REGINA
v
PAUL MISIATA
High Court of Solomon Islands
(Muria, CJ.)
Criminal Case No 35 of 1997
Hearing: 11 March 1999
Judgment: 19 March 1999
DPP Prosecution
>
MB Samuel for Accused
MURIA, CJ:
This accused has been charged wged with the offence of rape. It was alleged that
on 12 August 1993, at Leili Island,
Malaita Province, the accused had sexual
intercourse with the victim Rose Oropata without her consent. The accused
pleaded
not guilty to the charge. As usual, I remind myself of the need that
the prosecution must establish the guilt of the accused
beyond a reasonable
doubt.
It is not disputed that sexu intercourse took place between the accused and victim. In his defence, the
accuseccused stated
that the victim consented to him having sex with her The
prosecution therefore must establish on the evidence that the victim
did not
consent to the act of sexual intercourse. In other words, the prosecution
must exclude the defence of consent
now raised by the accused. The accused
need not prove anything.
Evidence not in dispute
As I have already stated i
not in dispute that the accused and victim had sexual intercourse on 12
August gust 1993 at
Kwago. It is also not disputed that prior to that, the
accused and victim had been working together at Muki Clinic. On 11 August
1993 the accused and the victim went by out-boat-motor canoe to Atoifi
Hospital. There was no course arranged at Atoifi
Hospital. Upon being
informed that there was no course available the accused and victim proceeded
to Atori and then to
Kwai Island. Throughout the trip by canoe from Atori to
Kwailade the accused and victim were by themselves
Case for the proson
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The prosecution case is that
the accused knew there was no course arranged for nurse-aides at Atoifi
Hospital. The accused
tricked the victim into believing there was one which
made her willing to accompany him to Atoifi on l1 August 1993. Further
it is
the prosecution case that on the next day the accused deliberately sent
their companion, James Kohunu (PW4) to
Auki in order that the accused could
get the victim to accompany him to Kwai Island to buy petrol as well as to
buy cocoa
beans. Having bought only petrol, they proceeded toward Leili
Island.
lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Further the proion case is
that having left Kwai Island and while still at sea near Leili Island, thd, the
accused asked
the victim for sex and when she refused, he threatened her
with a knife and stick. When the accused tried to grab her, she
jumped into
the sea about four times, each time she hanged onto the rope tied to the bow
of the canoe. As soon as she
got back into the canoe after her last jumped
into the sea, the accused turned the canoe ashore. Upon reaching the shore,
the victim ran away. The accused chased her, and when she fell, he climbed
on top of her and forced her to have sex and
did have sex with her against
her will.
The defence case
>
The accused�s case is that the
im willingly followed him during the trip. He agreed he aske asked her for
sex in the canoe
but that the victim did not refuse. She instead wanted them
to go ashore which they did. Upon reaching the shore they went
into the bush
and had sex without any force on the part of the accused. After sexual
intercourse, they both went back
to the canoe and proceeded on to the
Kwailade.
Findings by the Court
las class="MsoNormal" style="margin-top: 1; margin-bottom: 1">
The issue here is only one of
consent or onsent, sexual intercourse having been admitted. The
allegation against
the accused is that he used force in order to have sex
with the victim. Reliance is very much placed on the evidence of the
victim
(PW1) as well as those from PW2 and PW5.
The victim�s evidence tells of
her alleged ordeal at sea whereby she alleged to have been subjected to
something of a
harsh and merciless treatment by the accused following her
refusal to have sex with him in the canoe. Her account of jumping
out into
the sea four times, if believed, would seem to suggest that she was
attempting to escape from sexual advancement
from the accused. I must
however treat this evidence with great caution as it only came from the
victim herself.
<
According to the victim, she
jumped four times out of the canoe into the sea. On the fourth occasion,
while hanging onto
the rope tied to the front of the canoe, the accused put
the engine on speed which caused her to leave the rope and dive deep
under
the sea in order to avoid being hit by the propeller of the boat motor
engine. The accused stopped and reversed
the canoe and upon coming to her,
he asked her to get into the boat. She did. Each time she jumped into the
sea she climbed
back into the boat with no help from the accused who would
have already started the engine as a condition for the victim getting
back
into the canoe. The two were out in the open sea which was rough and windy
according to the victim. Her struggles
in the water during rough seas on the
four occasions especially on the fourth occasion, would expect to cause the
victim
exhaustion. Yet it did not appear to be so. Whilst I do not easily
discount the victim's strength to withstand the battering
of rough waters in
the open sea, I am not entirely convinced by her story of her alleged ordeal
at sea on that day in
question. I find myself unable to accept her account
of that alleged ordeal at sea.
The evidence of Esau Kekeubata
(PW2) and Max Timothy (PW5) deal with the physical condition of the victim.
Mr Kekeubata
mentioned that he noticed injuries to the victim's legs, chest,
back, face and on her body. The injuries were bleeding. He
gave her five
days treatment of septrine. According to him the injuries could have been
caused by fall on stones.
As a Nurse-Aide himself, Mr.
Kekeubata kept notes of the injuries which were kept at Atofpital. Mr.
Timothy alhy also
said that he saw the injuries to the victim�s body. The alleged
record of the injuries had not been produced and so the Court
is left to
decide whether to simply accept the evidence of the injuries from the victim
and the two witnesses.
The evidence of injuries and
torn clothing are important where the issue of consent, iape case, is
raised. sed. Such evidence
would tend toward showing resistance or force. But
such evidence can also be present even in cases of consensual sexual. There
is also the evidence from the victim herself that when she ran onto the
reefs she stumbled and fell on the stones which
confirmed PW2�s conclusion
on the causes of the injuries. So the Court must carefully scrutinize such
evidence. It is
therefore essential that the prosecution, upon whom the
burden lies of excluding consent, not only lead admissible evidence
on such
physical condition of the victim but must also tender material evidence of
such condition. Neither the records
of the injuries said to be kept at
Atoifi Hospital nor the alleged torn skirt was produced in this case. This
is not
satisfactory at all especially in the circumstances of this case. I
find that the evidence seeking to establish that the injuries
were caused as
a result of force exerted by the accused upon the victim very unsatisfactory
and cannot be reliably accepted
by the Court. As such they lack
corroborative value.
As to what actually happened in
the bush at Kwago between the victim and accused will be determined solely
on the evidence
of the victim and accused. It comes down as to who the Court
believes. I note that the defence called one witness, Brian Tanau,
who
testified as to his presence at the beach at Kwago when the accused and
victim emerged from the bush. He testified
that he talked to them. I do not
think I am convinced that this witness� evidence can be accepted. It was
never put to
the victim in cross-examination as to the presence of this
witness when she and the accused came out from the bush. This witness
is
unconvincing and I do not accept his evidence. But it is not for the accused
or his witness to prove anything. It
is for the prosecution to exclude all
possible doubts from the mind of the Court.
This is a case of a woman who
was a working colleague of the accused (both were Nurse-aides) at Muki
Clinic and who chose
to accompany the accused on a trip all by themselves
having already suspected that the accused was up to something sinister
at
Atori. She obviously chose not to take precautionary measures to protect
herself. She only wore skirt without underpants
throughout the journey. This
is not a conduct of a woman preparing to and willing to resist acts of
sexual nature from
her sole male companion. Although this is not evidence of
consent, it is certainly one that goes to her credibility and veracity
of
her story. On the evidence of this case I feel it would not be safe to rely
on the victim's evidence on what she said
the accused did to her.
The result is that the Court
cannot be sure of the guilt of thesed. I appreciate that this this case
occurred in August
1993 and the delay of five years could well have an
effect on this case. Be that as it may, the prosecution have failed to
established the guilt of the accused beyond a reasonable doubt and
consequently I must give him the benefit of the doubt
remaining in the mind
of the Court. I find the accused not guilty and he is acquitted.
Sir John Muria
CHIEF JUSTICE
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