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R v Iromea [2024] SBHC 193; HCSI-CRC 512 of 2023 (13 December 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 512 of 2023

REX

V

MATHIAS IROMEA

Date of Hearing: 10 October 2024 (Written Submission only)
Date of Sentence: 13 December 2024

Ms Naqu and Ms Oroi for the Crown
Ms Kukura for the Defendant

JUDGMENT

1. Mr. Mathias Iromea (“MI”), Ms. Betty Faye Maelau (“BM”) and Ms. Elsie Amoa (“EA”) are close family members, residing at Betikama (“LDA area”), East Honiara, Guadalcanal Province. Ms. BM and Ms. EA will call MI their uncle. MI is the blood brother of BM’s mother and the cousin brother of EA’s mother. BM and EA complain that their uncle MI sexually abused them between the years 2022 to 2023.
2. Ms. BM complains that MI had sexual intercourse with her twice, between 1^st January 2022 and 31^st December 2022. MI is charged with two counts of sexual intercourse with a child under 15 years, contrary to Section 139 (1) (a) of the Penal Code Act (Cap 26), as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 (No.3 of 2016) – hereafter called “the 2016 Act”.
3. Ms. EA complains that MI had sexual intercourse with her on three separate occasions, between 1^st January 2022 and 31^st January 2023. MI is charged with one count of persistent sexual abuse of a child contrary to Section 142 (2) and Section 139 (1) of the 2016 Act.
4. Mr. MI pleaded not guilty to the multiple charges in relation to the multiple complaints from Ms. BM and Ms. EA. The issues I must determine are: -
   • (i) Whether or not MI had sexual intercourse with BM twice?
   • (ii) Whether or not MI had sexual intercourse with EA on three separate occasions?
5. The prosecution called 7 witnesses and tendered 6 exhibits by consent. Only 3 witnesses could be said to be truly crucial. They are Ms. BM, Ms. EA (complainants) and the three doctors.

Ms. Betty Maelau

6. Ms. BM complains that MI had penial sexual intercourse with her, on two separate occasions between 1^st January 2022 and 31^st December 2022. On the first occasion (Count 1), the particulars of offence alleged that MI at the LDA area, Betikama had sexual intercourse with BM by penetrating her vagina with his penis.
7. BM’s evidence on this was succinct according to my notes. The transcript omitted parts at the commencement of the evidence from pages 16 to 17 (Wit: Maelaua BF - XN Ms. Naqu). The transcript got “Maelau’s” name incorrectly spelt as “Maelaua”. “Maelaua” and “Maelau” are two different surnames from Malaita. I have to read my notes, with the transcript. And where there is inconsistency, or omissions, my notes will prevail.
8. I summarise BM’s evidence in terms of the first incidence in Count 1 as follows: -
   • (i) On the afternoon of the day of the incident (unknown date), BM was staying alone in her family home, at LDA area, not far from MI’s house. During the crime scene visit, we drove from the boom gate just after Lunga Solomon Power Station, all the way right to the bottom of the hills, where MI, his two victims and their families reside. They live in separate houses but not far from each other. It was a settlement where they lived mostly in temporary buildings (see photographs 1, 2, 3 and 8 of Exhibit PE3). The evidence also shows that they live at LDA area, and are engaged in farming, selling their garden produce at local markets in Honiara City.
   • (ii) MI came and called BM to go over to sweep inside his kitchen house. MI is BM’s uncle, the blood brother of her mother, Margaret Fay Maelau. BM went over to her uncle. As BM was sweeping, MI exposed his penis and showed it to her. BM ran away, but MI shot her with a stone. BM fell to the ground. MI came and carried her into his kitchen house, laid her down, took off her clothes, laid on top of her and had penial sexual intercourse with her. After he had penial sexual intercourse with her, he pushed his index finger into her vagina. Before BM left his house, MI said: “I will poison your father, so that you can come and stay with me and then I will spoil you”.
   • (iii) BM said she wanted to run away but MI threatened to kill her with a knife. After MI had sex with her, he told her to go back and not tell anyone, otherwise he will kill her with a knife. BM said she felt pain in her vagina.
   • (iv) Doctor Fanalasu gave evidence about the examination he carried out on BM’s vagina, where he noticed “stretched hymen” and “whitish discharge” (See Exhibit PE6). In clarifying the stretched hymen, Dr. Fanalasu said, the hymen (a soft small tissue at the vagina’s hole or front of the road/canal passage where the baby will come out during birth) was observed to be broken, or was broken loose or was cut open.
   • (v) The doctor explained that the possible causes for the soft tissue hymen being cut open or broken loose are hard physical exercises (horse or bicycle rides) or sexual intercourse.
   • (vi) There is no evidence before me that BM was engaged in hard physical exercises, which could exert pressure onto her vagina and tear the hymen. The evidence I heard was that BM’s vagina was penetrated by MI’s penis and index finger.
9. Defence counsel’s cross-examination mostly repeats the evidence in chief and did not focus on undermining BM’s evidence on the first incident (sweeping in MI’s kitchen). Cross- examination concentrated more on the second incident (sexual intercourse in the house when BM went to take fire or at the well when BM went to fetch water). Defence counsel also focused on BM and her mother having ill-motives and making false allegations against MI as revenge because MI reported their father for sexually abusing his own daughters. Their father is now in the correctional centre (prison). I am satisfied with BM’s evidence on the first incident on the required standard. BM gave a clear account and was not undermined in cross- examination. I do not think for one moment that young girls, who are innocent and vulnerable could just come to court and tell lies against their own uncle.
10. BM’s evidence in terms of the second incident in Count 2 is summarised as follows: -
    • (i) BM went to his uncle MI’s house to get fire. MI told her to go inside the kitchen house, where he forced her to lie down, went on top of her and had sexual intercourse with her. Afterwards he also pushed his finger (index finger) into BM’s vagina before she left.
    • (ii) BM felt pain in her vagina. MI threatened to kill her with a knife, if she tells anyone about what he did to her.
    • (iii) On the second incident after defence counsel’s cross-examination, I was left doubting the credibility of BM’s evidence. BM’s evidence after cross-examination disclosed that MI had sexual intercourse with her at the well and/or at his house.
    • (iv) When defence counsel gave BM the option to say which place MI had sexual intercourse with her, she said at his house when she went to take fire. BM changed her evidence on the actual place, where the second incident occurred. I have seen the agreed evidence where BM pointed to the well in photographs 5 and 6 of Exhibit PE3, indicating that MI had sexual intercourse with her next to the well. Because of this contradiction, I have some doubt about BM’s evidence on the second incident. I am left wondering whether MI had sexual intercourse with BM at the well or in MI’s kitchen house.
11. If I have doubt, though slight it may be, I must give the accused the benefit of the doubt and acquit him. Accordingly, I will acquit MI of the second incident in Count 2 of the amended information filed on 9/9/2024. I also noted that the particulars of offence in Count 2 alleged that MI licked BM’s vagina with his tongue. There was no evidence at all from BM on vagina licking.
12. In terms of Issue 1, I found that MI had sexual intercourse with BM only once. Hence, I will convict MI for Count 1 and acquit him of Count 2

Elsie Amoa

13. Ms. EA complains that MI had penial sexual intercourse with her three times at three separate locations in the LDA area, East Honiara, Guadalcanal Province.
14. I will summarise EA’s evidence on the first incident: -
    • (i) On the day concerned EA went with three of MI’s daughters to fetch water at the well. MI’s three daughters left first. EA followed later after having some food.
    • (ii) Somewhere along the bush track (road) MI emerged and held EA’s two hands, and with a bush knife in his hand he pulled her into the bush.
    • (iii) Then MI told EA to take off her clothes. She refused. MI himself took off her clothes. MI told EA to lie on the ground/bush, pushed his penis into her vagina, had sexual intercourse with her and ejaculated outside. MI told EA to go away and threatened to cut her neck with a knife, if she told her parent. EA saw blood in her vagina, stood up and went to MI’s three daughters at the well. EA did not tell her three cousin sisters because she was afraid of MI’s threat.
15. The summary of evidence for the second incident are: -
    • (i) On the evening of the day concerned, EA was selling her produce at the Custom Garden/Burns Creek market, East Honiara, together with her uncle James and aunt Kwaiafu. James and Kwaiafu left first because their market sold out early. EA stayed back to finish selling her produce. EA went home alone in the evening in her uncle Alick’s taxi.
    • (ii) The taxi dropped her at the boom gate just beyond the Lunga Solomon Power Station. EA took the road on the right, leaving out the left junction which goes to Betikama School. From the boom gate to EA’s settlement at the bottom of the hills (LDA area), behind Betikama school, it is approximately 2.3 km. I had turned on the vehicle meter, to measure this during the crime scene visit.
    • (iii) From the boom gate to LDA area settlement, EA had to walk alone in the evening on an isolated road with few garden houses along the way. The garden houses are far from the road. EA met her uncle MI on the road, at the side of the creek. MI had a small knife in his hand. MI grabbed EA’s hand, pulled her into the bush and told EA to take off her clothes. EA refused. He took off her clothes. And told her to lie on the ground. EA again refused. MI pushed EA to the ground went on top of her and had sexual intercourse with her.
    • (iv) MI finished having sex with EA. He stood up and went away with his knife. He warned EA not to tell her parents and threatened to cut her neck with his knife, if she did. She pretended nothing was wrong when she arrived back at her parents’ house.
    • (v) I noted that EA got confused in cross-examination and said that MI and his wife went with her inside the same taxi at the time of second incident (see also paragraph 21 below, where I noted other EA’s confusions as well).
16. In terms of the third incident, the summary of EA’s evidence is: -
    • (i) This time EA, her aunt Mose and her uncle Bala were doing their cassava market sales again at Burns Creek market. Mose and Bala left first because their market sold out early. EA followed them later, after she finished her market sales. She bought a few things. EA met her uncle MI along the same road to LDA area settlement. MI again asked to have sex with her. MI pulled her hand, dragged her into the nearby bush and told her to take off her clothes. She refused. MI pushed her to the ground, took off his own trousers, went on top of EA, pushed his penis into EA’s vagina and had sexual intercourse with her.
    • (ii) He finished sex, stood up, put back his trousers, took his small knife and went away saying that if EA told her parents he will cut her with his small knife.
    • (iii) EA went home after feeling pain inside her vagina. She arrived home, pretending that things were fine, because she was afraid of MI’s threat to cut her with his small knife.
17. It is surprising that in cross-examination, defence counsel was repeating questions on areas already covered in the examination in chief. In doing so, defence counsel was substantially affirming that MI had sexual intercourse with EA on the three separate occasions. When defence counsel turned around to undermine EA’s evidence in chief, she stood firm and unmoved amidst some confusions. I will try to recite some of the questions in cross-examination, repeating and re-affirming the evidence in chief: -
    • (i) Question: “That time where hem fuckem you finish, then you go back, you go lo well ia na, you agree?” (After he finished fucking you, you went to the well, you agreed?”), referring to the first incident.

Answer: After some confusion, EA’s answer was “After he finished fucking me, I took my things and went to the well to fetch water with his three daughters”. ^[1]

(ii) Question: “Why you did not tell his three daughters that you met their father?”

Answer: “Because he stopped me not to tell anyone and threatened to cut my neck with a knife if I did”.^[2]

(iii) Question: “But on the three occasions that your uncle did something bad to you (means had sexual intercourse with you) you just hide it and did not tell anyone, you agreed?”

Answer: “No”.^[3]

(iv) Question: “Elsie the first incident, when your uncle fucked you at the side of the water or side of the road, under the tree, you did not scream?”

Answer: “Bottom of the tree, a little far from the road because he shut my mouth too”. ^[4]

(v) “First time your uncle fucked you he was wearing black long pants, and white cut hand shirt?” to which EA answered “Yes”.^[5]
(vi) Question: “The second incident, he fucked you, he wore the same black long pants and shirt too?”

Answer: “Yes”.^[6]

(vii) “The third incident, he fucked you, he wore the same shirt and long pants too?” to which EA answered “Yes”.^[7]
(viii) “So, every time your uncle wants to rape you, he would wear the same clothes?” to which EA answered “Yes”. ^[8]
(ix) Question: “When he pushed his penis into your vagina, you did not tell him anything?”
(x) Answer: “No, I told him, you are my uncle, do not treat me like your wife. Then he replied and said, if I reported him, he will cut my neck”.^[9]

18. One area defence counsel wanted to cast doubt on EA’s evidence was that the road is a public road and so it was possible that people could see them. Ms. EA’s answer was “No”. During the crime scene visit, I noted that it is a long and isolated road (about 2.3 km from the boom gate at the Solomon Power Lunga power station to LDA settlement at the bottom of the hills). There were bushes and gardens along the way. And a few garden houses along the way but far from the road. These basically confirm EA’s evidence, that the road is isolated with no houses close to the road.
19. Other areas defence counsel tried to raise doubt on are insignificant such as clothes and colour of clothes EA and MI were wearing, knife MI was holding not produced in evidence, MI loved his nieces so much that he cannot abuse them, EA did not make an early report or no report at all to the police and ill-motive against MI fuelling the allegations made in court. What is significant is MI’s penis penetrated EA’s vagina and that is what her evidence essentially focused on. I carry this point further below in paragraph 22. On late reporting, we must know that victims of sexual abuse lived with trauma and fear and sometimes it is sensitive for vulnerable girls to talk openly about their sexual abuse, especially where the perpetrator is their uncle, as in here. Even in court some victims found it hard and sensitive to speak openly and freely about their sexual abuses.
20. I noted during the crime scene visit, that the well is located behind the hills far from their LDA settlement not reachable by vehicle. Their LDA settlement is reachable by vehicle but the condition of the road is very bad, so the taxi can only drop them at the boom gate next to the Solomon Power Lunga power station. They have to walk about 2.3 km to their settlement at the bottom of the hills. The settlement has about 5 houses. MI’s house was burnt down. We used two high Hilux vehicles to reach the settlement and the road was very bumpy and in bad condition.
21. EA remained firm and steadfast in her evidence amidst long, tiresome and strenuous cross-examination from defence counsel. I had to intervene noting that EA was confused and got tired along the way. EA was causing confusion to the Court, when defence counsel was repeating the same things and EA was answering “No”, even though she had already answered “Yes” at the first instance of questioning^[10]. I am satisfied with EA’s demeanour in court and hence doubted not the credibility of her evidence. EA is a confident witness. She recounted her story without difficulty.

Conclusion and Orders

22. So far as rape or penial sexual intercourse is concerned, once a female has given evidence that a male penis has penetrated her vagina, there is nothing else we can say. That is why the Evidence Act 2009 required no corroboration of evidence in offences of immorality given by a child victim. And I can convict without caution on such uncorroborated evidence^[11]. In such cases, the sexual act of penetration is done quickly and in secret. Once there is a lack of consent or there was use of force or threat then normally there is nothing much to talk about in the evidence. Where the victim and the perpetrator are close family members, as in this case, innocent young girls cannot just turn against their uncles, for no good reason at all. This is why I reject defence’s proposition that BM and EA were making false allegations against their uncle due to ill-motive.
23. Three doctors gave evidence in court. Two doctors namely Fanalasu and Moli examined BM and EA respectively after 5 months. Doctor Moli who examined EA said he did not see the hymen any more at its usual location in the vaginal structure, except a scar on the minora of the vagina. It was 5 months after the incidents so the scratch was starting to heal up. Doctor Moli was of the view that the hymen being absent from its normal position at the vaginal opening and the scar, were caused by sexual intercourse. Doctor formed this view because his patient was complaining about sexual intercourse, not about a fall or climbing a tree or hard physical exercises. EA maintained that the first male person to have sex with her was her uncle MI. And MI used force, so it may probably cause injury inside the vagina (minora, in this case).
24. Defence counsel called another doctor (Naqu) to give evidence. The three doctors said many things because they were asked many questions, some of which were irrelevant. One thing that was common in their evidence was BM and EA’s hymen which were torn or broken or absent from its location, which could be caused by factors such as hard physical exercises, climbing, fingering, bicycle ride, heavy running, horse riding, and strong fall against the buttock or sexual intercourse. Doctor Naqu confirmed in her evidence in chief that the most common activity that can cause the “soft tissue hymen” to break is sexual intercourse^[12].
25. In here there were no evidence that BM and EA were having some hard-physical exercises or were climbing some trees or fell and hit the lower parts of their bodies (vagina included) against some hard objects. The only evidence I have is MI penetrated their vaginas with his penis and used his index finger to poke inside BM’s vagina. All three doctors confirmed in their evidence that sexual penetration can tear the hymen, because the hymen is a soft tissue located at the entrance of the vagina (the baby’s road/canal during birth).
26. On the torn or absent hymen, I can conclude on the evidence that BM and EA’s hymen were damaged or torn or broken or not intact or detached or stretched or was absent from its normal position because MI penetrated their vaginas with his penis. It is worth noting that MI is an adult and his victims were very young girls. BM was only 11 years old. EA was 13 years old. I am not too sure if their sexual reproductive system were ready for any sexual activity like intercourse. I am not sure about the size of MI’s penis, except that he is a married man.
27. In all that I say, I am satisfied beyond reasonable doubt that MI had penial sexual intercourse with EA, a child of about 13 years on three separate occasions between 1^st January 2022 and 31^st January 2023. Hence, I will answer Issue 2 in the affirmative and convict MI of persistent sexual abuse of a child. I will convene next Friday to do sentencing submissions.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

^[1] See Wit: Hamoa E - XXN Ms. Kukura, page 29, transcript (middle page). Note that the name of witness is “Amoa” not “Hamoa” as appearing in the transcript.
^[2] See Wit: Hamoa E - XXN Ms. Kukura, page 29 of transcript (bottom of page).
^[3] See Wit: Hamoa E - XXN Ms. Kukura, page 33, transcript (middle of page).
^[4] See Wit: Hamoa E - XXN Ms. Kukura, page 33, transcript (3^rd paragraph down bottom of page).
^[5] See Wit: Hamoa E - XXN Ms. Kukura, page 34, transcript (half way down page).
^[6] See Wit: Hamoa E – XXN Ms. Kukura, page 34, transcript (half way down).
^[7] See Wit: Hamoa E – XXN Ms. Kukura, page 34, transcript (bottom page 34 and top page 35).
^[8] See Wit: Hamoa E– XXN Ms. Kukura, page 35, transcript (half way down page).
^[9] See Wit: Hamoa E– XXN Ms. Kukura, page 37, transcript (bottom of page).
^[10] See Wit: Hamoa E – XXN Ms. Kukura, pages 39 and 40 of transcript where I intervened.
^[11] Evidence Act 2009 (No 11 of 2009) – Sections 7, 18 and 19.
^[12] See Wit: Dr. Naqu A E – XN Ms. Kukura, page 7 of transcript.