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Court of Appeal of Solomon Islands

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Regina v Lele [2014] SBCA 16; SICOA-CRAC 27 of 2013 (17 October 2014)

IN THE SOLOMON ISLANDS COURT OF APPEAL



NATURE OF JURISDICTION:

Appeal from Judgment of the High Court of
Solomon Islands (Mwanesalua J.)

COURT FILE NUMBER:

Criminal Appeal Case No. 27 of 2013 (On
Appeal from High Court Criminal Case No. 77
of 2011)

DATE OF HEARING:

9 OCTOBER 2014

DATE OF JUDGMENT:

17 OCTOBER 2014

THE COURT:

GOLDSBROUGH P, WILLIAMS JA,
HANSEN JA

PARTIES:
Regina
Appellant

-V –

Reubensen Lele
Respondent
Advocates:
Appellants:
Respondent:

Blundell & Ghema, DPP Office Respondent
Mawata & Driu, Public Solicitor Appellant

Key words

Crown Appeal - Acquittal – Error of Law - No Retrial Ordered

EX TEMPORE/RESERVED

RESERVED

ALLOWED/DISMISSED

ALLOWED IN PART

PAGES

  1. - 4

JUDGMENT OF THE COURT


[1] The Crown appeals against the decision of a High Court Judge to acquit the respondent on a charge of attempted rape.

[2] Section 21 of the Court of Appeal Act empowers this court to entertain such an appeal on a question of law only.

[3] At the trial there was conflicting evidence on the issue of consent. Indeed as the respondent admitted he attempted to have sexual intercourse with the complainant the only issue at the trial was that of consent.

[4] The complainant strongly maintained she did not give consent and gave evidence of threats made to her by the respondent. She also described a degree of force used by the respondent in his attempt to effect penetration which did not occur. Her skirt was torn and that could have supported her account to some extent. The respondent's evidence was that there was a prior agreement between the parties that they meet for the purpose of having sex. The fact that at the time the complainant was not wearing underpants was said to support that.

[5] There were, not surprisingly, inconsistencies in the evidence of the complainant and respondent. It was submitted to this court that the more significant inconsistancies were in the complainant's evidence.

[6] In his reasons, the learned trial judge did not address the issue of consent at all. He made no finding on credibility as between the complainant and respondent. He made no findings on any of the factual matters referred to above. Indeed, there was no mention at all of such matters in his reasons.

[7] The approach of the learned trial judge appears to have been that as there was no penetration the offence was not proved.

[8] The relevant error of law was in not considering the only real contested issue at the trial, namely consent.

[9] It should be observed in passing that the learned trial judge considered that as the charge was attempted rape an alternative verdict of indecent assault was not open. He based that reasoning on the absence of a reference in section 166 of the Criminal Procedure Code to attempted rape. But the position would be covered by section 159, the general provision, and on a charge of attempted rape an alternative verdict of indecent assault would be open.

[10] The crown initially asked this court to record a conviction for attempted rape if it found there had been an error of law. But in the absence of findings on the issue of consent that could not be done.

[11] In the light of that the Crown contended for a retrial on the charge of attempted rape. It is clear from section 10(5) of the Constitution that this court has a discretion whether or not to order a retrial after a verdict of acquittal based on an error of law.

[12] The respondent was first arrested for the offence on 13 April 2010. He was acquitted on 9 September 2013. During the intervening period he was either on bail, subject to an arrest warrant, or in custody. It appears from details provided to this court that he spent some 9 months in actual custody. To varying degrees his liberty was constrained for some 3 and a quarter years because of the charge.

[13] This court has read the transcript of proceedings at the trial and it is obvious there is a major conflict of evidence on the issue of consent. The outcome of any retrial is problematic. While conflict of evidence would not normally of itself be a ground for declining to order a retrial, in all the circumstance of this case it tips the scales in favour of exercising the discretion not to order re retrial.

[14] This court therefore finds that the trial miscarried because of an error of law and to that extend the appeal is allowed. We do not however order a retrial.

Appeal allowed in part


.............................................................
Goldsbrough P
President of the Court of Appeal


...........................................................
Williams JA
Member of the Court of Appeal


..........................................................
Hansen JA
Member of the Court of Appeal


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