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Regina v Tebounapa [1999] SBHC 1; HC-CRC 033 of 1997 (9 January 1999)

HIGH COURT OF SOLOMON ISLANDS
Criminal Case No. 33 of 1997

v

WILLIAM TEBOUNAPA

High Court oomon Islandslands
(FRANKI J)
Criminal Case No. 33 of 1997

Hearing: ing: 2 & 3 November 1998
Judgment: 9th January 1999

DP the Crown. Nori for for the Accused

JUDGMENT

(Franui, J): ill> illiaounapa, the accusaccused, is charged with one count of indecent assault, contrary to sectioection 133(1) of the Penal Code (count 1) wo coof rape, contrarytrary to section 129 of the Penal Code (coe (counts 2 and 3). The accused pleaded not guilty to all these counts. The learned Director of Public Prosecutions however applied under section 189(2)(b)(i) of the Criminal Procedure Code to withdraw count 2 on the charge sheet. The application was granted and the accused was acquitted on count 2 accordingly. Counts 1 and 3 arise from events that took place at Gizo in the Western Province during the year 1995. It is more than 2 years ago.

ckground
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The ac is a marriearried man with children who lives in Gizo in the Western Province. He runs an eering workshop there. He lives with his family at that workshop. They eat and sleep there here in an extension behind the workshop. The accused is a working man. He has a family to feed. Besides, the accused also practises custom medicine. This is a service to the community and is free of charge. He has been doing this for 15 years. So he knows his stuff. He treats cancer, yellow fever, broken bones and pains in the body. His principal method of treatment is pressing (massaging) of the body plus bathing in the sea in the early hours of the morning. His wife also assists but under the supervision of the accused. Obviously, people came to know about the service being provided by the accused in custom healing. They came to the accused and sought help from him for their troubles. The accused was only too willing to give them the required treatment. Edna Wesley (the First Complainant) was one of these people.

Thet Complainantt

Tmplainant is a female male who works and lives at Gizo in the Western Province. She was previously a (Housekeeper )at the Paradise Lodge in Gizo in 1995. In December that year she was experienpain in her abdomen. She aphe apparently had heard that the accused could cure sickness by way of pressing (massaging) the body. She then contacted the accused personally and asked him for help. She eventually went to the accused's premises to see him about her health condition. She went there in the evening. The Complainant saw the accused in a small room at the accused's Workshop premises. The accused told her to lay down on the floor of that room. He also told her to remove her clothes except her bra. The accused then commenced pressing (massaging) her belly with oil and slowly moving towards her thighs and vagina. The accused then held her clitoris. He used his 2 fingers to excite her clitoris by rubbing it with his 2 fingers. Whilst doing this, the accused told the Complainant that she must not be frightened. She must believe him for he had been anointed and given power by the chiefs to do the work of treating people who were sick. Then a man came into the room and afterwards the accused stopped. Another time, she went to the accused's premises at 3 am in the morning. She was then taken by the accused's wife to bathe in the sea. They returned to the accused's premises. It was still dark. There was light from a lamp but it was dim inside the room. She was then wearing a skirt and a top. She was also wearing an under-pant and bra. She was lying down face up. The accused moved up her skirt and pressed (massaged) her belly with coconut oil. Nothing more happened and she left the room.

The Second Comant
(Day 1 - 19/12/95)

The other Compnt is Cats Catherine Tura the wife of Joseph Tura. The Compnt was married to her husband in 1993 at Verahue village on Guadalcanal. In 1995, they retu returned to Rannoga, the home of Joseph TIn June of that year, JosepJoseph Tura went to Gizo and found work as a carpenter at the Paradise Lodge at Gizo. The Complainant later joined her husband. In December of that year, the Complainant was also experiencing pain in her abdomen. She was also vomiting and was not eating well. She received treatment from the nurses in the Gizo Hospital but still she was not well. Joseph Tura having been concerned about his wife's health and acting upon what he had heard about the accused, told his wife they should go and see the accused and ask him for help. They went to the accused's premises on 19^th December, 1995. This was the first visit. They got to the accused's premises in the evening but the accused was not there. He arrived later. Joseph Tura andComplainant then spoke to the accused about her sickness. The accused then said it was good good that they came for they were poisoned by custom (cursed) whilst living on Guadalcanal. He explained that this custom poison (curse) would cause fights and divorce and finally one of them would die. The accused then said that he would press (massage) Joseph Tura first. Joseph Tura went into a small room and the accused pressed (massage) him there with coconut oil and then Joseph Tura came out. The next person was the Complainant. She went into that same room. The accused then told her to lay down on the floor in that room. The accused told the Complainant that she was seriously sick and if she did not come to him quickly, she would die the following month. The accused then told the Complainant to remove her blouse to facilitate pressing (massaging) which she did. She was lying face up on the floor of that room. The accused pressed (massaged) her belly, legs and hands with oil. Whilst doing this, the accused told the Complainant that her sickness was very serious and that the accused must have sexual intercourse with her to cure her sickness. If that was not done, she would not be cured and she would die the following month. On being asked by the Complainant whether she should tell her husband about this, the accused said it was not necessary to do so as her husband would not agree to it. The accused said if the Complainant was concerned about her children, she must let him have sexual intercourse with her. The accused said the Complainant must go back and think about her children bearing in mind that she would die the following month. The Complainant then put on her blouse and came out of that room. Outside the house, the accused asked Joseph Tura and the Complainant to return the next day at 3 am in the morning to bathe in the sea. The accused gave his wrist watch to Joseph Tura to keep the time.

(Day 2 - 20/12/9>

Joseph Tura and tmplainplainant did return to the accused's premises at 3 am the next day. The accused then told his wife to take them to the sea to bathe in the sea. This was done. After bathing in the sea alee of them returned to the the accused's premises. It was still dark. The accused then said that he would press (massage) the Complainant first. She then went into that same room as before. Joseph Tura and the accused's wife waited outside the house. In that room, the accused again told the Complainant to remove her clothes. She did remove her blouse and placed it on her front. She did not remove her bra but the accused did it. The accused again told her to lay down on the floor of that room to facilitate pressing (massaging). She did, face up. The accused then commenced to press (massage) her belly, legs and hands. He pressed (massage) her belly so firmly that it made noise. The accused then explained that the noise was an indication that her sickness would not go away (be cured). The accused said if the Complainant thought about her children, she must let the accused have sexual intercourse with her. He said her sickness would not be cured unless through her vagina by way of sexual intercourse. If this was not so, she would die the following month. The accused then lay on top of the Complainant. He was wearing a lava lava calico. The Complainant then felt the accused's penis being pushed inside her vagina. The accused had separated her legs with his hands. The accused held her and was kissing her breasts and face. The whole of the accused's penis went inside her vagina. He then held her on the shoulders and his button was then moving up and down in a pumping motion. The accused said his action was necessary to cure the Complainant's sickness. He then asked her to help him pump so that her vagina would open and let the sickness out. The accused then asked her whether the dirty water had gone out and the Complainant said it had. He said she was now good. He stood up and so did the Complainant. She then put on her clothes and the accused told her to tell her husband to go into that room for treatment but to say nothing to her husband about that act of sexual intercourse. Joseph Tura went into that room and, after a short while, came out. The accused then told Joseph Tura to tell the Complainant to come back again the next day so that the accused would press (massage) her legs.

(Day 3 - 21/1

They got up lae next moxt morning but nevertheless they made their way to the accused's premises. Again, they were taken to the sea by the accused's wife for bathing in ea. Abathing, they ally all returned to the accused's premises. ses. By that time, it was already daylight. The accused did no pressing (massaging) this day, as he said, there was already daylight.

Joseph Tura, however, returned at about 1 pm that day to the accused's premises on the request of the accused to help the accused put up the roof of the accused's house. The Complainallowed at about 4pm. The accused pressed (massaged) both ofth of them and then they returned home.

(Day 4 - 22/12/95)brb>

The accused had askem them to return the next day at 3 am in the morning but they did not do so. They were theparing to return to Joseph Tura's home on Rannoga Island.

eek Later

a week later after ther their return from Gizo, their second child became sick. The Complainant got worried and thought that her child's sickness could beto thng doing with theh the accused at Gizo. She then told her hher husband about the accused having sexual intercourse with her on 20^th December, 1995. J Tura imme immediately went to Gizo and confronted the accused with his wife's revelation of the accused's misconduct with his wife. Joseph Tura told the accused that what he did to his wife would normally attract the payment of compensation, Joseph Tura then reported the matter to the Police at Gizo.

The Ac's Story

The ac said in court thrt that pressing (massaging) the body must necessarily involve touching the belly, legs, hands, chest and usclethe areas affected by the sickness. He said in thin the case of the First and Second Complaomplainants, he did touch their bodies by way of pressing (massaging). He admitted that he did treat them at his premises at Gizo. However, he categorically denied in evidence that he played with the clitoris of the First Complainant and that he had sexual intercourse with the Second Complainant as alleged in the charges against him.

The Burdenroof

It is for rosecution toon to prove its case beyond reasonable doubt. The burden of proof is upon them in this case. In the charge of indecent assault against the accin the of the First Cost Complainant, the Prosecution only callecalled PW3, the Complainant herself. In the charge of rape against the accused, the Prosecution called PW1 and PW2 - the second Complainant and her husband, Joseph Tura. In giving her evidence under oath, the First Complainant (PW3) was shy and confused as to exact times and dates. In her evidence, she said the accused indecently assaulted her during her first visit. According to her, this first visit was in the evening after 7 pm. She did not however say anything about the small room being lit. She however said she saw items like spare parts in that room and a small lamp. The second visit was at night in the morning at 3 am. After bathing in the sea, she and the accused's wife returned to the accused's premises and the accused pressed her again. This was in that small room being lit by a small hurricane lamp. The accused pressed (massaged) her without incident. On being cross-examined, she could not recall whether that small room she went for treatment has windows and a door with shutters. Again, on being cross-examined, she said she remembered the time that John Hutton came into that small room. She said that was the time the accused played with her clitoris. John Hutton was not called by the Prosecution. The accused said in evidence that the First Complainant came to him only once. That was at lunch-time. It was during the day-time. That was the time, John Hutton came to that small room to ask for out-board motor spare parts. I find that the accused pressed (massaged) the First Complainant during day-time in that small room alone. The First Complainant failed to clarify this in her evidence. Equally, the accused may have forgotten that the First Complainant had visited him more than once as seems to be the case in the First Complainant's evidence. Both the accused and the First Complainant were confused about details or could not recall them accurately. This is not surprising as the alleged indecent assault took place almost 3 years ago. However, they both agreed that the accused's treatment was administered in that small room. That is a fact. They only differed on the indecent assault allegation against the accused.

As between themelieve teve the First Complainant's story. She gave her story in court truthfully with some degree of personal embarrassment. She was giving her evidence in open court about matters pertainingery private parts of her boer body. She was compromising her modesty for the sake of justice. She has no reason whatever to lie in court about the accused. In fact, the accused did admit in court that there is no feeling of animosity between them. He also admitted that it is the practice that when treating his patients, he must sit close to them or sit by their sides. They must also lay on the floor although removal of their clothes would depend on the nature of the sickness and its location on the body. The accused and the First Complainant were alone in that small room by themselves. The First Complainant said that she felt embarrassed when the accused was pressing (massaging) her belly and moving down towards her vagina. She said she felt bad when the accused was playing with her clitoris. She thought it was not right. The accused then assured her that he had been anointed by the chiefs to do the work. He was given the power to do it. He told the First Complainant not to be frightened of him. This was obviously an attempt to calm her down so that she would not resist him. I therefore find that the accused did play with the clitoris of the First Complainant as alleged in the charge against him, contrary to section 133(1) of the Penal Code

The Secomplainant

Thereo dispute that thet the parties had agreed that the accused should treat the Complainad herand, particularly the Complainant for her belly ache. There is also no dispute abte about tout the fact that treatment did take place on three occasions. What is in dispute is the allegation by the Complainant that during giving treatment on 20^th Dec, 1995, the accused had had sexual intercourse with the Complainant saying it was for the purpose of curing her of the sicknesselly ache. In other words, she was tricked by the accused into allowing herself into havingaving sexual intercourse with the accused on that pretext. The accused denied this in court. In his evidence he said that nothing of that sort would have happened because that small room in which the treatment took place was well lit from an electric bulb from the workshop premises, the door and window to that small room have no shutters and that his wife and the Complainant's husband were close by outside the house within hearing distance from that small room. On the question of how much light there was in that room, the Complainant said there was some light in that small room but it was dim not very bright. She said light was coming from a small hurricane lamp from the outside of the room. The accused said there was no hurricane lamp. The room was lit by an electric bulb from the workshop premises. The accused's wife (DW 2) said there was an electric bulb in that small room producing light. Joseph Tura, the Complainant's husband said when he went into that room there was a small hurricane lamp on the table outside the room. I find as a fact that there was some light in that small room from what source it does not really matter. It was dim. The dimness of the light could have been due to either the wick being turned low or the lamp being placed elsewhere but still emitting light through the window or door to that room. The Complainant did however say that the door to that room though without a permanent shutter, has a calico curtain hanging across it on the night of 20^th Der, 1995. The accused said said that the small room is used as an office. I find as a fact that it is possible that the door has a calico curtain across it. This is consistent with the fact the room is used as an officeffice as well as for the treatment of the accused's patients. As regards the distance between that room and where Joseph Tura and the accused's wife sat waiting, I find as a fact that they were waiting outside the house and not outside that room. The Complainant was sure of this in her evidence, the accused however disagreed but only to the extent of saying Joseph Tura and the accused's wife were close by. The accused's wife (DW2) on being cross-examined said she was outside the house when the Complainant was being treated. There is however no dispute that the small room has walls to it although how high they are is not stated. It is also not disputed that at the time of pressing (massaging), only the accused and the Complainant were in that small room. The accused did not say why Joseph Tura or the accused's wife was not asked to be present in that room during the pressing (massaging) although he said nothing was stopping them from going in at any time.

I find as a fact thare here was time for sexual intercourse to take place between the accused and the Complainant.

PenetrationThe next question is whether or not penetration of Complainant's vagina by the accusaccused's penis was indeed effected. The ad denied this in court. Even if penetration took place no one else would have seen it or feor felt it but the Complainant. She said the accused lay on top of her and separated her legs with his hands. He was wearing only a lava lava calico. She then felt the accused's penis being pushed into her vagina. The whole of it went into her vagina. The accused then commenced moving his buttock up and down on top of her and was asking her to do likewise so that the dirty water would go out through her vagina and that she be cured of her sickness. Also, the fact that sexual intercourse must take place as a cure for her sickness was a matter insisted upon to the Complainant as early as the previous day. The fact that it finally happened was no surprise to the accused or the Complainant. I find as a fact that penetration did take place.

Consent
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The Complainant said in court she did not want what the accused was doing to her, that is, having sexual intercourse with her. She said she lay still bsponded only a little when told to pump also. The accused ssed said this was necessary to open up her vagina to let the dirty water out. Mr. Nori, Counsel for the accused, spent sometime in cross-examination as to why the Complainant was willing to return the next day, 20^thDecember, 1995, when the accused had already hinted in no uncertain terms the previous day, 19^thDecember, 1995 that sexual intercourse was a real possibility, if not, inevitable if she was to live. In response to Mr. Nori’s questions, she said she was afraid she would die as told to her by the accused. Asked why she did not tell her husband, she said the accused told her not to and if she did she could die. Asked again why she returned for treatment the next day, 20^th December, 1995 said she wase was afraid of dying. Asked what to say of the fact that she had sexual intercourse with the accused, she said she did not like sex but at the same time she did not like to die. When Mr. Nori put to her that she lied in court, she said that was not true. Asked how loud the accused was talking to her, she said the accused was talking in a low voice. In re-examination, the Complainant said that she believed that having sex was necessary to cure her sickness. She said she believed the accused when he told her this. She realised that she had been tricked when her sickness was still the same after the event and when her child became sick one week later. The accused denied all this in court. He said he never had sexual intercourse with the Complainant at any time. As between them, I believe the story of the Complainant. She gave her evidence in Court truthfully without hesitation. She was firm and straight forward under cross-examination by Mr. Nori. She was prepared to tell her story in open court of matters most confidential in her life. Again, the accused said that there is no feeling of animosity between himself and the Complainant or her husband, Mr. Tura. I can find no reason why she should tell the court a lie. In fact, the accused had sought assistance from the Complainant's husband to put up the roof of his house for him. I find that the accused had sexual intercourse with the Second Complainant by tricking her into believing that herself and her husband had been poisoned in custom and that her cure was in having sexual intercourse with him She believed him and sexual intercourse took place as a result.

Corroion
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The Defencenot raise anse any legal issues regarding the elements of the offence of indecent assault, contrary to section 133(1) of the Penal Code nor the elements of rape, contrary to section 128 of thel Code. However, Mr. Nori dori did submit that there was no corroboration of evidence given by the First Complainant in respect of the indecent assault charge against the accused. It was really her words against those of the accused. He submitted that the same was true of the Second Complainant's case. He submitted that both the First and Second Complainants were adults and their behaviour of silent submission to the accused was not that of any reasonable person. He urged the court not to believe them. Mr. Mwanesalua, on the other hand, submitted that lack of corroboration was not a rule of law but rather a rule of practice. He submitted that the court could convict without corroboration if the court believed the evidence of the First and Second Complainants. The fact that the jury or the court was aware of the danger of lack of corroboration was enough. He submitted that the lack of corroboration was not an absolute bar to conviction. He submitted that both the First and Second Complainants were credible witnesses despite some inconsistencies in their evidence, particularly the evidence of the First Complainant in terms of times and dates. Judicial statements on the need for corroboration in sexual offences in this jurisdiction can be found in R v Gere;(1980/81) S81) SILR, 145 where Daly C.J. at 145-146, said;