping LD. LW and GN denied raping LD. JI did not turn up at trial. Prosecution and defence agreed to proceed with trial against LW and GN. JI cannot stand trial until a medical practitioner certifies that he is mentally fit to take his plea.
5. Crown produced evidence through two key witnesses. The victim, LD (“PW1”) and Melisha Faithlyn (“PW2”). The third prosecution witness Leonita I’alatua, did not complete her evidence in chief after taking her oath. She broke down in tears in the witness box and did not return the next day after adjournment.

PW1 - LD evidence

6. LD begun her evidence by saying she came to withdraw the case against LW and GN. The chief from her village had settled the problem. And they have already reconciled after compensation was paid. When prosecutor put to LD what the problem was, she said the boys gave her compensation because they beat her up at the water when they were drinking alcohol.
7. The prosecutor asked what happened at the water. LD said they arrived at the water, sat down and the boys asked her to join them to drink beer. The boys (LW, GN and JI and others) gave her kwaso to drink. She became very drunk.
8. LD went to look for Melisha. GN pulled LD’s hand and she fell down on the sand beach. She stood up. GN pulled her to a nearby house and hit her head against the post of the house located at the sea side. GN also slapped LD’s lips and pushed her head under a bed in the house.
9. Other girls who were with LD at the time the boys assaulted her included Laura, Leonita and Mary Ila. LD struggled, cried and felt pain when GN assaulted her. Laura spoke to GN. GN stopped beating LD and walked away from them.
10. Then LD asked for Melisha. They told her that Melisha was on the main road with a group of boys. At that time, LD estimated was around 04:00 am, in the early hours of Saturday, 8^th October 2022. LD joined the boys and walked from Luava village to the point, then to Nelvir and finally to Nela beach, their final destination.
11. From 04:00 am of 8/10/2022, LD joined Melisha, Laura, Leonita, Mary, LW, GN, JI and Clive on the main road from Luava seaside to walk down to Luava point, then to Nelvir and eventually to Nela beach. This is from one end of Lata airport on the east to the other end on the west. LD said there were seven of them on the main road walking down to Nela beach. LD said, she was very drunk so much so that she completely lost her mind and could not remember whatever the boys did to her on the journey from Luava village to Nela beach.
12. LD did not say that she did not remember walking from Luava beach to the point, then to Nelvir and finally to Nela beach. LD’s evidence did indicate that she remembers looking for Melisha and meeting the boys on the main road prior to taking the journey from Luava to Nela beach. LD followed the boys because she said Melisha was with the boys.
13. It was Melisha who told LD all the things the boys did to her on the journey from Luava to Nela beach (see paragraphs 18 and 19). At Nela beach, LD washed her face in the sea and regained her consciousness. They arrived at Nela beach around 08:00 am and rested. Then Melisha’s uncle came and called out to Melisha. Melisha and Steven ran away to hide in the bush. LD also ran away to hide in the bush. LW left and Clive continued, following LD into the bush.
14. LD was afraid of Melisha’s uncle so she hid in the bush with Clive. Clive then asked LD to have sex. LD wanted to run away because she was afraid of Melisha’s uncle. Clive pulled her back, asked her to bend down, lifted her skirt, and pushed his penis into her vagina. Clive had sex with LD. Clive is not jointly charged with LW, GN and JI for the rape of LD. I take it that LD had consensual sex with Clive in the bush at Nela beach.
15. Melisha and Steven ran away from LD and the boys after her uncle called her out. LD finished having sex with Clive and returned to Malo via Luava. Melisha met LD on the road back to Luava. Melisha told LD that her shirt was hanging on an Oki tree. It was around 10:00 am on 8/10/2022.
16. Before returning to Malo, LD rested at her uncle Gabriel’s and aunt Dorcas’s house at Luava. And went back to Malo the next day.
17. The prosecutor asked LD what the boys did to her on the journey from Luava to Nela beach. LD did not remember anything because she lost her mind due to drunkenness and blackout. It was Melisha who told her everything the boys did to her, when she came back and met Melisha in the afternoon of the same day (8/10/2024) at Luava village.
18. The things Melisha told LD were: -
    1. They reached the bottom of an Alite tree and the boys wanted to break LD’s head there. They stopped because Melisha came and talked to them.
    2. The boys chased LD to Luava point where males use for toilet at the seaside, and they took turns to have sexual intercourse with her.
    3. They moved a little bit further up to Nela beach and do the same thing again (taking turns to have sex with LD).

PW2 - Melisha’s evidence

19. Melisha’s evidence essentially confirmed what would otherwise be hearsay evidence from LD as summarised in the preceding paragraph 19. Melisha also confirmed that LD got very drunk because she drank kwaso and smoked marijuana with the boys. Melisha was going back and forth to the fundraising event and to where LD was drinking with the boys. Melisha was bringing beer and smoke for LD. LD stayed with the boys drinking the whole time until around 04:00 am on 8/10/2022, when they left Luava on the journey to Nela beach.
20. In the morning part of 8/10/2022 the boys took LD to the point at Luava at the seaside. Melisha followed them using the bush road. Melisha was concerned for LD’s safety. Then Melisha heard LD was calling out her mother. She went over and saw LW was having sex with LD. LW was sucking LD’s vagina and eventually had sexual intercourse with her around 06:00 am on 8/10/2022.
21. At about 10:00 am on 8/10/2022, they were approaching Nelvir. Melisha saw LD was still very drunk and JI wanted to beat LD. JI hit LD’s forehead and mouth. The boys also threatened to kill Melisha and to bury her at the creek. The boys beat LD and she was crying. Melisha felt sorry for LD and she also cried. They were getting closer to Nela beach. Melisha told LD to go back with her. LD did not listen to Melisha.
22. They finally arrived at Nela beach. They had a rest at the seaside. LD went to wash her face or swim in the sea. After that GN asked LD to have sex. They went to a nearby bush (grass) and had sex there. This is how GN asked LD to have sex according to Melisha, “Your vagina is very clean now, come let us two go again”. And the two of them went into the bush to have sex.
23. As LD and GN had sex in the nearby bush, Melisha’s uncle came and called her. Melisha ran back to the airport and all the way back to her house at Luava village. She stayed there and around 3 pm on 8/10/2022, came back to Luava point. She met Junior and Hellen on the way. And they all went to look for LD. On the way they saw LD’s shirt hanging on an Oki tree. They looked to the end of Luava road and saw LD coming towards them. She was laughing as she approached them. They took down LD’s shirt and went back to Melisha’s uncle’s house at Luava beach.

Analysis of the evidence

24. LD did not know what the boys did to her on the road from Luava to Nela beach. I will accept Melisha’s evidence that LW and GN had sexual intercourse with LD. The next question I will consider is whether LW and GN had sex with LD without LD’s consent?
25. What is common and interesting about Melisha’s evidence regarding LW and GN having sexual intercourse with LD on the journey from Luava to Nela beach is, there is no evidence to tell me that LW and GN forced LD to have sex with them.
26. In terms of GN, Melisha’s evidence above says that GN asked LD for sex after she washed her face or had a swim at Nela beach. LD agreed and the two of them went to a nearby bush/grass to have sex. Melisha ran back to the airport and to her house because her uncle came looking for her. LD’s evidence is that after she washed her face at Nela beach, she regained her strength and her memory was restored. She recalled what happened to her at Nela beach. But according to her own evidence, it was Clive who had sexual intercourse with her when she ran to hide in the bush after Melisha’s uncle came looking for Melisha. Melisha and LD contradicted each other on who had sex with LD in the bush at Nela beach. Was it GN or Clive? I will say GN because I accepted Melisha’s evidence already. That being the case, Melisha’s evidence shows consensual sex because GN asked for sex and LD accepted and they went into the bush leaving the others behind at the beach (repeat paragraph 23). In paragraph 23 I noted the words “let us go again.” This denotes that GN and LD had sex along the way and GN wanted a repeat which LD accepted and they went into the bush.
27. With regards to LW at the seaside, Melisha did not know how LD and LW started. Melisha was on the bush road. But she only heard LD was shouting her mum and went over and saw LW was sucking LD’s vagina and after that went on to have sex with her. She did not say LD struggled or LW forced LD to have sex with him. LD shouting for her mum could have been a lamentation sound made in the climax of sexual enjoyment? I don’t know?
28. I consider if the boys made LD to get drunk in order to have sex with her without her free and voluntary agreement pursuant to Section 136A (1) (2) (a) of the 2016 Act, by force or fear of force or fear of harm. I have no evidence to so conclude from my analysis of the evidence above. The boys assaulted LD but that did not stop LD following them because Melisha said she asked LD at some point along the way to go back with her but LD refused. LD wanted to stay with the boys. Did the boys really assault LD? If so, why did LD continue to follow them?
29. Furthermore, I consider if LW had sex with LD because LD was affected by alcohol or drugs or was unconscious and therefore, she did not agree freely and voluntarily to have sex with LW pursuant to Section 136A (1) (2) (c) of the 2016 Act. I have some doubt in my mind because LD and the boys walked from Luava to Nela beach unassisted, meaning LD was not severely affected by alcohol or was not unconscious.
30. LD said she lost her mind and did not know what happened to her on the journey from Luava to Nela beach. However, against that evidence, she still recalls very well when giving evidence, the various places they went to between Luava village and Nela beach. The places she said they visited such as - the main road, the point at Luava where males use for toilet, Nelvir before they finally reached Nela beach. She also remembers very well that there were seven of them who went on the journey from Luava village to Nela beach. And LD maintains under cross examination that she followed the boys because Melisha was with the boys.
31. If LD was affected by alcohol, or was unconscious, she would not be able to walk from one end of the airport to the other end unassisted. She would not recall the different places they visited. She would not recall the reason she followed the boys (i.e Melisha was with the boys). And she would not even recall how many people went on the journey from Luava to Nela beach. Therefore, I am not sure if LD was affected by alcohol or was unconscious and had sex with LW without her free and voluntary agreement. I don’t even know how much beer or kwaso LD consumed? LD did not even say she smoked any marijuana and cigarettes. This contradicts Melisha’s evidence.
32. There is a slight doubt still hanging at the back of my mind from the mentioned circumstances. The other area of doubt is LD was in the company of the boys the whole-time during the fundraising on 7/10/2022. Melisha would come and go but LD remained with the boys. Even when the fundraising stopped at 04:00 am on 8/10/2022 LD was still in the company of the boys. At Nela beach or some point along the way Melisha tried to convince LD to leave the boys. Melisha was concerned about LD’s safety. LD refused. Why did LD enjoy the company of the boys so much so that she would not listen to Melisha? Is it because she enjoyed what the boys were doing to her?
33. Melisha, Helen and Junior met LD returning from Nela beach at about 3 pm on 8/10/2022 according to Melisha. LD was laughing as she approached them. Why was LD laughing after she spent almost 2 days with the boys? Did she have a good time with the boys? Was it a mission accomplished for her? If she suffered trauma, violence, assault and sexual abuse at the hands of the boys would she still be laughing? I find interesting that LD did not report the case. She was in her garden when police came to take her statement. Was LD the real complainant?
34. Being in the company of the boys for almost 2 days (7/10/2022 and 8/10/2022) was LD planning with the boys that they would go all the way to Nela beach far from Luava village, to continue drinking and having pre-arranged sex? I don’t know. But that’s where my doubt rests. It may be a slight doubt because apparently LD was drunk. Was she really affected or unconscious by alcohol? I do not know. I do not know how much beer she drunk. In view of the many unanswered questions I asked in this judgment, I still have some slight doubts. Whenever there is a doubt, though slight it may be, the accused must be given the benefit of the doubt (R v Wilson [1991] SBHC 56; HC-CRC 017 of 1991 (8^th November 1991).
35. Accordingly, I will acquit LW and GN of the rape charges made against them.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE