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Anita v Regina [2006] SBCA 8; CA-CRAC 017 of 2005 (31 May 2006)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

The appellants were charged with a number of offences relating to the alleged abduction, assault and subsequent rape of the complainant, Elizabeth Entriken who is the sister in law of the first appellant, Anita. He was convicted of abduction with intent to have sexual intercourse, common assault and three counts of rape on the complainant and a single count of assault on one Bruce Murray. The second appellant, Akao, was convicted of abduction with intent secretly and wrongfully to confine her and, jointly with Anita, of assaulting her. The first appellant was sentenced to a total of four and a half years imprisonment and the second appellant to a total term of two years. Both now appeal against conviction and sentence.

The offences were alleged to have been committed in December 1996. The complainant and her husband live on Lola Island off Munda and, at that time, rarely came to Honiara. On one of their rare visits they went to the Yacht Club one evening to meet and have a drink with their friends. The same evening the two appellants were also at the Club; the first having been taken there as a guest of the Permanent Secretary of his department and the second, it appears, as a member of the club. It is not suggested they went to the Club together but it is undisputed on the evidence that they subsequently left at the same time with the intention that the Anita would drop Akao home. The complainant also left the club at the same time with the appellants in the first appellant’s car. Her husband was still in the Club and apparently unaware of her departure until much later. The circumstances in which that occurred became the first step in a series of events which resulted in these charges.

The prosecution case was that Anita grabbed the complainant as she left the toilets in the Club and forced her to the car against her will. She struggled and resisted by holding onto the fence in the car park and then by bracing herself against the car.

At that time, the witness Murray was in the car park. He saw she did not want to go, approached Anita and tried to prevent him taking her. Anita punched him in the face and pushed the complainant into the car which was driven off by Akao with the complainant and Anita in the back seat. While the car was being driven, the complainant was punched a number of time and, at one stage, lost consciousness. She eventually became aware that the car had stopped in a secluded place and she only then realised that Akao was no longer in the vehicle and she was alone with Anita.

He then raped her three times before leaving her near her relative’s home by the Airport Motel. The door was opened by her husband who had, in the meantime, been back to Honiara looking for her. The complainant immediately complained, naming the first appellant.

The case was not reported to the police then or over the next years until eventually the complainant was asked by the police to make a statement in January 2004. She had not reported it and it is not disclosed in the evidence how the case came to be investigated at that time. The witness statements made by her, her husband and Murray were exhibited in the trial and had all been made that same month. Anita was also seen in January 2004 but declined to answer any questions. Akao was interviewed under caution in early March the same year. The written record of his interview was also exhibited.

At the trial, Anita gave evidence and called witnesses. Akao did neither.

The grounds of appeal of each appellant overlap and are, to a large extent, interrelated. The topics may be summarised:

1. that the trial judge failed properly to direct himself on the various inconsistencies and contradictions in the evidence and took into account matters not in evidence;
2. that he misdirected himself on the burden of proof;
3. that he misdirected himself on the effect of lies by the accused.
4. that he failed to consider the necessary intent in the offences of abduction;
5. that, if these grounds are not sufficient in themselves to set aside the conviction, they cumulatively make the verdict unsafe and unsatisfactory.
   

The inconsistencies

Counsel for the appellants concede that the trial judge has the advantage of seeing and hearing the witnesses and an appellate court will therefore only interfere where the verdict cannot be justified on the evidence or the judge has otherwise clearly made an error.

In view of the time that had elapsed since the offence and before the witnesses’ statements were taken and the trial held, it is understandable that there will inevitably be inconsistencies. Counsel has pointed to a number where often substantial inconsistencies occur between the witnesses and also between their evidence in court and their statements taken a year earlier.

Counsel for the respondent and the appellants treated the events in the Yacht Club car park leading to the alleged abduction as critical to the whole case – an approach also taken by the judge. The defence of Anita was that the complainant had asked him to take her to her home and, as they approached the car, Murray came across the car park and tried to interfere with her. She called to Anita for help and he pushed Murray away to rescue her from Murray’s unwelcome attentions. He put her in the car and they were then driven off by Akao.

Clearly if that was found to be a possible account, the subsequent allegations of assault and rape would be difficult to uphold. Anita’s case was that, after Akao had been dropped off at his home, the complainant and Anita had consensual sexual intercourse.

Counsel suggest that there are seven different accounts of the events on the car park and it is correct that the witnesses have given variously divergent accounts. Mr Averre, putting the submissions on this point for both appellants, suggests there is no certainty of which version the judge found to be the truth. In the face of such discrepancies, counsel suggests, there should have been a clear statement of his conclusion and the reasons which led him to it. Instead, counsel suggests that the judge appears simply to have accepted that the complainant was truthful and that anything which went against that evidence was wrong. Having, for that reason, found that the appellants were lying, he used the appellants’ lies as corroboration of the complainant’s account.

Two examples of this suggested circular use of the evidence (from two consecutive paragraphs) will illustrate his point:

'Corroboration may be found in the accused’s case which put a version of events which I find false, a version designed to shift blame-worthy conduct in the events outside the club, to Murray. I find it evinces a malevolent intent to avoid the probable consequences of their acts, and thus is corroborative of the Crown case that she was taken against her will.

That particular malevolent intent in Anita, then may be deemed to have continued for I accept the complainant’s story of the rapes in preference to the consensual story given by Anita. It follows that I find corroboration in his fabricated version of events surrounding the acts of intercourse ...'

Counsel suggests that both paragraphs can only mean that the judge has disbelieved Anita’s account because of his preference for the complainant’s version but then uses the fact he has found the appellant to be lying to corroborate the evidence of the complainant, the latter decision necessarily being one of the factors which should have been found before he accepted her account. We shall comment further on those passages later.

The appellants submit that the judge has approached the issue of the inconsistencies and the credibility of the witnesses by trying to find answers consistent with the complainant’s account rather that to assess her credibility after he has resolved them. This approach is suggested also to be seen in his assessment of the witnesses themselves:

'I find Elizabeth not one to confound our intelligence. She appeared as her attention waned, less perplexed by the plethora of questions than by the effort to remember back so far and her attitude reflected this. She became less willing and more taciturn. Her answers suffered. She retracted into a sanctuary of mock indifference. An acceptance of her fate, facing her accuser in court.

In contrast Anita exhibited a certainty of recollection on the material points where their evidence was so different. He was able in cross-examination to recollect things which went to answer the cross-examiner. I did not believe him where his evidence was in contradiction with that of the complainant.

Murray, to put not too fine a point, appeared as a Good Samaritan. Whilst he has had a long time to mull over the events of that night, his evidence was given in truthfulness. His direct involvement with Anita consequently was his preoccupation once he became involved. I accept his evidence.'

Such passages are unfortunate and we understand counsel’s concern. However, the judge also clearly states the matters of testimony he found had been proved to the criminal standard. They are all conclusions that can reasonably be drawn from the evidence as a whole. The judge was clearly aware of the inconsistencies and the consequent need to resolve them if the evidence allowed such resolution. At the trial, the prosecution conceded there were inconsistencies and the defence addressed the court in some detail on them.

Mr Averre also suggests the judge’s use of the acknowledged previous inconsistent statements in respect of any important aspects of the events that evening was incorrect. Counsel correctly points out that these matters go to credit but suggests the judge used them in some cases as evidence of their truth. We do not accept that was the effect of his conclusions. He clearly stated that, whilst he accepted that there were inconsistencies between their evidence and their earlier statements, he concluded that, in relation to the complainant, 'her reliability as a truthful witness on the essential facts had not been successfully impugned'.

Whilst we consider the judges explanations of his reasoning were sometimes questionable, we consider that, taking the evidence as a whole and bearing in mind the advantage he has from seeing and hearing the witnesses, there is no reason to interfere on the first ground.

The onus of proof

In a number of passages in his judgment, the judge refers to the fact the prosecution and defence accounts are diametrically opposed and then proceeds on the basis that the belief of one must mean the disbelief in the other. That, the appellants suggest, risks reversing the burden of proof particularly because it has led him to decide the issue entirely or principally on the credibility of the witnesses and not on an analysis of the evidence in relation to each count.

The first reference is early in the judgment when the judge, after setting out the prosecution opening, continues:

'Stories given before me are such as to allow little shade of understanding. The Crown case relies on a violent abduction with the other offences happening in that milieu, the defendant Anita’s story is based on one diametrically opposed to that of the Crown. He says the complainant went with him from the club voluntarily, and after driving about Honiara, intercourse took place with the complainant’s consent. He denies the assaults, although if there was striking of Murray, it was done in defence of the complainant who sought his help.'

He continues with a description of the way in which the defence account that Murray was still there after Anita rescued the complainant could explain the fact the complainant’s feet were still outside the car when it drove off and continued:

'The defence goes beyond that however, and says that Mr Anita came to the aid of the woman who was molested by Mr Murray on the left of the car, once the complainant called 'Michael help me, help me'. For that is the evidence of Mr Anita.

The defence case then is so opposed to that of the Crown, that the Crown need negate that possibility of the complainant in fact calling for Michael Anita’s aid, for even were she confused over the intentions of Murray, her cry must provide Mr Anita with the rationale to interfere by taking the complainant from the place, and this court need be satisfied beyond doubt that the Crown negatives such an inference.

The defence case asserts a series of events which go beyond then, a searching test of the reliability of the Crown Case (and consequently the weight I should attach to that evidence) and proposes a completely different scenario to that sought to be proven by the Crown.'

The suggestion that the Crown needs to negate the inferences of the defence case is challenged by the appellants. They ask the Court to find that this is, in itself, a reversal of the burden of proof. The burden on the prosecution is to prove each element of the various charges. There is no burden on the defence to prove anything but where, as here, the defence has produced an account of events conflicting with that of the prosecution, the court may only convict if it is satisfied that any exculpatory evidence from the defence is not sufficient to result in an acquittal. Anything short of that demands an acquittal and the reference to the need to negative the defence appears, in that passage, to do little more than explain such an approach.

However, the theme is repeated later in the judgment:

'With these two diametrically opposed scenarios, it is clear that the issue of her voluntariness or otherwise in entering the car, must have the effect of seriously discrediting the credibility of the party not believed, for there can be no half measures, here, either she was taken by force against her will or she went voluntarily. There can be no issue, then, on the facts if found in the Crown’s favour, Michael Anita could nevertheless say he honestly believed she was consenting. For the manner in which the defence case has been argued, does not allow that fall back argument, as it were, since the defence alleges the complainant came out of the club with Anita at her suggestion.'

When dealing with the case against Akao, who had not given or called evidence, the judge finds:

'I am further satisfied, since he had been a party to the abduction by force that his participation was a joint enterprise with Anita and he is guilty of the assault in the car. He has not sought to show disassociation from any mutual aiding nor can this court find any on the evidence.'

Finally, towards the end of his judgment, the judge concludes:

'I am left with the conflict in stories between the complainant and Akao as to what took place in the vehicle immediately after the abduction. The resolution of that conflict is relatively easy, for since they are so diametrically different, acceptance of one story means disbelief of the other. Anita’s version relied on a taking at the wish and suggestion of his de facto sister-in-law, a version which I disbelieve, his continued story of willingness and togetherness in the car during the journey cannot be accepted in the face of the complainant’s version which was more likely, following on as it did from the story of unwillingness, violence on Anita’s part and perseverance with his intent to abduct despite Murray’s intervention, given to the court by other witnesses.'

We feel there is force in the defence submissions. These repeated passages suggest the judge has taken the view that once he has accepted the prosecution version of events, the consequence of that is that the defence must be untrue. Whilst that may be the result of such a finding, it does not deal with the possibility that the defence may be sufficient to lead to the consequence that the prosecution has not discharged its burden of proving guilt beyond reasonable doubt.

The passages suggest the defence needs to disprove the prosecution case thus reversing the burden of proof. The reference to Akao not seeking to dissociate himself does so specifically

The respondent disputes these submissions. They are, counsel suggests, an attempt to 'twist and convolute what is otherwise a sound and logical analysis of the evidence by the trial judge'. Mr McColm points out that the judge clearly saw the abduction as the lynch pin in the case and, if he was not satisfied to the required standard that the complainant had gone into the car involuntarily, could not be satisfied to that standard of subsequent assaults in the car or that Anita committed rape.

That would be a proper approach but it still required the judge to consider each aspect of the individual charges against the appellants and that his judgement does not do. The passages set out treat each opposing account as a unit; a complete passage as it were which can only be wholly true or wholly false. However, he does deal with each witness and analyses the effect of the evidence for each when dealing with the inconsistencies. Once that was done, the court should have dealt with the various elements of each charge against each accused separately in terms of the way the prosecution has discharged its burden of proving the charges. He undoubtedly refers to some ingredients of the offences and directs himself correctly that he must find them proved beyond reasonable doubt but he does not do so in such a manner that this Court can be satisfied he has considered each. It is not sufficient to say that he finds the complainant’s account of the events in the car park, supported as it is by the other witnesses present, is proved beyond reasonable doubt and use that finding to ground what is an effective blanket acceptance of the assaults and rapes. By accepting the prosecution case as a whole unit diametrically opposed to that of the defence, he appears to have assumed proof of all the ingredients of each charge.

He dismisses Anita’s account of driving round Honiara at the complainant’s behest as 'inherently implausible'; a conclusion presumably based on his acceptance of her credibility over events in the car park. He discounts the possibility of any subsequent change in her attitude as 'improbable' which is insufficient to discharge the onus on the prosecution.

'She was affected by liquor, but her evidence does not concede any affection towards Anita whatsoever. Her status as his de facto sister-in–law would have given her pause, had she the slightest leanings towards Anita. But on her evidence about the circumstances in the club, it is clear she did not like him. In such circumstances I find it improbable that, while affected by liquor her attitude towards Anita would veer totally towards one of affection culminating, in some hours, of three acts of intercourse. If anything, the alcohol would strip any masked dislike she had for him, and that was seen from the manner of her resistance when he dragged her from the club. She fought against it.'

The judge’s conclusions on the effect of alcohol in this particular case are speculative and any suggestion in the defence case of willing participation in sexual intercourse appears to be measured solely against his conclusion about events in the car park.

That the events in the car park became the measure of the credibility of the complaints’ whole case is also suggested in a later passage:

'The events which took place in the car were not such that I can with any reliability, isolate particular incidents, the slapping, the punching, or the dropping off at Naha of Wilfred Akao. The defence case is so diametrically opposed to her short recollection, [of being driven by Akao with two other men in the car, being punched and then blacking out until she found herself alone in the car with Anita by the river] for Anita tells of driving to Henderson, back to the Yacht Club, to Naha, to Wilson Ne’e’s place then to the isolated spot beside the river ... in the vehicle. I do not accept Anita’s assertion that she was in fact driven back to the Yacht Club, for that was inherently implausible. I must still be satisfied beyond reasonable doubt, that an assault or assaults took place in the car before the acts of sexual intercourse.

I must also be satisfied either that there is corroboration of such assaults or that notwithstanding no corroboration, I accept the complainant’s evidence on this issue'

Apart from the use of the lies he found the accused had told, we note that the learned judge correctly identifies other passages as being able to corroborate the complainant’s account.

The evidence in this case had to be evaluated against the very long delay and the judge acknowledged this in a passage which further suggests the judge viewed the evidence from the complainant’s point of view:

'It must be remembered at the distance of some eight years, for the complainant to delineate a scene, repeated three times, of fear revulsion and confusion where there could be no spectators and where the two actors are so diametrically different in their stated recollection, requires this court to apply the understanding if possible of a jury of the whims, wiles and machinations of human nature so as to get at the truth.'

We will return to the effect of these issues later.

Anita’s lies as corroboration

We deal with one aspect of the submissions of counsel for the appellants in respect of this topic, namely the suggested circular approach to the evidence to which we have already referred.

The passages we have set out above illustrate the dangers of taking the prosecution and defence cases as units and accepting that the belief in one is the disproof of the other. The two accounts are compared, one is accepted and the other concluded therefore to be untrue. As a result the lies are taken to manifest a malevolent intent and that corroborates the story which has already been believed.

What the judge appears to have done in this case is to have gone beyond a finding of the complainant’s credibility and concluded that she is speaking the truth before looking for corroboration. On the basis of that conclusion, he finds the accused is lying and uses that as corroboration of the witness.

The intent in abduction

Anita was charged with abduction contrary to section 139 of the Penal Code and Akao was charged with the offence under section 250.

Under section 139, the taking or detention against the victim’s will must be 'with intent to marry or have sexual intercourse with' her. In the present case the charge was laid in terms of taking the victim with intent to have sexual intercourse.

The judge needed to be satisfied beyond reasonable doubt that, at the time of the taking, Anita’s intention was to have sexual intercourse. He clearly found that she was taken against her will and concluded:

'I am satisfied that he took Lisa from the Club 'meaning to' abuse her for his animus in someway reflected his ill-will that he held toward her in place of her husband. His story of 'kissing, hugging' and consensual sex paints a picture of his affection. The reality was far different. I do not believe his story. His behaviour towards her was consistently that of a corrupt intent to demean assault and rape her, an evil intent rooted in some perceived insult towards him and his need to express his dominance and power over this small woman.

When he abducted her, he intended to rape her, for that was the consequence of his acts.'

We find some of his conclusions difficult to follow but it is clear he has addressed the issue of Anita’s intent. However, in respect of the last sentence, the appellants contend that the mere consequence of an act is not sufficient in itself to establish that it was the original intention. If, in the context of the present case, the taking of the complainant may have been for some other reason, a subsequent intention to rape her would not make the taking an abduction under section 139; a possibility the judge never addressed.

We consider that, taken with our conclusion that the judge has used his finding of the events in the car park as the proof of subsequent events, it was an inadequate reason for his finding that the intent for a section 139 abduction had been proved.

Under section 250, the offence with which Akao is charged, the taking of the complainant against her will is with intent for her to be secretly and wrongfully detained. Akao did not give evidence but the record of an interview conducted by the police was exhibited.

In that interview he professes to be unsure in his recollection of the details of the events that evening. However, he agreed he had been in the car and his recollection was that Anita drove, that he sat beside him and the girl was in the back. He recalled he had to wait a short while in the car while Anita spoke to the girl but he could not hear the conversation. He did not see Murray’s intervention and did not see any trouble.

The evidence of Anita and the prosecution witnesses contradicted Akao in that they all said he was driving. The judge rejected his claim to have seen nothing untoward in the following terms:

'The evidence of the taking of the complainant outside the club is evidence relevant to the charges against both. When I read the Record of Interview, ... Akao was evasive about these events. His answers were to the effect nothing untoward happened that night. He said Anita drove him home. I do not accept his statement. He did not know the girl Anita took but he had been talking to her in the club and she came with them to the car. He witnessed no assault. He did not know Murray. He recalled Anita telling him the girl was his sister in law.

I do not accept the truthfulness of Akao; she was driven from the club in unusual circumstances, even were Anita’s version to be believed for at the very least there was a violent altercation with an expatriate, before the girl was driven away. Akao makes no mention of seeing this despite having been asked about leaving the club. Again I am satisfied Akao drove the car for the Crown proved that beyond reasonable doubt.'

Later he continued:

'Mr Godbolt again was careful to relate the inconsistencies in the complainant’s evidence to her general unreliability. I agree there were inconsistencies but her reliability as a truthful witness on the essential facts, has not been successfully impugned. To return a verdict of guilty of abduction, is I am satisfied proper on the evidence. I am equally satisfied of the assault in the car driven by Akao from the Club. As I say I cannot believe his version given in his statement. His co-accused conceded that there was a ruckus at the club involving Murray and to hedge and hesitate as he appears to have done in his Record of Interview over who drove the car on that night leaves me in no doubt about his recollection, and in the fact of other evidence contradicting him, his veracity.'

Our difficulty with that conclusion is that the interview shows that Akao did, as the judge says, hedge and hesitate in his interview over a number of matters and frequently referred to his difficulty in recalling the events after so long an interval. However, in relation to the driving of the car, he consistently states it was Anita who drove. The judge clearly accepts the evidence of all the witnesses that Akao drove and properly concludes that affects the accused’s veracity.

However, other witnesses had difficulty in recollection as a result of the passage of time but the suggestion that any hesitation or difficulty in recall reflects on the witness’ truthfulness is only conclusively applied adversely to Akao. One of the witnesses Anita called for the defence, Donga Buga, is disbelieved because the judge, having summarised his account, says:

'I must say I cannot accept it as likely. Since I disbelieve him, it follows that Anita’s evidence of Buga’s approach to him in these terms, reflects an animus towards Lisa and this witness Buga has been used to mask that animus.'

We contrast these with the passage set out above in which the judge refers to the difficulties of the complainant to delineate the scene after eight years and with his approach to the same problem in respect of Murray:

'... the passage of time has had its effect on his memory and exactitude, after a lapse of eight years to the date of his statement, nine years to his evidence in court may be excused.

I am satisfied however; that his recollection of events supports the complainant ...'

The question the judge needed to ask was whether Akao may have been unaware of the events outside the car in order to assess whether Akao was sufficiently aware to form the intent secretly and wrongfully to detain her. He does not do so and it is not possible to know the basis upon which he concluded that the prosecution had proved the intent at the time of the abduction.

Conclusion

The overall effect of these matters leaves us with more than a lurking doubt whether the verdict is correct.

This was a long and carefully considered judgment in a case which undoubtedly posed considerable evidential problems. In the majority of his directions the learned judge was correct and many of those could be seen as correcting, to some extent at least, the matters which have caused us concern. However, although the evidence, against Anita in particular, is strong, the manner is which the learned judge approached the case means that, if there is a real chance that he misdirected himself on the initial incidents at the Yacht Club, his decision on all the offences, including those which occurred later, cannot be sustained. We do not, therefore, consider it is an appropriate case for the use of the proviso to section 23 of the Court of Appeal Act.

The appeals of both appellants against conviction are allowed. The convictions are set aside and the case is remitted to the High Court for trial.

Lord Slynn of Hadley P
Williams JA
Ward JA