IN THE HIGH COURT OF SOLOMON ISLANDS
(PALLARAS J)

CRC No. 159 of 2012

REGINA

V

ANGA

Hearing Dates: 12 – 14 November 2012
Verdict Delivered: 26 November 2012

Coram: Pallaras, J.
Crown: Mr. Iomea
Defence: Mr. Holara

Verdict:
(Pallaras J)

1.	The accused pleaded not guilty to one count of rape contrary to ss. 136 and 137 of the Penal Code (Cap.26).

2.	However, through his counsel and in his own testimony he admitted having sexual intercourse with Susan Leonard Mani, a girl who was 13 years old at the time of the offence which was alleged to be 2nd March, 2012. He says however that the sexual intercourse was consensual. It is accepted by the Defence that whatever other offence he may or may not have committed, he has by his own admission committed the offence of defilement contrary to s.143(1)(a) of the Penal Code.

3.	It was also agreed that according to the provisions of s.166 of the Penal Code the accused could be properly convicted of the offence of defilement notwithstanding that he was only charged with the offence of rape.

4.	The issue then between the parties on the charge of rape, was confined to the question of consent. 

The Prosecution Case:

PW1 Susan Leonard Mani ("the Complainant")

5.	The Complainant testified that she ceased attending school in 2011 (that is, at approximately 12 years of age). She said that she knew the accused who was married to her aunty Rebecca Maena Sade. She said that they lived in the same area.

6.	In March 2012, the Complainant was living with her mother at Lio Creek in Honiara. The accused was also living in Lio Creek with his wife.

7.	On 1st March 2012, the accused had been involved in an argument with his wife who was upset over the fact that he had been drinking. The argument had started earlier in the day and had continued when the accused returned home later that evening. There came a time when the accused decided to leave the house and go to a fishing village in Honiara to sleep. He was drunk at this stage.

8.	The accused decided that he wanted to take his two-year-old son with him "for comfort". Over the objections of his wife, he gathered up the child and went to the fishing village and slept with the child in a hammock at a house described as "Stephen's house".

9.	Sometime later, his mother in law, who was the grandmother of the Complainant, his wife and the Complainant arrived at the fishing village looking to take back the young child. The Complainant's grandmother asked the accused to give up the child but he refused. The accused's wife was reluctant to approach the accused who said to the two women and the young girl 

"go out, you're trying to be smart".

10.	The grandmother then asked the Complainant to ask the accused for the child. She did so but he again refused. The grandmother, the accused's wife and the Complainant then walked to another house and stayed for a time. Later, the Complainant and the accused's wife returned to Stephen's house to again ask the accused to return the child. The accused, who was carrying the child, then called to his wife to approach him. She told the Complainant to go to him because she was too frightened to do so, saying to the Complainant that the accused would not do anything to her.

11.	The Complainant approached the accused and he handed her the child. She said to him that she was going to return the child to his mother but the accused told her not to do so and to take him to the veranda of Stephen's house so that the child could sleep. The Complainant did as she was told by the accused.

12.	In order to lay him down on the veranda, the Complainant had to climb some steps. When she was coming back down the steps, she said that the accused was standing at the foot of the steps and he immediately grabbed her hands with one of his hands and put his other hand around her mouth. He then proceeded to force her to walk with him to an area away from the house to a fence close the Fisheries Department.

13.	The accused then forced her to the ground, pulled up her skirt, pulled down her panties and inserted two fingers into her vagina. He then put his penis into the Complainant's vagina and had sexual intercourse with her. The Complainant struggled to free herself but due to the strength of the accused was unable to do so. When he had finished the accused said

"don't tell your grandfather, grandmother or mother – if you tell them I'll see you and I'll kill you".

14.	The Complainant got up and crying, ran back towards the house where her grandmother and aunty had been. On the way there, she met the two women coming towards her. She was asked by the women why she had taken so long. She did not respond but continued to cry. The accused's wife went to Stephen's house and when she returned she spoke to the Complainant. 

15.	The two women then took the Complainant to sleep at another nearby house. On one account the time was then around 2 a.m. and I infer that they decided not to make the journey home at that time of the morning. Later on that morning the three walked together back to Lio Creek.

16.	When she arrived home, the Complainant found that her mother had already left to go fishing and her grandmother went out for the day. She stayed alone in the house for most of the day and into the evening. At approximately 5 p.m. the Complainant's grandmother, grandfather, mother and her husband, all returned home. By this time the accused had already returned home and was inside his house which was very close to the Complainant's house.

17.	When her relatives arrived home, the Complainant was asked 

"Is it true what he did to you?" and she replied "yes".

18.	As it turned out, because the families were virtually living together, this was within the hearing of the accused and in the presence of the accused's wife who spoke out to the accused saying 

"The girl said it was true what you did to her". 

19.	Somehow aware of the details of the allegation that was being made against him, the accused while still remaining inside his house said 

"She's lying". 

20.	It is notable that at no stage did he come out to learn the details of the allegation nor did he emerge from the house to defend himself against the allegation. Also, he at no stage said to either his wife, the Complainant's mother, her husband, the Complainant's grandmother or her grandfather that the Complainant had consented to his conduct. When the accused said "she's lying", the Complainant replied 

"It's not a lie, it's true about what you did". 

Still the accused did not emerge.

21.	It was then decided that the Complainant should be taken to the police to make a formal complaint. On the way to the police station, the Complainant told Ellen Geli (PW3) what the accused had done to her. This evidence was offered by the Crown as evidence of recent complaint. 

22.	Given that the Complainant had spent the day alone with no adult company, the arrival of her relatives in the evening and the decision to take her to the police was, in my judgment, the first reasonable opportunity that the Complainant had to complain about the accused's conduct. I accepted the evidence of PW3 as evidence of recent complaint.

23.	In cross examination the Complainant said that the accused at no stage asked her what her age was and that she had never told him. She denied the suggestion that the accused had ever said that he wanted to "go out with her".

24.	She agreed that there were some people underneath the veranda of Stephen's house and said that some were sleeping and some were watching a movie. She denied that the accused had held her by one hand and asked her to come to the fence with him. She agreed that the people under the veranda could have heard if she had shouted for help but said that she could not do so because the accused kept one of his hands over her mouth.

25.	When asked if she had made any noise while she was struggling against the accused, the Complainant said that the accused was very strong, held his hand over her mouth and although she was kicking at the grass the people nearby were all drunk and watching a movie.

26.	The Complainant denied having oral sex with the accused and denied holding his penis and putting it in her vagina. She denied kissing the accused.

27.	She said that she saw people drinking under the veranda, that although she thought that they would come to her help, no one came. She said that the people drinking would have been in a position to see her if they were sober but because they were drunk, they didn't see her. The people drinking were making a noise and there was music playing as well.

PW2 Davis Martin Junior

28.	PW2 was 15 years of age, had never attended school and was living in Stephen's house on 2 March, 2012. He said that late at night, he woke from sleeping, struggled to open his door so that he could go to the toilet and that when he did open his door he saw the accused holding the hand of the Complainant. The two of them were walking towards the fence. He heard nothing being said.

29.	He said that there was nobody under the veranda drinking and no music was playing. He did hear some noises of talking and shouting from who he described as "drunks on the road" but they were far away.

30.	He said that when he saw the two walking, the accused was in front of the Complainant. He had a clear view and did not see the accused with his hand on her mouth. He then went back to bed but did not go to the toilet because he was "too busy".

31.	The accused was the uncle of PW2.

Statement of Hareth Mae 

32.	Hareth Mae is the mother of the Complainant. Her statement was tendered by consent. She said that she had separated from her husband, the father of the Complainant and was living in Honiara in the same house as the accused, his wife (Hareth Mae's sister) and others. She said that the Complainant was born in 1998. In March 2012, her daughter came to visit her in Honiara where the alleged offences occurred.

PW3 Ellen Geli 

33.	PW3 is a sister of Hareth Mae. She is an aunty of the Complainant who lives in the same house as the Complainant. She said that she saw the Complainant returning from the fishing village and it was apparent that something had happened. She went to speak to her niece who appeared upset and was crying. 

34.	The Complainant then told her that the accused had grabbed her when she came down the steps, put his hand over her mouth and pulled her to a darker area near the fence. The Complainant said that the accused then pushed her to the ground and raped her. She said that he then threatened to kill her or her aunty (the accused's wife) if she told anyone what he did to her. 

35.	She also testified that the Complainant said that the accused had held a knife when he threatened her and because of the threats she was too frightened to tell her aunty what her husband had done to her.

Statement of Sam Kabolo

36.	The statement of Sam Kabolo was tendered by consent. His account of what happened differed significantly from every other witness including the account given by the accused.

37.	Kabolo said that he was in a hammock underneath Stephen's house as he was very tired having returned from a fishing trip. He saw the accused carrying his young son get into the hammock next to his. The accused was drinking while at Stephen's house.
 
38.	The accused told him that he had been arguing with his wife. He then says that when the child fell asleep, the accused took the boy up the steps to let him sleep on the veranda. At that stage he says that he saw "the little girl", the Complainant, standing at the foot of the stairs watching movies. He also says that at this time he saw her grandmother walking off to the main road.

39.	When the accused came down the steps, he gave something to the Complainant, took her hand and led her off towards the fence.

40.	Amongst other things he offered the opinion that –

•	"I think that they might have agreement or planned it" 
•	the Complainant "didn't even shout out for help", 
•	later "she looked like she is not worried or fright" and 
•	"it looked like she like what Anga did to her".

Kabolo was related to the wife of the accused and comes from the same village as the accused.

No Case Submission:

41.	A no case submission was made by the Defence. The submission had no prospects of success because on the Complainant's evidence alone, a case to answer had clearly and obviously been shown. The no case submission was rejected.

The Defence Case:

42.	The accused was informed of his rights and options and decided to give sworn testimony. No other evidence was called by the Defence.

43.	The accused described how on the afternoon of 1st March, 2012, he had bought a large quantity of beer and had begun to drink it. He was not at home and was preparing to go to his place of employment to collect his pay. He was surprised by the arrival of his wife who was annoyed with him because of his drinking. After an argument his wife left for home.

44.	Later that evening, in a drunken state, the accused arrived home. The argument continued and he decided that he would leave the home and spend the night at the fishing village. Over the objections of his wife, the accused took his two year old son with him. On his account, he was given permission to do so by his father in law.

45.	He took his son to the fishing village in Honiara arriving there around 10 p.m. He was still drunk. Contrary to the evidence of the witness Kabolo who said that he saw the accused drinking at the village, the accused said that he had nothing to drink after arriving there.

46.	He describes how sometime later his mother in law, his wife and the Complainant arrived. They had come to retrieve the baby. He refused to give up the boy saying

"you can go on, the child is staying with me".

His mother in law again asked him for the child but he again refused. The women and the Complainant then walked away. Later, his wife and the Complainant returned. Either his wife or the Complainant said to him 

"bring the baby here so we can take him to the other side". 

He replied 

"this is a house also. I'll put him to sleep here". 

47.	He told the Complainant to come to him and she did so while his wife stayed back. He testified that he "wanted to go out with her", he "wanted to be involved with her" and that he "wanted to have sex with her". In fact the very first thing that he said to the Complainant when he called her to approach him was "I want to go out with you". As he explained in evidence, this was a euphemism for saying that he wanted to have sex with the young girl.

48.	He testified that the girl said absolutely nothing in response. For some reason he took her silence to mean consent. He could only offer as an explanation for this that he was drunk and because of this he 

"really didn't think (about) the answer she gave me".

49.	He then said that he was feeling very drunk so he asked the girl to take the baby up onto the veranda to sleep. The Complainant did as requested. As she descended the steps he said that he again asked her if he could go out with her. Again the girl said nothing at all to him in response. He took this continued silence as further confirmation of her agreement to have sex with him.

50.	He says that he then took her by the hand and they walked together to the fence area where she was a willing and enthusiastic participant in oral sex and sexual intercourse.

51.	He said that the place where they had intercourse, although relatively close to the house, was hidden from view of those at the house and that they would not have been able to see them having sex together. There were several people under the veranda drinking.

52.	When asked why he imagined that a 13 year old girl would have wanted to have sex with him he replied 

"It was because I was drunk, that is what I was thinking."

53.	Later he was to concede that he thought more clearly when he was sober than when he was drunk and that because he was drunk on this night he may have misunderstood or mistaken the attitude of the Complainant to having sex with him.

54.	He had never asked the Complainant about her age.

Submissions:

55.	In closing submissions the Crown suggested that the evidence of both PW2 Davis Martin Junior and Sam Kabolo should be disregarded because they knew and were related to the accused or his wife. This submission was rejected as illogical and as insufficient reason to reject their evidence. The illogicality of the Crown's position was highlighted when the prosecutor then himself submitted that I should accept the evidence of PW3 Ellen Geli, even although she was the aunty of the Complainant.

56.	The Defence submitted that the evidence was capable of supporting a finding that the accused had an honest and reasonable belief that the Complainant was consenting. Whatever may be said about the honesty of such a belief, if it existed, I find that it could in not in any way whatsoever be regarded as reasonable. On his own evidence when he "asked" her twice she said nothing and moreover he candidly admitted to the Court that he did not think about the answer she had, or indeed had not, given.

57.	As to the offence of defilement, if it is suggested that the accused could reasonably and honestly have believed the Complainant to be an adult, then that suggestion too would be rejected. The girl is quite obviously very young, her size, immaturity and demeanour being clear for all to see. The accused had been living with the Complainant if not in the same house then as near as could be to it. He had more than ample opportunity to observe her, talk to her and become familiar with her background and age. He says that he never asked the Complainant about her age.
 
Verdict:

58.	A striking feature of the accused's evidence was the number of occasions that he referred to being drunk on the night of the alleged offence. He had purchased and started drinking 10 cans of beer early in the afternoon and, according to one witness, was still drinking late on the night or early morning of the alleged offence. There is little doubt on the evidence before me that he was drunk around the time of the alleged offence.

59.	The significance of this is highlighted by his admission that he didn't think about the Complainant's response, or lack of it, to what in his mind was an invitation to have sex with him. For him, her silence was conveniently transformed into consent because from the outset that is what he wanted to hear.

60.	Again, his evidence that because he was drunk he thought that such a young girl might want to have sex with him is instructive and revealing. He was not interested in exploring further the silence of the Complainant because he had decided what he wanted and what she wanted was an irrelevancy to him.

61.	It was the accused who testified that the very first thing he said to the Complainant when she approached him to retrieve the child was that he "wanted to go out with her", by which he meant that he wanted to have sex with the young girl. There was of course no evidence that the Complainant knew that this is what the words used by the accused meant, but even if there was, she in no way indicated that she accepted his drunken offer. All of his actions thereafter were designed to achieve his aim of satisfying his sexual desires with this young girl. Her wishes were neither discovered nor considered.

62.	The Complainant was put in an impossible position. She had been enlisted to do what the adults around her had either tried and failed to do or were too frightened to try. The Complainant's grandmother had tried to get the accused to see sense. The accused's wife was too intimidated to even approach the accused over their child. How she could then send in the young girl to confront her drunken husband and to retrieve her baby from him is a mystery and a sad reflection on the sense and maturity of the adults who were with the Complainant.

63.	The accused's threats to kill the Complainant should she tell any of her relatives what he had done to her and his use of a knife to add to the threat, must have terrified the Complainant and more than explains the short delay taken by her before she revealed what had happened. Those same adults had seen her upset and crying when she returned from Stephen's house and still did not confront the accused. 

64.	While on her way to report the accused to the police, she told PW3 in effect that the accused had raped her. This evidence is of course not probative of the facts alleged against the accused but does serve to confirm the consistency of the behaviour of the Complainant and is also relevant to the issue of consent. Although it may confirm the Complainant's evidence, it is not capable of corroborating that evidence.

65.	However, in this case there is no issue that the accused did have sexual intercourse with the Complainant. The factual dispute is principally over the issue of consent and I am satisfied that the Crown have proven beyond reasonable doubt that the Complainant did not consent.

66.	There were some other factual disputes relating to matters leading up to the assault. The accused testified that he did not take the Complainant by both hands but rather that he held one of her hands before walking her to an out of sight location. The Complainant said that she was grabbed by both hands and that the other hand of the accused was around her moth preventing her from calling for help.

67.	These factual disputes obviously impact upon the issue of consent. If the Complainant walked off hand in hand with the accused then this would allow for different inferences to be drawn than if she was effectively dragged away. I point out however that even on the accused's version, it does not necessarily mean that the Complainant knew what was about to happen to her because, as the accused admits, she had still said nothing to him.

68.	Arguably, witnesses called as part of the Crown's case can be said to support the version given by the accused. However, on a closer examination of the evidence of the witnesses, Davis Martin Junior PW2, the nephew of the accused and Sam Kabolo a relative of the accused's wife whose statement was tendered, their evidence leaves much to be desired.

69.	First, in respect of Davis Martin Junior, he testified that he was asleep in Stephen's house, woke up because he needed to go to the toilet, opened the door to his room and looked out and saw the accused and the Complainant walking away together hand in hand. He said that no one was drinking in the veranda directly below him and there was no music being played. 

70.	The preponderance of the evidence clearly shows that there were several people watching television and drinking below the veranda and that they were making noise.

71.	Further, he says and is the only one to say so, that there was noise coming from a group of drunks a distance away along the main road.

72.	Then most curiously, he says that despite being awoken with the need to go to the toilet, after he opened the door and saw the accused and the Complainant, he went back to bed. When asked why he didn't go to the toilet as he intended, his answer was that he was "too busy". This was a nonsense of an answer given that he had been asleep to that point.

73.	His failure to observe and or hear the noise of those drinking immediately below him, his observation of drunks "down the road" not mentioned by any other witness, his purported clear recollection of events that he saw when on his own account he had just woken up late at night from a sleep and his curious explanation as to why he returned to bed, cause me to have no confidence in the reliability of his testimony and I reject it in total.

74.	Next, I turn to the evidence of Sam Kabolo which was received by the Crown tendering his statement with the consent of the Defence. His observations were in marked contrast to the preponderance of the evidence and contradicted that of the accused.

75.	Kabolo says that it was the accused, not the Complainant, who carried the child up the steps of Stephen's house. He says that "the little girl" that is, the Complainant, was standing at the bottom of the steps watching a movie. Given that both the Complainant and the accused agree that it was the Complainant who carried the child up the steps and lay him down to sleep, it is clear that Kabolo's powers of observation are questionable.

76.	That may be explained by the fact that it was in the early hours of the morning, he was resting in a hammock and was very tired having just returned from a fishing trip. Whether this be the explanation or not, there also is a suggestion of a more sinister explanation, namely, that he was not an impartial witness and deliberately tailored his account to help his relative's husband.

77.	The evidence that leaves that suggestion open includes the fact that without being directly asked, Kabolo volunteered his opinion that the Complainant and the accused might have had an agreement or had planned to have sex, that the young girl "didn't even shout out for help", that she wasn't worried or frightened and that he thought the Complainant liked what the accused had done to her. 

78.	Even although little of this is admissible evidence, the fact that Kabolo volunteered these unsolicited opinions suggests a bias towards or an interest in assisting the accused by his evidence. 

79.	Because of the significant differences in his account when compared to the bulk of the evidence and my sense that his evidence was less than unbiased, I am unable to accept his evidence as either accurate or reliable and I therefore reject it.

80.	On one view of course, the findings that I have made about these two witnesses may be said to assist the accused given that their evidence formed part of the Crown case and made parts of that case internally inconsistent. I am conscious of that outcome and, had I still retained any doubts about the course of events as described by the Complainant, then the outcome may have been different. 

81.	But I have rejected the evidence of both PW2 and Kabolo as being totally unreliable. The remaining evidence of the course of events, in the Crown's case, comes from the Complainant alone and that is evidence which I do accept.

82.	There is then no reliable evidence that detracts from the Complainant's testimony that she did not consent to have sexual intercourse with the accused.

83.	The result of these findings must be that the Crown have succeeded in satisfying me beyond reasonable doubt that the accused had sexual intercourse with the Complainant without her consent and must be convicted of the offence of rape.

84.	Finally, as the issue of honest and reasonable belief was raised, although somewhat late, by Defence and was in response to the Court's invitation, I make the following remarks. Even if the accused honestly believed that the Complainant was consenting or that she was of age, and on the evidence I do not for one minute accept that he did, it could never be suggested that his belief was reasonable. He knew the young girl well, their families living virtually as one. He at no stage ever asked her about her age nor did he ever make inquiries of others about it. The Complainant testified that she had never told him her age.

85.	The Complainant was patently a very young and immature girl. The accused, as an adult male with his own family, would well realise that the Complainant was a very young girl. He would also well realise the risk he was taking in having intercourse with such a young child without confirming or at least making some inquiry as to her age. He was prepared to take that risk. It is the easiest excuse to raise to say that "I thought she was consenting" or, "I thought that she was of age". But when it is considered that at no time did she respond to his proposals and at no time did he make any inquiry whatsoever about her age, such an excuse carries no weight. It is unreasonable for him to have acted in this way and his belief, even if he held it, could not be said to be a reasonable belief.

86.	The verdict of this Court is that the accused is guilty of the offence of rape and is therefore convicted of that charge. 

THE COURT