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Regina v Rafe [2009] SBHC 69; HCSI-CRC 414 of 2007 (7 December 2009)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua, J.)

Criminal Case No. 414 of 2007

REGINA

V

MOSTYN RAFE

Date of Hearing: 16, 17, 19 and 20 November 2009
Date of Ruling: 7 December 2009

M. Coats and A. Kelesi for Crown
D. Tigulu for Accused

JUDGMENT

Mwanesalua, J:

1. Mostyn Rafe, the accused, is a young adult. On 27 May 2007 he lived at Naha 2 in Honiara. He was then a student at the University of the South Pacific Centre (USP Centre) in Honiara. Emily Blola, the victim, is also a young adult, also a student at the USP Centre and lived in Bale’s house at Naha 2 on 27 May 2007.

2. The accused was charged with raping the victim at Naha 4 on 27 May 2007. He pleaded not guilty to the charge. His case is that he had walked with the victim from Naha 2 bus stop to Naha 4 bus stop, then from there to Naha 1 bus stop, then from Naha 1 bus stop to Kobito bus stop. They left Kobito bus stop and walked up the hill through Naha/Vura height and back to Naha 4, at point "B" marked on (Exhibit P1).where he had sex with the victim with her consent.

3.On the contrary, the case for the victim is that the accused had sex with her without her consent at point "B" after the accused pushed her along the Naha 4 road by her hair from Naha 4 bus stop marked "A" on (Exhibit P1); that she fell down on her back on the road while the accused pushed her by the hair to point "B"; that she cried when the accused lead her from the road into the bush towards point "B"; that when they got to point "B" the accused push her to the ground; that she resisted the accused when he tried to remove her pants by fighting him with her hands and legs; that despite her resistances, he removed her pants and inserted his penis into her vagina; that he left her after he had sex with her; that she sat down alone and cried for one hour after he had left her; that she returned to her house after crying and complained to Ms. Maiden Ririana against the accused about the incident; and that she made a complaint against the accused to the police in the afternoon of the same day.

4. The prosecution must prove the accused’s guilt beyond reasonable doubt. In Woolington -v- DPP[1]; Viscount Sankey put the principle thus:

"If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner ... the prosecution has not made out the case and the prisoner is entitled to an acquittal[2].

The defendant is of course, not merely entitled to be acquitted in these circumstances, he must be acquitted.

There are two elements which the prosecution must prove before the accused can be convicted of rape. These elements are (1) that on 27 May 2007 the accused had sexual intercourse with the victim and (2) that the sexual intercourse was without the consent of the victim. The first element is not in issue here as the accused had admitted it in his caution statement. However, the prosecution must still prove the second element.

5. May 27 2007 was a Sunday. In her evidence, the victim says that she left the house where she was living in to go to church at Vura with Ms. Ririana at about 7.30am. They walked from the house to Naha 4 bus stop and were joined on the way there by the accused and Mr. Amos Bebla. As there was no bus Ms. Ririana and Mr. Bebla walked to church by taking a foot path leaving the victim and accused behind at Naha 4 bus stop. The victim told Ms. Ririana that she would follow her to church by bus.

6. The victim said that the accused approached her while she was at the Naha 4 bus stop and asked her to go to his girl friend. She did so and when she returned to Naha 4 bus stop, the accused grabbed her by the hair and pushed her down the road. She was crying and the accused told her in an angry tone "Don’t shout loud or else I will kill you". He continued to push her and told her to move quickly. Eventually about 200 meters down the road he pushed her into the bush to point "B". He pushed her down to the ground and tried to take her pants off. She was afraid of him and tried to fight him off with her hands and legs. But the accused laid on top of her, separated her legs and raped her by pushing his penis into her vagina. After he had finished with her he told her, "If you tell anyone I will kill you". He then left her there and walked away from her. She then sat down and cried for one hour before she went back to the house and reported the incident to Ms. Ririana. She lodged a complaint against the accused with the police on the same day.

7. In cross-examination she admitted that from Naha 1 bus stop she and accused went to Kobito bus stop. They then followed the road which went up the hill to Naha heights and then returned to Naha 4 bus stop. She also said that she fell down on her back when the accused pushed her along the road to point "B" where she said the accused raped her. She said she received injuries from such falls. In re-examination she changed her evidence to say that she received no mark from such falls. The doctor who examined her saw no abrasions, bruises and lacerations on her body. There were no tears or bruises of the genitalia. The doctor however saw love bites on her chest and breast. The love bites were fresh. She told the doctor that they were made by her boy friend from the night before. However, during her evidence in cross-examination she said that they were made by the accused by force. She said this was what she told the doctor when she was examined. There was nothing to show that the doctor might be mistaken about her report on how the love bites were created. The Court would accept the doctor’s evidence on these love bites.

8. The accused’s evidence is that he lived at Naha 2 with his parents on 27 May 2007. He was a student at the USP Centre in Honiara and helped his parents in a family business. He knew the victim well as she was also a student at the USP Centre in Honiara, they lived at Naha 2 and that he usually bought betel nut from her at a betel nut stall in front of Bale’s house where she resided in 2007.

9. On the morning of 27 May 2007 he and Mr. Bebla met Ms. Ririana and the victim at the Naha store. Ms. Ririana and the victim were on their way to Vura church for Sunday service. He asked and got a dollar from Ms. Ririana there. This was confirmed by Ms. Ririana and Ms. Bebla. They then all walked to Naha 4 bus stop where they separated. Ms. Bebla and Ms. Ririana walked up along Naha 4 road and later followed a footpath to Vura church. The accused said during their walk to that bus stop he and the victim were walking behind Mr. Bebla and Ms. Ririana. This was confirmed by Mr. Bebla.

10. He said from Naha 4 bus stop he and the victim walk to Naha 1 bus stop to call his girl friend. During that time the victim was holding a companion book and wore a companion medal. He and the victim were holding hands as they walked to Naha 1 bus stop. This was confirmed by Mr. Stoney Foufaka who was at his betel nut stall near Naha 4 bus stop.

11. He said when they arrived at the Naha 1 bus stop the victim went to his girl friend’s house and called out to his girlfriend, but instead the father of his girl friend appeared, so they walk to Naha 1 bus stop. He said they never walked back to Naha 4 bus stop as claimed by the victim. This was confirmed by Mr. Foufaka who said he never saw the boy and girl (referring to the accused and victim) who earlier walked together to Naha 1 bus stop again that day. Mr. Foufaka was at his betel nut stall from the time when he saw them walked to Naha 1 bus stop until nearly 12 O’clock midday when he went to his house.

12. The accused said from Naha 1 bus stop he and the victim walked to Kobito bus stop. They met many people, vehicles on their way. The accused asked the victim to be his girl friend when they got to Kobito bus stop. They laughed and joked and she said to him, "I was cousin of your ex girl friend if she hears about this she might get angry with me".

13. They then walked up the hill on the road going through Naha/Vura height. The victim confirmed this in her evidence. This was their idea. She took her companion book from accused when they walked up the hill. As they walked through Naha/Vura height, they saw that the road was blocked so they came down the hill into Naha 4. They then walked into the Naha 4 road at a point which the accused marked on Exhibit P1. This point is directly opposite the Naha police houses. This point was not disputed by the prosecution.

14. They walked along the Naha 4 road passing the police and the prison service houses and turn right along a minor road for an estimated distance of 100 metres before turning right again into the bush to the point marked "B". When they got to this point he placed his shirt on the ground and the victim sat on it. They engaged in foreplay and then removed their clothes. The victim lay on his shirt but the victim did not want to get herself dirty on that position. So the victim sat on thighs facing him and they had sex twice.

15. After having sex they put on their clothes and went to Naha School where they sat on the steps of a ladder of a school building. They walked along the road passing the prison service and the police residential houses to get to the school. The location of the school is marked in read in Exhibit P1. While they were sitting on the ladder a car drove in and dropped a teacher, Mr. Stanley Batari who was posted at the school at the time. He went up the ladder and told them to leave the school. The victim responded saying "we just talking". Mr. Batari said that the accused and the victim were just talking and laughing and that there were no signs of fear, distress or crying from the victim. He noted though the accused appeared to be ashamed.

16. Mr. Batari also said that from his observation the victim did not appear as if she was raped, because from her clothes it appeared that she had just been to church and she was in possession of a Bible or book. They were like friends sitting down having conversation, smiling, laughing and joking. Mr. Batari said the accused and victim walked toward James Tora’s store when they left the school as the accused said in his evidence.

17. In her evidence for the defence, Ms. Joanne Sogabule said that she was at Naha 2 on 27 May 2007. She was standing in front of the Naha store next to the police station when the accused and a girl walked down from James Tora’s store from Naha school. She used to see that girl at a betel nut stall infront of Bale’s house at Naha 2. Ms. Sogabule knew that the girl used to live in Bale’s house. This girl wore a flower button shirt and a black skirt. Ms. Sogabule observed them as "talking and walking together". Ms. Sogabule said that the accused and the girl separated at Mr. Roy Tambe’s banana trees behind his house. The accused walked to Mr. Tambe’s betel nut stall while the girl went on behind Mr. Tambe’s house. This evidence is consistent with the accuseds evidence. Ms. Sogabule recognized this girl outside the Court during the trial. This was a reference to the victim.

18. Mr. Hubert Pele knew the accused and victim on 27 May 2007. He sat near Mr. Tambe’s betel nut stall when he saw the accused and the victim coming from James Tora’s store. They separated behind Mr. Tambe’s place. The victim walked behind Mr. Tambe’s banana trees while the accused went to Tambe’s betel nut stall. This evidence is also consistent with the evidence of Mr. Tambe.

19. Ms. Ririana saw the victim arrived at Mr. Bale’s house while she was doing the laundry. It was about early afternoon. The victim told her that she was raped by the accused. She saw the victim crying who later went to have a shower herself. She accompanied the victim to report the incident to the police afterwards that afternoon.

20. The accused denied that he pushed and dragged the victim from Naha 4 bus stop to point "B" where the alleged rape took place. Mr. Foufaka would have seen this event if it occurred. The doctor who had examined the victim on the day of alleged rape would have seen injuries on the victim’s body if she sustained any injuries from falling on the ground as the victim claimed in her evidence. The Victim said that she went to call the accused’s girl friend herself and returned to Naha 4 bus stop when the accused pushed and dragged her to point "B". The court does not believe that there was no such pushing by the hair and dragging because they went to Kobito bus stop from Naha 1 bus stop and that Foufaka had not seen them again that morning. The evidence of Mr. Bebla, Mr. Foufaka, the accused and the defence witnesses show that the accused and the victim went out as persons knowing each other well on 27 May 2007 and enjoyed their time together that day. The court rejects her evidence as unreliable, self-contradictory and lacks credibility. There is a reasonable doubt created by the evidence from the prosecution and the defence in the mind of the court as to the guilt of the accused. The prosecution has failed to prove that the accused had sex with the victim without consent beyond reasonable doubt.

This verdict of this court therefore is that the accused is acquitted of the offence of rape on which he is charged.

Order Accordingly.

THE COURT

^[1] [1935 JAC 462]
^[2] At p.481