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Regina v Sisiolo [1998] SBHC 57; HC-CRC 005 of 1998 (16 June 1998)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 5 of 1998

REGINA

V

SELWYN SISIOLO

High Court of Solomon Islands
(Lungole-Awich, J)

Date of Hearing: 29.4.1998
Date of Judgment: 15.6.1998

Mr F. Waleanisia for DPP, Prosecuting
Mr S. Manetoali for Accused

JUDGMENT

LUNGOLE-AWICH J: The Charges: Accused, Mr Selwyn Sisiolo, was charged with 2 counts of rape under section 128 of the Penal Code. At the commencement of the trial, learned counsel, Mr Waleanisia, representing the Director of Public Prosecutions, applied to have the statement of offence amended. He gave as his reason that s:128 states definition of rape, the practice has been to cite the penalty section not the definition section, in this case, s:129, instead of s:128. The defence did not oppose the application. I granted the application, but ordered that both sections 128 and 129 of the Penal Code be cited. I am aware that in some jurisdictions, the view is that the penalty section of the law is the one that creates offence and the one to be cited in the statement of offence. In my view the correct citation should include the section defining the offence as well as the section providing punishment for the offence. I say so because that is more in accordance with the purpose and requirement that a charge is to inform the accused fully about the offence. Informing accused fully is better accomplished if in addition to informing him about the offence he is also informed about the consequence he faces if he is convicted. In that way he is made fully aware of the case and the peril he faces, and he may prepare fully to meet them. The charges amended now read:

COUNT 1: Statement of Offence

Rape, contrary to sections 128 and 129 of the Penal Code.

Particulars of Offence

SELWYN SISIOLO, on 7 November 1996, at Naha, in Honiara, had sexual intercourse with NORAH KERE by means of false representations as to the nature of the said sexual intercourse.

COUNT 2: Statement of Offence

Rape, contrary to sections 128 and 129 of the Penal Code.

Particulars of Offence

SELWYN SISIOLO, on 8 November 1996, at Naha, in Honiara, had sexual intercourse with NORAH KERE, by means of false representations as to the nature of the said sexual act.

The particulars of offence are commendable, they gave far more details than required. Particulars that state that an accused had sexual intercourse “without consent”, without giving details of the lack of consent such as false representations is adequate in a charge of rape.

The Facts

The incident of this case is a peculiar one. I state the facts that are common ground first. Accused and the complainant hail from Choiseul Province of Solomon Islands. They had known each other, without having any relationship, at least since 1992. On 7.11.1996, in the house of Jack at Naha, Honiara, they had sexual intercourse. During the sexual intercourse accused made utterances amounting to exhortation that the complainant and her boy friend may marry. The complainant believed that the utterance was a prayer. Accused said that the utterance was “something of his custom medicine.” After the complainant had discharged, accused scooped the complainant’s vaginal fluid and put on a piece of paper. He added to the fluid, scrapings from the complainant’s finger nail and blood taken from her finger by pricking and squeezing the finger. He put the mixture in a bottle. Verses from the Christian bible had been read just before the sexual intercourse. On 8.11.1996 the whole process of reading bible, having sexual intercourse and collecting from the complainant’s body was repeated. To these common facts, the prosecution added contested evidence in the testimonies of the complainant and one other witness. The defendant added evidence in the testimony of the accused. The prosecution urged the court to find that there was rape because the consent was obtained by false representation about the nature of the sexual intercourse. Accused contended that all that were done were by consent of the complainant.

The Law: Rape

Rape in Solomon Islands is still the act of a male having sexual intercourse with a woman or girl, without her consent. Consent obtained by force, intimidation or false representation as to the nature of the act of sexual intercourse are no consent. What I have stated is taken from section 128 of the Penal Code, Cap. 5 of the Laws of Solomon Islands. Sexual intercourse is, to use the old expression, having carnal knowledge of a woman. In rape it is just penetration of the vagina by penis, however slight the penetration may be. No more than penetration is required to prove sexual intercourse. In this case it is common ground that sexual intercourse took place between the accused and the complainant on 7th and 8th November 1996. It is the defence of the accused that the complainant freely agreed to the sexual intercourse that is in issue.

The Law: Corroboration

In rape cases, as in other sexual cases, the court has to take special care to ensure that the testimony of a complainant is safe. Usually the court does that by looking for corroboration in other testimonies or other sources of evidence. It is, however, not a requirement, but the court, if acting on the complainant’s uncorroborated testimony, must warn itself of the danger of convicting without corroboration. The evidence to be corroborated is the sexual intercourse, which is, penetration, and absence of consent. In this case it is only the absence of consent that the court is to consider whether it has been corroborated or can be relied upon without corroboration. Accused has admitted having had sexual intercourse with the complainant on both occasions at Naha. I proceed to assess the total evidence in the case bearing in mind that rule of practice that requires me to look for corroboration of absence of consent, although I may act on uncorroborated testimony, if I am mindful of the danger and still consider the uncorroborated testimony safe to act on.

Appraisal of Facts

Accused said that there was consent because the complainant had known about his custom means to get a boy and a girl to marry. He said that one day when he was passing by the house of Jack, at Naha, Honiara, where the complainant lived, she called him and asked him the question; “are you Sisiolo?” She then went on to ask him to help her. He went away that day because he was tired, but he returned to Jack’s house the next day, 7.11.1996. On that day the complainant asked him to help get her married to her boyfriend. It was she who took him into the house. He asked her whether she believed in his “custom medicine.” She said that she believed. He then asked her to read from the Christian bible, the book of John Chapter 4, verses 13 to 17. After the reading of the bible, he asked her whether she believed like that woman in the bible who believed Jesus. The complainant said that she believed. She proceeded of her own free will to prepare bed, then she removed her clothes and invited him. He went and had sexual intercourse with the complainant. After the sexual intercourse, he took fluid from the vagina of the complainant. He mixed it with her blood and scraping from her finger nail. He left and returned the next day and the whole process was repeated. He kept the mixture in a bottle. He intended to give it to the complainant to get her boyfriend to eat the mixture. That would cause him to love her and marry her. The police arrested him before he had the chance to give the mixture to the complainant and the police took it from him. Accused contended that the complainant in fact did not report the incident of her own free will, it was by the instigation of Leslie Letagara, PW2, who had heard from the accused that accused had already “helped” the complainant. According to accused, Letagara was upset because Letagara wanted to have sexual intercourse with the complainant. He had asked accused to use his “custom medicine,” to enable Letagara to have sexual intercourse with the complainant.

In my view, the question of whether reporting was done only at the instigation of Letagara does not matter. The plaintiff’s explanation that she feared to report to police because she thought that accused could use the concoction from her body to kill her was reasonable explanation, by a person of her background and beliefs.

The important question of consent, is to be found in the facts immediately before and immediately after the sexual intercourse. Whether or not accused was invited by the complainant, he agreed that he read the bible to the complainant for her to believe and then asked the complainant also to read it at John Chapter 4, verses 13 to 17. The verses read:

“13 Jesus answered, “Whoever drinks this water will be thirsty again, 14 but whoever drinks the water that I will give him will never be thirsty again. The water that I will give him will become in him a spring which will provide him with life-giving water and give him eternal life.”

15 “Sir,” the woman said, “give me that water! Then I will never be thirsty again, nor will I have to come here to draw water.”

16 “Go and call your husband,” Jesus told her, “and come back.”

17 “I haven’t got a husband,” she answered.

Jesus replied, “You are right when you say you haven’t got a husband.”

In my view the words in those verses could be misinterpreted with the result that accused could end up having sexual intercourse with a woman believer. Accused himself said that he asked whether the complainant believed what he had read out from the bible and the complainant had read out. He even said that when he asked the complainant whether she believed, he meant whether she believed that the woman in the bible first did not believe Jesus but believed when, “Jesus got in her.” Before that, accused said that he had asked the complainant, the question; “do you know me?” He asked that question despite his testimony that the complainant and him had known each other very well from Gizo. He also had asked the complainant; “do you know my custom medicine?” On those facts it would take some sophistication and being free from personal circumstances of wanting marriage, to disbelieve the accused. The complainant was a simple village girl whose education was rudimentary and at the time, she very much wanted to marry. I find as a fact that accused succeeded in persuading her; she believed the custom story laced with distortion of the verses in the bible. An additional strong point is that accused seemed to have come prepared to present his story of how he was able, by custom means, to help people to marry. He had a pin with which to prick finger and extract blood. He had a diary in which he said he had the names of upto 12 people he had “helped by custom medicine,” to get married. One of those 12 was a girl that the complainant knew well. He showed the list in the diary to the complainant. That was a very powerful factor in persuading a person in the circumstances of the complainant. I am sure I can accept the complainant’s story even without corroboration that she agreed to sexual intercourse with accused because she believed. Her words were, “I followed him because he used medicine; I believed him.”

On the evidence as a whole I accept the complainant’s version, even without corroboration, that she consented to having sexual intercourse because of the beneficial purpose accused said it was intended to lead to, namely, using it in custom way to get the complainant’s boyfriend to marry her.

Submissions and Determination

Learned counsel, Mr Manetoali, for the accused made strong and attractive submission that as accused himself believed in his custom means that he said he had used to marry upto 9 wives for himself, the court should not find falsehood in the persuasion accused presented to the complainant. I suppose that submission was intended to fall under s:10 of the Penal Code even if Mr Manetoali did not specifically refer to the section. The section states:

10. A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.

The argument is that accused may be seen by the court to be mistaken about a fact, the power of his custom medicine, but it was honest mistake of the fact which he acted upon when he had sexual intercourse with the complainant. His case, the argument goes, should therefore be distinguished from that of R v Williams [1923] 1 KB 340, cited by Mr Waleanisia. In that case, a doctor who had sexual intercourse with a patient by misrepresenting the sexual intercourse as a means of improving the patient’s voice, did not believe in the power of sexual intercourse improving voice, it was just a trick by the doctor to have sexual intercourse with her. I agree to that extent. I, however, have answer to Mr Manetoali’s attractive submission. In my view, accused did not at any moment mistake part of the actus, the sexual intercourse, for anything else, not even the effect of the sexual intercourse, as enabling people to marry. If he is believed, he used the sexual intercourse as a means of obtaining body fluid. It was the power of the body fluid mixed with blood and scraping from finger nail and eaten that he may have mistaken, if we assume that his “custom medicine” does not work. The sexual intercourse was a method of obtaining the fluid, but an unlawful method. Accused would have to use lawful means, to obtain the fluid, possibly by asking the complainant to secure the body fluid herself. There was no mistake in the mind of the accused, let alone honest mistake, about the act of sexual intercourse. The defence under s:10 of the Penal Code fails.

Accused’s custom means may be described as witchcraft. It would not be consistent with justice to excuse unlawful acts committed in pursuance of the power of witchcraft because the perpetrator believes in it. That would be repugnant to justice as provided by schedule 3 to the Constitution made under s:76. Whatever belief there may be in witchcraft or “custom medicine,” it must not include the carrying out of actions which are unlawful under the Penal Code or any other enactment. I think the view I have expressed is consistent with the judgment of Sir White ACJ in another case cited by counsel, that of Peter Loumia v DPP HC Cr C No. 7 of 1984. In the case the intended complete defence of accused that he had duty to kill in custom when his tribesman had been killed was rejected. In fact it is inconsistent with justice to pursue any belief, calling or profession by unlawful means.

Belief in witchcraft has never been accepted as defence in law in any part of the world. It is appropriate to give an example in a case in England from where we adopted a lot of our present laws. It might surprise us in Solomon Islands to hear that witchcraft exists in England. Legislation law of England forbids it anyway. Not so long ago, in 1944, the case of Duncan, Brown, Homer and Jones v R (30) Cr App R 70 was decided in England in favour of the King against the 4 perpetrators of witchcraft. The belief of the appellants and their contention that one of them actually had the power to act as medium of spirits and actually had voices of the dead spoken through her was rejected, even though appellants wanted the court to see them demonstrate and prove it as a fact. They believed in the witchcraft.

Accused Convicted

I am satisfied beyond reasonable doubt, on the evidence made available, that the accused had sexual intercourse with the complainant on 7th and 8th November 1996, by falsely representing to her that it was part of a process of using custom means he described as “custom medicine”, to get the complainant’s boyfriend to marry her. That amounted to obtaining the consent of the complainant by falsely pretending about the nature of the actual fact of sexual intercourse. Accused committed two offences of rape under sections 128 and 129 of the Penal Code, on 7.11.1996 and 8.11.1996. I enter verdicts of guilty to rape on each count and convict him on each of the two counts.

Comment

It is necessary for me to advise the press that in sexual offence cases, it is undesirable to disclose the name of the complainant. It does not serve any useful purpose to the public, and can bring embarrassment to the complainant, and sometimes causes her great personal distress. The proceedings of the court, including judgment can be reported without identifying the woman by name. I think a useful guiding question to ask is; suppose the complainant was my daughter, wife, mother or friend for that matter, would I like her name reported in the press?

Delivered this 16th day of June 1998
At the High Court,
Honiara

Sam Lungole-Awich
Judge
High Court of Solomon Islands