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Regina v Taru [2012] SBHC 28; HCSI-CRC 142 of 2011 (3 April 2012)

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

Criminal Jurisdiction

REGINA

-v-

URIEL TARU

Date of Hearing: 20th February to 7th March 2012.
Date of Judgment: 3rd April 2012.

Ms. Fineanganofo and Mr. Naiqulevu for the Crown.
Mr. Cade for the accused.

JUDGMENT

Introduction.

1. The accused, Uriel Taru, is charged with 2 counts of rape contrary to section 136 of the Penal Code. The prosecution says that the accused raped the complainant, Ms Margaret Isabela, once at Oa village on an unknown date between 1st and 30th June 2010 and again at Kolovahakiki village on an unknown date between 1st and 18th September 2010.
   
2. The accused is also charged with two charges of defilement of a girl between 13 and 15 years of age under section 143(1)(a) as alternatives to the rape charges. It is alleged that the complainant was 14 years old at the time of the incidents.
   
3. The accused has pleaded not guilty to the two rape charges but pleaded guilty to the two alternative defilement charges. He does not dispute the allegation that the complainant was 14 years at the time of the sexual encounters.
   
4. Since the accused had pleaded not guilty to the rape charges, I must remind myself, first, that the burden is on the prosecution to prove each and every element of the offence beyond reasonable doubt. This means that the prosecution must make me sure that the accused is guilty before I can convict him of the offences.
   
5. Second, as this is a case of sexual nature, I must caution myself of the danger of convicting the accused unless the testimony of the complainant is supported by evidence from an independent source as to the matters in dispute. I need not exercise caution if I am satisfied that the complainant is telling the truth[1]. However, where I am doubtful about the truth of the complainant's evidence, it is safer to require corroboration. The corroborative evidence must relate to the sexual intercourse and the absence of consent.
   

Elements of rape.

6. The offence of rape is defined under section 136 of the Penal Code which provides as follows:-
   

"Any person who has unlawful sexual intercourse with a woman or girl without her consent or, with her consent if the consent is obtained by force or by means of threats or intimidation of any kind or by fear of bodily harm or by means of false representation of the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of the felony termed rape."

7. The issues on a charge of rape are whether sexual intercourse occurred and whether there was no consent on the part of the complainant. Sexual intercourse is proved by establishing penetration of the vagina by the penis. Consent is to be found in the facts immediately before and immediately after the sexual intercourse.
   

Sexual intercourse and consent.

8. In this case, there is no dispute that sexual intercourse between the accused and the complainant occurred twice. In fact, the accused alleged that he had sex with the complainant, not twice, but three times. Hence, the only major dispute in this case is in regards to the question of lack of consent. The prosecution says there was no consent while the accused asserts that the sexual acts were consensual.
   
9. However, an important issue which has arisen in the course of evidence, and which will affect the credibility of the evidence by both the accused and the complainant, is the location where the first act of sexual intercourse is alleged to have taken place. The complainant said that it occurred at night at Oa village while the accused said it occurred during the day near the road side in a coconut plantation close to his village of Kolovahakiki. Obviously, both cannot be right.
   

The Crown witnesses.

10. The Crown has called three witnesses to prove its case. They were the complainant, Ms Margaret Isabella, the complainant's father, Walter Eriga ("Walter"), and the complainant's mother, Ellen Kulia ("Ellen").
    
11. I must say that the evidence by Walter and Ellen were relevant only in relation to the age of the complainant. There is nothing in their evidence which goes towards proving sexual intercourse or no consent on the part of the complainant.
    

First sexual encounter – the Crown's evidence.

12. The complainant's evidence is that the first sexual encounter occurred on Friday night at Oa village. The complainant could not remember the exact date, but said that was on a Friday night in June 2010. She was watching movie that night with Patrina and Chris when she decided to go out. Patrina and Chris followed her. They went and stood beside a canteen. There was a shop keeper in the canteen at that time. As they stood there, Patrina left saying she would go and buy cake. The complainant and Chris remained behind near the canteen waiting for Patrina to return. Patrina did not return because she went back to watch movie. Chris then decided to go after Patrina. The complainant did not follow Chris because she said Chris told her to wait while he went to find Patrina. She continued standing there on the ground near the ladder of the canteen after Chris left. Chris and Patrina never returned to her that night.
    
13. While standing there by herself near the canteen ladder, she saw a person ("culprit") in the door way of a kitchen which was about 4 to 5 meters from the canteen. The culprit came to a dark spot near where she was standing and grabbed her hand. She did not recognize the culprit because it was dark. The culprit then pulled her to the kitchen. When the culprit grabbed her hand, she asked the culprit who he was but the culprit did not answer. Instead, the culprit pulled her into the kitchen. In the kitchen, the culprit kicked her legs causing her to fall onto a mat. The culprit then took off his lavalava and had sex with her. All the while, the complainant continued to tell the culprit to leave her alone but the culprit told her to remain quiet and would not let her go.
    
14. The complainant said that it was in the kitchen when the culprit was having sex with her and speaking to her that she was able to recognize his voice as that of the accused. She said she knew the accused well and had heard him speaking many times before. She said that she called the accused her "small uncle" and that she knew the accused's wife and children well. On being asked why she did not call for help, she said that the culprit held her mouth so she was not able to call out for help. She said that was her first time to have sex so there was blood coming out from her vagina. She said the accused's penis broke through her pants and into her vagina.
    
15. After having sex with her, the accused then told the complainant not to tell anyone. The accused wore his lavalava and then left. The complainant returned to her house. On the way, she threw her torn panties into the sea. On her return to her house, her parents were already asleep so she did not tell them about the incident. She did not tell anyone else about the incident because the accused had threatened to kill her if she did.
    

First sexual encounter – the accused's evidence.

16. The accused, however, denied ever having sex with the complainant at Oa at any time. He said he had had sex with the complainant three times and that the first time was at a road side in a coconut plantation near his village of Kolovahakiki.
    
17. His evidence in relation to the first incident is as follows: He had climbed up a betel nut tree and was at the top of the betel nut tree when the complainant came around and made signs to him with her fingers portraying the penis of a man. That was at Nagui. The accused responded by telling the complainant to wait for him. When he got down from the betel nut tree, a conversation took place between them during which they planned to go and have sex. The place where they planned to have sex was a bit further beyond Nagui. The accused went first and the complainant followed him later. However, when they reached the place, the accused decided against having sex at that place and told the complainant that they would have to return to his house and then go to another place.
    
18. The accused and the complainant then returned to the accused's house. On arrival, they sat down with the accused's wife, Pepetua, and children, including his sister and her children, and chewed betel nut. The accused then left first to go to the place where they had planned to have sex. The complainant followed him a few moments later. They met on the road. The accused suggested that they move a bit further into the bush. They moved into the bush about 6 meters from the side of the road and there the accused had sex with the complainant. The accused said that that incident happened during the day. He did not say what day or month it was. However, he admitted that it was before the complainant's parents came over to Honiara.
    
19. The first issue here is the location where the first incident of sexual intercourse took place between the accused and the complainant. It is a case of the complainant's words against the accused's words. Things would have been easier had Patrina and Chris been called to confirm that the complainant was at Oa village near the canteen that night. That was not done so I have to look further to see whether there are other evidence which supported the complainant's assertion that she was at the canteen at Oa that night. If I find no independent evidence to support the complainant's evidence then I must consider whether the complainant's evidence is so credible that I could still believe her evidence even without corroboration. If I accept the complainant's evidence then the accused's evidence in relation to the first sexual encounter falls in its entirety. In determining the credibility of the complainant's evidence, I must have regard to the whole of the evidence.
    

Second sexual encounter - the Crown's evidence.

20. As for the second sexual incident, the complainant's evidence is that the incident happened in September 2010 when her parents were away in Honiara. She could not say the exact date. She said she was at school that day with one of the accused's children, Alice. After school, she was invited by Alice to go with her to have a meal at their village at Kolovahakiki.
    
21. On arrival at Alice's house, her mother (who is also the accused's wife), Pepetua, cooked some rice which the complainant and the accused's children ate. After the meal, Pepetua told the complainant and the children to go and get some "leaf" so they could chew betel nut. (The word "leaf" is a term used to refer to a thin greenish type fruit of a creeper-like plant. The fruit is normally 5 to 10 centimeters in length and is often chewed with betelnut fruits to give a reddish colour juice in the mouth. The "leaf" plant was imported from Papua New Guinea, hence, it is also sometimes known as "New Guinea leaf".)
    
22. According to the complainant, the "leaf" plant was about 8 to 10 meters away from accused's house. The complainant said that the children refused to go so she went by herself to get the "leaf". She said that about 20 meters beyond the "leaf" plant was a toilet house. She said that as she was collecting the "leaf", she heard a wild cat crying on top of a hill so she went up the hill to see the cat. It is not clear whether she went to the toilet before going up the hill to see the cat or whether she went straight from the "leaf" plant and up the hill. However, she said that when she got to the top of the hill, she was standing at the place where the cat was crying when the accused came and grabbed her hand. The accused was holding a knife at that time.
    
23. The complainant said that when the accused grabbed her hands, she told the accused to let her go but the accused instead told her to come with him. The accused then pulled her into the bush. She said she struggled but the accused held onto her hands very tightly and pulled her into the bush. She said he then kicked her legs and she fell down. She said she tried to get up and pleaded with the accused to let her go but the accused told her to keep quiet. He then climbed on top of her and had sex with her. After that, the accused got up and told the complainant not to tell anyone what happened.
    
24. The complainant then went to a river, washed herself and returned to the accused's house to get her books. On arrival, Pepetua asked her what she and the accused did. She then told Pepetua that the accused had had sex with her. She said she told Pepetua about the accused having sex with her because Pepetua had seen them having sex and that Pepetua knew that she had had sex with the accused. She went and got her books and was about to go home the accused arrived back at the house. On his arrival back at the house, Pepetua scolded the accused for having sex with the complainant.
    

Second sexual encounter - the accused's evidence.

25. The accused's evidence relating to the second incident is that he had sex with the complainant when the complainant followed his children to his house after school. He did not mention what date that was. He said that he had previously told the complainant that whenever she wanted sex, she was to follow his children to his house and if he saw her arriving with his children then he would know that she wanted to have sex.
    
26. He said that when he saw the complainant arriving with his children, he knew immediately that the complainant wanted to have sex. He then said that after he and the complainant and the children had had their meal, he left first and went to the place which they had earlier planned to meet. She followed him and upon arriving at that place, they then had sex. After having sex, a small boy came to them. They then went with the boy and got some cabbage, climbed betel nut and then returned to his house.
    

Third sexual encounter - the accused's evidence.

27. The accused alleged that he had had sex with the complainant a third time. This is disputed by the complainant.
    
28. The accused's evidence regarding this third incident is as follows: The incident happened during the day on a Friday. He said he went to the school and saw the complainant standing with his children. The children told him that they were waiting for him to come. He told them what to do and then asked them to go. His children and the complainant left first and he followed them. When they got to the place where they planned to meet, he told his older daughters to go and pick coconut fruits while he and the complainant and his youngest daughter went to get kakake (that is, swamp taro). When they got the kakake, the accused, the complainant and the youngest daughter returned to the accused's house and peeled the kakake. While peeling the kakake, the accused and the complainant made plans to go and have sex after they had peeled the kakake and had put the pot of kakake on the fire. He said that after they had put the pot on the fire, he left first and went into the bush and followed a stream. He told the complainant to follow him but to walk along the road and not follow the stream. Later the complainant left and went after him. They met at a nut tree and there they had sex. After having sex, they returned to the accused's house.
    
29. On arrival at the accused's house, the accused's wife, Pepetua, asked them what happened. According to the accused, Pepetua became sarcastic about him and the complainant. The accused said that because of Pepetua's sarcastic comments, he decided to be frank and told Pepetua of about his relationship with the complainant and the sexual acts that had occurred between him and the complainant.
    
30. Pepetua also gave evidence. She was a witness made available by the Crown on request by the defence for cross examination.
    
31. Pepetua's evidence is that in 2010, the complainant came to their house. She came with her daughter, Alice. She said Alice and the complainant were good friends. She said that when Alice and the complainant came, the complainant and the accused went to get Kakake. Upon their return, the complainant and the accused peeled the kakake in the kitchen while Alice went and collected coconut for the kakake.
    
32. While the complainant and the accused were peeling the kakake, Pepetua saw them whispering to each other. Then she saw the accused leaving and going to a stream. The complainant left later and followed the road which led to their garden. Pepetua then followed them walking along the same route taken by the complainant. She met up with them and saw them having sex in the bush. On seeing them having sex, she returned to their house. She said she was not angry when she saw them having sex and she did not say anything to them. However, when the accused arrived back at their house later that day, she scolded the accused for having sex with the complainant.
    

Analysis of the evidence.

33. I must reiterate again that the burden is on the Crown to prove their case against the accused beyond reasonable doubt. There is no burden on the accused to prove his innocence.
    
34. In this case, there are certain aspects of the complainant's evidence that affect her credibility. A number of questions remain unanswered in relation to her evidence regarding the first incident. Why was she willing to remain behind at night when Patrina and Chris returned to watch movies? Why did she not call for help when her attacker grabbed her and started leading her to the kitchen? After all she said that there was a person in the canteen and that she was standing beside the canteen when the attacker grabbed her. Why didn't she call for help when the attacker kicked her legs in the kitchen causing her to fall. According to her evidence, the kitchen was just 4 or 5 meters away from the canteen and if she had shouted, it is likely the person in the canteen would have heard her and come out and check what was happening. Why didn't she report the matter to her parents when she arrived back at her house that night. After all, her parents were at home when she arrived. They might have been asleep when she arrived home, but if the incident was so distressing to her as she claimed it to be, I am sure she would have awakened her parents immediately upon her arrival. In this case, she did not tell her parents about that first incident that night and had waited until about 3 or 4 months later before telling her parents about it.
    
35. The complainant's failure to call for help and the fact that she kept talking to the attacker when she should have been calling out for help gives me the impression that she was not afraid of her attacker. It seems to me that either she knew the person who grabbed her and participated fully with him or she is not being truthful in her evidence about her allegation that she was raped in the kitchen that night.
    
36. This means that I cannot accept her evidence without corroboration and it is here that the evidence of the complainant must fail for I have found no independent evidence to corroborate her evidence that she was grabbed and raped at Oa village on Friday night as alleged.
    
37. The following aspects of the complainant's evidence have added further doubts on her credibility in relation to what she alleged to be the second sexual incident.
    
38. In her evidence regarding the second incident, the complainant said that after she returned to the accused's house to collect her books following that second incident, the accused's wife, Pepetua, asked her what she and the accused did. The complainant said that Pepetua asked the question because she had seen them having sex. She then said that she told Pepetua that the accused had sex with her. The complainant further said that when the accused returned to their house after the alleged rape, Pepetua talked to the accused accusing him of doing wrong to children.
    
39. This piece of evidence from the complainant confirmed the evidence of the accused and Pepetua both of whom said that Pepetua talked to the accused at the accused's house after seeing them having sex in the bush. However, according to the accused and Pepetua, Pepetua talked to the accused after the third incident, not after the second incident. I prefer the evidence of the accused and Pepetua to that of the complainant in respect of this matter. I am satisfied that Pepetua talked to the complainant and the accused after the third incident and not after the second incident.
    
40. Another aspect which casts doubt on the credibility of the complainant is the fact that she willingly accompanied the accused's daughter, Alice, to the accused's house after claiming that she had been raped by the accused on an earlier occasion in a kitchen at Oa village. In her evidence, she said she was very frightened of the accused because of what he did to her on Friday night at Oa village. Yet, she willingly accompanied Alice to the accused's house. Such behaviour is inconsistent with that of a person who claimed to have been raped by the accused and was afraid of the accused. I agree with the submission of counsel for the accused that the complainant's conduct is more consistent with the behaviour of someone conducting a covert affair and who wanted an opportunity to meet her lover.
    
41. Finally, upon the return of her parents, the complainant admitted that she only told her parents about the second incident and did not immediately tell her parents about the first incident until later. Her excuse was that they did not ask her about the first incident and that she was afraid her parents might be angry with her if she told them. I find this a strange excuse. No responsible parent would get angry with their daughter if she told them that she was raped by someone. It would be reasonable to expect them to get angry only if the daughter admits to consensual intercourse with the person. I do not believe the complainant.
    

Verdict.

42. In the light of these doubts, I am not satisfied to the required standard that the accused raped the complainant as alleged. I therefore find the accused not guilty of the two counts of rape and accordingly he is acquitted of the two counts of rape. However, on his own plea, I find him guilty of the two alternative counts of defilement.
    

THE COURT

^[1] See sections 18 and 19 of the Evidence Act 2009.