Regina v Rukarae [2016] SBMC 12; Criminal Case 511 of 2015 (17 May 2016)

IN THE CENTRAL MAGISTRATES COURT
OF SOLOMON ISLANDS AT HONIARA
(Criminal Jurisdiction)

Criminal Case No. 511 of 2015

REGINA

v

JOE RUKARAE

Crown: Ms. E. Rizzu of the Office of the Director of Public Prosecutions
Defence: Mr. L. Waroka of Public Solicitors Office
Hearing: April 4-6, 2016
Closing submission: May 4, 2016
Judgment: May 17, 2016

JUDGMENT

1. After the ruling on a no case to answer, the following are the remaining charges against the defendant.
   

CHARGES

(i) Count 1 – Indecent assault of Mercy Samina contrary to section 141(1) of the Penal Code.

The Crown alleges that on the 5^th of June 2015 at Yandina, the defendant indecently assaulted her by putting his hands to touch her buttock and trying to remove her trouser.

(ii) Count 2 – Indecent assault of Mercy Samina contrary to section 141(3) of the Penal Code.

The Crown alleges that between 31^st of December 2014 and 5^th of June 2015 at Yandina, the defendant with intent to insult the modesty of Mercy Samina showed her his penis with the intention that she would see his penis.

(iii) Count 3 - Indecent assault of HelvinaRiahi contrary to section 141(3) of the Penal Code.

For this count, the Crown alleges that between 31^st of December 2014 and 5^th of June 2015 at Yandina, the defendant with intent to insult the modesty of HelvinaRiahishowed her his penis with the intention that she would see his penis.

(iv) Count 6 - Indecent assault of Mercy Samina contrary to section 141(1) of the Penal Code.

The Crown alleges that between 1^st of January 2015 to 5^th of June 2015 at Yandina, the defendant indecently assaulted her inside the sitting room of her parent’s house by lifting up her skirt and trying to put his hands on her vagina.

(v) Count 7 - Indecent assault of Mercy Samina contrary to section 141(3) of the Penal Code.

The Crown alleges that between 1^st of January 2015 to 5^th of June 2015 at the back door of the complainant’s house Yandina, the defendant with intent to insult the modesty of Mercy Samina, showed her his penis with the intention that she would see his penis.

(vi) Count 8 -Indecent assault of Mercy Samina contrary to section 141(1) of the Penal Code.

The Crown alleges that between 1^st of January 2015 to 5^th of June 2015 at Yandina, the defendant indecently assaulted her at the Dolphin wharf at Yandina by holding her and placing his penis onto her lower back while she was swimming.

AGREED FACTS

2. The following are the facts that have been agreed to by the prosecution and the defence:
   
   • (a) The identity of the defendant, Joe Rukarae and the fact that he was well known to the victim Mercy Samina and was related to her as grandfather.
     
   • (b) The respective ages of the two victims namely Mercy Samina and HelvinaRiahi at the time of the offending. That is Mercy was 10 years of age and Helvina was 6 years of age.
     
   • (c) That the defendant had been living at Yandina in the Central Islands Province between 31^st of December 2014 and 5^th of June 2015.
     
3. The total evidence presented for the court to make its findings consist of 5 witnesses^[1] and 4 exhibits.^[2]
   
4. The defendant denied the allegations, called no witness and remained silent. Despite his decision to remain silent, no adverse inference should be drawn from his decision.
   
5. For every criminal trial, it is trite principle that the prosecution must prove its case beyond reasonable doubt and that a mere preponderance of probabilities is not enough. Equally trite is the observation that in view of this standard of proof in a criminal case, the defence has no burden to prove anything. He does not have to prove that his version is preferable. It is upon the prosecution to prove its case and to prove it to the criminal standard of beyond reasonable doubt.
   

ISSUE

6. The only issue for the court to decide is whether the defendant had unlawfully and indecently assaulted Mercy Saminaand HelvinaRiahiat the various occasions as alleged by the prosecution.
   

COURT’S ASSESSMENT

Count 1- The allegedindecent act of the defendant by putting his hands to touch the buttock of Mercy and trying to pull off her trousers on 5^th of June 2015.

7. The evidence to establish whether or notthe defendant has committed this first count depends entirely on Mercy Samina, Allan Saenile and Joyce Arari.
   
8. The evidence from the complainant revealed that during the night in question, she and her brother were sleeping inside their sitting room. While they were sleeping, she saw the defendant walked in and out of the sitting room. The reason for his movement from the line of cross examination was due to some people had asked for beer that night. This was denied by the victim including her parents. When he returned backinto the house, he put a frog on top of Mercy and returned to his room. She got up and removed the frog. At that time, she was now conscious of her surrounding despite she laid down back again. Not long, she felt someone came to her, held her buttock, turn her around and held her inside of her trouser. She was shocked when she felt this and when she got up, she saw the defendant jumped up, escaped to a corner of their house and hid behind a cement walling. Upon realising this, she cried and this made her parents to come over to her that night. When her father asked her what had happened, she told him that someone held her and that person was hiding at the corner of that cement walling inside their house. Her father went and looked at the corner of that wallingand saw the defendant was hiding at that place.
   
9. The evidence about her crying and her complaint of what the defendant did to her that night was supported by the evidence her mother (PW4) and father (PW5). Their evidence revealed that as soon as they heard their daughter crying, they came out immediately from their room. When they reached her in the sitting room, she immediately told them that the person who held her was hiding at the corner of the walling who eventually was the defendant.
   
10. The effect of the evidence of the complainant together with their parents when considered in their entity has a ring of truth in terms of the identification of the defendant. I reached this decision for the following reasons:
    
11. First, the complainant clearly identified the defendant as the one who held her buttock and heldher inside her trouser.She identified him because of the lighting from the solar bulbinside their house. Further, he was not a stranger but her grandfather who lived together in the same house at the time of the offending.
    
12. Second, she was able to identify where the defendant had escaped to and hit inside the house. When she directed her father to check where that person was hiding, the defendant was located immediately.
    
13. Third, the evidence of her father also revealed that he saw the defendant walking across the sitting room that night prior to the offending. This shows that it was only the defendant who was moving to and fro inside that house when the rest of them were already sleeping.
    
14. Finally, it seems that the reason why he was standing at that corner was due some unknown persons wanted to buy beer that night. Unfortunately, as the evidence unfolded, there were no people outside of the house at that odd hour of that night. If there were any, then,Allan Saenile would have known about this when he came to where the defendant was hiding. The absence of it means that this suggestion is a clear invention based on the imagination of the defendant.
    
15. For those reasons, I am satisfied that the evidence of the complainant is not inventive but clearly revealed the indecent act of the defendant against her that night. Accordingly, his act of holding her buttock and further inside her trouser while she was sleeping constitute an act against the accepted standard of indecency or morality in our society.^[3]
    
16. Therefore, I am satisfied that the Crown has proven its case beyond reasonable doubt in relation to count 1 and hence, the defendant is convicted of this count.
    

Counts 2, 3 and 8- The allegedindecent acts of the defendant between 31^st of December 2014 and 5^th of June 2015 when he intended to insult the modesty of Mercy Saminaand HelvinaRiahiby showing her his penis intendingfor them to see his penis and also by holding Mercy and placing his penis onto her lower back while she was swimming at the said wharf.

17. I decided to deal with these three counts together since they occurred at the same time and the evidence for each counts relates to the other.
    
18. The allegation in relation to these counts relates to the incident that occurred at the dolphin wharf in Yandina. At the material time, the defendant was with Mercy Samina, HelvinaRiahi and Sandy Riahi.
    
19. The evidence from these three witnesses revealed that he was swimming in the sea at the time of the offending. Sandy’s evidence was very limited for the court to rely on. Only Helvina and Mercy’s evidence to a certain extent able to relay the facts of this case.
    
20. According to Helvina’s evidence, she said the defendant was wearing a black towel while Mercy said he was wearing a black trouser when he was swimming in the sea. According to Helvina, his towel was removed by the wave and that was when she saw his penis from a close distance. She heard him saying it’s a sausage to Mercy when he referred to his penis. They were laughing at him when he was naked.
    
21. This piece of evidence was not revealedby Mercy. All Mercy was saying was,she didn’t hear him saying any word to them but as observed, he only removed his trouser and continued with his swimming.
    
22. The evidence from Mercy further revealed that the defendant asked her to jump in the sea. After she had jumped and was close to where the defendant was,the defendant moved closer to her, pulled out his penis and put it on her back. That time, Sandy and Helvina were also in the sea. She struggled and swam away further from him.
    
23. Despite this potential strong evidence against the defendant, there was not any explanation from the complainant how she knew that it was his penis that was placed onto her backsince at that material time, she was facing away from the defendant. Because this alleged act had occurred at her back, it is important for the Court to be certain about the conduct of the defendant otherwise, it could be any ordinary part of his body that touched her back.
    
24. Further, there wasn’t any explanation to show why she struggled and moved away from the defendant. Her reason for moving out of the defendant should prompt an explanation which unfortunately hasn’t been established. These aspects of the evidence are crucial to determine the certainty of what exactly the defendant had doneto her at that time of the alleged offending. Otherwise, it will only be a guess work from the complainant.
    
25. From thevarious evidences, obviously, there were conflicting evidences given by each witness in terms of clothing, the conversation and whether he had intentionally removed his clothfor the purpose of exhibiting his penis to them. One said he removed his trouser and continued with his swimming while the other said his black towel was removed by the wave when his waist was under the water.
    
26. The conversation itself was also doubtful. Helvinasaid she heard the defendant described her penis as sausage to Mercy while Mercy didn’trevealthat in court despite they were standing together at the wharf. If that was what he said then it is expected for Mercy who the defendant described his penis to her should also reveal that in court. The silence of it raises doubt whether either of the witness this court should believe to reach a firm decision.
    
27. Because of this inherent contradictions and doubts, the evidence from the prosecution could not able to demonstrate a clear and definite finding to that required standard. The questions regard whether he had any intention at that time to insult and offend their modestiesand whether he had indecently assaulted Mercy by placing his penis on her back clearly hang in uncertainty.Due to the doubts that were created and the insufficient materials before me, I am also not able to draw any inference to establish his state of mind at the time of the alleged offending. Therefore, the defendant must be given the benefit of that doubt and he is acquitted of counts 2, 3 and 8.
    

Count 6 - The alleged indecent act of the defendant against Mercy Samina between 1^st of January 2015 to 5^th of June 2015 by lifting up her skirt and trying to put his hands on her vagina.

28. For this count, the Crown relies only on the evidence of the victim, Mercy Samina.
    
29. She recalled that when she was sleeping in the sleeping room, the defendant came to her and lifted her skirt and wanted to hold inside her skirt. However, he just held to her front. She saw what the defendant did to her because of the solar light. The defendant escaped to his room after he did this to her.
    
30. That is the essence of the evidence as it stands.
    
31. From her evidence, there was not any explanation as to the surrounding circumstances that led to the commission of the offence and what it meant by her front or where exactly to the front of her body the defendant was holding as alleged. To leave it unexplained and allow the court to draw any inference is not enough particular when the victim as observed was very responsive and eager to reveal her evidence in court.
    
32. In other words, it is incumbent for the Crown to produce evidence to avoid any ambiguity so that the court after consideration comes to the conclusion that there exists no reasonable doubt the defendant has committed the offence in question. The court must in other words be morally certain of the guilt of the defendant.
    
33. Due to this uncertainty, it creates doubt as to whether the Crown has proven its case beyond reasonable doubt. Accordingly, the defendant must be given the benefit of this doubt. Therefore, he is acquitted of this count.
    

Count 7 - The alleged indecent act of the defendant against Mercy Samina between 1^st of January 2015 to 5^th of June 2015 at the back door of their house at Yandinawhen he intended to insult or offend her modesty by showing her his penis.

34. The evidence from the victim herself revealed on an unknown occasion, she went to their toilet at the back of their house at Yandina. When he reached the toilet, she realised the defendant was inside the toilet building. The defendant then called her to come to him which she did. When she was close to him, the defendant pulled down his trouser and showed her his penis and said “plesyiana hem save go insaedsamthingblooketageleya.”
    
35. She recalled that when he showed her his penis it was during a day light and was from a very close distance.
    
36. This evidence was not shaken and remained firm all throughout.
    
37. I accept the evidence of the complainant as demonstrative of what the defendant did to her that time. The question now is whether the act of showing his penis to Mercy constituted indecent assault.
    
38. In Beal v Keeley,^[4] Lord Goddard LJ,when explained indecent assault in the context of showing a male’s penis against the will of another person stated:
    

“If a man assaults a woman, at the time exposing his person to her, I have no doubt that is an indecent assault on a female, just as I have no doubt that the conduct of the respondent was an indecent assault.”^[5]

39. Translating this definition to the action of the defendant, there can be no doubt that his act of removing his trouser and showed his penis to the victimconstituted indecent assault.Further, when an elderly person intentionally showed his penis to a 10 year old girl is an act of gross indecency in our society.When he said these words to the victim “plesyiana hem save go insaedsamtingblooketageleya” whilst exposing his penis, he had the intention that this would insult or offend her modesty.His intention to insult and offend her modesty was establishedby his utterance of these words.
    
40. Her modesty was insulted or offended when she saw his penis from that very close distance coupled with the words he said to her. No doubt, his actions havethe potential of affecting her mentally and now become part of her memory she had to live with all her life.
    
41. Therefore, I am satisfied that the Crown has proven its case beyond reasonable doubt in relation to this count and the defendant is convicted as charged.
    

ORDERS OF THE COURT

(A) Convict the defendant on counts 1 and 7.

(B) Acquit the defendant on counts 2, 3, 6 and 8.

(C) Either party has a right to appeal this judgement within 14 days as of today.

THE COURT

Augustine Aulanga - PM

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^[1] PW1 – HelvinaRiahi, PW2 – Sandy Riahi, PW3 – Mercy Samina, PW4 – Joyce Arari and PW5 – Allen Saenile.
^[2] P1 – Memorandum of Agree Facts filed on 21/3/2016, P2- List of Witnesses to call, statements and exhibits to tender by consent filed on 21/3/2016, P3 – Checklist for Pre-trial Conference and P4 - sketch plan described as ‘YCRB No. 18/2015’
^[3] See case of R v Tebounapa [1999] SBHC 9
^[4](1951) 35 CrAppR 128
^[5] At page 130