Home | Databases | WorldLII | Search | Feedback High Court of Solomon Islands

Regina v Waitamu [2013] SBHC 156; HCSI-CRC 28 of 2013 (10 July 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

REGINA

-v-

DICK WAITAMU

Date of Hearing: 30th April, 1st, 2nd and 3rd May 2013

Date of Judgment: 10th July 2013

Ms. F. Taeburi for the Crown.
Mr. L. Hite for the accused.

JUDGMENT

The charge.

1. The accused is charged with 5 counts of rape upon Joycelyn Moliki contrary to section 137 of the Penal Code and one count of common assault also on Joycelyn Moliki contrary to section 244 of the Penal Code.
   
2. All the offences are alleged to have occurred at Arohane village in Makira/Ulawa Province.
   
3. As for the dates of the incidents, the first offence (count 1) is alleged to have occurred on an unknown date in September 2008, the second offence (count 2) on an unknown date in October 2008, the third offence (count 3) on an unknown date in January 2009, the fourth offence (count 4) on an unknown date in February 2009, the fifth offence (count 5) on an unknown date also in February 2009 and the sixth offence (count 6) also on an unknown date in February 2009.
   
4. On arraignment, the accused has pleaded guilty to the common assault charge (count 6), but not guilty to the rape charges (counts 1 to 5). I therefore convict him, on his own plea of guilty, of common assault as alleged in count 6.
   
5. Since the accused has pleaded not guilty to the rape charges, I must remind myself that, before I can convict him of the rape charges, the prosecution must prove beyond reasonable doubt that the accused had had sexual intercourse with the complainant as alleged and that the complainant had not consented to the acts of sexual intercourse.
   

The witnesses and exhibits.

6. The prosecution had called 7 witnesses. They are the complainant, Joycelyn Moliki ("Joycelyn") (PW1), Roslyn Tauni ("Roslyn") (PW2), Charles Alisi ("Charles") (PW3), Alick Waapa ("Alick") (PW4), Janet Tauni ("Janet") (PW5), Margaret Kamahe ("Margaret") (PW6) and Monica Sirai ("Monica") (PW7).
   
7. In addition, 6 exhibits have also been tendered into evidence. These are a statement by Clementine Peli dated 1st April 2009 (exhibit "P1"), statement by Galvin Murray dated 27th February 2009 (exhibit "P2"), statement by John Tagihaga dated 2nd March 2009 (exhibit "P3"), a sketch of the crime scene (exhibit "P4"), a skirt belonging to the complainant (exhibit "P5") and the record of interview conducted with the accused on 28th February 2009 (exhibit "P6").
   

Facts not in dispute:

8. It is not disputed that the complainant comes from Otelo village, Reef Islands, Temotu Province. In her evidence, she claims that she is 75 years old although in her statement to the police made on the 26th February 2009, she stated that she was 60 years old. Whichever and whatever is her true age, she appears to me to be a very old woman.
   
9. The complainant had come to Makira Province some years back to live with her cousin sister, Janet, at Arohane village. Janet is married to Thomas Tauni ("Thomas"), a man from Arohane village.
   
10. The accused is a 29 year old man who is also from Arohane village. He is related to Thomas who is the real brother of his grandfather. According to the complainant, the accused used to live with them and she and Janet used to call him their granny because he is the granny of Thomas. It is not disputed that the accused and the complainant knew each other well.
    
11. In count 1, the accused is alleged to have had sexual intercourse with the complainant without her consent at Arohane village on an unknown date in September 2008.
    
12. In both his record of interview (exhibit P6) and his statement from the dock, the accused admitted that he had had sex with the complainant on that occasion but claimed that the complainant had fully consented to sexual intercourse.
    
13. In count 2, the accused is alleged to have had sexual intercourse with the complainant without her consent at Arohane village on an unknown date in October 2008.
    
14. The accused has denied this allegation and, at the close of its case, the Crown had conceded, and rightly so in my view, that there is no evidence to prove this allegation. Accordingly, I dismiss count 2 and acquit the accused of that charge.
    
15. In count 3, the accused is alleged to have had sexual intercourse with the complainant without her consent at Arohane village on an unknown date in January 2009.
    
16. Again, the accused has denied this allegation and, at the close of its case, the Crown had again conceded that there is no evidence to prove this allegation. I agree that this charge has not been made out. Accordingly, I dismiss count 3 and acquit the accused of that charge.
    
17. In count 4, the accused is alleged to have had sexual intercourse with the complainant without her consent at Arohane village on an unknown date in February 2009.
    
18. In both his record of interview (exhibit P6) and his statement from the dock, the accused admitted that he had had sex with the complainant as alleged but, again, claimed that the complainant had fully consented to sexual intercourse.
    
19. In count 5, the accused is alleged to have had sexual intercourse with the complainant without her consent at Arohane village again on an unknown date in February 2009.
    
20. In his record of interview, the accused said nothing about him having sex with the complainant on that occasion apart from admitting that on that particular night he went into the kitchen where the complainant was sleeping. However, in his statement from the dock, the accused said that he had had full sexual intercourse with the complainant that night with the full consent of the complainant.
    
21. I will return to count 5 later. However, having dismissed counts 2 and 3 and having convicted the accused of count 6, the only remaining charges against the accused, apart from count 5, are counts 1 and 4.
    
22. It is clear that in relation to those two counts, that is counts 1 and 4, the only issue is whether the complainant had not consented to sexual intercourse with the accused on those two occasions.
    

The law on consent in rape cases.

23. Where consent is in issue, the burden is always on the Crown to prove beyond reasonable doubt that the complainant did not consent to have sexual intercourse with the accused at the time of the alleged offence[1].
    
24. Consent, or the lack thereof, is a state of mind which can be proved or negatived only after a careful consideration of the behaviour of the complainant and an examination of the circumstances surrounding the alleged offence. Of importance is what the complainant said to the accused and / or what she did which could have indicated to the accused that she was not willing to have sex with the accused at that time.
    
25. Also of importance in determining consent is the age, social experience and / or the mental condition of the complainant[2].
    
26. It is also important to note that submission by a person to the sexual demands of another does not necessarily mean consent on the part of the former. Where there is consent, there will always be submission but, it does not necessarily mean that where there is submission, there is consent[3]. As stated by Coleridge J, in R v Day[4]:
    

"There is a difference between consent and submission; every consent involves submission; but it by no means follows that a mere submission involves consent".

Count 1 – whether or not there was consent.

27. The circumstances surrounding the incident which is the subject of count 1 of the indictment is that on an unknown date in September 2008, the complainant had gone to her garden in the morning and was returning to the "camp" at around 6pm when she met the accused on the road. She was at that time living at a logging camp with her in-laws. She had a knife and was carrying 2 baskets at that time. As she was returning, she met the accused on the road. The accused was also carrying a knife and a hat when she met him.
    
28. The accused then asked the complainant where she was going. The complainant replied that she was going home. The complainant also asked the accused why he had asked her about where she was going. The accused, however, told the complainant to wait and to put her baskets down. The complainant was slow in complying with the accused's instructions so the accused came and held the complainant's hands, pulled the baskets from her and placed them on the ground. He then pulled the complainant towards the river. The complainant became frightened and tried to resist the accused but did not succeed. The accused then laid her down on the ground. The complainant tried to persuade the accused not to do anything to her telling him that they were close to the road and people might see them but the accused did not care.
    
29. The accused unbuttoned his trousers, opened the complainant's legs, climbed on top of her, inserted his penis into her vagina and had sex with her. After he had ejaculated, the accused got up telling the complainant that he was not interested in her and had only wanted to release his sperm. Before leaving, the accused had also warned the complainant not to tell anyone about what he did to her saying that if she did he would cut her if he meets her in the garden.
    
30. In his record of interview[5] the accused admitted having sexual intercourse with the complainant on that occasion but claimed that the complainant had consented to sexual intercourse. Furthermore, he also admitted that he met the complainant on a road to a camp and had sex with her along that road. He said that they applied the "dog" style during that sexual encounter. He agreed that after having sex with the complainant, he warned her not to tell anyone about the incident and then left.
    
31. The accused has also made a statement from the dock. He was his only witness. In his dock statement, the accused has also admitted that he had sexual intercourse with the complainant. However, despite admitting in his record of interview that the incident occurred along a road to the camp, he alleged in his dock statement that the incident occurred in a cocoa farm near the complainant's garden.
    
32. His version of the incident as narrated in his dock statement is that he came to the cocoa farm and there he saw the complainant in her garden. He approached the complainant and asked to have sex with her. She accepted his request and told him to go and wait for her at the cocoa farm. He went to the cocoa farm and waited for her. She then followed him to the cocoa farm. As soon as she arrived, the accused hugged her and fondled her breast. The complainant then laid down on the ground, lifted up her skirt and told the accused to hurry up because they were at the side of the road. The accused then knelt down and laid on top of her. He then tried to push his penis into her vagina but was unable to do so, so it was the complainant who took hold of his penis and directed it into her vagina. He then had sex with her. After having sex with the complainant, the accused told her not to tell anyone about the incident and then went away along a river.
    
33. In regards to this incident, there is no independent witness to corroborate the evidence of the complainant. I am mindful, however, that the rule as to corroboration has been abrogated and that it is no longer necessary that evidence upon which a party relies be corroborated[6]. This means that I can convict on the evidence of the complainant alone if I am satisfied that the complainant is a truthful witness.
    
34. As for the evidence by the accused, the fact that he did not give evidence on oath does not necessarily mean that I should not accept his evidence[7]. Accepting or rejecting unsworn evidence is a matter for the discretion of the trial judge. Where the evidence is credible, the judge is entitled to accept it. Where the credibility of the evidence is in doubt, he is entitled to reject it. Inconsistencies in a person's own evidence or as between a person's evidence and those of others are matters which go towards the credibility of the witness and therefore the credibility of his or her evidence.
    
35. In this case, there are some very notable inconsistencies between the accused's version of the event as recorded in his record of interview and in his dock statement, which have cast doubt on the credibility of his evidence.
    
36. For instance, in his record of interview, the accused admitted having sex with the complainant along the road leading to a logging camp. This supports the complainant's evidence. However, in his dock statement, he said that he had sex with the complainant in a cocoa plantation near the complainant's garden.
    
37. Also in his record of interview, the accused said that they applied the "dog" style when they had sex on the road[8]. In his dock statement, however, he said that the complainant had laid on the ground and had lifted up her skirt whereupon he then laid down on top of her and had sex with her. He said it was the complainant who grab hold of his penis and inserted it into her vagina while lying down.
    
38. I have also watched the accused in the dock while giving his evidence. His demeanour is not that of a man telling the truth. He was hesitant and slow in giving his answers. I simply do not believe his evidence and I reject it.
    
39. However, rejecting the accused's evidence does not necessarily mean that I must convict the accused or that I must accept the complainant's evidence. The Crown still bears the burden of proving its case beyond reasonable doubt.
    
40. The question then is whether the Crown's evidence has proved beyond reasonable doubt lack of consent on the part of the complainant when the accused had sex with her in September 2008.
    
41. The complainant had said in her evidence that she did not consent to sex with the accused. She said when the accused came and grabbed her hands, she resisted and told the accused that people might see them. She was an old woman in her sixties. She was returning from her garden where she had been working the whole day. Obviously, she must have been very tired. In those circumstances, I do not believe the complainant would have been in any mood for sex. I accept her evidence. From her description of the accused's behavior towards her on that day and having regard to his remarks to her that he was only interested in releasing his sperm inside her, it appears that the accused was bent on having sex with her that day whether she liked it or not.
    
42. On the basis of her evidence, I am satisfied beyond reasonable doubt that the accused had sexual intercourse with the complainant in September 2008 without her consent. Accordingly, I find the accused guilty of count 1 of the indictment.
    

Count 4.

43. Again, the issue in relation to count 4 is one of consent, the accused having admitted in his record of interview and in his dock statement that he had had sex with the complainant in February 2009.
    
44. The Crown's evidence is that sometime in February 2009, the complainant went to have her bath in the river at Arohane village. It was getting dark at that time and she estimated the time to be around 6pm. She had walked to the river holding a torch and a walking stick. She needed a walking stick because her knees were hurting at that time.
    
45. Having had her bath, she came up to a level place at the side of the river. It was then that the accused came and tapped her at the back. She recognised the accused. At that time, her torch fell to the ground so she picked it up and wanted to go away but the accused told her to wait and, at the same time, grabbing her hands. She said she knew instantly the accused wanted to have sex with her. She said she was not interested in having sex so she tried to pull her hands away but the accused held them tightly. He then pulled her towards a log and pushed her down onto it. She sat down on the log. The accused then took off his trousers, widened her legs and inserted his penis into her vagina. After ejaculating into her vagina, he put on his trousers and then left. As he was leaving, he told the complainant not to tell anybody about the incident warning that he would kill her if she did. The complainant then walked home. She did not tell anyone about the incident because she was fearful of the accused.
    
46. In his record of interview, the accused admitted having sexual intercourse with the complainant on a log at the side of a river at Arohane at about 8pm in the first week of February 2009[9].
    
47. However, in his dock statement, he said that he had sex with her on a log at a rubbish dump. He said he went to the complainant's house at about 7pm and asked her to have sex with her. He said she agreed and asked him to go and wait for her at the rubbish dump. He went there and the complainant followed him to that place. When she arrived, she threw away a plastic of rubbish that she was holding and then came to him. She suggested that they move further from the road. They moved away from the rubbish dump and came to a log. She sat down on the log. He then started to touch her breasts. She pulled up her skirt. He went down between her legs and then had sex with her.
    
48. The picture which the accused tried to paint by his dock statement is that the complainant was a willing partner in this sexual encounter. Unfortunately, I do not believe that accused. The inconsistencies in his record of interview and his dock statement are irreconcilable. I find the accused's evidence devoid of any credibility and therefore I reject his evidence.
    
49. I accept the evidence of the complainant. The circumstances surrounding that incident clearly show that the complainant was not a willing partner in that sexual encounter. First, she was an old woman and she regarded the accused as her grandson due to the marriage of Janet (her cousin) to Thomas (the accused's granny). Second, her knees were hurting so that she had to use a walking stick to support herself as she went to the river to have her bath. Third, she had just had her bath. In these circumstances, I find it hard to believe that an old woman with a painful knee would be interested in having sex with the accused, whom she regarded as a grandson, at a dirty spot at the side of a river at night after having already had her bath.
    
50. I am satisfied beyond reasonable doubt that the accused had sexual intercourse with the complainant without her consent on a log at the side of a river at Arohane village as alleged in count 4. I therefore find the accused guilty of rape upon the complainant as alleged in count 4 of the indictment.
    

Count 5.

51. I now return to count 5.
    
52. The complainant's evidence in relation to count 5 is that she was asleep by herself in Janet's kitchen one Saturday night in February 2009. That night, the accused came into the kitchen and touched her on her hips. His hands were cold. She called out and asked who was touching her. The accused did not respond. He just sat down on the complainant's bed and pulled her blanket from her. He then grabbed her hands.
    
53. The complainant tried to pull his hands away but he was too strong for her. She was lying down facing upwards. She tried to turn around but he turned her back. He then held her legs and widened them. She told him she did not want to have sex. The accused tried to pull down her skirt but she held onto it strongly. As a result, the skirt got torn at the front. The skirt was tendered as exhibit "P5". It was torn at the front. This confirms the complainant's evidence about her skirt been torn as a result of the pulling.
    
54. The accused then sat on the complainant's legs and widened them. He then tried to insert his penis into the complainant's vagina but his penis was not strong enough so it did not go in. According to the complainant, the accused's penis was not strong because he was too drunk.
    
55. Despite saying that the accused's penis was too weak to go into her vagina, she mentioned at one stage in her evidence that she felt that the accused's penis had gone into her vagina.
    
56. However, later on in her evidence, she denied that his penis had entered her vagina. She said his penis was too weak so it did not go in. Instead, she said that the accused had inserted his fingers into her vagina and had pulled them out aggressively thereby causing severe pain to her vagina.
    
57. She said that because of the pain she had called out to Janet twice that night but Janet did not respond. She said that as soon as the accused had left, she went to Roslyn Tauni's house called out to Roslyn to bring a lamp so she could see the injury caused to her vagina. After inspecting her vagina, the complainant did not go back to Janet's kitchen but slept with Roslyn in her house until morning. She told Roslyn that the accused had indecently assaulted her.
    
58. The complainant's evidence that the accused was in the vicinity of Janet's kitchen where the complainant was sleeping was confirmed by Janet who said in evidence that the accused came to her canteen that night and sat outside her canteen.
    
59. Janet said that the accused was drunk and came along the road to the canteen playing a tape recorder and singing along with it. She said that the accused came and sat down outside her canteen for a brief moment and then disappeared. She did not know where he had gone to. She confirmed having heard the complainant calling out her name twice that night but said that she did not respond because she was angry with her husband.
    
60. Roslyn Tauni had also confirmed in her evidence that the complainant had come to her house that night and had asked her to bring a lamp. She said she brought a lamp and the complainant then inspected her vagina. She said that the complainant had told her twice that the accused had indecently assaulted her.
    
61. In his record of interview, the accused initially said that he slept at a place called Waimagamagarisi on the night during which the incident occurred[10]. He also admitted having a tape recorder that night[11].
    
62. However, later in the record of interview, the accused changed story and admitted that he came to Janet's house at around 4.30am that morning[12]. When asked where he went after he left Janet's house, he said he went to Margaret's house[13]. He denied going to the kitchen where the complainant was sleeping[14]. Despite this denial, he later admitted that he went into the complainant kitchen where the complainant was sleeping. He said he went in there because it was raining.
    
63. In his dock statement, he admitted that he had had some drinks at a bottle shop that night and was walking along the main road when it started to rain. At that time he was coming to the kitchen where the complainant was sleeping. He said because of the rain he went into the house. He said the door was open. He went in and sat down. He said he touched the complainant's legs as he was pushing his hand along the building.
    
64. The accused then said the complainant then called his name when he touched her and placed two pillows onto the bed, one for her and the other for him. He got down on to the bed and got under the blanket with the complainant. He began playing with the complainant's body and breasts in order to arouse himself.
    
65. Unfortunately, he could get himself erect. He tried to push his penis into the complainant's vagina but without success. He then got down from the complainant and then started playing with her body again. This time he got erected. He climbed on to the complainant again and then he had sex with her. After having sex, he told the complainant not to tell anyone about what they did.
    
66. I have said earlier that the accused was an untruthful witness. His evidence had no ring of truth around it. It shows that the accused is not a person whose words can be trusted. I reject his evidence outright.
    
67. On the other hand, I am satisfied that the complainant was a truthful witness. However, the inconsistency in her evidence in regards to the issue whether or not the accused's penis had penetrated her vagina has created doubts in my mind as to whether penetration had indeed occurred. I am not satisfied to the required standard that penetration had occurred on this occasion. As such, the accused must be given the benefit of the doubt. I acquit him of the charge against him in count 5.
    
68. However, under section 160 of the Criminal Procedure Code ("CPC"), a person charged with an offence may be convicted of having attempted to commit that offence although he was not charged with the attempt.
    
69. On the evidence, I am satisfied beyond reasonable doubt that the accused had intended to rape the complainant that Saturday night but did not succeed only because his penis was too weak due to the effect of the alcohol which he had consumed that night. I am also satisfied beyond reasonable doubt that the complainant was not willing to have sex with him on that occasion. Pursuant to section 160 of the CPC, I convict him of attempted rape as prescribed under section 138 of the Penal Code.
    
70. The verdict of the court is therefore as follows:-
    

[a] Count 1 - Guilty.

[b] Count 2 - Not guilty.

[c] Count 3 - Not guilty.

[d] Count 4 - Guilty.

[e] Count 5 - Not guilty of rape, but guilty of attempted rape.

[f] Count 6 - Guilty.

THE COURT
______________________
James Apaniai
Puisne Judge

^[1] R v Karibe-Puni [1967-68] PNGLR 388.
^[2] R v Howard [1966] 1 WLR 13; R v Lang (1976) 62 CrAppR 50; R v Karibe-Puni [1967-68] PNGLR 388.
^[3] R v Oluboja [1981] All ER 41 (referred in R v Iroi [2004] SBHC 30).
^[4] [1841] EngR 86; (1841) 9 C&P 722 (at p. 724); [1841] EngR 86; 173 ER 1026 (at p. 1027).
^[5] See Record of Interview, Q&A 25 to 31.
^[6] See sections 7 and 18 of the Evidence Act 2009.
^[7] Section 31, Evidence Act 2009.
^[8] Ibid, Q&A 30.
^[9] Record of Interview, Q&A 35to 39.
^[10] See Record of Interview, Q&A 16 to 18.
^[11] Ibid, Q&A 19.
^[12] Ibid, Q&A21 and 22.
^[13] Ibid, Q&A 23.
^[14] Ibid, Q&A 24.