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R v Olosivoa [2024] SBHC 127; HCSI-CRC 78 of 2018 (9 October 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 78 of 2018

REX

V

PHILIP OLOSIVOA

Date of Hearing: 10-11 September 2024
Date of Judgment: 9 October 2024

Luza F A & Mae I B for the Crown
Kwalai D for Defence

JUDGMENT

Maina PJ:

1. Defendant Philip Olosivoa is the charge of sexual intercourse contrary to section 136F (1) (a) and (b) of the Penal Code Cap 26 as amended by the (Sexual Offences) Act 2016.
2. Defendant pleaded not guilty on the charge of the alleged incident on 20^th October 2017.
3. Upon that, a trail was then conducted and the complainant and two other witnesses testified in the court.

Facts

4. Complainant Lilian Dovo (17 years old) she was part of a youth group from Boroni that came over to Honiara for fundraising at the site near Henderson Police Station on 19^th October 2017.
5. The fundraising went on and finished after midnight 1am on 20^th October 2017 and the Complainant and cousin brother Peter, Godwin and steven walked or made their way to aunty Rebecca’s house below or at Henderson area.
6. They went and, on their way, Peter and complainant stopped at the betelnut stall on the road side for Peter to eat while Godwin and steven continued on to Rebecca’s house.
7. Complainant was tired to wait so she decided to follow the short cut to Rebecca’s house.
8. On her way to aunty’s house, she lost the way as it was her first to go there and she met a man who told her that he knew the house would take her to the house.
9. They went and reached the beach and the man allegedly raped the complainant.

Proof of Evidences

10. In any criminal trial, the burden is on the prosecution and standard of proof is beyond reasonable doubt that the accused has committed the offence^[1]. The prosecution is required to prove all the necessary elements of the offence to that standard.
11. The duty to prove the offence charged rests with the crown and at no time during the trial does that burden shifts to the defendant.
12. If the court has any doubt even as slight as it may be, the court must rule the favour of the accused and he or she must be acquitted.
13. In this case, the prosecution must prove to the required standard are the following elements:
    • (i) identity of the accused,
    • (ii) has sexual intercourse,
    • (iii) without consent;
    • (iv) that he knew or was reckless as to the lack of consent.
14. The defendant decided to remain silent in the trail but raise an issue on element (i) with the identity but do not challenge the elements (ii) (iii) and (iv) and therefore the evidence on the elements is uncontested.

The Issue

15. The issue is on the identity of the culprit and whether Crown have proved beyond reasonable doubt that the accused was the person who raped the complainant.

Crown Case

16. The Crown evidence is that the complainant met the Defendant (whom she just met at the first time) at the night, led or took her to the beach and he had sexual intercourse with her.
17. The incident was allegedly happened at the night after the fundraising and when the complainant was trying to go to aunty Rebecca’s house below or at Henderson area.
18. Complainant followed Peter, Godwin and Steven to Rebecca’s house. On their way she and Peter stopped at a stall along the side of road and Peter bought and ate the betelnut while Godwin and Steven continued walking to Rebecca’s house.
19. Complainant stood and waited for Peter but he did not come quickly and she was tired to stand there. Complainant then decided to go and she followed the short road to Rebecca’s house.
20. She then followed the road but lost her way and she looked on; she saw a man was sitting under a house.
21. This man came out to her and asked if she wanted to see anyone. Complainant told him that she had missed the road and if he can assist her to go to aunty Rebecca’s house.
22. The man that the complainant did not know and just met for the first time at the night told her that he knew and will take her to the house.
23. The man and complainant then followed a road and as they walked, he told her that he was a Form Seven student at KG VI.
24. They went and reached the beach and this man pulled down the complainant’s clothes and he fucked her on the sand beach.
25. Complainant wanted to shout but the man told her that the area belongs to the people from Malaita and if she shouts, he will kill her and held her mouth.
26. After they had sexual intercourse, both came up to his onetalk’s house where this man went in and she heard him talking to the people there in Guadalcanal dialect.
27. This man came back to the complainant with a skirt which he gave it to her and they stayed there until nearly the day-break and then went out again to the road.
28. As they walked it was almost daybreak and the man showed her the Rebecca’s house and she then went to the house.
29. Complainant went and only Rebecca was at her house and Rebecca asked her where she had been at the night.
30. Complainant told Rebecca of what had happened to her that night. Rebecca asked her if she knew where that man lived and Complainant said she knew and it was around the area.
31. Rebecca and complainant with aunty Lusia went to a house and they arrived at the house the defendant was sitting on the chair and the Complainant pointed at him but the defendant said it was not him.
32. The Crown called two other witnesses, Peter Meke and Rebecca Mae. Peter Meke stated that they went to Rebecca’s house that night and on the way, he stopped at the road side and he bought the betelnut and ate it at a stall.
33. Rebecca Mae gave evidence and stated that on 20^th October 2017 in the early morning at about 6am when she went to open her store, she looked at the road and saw Lilian (complainant) was walking to her house with a person.
34. Rebecca asked Lilian, where she went to at the night and Lilian had told her that Philip had lied to show house but they went on a different road and went down to the seaside. Lilian said the defendant’s name as Philip and he was a Form 7 student at KG VI.
35. Rebecca said that Lilian told her about the incident when the defendant had sexual intercourse with her. Later, they went to a Police Woman’s house and Lilian pointed to a man sitting on a chair. She said the defendant told them that he will give some money.
36. In the final submission the Prosecution submits that Defence had fail to observe the famous rule on Browne v Dunn when they fail to cross-examine the complainant on the evidence of sexual intercourse with her that it was a different person and not the defendant. They claim that this is unfair to the complainant.

Defence Case

37. The defendant decided to remain silent and no witness were called. Defence submits that it is not the defendant who had sexual intercourse with the complainant. Prosecution has failed to provide evidence on an element of the person or the identity of the man who had allegedly raped the complainant.

Analysis

38. With the Browne v Dunn rule which the Prosecution referred to and submits that Defence fail to cross-examine the complainant on her evidence. It is noted however, the rule depends on the circumstance of each individual case and in this case, the Defence decide not to do so. On that basis or if the witness’s evidence is not cross-examined then that evidence is uncontested.
39. It all depends on the context or setting of each case as noted above and how the Browne v Dunn rule work is stated by Lord Herschell in the Browne v Dunn (6) case when he said:
    • “... I have always understood that if you intend to impeach a witness whilst he is in the box to give him an opportunity of making an explanation which is open to him; and, as it seems to me, that is not only the rule of professional practice, but it is essential for fair play and fair dealing with the witness.......
    • All that I am saying is that it will not do to impeach the creditability of a witness on which he has not had any opportunity of giving an explanation by reason of there, having been no suggestion whatever in the course of the case that his story has not been accepted.”
40. With the rule it is vital to note and understand that cross-examination of the witness is not mandatory.
41. In the simple term, the witness on the witness box can be cross-examined if it would help or provide for the defendant’s case or the defence. It is not obligatory to cross-examined a witness and the consequence is as stated earlier that when the witness is not cross-examined his or her evidence is uncontested. The court will then require to assess that evidence in the case.
42. With this case, the Defence submits that the prosecution did not prove that the defendant was the penetrator or the element on the identity of the defendant.
43. The Defence submits that the complainant’s evidence is not enough and only provide these as fact on the identity of the defendant:
    • (i) She saw a man sitting under the house and he came to her,
    • (ii) As they walked on the road that said he was a Form 7 student at KG VI,
    • (iii) She recognizes the defendant when she went back with Rebecca to a house about half a kilometer away and complainant pointed to him when he was sitting on the chair.
44. And as stated above, it is only the circumstances in (i) and (ii) that seems to make up or be the evidence on the identity of the perpetrator. The evidences that rather discloses no identity or component of a person or defendant.
45. With the circumstance in (iii), it was done later when Rebecca and complainant went to a house but no descriptions of such person were stated in the evidence and how she recognizes that it was the defendant.
46. Rebecca’s evidence that she was there when the complainant pointed at defendant only shows she was at that very moment when the complainant pointed at the defendant when they went to the house at the day time.
47. Apparently, Rebecca’s evidence was on complainant’s responses when Lilian was questioned by her to where she went that night. It was on what the complainant said to have allegedly occurred at the night. I also noted from Rebecca’s evidence that Lilian had told her the defendant’s name as Philip but Lilian did not say any name in her evidence or the Defendant had told her that his name is Philip.
48. With the obscure and conflict of the Rebecca’s evidences to the court, I rejected her evidences.
49. The Prosecution case is based only the complainant’s evidences at the trail which the Defence did not cross-examined her on what she had told the court.
50. The Defence did not cross-examine the complainant as her do not disclose the identity of the defendant as the perpetrator.
51. Cross-examination relates to the issues that attacks the credibility of a witness which the counsel of the Defence decides to withheld as the one of element of rape, the perpetrator or identity of the defendant is not proved by the prosecution.
52. The evidence of the complainant on the alleged rape is dubious and on the fact that the complainant was the first time to meet the perpetrator, it was at the nighttime and the only identity of the defendant she can provide is that she saw a man under the house and with where he went to school.
53. It is obvious that the Defendant was a stranger to the complainant, it was between 1am and 5am at night and the light was not bright and no identification parade under section 81 of the Evidence Act.
54. Further with a person, whether he is big, small, tall, short, old or young and may be others should be essential but these were not adduced by the complainant in her evidence.
55. It raises a doubt in my mind as to the truthfulness of her evidence on the identity of the defendant and on that basis, I am not satisfied beyond all reasonable doubt that the defendant was the perpetrator who allegedly had sexual intercourse with complainant on the beach. Accordingly, I hereby acquit the Defendant.

Order of the Court

1. The Philip Olosivoa is acquitted of the charge of rape contrary to section 136F (1) (a) and (b) of the Penal Code (cap 26) as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. I direct that he is to be released from custody
3. Right of appeal

THE COURT
Hon. Justice Leonard R. Maina
Puisne Judge

^[1] Section 12 of the Evidence Act