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Regina v Paul [2017] SBHC 109; HCSI-CRC 346 of 2015 (29 September 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case Number 346 of 2015

REGINA

V

RASUIRARO PAUL

Date of Hearing: 17^th, 18^th November 2016, 29^th August 2017, 8^th September 2017

Date of Judgment: 29^th September 2017

Counsels for the Crown: Ms Joel F

Counsel for the Accused: Mr Galo N

JUDGMENT

Kouhota J

The accused Paul Opaka Lynsanda Rasuiraro was charged with Rape contrary to section 136 of the Penal Code. The provision of the Penal Code under which the accused was charged had since been repealed by the Penal Code (Amendment) (Sexual Offences) Act 2016. The trial however, proceeded by virtue of section 24(e) of the Interpretation General Provisions Act Cap 85, which states that ‘the repeal of an Act does not affect any investigation, legal proceeding or remedy in respect of any right, privilege, obligation, liability, penalty, forfeiture or punishment’.

By information filed on 6^th August 2015, the prosecution alleged that the accused on 16^th September 2014, at Tawaimare Primary School, West Are Are did rape Ms. Tracy Hoatamauri.

At the outset there are two matters which I wish to raise in relation to the information;

1. That accused was charge under a wrong section of the Penal Code. The correct section should have been section 136 of the Penal Code and not section 137 as it appears on the information.
   
2. The particulars of the offence, as stated in the information, do not confirm with the rules of framing charges and information under section 120 of the Criminal Procedure Code, hence, both the information and the particulars are deemed defective.

The court therefore order and amended the defects in the information under the section 251 of the Criminal Procedure Code.

To ensure that the correct sections of the offence are stated in the information and particulars confirm with the provisions of the Criminal Procedure Code relating to framing charges are matters for prosecution to check and correct before the information are filed and served on the accused. It does not reflect well on the Office of the Director of Public Prosecutions if the courts continually discover that the information and particulars of offences filed are defective.

The Prosecution Evidence

The prosecution called three witnesses to give evidence in support of the allegation. The first prosecution witness is the complainant, Tracey (PW1). At the time of the alleged offence she was 15 years old and a class 6 student at Tawaimare Primary school.

Her evidence was that on the morning of 16^th of September 2014, she went to the accused’s office to ask for a new exercise book. Accused told her to return after break time to get her book. Complainant returned after break as instructed by the accused. When she entered the accused office, accused was already standing up. Accused then knocked her legs and made her to lie down on the floor and had sex with her.

That day she was not wearing any under pant. Accused did not removed the cloths he was wearing but only pulled down his zip and pulled lowered his jeans. He lifted the complainant’s skirt and pushed his erected penis into her vagina. Victim said she struggled and wanted to shout but accused held her mouth and told her that if she tells anyone he will be in big trouble and would have to kill her. It was painful when accused had sexual intercourse with her so she cried but accused did not say anything to her.

After accused had sexual intercourse with her she grabbed her exercise book from the accused table and went out from the accused’s office and walked home. She did not meet anyone on the way home. Complainant did not say whether anyone saw her leaving the accused office. She said the accused’s office is 15 meters from the general office. She said all students have returned to class that time. When she got home she did not tell her parents because she said she was afraid the accused will kill her.

She said she started to miss class because she felt pain in her vagina. Four weeks later she attempted to commit suicide but was seen by her father who took the medicine from her. That is when she relates the story about the rape to him.

PW2 is Mr. George Hoatamauri, his evidence relates mainly to the complainant changing behaviour after date of alleged incident. On the 15^th October he said complainant was sick .He gave her the key to get some Panadol. She went up into the house, he called two times but complainant did not answer. He thought the girl must be very sick so he went up to her room and saw her covered with a bed sheet and holding an orange cup with white liquid in it. It was a mixer of Panadol tablets. He took it from her then asked why she wanted to do this. Later complainant told him that the accused had sexual intercourse with her.

The next morning his wife PW3 overheard PW2 discussing these matters with the complainant. PW2 did not mention to PW3 that their daughter attempted to commit suicide. He then instructed by PW3 to go to the accused and asked accused about the matter. She went to the accused and told him about the allegation and told him to pay a compensation of $5000.00. Accused swore by his bald head that he cannot do such a thing to her daughter because her husband is his relative. Accused refused to pay the compensation but made a counter claim for the same amount. PW3 reported the allegation to the Principal of Tawaimare Community High school, then later to the Malaita Province Education Authorities and the Police.

PW3 is Lina Hoatamauri, like her husband PW2, her evidence was about the changing behaviour of the complainant and the approached she made to the accused when the allegation surfaced. PW2 did not tell her that their daughter attempted to commit suicide in the evening. Most of her evidence add nothing to prove the issue in question that is whether the accused had unlawful sexual intercourse with complainant as alleged or not.

Defence evidence

The accused gave evidence on oath and denied the allegation. His evidence was that on 16^th September 2014, he came early to the school about 7.30 am. He took 24 exercise books and distributed them to the students. After this, he went to the general office and instructed other teachers that if anyone wanted to attend a funeral at Wairaha they can come the next day. He then left Tawaimare School at about 9 am to Wairaha. On the way he met Samson Harisimae, another teacher of Tawaimare School, at Waisurione, coming back from Wairaha. He asked Harisimae for the time and he told him it was 10 o’clock. Waisurione is about halfway between Wairaha and Tawaimare School. He returned to the school 10 days after attending the death of his cousin brother.

He first heard about the allegation when Lina (PW3) came to his house one morning and told him to pay $5,000.00 compensation then that should be the end of the matter. He swore that he cannot do such a thing to PW3’s daughter because her husband is his relative. He did not pay compensation because he said the allegation was not true. He reported the matter to the Principal of Tawaimare Community High School who advised him to report the matter to the chief. He then reported the matter to the chief, Michael Hoahania. Chief Michael Hoahania went to see PW2 and his wife PW3. The next day Chief Michael came and told the accused that the complainant’s parents want the matter to be dealt with in a court of law.

The accused going to Wairaha and was confirmed by the evidence of DW2, Samson Harisimae and DW3, Janet Waroka. Janet Waroka also confirm that the signature of the complaint’s exercise book was her signature. I do not think it is necessary for me to spend any more time on the rest of her evidence or the rest of the defence evidence.

The crucial issues in this case are matters of fact, hence, while I had read and considered the case authorities refer to by counsel, I made no reference to them in my judgment.

Assessment of the evidence.

There are two conflicting version of facts, hence, the outcome really depends on which version of facts the court accepts. I however, remind myself that even if I do not accept the accused’s version of facts as the true, it does not mean that I have to find him guilty. The burden of prove remains with the prosecution throughout and if the accused version of facts or any other inferences cast reasonable doubt on the prosecution evidence then the accused is entitled to be acquitted.

The complainants’ evidence was that rape took place in the accused office after break time round about 11 o’clock. She did not tell the court how that is possible in a school compound at this time of the day as teachers and students would normally still be around. The other issue is that how far the accused’s office is from the general office and the classrooms. The complainant said accused office is 15meters from the general office while the accused said it is just about 3 steps from the general office and it used to be a laundry. Complainant also said the classrooms are behind the office. No evidence of how far the classrooms are from the accused’s office is before the court.

There is a big difference regarding the 15 meters estimation given by the complainant and 3 steps given by the accused. The police did drew a sketch plan of the office but surprisingly there is no measurement on the sketch, nor was there any fix points on the sketch, hence, there is no independent evidence about the distance between the general office and the accused’s office or the classrooms. These are the important factors from which inferences could be drawn to determine whether it was possible that the accused could be able to rape the complainant in his office and to prove or disprove the allegation.

The complainant, PW2 and PW3 ‘s story on which the prosecution case was premised is the date and the signature on the cover of the exercise book which Tracey said she went and got from the accused office after school break on 16^th September 2014. They believe the signature on the cover is that of the accused Mr Rasuiraro. This belief or insistence was held onto until cross examination when to their surprise it was revealed that the signature was not that of Mr. Rasuirao but that of Janet Waroka, the school stock master.

I had observed the witnesses in the witnesses box and while the complainant appeared calm, giving her evidence, there are issues which still cast doubts about her evidence, such as, was it a coincident that she was not wearing any under pant on the day of the alleged rape making easy for the accused to quickly penetrate her vagina? The time of the day which she alleged the rape took place and the location also makes it difficult to believe without hesitation. Why then if it is true she had been raped, why didn’t she tell her parents immediately and if she was really afraid of the accused, why did she continue to attend classes after alleged incident. The accused’s office is located close to another office and I accept the accused’s evidence rather than the complainant on how far it was from the general office because if it used to be a laundry then it would be closer to another bigger building.

The evidence of PW2 and PW3 too must be treated with caution. Both lied to the court about who wrote their statements. It was put to them that their statements were written by PW2 but PW2 insisted that it was police who wrote his statements only to admit later that he wrote his own statement when he was cornered and shown a copy of the statement. PW 3 also stated it was the police who wrote her statement and she just signed it. She denied it was her husband that wrote her statement, both under cross examination and again under re-examination. I had carefully looked at handwritten statements of PW2 and PW3 and both bears the same handwriting. PW 2 when pressured, finally admitted that he wrote his own statement. I am sure he also wrote his wife PW3 statement because the handwriting on PW3 statement is the same as the handwriting on PW2 statement. That is quite visible and obvious even to an untrained eye. I do not believe both could easily forgot that the police did not write their statements. I had observed PW3 and clearly, she was unimpressive in manner when she gave her evidence. She seems to say things only favourable to her course.

My observation was that the 3 prosecution witnesses, especially PW2 and 3 are determine to have the accused convicted to the extent that they did not care whether they are telling the truth or not. I believe PW2 has a motive as written in his statement and revealed under cross examination i.e. that he, PW2, told police that Paul Rasuiraro raped his sister in 1970. He said he was 15 years old but he still carry the horror with him. The prosecution witnesses’ evidence (story), in my view, is a well-rehearsed drama. This is not surprising they all live in the same house and all had the same interest or motive.

Conclusion

In final analysis, the demeanour of the prosecution witnesses makes it difficult for me to believe their evidence. As a matter of law, the accused does not have to prove anything, hence, having found it difficult to believe the prosecution evidence it is not necessary to dwell any further on the defence evidence apart from those that I had already considered in my assessment of the evidence earlier in the judgment. On the prosecution evidence before me, I am not satisfied beyond reasonable doubt that the accused raped the complainant as alleged. I find him not guilty and acquit him of the charge against him.

I had reached the verdict but there are issues of concern which I feel I have to mention. This case is a classic example of poor police investigation and a failure by those responsible for supervising police investigations. There were number of people mentioned in the evidence before the court and if the police had been vigilant, they should have obtained statements from these independent witnesses rather than just the family members. In this case, it is surprising why no statement was obtained from the school principal or any of the teachers or students. Even the sketch of the crime scene was not properly done and is virtually useless. These failures had led the crown counsel to seek an adjournment after the three prosecution witnesses had given evidence seeking time for the police to get further statements from other possible witnesses.

I refuse the application on the basis that the time for investigation and getting statements is over, the Preliminary Inquiry (PI) has been completed and we are in the middle of the trial, hence, it is not the time for the prosecution who realised that their case is falling apart then seek an adjournment for police to go and fish for evidence to support their case. These are matters that the prosecution should have considered even before deciding to lay the charge against the accused.

One can sympathise with the prosecution but if the police failed to properly investigate a case, it will certainly put the prosecution in an awkward position and from the start they will have to fight their case starting on the back foot. Poor police investigation of crimes makes a mockery of our criminal justice system, it defeats the notion of fair trail not only in regard to fairness to the accused person but also to the victim and the public at large. Fairness it was said, entails a trial that ensure that the accused is convicted if guilty and acquitted if innocent. That is what justice is about.

Prosecution had the right of appeal.

I understand that the accused is on cash bail, I order that the cash bail be returned to him.

The Court

Emmanuel Kouhota

Puisne Judge