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Regina v Kibo [2012] SBHC 143; HCSI-CRC 394 of 2011 (9 October 2012)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 394 of 2011

REGINA

-V-

JABES KIBO

Hearing: 24 – 26 September 2012
Judgment: 9 October 2012

A. Driu (Ms.) and S. Ngava (Ms) for the Crown.
H. Fugui and E. Cade for the Defendant.

Palmer CJ.

1. The defendant, Jabes Kibo is charged with two counts of rape contrary to section 136 of the Penal Code (cap. 26), that on the 3rd and 4th of June 2011 respectively he had unlawful sexual intercourse with the complainant.
   
2. The main issue of contention in this case is that of consent. This issue in turn will depend on which version the court accepts as credible and to be relied on as there are two different versions, one by the complainant and the other by the defendant.
   
3. The defence raised by the defendant in essence is that what happened was something agreed to by the complainant and willingly accompanied him from the time they went away to the time she returned to her home.
   
4. His version of events differs markedly from the prosecution case in that a pre-existing relationship existed between them, they had been in an intimate, boy – girl relationship for some three months or so already and had had intimate relationships together. On this occasion, they met together and she decided to accompany him and were out for that period of time from Friday 3rd June 2011 to Monday 6th June when she then returned to her house.
   
5. The prosecution case on the other hand was that she was taken out by force at the well when she had gone there to wash the dishes in the morning of Friday 3rd June, led away into the bushes and raped on two occasions; the first rape occurred on the night of Friday 3rd June, the second one on the next day.
   

Some general observations and comments

1. There are two different versions, which are distinct to each other. This case turns on whose version I accept as truthful and can be relied on, in particular bearing in mind the burden of proof throughout which lies with prosecution. If a reasonable doubt exists this must go in favour of the defendant.
   
2. While I may convict on the uncorroborated evidence of the complainant as opposed to that of the defendant the conviction must be based on cognisable evidence that is capable of proof and has been accepted by the court as opposed to that of the defendant.
   
3. Where there is evidence capable of corroboration that will also assist the court in making up its mind as to where the weight of evidence and issues of veracity lie. This includes any statement obtained by police of the defendant under caution. Any inconsistencies and or contradictions are to be weighed carefully in the light of all the evidence before the court.
   
4. In determining the ultimate issue of consent, a number of issues highlighted in this case will need to be considered and balanced carefully in order to determine where the truth lies in this case and supported by the evidence.
   

Analysis of evidence:

6. I have had the opportunity to carefully consider the evidence given in this case, the differing versions, the statements tendered in court, the demeanour of the witnesses and in particular that of the complainant and the defendant.
   
   • (a) On the issue of whether there was a pre-existing relationship between the complainant and the defendant, I find the evidence of the complainant to be more consistent, credible and reliable.
     

She denied any form of pre-existing relationship with the defendant, in particular in any intimate manner, including prior sexual intercourse, although she conceded she knew him as he used to visit their home and vice versa. The defendant is the youngest brother of her step-father and known to her.

She states it was her first time to have sex when she was raped on those two occasions. She did not consent to them but could not escape as she was in the bush alone with him. The bush was unfamiliar to her and therefore could not run away from him even when alone.

She told the court that when the defendant raped her he asked her if she had any boy friends, which she denied.

Her version is supported by answers which the defendant gave to police in a statement. He told the police he had had sex with her on two previous occasions only. There was no mention to the police that he had had sex with her 8-9 times in total or 11 – 13 times. The most he told the police in his statement was two times. It was only in his oral evidence in court that he mentioned for the first time about any pre-existing relationship and that they had had sex on many occasions before.

I note in one of his answers to police questions, he did say that he had had sex with her at the well prior to that incident but then when asked later how many times he had had sex with her, he only admitted to two occasions (see question 49 and answer 49).

Also when asked in question 40 what he noticed when he had sex with her, he told police it was tight and indicated this meant the complainant had not gone out with any other boy, thus contradicting himself in his oral evidence that he had had sex with her on many occasions before this.

If he had gone out with her on many occasions before and was in a boy/girl relationship with her, why didn't he mention this to police from the outset? It would seem to be the logical, reasonable and matter of course explanation to make, that they had agreed to go out together and had consensual sex together, that she was his girlfriend. His defence raised for the first time in court would appear to be an afterthought.

I find his answers to police questions contrasted with his oral evidence to be inconsistent, contradictory and vague, which do not assist his credibility in court ultimately. In examination in chief and during cross examination he told the court they had had prior sexual encounters about eight to nine times but in re-examination increased this to eleven to thirteen times. This piece of evidence cannot be considered as an insignificant omission or lapse of memory.

I find too that his version is not supported by the third prosecution witness who told the court there was a distinction in this case to other instances where the defendant had developed relationships with other girls staying at his residence. In this case he had taken her out whereas with others he had developed relationships with them.

I have had the opportunity to observe the complainant's demeanour and conduct in court and accept her evidence as being truthful. I find her evidence to be consistent throughout.

(b) In his evidence the defendant told the court that after agreeing to go out together, they wandered around various parts of the oil palm plantations, nearby bushes and locations, went past some stores at which he bought some food for them to eat, sent a girl to purchase some goods for them on one occasion, saw the mother with another person called Charles Wate looking for them and hid themselves from them.

On another occasion, they went to his mother's garden she waited for him while he went in to their kitchen, took a pot of rice and fish, went back to where the complainant was waiting and ate that food. He told the court that those in his house noticed that the pots were missing and called out to them. I find this version however to be unsubstantiated and highly improbable. No one in his house was called to give evidence to support his version of the missing pots.

As well those working in the various stores he visited on those occasions could have been called to give evidence in support, as well as the girl that he told to go and purchase some goods from a store for them. Who was this mystery girl; when, where and how did he meet her?

He also told the court that on the second day he saw the second witness, Mary Waleria ("Mary") and another boy called Charles Wate, with others coming around looking for them at a certain spot, but this evidence was never put to Mary when she gave her evidence to confirm or deny. He also told the court when he went a second time to his house he saw Mary and Charles Wate at another spot but this too was not put to Mary to deny or confirm.

(c) The third major discrepancy in the evidence was in relation to the time of arrival when the complainant returned to the house. He told the court he accompanied her to her house at about 8 o'clock in the evening and left her right in front of her house. He was standing at the verandah of the house, saw her sister come out and took her in.

This is a significant time difference and version to what the complainant told the court. She told the court he left her at her mother's garden quite late on Monday night. After standing there for some time as she was frightened that her mother might beat her when she arrived home for having been away for a couple of days, she mustered enough courage to walk back home and called out to her mother in her mother tongue. Her mother woke up and opened the door for her. She estimated the time at around 2.00 – 3.00 am in the morning.

This time difference is quite significant in that if it was consensual, agreed to by both to go out together, the defendant's version would be the preferred version for it would demonstrate that he was her friend and would not leave her out in the "cold" so to speak to face the music alone. No true friend would do that.

His version however is not supported by the facts before this court. If both of them returned to the house in the early evening, someone is bound to be awake at that time not only at the complainant's house but also at his own house and be able to confirm their time of arrival. Again this was not put to Mary or Ringo Jeremy ("Ringo") (step-father of complainant) to confirm or deny. The only logical explanation for this would be that most likely it did not happen.

The version of the complainant on the other hand was supported and confirmed by Mary and Ringo. Their evidence on this has been unchallenged; I accept their evidence and the complainant's version.

Mary told the court she was asleep when she was woken up by the voice of her daughter calling out to her in their mother tongue. More likely than not, she would be asleep at such a late hour in the night. If it had been around 8 o'clock, most likely she would be still awake.

Mary told the court she knew it was early morning because she heard the roosters crowing around that time. It is common knowledge that normally roosters start to crow at such times around 2.00 – 3.00 am in the mornings. She told the court she went to confront the defendant about the incident in the morning, there was no mention of this being done in the late evening; this too has not been challenged.

Ringo, the step-father also confirmed she arrived at around 2.00 – 3.00 am in the morning as it was getting light at that time. His evidence on this is also unchallenged. I find no reason not to believe their evidence on this and accept that this supports the version of the complainant about arriving at her home quite late at night and alone and supports her version of events ultimately that she had been taken out without her consent and that sexual intercourse was not consented to.

(d) It was also raised in submission that the complainant's evidence should not be relied on as there was a discrepancy in her evidence regarding whether she took any clothes to the well with the dishes.

In her evidence she denied taking any clothes to the well with her. Her mother however told the court that they found clothes and dishes at the well. It was sought to be suggested that this supports the defendant's version that she had brought her clothes with her to accompany the defendant as instructed by him.

The complainant however consistently denies this version. I am not satisfied this discrepancy can be construed as supporting any suggestion by the defendant that she willingly accompanied him that time. The most that can be deduced is that she may have been mistaken as to whether she also took clothes and dishes with her to the well. It does not show that she took extra clothes with her to accompany the defendant. She had remained firm in her evidence that she did not take any other clothes with her to accompany the defendant on his purported trip to Aruligo.

On the same note, it was sought to be submitted that a red shirt the defendant was wearing belonged to the complainant. In her evidence however, she had described the clothes he was wearing as including a red shirt. She denied it belonged to her.

Her version is supported by the defendant's own response to police when asked about the clothes he was wearing. At question 56, when asked about the clothes he was wearing, he told the police he was wearing a "cut blue jean and red shirt". There was nothing to suggest the red shirt was not his. Again if he was wearing a different shirt or no shirt at all, or that the shirt belonged to the complainant, why didn't he tell the police for it would have supported his version right from the outset that this was all consensual and by agreement between them.

The mother as well was not asked if the complainant had a red shirt or not. I do not believe his account that the red shirt belonged to the complainant.

(e) It had also been suggested in submission that the complainant was a willing participant throughout as she did not seek to escape or run away given there were many opportunities for her to do so? This submission, based entirely on the version of events recounted by the defendant would have credibility if supported by cognisable evidence as raising a reasonable doubt in the mind of the court and accepted as such. When contrasted with the evidence of the complainant however, and the evidence before this court, a different picture emerges.

She accompanied him only out of fear, because he was drunk at that time, had threatened to harm her and then held her hand and led her out into the bush. She had been accosted at the well, which was a lonely place far from their house and no one, in particular any adult would have been around at that time. Even if she could escape, she was unfamiliar with the bush where they were and feared getting lost. This would be consistent with her evidence that she was new to the place and while at her mother's place hardly went out.

(f) She also maintained her evidence that the defendant was drunk and drinking "kwaso" a locally made brew. In his evidence in court he denied this, but in his statement to police at question 65 he agreed he was drinking kwaso. In question 66, he admitted drinking two bottles of kwaso. Those admissions are consistent with the version of the complainant that she had been taken away unwillingly. She told the court she was frightened because he was drunk as well as having been threatened to be harmed. Mary confirms seeing the defendant on the morning of the 3rd June and describing him as being drunk as he was not walking in a proper manner.

(g) In her evidence she denied eating anything other than some coconut fruits which the defendant had climbed for them to eat. This is to be contrasted with the evidence of the defendant that they had food to eat throughout that period. He told the court they had a bath at a drain near the middle of the road before dropping her off at her house. Mary told the court however that when she saw her that morning she felt very sorry for her as her body did not look good. Mary's observation of the condition of the complainant is more consistent with her version of events than that of the defendant and again has been unchallenged.

(h) It has also sought to be submitted that the complainant was evasive in her answers to questions about what happened. I have however had the opportunity to observe the demeanour of the complainant when she was giving her evidence during cross examination and her answers and come to the conclusion that her answers were that of a young plain girl as opposed to a witness who I would describe as a "sophisticated or complex" witness and able to tailor evidence accordingly. Her responses that she did not know about those things which were put to her, to be consistent with the answers of a simple minded girl explaining as best she could what happened to her. An instance of this can be gleaned when describing the motions of what the defendant did to her when he raped her. She used her hands to describe an "up and down" motion with her hands.

(i) The medical report produced is consistent with her evidence that sexual intercourse occurred on two occasions during that period that she was taken out by the defendant. While she complained of the act being painful there was no evidence of any injuries having been incurred. The fact that no injuries were visible does not necessarily prove or support the suggestion that sexual intercourse was consensual other than the fact of it having occurred. That evidence must be considered and weighed together in the context of all other surrounding evidence.

Decision

I am satisfied on the evidence before me that the burden of proof in this case had been discharged by prosecution. She was taken out by a drunken man, contrary to her will out into the bush where her will was subdued to the point that it was overborne. She feared for her safety but could not escape as she had been taken out to an isolated place and unfamiliar place where they were alone, he was stronger than her and even if she shouted she would not be heard.

At the well when he approached her at that particular time there was no adult person around and so even if she had shouted for help no one would have heard her. Any form of escape was made difficult and virtually impossible as she was unfamiliar with the place and the bush she was taken to.

His version that it was all consensual, planned and agreed to by the complainant does not fit in with his claim that she was his girl friend and that they had had sex on many occasions prior to this. The motive doesn't seem to fit in with his version of events.

At one stage he had told the court that he told her to meet him at a particular spot to talk to her about what happened to them earlier that morning. He then asked her if she wanted to accompany him to Aruligo and told her to bring her clothes with her. That was when they met at the well. There was no trip to Aruligo or anything of that sort however and so the motive or reason for them going out just doesn't fit in.

The motive for revenge however volunteered by the defendant himself to Ringo for being called a dog by Mary would be more consistent with his actions that were taken during that period. Ringo told the court that when he asked him why he had taken the complainant out he told him that he did this because he was upset with Mary for what she had said to him.

I am satisfied on the evidence, prosecution had established that the sexual intercourse which occurred was without consent, both occurred in the context and in circumstances which demonstrated and showed that consent was absent and not willingly given and he is convicted on the two counts of rape.

Orders of the Court:

1. Find the defendant guilty of the offence of two counts of rape and enter conviction.
   

The Court.