R v Tekau [2019] SBMC 23; Criminal Case 52 of 2015 (3 May 2019)

IN THE WESTERN DISTRICT MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT GIZO )
(Criminal Jurisdiction)

Criminal Case No. 52 of 2015

REGINA

-V-

TEAROFA TEKAU

Dates of trial: April 18^th – 24^th, 2019
Date of Judgment: May 3^rd, 2019

Mr. Bradley. Liam. Dalipanda for the Crown
Mr. Clifton. M. Ruele for the Accused

JUDGMENT AFTER TRIAL

Introduction

1. The trial for the Defendant, Tearofa Tekau, proceeded on the 18^th of April 2019 until 24^th of April 2019, this was after he denied a count of Indecent Assault contrary to section 141 (1) of the Penal Code (Cap 26).
   
2. The charge arise out of an incident which alleges that the Defendant on 7^th of January 2015, did conduct an act of indecency on the complainant; Temukita Kourabi who was 13 years old at the time of offending. The complainant is from Rawaki, western province and is related to the Defendant as step-daughter, the complainant’s mother is married to the Defendant.
   

Crown Case:

3. The crown case is that the incident took place on the 7^th of January 2015 at Rawaki village, Kohingo, Western Province, whereby the Defendant being the stepfather of the complainant, held her breast while they were sleeping in an open room. The complainant was 13 years old during the date of alleged offending. The crown says that while the complainant was asleep with her mother and Defendant in the same open room, she felt someone caressing her breast, she woke up to see the Defendant standing beside her and apologising to her. The Defendant took a bible and promised the complainant that he’ll never repeat it again. The crown says that there was solar light in the room, hence, the complainant could clearly see the Defendant’s face. The complainant cried as she did not expect such an act from her stepfather (Defendant) and called out to her mother. The crown says at daybreak the complainant told her mother that the Defendant held her breast.
   
4. The Defendant was arrested, charged and brought to Court. He denied this allegation. Hence, the crown called two witnesses; Awaki Korafi and Temukita Tekau referred to in this judgment as “PW 1” and “PW 2” to prove their case against the Defendant.
   
5. The Defendant fully denies the allegation and put the crown on strict proof.
   

Issue:

6. The predominant issue that will determine the final result is; whether or not the Defendant unlawfully hold the complainant’s breast.
   

The Law on Circumstantial Evidence:

7. In the case of R v Duddley Pongi,^[1] Muria CJ (as he then was) stated at page 5:

“The Prosecution Case is substantially based on circumstantial evidence. As such the Court must be very cautious when considering the case as presented against the accused. It is the duty of the Court in such as case to consider all the evidence together at the conclusion of the case, ensuring that it can only draw an inference of guilty from the totality of the facts which are proved beyond reasonable doubt.

8. In the case of Regina v Tome^[2], the Judge described Circumstantial Evidence and said:

“Circumstantial Evidence is not a different species of evidence. Circumstantial Evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved.”(Shephered v The Queen (990) 170 CRC 573 per Dawson J at 579)’.

Criminal Burden of proof:

9. I acknowledge that the burden of proof in every criminal trial remains with the Crown all throughout and that is to prove their case “beyond reasonable doubt”. Should at the end of the evidence there remains a doubt, slight as it may, the benefit of the doubt must be given to the Defendant and he be acquitted forthwith.
   

Evidence concerning the touch on Complainant’s (PW 2) breast

10. I see it proper to consider this issue of; whether or not the Defendant touch or hold the complainant’s (PW 2) breast on the 7^th of January 2015, as the starting point. If the answer to the issue falls on the negative, it will be needless for this court to proceed further but to simply acquit the Defendant, however, should the answer be on the affirmative then I can plummet into consider the other evidences surrounding the offending.
    
11. The Crown relies on evidence of the complainant (PW 2) and the mother who is the recent complaint (PW 1) to prove their case that the Defendant did touched or held the complainant’s breast on the very early hours of 7^th January 2015. The evidences of (PW 1) and the complainant (PW 2) both gave similar accounts.
    
12. In fact, (PW 1) corroborated the evidence of the complainant (PW 2) that she cried and later in the morning she told (PW1) that the Defendant held her breast while they were sleeping. (PW 1) evidence was clear that she did not see the Defendant did anything but only heard the complainant (PW 2) cried out loud saying these words twice in pidgin to the effect “mummy lukim tearopa”, in English simply means “mum look at Tearofa”. Later in the morning before “PW 2” left to school, she told her about what had happened.
    
13. The complainant (PW 2) gave evidence that she felt someone touching her breast, she woke up and saw the Defendant standing beside her or next to her corner and apologizing to her that he’s very sorry.
    
14. When cross-examined, (PW 1) maintained her evidence all throughout. Hence, I accept her evidence in its entirety. Her evidence goes to prove that the complainant cried that night and informed her of what happened early next day.
    
15. During cross-examination, the complainant (PW 2) agrees to the Defence’s proposition that she did not actually see the Defendant hold her breast, she only felt touch and woke up to see the Defendant apologizing to her with a bible as well. She conceded to the defence proposition that there might be possibility that it was (PW 1) that touched her breast as oppose to the Defendant. She maintained this during re-examination as well.
    
16. As apparent, evidence of the complainant (PW 2) although not contradicted reveals that there’s possibility that it was not the Defendant who did the touching.
    
17. These evidences point to the fact that the Defendant was at the complainant (PW 2) sleeping corner when she woke up and apologizing to her on what he did to her with benefit of a bible. Although, agreeing to the possibility, it is impeccable to say the least that the theory of possibility that (PW 1) might touch the complainant (PW 2) breast is negated on so many levels considering the other circumstantial evidences present which I will deliberate on later in my Judgment.
    

Evidence concerning lighting in the house and presence of Defendant at (PW 2) sleeping corner:

18. Both (PW 1) and (PW 2) gave evidence that the visibility in the room was brighten with a solar light when the complainant (PW 2) woke up to see the Defendant standing beside her or at her sleeping corner. These evidences were never challenged nor contradicted. Hence, I accept that there was a solar light in the room where all three of them were sleeping and that the person whom the complainant (PW 2) saw standing at her sleeping corner was definitely the Defendant.

Evidence concerning the distance and sleeping arrangement:

19. Both (PW 1) and (PW 2) gave similar accounts of their sleeping arrangement that night. Both said that they were sleeping in one room. The Defendant at one corner, (PW 1) in the middle and the complainant (PW2) at the other corner.
    
20. The complainant (PW 2) gave evidence that the distance from where she was sleeping to where (PW 1) was, is about an arm’s length and the Defendant was much further than that distance.
    
21. It became apparent that the sleeping arrangement was never disputed by the Defence, hence, was left uncontradicted.
    

Evidence of reconciliation ceremony:

22. The complainant (PW 2) gave evidence that the Defendant and them have reconciled already with Bishop Sikeri at Rawaki United Church. They have been living in good terms since reconciliation until to date. She also gave evidence that during reconciliation, the Defendant apologized for his actions to the complainant (PW 2) and said he will not do it to her again.
    
23. This evidence was never challenged nor disputed by defence. I accept that there was a reconciliation ceremony held at Rawaki United Church before Bishop Sikeri and the Defendant reconciled with the complainant (PW2) and (PW 1) for what he did to the complainant (PW2).
    

Demeanor and answers by (PW 1) and (PW 2)

24. It is irrefutable that this is a 2015 matter, hence, the difficulty faced by both crown witnesses to recount on some of the precise and exact things that happened and also the uncertainty to some answers given. Further, their line of evidences seems to be more reserved from putting the blame on the Defendant is a foreseeable one given the fact that they have reconciled and living together before the Defendant’s remand.
    
25. I find that both witnesses made straight forward and precise answers to the best of their recollection. They are not evasive but truthful and reliable witnesses, hence, accordingly I accept their evidences in its entirety and place weight on to prove the charge against the Defendant.
    

HELD:

26. I have carefully considered the circumstantial evidence the Crown rely on pertaining to the charge of indecent assault, and I found that there is sufficient evidence to link the Defendant to the commission of the offence or touching of the complainant’s breast. I pitch my favored evidences from these following; firstly, his movement of original sleeping position to the complainant’s (PW 2) sleeping corner, secondly, his continuous apologizing with bible to the complainant (PW 2) when she woke up to saw him and lastly, the reconciliation ceremony conducted by Bishop Sikeri which he admitted not to do it again, to assist my inference that leads reasonably to one and the only conclusion that the Defendant did fully responsible for committing the offence as charged and or was the one who touch the complainant’s breast while she was asleep.
    
27. I find that the Crown has proven its case beyond reasonable doubt, hence, I find him guilty and accordingly convict him of the charge.
    

ORDER:

1. Find the Defendant guilty of the Charge of Indecent Assault.
2. Convict Defendant on charge of Indecent Assault.
3. Right of Appeal applies within 14 days of this judgment.
   

THE COURT

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MR. LEONARD. B. CHITE

Principal Magistrate

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^[1] (Unrep. Criminal Case No. 40 of 1999)
^[2] [2004] SBHC 115; HC-CRC 259 of 2003 (2 April 2008)