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Crown v Bubugali [2022] SBHC 97; HCSI-CRC 424 of 2020 (18 November 2022)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No.

CROWN

V

MATHEW BUBUGALI

Date of Ruling: 18 November 2022

Oligari D B for the Crown
Manebosa SR for the Defence

JUDGMENT

Maina PJ:

Defendant is charge with one count of rape contrary to section 163F (1) (a) (b) of the Penal Code (Sexual Offences) Act 2016.

The Complainant alleged that the Defendant had sexual intercourse was by force or without her consent.

The onus is on the prosecution to proof beyond reasonable doubt that the Defendant had sexual intercourse with Complainant without her consent.

Agreed Facts

Defendant from Makaruka Village, East Guadalcanal and is 27 years old. The victim Virgina Luaverana is from Makaruka Village, East Guadalcanal is 19 years old.

On the 7^th May 2020 at the between Komuboli and Chuve village, East Guadalcanal at around 4am -6am, the Defendant had sexual intercourse with the Complainant.

Facts not disputed

There is no dispute on the date, time and place, Defendant had sexual intercourse with the Complainant.

The issue

Whether the Defendant had sexual intercourse with the Complainant without her consent.

Crown’s Case

Complainant Virginia Luaverena stated in her evidence that before she married with Joseph Koba, she lived or married to the Defendant but they did not married in church or custom. They just lived together and in 2020, they separated, as the Defendant did not want her.

Complainant stated that after the separation, this Defendant used to shout at her in the public places and say that she was the public plate.

The Complainant then met Joseph Koba and they lived together as husband and wife although not married in church or custom.

In the early morning on 7^th May 2020 after slept with Joseph Koba, she and Koba took a walk to catch a truck to go to Makaruka. They followed the road to Komuboli village and they saw the Defendant Matthew Bubugali came out from the banana grew along the road trees and stood on the road.

Defendant shot a first stone and then the second stone at them. He then ran and jumped at them with a bush knife. Defendant kicked his leg and pointed the knife to the Complainant. When Joseph Koba saw the Defendant jumped to us with the knife, he ran away from her.

Defendant tore the Complainant’s shirt and told her to lay down but she did not want to lay down. The Defendant insisted for the Complainant to lay on the ground and he put the knife on her neck. He told her that if she refused he would cut her neck.

Both moved further on the road and Defendant continued to repeat his words or demanded the Complainant to lay down on the ground. The Complainant stated that with this threat of kill with the bush knife, the Complainant could not do anything or gave up and she laid down at bush side of the road.

There, the Defendant pulled out the Complainant pant, he pulled down his trousers and the pushed his penis in the Complainant’s vagina, and he had sexual intercourse with her. Complainant said that not very long when his sperm came out or ejaculated in her vagina.

After the Defendant had sex with Complainant, he told her to stand up and go to her house.

Defence’s Case

Defendant denied had sex with the Complainant without her consent.

He stated in his evidence that on 7^th May 2020 he went to Kobati village and stayed at the side of the church near the sea. In the morning at about 4am, he saw the Complainant and Koba came along at the place. He said that as he saw them, his mind went wrong as Koba took his woman. He then took a stone and shot at them but he did not confront them. They realised the stone shot at them and both ran away. Defendant ran behind them at the coconut trees site, he met Complainant Virginia standing there.

He stopped to her and threw his bush knife and he hit Virginia at her side. He told Virginia that they have married in custom and if she has money to give to him, she may do so before he could take that man (Koba).

He said Virginia told him that she did not have any money and would follow or go with the Defendant. On that or thereafter, Defendant with the Complainant had sexual intercourse and later they went to the Defendant’s house.

Analysis

The evidences is that Defendant came out from the banana growing along the road and he was holding a bush knife. He threw the stone twice, ran and jumped to the Complainant with a bush knife. He kicked with his leg and pointed the knife to the Complainant. Defendant tore the Complainant’s shirt and told her to lay down but she did not want to lay down.

The Defendant put the knife on the Complainant neck and continued demanding her to lay down on the ground. With this threat to her, she laid down at bush side of the road Defendant had sexual intercourse with her.

Defendant admitted that he had sexual intercourse with the Complainant at the side road with consent and it was in the morning at about 4am.

He stated that he saw the Complainant and Koba came to the place and he threw the stones to them. He ran to them and when he stopped them, he threw his bush knife and he hit Virginia at her side. He told Virginia that they had married in custom and if she had money to give to him then she could take that man (Koba).

He said that Virginia did not have any money and decided to go went the Defendant. Defendant with the Complainant then had sexual intercourse and later they went to the Defendant’s house.

I noted the submission by counsel Manebosa on the matters of recent complaint, failing to tell parents the incident and no medical examination produced to the court. However, the evidences in this case is quite clear and it should be for counsel and his client to defend with the evidences that his client had sex with the Complainant with her consent.

Notably, it is also clear from the opening statement by the parties that the issue in the case is consent but Defence counsel contended his submission on the lack of the production of medical examination report. He stick at the report to show the redness of the Complainant’s vagina for his submission on the recent complaint and any injury. It may be so, but what can be inferred from the facts and evidences that the Defendant had used her vagina earlier when she lived with him and later with her new partner. It may not be possible for the doctors to find any redness in the vagina anymore that the defence counsel and his client try to put to the court.

The Crown evidences on the Defendant throwing the stones, putting the knife on the Complainant neck and continue to demand her to lay down on the ground were threats to her. These made the Complainant to lay down at bush side of the road Defendant had sexual intercourse with her.

These are evidences of force or without consent and I am satisfied that there was no consent, when the Defendant had sex with the Complainant and I find the Defendant guilty and accordingly convict him on the charge of rape.

Order of the Court

The Defendant is guilty and accordingly convicted on the charge of rape.

THE COURT
Hon. Justice Leonard L Maina
Puisne Judge