HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 5 of 1991

REGINA

-v-

OKEA AND KENIKAESIA

High Court of Solomon Islands
(Ward C.J.)

Hearing: 12 June 1991 at Auki
Judgment: 12 June 1991

J. Wasiraro for prosecution
J. Remobatu for the accused

WARD CJ: These two accused are jointly charged with rape of Julia Riosuri on 20th February 1990.

The prosecution case depends on the girl's evidence. She had been the girlfriend of the second accused, Joe Kenikaesia, some years before and during that time they had sexual intercourse but the relationship ceased in 1985 and Joe married another woman that year. She is related to the second accused, Dick Okea, and he is also, he tells the Court, related to Joe.

On 20 February 1990 the girl went to a place called Rako about one kilometre from the village to wash some pots in the water there. She arrived before the sun had risen and, when she arrived, she saw the two accused by the seaside a few yards away.

Joe came to have a drink and then spoke to her. In her evidence in chief she told the court that he pulled her into the bush by her hand. She struggled and grabbed at small trees as she went but was unable to stop their progress. Whilst he did this he pulled off her pants and then kicked her leg so that she fell down on her back. He touched her private parts and her breast but did not have sexual intercourse.

He then called to Dick and held her until he came over. Joe then left them and Dick raped her.

Under cross examination, she agreed with a number of details put to her by counsel. Those details mainly applied to the first incident with Joe and the defence suggest they cast a very different light on the whole incident.

The details were clearly matters that caused the witness some difficulty. Defence counsel suggests that was because she was a willing, even an eager, partner in the events that day. It is also suggested that in one particular they show her story is improbable.

She agreed that when she was on the ground, Joe used one hand to play with her private parts whilst, with the other, he masturbated himself. She insisted that, at that time, she could not get away because he was holding her down. When pressed about this she could not at first give any explanation and, only after some time, suggested that he only did this very quickly, releasing her as he did, and then held her again.

I accept defence counsel's assertion that by the end of her cross examination she had supplied very many more details but it is also right he say that her willingness to agree the details was matched with an equally clear denial of any compliance in the acts described.

After Dick had raped her, she said she went to the water, washed herself and having finished washing her utensils, she went home. It was suggested to her that if she was upset she would not have finished washing the pots but she said she had to do it because it was a long way back to the village and she could not leave them.

On her return to the village she went to her house and told her mother. Her mother confirmed that, when she saw her, she was crying and looked sad and she then told her the two men had had sexual intercourse with her.

The prosecution case against Dick goes further because he was taken to the Police Station and made a statement to the police. He challenged that statement on the basis that he was never cautioned nor was he told he could correct anything in it and also because he says it is not a true account and was not said by him. It is a narrative statement but he insisted it was a series of questions and answers and his answers were in accordance with the evidence he gave in court and not as the police have recorded. The statement as recorded by the police admits sexual intercourse but says he was forced by Joe.

Both accused gave evidence on oath.

They described how they had met in the very early hours in the village as Dick was preparing to go and check the fishing net he had set the previous day. Joe asked if he could go too and they went in Dick's canoe. Once there they worked on the net until, eventually, Joe went for a drink. Both had, by that time, seen the girl in the water nearby.

Joe told the court how he spoke to the girl and it was clear she was willing to go into the bush with him. She told him to go first which he did but, when she didn't follow, he returned and took her hand. Once in the bush, they kissed and she then sat down at his suggestion. He removed her pants and he both touched and licked her private parts. At that point he thought about his children and decided not to have sexual intercourse and, instead, masturbated. After that he got up and left the girl. He saw Dick at the water and called to him but he went to the canoe and sat there waiting. Throughout, he said, the girl was willing and responded exactly as she had when they had previously enjoyed sexual relations.

Dick confirmed the earlier incidents and explained that he was washing the net when Joe went to the girl. He looked up now and then and saw Joe go into the bush and the girl, when she saw him looking, smiled and pointed the way Joe had gone. Later he saw Joe lead her by the hand and her reaction showed she was clearly willing to go with him. As a relative of both and knowing Joe was married, he was shocked but felt he could not do anything.

After he had washed the net he went for a drink and saw Joe come out from the bush and also saw the girl still lying on the ground. He explained he first went and told her they should not have done as she had but she showed she wanted to have sexual intercourse with him. He knelt between her legs, changed his mind and stood up but then succumbed to the temptation and had sexual intercourse with her. She was willing all along but, to his surprise at the end, told him she would report it.

That is a very brief account of the evidence. The case depends to a very large extent on the court's view of the witnesses. In the case of Joe there is no corroboration of the complainant's account. I must consider her evidence in that light. In the case of Dick her account can be corroborated by his statement to the police.

I must decide first whether the complainant is credible and then if I believe her evidence. The girl's account is confirmed to a small extent by her recent complaint. However, I accept that her distress could equally have been caused, if the defence case was right, by the realisation she had committed such a serious breach of the rules of customary behaviour. I feel in the circumstances it could support the defence case and I take it in that light.

In the case of Joe I must warn myself of the danger of convicting on her uncorroborated evidence.

When two accused are charged together, each must be given separate consideration and the case decided only on the evidence against him. This is a joint charge of rape and the prosecution witnesses suggest the acts of Joe in their entirety are the acts of an accomplice to the rape by Dick.

I found the witness Julia was credible and I believed her evidence. I did not believe the evidence of either accused.

In both cases, defence counsel suggests that the girl has done this to get her own back on Joe for marrying someone else. Having implicated Joe by effectively enticing him into this situation, she involved Dick to compromise him should he try and tell of the incident. Having done that, she needed to allege rape to clear herself. That suggestion was not put in those terms to the witness. However, having considered it and the matters of custom explained by the two accused, I do not accept that has been demonstrated in this case. Even if the accused had shown a possibility of that having occurred they would be entitled to be acquitted. I do not feel it has been shown in any way.

Looking at the case against Dick first. I accept the police evidence about the taking of his statement unreservedly. I accept the girl's account of the incident and I do not accept this defendant's account. I find corroboration in his statement although I accept it may fall short of demonstrating a clear knowledge of her lack of consent. However, I accept the girl's evidence of that and, as I have said, there is corroboration in his statement of part of her account.

I am satisfied beyond any doubt that he had sexual intercourse with her and she did not consent and he is convicted of rape.

In the case of Joe, I warn myself of the danger of accepting uncorroborated evidence but I accept the girl was credible and I am satisfied her account of this incident was true. In the witness box, I found Joe was not credible. I felt he was willing not only to shift the blame to the girl but to embellish his account. I did not believe him.

However, the acts he committed on the girl were neither rape nor, in themselves proximate enough to be attempted rape. I do not find they were, as the prosecution alleges, all preliminary acts of the joint offence of rape.

I accept that the holding of the girl and calling to Dick were part of the incident that culminated in his rape of Julia but, if it is to be part of the joint offence and if I am to convict him of that offence, the acts must not only be part of the whole transaction but also be done with the requisite intent. I am not satisfied on the evidence that it is proved he realised the result of calling in Dick would be rape rather than some other offence. He is acquitted of rape.

However under section 157 of the Criminal Procedure Code I can convict of any other offence that is proved in the evidence. The evidence of the victim demonstrates a clear case of indecent assault. I am satisfied beyond any doubt this accused committed such an offence. The accused suggests consent. It is on the prosecution to disprove that defence and I am satisfied beyond any doubt they have done so.

The accused Joe is convicted of indecent assault.

(F.G.R. Ward)
CHIEF JUSTICE