Regina v Meso [2019] SBMC 3; Criminal Case 16 of 2015 (5 March 2019)

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

Criminal Case: 16 of 2015

BETWEEN: REGINA

Applicant

b>AND: FRANCIS MESO

Accused
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Prosecution: Mr. Ishmael. F. Kekou of Director of Public Prosecutions Office
Defence: Mr. Benham. Ifuto’o of Public Solicitors Office

Before /i>Princirincipal Magistrate – Leonard B Chite

Date of Hearing: November 2^nd, 2018 – February 19^th, 2019Date of Judgment: March 5^th, 2019

Defendant’s Appearance: Present in Court
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JUDGMENT AFTER TRIAL

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Introduction

1. The trial for the Defendant, Francis Meso, proceeded on the 2^nd of November 2018 until 19^th of February 2019, this was after he denied the 2 counts of Indecent Assault contrary to section 141 (1) of the Penal Code (Cap 26).
   
2. The charges arise out of an incident which alleges that the Defendant did conduct indecent assault on both complainants in this case. The Complainants are; Grace Lezutuni (9 years old) and Melsie Zitukalo (9 years old) females from Taebrius village, Vella la Vella, Western Province.
3. The Crown case is that the incident took place on an unknown date between 31^st of December 2014 and 1^st of February 2015, where the Defendant, Francis Meso of Taebirias village, Vella La Vella Island, at Taebirias village, told both complainants, namely; Grace Lezutuni and Melsie Zitukalo to accompany him down to seaside. The crown says that the Complainants followed him down to seaside and when they got to seaside the Defendant removed his trouser while the complainants were standing in front of him. Further, the Defendant told the complainants to hold his penis. The Crown says that each of the complainants took turns and they held the Defendant’s penis.
   
4. The Defendant was arrested, charged and brought to Court. He denied these allegations. Hence, the Crown called two (2) witnesses; Grace Lezutuni and Melsie Zitukalo referred to herein this judgment as “PW 1” and “PW 2” respectively and tendered one (1) document by consent. The Record of Interview of the Defendant, marked as “PE 1” to prove their case against the Defendant.
   
5. The Defendant totally denies the allegations and put the Crown on strict proof.
   
6. This case is more on the words of the complainants against the words of the Defendant. However, I remind myself that in such a case, it is not a matter of whether I prefer the version of the Complainants or that of the Defendant. The Defendant has no onus to prove his innocence, in fact, he has no onus to prove anything at all. It is for the crown to prove each of the counts against the Defendant beyond reasonable doubt.
   

Issue:

7. The two-paramount issues that will determine the ultimate result are; whether or not the Defendant had Grace Lezutuni hold his penis.
   
8. Whether or not the Defendant had Melsie Zitukalo hold his penis.
   

Criminal Burden of proof:

9. I remind myself that the burden of proof in this Case is borne by the Crown that is to prove their case “beyond reasonable doubt”. The Defendant is not required to prove his innocence. Should at the end of the evidence there remains reasonable doubt in respect of either or both counts, the Defendant is to be given the benefit of that doubt and is to be acquitted.
   

Whether “PW 1” and “PW 2” are competent witnesses to give evidence in this proceeding:

10. Prior to calling of evidence, the defence raised an issue for determination. Whether the complainants or “PW 1” and “PW 2” are competent witnesses to give evidence in this proceeding.
    
11. After the Crown submitted that the witnesses are competent, the court proceeded and asked numerous open ended questions and also had the opportunity to assess the contents of answers plus demeanour of both witnesses in court. Thereafter, the Defence did not pursue further this issue and conceded to both being competent witnesses. The Court then ruled that they stand to be competent witnesses in this proceeding and proceeded to hear their evidence.
    

Evidence of “PW 1” – Grace Lezutuni:

12. “PW 1” evidence is straight forward. She gave evidence that on the date of incident, sometimes in January 2015, the Defendant told “PW 2” and herself to accompany him down to seaside. When they got to seaside, the Defendant took off his trouser, showed his penis to them and asked them to hold his penis, to which both of them did by individually took turns and held his penis.
    
13. She gave evidence that she and “PW 2” were standing approximately one (1) meter apart from the Defendant when he asked them to hold his penis. She said that Melsie took the lead to hold the Defendant’s penis and stroked it, after, she also did the same and said it was strong and red in colour when she stroked it.
    
14. During cross-examination, she maintained most part of her evidence. She agrees to the defence proposition that she failed to reveal everything to police because it didn’t happen. When put to her that the Defendant did not do anything to her in the month February, 2015, she conceded to this proposition.
    
15. During re-examination, she reaffirms and explained that the Defendant told her to hold his penis and she did as instructed. She held the Defendant’s penis and stroked it. Her evidence during re-examination in pidgin are as follows:
    
    1. You saveh lo word inside paper where number 21^st February 2015 too? – Nomoa
    2. Look lo paper, staka wrting? – Yeah
    3. Distaem you school or nomoa? – Nomoa
    4. You remember police writem statement yia, man or woman? – Man
    5. Fren blo me say no anything nomoa paranisi (Francis) duim lo you, den you say yeah, what na u minim? – Hem liar
    6. Time you say hem liar, what na u minim? – Hem kon
    7. What na Kon? – Lo something hem duim ya (Emphasis ended)
    8. Then? – Hem talem for me go holem na bolo blo hem, den me go holem den skinim na bolo blo hem.
       
16. These evidences goes to prove the fact that the Defendant was on the date of the offending at the Taebirias seaside, did unlawful and indecent act on both complainants; Grace Lezutuni and Melsie Zitukalo by having them hold his penis.
    

Evidence of “PW 2” – Melsie Zitukalo:

17. “PW 2” gave similar account to what “PW 1” had stated. In fact, their evidences corroborated each other. She gave evidence that she was playing with “PW 1” when the Defendant came to them and told them to accompany him down to seaside. When they reached seaside the Defendant removed his trouser and told her to hold his penis. She gave evidence that she then hold his penis and he got a penis erection.
    
18. She further gave evidence that while she hold the Defendant’s penis, he said it felt good. The Defendant then proceeded to remove “PW 2” clothes and touched her body. Thereafter, she put her clothes back on.
    
19. During cross-examination, she agrees to the defence proposition that she talked with “PW 1” before coming to court.
    
20. She agrees to the following when asked by the defence:
    1. You talem Court paranisi (Francis) out’m kaleko blo you? – Yeah
    2. Datwan you herem from Grace too? – Yeah
    3. You saveh too wanfala woman name blo hem Ellen Niman? Yeah
    4. Granny blo you? – Yeah
    5. Where na hem distaem? – Taebirias
    6. You remember story wetem granny too about paranisi (Francis)? – Yeah
    7. You talem that story yeah hem liar wan nomoa? – Yeah
    8. And you say paranisi no duim anything lo ufala nomoa? – Yeah
       
21. During re-examination “PW 2” further affirm that it’s the truth and that she held the Defendant’s penis. She was basically silent in relation to what she said to her grandmother about her story that the Defendant did nothing to her. This has caused slight damage to her evidence during cross-examination and the crown fail to mend it during re-examination.
    
22. These above evidence of “PW 2” goes to corroborate the evidence of “PW 1”.
    

Inconsistencies in the evidences of “PW 1” and “PW 2”:

23. As apparent, “PW 1” gave two separate accounts in relation to her schooling at Paramatta Primary. She stated in examination in-chief that she did not attend school anymore after the incident. However, during cross-examination, she said she continues to attend Paramatta Primary since 2015 to 2018.
    
24. In relation to the evidence of stroking of Defendant’s penis, “PW 1” gave evidence during examination in-chief that she hold the Defendant’s penis and stroked it. However, during cross-examination she agreed that she did not say anything about stroking the Defendant’s penis to the police because it didn’t happen.
    
25. “PW 1” further reaffirms during re-examination that she did held the Defendant’s penis and stroked it.
    
26. “PW1” gave a straight forward, clear and concise answers to the questions pose to her by the defence. I find that she is not an evasive witness. The evidence of schooling although inconsistent does not penetrate any doubt on whole of her evidence. It does not challenge the veracity of her evidence regarding what the defendant did to them. Further, the fact that she did not mentioned stroking the Defendant’s penis to police does not in any way challenge the truthfulness of her evidence, it is clear that there is a thin line between holding the penis and stroking it, however, the crown’s case rests with holding of penis. Her evidence was patched up during re-examination. I find that she is a truthful, credible and reliable witness. Hence, accordingly I place weight on her evidence to prove the crown’s case against the Defendant.
    
27. “PW 2” evidence has been contradicted and challenged during cross-examination. Although she has reaffirm that she held the Defendant penis, she did not explain why she told her grandmother that those events were false and had never occur. Because such explanation would put the court on a certain position to be firm that her evidence is not tarnish with vagueness but one that is truthful to prove the guilt of Defendant. Notwithstanding this fact, her evidence is corroborated with “PW 1” evidence. I find that the vagueness within her evidence has discredited part of her evidence which she claimed the Defendant told him to hold his penis, but this does not point to suggest that she made up stories that might cast doubt to her entire evidence. Hence, I accordingly accept part of her evidence that she was at that date of the offending with “PW 1” and they went together with the Defendant to seaside. Part of her evidence which she said the Defendant had her hold his penis is discarded.
    
28. Regarding talking to “PW 1” before coming to court. The defence proposition was not clear as to whether she talked with “PW 1” before or after “PW 1’ gave evidence in court, this is to perhaps suggest that “PW 2” might tailor her evidence to go in line with “PW 1” evidence. Nonetheless, I accept that both of them are children and they are at liberty to talk with each other when such matters affect them personally, as oppose to adults whereby they are more susceptible to inventing or concocting stories when talking together.
    
29. As earlier alluded, the evidence of “PW 2” corroborates “PW 1” account and since I had accept and place weight on the entire evidence of “PW 1, I find that “PW 1” evidence has strongly reinforced the part evidence of “PW 2” which was discarded, hence, bolster the Crown’s case on both counts against the Defendant.
    

HELD:

30. I have considered thoroughly the evidences that Crown relies on pertaining to both counts of Indecent Assault, and I found that there are sufficient evidence to link the Defendant to the commission of offence of indecent assault against both complainants; Grace Lezutuni and Melsie Zitukalo.
    
31. I remind myself that section 19 (a) and (b) of the Evidence Act^[1] provides the courts power to convict an accused without exercising caution regarding evidence given by a child and evidence given by a victim of an offence against morality. I find that this case is one that falls within the ambit of section 19 (a) and (b).
    
32. Having considered all the evidences in this case, I find that, the Crown have proven its case on the required standard; beyond reasonable doubt that the Defendant on an unknown date between the between 31st of December 2014 and 1st of February 2015, at Taebirias village, accompanied the Complainant; Grace Lezutuni and Melsie Zitukalo to seaside and had them to hold his penis. Accordingly, I find the Defendant guilty of both counts of Indecent Assault and hereby convict him on both counts.
    

Orders

1. Find the Defendant guilty of the Charge of Indecent Assault against Grace Lezutuni.
2. Find the Defendant guilty of the Charge of Indecent Assault against Melsie Zitukalo.
3. Convict Defendant on both counts of Indecent Assault charge.
4. Right of Appeal applies within 30 days of this judgment.
   

THE COURT

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MR. LEONARD. B. CHITE

Principal Magistrate

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^[1] Solomon Islands Evidence Act 2009