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Regina v Buga [2012] SBHC 135; HCSI-CRC 99 of 2009 (3 December 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(APANIAI, J)
Criminal Jurisdiction

Criminal Case 99 of 2009

REGINA

-v-

PETER BUGA

Date of Hearing: 27th, 28th and 30th August and 30th November 2012.
Date of Judgment: 3rd December 2012.

Mr. Kelesi and Ms. Ngava for the Crown.
Mr. Aupai for the accused.

JUDGMENT

Introduction:

1. The accused, Peter Buga, is charged with rape contrary to section 136 of the Penal Code. It is alleged that the accused raped the complainant, Ms. Prista Toligizo, at Point Cruz wharf on Friday 7th October 2008.
   
2. The accused has pleaded not guilty to the charge. I therefore remind myself that the burden is on the Crown to prove each and every element of the offence beyond reasonable doubt.
   

Issues:

3. The issues to be proved on a charge of rape are whether or not there was sexual intercourse and whether or not there was no consent on the part of the complainant to the act of sexual intercourse.
   
4. If the Crown fails to prove sexual intercourse then the issue of consent does not arise and the accused must be acquitted unless there is sufficient evidence to convict him of other offences as provided for under section 166 of the Criminal Procedure Code.
   
5. In the present case, the accused has denied sexual intercourse.
   

Definition of sexual intercourse:

6. Sexual intercourse is proved if it is shown that there was penetration of the complainant's vagina by the accused's penis however slight the penetration may be.
   
7. In R v Sisiolo[1], Lungole-Awich said (at p. 2):
   

"Sexual intercourse is, to use the old expression, having carnal knowledge of a woman. In rape, it is just penetration of the vagina by the penis, however slight the penetration may be. No more than penetration is required in sexual intercourse."

Facts not disputed.

8. The following facts are not disputed.
   
9. The accused, after attending a World Teacher's Day celebrations at the Rove Police Club on the 7th October 2008, left the club with a plastic of empty cans of beer and came to the back of the BJS Agencies' compound at the Point Cruz. His intention was to sell the empty cans to BJS.
   
10. When he came to the BJS office, he heard the complainant swearing. That was around 10pm.
    
11. The complainant had come from Paradise Club and was on her way to see her boyfriend, Francis Wale, who was an employee of SI Copra Exporters whose premises is located at the Ports Authority area at Point Cruz. She was coming down the Commonwealth street.
    
12. She had been drinking that day starting at about 4pm and she described herself as being "very drunk" that night.
    
13. She came to the front of BJS Building at Commonwealth street and met some people there. She agreed that she swore at those people. That was when the accused heard her and then came to her and told her not to swear in public.
    
14. The complainant and the accused then walked towards Point Cruz wharf and came to SI Copra Exporters premises to see Francis Wale who worked for SI Copra Exporters and who was the complainant's boyfriend at that time.
    
15. Up to this point, there is no serious disagreement as far as the evidence is concerned.
    

Inconsistencies:

16. Inconsistencies between the Crown evidence and the accused's assertions began to appear when the accused and the complainant came to the gate of the SI Copra Exporters premises.
    
17. The accused's assertion, as appears from his statement from the dock, is that when they came to the gate, the complainant waited at the gate while the accused went and called Francis. It was the complainant who had requested the accused to go and call Francis.
    
18. He said he approached a security officer and asked for Francis but the security officer told him the Francis had already left. From the evidence, it is clear that this security officer was Leonard Alufurai[2] (PW2).
    
19. The complainant's evidence, however, is that when they got to the SI Copra Exporters gate, she went and sat down with Francis who asked her how she got drunk and who she had been drinking with. She told Francis that she had been drinking with her tabu. She said on hearing that Francis got angry and walked away leaving her at the SI Copra area.
    
20. I must say that I do not believe the complainant on this point. I am satisfied that when they got to the SI Copra Exporters area, Francis had already left. I am satisfied she did not talk with Francis that evening. The accused's version is consistent with the evidence by Alufurai.
    

Sexual intercourse:

21. The complainant's evidence as to the alleged sexual intercourse can be stated briefly. When she came to the gate, and while waiting for the accused to return, she fell asleep near a SIEA pillar box. As she was sleeping, she said she felt a man came to her. The man was shaking her belly and she felt his arse going up on top of her. She then woke up. She said as she woke up, her trousers fell down to her knees and she felt someone holding her. It is not clear whether she meant the trousers fell while she was still lying down, which is not possible, or whether she stood up when she woke up and then felt the trousers falling down to her knees.
    
22. She then said that she cried and struggled. She did not know who was holding her because she had just woken up and she was "completely out". She said the man had tackled both of her hands. The man was standing when he tackled her. She said he tackled her before the police arrived. She said she felt his arse moving up and down on top of her. She also said she felt his penis inside her vagina which means that there was full penetration.
    
23. However, in cross-examination she agreed that she did not wake up until the police arrived. This is consistent with the evidence by police officer Goreti Teku (PW3) who said that when they arrived at the crime scene, a security officer came and pointed to where the complainant was lying down. It is clear that security officer was Alufurai.
    
24. As to this part of the complainant's evidence, I must say I am not entirely convinced by the complainant's evidence. Teku, whom I found to be a truthful and reliable witness, said that on arrival at the crime scene she went to the complainant to wake her up. When she came to the complainant, she saw the complainant's trousers was down to just under her buttocks. She said the complainant was fast asleep at that time and was also drunk. Teku tried to wake the complainant up and also tried to pull up the complainant's trousers but the complainant became angry and told Teku to leave her (the complainant) alone. It was then that constable Ruth Saefafia came and assisted Teku carry the complainant to the police vehicle. They then took the complainant to the Central Police Station along with the accused.
    
25. It seems to me that when the complainant said that someone had tackled her she must have been referring to the time when Teku was trying to wake her up or to the time when Teku and Saefafia were carrying her to the police vehicle.
    
26. As to whether the man was on top of her having sexual intercourse with her I must also say I am not entirely convinced by the complainant's evidence. How can the accused achieve full penetration of the vagina, as claimed by the complainant, when the complainant's trousers was just under her buttocks as described by Teku? I am not convinced that the complainant was telling the truth in regards to this matter.
    
27. I therefore reject the complainant's evidence that she felt a man's arse moving up and down on top of her including her evidence that she felt his penis inside her vagina. The complainant's evidence has not satisfied me to the required standard that sexual intercourse occurred.
    
28. Alufurai's evidence as to the question of sexual intercourse was also not convincing. He said that he was on duty inside the SI Copra Exporter's area when he saw an incident, which he described as unusual. He said he saw a man holding a girl. The man was holding the girl's private parts and breasts.
    
29. He said he was about 4 to 5 meters away when he saw what was happening. He said he walked up to the man and told him that what he was doing was wrong because he was indecently assaulting the girl. He then went back to the security house. However, when he looked back he saw that the man was still continuing with what he was doing to the complainant so he rang the police.
    
30. He said he rang the police because the man had already committed an offence. I understood this to mean that the man had already indecently assaulted the girl.
    
31. Alufurai further said that he saw the man "hammering" the side of the complainant. I understood this to mean that the man was moving his buttock in a sexual motion while lying down at the side of the complainant. It is difficult to imagine how penetration could have occurred at this position when, according to the complainant's evidence, she was lying down near the SIEA pillar box facing up.
    
32. Alufurai then said that when he saw the man "hammering" the side of the complainant he feared that the man might end up raping the complainant so he rang the police. He said the police arrived not long after he rang them.
    
33. Clearly, this means that as far as Alufurai is concerned no sexual intercourse had yet taken place when the police was contacted.
    
34. Apart from that, there is no evidence that, from the time when Alufurai contacted the police and the time when the police arrived, the man had engaged in any other conduct towards the complainant which might suggest that sexual intercourse had occurred.
    
35. To add to the confusion about the alleged sexual intercourse, Dr. Jack Maesukunar (PW5), who had examined the complainant at 12noon on the 7th October 2008, said in his report (exhibit "P1") and under oath that he did not find any scratch marks or bruises of the complainant's genital area or on the vagina or the cervix area and that, although he did find white discharge in the vaginal canal, he could not say whether the discharge was a man's discharge or a woman's discharge.
    
36. In fact, Dr. Maesukunar said he did not find any sperm in the vagina. He said the absence of sperm could mean three things, namely, either there was no penetration or there was penetration but without ejaculation or there was penetration and ejaculation but without any sperm. He said the white discharge could also be the result of trichomonas which he found to be present in the complainant's vagina at that time.
    
37. As for the accused, while admitting that he had touched the complainant's breasts, he had completely denied having sexual intercourse with the complainant. In his statement from the dock, he said that when he came back to where the complainant was after talking with Alufurai, he found that the complainant had fallen asleep near a SIEA pillar box near the gate.
    
38. He said he found a bottle of kwaso was beside her. He took the bottle of kwaso and drank it while sitting at the back of the complainant. When he finished the drink, he lay at the back of the complainant and touched her breast. He said he did not touch any other part of the complainant's body. He said that about three minutes after he touched her breast the police arrived and arrested him.
    
39. In short, the accused's assertion is that the only part of the complainant's body he touched that night was the complainant's breast and that he did not have sexual intercourse with her at all.
    

Finding:

40. As stated earlier, the issues on a charge of rape are whether there was sexual intercourse and whether the complainant did not consent to the sexual intercourse. The first issue that must be addressed is whether sexual intercourse occurred. If that issue is not proved, the whole case goes. The burden is on the Crown to satisfy me beyond reasonable doubt that sexual intercourse did occur. There is no obligation on the accused to prove his innocence.
    
41. In this case, there are 4 Crown witnesses whose evidence are crucial in determining whether or not sexual intercourse occurred. They are the complainant herself, Leonard Alufurai, police officer Goreti Teku and Dr. Maesukunar.
    
42. On their evidence, as I have analyzed above, I regret to say that I am not satisfied to the required standard that sexual intercourse occurred.
    

Verdict:

43. I therefore acquit the accused of the charge of rape.
    
44. However, I am satisfied beyond reasonable doubt that the accused had indecently assaulted the complainant. He has admitted touching the complainant's breasts. That is indecent assault.
    
45. The accused said that he did nothing else apart from touching the complainant's breasts. However, the evidence by Alufurai shows that he lied down at the side of the complainant and was "hammering" her at the side. I accept Alufurai's evidence in that regard. There is no doubt that the "hammering" is a reference to sexual motion. This is indecent assault.
    
46. I am satisfied beyond reasonable doubt that the accused had committed indecent assault on the complainant and therefore, pursuant to section 166 of the Criminal Procedure Code, I convict the accused of having committed indecent assault upon the complainant contrary to section 141(1) of the Penal Code.
    

THE COURT

^[1] CRC No. 5 of 1998
^[2] See Alufurai statement, Transcript, p. 38.