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Regina v Natei [2012] SBHC 156; HCSI CRC 194 of 2012 (30 November 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(PALLARAS J)

CRC. No. 194 of 2012

REGINA

V

NATEI

Hearing Dates: 26 – 28 November 2012
Verdict Delivered: 30 November 2012

Coram: Pallaras, J.
Crown: Mr. Aulanga
Defence: Mr. Tinoni

Verdict:

(Pallaras J)

1. The accused was charged that on an unknown date between 1st October and 13th November 2011, he did commit buggery with Lilian Sanubo ("the Complainant") who was a 9-year-old female at the time of the alleged offence. The offence was said to have occurred in the accused's garden at Henderson in Honiara.

The Complainant's Evidence

2. The Complainant was at the house of the accused looking for his wife. She had been sent on an errand to find the accused's wife and invite her to join other women in a card game nearby. After some initial conversation, the accused asked the Complainant to help him carry some coconuts from one place to another.

3. On the Crown's case, after she had helped the accused do that, the Complainant began to leave but was called back by the accused on the pretext of seeking her help to do some weeding. She returned to an area near cassava trees where the accused was weeding. He sat on the ground with the Complainant and told her to hold his penis. The Complainant's reaction was to hold her hand closely against her chest and refused to comply with the accused's request.

Use of a Shirt by the Accused

4. The Complainant then said that after cutting a "stick" of cassava, the accused tied his shirt around her mouth. It was put to her in cross-examination that in her police statement she had not told the police about the shirt and had said that the accused had used his hand to cover her mouth.

5. The Complainant asserted that she had told the police about the use of the shirt and did not claim that the accused had used his hand over her mouth. She said that she could not read and had therefore never read her statement and testified that no-one had read it over to her after it had been completed.

6. She disputed that the thumb print stamped on the document was hers saying that it was in a different position and made with a different finger to the impression on her statement. She suggested that it might have been her sister's mark.

The Complainant's Trousers

7. In her evidence the Complainant said that she had been wearing trousers under her skirt. In cross-examination it was put to her that she had not told the police about wearing trousers. Again she disputed that suggestion.

8. Despite the evidence of the Complainant, her police statement was not tendered in evidence by the defence. There was therefore no admissible evidence before me to contradict the Complainant's evidence as to what she had actually said to the police as opposed to what might have been in her police statement.

The Use of a Cassava Stick by the Accused

9. The Complainant went on to explain that the accused then bent her over and put his penis into her anus. She referred to the accused's penis as his "toto". After this, he used the cassava stick to rub against the Complainant's anus. The Complainant began to cry.

10. Thus the sequence of events that the Complainant described was that the accused had first penetrated her anus with his penis after which he used the stick to rub against her anus. In cross- examination, it was put to her that she had told the police that the accused had first used the stick and then his penis. When asked which account was accurate, she replied that

"The correct one is he pushed the stick first in my ass and then after he pushed his penis into my anus."[1]

11. The Complainant thus resorted to the order of events that she had given in her account to the police but was now alleging that the accused had "pushed the stick in" rather than "rubbed it against" her anus. When asked if she was alleging that the accused put the stick inside her anus she replied –

"Yes. My anus, into my anus, he pushed in a bit and then he took it out."[2]

12. At a later stage in cross-examination the following exchange occurred[3] –

Q. The accused never pushed a stick into your anus, is that true?

A. He rubbed it on my anus.

Q. He never put it in little bit?

Court: The stick?

Counsel: Yes, the stick.

A. No, he rubbed it outside my anus.

13. Later, the following exchange occurred between the Court and the Complainant[4] –

Q. Now you've told us that he used the stick to rub against your anus?

A. Yes

Q. You say that he did not put the stick inside your anus, is that right?

A. Yes, he only rubbed it on my anus.

Q. But that he did put something else inside your anus?

A. No, the cassava stick.

........

Q. Did the accused place anything in your anus on that day?

A. It was his toto that he put into my anus.

Q. All right. Did that feel the same or did it feel different to the feeling you had when he put the stick against your backside?

A. Yes.

Q. Did it feel the same or did it feel different that is, did the stick feel the same as the penis felt or did it feel different to the way the penis felt?

A. No.

Q. No what?

A. No, it wasn't hurtful as his penis.

Q. So did it feel different or did it feel the same?

A. No.

Q. When you say 'no', what do you mean?

A. It did not feel the same.

14. As can be seen from this evidence, the Complainant had apparently reverted to the account she gave in court, namely that the accused did not "push the stick" into her anus but rubbed the stick against it.

15. There were then two discrepancies in this part of the Complainant's evidence. First was the order in which the assaults occurred and secondly was the question of whether the stick was rubbed on or inserted inside her anus.

16. When asked "what is a toto?", the Complainant replied "I don't know, I just call it that." When asked whether she had a toto, she said "yes". She then said that men have a "toto" but she didn't know where it was or whether it was in the front or the back. She confirmed that at no stage during the alleged incident did she see the penis of the accused.

17. It was obvious from her evidence, her young age and her demeanour that the Complainant had, at best, only a rudimentary knowledge of anatomy or physiology. However having seen and heard her testify both in chief and in cross examination, I am satisfied that when she referred to the accused's "toto" that she was referring to his penis.

18. She said that when the accused put his penis into her anus, she saw a knife on the ground. After he had put his penis into her anus, the accused stood up behind her and cut the cassava stick. He then sharpened the cassava stick with the knife and rubbed it against her anus.

19. After zipping up his trousers and removing the shirt from the Complainant's mouth, the accused then said that he wanted the Complainant to go to the market with him. He also said that he would buy her a biscuit.

20. The Complainant left and went to see her mother who was playing cards at a nearby house. She said to her mother that the accused wanted her to go to the market with him, however her mother refused her permission to go. The Complainant did not mention to her mother what had happened to her.

21. The Complainant said that she did not complain to her mother because she was frightened that many people would then hear about it.

22. Some weeks later, on some evidence approximately two weeks later, the Complainant had difficulty and pain moving her bowels. She went to her mother for assistance who asked her why her anus was sore. The Complainant then revealed to her mother what had occurred. A little later on, the matter was reported to the police.

23. She testified that her anus was sore on the day of the incident and on the days following although the pain lessened. I interpose at this stage that a medical report was tendered by consent. The report was based on an examination conducted several weeks after the alleged offence. There were no findings of significance reported by the doctor.

24. She was asked whether anyone had "forced her to make up a story" against the accused. She denied the suggestion and repeated that the accused "did it". She did not know whether her mother and father ever spoke about an argument or disagreement that they had with the accused.

25. The strategy adopted in cross -examination was to fully put the accused's case and then to highlight differences between the Complainant's testimony and her police statement. While it was perfectly appropriate and proper to put the accused's case to the Complainant, highlighting what were said to be inconsistencies between her testimony and her statement without producing and tendering the statement, had limited evidential effect. Without that evidence, when comparing the language used by such a very young child, there is a danger of finding distinctions without real or significant differences – at least not such as would necessarily impact on her honesty or credibility.

26. The issue of her reliability is of course another question. I raised with counsel more than once how such differences as were said to exist in the Complainant's evidence and what was said to be in, or missing from, her statement, might affect her evidence. It may be that even if I find the Complainant to be a totally honest witness, that her degree of naivety in sexual matters and the manner in which she gave her evidence, might result in my rejection of her evidence as coming from a witness upon whom it would be too dangerous to rely.

27. In re-examination the Complainant said that she was not living with her father at the time of the offence, that she did tell the policewoman who interviewed her at Henderson about her trousers and that the reason why she told her mother when she did was because there was no-one else around at the time.

PW2 – LILIAN TEKULA

27. PW2 is the mother of the Complainant and was called to give evidence. Her sister is married to the accused. She said that she remembered that her daughter told her that something happened to her in 2011. She believed that she was told this in February 2011. She remembered that it was in February because it was the month before Christmas.

28. She explained how her daughter came to her crying and in pain after having tried to move her bowels. She accompanied her daughter to the toilet and asked her why she was in pain. After helping her to go to the toilet, she found that her daughter's stool contained blood. She then washed her daughter.

29. The Complainant told her that it was the accused who made her sore. She told her mother in terms largely consistent with her testimony, how she went to the accused's house looking for his wife to invite her to play cards with some other women. When she approached the accused in the garden, he took her by the hand saying that they should weed together. They then sat down and the accused showed her his penis. He then asked her to hold his penis at which suggestion the Complainant withdrew her hand and held it firmly against herself.

30. She then described how the accused pushed his penis into her anus. The accused then used a stick to rub on her anus. The Complainant felt pain and was crying. During this time, the accused had at times been holding onto her hand and covering her mouth with his hand. He told the Complainant not to tell her mother (PW2) and threatened to kill her if she did tell. In her estimation, PW2 said that her daughter told her about it in the second week after the alleged assault happened.

31. In cross-examination PW2 said that the Complainant was only wearing trousers, not a skirt. She was asked if she had ever argued with the accused. She said "no". It was put to her that she had argued with the accused over the land where they were living. She replied that she had no argument with the accused and that they lived there happily.

32. Then it was flatly put to PW2 not only that she had argued with the accused over their land, but that because of that argument she herself had made up these allegations against him and caused false accusations to be made. This was a serious allegation of criminal conduct and I clarified with defence counsel that this is what he meant to suggest. On receiving his assurance that he intended to put precisely those accusations, I permitted him to do so.

33. It would be plain to every law student that such allegations must not be put without evidence or at least some instructions that are reasonably capable of supporting the allegations. It is counsel's responsibility to sort the wheat from the chaff and not simply to put any allegation however wild or baseless it may be simply because his client says that he suspects it may be the case. It is one thing to put to a witness that they are mistaken or even lying as instructions dictate. It is quite another thing altogether to accuse people of criminal conduct based on no evidence whatsoever or on a whim that might be floated in conference if it cannot be supported by reason or by evidence.

34. The accusations were put and convincingly denied by PW2. After later hearing the accused's evidence on this issue, I accepted PW2 as a witness who had absolutely no pre-existing animus against the accused and I rejected absolutely the accused's suggestion that she herself had made up these accusations against him.

35. After the tendering of agreed statements, the Crown closed its case. No submissions were made by the defence at the close of the Crown case and the accused elected to give sworn evidence.

The Defence Case

36. The accused testified that the Complainant did come to his house looking for his wife although he at no stage did anything to her that was in any way improper. He says that it was on the 15th September 2011 that the Complainant arrived at his house and not, as suggested by the Crown, sometime between 1st October and 13th November 2011.

37. He told the Complainant that his wife was either weeding or at the well and invited her to have a drink of coconut. He was harvesting coconuts and there were three at the foot of the tree. The Complainant picked up the three coconuts and brought them to him. He cut one of the coconuts for her to drink from and she took it and drank.

38. The Complainant then said to him that she wanted to leave but he stopped her, saying that she should help him move some of the coconuts to the side of the house. She helped him move the coconuts and then she left. According to the accused, nothing else happened.

39. A little later, the Complainant came back with $2: 00 and said that she wanted to buy a coconut for Jenny (one of the card players). The accused said that the coconuts were not for sale and that she should use the $2:00 to buy a biscuit in Jenny's store. This part of the accused's account was not put to the Complainant.

40. The accused then testified that he had no problems at all with PW2 over land. He had some arguments with others concerning the land but not with PW2. He suspected that those others supported PW2 over him. If these were indeed the instructions of the accused, then counsel had no proper basis for making the serious allegations to PW2 that he did and he ought not to have made them.

41. The accused said that he remembered that the date was the 15th September 2011, because that was the day that he helped his wife to sell coconuts at the market. He had never been with her to the market on any other day and he specifically remembered that he had not harvested coconuts or gone to the markets with coconuts on any day after that occasion on the 15th September. It was the last occasion that he had done that in 2011 and accordingly he definitely remembered it. After returning from the market, he went to work.

42. He testified that he was able to be so certain of the dates that these events occurred because he had kept a diary in which he entered the days upon which he worked, which days he had off and which days he harvested coconuts and went to the market.

43. He was unable to produce the diary as he had left it at his place of employment and after he had been arrested, he was unable to retrieve it. Furthermore, it was for some reason impossible for anyone else to retrieve it for him on his behalf. His wife was totally unable to do so because she apparently did not know the area well enough. However, it was largely because of this diary that he was able to recall when events occurred.

44. In cross-examination it was put to him that he had made up the date after having heard the prosecution witnesses on the issue. The date of 15th September 2011, would put it outside the range of dates pleaded by the Crown in the Information. The accused denied the allegation, repeating that he knew the date.

45. The significance of this point is limited for it is the defence case that these events did not happen at all, not that they happened on another date. Further, although the date of an offence is a particular pleaded in the charge, it is not an element of the offence and need not be proven as an element of the offence.

46. This point is even more moot because I find that I do not accept the evidence of the accused (or the evidence that was also later to be given by his wife) on the issue of the diary and the date of the Complainant's visit to his house. He was unable to recall any other dates upon which he harvested coconuts and his evidence that he could remember this specific date in isolation, had all of the hallmarks of a convenient reconstruction. Furthermore, his wife was later to contradict his evidence that he did not harvest coconuts after 15th September by testifying that the accused had in fact harvested coconuts with her on 7th November 2011.[5]

47. The accused testified that he first learnt of the allegations when, on the 8th November 2011, his wife told him of a visit made by the mother of the Complainant (PW2) on the day before, that is, the 7th November 2011. During that visit, the mother of the Complainant, told his wife of allegations being made against him by the Complainant.

ROSEMARY NATEI – DW2

48. The accused called his wife to testify in his case. She confirmed that on the 7th November 2011, she had a conversation with PW2 (her sister), during which it was alleged that the accused had inserted a stick into the Complainant's anus. This conversation was said to have taken place at the home of PW2. She said that she could remember that this was the date of the conversation.

49. She said that she had only learnt that she was to give evidence, the day before she was called to testify. She admitted that on the day she was told she would be giving evidence, she had gone to see her husband who was in custody on remand, and he had told her to be a witness. When asked whether the date of 7th November was discussed, she said that the accused had brought it up during her visit. This was the time during which the accused was still in the witness box testifying in his own defence.

50. Even allowing for the difficult situation that DW2 found herself, having to testify in a trial where her husband was the accused, it was patently obvious to me that her evidence was contrived. The overwhelming inference from the evidence and the manner in which she gave it was that the accused had discussed her evidence with her at the very last minute, after having seen the manner in which the Crown case had developed. I had the strong impression that the accused's wife was simply repeating what she had been told to say by her husband on the previous day in their last minute meeting in Rove Police Headquarters.

51. She testified that her sister (the mother of the Complainant) had come to complain to her about her husband many times, not just on the first occasion which she remembered with certainty to be on 7th November. When asked to say when those other complaints had been made, she was unable to recall or even suggest any of the dates that her sister had spoken to her again.

Recent Complaint

52. As I have mentioned, evidence was led by the Crown from PW2 which essentially was sought to be adduced as evidence of recent complaint. I allowed the evidence to be led on the basis that I would rule on its admissibility at the end of the evidence. I now outline my reasons.

53. While the precise length of time that separated the alleged offending and the complaint made to PW2 about it is uncertain, it is on any view of the evidence weeks and not days. It may be that there are many circumstances and scenarios in which a complaint made two or so weeks after the offence is recent complaint evidence properly so called and is admissible as such. In my judgement, this is not such a case.

54. I am very conscious that the demands made by the criminal law on young complainants in particular, may be seen as operating in a harsh fashion. I have carefully considered the particular characteristics of the complainant, her very young age, her obvious lack of sophistication and education, the fact that the subject matter of her complaint is that which is likely to cause her embarrassment, the fact that she on her account has already been traumatised and hurt and also that she would naturally be most reluctant to talk about this matter with anyone.

55. But even taking those matters into account, her evidence that she did not complain to her mother on the first day because she was afraid as there were so many people around who would find out and her explanation that when she did tell her mother she did so because they were alone, suggests that in the weeks after the alleged offence that she told her mother on the only occasion that she was alone with her. I am not satisfied that the Crown have proven that to be so and I cannot find that the complaint was made at the first reasonable opportunity.

56. I therefore rule that the evidence of PW2 in so far as it is tendered to prove recent complaint, is rejected.

57. In any criminal case, it is paramount that the Court has uppermost in its mind that an accused is presumed to be innocent until proven guilty. He is not required to prove his innocence or indeed required to prove anything at all. While the presumption of innocence remains with the accused, the burden of proof remains with the prosecution until the end of the trial. It is the Crown that has to satisfy me of the guilt of the accused. It is only if the Crown is able to do that to the required standard, namely to the standard of beyond reasonable doubt, that the accused can be at risk of conviction. If a reasonable doubt remains as to the guilt of the accused of the offence for which he stands charged, then he will receive the benefit of that reasonable doubt and be acquitted. This is not because of any largesse from the Court, it is his right under law.

58. In a case of this nature, I have to be satisfied beyond reasonable doubt first, that the offence of buggery as alleged has been committed and second that it was the accused who committed it. Next, I have to be particularly slow to convict in a case which is essentially word against word and where there is no corroboration of the allegations. I do not suggest that there is any legal requirement for corroboration to be present before a conviction can be entered, however cases are often strengthened by being corroborated by evidence coming from a source other than the Complainant.

59. Next I have to remind myself that in order to convict I have to be satisfied beyond reasonable doubt of the credibility, honesty and reliability of the Complainant in her testimony going to the offence and take into full account any inconsistencies or discrepancies in her evidence.

60. Finally, while the accused bears no onus of proof whatsoever, if he chooses as he did in this case to give evidence on oath and subject himself to cross examination, then his evidence is to be assessed in the same manner as any other testimony on the touchstones of credibility, honesty and reliability. The same considerations apply to any witness called by the accused.
61. In the difficult task of weighing and assessing the evidence in this case I will begin with the Defence case.

62. The accused not only denied the allegations put to him by the Crown but asserted that he had a specific memory of the day that the offences were alleged by the Complainant to have occurred and that he could recall exactly what happened on that day.

63. The accused purported to be able to recall the specific date in September 2011 that he last harvested coconuts. It was on the 15th September. According to him that coincided with the day that he can recall the Complainant coming to his house to look for his wife. This was despite the fact that he says that he did not become aware of the allegations made against him until the beginning of November, when his wife told him of the visit of her sister complaining about his conduct.

64. His explanation for being able to recall the exact date was the fact that he kept a diary. Unfortunately, he was unable to produce the diary and gave what in my view was a lame explanation for his failure to do so. His claim that he could not retrieve the diary from his workplace or have it retrieved by anyone else, because he had been arrested is undermined by the fact that he was not interviewed about these allegations until the end of January 2012. Yet he had learnt of the accusations being made by the Complainant almost three months earlier.

65. I therefore do not find his evidence concerning his ability to recollect the date in September reliable because his explanation for being able to do so I do not find to be credible.

66. I am confirmed in this assessment by the evidence of his wife.

67. While the accused steadfastly insisted that the day when the Complainant came to his house was on the last day of the year that he harvested coconuts, namely 15th September, his wife was clear that he had harvested coconuts with her as late as 7th November. If his wife was correct then this would not only have meant that his evidence concerning the 15th September must be wrong, but it would also mean that his evidence that he could recall the dates of the relevant events because of his missing diary must also be wrong.

68. Furthermore, if PW2 told DW2 of the complaint made by her daughter on 7th November and the incident happened approximately two weeks prior to that date, then this would place the offence well within the time alleged by the Crown. On this aspect of the defence case, I overwhelmingly prefer the evidence of DW2 over that of the accused.

69. The defence led evidence that not only did the mother of the Complainant complain to the wife of the accused that the accused had put a stick in the girl's anus, but evidence was also led by the Defence that the Complainant herself had complained to the wife of the accused that he had done so.[6] After having objected to the evidence of recent complaint it was curious that this evidence was led by the Defence particularly so as the Crown did not lead it from PW2 when she testified.

70. Then DW2 testified that the Complainant allegedly said to her –

'I don't know if that was him or a different man.'[7]

71. When Defence counsel was asked why this was not put to the Complainant when she was giving evidence, he said

'It was not revealed to me'.[8]

72. It was clear that this statement allegedly made by the Complainant came as a total surprise to the Defence. The Complainant was never questioned about it in circumstances where doubtless defence counsel would have put it to her had he known of the allegation. The statement also contradicts not only the evidence given by the Complainant that it was the accused who assaulted her, but also belies the certainty in the manner in which she gave that evidence.

73. When DW2 testified she said that the complaint about her husband had been made to her on 7th November. She said that PW2 had complained many times to her about it. She was asked how many other times she could remember and said that there were approximately five other occasions. She was able to describe where these complaints were made but when asked to give a date for any one of them, was unable to do so. When she was asked whether the date of the 7th November had been discussed between herself and her husband on the previous day when she visited him she replied[9]-

JUDGE: Then what did you talk about?

He said yesterday that at 2 o'clock they were going to get him to come to court.

**

Was the date 7thof November discussed? Was the date 7th November mentioned?

He was the one that said it.

What did he say?

He said that you're going to come to my court.

I'm asking about when he mentioned 7th of November what did he say?

He said for me to be a witness for him.

MR AULANGA: Yes, we understand that, Rosemary. What did your husband say to you about 7th of November?

He talked about the girl and the thing that happened with the girl.

And is that when you know about 7th of November?

Yes.

74. The defence case would have it that DW2 had an accurate recollection about the date of the occurrence of one event, a date that just happened to coincide with the accused's evidence about it, but had no recollection whatsoever about the dates of any one of four other similar events that occurred around the same time.

75. Having seen and heard both defence witnesses, it is very plain to me that the accused had impressed upon his wife the significance of the date of the 7th November and that had it not been for his coaching she would have been just as unable to recall that date in November as she was in respect of the other four dates in November. Once again, the overall impression left by the defence evidence is that of convenient reconstruction based on a missing diary and a frightened and concerned but nevertheless coached witness.

76. I turn now to the prosecution case.

77. I have already discussed the discrepancies in the principal and really the only witness for the Crown. The difficult issue to address is whether those discrepancies reach a level that render her evidence to be unreliable and incapable of supporting a verdict of guilty beyond reasonable doubt.

78. It is obvious that not every discrepancy or inconsistency means that a witness is to be rejected as a reliable witness. The discrepancies need to be such as to amount to and represent a failure by the Crown to dispel every reasonable doubt about the guilt of the accused.

79. In this case while I am in no doubt that it was the accused who was with the Complainant in the garden on the day as alleged by her, the question about which I need to be satisfied beyond reasonable doubt then is whether the accused did what the Complainant alleges that he did. In other words, am I satisfied beyond reasonable doubt that a penis was inserted into the anus of the Complainant and am I similarly satisfied that it was the penis of the accused.

80. The Complainant has given conflicting evidence as to the order of the events which she says occurred on that day. I have discussed above the evidence relating to the use of a stick and when in the sequence of events this occurred.

81. I am satisfied that despite her young age, the Complainant did know that a stick was being used in some way against her anus even if only because of her explanation that appears below –

"How do you know it was a stick?

Because it was a big stick.

He was behind you?

Yes.

Could you see the stick?

** No, I felt it.

How do you know that it was a stick?

Because I felt it was strong."[10]

82. She had seen the accused cut the stick, seen him sharpen it with a knife and it is reasonable for her to correctly assume that because of what she could feel, the stick was being used against her. It is true that on one occasion she says that he "put it in a little bit" and on another occasion that he "rubbed it against my anus".

83. I am not of the view that this is such a significant difference as to render her evidence unreliable. It is not difficult to conceive that when doing one action the accused also did the other. In other words, it seems quite possible that in rubbing the stick against her anus that it may have gone into her anus "a little bit". I am not certain beyond reasonable doubt as to exactly what the accused did with this stick, but I do not have to be. This indecent assault (on whichever of the Complainant's version is used) does not form the subject of any charge on the Information.

84. I am also satisfied beyond reasonable doubt that the Complainant knew that it was a penis which was being inserted into her anus even given her brief explanation that she knew it was a penis

"Because I felt it."[11]

85. I do not need to be satisfied beyond reasonable doubt as to which order these two events (the use of the stick and the use of the penis) occurred. I do need to be satisfied beyond reasonable doubt that at some time during this meeting between the accused and the Complainant, the accused put his penis into the Complainant's anus.

86. Notwithstanding the discrepancies in the evidence of the Complainant referred to in this judgment, I find that she has told the truth in this court. I also find that such discrepancies as do exist are insufficient for me to have a reasonable doubt about her truthfulness or her reliability. Or, to put it another way, I find that the Crown have discharged the onus of satisfying me beyond reasonable doubt that the evidence led from the only prosecution witness who testified as to the offence itself, was honest, credible and reliable.

87. I find the evidence of the accused and his witness to be untruthful, rehearsed and conveniently contrived. I reject the defence evidence.

88. The inevitable result of these findings is that it is the order of this Court that the accused is convicted of the offence of buggery contrary to section 160(a) of the Penal Code.

THE COURT

^[1] Transcript, Day 1, at p.78
^[2] Ibid.
^[3] Transcript, Day 2, at p.6
^[4] Op.cit., at pp.15-16
^[5] Transcript, Day 3, at p.30
^[6] Transcript, Day 3 at pp.18-19
^[7] Op.cit., at p.20
^[8] Ibid.
^[9] Op.cit., at p.28
^[10] Trial Transcript, Day 1, pp.78-70
^[11] Op.cit., at p.79