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Tahinao v Regina [2006] SBCA 12; CA-CRAC 009 of 2006 (20 October 2006)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

JOSIAH TAHINAO -v- REGINA

JUDGMENT OF THE COURT

The appellant appeals against his conviction on four counts (counts, 1, 2, 4 and 5) of indecent assault, and one count of rape (count 3) all of them committed in 2003.

The circumstances are these. The appellant claimed to be a custom medicine practitioner capable of curing illnesses in his patients. In September 2003 he was invited to the home of Linda and her husband Albert, who live in a suburb of Honiara. She was suffering from pains in the stomach commonly called belly sore. The appellant agreed to treat her under custom medicine. At her home he rubbed oil on her stomach and said she had yellow fever. He told her and Albert that he had to "clean her up". The three of them went into the sleeping room of the house, where at the appellant’s request, Linda lay down and removed her trousers and pants and opened her legs, and the appellant rubbed liquid on her vagina. In the course of doing this, he inserted his fingers in her vagina and then withdrew them. He did this several times. The appellant returned on the following day and repeated this conduct.

It was the appellant’s act of inserting his fingers in Linda’s vagina on each of these days that is the subject of two of the charges of indecent assault against him. It should be added that on both occasions Linda’s husband was physically present when the appellant did these things. The custom medicine did not work, and it was then that Linda reported the appellant to the police.

Linda’s neighbour was a woman named Angela who was married to George. He told the appellant that Angela was also suffering from belly sore, and he agreed to treat her. This he did in the appellant’s house in the presence of Angela’s younger sister Agnes, but not of George, who was attending to the couple’s baby outside the room in the house where these events took place. Again, Angela was asked to remove her clothes, to lie down, and open her legs, which she did. The process carried out on this occasion was similar to that undertaken in the case of Linda, and again in the case of Angela the appellant inserted a finger or fingers into her vagina. These were the indecent assaults in her case.

Agnes was the next to undergo treatment by the appellant. She was Angela’s younger sister and listed with Angela and George in their home, in which she performed the role of house girl. Angela arranged for Agnes to be treated because Agnes was not succeeding in getting married and Angela thought that a spell might have been put on her. The appellant came round to the house and began his treatment of her in Agnes’s bedroom. He asked her to close the door and told her to remove her clothes, which she was reluctant to do. She wanted Angela to come into the room. The appellant said that Angela was not needed. He rubbed oil on her stomach and then removed her clothes. He dipped his finger into the oil and inserted it into her vagina more than once. He then removed his trousers and asked if he could have sexual intercourse with her. She said she was ashamed because Angela was outside. He pulled her down to the floor and lay on top her. She struggled to free herself and wanted to shout; but he clamped his hand over her mouth and she could not get up because he held her down. The appellant then had sexual intercourse with her as she claimed without her consent. It is the subject of count 3 (rape) of which the appellant was convicted.

The appellant appeals against all five convictions. As regards the rape, Ms Swift of counsel submitted that the judge had failed to consider that the appellant may have thought that Angela was consenting to sexual intercourse even if in fact she was not. Ms Swift submitted that in those circumstances the prosecution had failed to prove a necessary ingredient of the offence. The basis of this submission is the decision of the House of Lords in DPP v Morgan [1975] UKHL 3; [1976] AC 182. However, in Solomon Islands the matter of mistake as to consent is governed by s. 10 of the Code, which exempts a person from criminal responsibility only if his mistake is not only honest but reasonable; that is, the test has an objective as well as a subjective element. Ms Swift submitted that Morgan could be applied here by virtue of the provisions of s.9 of the Code relating to an act occurring independently of the exercise of the will of the accused. She founded this submission on the fact that in Solomon Islands the intention of the legislature was to adopt the English law as stated in the Sexual Offences Act 1956, and that (as Morgan shows) rape is not an offence of strict liability in England.

That is, however not the criterion applied under the Penal Code. Under the second paragraph of s. 9 of the Code the result intended to be caused by an act is immaterial unless the intention to cause a particular result is expressly declared to be an element of the offence constituted by an act. By s. 128, which defines rape under the Code, intention is not expressly declared to be an element of the offence. In any event, the appellant was at trial not saying that he mistakenly believed that Agnes was consenting, but rather that in fact she did consent to have sexual intercourse. The learned trial judge did not believe him; but believed her. In doing so he proceeded with the appropriate degree of care and caution in relation to rape. That being so, it is also nothing to the point to say that there was no corroboration. There was ample corroboration of the fact that sexual intercourse took place (which, in any event, was admitted) and it is rarely possible for independent evidence to be furnished corroborating the absence of the woman’s consent, except perhaps in those cases in which she has been subjected to extreme violence that leaves visible marks upon her person. Nor is it necessary as a matter of law for the prosecution to provide corroborative evidence. See R v. Gilbert [2002] AC 531. In our view the appellant’s appeal against his conviction for rape fails, and should be dismissed.

The appeals against conviction in the case of the four indecent assaults raise different and in some ways more difficult questions. There is no doubt that the appellant inserted his fingers in the vaginas of the complainants Linda (counts 4 and 5), Angela (Count 1) and Agnes (Count 2). In his statement to police, the appellants originally denied having done so, but at the trial gave evidence admitting that he had put his finger or fingers into their private parts. He claimed, however, that this was part of the custom medicine treatment that he was applying to each of them to cure them of their ailments. He was cross-examined at some lengths on this subject at the trial, and in the end the learned trial judge did not believe him or accept the evidence of Mr. Namofunu, who was an expert called in support of the defence.

On each of the counts of indecent assaults, it was accepted both at trial and on appeal that the prosecution was required to prove that the consent of each complainant to the insertion of the appellants fingers in their vaginas was procured by fraud of the appellant. Implicit in that element was the requirement of proof not only that the complainants consented to the digital insertion, but that they were induced to do so by the applicant’s false pretence that it was part of genuine custom medicine treatment by him. Furthermore, to make it fraud, it was necessary for the Crown to establish beyond reasonable doubt that the appellant himself knew that his pretence was false; in other words, that he was dishonestly passing it off as an aspect of genuine treatment.

The learned judge found this element proved against the appellant. He based that finding partly on his assessment of the appellant as a witness at the trial and partly on his acceptance of the expert testimony of a Mr. Misikeni to the effect that Malaita custom does not permit a male stranger (i.e. one who is not a husband) to touch a woman’s private part even in the course of custom medicine treatment. It was on this question that Mr. Nanofunu differed in opinion; but his Lordship held that Mr. Namofunu was not an acceptable witness as to Malaita custom on this matter. Speaking of the appellant, the learned trial judge said that:

"Every Malaita person knows this rule and I do take judicial notice of it. It is against his custom to the core and the accused know this very well".

There is difficulty about this element of the case against the appellant and the reasons that led his Lordship to the conclusion that the appellant knew "very well" that what he did was against custom and therefore fraudulent. He was it is true a Malaita man, even if his victims were from Choiseul and elsewhere in the Islands. But the real complainant against this part of the judgment is his Lordship’s action in taking judicial notices of facts going to establish the appellant’s fraud. The learned judge (who is himself from Malaita) remarked that custom medicine was an area of custom knowledge in which he was personally interested and had "acquired a reasonable amount of knowledge in the practice of custom medicine on Malaita".

While not doubting this to be so, the point that is taken by the appellant on appeal is that his Lordship went beyond legitimate limits in taking judicial notice of Malaitan custom medicine practice in this particular and in imputing or ascribing knowledge of it to the appellant being a Malaitan himself. By this means, the learned judge reached, or was influenced in reaching, the conclusion that the appellant was guilty of fraud or dishonest false pretence in procuring the complainant’s consent to the digital insertion.

As considerable number of authorities from courts in various parts of the Pacific have been cited to show that it is the practice to take judicial notice of custom or customary practices. We do not doubt the propriety of doing so in the cases referred to. What is different about this matter from the cases cited is that in none of them was judicial notice taken of a custom in order to secure the conviction (as distinct perhaps from the acquittal) of an accused person in criminal proceedings. We consider this distinction significant. A person who is tried in Solomon Islands is entitled to expect that he will be tried and convicted only on admissible and regularly admitted evidence that is identifiable and open to challenge and testing in the ordinary way. It is a serious disadvantage to him and to his legal representatives if he is found guilty on the basis of the judge’s own claim to have specialized knowledge about a matter going to an element of the charge against the accused. Here, the matter of what the appellant as a Malaitan knew was the custom medicine rule of his people was critical to proof of the dishonesty of the appellant’s method or purpose. We consider that it should have been proved in the ordinary way through evidence from a witness or witnesses expert in the field and available for cross examination and not through on with the aid of his Lordship’s own personal knowledge of the subject in question.

We therefore conclude in relation to counts 1, 2, 4 and 5 (indecent assault) that in this respect the trial miscarried. The appeal against conviction on those counts must be allowed and the convictions set aside. This does not affect the conviction on count 3 (rape). The order of the Court will be:

(1) Appeal against conviction on count 3 (rape) dismissed.

(2) Appeals against convictions on counts 1, 2, 4 and 5 (indecent assault) allowed. Set aside the convictions on those counts and on each of those counts enter a judgment of acquittal.

Lord Slynn of Hadley
President of the Court of Appeal

McPherson JA
Member of the Court of Appeal

Morris JA
Member of the Court of Appeal