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Tohinao v Regina [2005] SBHC 22; HCSI-CRC 369 of 2004(2) (11 November 2005)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 369 of 2004 (2).

JOSIAH TOHINAO

-v-

REGINA

(KABUI, J.).

Date of Hearing: 8th November 2005.
Date of Ruling: 11th November 2005.

P. Little for the Crown.
M. Swift for the Accused.

RULING

Kabui, J. The Crown has closed it case in this trial. The next stage is the application of section 269(1) of the CPC which states-

“When the evidence of the witnesses for the prosecution has been concluded, and the statement or evidence (if any) of the accused person before the committing court has been given in evidence, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence, shall, after hearing, if necessary, any arguments which the public prosecutor or advocate for the prosecution or the defence may desire to submit, record a finding of not guilty.”

Section 269 of the CPC was enacted in Solomon Islands in the days when no legal profession existed in this county as a former British Protectorate. The High Court of the Western Pacific often sat without the assistance of legal counsel except in murder trials or treason trial where overseas counsels were brought in to assist in the conduct of such trials. In most trials, the prosecutors were Police Officers of the rank of Superintendents. Section 269 of the CPC was therefore drafted in such a way that it is the judge who decides whether there is a case to answer or not. If the judge decides there is no case, he or she invites submissions, if necessary, and then acquits the accused.

In this case, before I said anything regarding the sufficiency of evidence in favour of the Crown, Counsel for the accused asked me to rule that there was no case to answer and the accused must be acquitted accordingly. I then heard arguments from both sides and this is my ruling on the no case submission by the defence.

The test to be applied in a no case submission in this jurisdiction.

The case of R. v. Tome, Criminal Appeal No. 4 of 2004 has the effect of qualifying the test previously formulated in R. v. Galbraith [1981] 1 WLR 1039 at 1042. The Court of Appeal here applied in R.v.Tome cited above, the test as expounded by the High Court of Australia in Doney v. The Queen [1990] HCA 51; (1990) 171 CLR 207 which says that the test is “not whether the prosecution has proved its case beyond reasonable doubt but rather whether there is evidence capable of supporting a conclusion beyond reasonable doubt that the accused is guilty”. (See pages 2 -3 of the Court’s judgment, unreported). That is, the court must take the evidence for the Crown at its highest in deciding whether or not the evidence for the Crown so far is capable of sustaining the case for the Crown beyond reasonable doubt.

The test stated in R. v. Tome cited above was again restated to the same effect by the Court of Appeal in R. v. Manessah Saomae, Criminal Appeal No. 03 of 2004.

The evidence adduced by the Crown in this case on all the charges.

The evidence on the indecent assault charges against the accused is overwhelming if I decide to believe Linda, Angela and Agnes and disbelieve the accused. The description of what the accused did to each of them cannot be erased though is disputed by the accused. I would say the same thing about the rape charge against the accused. The evidence given by Agnes on the rape charge cannot be erased though is disputed by the accused. If I choose to believe her evidence, I will have rejected the accused’s denial of the charge of rape.

The final determination of the guilt of the accused in this case would largely depend on the credibility of the witnesses and the sufficiency of the evidence given after the defence has closed its case.

It therefore follows that the issues of credibility and sufficiency of evidence are not matters for consideration by the court at the stage of a no case to answer. That is, those issues are addressed at the closing speeches by Counsel from both sides. This is consistent with the view of the High Court of Australia expressed in Doney v. The Queen cited above and applied in this jurisdiction in R v. Tome and R. v. Manassah Saomae cited above. I cannot depart from that position as it is binding on me.

Evidence on indecent assault charges.

The evidence adduced so far by the Crown on the indecent assault charges on its own is sufficient to prove the charges against the accused beyond reasonable doubt.

The evidence on the rape charge.

The evidence on the rape charge is that Agnes was rather hesitant to go into the room alone with the accused without her elder sister, Angela. When the accused told her to undress in the room, she did not do so immediately. She kept her clothes on but allowed her belly to be rubbed with oil by the accused. She rolled up her shirt to allow the accused to do the rubbing. The accused then removed her trousers, dipped his finger into the oil and inserted his finger into her vagina more than two times. It was at this time of treatment that he asked Agnes for sex. She said she felt ashamed because her elder sister, Agnes, was outside. She rose up to leave the room but the he accused pulled her down to the floor and lay on top of her. She struggled to get up and wanted to shout but the accused shut her mouth with his hand. He then had sex with her.

The lack of consent.

The issue of lack of consent must be decided in the context of the circumstances in which Agnes found herself in at that time. The accused was a custom doctor or healer and Agnes was her patient receiving treatment from the accused. Lack of consent does not always point to brutal or even mild physical violence being used against the victim to intimidate or cause fear in the mind of the victim of rape. In this regard, I refer to the words of Dunn, L.J. in R. v. Olugboja [1981] EWCA Crim 2; [1981] 3 All E.R. 443 at 448-449 which I quoted in R. v. John Iro, Criminal Case No. 250 of 2003. I paraphrase them here with part-quotes. Dunn, L.J. points out that in rape cases, ‘consent’ covers a wide range of states of mind in the context of the sex act between a man and a woman. It ranges from actual desire on the one hand and reluctant acquiescence on the other hand. Furthermore, there is a difference between consent and submission. The difference is that consent involves submission but submission does not necessarily involve consent. In cases where threats without the use of violence is involved, “the jury should be directed to concentrate on the mind of the victim before the act of sexual intercourse took place having regard to all the circumstances, and in particular the events leading up to the act, and her reaction to them showing their impact on her mind”.

Acquiescence after penetration is not consent. Drawing the line between real consent and mere submission is not easy to draw. It all depends upon the circumstances in each case. However, it is for the jury to apply “their combined good sense, experience and knowledge of human nature and modern behaviour to all the relevant facts” of the case before them.

On the evidence before this Court on the rape charge, it can be said beyond reasonable doubt that in the circumstances of this case, particularly bearing in mind the events leading up to the having of sexual intercourse with Agnes, the only conclusion is that the accused only assumed that consent had been given by Agnes. Agnes denies having consented to having sex with the accused. On that basis, there is evidence capable of supporting a conclusion beyond reasonable doubt that the accused raped Agnes as alleged by the Crown.

Conclusion.

The application to acquit the accused on the basis that there is no case to answer is dismissed. I order accordingly.

The accused does have a case to answer.

F.O. Kabui
Puisne Judge