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Regina v Soloseni [2011] TVHC 5; CRC 01 of 2011 (13 May 2011)

IN THE HIGH COURT OF TUVALU
AT FUNAFUTI

Criminal Jurisdiction

HC. Crim. case no. 01/2011

Between:

Regina/Crown

V

Starchel Soloseni
Defendant

D Gorman with Ms Niko for prosecution
I Isala for accused

Heard: 5th – 10th May 2011
Decision: 13th May 2011

Judgment

Starchel Soloseni is charged with four offences – rape, indecent assault, assault occasioning actual bodily harm and common assault.

Particulars

(The accused) sometimes on 11th and 12th April 2008, on the Ship (Nivaga II)

Rape Unlawfully had sexual intercourse with Ms Sonia Dahl without her consent

Indecent Assault Unlawfully and indecently assaulted Ms Sonia Dahl

Assault Occasioning

Actual bodily harm Unlawfully assaulted Ms Sonia Dahl occasioning her actual bodily harm

Common assault Unlawfully assaulted Ms Sonia Dahl

All charges arise out of the same incident while Nivaga II was on the way from Nukufetau Island to Funafuti. The ship was packed with passengers returning from the school sports on Vaitupu Island. Passengers were asleep all over the place with many sleeping in what were called during the hearing "alleyways". I had a view of the interior of the ship. Most useful was to inspect room 11 where the action took place. The alleyways are narrow, the stairways (one could almost call them ladders) steep. My overall impression was of confined space.

The prosecution tendered, by consent, a plan of the ship. Witnesses marked on the plan where they were at particular times. None has helped me much. I have found the evidence of movements and times confused and confusing. This has not mattered. What counts is the overall impression I have from the evidence of all witnesses.

The accused was 19 in April 2008; now 22. He has since married in New Zealand and became a father two weeks ago.

The alleged victim, Sonia Dahl, was born on 21st March 1990. Her father is Norwegian, her mother Tuvaluan. At the time of the incident Sonia was living with her relatives here in Tuvalu.

Sonia's aunt, Mrs Tagisia Efata, Mrs Efata's younger son, a young female cousin and Sonia travelled to Vaitupu Island to watch the School Games. The incident occurred on the way back to Funafuti. Nivaga II had called at Nukufetau Island, spent sometime there. She sailed for Funafuti on the evening of 11th April. Mrs Efata and Sonia settled down on the main deck next to a large wooden box (or trunk) painted orange. Lying on the box with his wife was Filoitama Salesa, the co-accused who has since been convicted of raping Sonia Dahl that night.

[The Chief Justice, the Hon Gordon Ward, tried Filoitama Salesa and convicted him. In the course of his judgment he made findings concerning Starchel Soloseni. Starchel Soloseni, having himself been charged with rape, applied for the disqualification of the Chief Justice. The Chief Justice did disqualify himself from hearing the case. I was appointed a judge of the High Court to hear it. I have avoided looking at the papers in Salesa's case, either the Judge's notes or his Judgment or his Sentencing Remarks so that I came to the hearing knowing nothing of the facts until the Crown Opening. Mr Isala for the accused admitted that Salesa (known in this trial as "the co-accused") had been convicted of the rape of Sonia Dahl. The conviction of the co-accused may not be used as evidence against the present accused. I was in some doubt as to what use, if any, to make of my knowledge about Salesa's conviction, even though the conviction was admitted by the Defence. After discussion with counsel I concluded that if I were to accept beyond reasonable doubt, as I do (for reasons that I shall give later) the evidence of Sonia Dahl that the co-accused has raped her and the circumstances in which he did, I could have regard in this trial to what he had done.]

Sonia was introduced to the co-accused who is related to her in some way. Mrs Efata asked him to look after Sonia. [The co-accused did not give evidence in this trial.]

During the evening a young man, Ali was, with Mrs Efata's permission, chatting to Sonia. Mrs Efata went to sleep. When she woke up neither Sonia nor Ali was there.
Sonia had asked the co-accused to go with her to the women's lavatory: it would not be safe to go on her own.

Up to this point in the narrative there is no dispute as to the facts. From now on there is dispute so this is a good time to consider credibility of the principal actors.

I found Sonia Dahl a good and credible witness. She gave her evidence coherently even though in some distress. From what she said and how she said it and from her demeanour generally, both in examination in chief and in cross examination, I have concluded that she was telling the truth and I may rely on her version of what happened.

The accused to his credit gave evidence. He gave it well enough but in the light of all the evidence his account of what happened is inherently improbable. His evidence does not raise any doubt in my mind as to the accuracy of Sonia's evidence.

Although I have made findings which seem to contrast Sonia and the accused, I make clear that it is not merely a matter of which version I accept. The accused does not have to prove anything. To convict the accused I must be satisfied beyond reasonable doubt on all the evidence that he is guilty, not that I prefer Sonia's version to his.

With the exception of the Rev. Salanoa whose evidence I shall consider separately I accept that all the witnesses were doing their best to give an accurate account of what they saw and heard. I have already used the words "confused and confusing". They apply to a greater or lesser extent to the evidence of all the witnesses. Impossible to reconcile all the accounts. Rather like the four Gospel accounts of the Crucifixion and Resurrection; not possible to reconcile the times and events but the overall theme is the same in each Gospel – that Our Lord was crucified, died, was buried and rose on the third day. So here on the secular, mundane level. One can never expect the evidence of witnesses at a trial exactly to co-inside. If it does them one suspects that witnesses have colluded. We each see things differently but the general thrust of all the evidence may be the same. The overall theme in this trial of all the evidence is that Sonia looked unhappy, distressed or was resisting both the co-accused and the accused when she was with one or the other. No witness said she looked happy and accepting; either the witness noticed nothing untoward or some unhappiness or resistance.

I return to the facts. Sonia asked the co-accused to go with her to the women's washroom. He went with her. She went inside and into a cubicle. She noticed her underpants were soiled. She had just finished menstruating. She hung the under pants behind the door intending to wash them. She heard someone come in

From my notes:

".... no one else in there; Told him to go out. Hit me – dragged me out – struggling – dragging, pushing me, dragging me downstairs to lower deck into a room. Holding me from behind, etc. Saw 2 trainees – yelled out for help – they laughed at me. He pushed me – knocked on door – a guy came out – he pushed me inside room. Beat me up – raped me. Not sure how long in room. I resisting etc. After raped me – he stood up; heard him say "Come inside she's in here". Co-accused went out; accused came in and locked door......

I asked him for help as I'd just been raped. I told him I'd just got raped by co-accused. Lying on floor. Co-accused – sexual intercourse on floor. Accused closed door and told me he wanted to spend some time with me as he had something to tell me. Said I wanted to go back to Aunty. Angry – started kicking me. Still on floor – he came laid on top – tried to push him off "Please stop" Struggle for a while. Put his finger into vagina. Really hurt me. Started to rape me. Intercourse without my wanting it. Put his penis into my vagina. He finished; got up; left room. I was in pain [Witness tearful] I kept telling him "No". Stop doing it". He ejaculated – I could feel it. Lying on floor crying. He turned and said "Thank you" and left. I was lying on the floor. Lights off when it happened; turned on before he left. Wearing bra only. Clothes had been ripped off by co-accused. Had left under-wear in toilet – finished menstruating – wanted to wash panties. I could hear noise of engine.

Another guy came in – sat on bench – wanted to talk to me. Told him I'd just been raped. Asked him to get help. Said "No". Still wanted to talk. "Imagine you were lying here and had just been raped by 2 men. How would you feel?". Only wearing bra. "Ok. I'll let you go". I put on sulu and left the room."

The Accused was with her and took hold of her. She struggled and got away; ran upstairs and met her cousin Leitu, then her Aunty, Mrs Efata was understandably furious. At that time she could has no idea of what had happened. All she knew was that Sonia had disappeared. Although Mrs Efata at first denied she had hit Sonia she later acknowledged she may have. I find she did. The bruising and other injuries which Dr Puakena Boreham described could have been caused either by the co-accused or by the accused or by Mrs Efata. I must give the accused the benefit of the doubt that he caused any of them and find him Not Guilty on counts three and four.

Mrs Leitu Frank (from my notes):

"Accused came; asked him whether he saw Sonia. He said he didn't know as Sonia had gone with Filo. I still remained there; Sonia ran towards me from front of boat. She was crying and grabbed me. She tried to talk to me but I could not understand what she was saying. I tried to comfort herl; she explained that Filo and the accused, had raped her. Not long after her Aunty arrived and asked Sonia where she had been and slapped her. Outer aspect of left upper arm. Not a hard slap. Sonia and Aunty left. Sonia looked – untidy, hair, face looked red, she looked afraid. I later went with her while she had a shower. She was crying."

Peneueta Selupapelu (from my notes):

"Went into a room to sleep, after midnight; Rm11. Mate told me to use it. Heard someone knocking not long after. I opened the door. Saw Sonia and Filo. Filo holding Sonia's hand – by left wrist. Sonia trying to pull her hand. Filo was drunk. Filo talked to me. They came into the room I went out............ I went out talking with Peter, a trainee............Sonia trying to pull her hand away..............Talking to Peter a long time. I went to toilet. Didn't see accused............. (Later) saw accused standing outside Rm11. I standing there too. Can't remember if I talked to him or not. Peter with me. We there not long and went upstairs. Filo came up from that room. After that I heard Sonia's voice saying "No, no" and also crying. I went to where I'd been talking to Peter; he there, too.

Accused came out of room. He said, "You go into the room" I went in. Sonia was sitting on sofa. Wearing sulu and sleeveless top. Hair tidy and bruise on her chest – can't remember on right or left. Tears on her face. "What happened about our conversation earlier in the evening?" She said she wanted to have a shower as she felt pain on her body. She was speaking angrily to me and said if he was a lady and she raped him wouldn't get angry. She left."

Mr Isala tendered Peneueta's statement of 13th April to the Police (Exhibit D2). In it Peneueta said:

"I tried to talk to her and I was shocked when she said, "what if you're a girl and I am a man, and I raped you, aren't you going to get angry?" There I realized that she was raped by Filo and Starchel. I felt sorry for her that I left and went out the room."

Before I read the statement I had hesitated as to whether what Sonia had said to Peneueta amounted to a complaint of rape. When I read in the statement that that was how Peneueta took it, my hesitation disappeared. What Sonia said to him was an immediate complaint at the first opportunity. It is admissible. She made later complaints which are in evidence; strictly inadmissible but no objection taken. I need rely only on the immediate complaint to Peneueta.

The accused's caution statement is Exhibit P2. DC Andrew Puga took the statement and proved it. The accused signed it as accurate. These four paragraphs are most significant:

"Thereafter I went into the said cabin where Sonia was and asked her if we could go to our Cabin number 4, and she replied that she was tired. I kept arguing her to go with me to our room and she kept saying that she tired. I then forced her by pulling her hand and escorted her to our cabin; I was taking the lead that time whilst Sonia followed me. I held her with my left hand when pulling her to follow me but I could not remember which of her hand I pulled.

We went to our cabin and it was lock, therefore we went down again to that same cabin where I took her. From therein we sat on the bed and I asked to have sex her. She said, "Enough, I'm tired". I kept asking her to have sex with me, and she said that she was very exhausted. I stood up, turned the light out of that room, and then pushed her to lie on the bed. I removed her sulu and found that she's wearing no panty.

I opened the zip of my shorts and put my penis into Sonia's vagina. At that particular time, my penis was erecting and I felt it went through into Sonia's vagina when I have sex with her. Sonia at time did not move or stuggled; she did not shout or cry.

While we have sexual intercourse, I put both of my hands into her breastplate (bra) and touched or massaged repeatedly both of her breasts. At this time, I was on top of Sonia having sex, I kissed her down and she kissed back to me."

What the accused said comes close, if it does not amount to an admission of forced intercourse. Not much different from Sonia's account. At the least the accused's account shews great insensitivity as to the girl's feelings. The accused was acting heartlessly, preferring his own pleasure to her wishes. The accused forced himself on Sonia when he must have known she didn't want to have sex.

In evidence the accused acknowledged the accuracy of the statement. The accused swore that the sex was consensual: Sonia made up the story of rape to excuse herself, to satisfy her family.

The Prosecution called nine witnesses and the Defence six. I shall not canvass the whole of the evidence. Suffice to say that the evidence of the accused and the other defence witnesses does not raise a reasonable doubt as to the accuracy of Sonia's account corroborated as it is, to a greater or lesser extent, by the other Crown witnesses.

Counsel each made helpful written submissions as their closing addresses. Mr Gorman made submissions as to

"a number of factors about the accused version of events which simply deny belief

"If the accused had been in an intimate relationship with Ms Dahl he would have been extremely angry that she was in a secluded room alone with another man.

It is highly unusual and improbable that Ms Dahl would want to have sex with the accused immediately after having had sexual intercourse with another man (particularly when she had been raped by another man).

Why would Ms Dahl suddenly want to have sex with the accused when she had not communicated with him for several months and had not spoken to him previously on the boat."

Matters of inference but quite strongly against the accused. I accept the force of the submissions.

There is only one other matter I should mention. The Rev Salanoa Tinilau is a much respected pastor in the Ekalesia Kelisiano Tuvalu (EKT). He is related to both families. He intervened in the matter in an effort to bring about a reconciliation between Sonia and the accused and their respective families. About a fortnight after the incident he called the accused and Sonia to his office. Sonia did not know the accused would be there. The pastor left the room to allow Sonia and the accused to settle it between themselves. Without their knowing it he listened in from the next room. He gave evidence that he heard Sonia apologize, saying she had made up the story of rape. He came back into the room. Sonia reiterated that she had been raped but the pastor had made up his mind.

Either an uncle or another gentleman came in. He and Sonia went straight from the pastor's office to the police where she made a complaint against the pastor:

From my notes of the pastor's evidence:

"They informed me Sonia had lodged a complaint against me. I clearly heard what Sonia said. I told the police, "You do your job; I do my job." I told the police to stop the case as I know the truth.... I don't want that case to proceed."

None of this had been put to Sonia in cross examination: no hint of it. I allowed the Crown a case in rebuttal.

Mr Gorman recalled Sonia and recalled DC Andrew Puga who proved the complaint to the police.

The whole aim of the criminal justice system is to put the jury – or if no jury the Judge alone – in the best position to hear and evaluate all the evidence before coming to a conclusion. The pastor was not and is not in that position. I disregard his evidence and his opinion. I do not believe Sonia said to the accused the she had made up the story of rape.

The prosecution has proved beyond reasonable doubt against the accused all the elements of the crime of rape.

I find the accused guilty of rape. I regard the second count of indecent assault as subsumed in the verdict on the first count. I do not enter a verdict on it. The accused is Not Guilty on counts three and four.

Dated: 13th day of May 2011

Justice Robin Millhouse QC
JUDGE