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R v Gege [2021] SBHC 114; HCSI-CRC 292 of 2021 (25 August 2021)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 292 of 2021

REGINA

V

JONAH GEGE

Date of Hearing: 23, 24 and 25 August 2021
Date of Judgment: 25 August 2021

Mr. A Meioko for the Crown
Mr. B Ifuto’o for the Accused

VERDICT

1. The Accused Jonah Gege is charged with one count of rape contrary to section 136F (1) (a) and (b) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. He pleaded not guilty to the offence.
2. The Accused is the brother in law of the Complainant. His wife is her sister. The Complainant is aged 19 and lives with her family in Barakoma Village, Vella La Vella in Western Province.
3. The events which gave rise to the charge arose on 9 February 2021. The Complainant in her evidence in chief gave the following evidence. She was at her home preparing food. She thought she was home alone. She was under the family house, had put rice on to cook and was peeling bananas when she heard the Accused calling her. He was in the kitchen and told her to come quickly while no-one is around to have sexual intercourse. She refused saying she did not want to go to him. She continued to prepare the bananas. He again called for her to go to him. Again she refused saying “Jonah I am not going to come over to you”. He then went to where she was pulled her right arm with both his arms, pulling her to the kitchen where he pushed her on to the ground. She was wearing trousers under her skirt. He tore them in the area of her crotch. He had pulled his own trousers part way down his legs. He then spread her legs and had sexual intercourse with her. She said she was feeling overpowered. She was unable in spite of several attempts by the prosecutor, to describe the trousers.
4. She said that while the Accused had sexual intercourse with her, her uncle PW2 came past and saw the Accused on top of her. When the Accused saw the PW2 he immediately got up and left.
5. In cross examination the Complainant changed her account dramatically. She said she was preparing the bananas in the area next to the kitchen. She was asked and denied that she had pulled up her skirt exposing her private parts. She said when Jonah called her to go to the kitchen she went to the corner of the kitchen. She agreed that she partly pulled up her skirt and lay down on the floor. She agreed that the Accused then pulled his trousers down part way and had sexual intercourse with her. While they were having sexual intercourse PW2 came past and saw the Accused. The Accused did not jump up as she had previously said but simply got up from her. He pulled his trousers back on. She remained in the kitchen. She knew that PW2 would report what he had seen to her parents and that she would get in trouble. She agreed that the Accused had not pulled her and that she had gone to the kitchen by herself. She denied she had agreed to have sexual intercourse with the Accused. She agreed that her sister would be angry with her and also agreed that she was not wearing any trousers. She said she was only wearing a skirt.
6. In re-examination the Complainant confirmed that no-one had told her to go to the kitchen, she also confirmed that the Accused had not pulled her.
7. The Crown called PW2 who confirmed he had seen both the Accused and the Complainant when they were having sexual intercourse. His evidence was consistent with observing consensual sex. He asked the Accused what was going on and was told “nothing”. He spoke with the Complainant but he did not give any evidence of seeing any signs of distress. The Court found PW2 to be an impressive witness who was able to give detailed evidence about what he did, what he saw and what he heard. Significantly his attention was drawn to the kitchen because he realized someone was in there, not because he heard anything that would indicate distress. Once the Accused had left, the Complainant had the opportunity to speak with him about what had happened. She made no complaint to him at all. The evidence of what he observed was consistent with the Complainant being engaged in consensual sexual activity with the Accused. It is largely consistent with the account the Complainant gave in cross examination.
8. PW3 was equally impressive. She is the mother of the Complainant. The Complainant spoke with her when she returned from fishing after dark. She said the Complainant had been crying and she asked her what had happened. The Complainant gave her an account consistent with her evidence in chief. However, it was inconsistent with what the Complainant described in cross examination.
9. Crown counsel has helpfully referred the Court to the case of R v Peni Banga HCSI CRC 122 of 2017, where the Chief Justice said: “The law on fresh complaint is that it is admissible to show consistency of the conduct of the complainant. Such complaint can only be used as evidence of the consistency of the conduct of the prosecutrix with the story told by her in the witness box and as being inconsistent with her consent to that of which she complains.” The Chief Justice applied the reasoning of the High Court of Australia in Kilby v R [1973] HCA 30 which said, of the complaint: “It is not probative of the facts complained of, nor even lack of consent, but only of the credibility of the prosecutrix”.
10. The distress shown by the Complainant could equally be from the knowledge that she would be in trouble once her family found out that she had engaged in sexual intercourse with the Accused, her brother-in-law. She also said she knew her sister would be angry with her. The purpose of the evidence of PW3 was her evidence of fresh complaint as an exception to the rule against hearsay. The evidence is permitted to be led to show consistency but what the Complainant said to her mother cannot be evidence of what actually happened nor can it be said that because she told her mother it must therefore be true. The Court notes that the Complainant herself has given an account which contradicted the account she gave her mother.
11. The Complainant was possibly evasive when giving evidence to the prosecutor. The Court has considered whether that was on account of her coming from Vella La Vella, with limited education and with pijin as her second language. However, in cross examination she was much more forthright. She had no difficulty answering questions. The cross examination was not one where she would simply agree to propositions put. She confirmed what was being asked of her. An example is the proposition: “You did not wear any trousers”. Her answer was: “Yes, I was only wearing a skirt.” This was significant because in evidence in chief, although she could not describe the trousers she said she was wearing she had said that he had torn the trousers and indicated that he had torn them in the crotch area.

Onus and Standard of proof

12. As this is a criminal trial the onus of proving the essential elements lies on the Crown throughout the trial. There is no onus on the Accused. The standard of proof required is proof beyond reasonable doubt, that is, so that the Court is sure. It is not enough for the Crown to prove the Accused is possibly guilty or even probably guilty.
13. The Defence has referred to an extract from Regina v Iroi [1991] SBHC where Muria J, as he then was, said: “I remind myself that the burden is on the prosecution throughout to satisfy the Court beyond reasonable doubt of the guilt of the accused. If there is doubt, slight though it might be, the accused must be given the benefit of that doubt.”

What then has the Crown proved to that standard?

14. Identification is not in issue. The Accused is well known to the Complainant. He is her brother-in-law. He spends his time in the same village where she lives.
15. At the start of the trial the Defence confirmed that the issue was not whether there was sexual intercourse but whether the sexual intercourse was without the consent of the Complainant.
16. The Complainant described sexual intercourse between herself and the Accused. There was no challenge to that by the Defence. I am satisfied beyond reasonable doubt that the Accused had sexual intercourse with the Complainant.

Consent

17. There are two aspects to consent. The first is the Crown must prove that the Complainant did not consent to sexual intercourse. There is a very real issue about this. The second is once the Crown has proved that the Complainant did not consent, the Crown must prove that the Accused either knew she was not consenting or that he was reckless as to the lack of consent.
18. Consent is a positive thing, it is not the absence of struggling or shouting out although struggling and shouting out can be strong evidence showing a lack of consent. Consent may be given by someone who is in a position to understand the significance of what a Complainant is consenting to. However, a consent that may be given and later be regretted. A reluctant consent is still consent.
19. Taking the evidence of the Complainant as a whole, she has said that the Accused called her to come and have sexual intercourse with her. She later said that no-one called her. The Accused did not go and pull her, she went to the kitchen. She was not wearing trousers, but was wearing a skirt. She lay on the floor of the kitchen and lifted her skirt. The Accused then had sexual intercourse with her. She did say in cross examination that she did not agree to have sex with him. Her actions tell a different story. Once she had been discovered having sex with the Accused by PW2 she knew she was in trouble with her family. She knew her sister would be angry with her. She may well have regretted having sex once she was discovered. It is possible that she did not consent however the Court cannot conclude that it was even probable that she did not consent. Bearing in mind the standard an onus of proof, the Court must ask itself, has the Crown proved beyond reasonable doubt that she consented. The answer to must be no.
20. As set out above the Crown has an even greater hurdle. It must prove beyond reasonable doubt that the Accused knew she was not consenting or was reckless as to the lack of consent. On the evidence from the Complainant herself he has asked her to go to him for sex and she has gone and lain down and lifted her skirt. He has then had sexual intercourse with her until disturbed by PW2. Although it appears that the events of 9 February 2021 were part of an ongoing sexual relationship between the two, the Court is not called on to decide that issue. There is no direct evidence of that but on the evidence put before the Court, such an inference is compelling. Having said that, this Court makes no finding on that issue.
21. On the events as described by the Complainant there was no basis to conclude that the Accused knew she was not consenting except for the fact that he is married to her sister. Posing the question the Court must ask itself, “has the Crown proved beyond reasonable doubt that the Accused either knew she was not consenting or that he was reckless as to the lack of consent. The answer to that must be no.
22. It follows that the Crown has not discharged the onus on it. There is a doubt as to whether the Complainant consented and equally a doubt, if she consented, that the Accused knew she was not consenting or was reckless as to such consent.
23. The Accused is therefore acquitted on the charge of rape.

Order of the Court

1. The Accused is not guilty of the charge of rape.

By the Court
Justice Howard Lawry