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R v Sive [2025] SBHC 38; HCSI-CRC 213 of 2024 (28 March 2025)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 213 of 2024

REX

V

ERNEST SIVE

Date of Hearing: 18 February 2025 (Closing submission)
Date of Judgment: 28 March 2025

Ms Waisanau and Ms Bosokuru for the Crown
Mr Kwalai for the Accused

JUDGMENT

1. By information filed 23/8/2024, Mr. Ernest Sive (Ernest) was indicted for rape of a small boy named James Goldie Tebabaki contrary to Section 136(F)(1)(a) and (b) of the 2016 Act. The particulars of offence alleged that Ernest Sive, at Talise, Central Kolaridge, Honiara, on an unknown date between 1^st January 2020 and 31^st December 2020, had sexual intercourse with James Goldie Tebabaki (James) by inserting his penis into his anus.
2. I arraigned Ernest on the day of trial on 8/10/2024. He entered a not guilty plea. The prosecution called its witnesses. The core issue I must determine is – “Whether or not Ernest had anal sexual intercourse with James?”
3. The prosecution’s prime witness is James (complainant). The other witnesses are Lula Mome (mother of James), Siru Mamupio (James’s aunt) and Dr. Celestian Tofuramo. Prosecution also tendered by consent 5 exhibits.
4. I will focus on James the prime witness. Sexual offences are secret crimes. The crucial witness is often the complainant. The victim’s evidence is so crucial that the law has done away with the need for the victim’s evidence to be corroborated (Evidence Act 2009).

James – Complainant’s evidence in chief

5. On the afternoon of an unknown date in the year 2020, James, Ernest, James’s mother Lula Mome and his aunt Siru Mamupio were staying at his granny Ron’s house, at Talise, Central Kola ridge, Honiara.
6. James gave evidence about how Ernest had had anal sexual intercourse with him that afternoon inside Ron’s bedroom as follows: -
   • (i) James and Ernest were outside at the veranda, next to the kitchen watching movies. James’s mother was at the kitchen sink washing the plates. James’s aunt Siru was outside the house sitting on the hammock at the five-corner tree.
   • (ii) Ernest called James to follow him into Ron’s room. James followed Ernest into Ron’s room to continue watching movies. Whilst inside the room Ernest had anal sexual intercourse with James.
   • (iii) Ernest told James to take off his trousers. James refused. Ernest took off James’s trousers. Ernest took off his own trousers.
   • (iv) Then Ernest told James to bend down, lean forward and put his hands on the bed in front of him, with his back to Ernest. Ernest pushed his penis into James’s anus standing at the back.
   • (v) James said he felt Ernest’s penis penetrate his anus, for just a little while (lelebet time, no long time). James said Ernest’s penis went into his anus just a little bit. James did not shout or escaped. Ernest warned James not to tell his mother and threatened to cut him with a knife, if he did, before the two of them went outside.
7. From Talise, James and his mother moved to Gilbert Camp (last quarter of 2020) and later to Valbros by the year 2022. Whilst staying at Gilbert Camp, James was attending school at Sharma. At Sharma school, James could not control his faeces. He would experience wetness in his trousers because of his uncontrolled running faeces. Students would bully him.
8. The problem of uncontrolled running faeces and wet trousers continued at Valbros. James’s mother asked him, why he cannot control his running faeces. Then James told his mother about what Ernest did to him at Talise, when they were staying with his granny Ron. James did not tell his mother early because he feared that his mother would argue with Ernest. He did not report to his mother early, because he feared his mother would get angry with him. Hence, he prolonged reporting to his mother until the year 2022.

James’s evidence in cross examination and re-examination

9. At the commencement of defence counsel’s cross examination James was basically answering all questions in the affirmative. I initially thought that James was confused or that he was tired. Later, I realised that James was answering the questions to the best of his recollection. He answered some awkward questions very well.
10. After a lengthy re-examination due to constant objections from defence counsel, one area of confusion James answered very well was, whether other boys were at the Talise house when Ernest took him into Ron’s room to have sexual intercourse with him (see analysis below). Another example was his answer to defence counsel’s question that at no time did Ernest ever have anal sexual intercourse with him. His answer surprised me when he said; “One time!” It was a short, simple and sharp answer with much confidence. All his other answers were with the same confidence, though he took time to answer some questions due to the unfamiliar court process.
11. James said that on the same day of the incident, other men were with Ernest, and him at the veranda of Ron’s house at Talise, watching a movie on a laptop. Those other men were Taghila, Vaera, Atuna, Menda and Greeny. James also said his granny Ron was with them at the house. They were all watching movies until the laptop’s battery was flat.
12. Towards the end of his evidence amidst heavy objections and interactions from defence counsel, James clarified that all the other boys had left the house when Ernest took him into Ron’s room and had anal sex with him. I gathered this was in the afternoon of the unknown date of the incident.
13. Defence attempted to weaken James’s evidence on the identity of the offender. However, defence’s own questions affirmed that James knew Ernest very well. Defence counsel asked James and he affirmed that Ernest is a family man. He lived at Pangoe with his wife and children and that sometimes James would accompany Ernest to his Pangoe residence to play with Ernest’s children. James was not mistaken about Ernest’s identity. James knew Ernest very well as a salesman for his granny Ron. Ernest frequently comes to Talise house and they would tell funny stories together.
14. Two areas defence weakened James’s evidence were (i) on the same day that Ernest took James into the bedroom, James’s mother was at the kitchen sink washing the plates and (ii) that the other boys including Ron were also at the house.
15. In re-examination crown did not manage to repair James’s weakened evidence concerning the same day Ernest took James into the room, his mother was at the kitchen sink washing the plates. And his aunt Siru was outside at the 5-corner tree on the hammock. Hence it was not possible for Ernest to rape James. James also gave contradictory evidence that his mother was at the sink outside the house washing clothes. This contradiction undermines the prosecution’s case.
16. Regarding the presence of the other boys, crown managed to repair James’s undermined evidence that the other boys were also present at the house when Ernest took James into the room. Hence it was not possible for Ernest to rape James. James clarified in re-examination that the other boys had left after they watched movie together and after the laptop turned off. James and Ernest re-charged the laptop and continued watching movie after everyone left. Then at that point Ernest took James into Ron’s room and had anal sexual intercourse with him.
17. All the other boys including Ron left the house by the time Ernest took James into Ron’s room in the afternoon. James’s mother was at the kitchen sink or at the sink outside and his aunt Siru was outside the house, at the five-corner tree on the hammock. Ernest and James were at the veranda, watching movies on the laptop.
18. During the crime scene visit, I noticed that Ron’s house at Talise was small and lacked space. You enter through the main exit door in front, then walk right into the kitchen (sink) and the veranda, before going to the corridor to the two small sized bedrooms and a shower room. The veranda adjoined with the kitchen and only separated by a short walling as high as your belly. Someone standing at the sink can actually see clearly anyone at the veranda to his/her right facing towards the direction of the main Kolaridge road on the hill-top.
19. The veranda is very close to the kitchen sink. Ron’s bedroom is the first room immediately adjoining the veranda as you walk down inside the small and narrow corridor. You have the kitchen sink, veranda, the corridor and Ron’s room adjoining the veranda. The kitchen, the veranda, Ron’s room and the corridor leading to the three rooms are all inadequately sized or cramped. Ron’s rented apartment downstairs is small and not spacious.
20. I am left wondering; “Could Ernest have possibly taken James into Ron’s room and had anal sexual intercourse with him when James’s mother was inside the house at the kitchen sink washing the plates and James’s aunt Siru was outside the house at the five-corner tree on the hammock?”
21. Noting that the kitchen sink, veranda and Ron’s room are all cramped into a small house, I am left wondering whether it was possible for Ernest to have anal sex with James, knowing his mother was inside the house at the kitchen sink and his aunt was outside on the hammock. The hammock at the five-corner tree is located right opposite Ron’s room and the veranda, about 9/10/11 meters away. Ron’s room has a curtain. You cannot see through. But there is still somebody around outside the house.
22. The other area of the prosecution’s evidence I am also left wondering about is; “Whether or not Ron’s room was locked that afternoon, when the incident allegedly happened?”
23. Prosecution’s evidence through James, James’s mother and aunt all said that Ron’s room was not normally locked. It was usually left open, whenever Ron goes out, because the padlock was defective. On the other hand, Ernest gave evidence that Ron usually locked his room because he stored his belongings including money, he earned from fish sales inside his room.
24. Furthermore, I noted from the evidence that Ron has a wife and a child, but the wife was away that afternoon. Ron’s wife does not live permanently with them at Talise due to some family issues.
25. Due to the contradictory evidence, I am left wondering whether Ron’s room was left open on the afternoon of the alleged incident. In terms of the prosecution’s evidence through James, James’s mother and James’s aunt, I exercise caution about biasness and neutrality. The mother and his aunt have a relationship interest to give evidence that support James’s evidence to ensure, James’s story wins the case for the prosecution.
26. Ron was the only person who could clarify this contradictory evidence. Ron was not called to give oral evidence. His statement to the police admitted by consent (Exhibit PE1) did not address the issue of Ron’s defective padlock. Generally, I am not sure whether Ron’s door had a defective padlock and was always left open during his absence.
27. Specifically, I am not sure whether Ron left his room open when he went out on the afternoon of the day of the alleged incident. “Can a businessman (Ron selling fish) or can a married man (Ron had a wife and a child) or can a professional (Ron a lawyer) just leave his room unlocked in a house that is crowded?”
28. I heard evidence from James in cross examination that the people residing with Ron around the time of the incident were; Taghila, Vaera, Atuna, Menda, Greeny, Siru, James and his mother. There were around 9 people (inclusive of Ron). Ron has a wife and a child. For the size of Ron’s house which I observed during the crime scene visit, I can say that the house was overcrowded. Even with 9 people, a small cramped 2-bedroom house is already overcrowded.
29. The doctor’s evidence revealed that there was weakness of muscles around the perianal area probably caused by penetration (push penis into anus). This is why James experienced uncontrollable excretion. But there could be other causes as well the doctor said.
30. The other problem area with the prosecution’s evidence was that the prosecutor was leading the primary witness (James) during examination in chief and re-examination. Defence counsel raised objections. I had to intervene on a few occasions. “Was the prosecutor putting the evidence in James’s mouth?”

Conclusion and Orders

31. I can convict the defendant on the evidence of the complainant without corroboration (Sections 7, 18 and 19 of the Evidence Act 2009). On the complainant’s evidence alone, I am already left with doubts, as discussed above. In assessing James’s evidence and the prosecution’s case as a whole, I am satisfied the defence has raised reasonable doubt on the evidence the crown presented before the Court. Where slight doubts still linger at the back of my mind, however trivial the doubts are, I must give the benefit of the doubt and acquit the defendant (Regina -v- Tafilanga Snr (2007) SBHC 98; HCS-CRC 329 of 2005 (11^th September 2007).
32. Prosecution failed to discharge its onerous duty to prove the allegations against Ernest beyond reasonable doubt. Accordingly, I acquit Mr. Ernest of the allegation of rape.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE