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R v Vouza [2018] SBHC 107; HCSI-CRC 30 of 2014 (17 October 2018)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 30 of 2014

REGINA

V

ERNEST VOUZA
Accused

Date of Hearing: 11, 12, 13 September 2018
Date of Judgment: 17 October 2018

Ms. O Rachel with Brenna for the Crown
Mr. D Nimepo for the Accused

JUDGMENT

Introduction

The accused Ernest Vouza was charged with Rape contrary section 136 of the Penal Code.

By information filed, the prosecution alleged that the accused Ernest Vouza on 17^th August 2013 he did have unlawful sexual intercourse with Linda Foufaka without her consent.

Section 136 the Penal Code had since been repealed by the Penal Code (Amendment) (Sexual Offences Act) 2016. However, the court proceeded with the trial by virtue of section 24(e) of the Interpretation and General Provisions Act, Cap 85.

The accused and the complainant at the time of the alleged incident were both students at the Kaotave Rural Training Centre (RTC) on North Guadalcanal.

Prosecution evidence

The prosecution version of facts was that on Saturday 17^th August 2013, the complainant and another girl Annie Bakud were making buns in the dining hall. The accused came into the dining hall holding a bush knife. He came to where Linda was working and frightened her by hitting the table with the knife. He then said in pidgin “iu gele ia nao ia”. (In English it means “so you are the girl!”) and said “you just a show off”. The accused then wore Linda’s slippers and walked to Madam Alice’s house. After he left, the girls left the buns to rise then left the dining hall and went to the kitchen to light the fire to heat up the drum to bake the buns. I understand the drum is used as an oven.

After lighting the fire the two girls sat on a stool talking. The accused came back still holding the bush knife. He came and sat beside the girls and said you show-off. Linda said to him how do I show off and accused said because when I asked you to be my girlfriend you lied and said you already have a boyfriend. Linda said to him I already told you I already have a boyfriend. The accused then said I can’t say anything and then said to Linda in that case just go and buy me cigarettes.

Linda said that she will asked Annie so they can go together but the accused turned to her and said “fuck you” you are the one I said to go and buy cigarettes” he then said to Linda you stand up, here is the money” and told her to go with him to buy cigarettes. Accused said to Linda ‘the two of us will go. They then followed a short route to Kaotave Primary school also known as Sir Jacob Vouza Primary school.

When they got to Kaotave Primary school accused told Linda to go and buy cigarettes while he waited at the road. Linda went to the teacher’s houses and asked for cigarettes. One of the teachers told her to go to the house at the end. She went to the house but was told that cigarettes were sold out and they don’t have any left. She returned to where the accused was waiting and told him that there were no cigarettes.

They then walked back to Kaotave RTC following the main road but the accused said they should take another route in the cocoa plantation because a teacher named Vero was cutting firewood near the road and she might see or hear them. They followed the road suggested by the accused. On the way the accused started touching the complainant’s body and pulling her shirt. Complainant said she keep hitting his hands away. They stopped somewhere along the road and the complainant listened but did not hear anyone cutting firewood so she said to the accused there is no one cutting firewood.

If a teacher was cutting fire wood why are they afraid that teacher will see or hear them. Another question is why Linda have to listen to see if someone was cutting firewood. I will return to these questions later in the judgment.

The accused said to her I lied to you, I just want to have sex with you. Complainant said to him so you lied to me when you said we are going to buy cigarettes? Accused then told her to remove her underpants but she said she did not want to. She said accused insisted and said it will be a quick one. She then removed her underpants. Accused then told her to lie down. Complainant said she did not want to so she stood there for a while thinking but then eventually lie down. The accused came on top of her and had sexual intercourse with her. Complainant said accused copulated and soon she felt him ejaculated inside her vagina. After that he stood up, put on his cloths and also told the complainant to put on her cloths.

As they started walking back to the school, accused took the complainant’s mobile phone and called Madam Janine and told her to meet them on the main road. Madam Janine obliged and came to meet the accused and complainant on the main road. The accused then told Madam Janine to take the complainant back to the school. Madam Janine told accused and complainant that nobody else will know about it but only the three of them and then led the complainant back to the school.

When the complainants arrived at the dining hall her girl friend asked why they took so long. She did not tell her anything thing but told them to wait. At the dining hall the complainant was sitting down when accused came in holding a packet of noodles. He gave it to the complainant but she refused to take it so he smashed it on the table.

Complainant then told Annie to go and get her mobile phone charger. She then took her slippers from the accused and run away back to the dormitory. When she left the dining hall she heard the accused shouted after her, saying “don’t think I am satisfied, I am not yet satisfied”. At the dormitory she went straight to have shower because she said she was very tired and wanted to sleep. She also told some girls that the accused had raped her. None of these girls was call to give evidence. She then said Nixon Buga called her on her mobile phone but she did not tell him about the incident but told him to wait until next morning.

The next morning she met Nixon in the chapel and relates the story to him. It was Nixon who said they should go and report it to the police so they walked to Tetere Police station and reported the matter.

Nixon gave evidence in court, his evidence was that Linda called him about 8 pm and reported the incident to him. She was talking and crying over the phone. Another prosecution witness Rosie said Linda told her that Ernest has raped her but Linda gave no details. She also said she was with Linda and Annie in the kitchen when the two girls were baking and saw Ernest smashed a louver of the dormitory and broke a ball the student were playing with before he came to the girls in the dining hall and told Linda to go with him to buy smoke ( cigarettes).

Accused version of the event.

The accused version of the event is slightly different from the complainant but his evidence about the events before he and Linda left to buy cigarettes were almost in agreement with the complainant. It is not necessary to rehearse the accused evidence in detail because he does not have to prove anything but briefly his evidence under oath was that, on the way back from Kaotave primary school he asked the complainant to have sex and she agreed, complainant did not refuse, he also asked her if it was safe for her to have sex that time, safe in the sense that she will not get pregnant. Both moved into the plantation a distance of two rows of cocoa. When they got to the spot they stood there and started kissing then they sat down and continue kissing. The complainant then took off her underpart. He asked her again if it was safe to have sex, she said yes so they had sex.

He went on top of her, she did not struggle. After he ejaculated he moved out, took off his shirt and gave it to her to wipe herself. They then walked back to the main road. As they walked back the complainant told him to call Madam Janine using her mobile phone so he called Madam Janine as instructed by the complainant and told her to come and meet them on the main road. Accused said the reason for calling Madam Janine was that the complainant was afraid that if they saw the two of them together by themselves they will be suspended. Madam Janine’s mobile number was stored on the complainant’s mobile phone.

I remind myself that the burden of proving the accused is guilty rest with prosecution and they must do so by proving all the elements of the offence beyond reasonable doubt. The accused does not have to exonerate himself.

Assessment of evidence, inferences and conclusions.

PW1 told her story in a forthright manner and was able to recall the events very well, I am sure this was because she had just being reading through her statement before coming into the courtroom, if fact she actually had a copy of her statement in her hand when she entered the witness box and had to be told to put it away.

Despite this, parts of her evidence were still inconsistent with the evidence of other prosecution witnesses. For example, PW2 Nixon said it was the complainant that called her that night and told her about the incident but the complainant said it was Nixon who called her but she did not want talk so she told him to wait until the next morning. Likewise PW3 Rosie said that she was with Annie and the complainant in the dining hall but the complainant stated that no other person was with her and Annie in the dining hall when the accused came to them in the dining hall before they went to buy cigarettes. While the compliant told her story in a forthright manner it does not necessary mean that she was telling the truth. There is a possibility that it may be a well-rehearsed story. Complainant said she told Annie to go with her and the accused to buy cigarettes. How both girls could go from the drum (oven) they were heating to bake the buns is unconvincing and I find it hard to believe. My personal experience is, normally with that type of oven they have to keep a close watch and ensure that the fire does not die out and to put the buns in the drum at the right time.

The crucial moments however, was the time the accused and the complainant were alone on road between Kaotave RTC and Kaotave Primary School and along the short route taken when returning to Kaotave RTC. As in most cases of rape, it is the complainant’s story against that of accused. In assessing the evidence I took into account the demeanour of the witnesses to determine the veracity of their evidence. I had also looked at the photographs of the scene of crime tendered as exhibits. The photographs and the sketch plan show the place where sexual intercourse happened. It was some 80 meters from the main road almost under a cocoa tree surrounded by bushes. The ground was covered with dead cocoa leaves and a live branch of fern was obviously placed there. It seem a hidden and suitable place to have a quick sex as stated by the accused.

In viewing the sketch plan and the photographs the question that comes to mind is, if the complainant is an unwilling participant why did she have to go to this hidden location with the accused. Since there is no evidence of violence or threat of violence, the only reasonable inference is that, she went there because she was a willing participant. The other question is why she had stop to listen to see if someone was cutting firewood or not. One of the reasonable inference that can be drawn from this is, she and the accused are up to something and she just wanted to be sure that no one is around to see what she and the accused are about to do.

The complainant stated that when the accused told her to remove her underpants and lay down she removed her pants but then stood there for some minute thinking before she lay down on the ground. This may indicate that she took time to consider the accused request otherwise she was just been playful and pretending to be unwilling or shy. She then lay down and the accused came on top of her and had sexual intercourse with her. Since there was no resistance or struggle during sexual intercourse this shows she decided to agree to the accused’s request. She said she had been hitting the accused hand away when he started touching her, in the circumstances this seem to being playful rather than resisting his advances. If she really did not like what the accused was doing she could shout and ran away, they were only about 100 meters away from the school.

I believe that the allegation of rape was an invention because on arrival Anne asked the complainant why they took so long to return and probably other students might also notice their arrival. It may also be because of the words the accused shouted after her when she left the dining hall, the words were “do not think I am satisfied, I am not yet satisfied” The students who were present may infer and conclude that the accused was referring to having sexual intercourse with the complainant. I believe the complainant by then realised that the students knew about her affair with accused and since that is against the school rules she must come up with the excuse of being raped to shift the blame from her and to mitigate her parent’s anger if she was expel from school.

Verdict

In reaching the above conclusions I remind myself of the long held notion based on human experience that allegations of sexual nature are easy to make but hard to rebut and are made by women for various reasons. I believe this is still true today. In that respect, after carefully analyzing the evidence and the conduct of the complainant both before and after the incident I am afraid I do not believe the complainant story about being raped. The prosecution was unable to prove the charge against the accused beyond reasonable. I find the accused not guilty and acquit him of the charge.

IRA.

THE COURT
..................................
Emmanuel Kouhota
Puisne Judge