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

Kepsy v R [2022] SBHC 16; HCSI-CRC 567 of 2021 (3 May 2022)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 567 of 2021

TREVOR KEPSY

V

REGINA

Date of Hearing: 9 November 2021
Date of Decision: 3 May 2022

Mrs Hilly for the Crown
Mr B Ifuto’o for the Defendant

Judgment

Introduction

1. The Appellant was convicted after trial on two counts, the indecent assault, contrary to section 141(1) of the Penal Code, of his daughter in 2013 and incest, contrary to section 163(2)(b) of the Penal Code as amended by the Penal Code (Sexual Offences)(Amendment) Act 2016, of the same daughter in 2019. He has appealed those convictions.
2. The Appellant has argued three grounds of appeal.
   • 2.1 That the learned Magistrate failed to properly consider and correctly apply the criminal standard of proof.
   • 2.2 That the learned Magistrate erred in law in drawing an inference that the Appellant was guilty when he asked to be voluntarily placed in a cell.
   • 2.3 That the Magistrate failed to properly address or consider the contradicted evidence by Crown witnesses.

Ground 2

3. It is convenient to commence with the second ground. The day after the events giving rise to the second count the Appellant’s second cousin [PW5] saw the Appellant in the morning before going to work. After work he went looking for the Appellant and learned that relatives of the Appellant’s former wife were looking for the Appellant and had told PW5 that the Appellant had raped the complainant. PW5 located the Appellant at Central Police Station. He said that he told the Appellant that the complainant had said the Appellant had raped her. He said the Appellant was afraid. He said the Appellant suggested “that if we could just put him in the cell.”
4. PW5 later took the Appellant to Henderson where he asked the Appellant to tell PW5 the truth. He said: “Trevor [the Appellant] said he took her to Panatina field, he only touched her body but did not do anything. When asked if he had poked her private part “he denied poking, but he only touched the vagina of his daughter.”
5. The Magistrate drew an inference from the evidence that the Appellant had suggested that the Police put him in a cell. At paragraph 138 of the judgment, the Magistrate said: “There is no clarification whether the touching of the vagina is by hand or by using his penis or by using his tongue. However, it is arguably safe to conclude that the defendant’s actions especially the fact that he asked to be voluntarily placed in a cell demonstrated the actions of someone who is guilty.”
6. In the circumstances does the suggestion (being the words used in evidence) that the police place him in a cell have as their only reasonable inference that the Appellant had engaged in sexual intercourse with his daughter? The Magistrate recognised that there are other possibilities by his use of the words, ‘arguably safe’. The evidence was that the Appellant had learned that the complainant had complained that he had raped her and that relatives of the complainant’s mother were looking for him. There was evidence that he was afraid.
7. The Court of Appeal in Alagere v Reginam [2015] SBCA 22 considered the drawing of inferences and said from paragraph 25:
   • 25. “Whilst inferences properly made on admissible evidence often form the basis of a conviction in the absence of direct evidence, those inferences must be based on admissible evidence and must be the only reasonable inference available in the circumstances. In this trial inferences have been made on evidence not properly admitted. In addition they are not always the only available inference.
   • It is important, in our view, where it is necessary to draw inferences that any inference made is made, firstly, on findings of facts resulting from evidence properly admitted. After the fact finding exercise then, in addition, any inference made when it is adverse to an accused in a criminal trial must be the only available inference. That is to say that there is no other inference available consistent with innocence. Anything less than this is no more than an educated guess. A useful discussion of the typical warning to the jury on this can be found at SHEPHERD v. THE QUEEN [1990] HCA 56 in particular in the judgment of Dawson where he said:-
   • “It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence.”
8. The defence case as put in cross examination was that there had not been any indecency between the Appellant and the Complainant and that he had never made such an admission to anyone. As he knew that the complainant had told others he had raped her and that the relatives of the complainant’s mother were looking for him and that he was afraid, there were clearly inferences that could be drawn from the suggestion of being placed in a cell that were consistent with innocence. The Magistrate was therefore not entitled to draw an inference of guilt from that evidence.
9. This was a case where the Court was required to consider the uncorroborated evidence of the complainant. Sections 18 and 19 of the Evidence Act provide:
   • “18.Subject to any other written law, it is not necessary that evidence on which a relies be c be corroborated.
   • 19.A court need not exercise caution before convicting an accused in reliance on the following evidenc
   • (a)evidence
   (b)evidence ;given by aim of anof an offence againrality; or
   • (c) evidence in relation to an oe against morality where there was delay in reporting the cthe crime.”
10. In a case such as the present a Court does not need to have corroboration before convicting. Equally the Court does not need to exercise caution before convicting an accused on the evidence of a child or one evidence of an offence such as those before the Court.
11. In the present case there was the evidence of the complainant, the recent complaint evidence given by PW2 and PW3, the admission against interest given by PW5 and the doctor’s evidence. The prosecutor asked the complainant about what she said to PW2. On page 57 of the Notes of Evidence the complainant was asked by the prosecutor “Did you tell Kyla that your father fucked (had sexual intercourse) with you?” The whole point of recent complaint evidence is to allow the trier of fact to assess the consistency of what the complainant has said to the recent complaint witness with the evidence given in Court. To ask such a leading question before PW2 gave evidence without leave infringed section 52 of the Evidence Act which provides:
    • 54.(1) A leading question must not be put to a witness in examination-in-chief or in re-examination unless –
    • (a) the court gives leave; or
    • (b) the question relates to a matter introductory to the witness's evidence; or
    • (c) no objection is made to the question and (leaving aside the party conducting the examination-in-chief or re-examination) each other party to the proceeding is represented by a legal practitioner; or
    • (d) the question relates to a matter that is not in dispute; or
    • (e) if the witness has specialised knowledge based on the witness's training, study or experience, the question is asked for the purpose of obtaining the witness's opinion about a hypothetical statement of facts, being facts in respect of which evidence has been, or isnded to d to be given.”
12. When PW2 gave evidence she said that she was told that the complainant’s dad did wrong to her. PW3 was recorded as saying the complainant had said that the Appellant wanted to rape her. PW 3 had also said in her Police statement that the complainant did not tell PW3 that the Appellant had raped her. The prosecutor must have been aware of these differences at the time he asked the leading question.
14. There are other more fundamental problems with the evidence of PW3. Having elicited from the complainant that she had not told PW3 at the time she met PW3 going to the shop, the prosecutor led evidence from PW3 that the complainant had indeed told her that the Appellant raped her at that time. Thereafter it seems that PW3 gave evidence not of what the complainant had told her but of what PW2 had told her. That is hearsay upon hearsay and does not come within the exceptions to the hearsay rule set out in section 118 of the Evidence Act. The evidence of what PW2 said to PW3 should not have been led.
15. The problems with the recent complaint evidence have been set out because of the issues raised by the Appellant regarding the inconsistencies within that evidence.
16. The first charge had the particulars of the offence set out as follows [with the sole change being the replacing of the name of the complainant with the initials ‘JB’]:
    • “That Trevor Kepsy of Pagoe Village, North East Choiseul, Choiseul Province, at Honiara in Guadalcanal Province, on an unknown date between the 1^st January 2013 and 31^st December 2013, did unlawfully and indecently assault a girl namely [JB] by licking her vagina.”
17. The particulars of the charge have been set out because it is apparent that in the trial the Magistrate, received inadmissible evidence. The complainant gave evidence of a further indecency which was said to follow after the licking of her vagina. She described the Appellant rubbing his penis on her vagina which she said was not painful although in her Police statement she had described it as painful.
18. The Appellant faced no charge in relation to an allegation of indecency by rubbing his penis on the complainant’s vagina. The evidence was not relevant to proving any element of the first count. The evidence was highly prejudicial. Section 138 of the Evidence Act provides:
    • “138. In a criminal proceeding, the court must refuse to admit evidence
19. When assessing the probative value of the evidence the Court must consider section 20 of the Evidence Act which provides:
    • “20. (1) All relevant evidence is admissible in a proceeding except evidence that is –
      • (a) inadmissible under this Act or any other law; or
      • (b) excluded in accordance with this Act or any other law.
    • (2) Evidence that is not relevant is not admissible in a proceeding.
    • (3) Evidence is relevant for the purposes of this Act if it has a tendency to prove or disprove anything as a result of the determination of a proceeding.
20. The evidence led does not have a tendency to prove anything at all relevant to either the first or second count. It appears to have been led solely for its prejudicial value and in the absence of it relating to a charge should not have been led.
21. Counsel for the Appellant cross examined the complainant about this evidence because to the Police she had said it was painful yet in Court she said it was not. The defence submitted that this was an inconsistency that the Court ought to have taken into account in deciding the credibility of the complainant. The Magistrate was alive to the issue that the evidence of rubbing was not part of the charge the Appellant faced. He noted that there was no medical evidence called as to whether the action would cause some injury to a child aged only 7 years. It is this comment that led to the submission by counsel that it was for the Crown to call such evidence and not responsibility of the Appellant.
22. The Magistrate was correct in finding that no medical evidence was called to support the submission that rubbing the adult penis on the vagina of the complaint when she was aged 7 would cause injury. That comment did not transgress the rule that it is for the prosecution to prove each and every element of each offence beyond reasonable doubt. The onus of proof did not shift to the Appellant.
23. The Appellant however goes further. He referred to the passage at paragraph 38 where the Magistrate said: “The admission by the defendant to PW5 with respect to the touching the vagina of the complainant was also not contradicted by the defendant as he opted to remain silent”.
24. While the statement is factually correct the Appellant submits that it reflects a failure to apply section 10(2)(a) of the Constitution which provides:
    • “(2) Every person who is charged with a criminal offence
    • (a) shall be presumed to be innocent until he is proved or has pleaded guilty;”
25. The right to silence is fundamental to the Criminal Justice system. To remain silent does not add to the prosecution case. It merely underlines the principle that the prosecution has brought an accused person to Court and must prove the allegation. A good illustration is to look at the effect of the defence giving or calling evidence. There are three possibilities: The Court may accept the evidence from the defence in which case the accused will have proved his innocence although he has no need to do so. A second possibility is that the Court is left in a position of being unsure whether to accept the evidence or not in which case the defence has raised a reasonable doubt and should be acquitted. A third possibility is that the Court rejects the evidence of the defence as being untruthful. The Court must not then assume guilt but must then put the evidence from the defence to one side and turn to the remainder of the evidence, then make an assessment whether the evidence which is accepted takes the Court to the point of being sure of each essential element that is required to be proved by the prosecution. The inference drawn by the Magistrate must be viewed in light of the factors set out above.
26. The end result is that the appeal must be allowed. The Magistrate drew an inference that was not available to him to draw. The Court admitted evidence that ought not to have been admitted leaving the Court with the evidence of the Complainant, the evidence of a partial admission to PW5 and the “recent complaint” evidence with its contradictions.
27. The inference drawn by the Magistrate may well have affected the finding of credibility on both counts. Therefore, the convictions on both counts are quashed. In the circumstances it is not necessary to determine Ground 1 or Ground 3. The Court is of the view that there should be a fresh trial in spite of the inconvenience to the complainant and the witnesses called at the trial.

Orders