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R v Faifu [2024] SBHC 128; HCSI-CRC 438 of 2022 (9 October 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 438 of 2022

REX

V

JOSEPH FAIFU

Date of Hearing: 23 February – 3 March 2023
Date of Judgment: 9 October 2024

Oligari D & Pellie L for the Crown
Tinoni A for the Defendant

JUDGMENT

Maina PJ:

Defendant Joseph Faifu is charged for sexual intercourse with a child under 15 years contrary to section 139 (1) (a) of the Penal Code (Sexual Offences) Act 2016. He pleaded not guilty to the information

Agreed Facts

The defendant is Joseph Faifu and he comes from Walande Village, South Malaita, Malaita Province.

The victim/Complainant (name withheld) was 3 years old at the time of alleged offending. She was born on 4^th of July 2018.

The complainant’s father is Melvyn Makana and mother is Dorothy Faifu. Defendant is related to the complainant as his niece and elder brother of the victim’s mother.

Complainant mother flew to Australia to work under the seasonal worker program in April 2021.

It is alleged that the defendant had sexual intercourse with victim Jaylyn Faifu Makana who was a child with high vulnerability.

Opening address

At the opening address of the case, the prosecutor stated the Crown’s case is that on unknown date between 1 April 2021 and 31 October 2021, the defendant Joseph Faifu at a material time had sexual intercourse with victim who was a child with high vulnerability.

The Crown said that they will call five witnesses for the case including the victim.

The court had granted the orders sought under section 41 of the Evidence Act 2009 as the victim being a child and vulnerable witness. She had given her evidences on video and closed door to the public

Burden and Standard of Proof

The onus is on the Crown to proof its case and the standard is beyond reasonable doubt.

Issue

Whether the defendant had sexual intercourse with the victim/complainant.

The Crown’s Case

The Crown called only two witnesses for their case at the trail.

On the first day at the trail, the Crown was not able to call the victim to give her evidence. Another witness Jane Tuita came to the witness box and she gave her evidence.

Jane Tuita lived at Banana Valley, White River, Honiara with her three children and her husband’s children. Her husband’s name is Tuita Faifu.

Tuita Faifu have relatives who also lived there in a separate house. With them in the house were her husband’s mum, his sister, Saerai, Timothy, Alex and Martha, Joe (Defendant) and victim girl.

Dorothy is victim’s mother and she had gone for the seasonal work in Australia and she left the victim with them. Victim was about three or four years old.

At certain times the victim went out and played with Jane Tuita’s children and other children at the place of the family.

Jane Tuita stated that when the victim came to her and family for their care, she was sick with body hot and she noticed a strange thing at the girl’s private part.

Jane kept quiet about it and did not tell his husband but in the morning, she went and told Policewoman Tina on what she saw at the girl’s private part.

Police-officer Tina also saw the victim’s private part and told Jane that it was not normal. She told Jane to take the victim to a nurse who also lived at the area to check the girl’s private part.

Jane took the girl to the nurse and when the nurse at looked at the girl’s vagina and she said that there was a hole at girl’s private part. They compared or checked this against another girl’s vagina of the same age who was there but there was no such hole.

The nurse told witness Jane Tuita that it was not normal and asked Jane to take the girl to White River Clinic. She took the small girl to the clinic and the nurses there referred the girl to the Rove Clinic to see the doctor. No report of the doctor was produced as evidence to the court.

On March 2, the victim gave unsworn evidence by the video. The Prosecutor asked her if she understand that she will tell the truth. She stated at the video that she will tell what is true.

The victim stated that she used to go and stay at Banana valley and before her mum Dorothy went to Australia, they lived at Kakabona with her father Melvyn Makana.

She also used to go and stay at White River with Joe (Defendant), grand-ma, Sairana, Martha, Allan and Tina.

Victim stated that when her mum went to Australia, she lived with grand-ma in a house at White River. She recognized the place and bed she used to sleep in the house on the photos shown to her.

This witness said that one thing happened at Jose’s room that Joe told her not to tell anybody. She said that Jose told her that if she do, he would not give her sweet things as chocolate, ice cream, sweet biscuit, twists and others.

This witness then stopped there and did not want to tell or say any more things to the court.

This witness did not response to the examination – in- chief and Prosecutor then decided to stop with this witness. No further witnesses were called and Prosecution closed their case.

The Defence’s Case

The defendant decided to remain silent and called no witness.

Final Submissions

At the close of evidence from both parties, the court asked the counsels to make their brief but none was able to do so. The court then told them if anyone wish to do so they can make written and final submission and to be filed in the court by 4pm. With the time given, the counsels did not file any final submissions.

Analysis of Evidences

Crown’s evidences from Jane Tuita is that when the victim came over for her care, this small girl was sick with body hot and she noticed a hole in the place she describes as “private part” of the victim.

Upon noting this problem, Jane Tuita raised this matter to Policewoman Tina, victim was taken to White Clinic and a referral to the Rove Clinic. No doctor’s examination report was produced to the court. These evidences appear as hearsay and bears no substances and therefore is rejected or not accepted by the court.

Victim told the court that a thing happened at the accused’s room but accused told her not to tell anybody. If she did, he would not give her any sweets from the shops. That is all what the victim said in her evidence and nothing further to the court.

The Crown relies on an inference to a guilt of this accused of the offence with circumstantial evidences with the hole on the private part of victim and a thing when the victim said had happened at the accused’s room.

King CJ in the Case Stated by DPP (No.2) [1993] SASC 4152; (1993 70 A Crim R 323 (SA CC) (at 327) say it well and all when the court deals with circumstantial evidences:

“I would re-state the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case defend upon circumstantial evidence, and that evidence, if accepted, is capable of producing a reasonable mind a conclusion of guilty beyond doubt and is thus capable of causing a reasonable mind to exclude and competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstance case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilty beyond reasonable doubt, or put in another way, could not exclude all hypotheses”

The above principles emphasise that if the circumstantial evidence to be accepted it is capable of producing a reasonable mind a conclusion of guilty beyond doubt.

The prosecution only evidences relates to the hole at the private part of victim and what the victim said had happened at the accused’s room but she did disclose such to the court as evidence. There is nothing further from these.

When Counsel Tinoni put to witness Jane Tuita at the cross-examination, that vagina or private part must or has a hole and what does she meant when she said, a hole at the private part. This witness just said that she saw it and was not as usual to her.

By common knowledge, the main component or what is always referred in the vagina or private part of a female that it must have what is commonly said as “hole” where it is used for mimi or urine. For the purpose of sex by those who are eligible to the extent of the law or for that matter, an entrance or hole is for the penis.

As noted above, the Crown relies on the circumstantial case but the evidences does not event capable in law of supporting a conviction.

The Crown, therefore has not proof its case beyond reasonable doubt and the accused is acquitted on the charge.

Order of the Court

1. The accused is acquitted on the charge.
2. The right of appeal

THE COURT
Hon. Justice Leonard R Maina
Puisne Judge