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Regina v Laumae [2017] SBMC 13; Criminal Case 315 of 2016 (28 March 2017)

IN THE CENTRAL MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT HONIARA )
(Criminal Jurisdiction)


Criminal Case No. 315 of 2016


REGINA

-V-

PETER REX LAUMAE


Date of Hearings: March 7 - 10, 2017
Date of Submissions: March 17, 2017
Date of Judgment: March 28, 2017


Mr. I. Tepakota for prosecution
Mr. C. Ruele for the defendant


JUDGMENT


  1. The defendant Peter Rex Laumae (“defendant”) stands trial for the charge of abduction, contrary to section 139 of the Penal Code.
  2. The prosecution alleges that on 11th of February 2016, he drove a vehicle and abducted the victim, Esther Waneria, at a location near the bulkshop building at Point Cruz to Mamara area in the Northwest of Guadalcanal, with intent to have sexual intercourse with her. The prosecution says that when he took her into his vehicle and drove her to Mamara, it was against her will. She did not at any stage agree for him to drive her to that location. The utterance of the words by the defendant to her in the vehicle that he will have sex with her and the touching of her thighs and breast during the course of the drive reflected his intention to have sexual intercourse with the victim.
  3. The defendant on the other hand denied the allegation. The defence case is that; the victim was the former girlfriend of the defendant and she had been contacting the defendant up to the 11th of February. On that date, she called the defendant through her mobile phone to pick her and when she was picked up, she requested him to drive her to Rove and eventually to White River to find betelnut. When the defendant offered to drive her toward Mamara direction, she willing accepted that offer and did not refuse at all.
  4. The defendant says that this allegation was a deliberate lie setup by the victim. She invented it after her husband had called her and found out that she was at Mamara area that evening, an odd area where he didn’t expect her there especially during the late evening of that day. On that basis, as said by the defendant, she merely made this up to paint a picture that she was being abducted, purposely to lure her husband’s favour and also, to avoid any possible marital problem if her husband finds out about her going-out with the defendant that evening.
  5. The prosecution called 4 witnesses namely; Esther Waneria, John Waneria, Darwin Utania and Humphrey Forau and tendered by consent 5 exhibits as follows: the agreed facts dated 15th August 2016, the record of interview of the defendant taken on 15th of February 2016, the statement of Peter Ragala dated 24th December 2016, the statement of Shadrack Moore dated 14th April 2016 and the statement of Alick Nono’onimae dated 14th April 2016.

Elements of abduction with intent to have sexual intercourse with a female


  1. The charge under section 139 of the Penal Code against the defendant states:

“That Peter Rex Laumae of Sisifiu village, Malaita Province at Honiara in the Guadalcanal Province on the 11th of February 2016 did unlawfully takes away a woman namely Esther Waneria against her will with intent to have sexual intercourse.”


  1. There are essentially 4 elements the prosecution must prove beyond reasonable doubt for this offence. They are; first, that Peter Rex Laumae was the person who involved in abducting Ether Waneria, second; that the offence was committed on 11th of February 2016, third; that Peter Rex Laumae without any legal justification or lawful reason, takes Esther Waneria against her will and finally; the taking of Esther Waneria was with intent to enable the defendant to have sex with her.
  2. In so far as the elements of the offence are concerned, it appears that there is no dispute in relation to the identity of Peter Rex Laumae as the driver of the vehicle and the one who drove Esther Waneria from the pickup point at Point Cruz to Mamara. Also, there was no dispute that the alleged offending occurred on the 11th of February 2016.
  3. The only elements in my view that disputed are; whether or not the taking of Esther Waneria was against her will and whether the alleged taking or detention was with an intent for the defendant to have sex with her.

Non-contested facts


  1. When these non-contested elements are considered together with the agreed facts,[1] I find the following facts have been proved beyond reasonable doubt:

Prosecution evidence adduced for the contested elements


  1. For the prosecution, only 3 witnesses are relevant for consideration. They are; Esther Waneria (PW1), John Waneria (PW2) and Humphrey Forau (PW4).
  2. The evidence of Esther Waneria (PW1) revealed that in the afternoon of 11th February 2016, she and her husband left their residence at Mbokona to Nicky’s shop. They arrived at Nicky’s shop and she bought plastics. Her husband gave her money and left her at Nicky’s while she walked to bulkshop to buy popcorn. She arrived at the bulkshop, bought the popcorn and walked out of the shop intending to return back to Mbokona. When she almost reached the refuelling station, she heard the defendant called her and asked her where she was going. She responded that she was going back home so the defendant asked her to come in the vehicle since he was also going to pick his wife.
  3. They drove towards the Mbokona junction and continued past it. That was the time she asked the defendant where they were going and the defendant replied that they would follow the Lengakiki road. They reached the Townground junction and instead of going to Lengakiki, the defendant turned the vehicle along the Townground plaza, heading westerly direction. It was at that time the defendant said to her that he took her to have sex with him. Whilst heading towards Kakabona, she begged the defendant to stop the vehicle and drop her since she was a married woman. The defendant did not stop the vehicle but kept driving further down the Kakabona road.
  4. When they reached a bridge at Kakabona, the defendant hit her thighs and held her breast. The defendant then threatened her with a small black handle-kitchen knife and other things in the vehicle. There was no explanation of the description of those things. She continued to beg him not to do those things to her since he knew her husband, however, he said that he didn’t not worry about her husband and that he will end her life there.
  5. They stopped at Mamara area and the defendant asked her to remove her clothes so that he could have sex with her. She refused and so they started to argue. The defendant insisted for her to remove her clothes otherwise he would sell her to anyone. During the course of the argument, the defendant walked out of the vehicle and approached a boy later known as Humphrey Forau[2]who was closer to them. She heard the defendant told Forau that he had a female in his car and asked him for $50 so that he could have sex with that female.
  6. While the defendant was still talking to Forau, she opened the car and escaped. The defendant saw her and shouted to her why she left the car. He chased her and when he didn’t reach her, he returned to the car and drove after her. He tried to reach her but was unsuccessful. She ran over to Forau and they hid in the bush. She said that her husband called her mobile phone 3 times and it was the fourth call that she answered.
  7. As soon as she informed her husband that she was inside the bush at Mamara, her husband then advised her to wait there whilst he would find a vehicle to come and pick her. Later that evening, her husband arrived and transported her back to town.
  8. In cross examination, it was suggested to her that she was the former girlfriend of the defendant; that the defendant in the past often gave her money; that she was the one who called the defendant 3 times to pick her up that afternoon; that she had asked the defendant to take her down to Rove and further down towards White River to find betelnut and that she had made up all these allegations against the defendant. She denied all the suggestions by the defence.
  9. When questioned by the court as to how her mobile phone number was with the defendant, she responded that he took her mobile phone in the car and it was him who used her mobile phone to call his mobile number.
  10. The evidence of John Waneria (PW2) also revealed that he and Esther left their house in the afternoon of the 11th of February 2016 to Nicky’s shop. After his wife bought plastics at Nicky’s, he gave her some money and left her there. He knew that his wife would go to bulkshop to buy popcorn. Later in the evening, he called his wife 3 times but no answer. On the fourth occasion, she answered the phone and could hear his wife crying. He asked her what happened and she said that she was in the bush. She said to him through the phone that the defendant lied to her when he took her in the car in the town but instead, he wanted to kill and rape her.
  11. As soon as he heard that, he went down to Mamara in their office bus. When he arrived, she saw his wife was crying and her body was shaking. They returned to town afterwards. There is no evidence as to whether his wife had told how the defendant did all these things to her when they reached Mbokona or afterwards.
  12. In cross examination, he denied the suggestion that he went to town earlier than his wife on the date of the alleged offending. He maintained that he called his wife by phone 4 times that evening. He also denied that Henderson Police officers had played a phone recording purportedly containing a conversation between the defendant and his wife.
  13. Humphrey Forau (PW4) gave evidence that whilst he was fixing his bicycle chain few meter away from the defendant’s car at Mamara, he could hear argument coming from that car. He heard the defendant said that he had spent a lot of money on the victim and that she should remove her clothes otherwise, he would kill her inside the car. He stated that the defendant then came out of the car and asked him for any $50 or $100 so that he would have sex with a female inside his car.
  14. While the defendant was still talking to him, he saw a female or the victim opened the door of the car and escaped. He saw the defendant chased after her and when he didn’t reach her, he came back to the car and drove behind her. He saw the victim escaped and as a result, he shouted for her to run to his side so that he could assist her. The victim ran over to him and they both escaped in the bush.
  15. During cross examination, he agreed to all the suggestions of what the defendant did to the victim as observed by him at Mamara. However, he denied that he had discussed his evidence with the victim and her husband prior to giving his evidence in court.
  16. His evidence corroborates the victim’s evidence as to her observation of how the victim escaped out of the vehicle and how the defendant had chased her but was unsuccessful.

Defence case


  1. The defence case consisted of the evidence from the defendant himself (DW1) and Jonas Metalua (DW2). The defence also tendered Melatua’s police statement exhibited as D1 in support of the defence case.
  2. The evidence of Peter Rex Laumae revealed that the victim, Esther Waneria, was his former girlfriend when she was still single. He used to sleep with her in the motels when he worked as a Constituency Development Officer (CDO) for the Fataleka Constituency. They used to call each other through mobile phones and often times, he would give her money when she requested. On a Sunday before the alleged offending, the victim called his mobile phone and he took her in his vehicle to Henderson.
  3. He stated that on the 11th of February 2016 between 3:00pm – 4:00pm, he was inside his car and was at the Yacht Club compound. After 4:00pm, he received a phone call from the victim, Esther Waneria, to pick her as soon as her husband left for work. She called him using a B-mobile phone number 8623216. She again called him for the second time to go and pick her at her house at Mbokona since it was raining. Upon hearing this, he then drove along the Mbokona road intending to pick her. When he reached the Mbokona bridge, he saw her walking down the road towards the town but for reasons unknown, he kept driving up the road.
  4. She then called him again for the third time and hence, he turned the vehicle and picked her near the bridge. They drove down to the town heading to the bulkshop.
  5. They stopped at the bulkshop and the victim asked him for money to assist her with her market. He gave her $50 and the victim went into the bulkshop to do her shopping.
  6. She returned to the car and she asked him if he could drive her to Rove to find betelnut. They drove and stopped at Rove but she didn’t want to go out of the vehicle since her wantoks were there. He then suggested for them to go to White River which she agreed to it. They reached White River and again she didn’t want to go out of the car. Instead, she said that she was hungry and this made him to drive to a location called Savo market to buy food. At Savo, he bought her a packet of fish and chips and a bottle of lemon juice. At this stage, she was yet to buy any betelnut so he suggested to drive further down in search for betelnut. Whilst on their way down, they exchanged jokes and according to him, he heard that she was just laughing and he knew that she enjoyed the ride.
  7. When they reached Mamara area, he almost hit a boy who was riding a bicycle in front of the car. He stopped in front of him at the side of the road and got out of the car purposely to apologise to that boy. When he returned to the car, he heard the boy shouted that a woman who came in the car had escaped. He quickly got inside the vehicle and drove behind her but she continued to escape. He tried few times but, she continued to escape from him. As a result, he drove back to the town.
  8. In cross examination, he agreed that the victim was his former girlfriend. He agreed that he drank beer prior to taking the victim and that she had contacted him since 2014. However, he denied taking the victim without her will. He denied all the suggestions that the victim was abducted from Point Cruz to Mamara. All he maintained and as gleaned from his answers was the victim was the person who requested him to pick her and during the course of the drive from Point Cruz to Mamara, she did not refuse or protest at all. In other words, she had consented for both of them to travel all throughout the entire journey.
  9. Jonash Metalua (DW2) is the case investigator for this case. He conducted the record of interview of the defendant on 13th of February 2016. During the course of the investigation, he received the defendant’s mobile phone containing a recorded voice between the defendant and a female person. He played the recording in front of the defendant and in the presence of another police officer, Willie Thugea. The voice recording involved a female whose name as appeared in the mobile screen as ‘Esther’. He recalled that she made 3 phone calls made to the defendant. He tendered his statement[3] to confirm these phone calls. His statement revealed the following:

“4. However, during the time that the Suspect was arrested, his Phone was taken out by police and kept it as an exhibit. I then asked the Phone from the exhibit Officer and took the Phone to the Office and Played the Memory Card.


5. I can clearly saw that the first conversation happened at about 1608hrs. According to the Conversation that I heard, Esther was the one that who calls Peter Rex Laumae. At that Time Esther was using a B Mobile phone Number 8623216. In response to that conversation Peter answered “HELLO YU YIA? Esther replied, “MI ESTHER, BY U KAM PIKIM MI FOR MI GO FINDIM MARKET 4 MI, BAT U WAIT DADI BLO MI FALA GO LO CHINA TOWN YET, TIME HEM KAM BACK THEN HEM GO WAKA THEN BAE MI KOL KAM BACK MOA.” At that time Peter Rex was using Telekom Sim Number 7629530/7629531.


6. The second call was made at about 1617 hrs on both above phone numbers. According to the communication, Esther Wanearia was the one who call for Peter Rex Laumae. When she calls Peter did answered her by saying “YEA” Esther Replied “DADI BAE YU KAM PIKIM ME LO HAUSE BECAUSE HEM RAIN TUMAS.” Peter Rex replied. DADI BLO U FALA GO WAORK NAO? BAE ME NO KAM PIKIM U LO HAUSE YEA. Then called end.


7. The third call was made at about 1627 hrs. According to that call Esther was the one who calls Peter. It was the same both above numbers, Peter answered, “Hello” Esther Replied “DADI DADI MI LO BOKONA BRIDGE NAO, U KAM PIKIM MI NAO. The only thing that Peter Rex replied was ok. Later at about 16:30hrs Esther Wanearia made another call and said to Peter Rex, U GO LO WEA YA MI NAO LO FRONT LO BRIDGE IA, Peter Rex replied that WARI BLO U IA. Then the call ends. This is wat I can only heard from the Memory card, after I gave the memory card to my Exhibit Officer, whilst later gave it to Police Prosecution to Sgt Conley.”


  1. Jonas Melatua’s evidence in relation to the hearing of the recording of the phone conversation between the defendant and Esther was not discredited in anyway and remained uncontroverted all throughout. Despite it is anticipated for the prosecution to explore in cross examination the witness uncertainty about the voice of Esther taking into account whether or not he had recognised Esther’s voice prior to the playing of the mobile phone, there is absolutely no challenge on this.

Standard of Proof


  1. This case appears to be an equally contested case where each party wanted its version of the case should be entranced. Despite of these diverging views, it is well settled in all criminal trials that the prosecution carries with it the burden of proving its case beyond reasonable doubt. The defendant does not have any burden to prove his innocence. If there is any doubt as to his guilt then, the defendant must be given the benefit of that doubt.
  2. Therefore, it is incumbent for the prosecution to produce evidence by means of which such high degree of probability is raised an ordinary reasonable man after mature consideration comes to the conclusion that there exists no reasonable doubt that the defendant has committed the offence as charged. The ordinary person must in other words, be morally certain of the guilt of the defendant.

Law on abduction under section 139 of the Penal Code


  1. The law on adduction under section 139 as expounded in the Court of Appeal case of Anita v R[4] clearly stated that the taking of detention against the victim’s will must be with an intent to marry or have sexual intercourse with her. For the present case, the taking or detention against the will of Esther by the defendant must be with intent to have sexual intercourse. Therefore, in this case, two things must be proved by the prosecution. First, Esther was taken or detained inside the vehicle against her will and second; the taking or detention must be with an intention for the defendant to have sexual intercourse with her.

Assessment by the court


Evidence as to the voice recording in the mobile phone


  1. I have looked at the Evidence Act 2009 for assistance on this aspect but unfortunately, there is no provision to cater for admission of evidence given by a third person about what he heard from a recording devise other than the recording being produced in a document. This form of evidence in different from evidence under section 122 of the Evidence Act 2009 which allows admission of evidence in a document form after being transmitted from any telecommunication devises.
  2. Since this form of evidence is given by a witness for the defendant, I am of the view that any form of evidence given in that nature in relation to any conversation made by the defendant to further his interest is classified as hearsay. Since, it is only the prosecution that can offer any admission or conversation made by the defendant as against his own interest as one of the common law exception of the hearsay rule. Therefore, I ruled that the evidence given by Mr. Melatua be excluded from the proceeding on the basis of hearsay.

Whether Esther was taken or detained in the vehicle against her will


  1. The evidence that will determine whether or not the victim was abducted comes mainly from the victim herself. Against her evidence is the evidence of the defendant who steadfastly maintained he had a prior existing relationship with the victim and further, it was the victim who repeatedly called him to pick her in his car. Therefore, the court has to look at the merit of the victim’s evidence to determine whether her evidence is credible and reliable for the court to safely rely on.
  2. The uncontested evidence about the existing relationship between the defendant and the victim is important since it provides the background circumstance to show whether or not she was abducted at all. Unfortunately, the prosecution did not negate this piece of evidence and therefore, it raised a doubt whether she was ever abducted by the defendant. The following points have been noted to determine whether or not she had been abducted at all.

The uncertainty of where the abduction starts and ends


  1. At what stage of the journey the prosecution alleges that the detention had started and ended remains utterly unclear. Whether the alleged detention started after turning along the Townground road up to Mamara is also not clear in the evidence or from the prosecution’s written submission. This uncertainty precludes the court from knowing exactly where the alleged detention had started and ended. It is important for the prosecution to assist the court bearing in mind it has the onus of proof, to succinctly point to where exactly the alleged abduction started and ended. To allow the court to make any inference without any submission to that effect is clearly untenable.

Failure of Esther to make phone calls to her husband whilst in the car


  1. The victim gave evidence that the defendant grabbed her mobile phone and called his phone whilst driving the car. If that is the case then, it appears that she in fact has credits in her mobile phone and if she was abducted then she should call her husband for assistance. Unfortunately, she didn’t not even bother to call her husband or her family members whilst she was inside the vehicle. There was no explanation offered by the prosecution why she didn’t call her husband or even her family members during the journey. It is reasonably expected or as a matter of common sense, that any person who is allegedly abducted would call his/her family members for assistance in such situations. This is an ordeal or a terrifying situation where the need for assistance cannot be overstated. None of this occurred and this raises doubts whether she was abducted at all.

Failure to answer the three (3) miscalls


  1. The evidence from her husband was, he had made a total of 4 phone calls to the victim. Three of these were not answered and only the fourth call was answered. The prosecution did not offer any explanation why she didn’t answer the three miscalls from her husband and further, she didn’t even bother to return his call since she still has credits in her mobile phone. I find this conduct totally strange as it goes contrary to a behaviour of person who was abducted or detained.

Possession of Esther’s mobile phone number by the defendant


  1. The defendant in his evidence confidently stated he has the phone number of the victim which she also agreed to it in court. The fact that the defendant knew her phone number makes the version of the defence evidence credible. How the defendant got her mobile number and vice versa is a matter worth investigating since it will determine whether or not some sort of contact between them has been going on.
  2. The demeanour of the victim appeared to be quite reluctant when giving her evidence about how her mobile phone number had ended with the defendant. She appeared to reserve her explanations about how her phone number ended with the defendant. The only explanation she offered was the defendant was the one who called her mobile phone in the vehicle. I find this evidence fanciful, inventive and limited in explanation. There could have been more explanation on this point. Unfortunately, none was offered by the prosecution and hence, the defendant must be given the benefit of this omission.

Failure of the victim to complain to any of her family members after the incident


  1. I have listened ardently whether there is any evidence about her complaint to any of her family members of this incident since this offence is related to sexual offences. None of this was offered. Though, it may be seen as a minor matter, it is prudent in all offences against morality that at least, the prosecution should offer any evidence of complaint to show her dislike or antagonistic behaviour towards the defendant after the alleged offending. Her entire behaviour is important because it will show whether or not she was consented to the defendant to continue to take her in the vehicle at the material time.
  2. As pointed out by Lord Hewart CJ. in his judgment R v Donovan[5] that:

“Consent, being a state of mind, is to be proved or negatived only after a full and careful review of the behaviour of the person who is alleged to have consented. Unless a jury is satisfied beyond reasonable doubt that the conduct of the person has been such that, viewed as a whole, it shows that she did not consent, the prisoner is entitled to be acquitted.”[6]


  1. The cumulative effect of the evidence regarding her behaviour reflects a person who agrees to travel with the defendant the entire journey. Her behaviour is suspicious and tantamount of rendering the court not to comfortably rely on her evidence as credible and reliable. Against this background of her behaviour, it clearly appeared that she in no way detained or abducted as complained of. This is the finding reached by the court in this case. Hence, I am not satisfied that the prosecution has sufficiently discharged its burden to prove this element beyond reasonable doubt.

With intent to have sexual intercourse


  1. The proving of this element is conditional on the earlier element, that is - with intent to have sexual intercourse. The proof of the earlier element leads to a possible success of the other.
  2. Given that I have doubts as to the conducts of the victim inside the vehicle at the material time, I also have serious doubts in my mind whether she was an honest and truthful witness about the alleged hitting of her thighs and holding of her breast as complained of.
  3. There was no evidence that she showed to any of her family members any mark(s) of the alleged assault on her thighs to confirm her reliability and honesty. There was no explanation offered by the prosecution about the absence of these important evidence as expected in any sexual related offences.
  4. Based on these findings, I have doubts in my mind whether she is an honest, credible and reliable witness. Her act of escaping out of the vehicle can be concluded as a set up mainly to paint a picture that she was abducted by the defendant since he realised that her husband had called her three times and, if found out especially when she was with her former boyfriend will have an adverse impact of her marital relationship.
  5. Her appearance to her husband after the incident may well be an overly pretence in trying to gain her husband’s favour especially when she as a married woman was caught red-handed with the defendant at that odd place. This also applies to the evidence of Forau in relation his observation of the victim when she escaped out of the car.
  6. The evidence given by Forau that he heard the defendant said to the victim that he had spent a lot of money on her whilst they were alone in the car supports the defendant’s version that he gave some money to the victim before the alleged offending. This again shows there was an existing relationship between the defendant and the victim and this casts more doubt on whether the prosecution will able to prove that the defendant abducted her with an intent to have sexual intercourse.

Conclusion


  1. Based on those findings, the flaws and defects detected in the prosecution’s evidence, I have in my mind serious doubts as to whether the defendant had abducted the victim with intent to have sexual intercourse with her at the time of the offending.
  2. Therefore the defendant must be given the benefit of that doubt. I find the prosecution does not prove its case beyond reasonable doubt and accordingly, I must acquit the defendant of the indictment.
  3. Order accordingly.

-----------------------------------------------------------

THE COURT

Augustine Aulanga – Principal Magistrate


[1] Dated 15th August 2016
[2] PW4
[3] Dated 4th October 2016 and marked as exhibit D1
[4] [2006] SBCA 8
[5] [1934] 25 Cr App R 1 CCA
[6] At paragraph 7-8 of the judgment.

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