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R v Sumelia [2021] SBHC 164; HCSI-CRC 322 of 2019 (2 November 2021)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 322 of 2019

Regina

V

Billy Sumelia

Date of Sentence: 2 November 2021

Meioko A for the Crown
Kama F for the Defence

Sentence

Maina PJ:

You, accused Billy Sumelia (also called or known as Spencer) was charged on one count of Rape contrary section 136F (1) (a) and (b) of the Penal Code as amended by the Penal Code (Sexual Offence Act) 2016.

The particular of the offence is that on 27^th January 2019 at COC area at Noro Western Province had sexual intercourse with victim Jemah Wori without her consent.

The accused pleaded not guilty on arraignment and a trial was conducted.

1. The Brief Facts

On 27^th January 2019 between 4 – 5pm, the victim Jemah Wori and her sister Brijet Woto was returning from Baru area at Noro after visiting their aunty Sarah.

They came and met accused Spencer at the market house, COC area at Noro Western Province. He called the victim Jemah Wori to come to him in the market house and he told Brijet Woto to go home first.

Accused Spencer and victim Jemah Wori then followed the road to Nicky’s house and then to the bush at the well site where Spencer and victim Jemah Wori had sexual intercourse.

The complainant alleged that when the accused Spencer took her to the bush and he had sexual intercourse with her, the accused had threatened with force and without her consent.

2. Facts not disputed

Accused Spencer took the complainant in the bush and he had sexual intercourse with her.

3. The issue

It is not disputed that the accused Spencer had sexual intercourse with the complainant. And the issue is:

Whether the accused had sexual intercourse by force or without the consent of the complainant.

Such will then depend on questions of credibility and reliability and who the court believes and what facts the Court will accept as credible and reliable and containing the truth.

4. Burden and Standard of proof

By his plea of not guilty, the Crown to proof on each of the elements of the offences and they therefore rest the burden of proving the charge against the accused. The accused bears no onus to prove his innocence or to prove anything else.

The Crown must proof the case by to the criminal standard of beyond reasonable doubt. It is so and at the end of the evidence, if there remains a reasonable doubt as to the guilt of the accused, he must be given the benefit of that doubt and be acquitted

5. Crown’s Case

PW1 – Complainant Jemah Wori gave evidence in court and stated that on 27^th January 2019 between 4 – 5pm, she and her cousin sister Brijet Woto was returning from Baru area at Noro after visiting their aunty Sarah.

As they came to the COC area, the Complainant and her sister met the accused at the market house. Accused Spencer called the Complainant to go to him but she refused said “mi lazy”. Complainant said the accused held and pulled her from the side of the road to the market house.

She further stated that in the market house the accused threatened her with a hand saw at his hand. Accused then told cousin sister Brijet Woto to go home first and complainant will come later.

Complainant Jemah Wori said that accused Spencer then left and followed the road to the COC area and the accused threatened to shoot her with the stones. They went to the house belongs to a boy from Choiseul and the accused talked to someone. Complainant said she did not go in the house but she continued to follow the road. Accused Spencer then called out for the complainant to come back to him and he asked a woman who was there to tell her to go back to him. The Complainant said it was the first time for her to follow that road.

Complainant then came back to the boy’s house and she did not know where to go from there. She was afraid as the accused told that he would hit her with the timber.

Accused and Complainant then left the house and walked into the bush and came to a well. The complainant refused but she followed as the accused was angry to her.

In the bush, the accused took off his clothes and told the complainant to remove her clothes but she refused. Accused pushed her on the ground and removed her clothes. Accused told her to touch his penis but she refused and so he pushed her head to his penis.

Complainant wanted to shout but she was afraid as the accused was stronger than her. He climbed on top of her and pushed his penis into her vagina and had sexual intercourse with her until he ejaculated.

After that the accused told the complainant to go back home and he left her and went away.

PW2 - Crown witness Brijet Woto stated in her evidence that on 27^th January 2019 between 3pm – 4pm she and her sister, the complainant was returning from Baru after visited their aunty Sarah there. As they came and reached COC Church area at Noro, the complainant told to hurry up as the man called Spencer usually stays and walks around the area.

This witness said she looked on and saw a person who covered his head with a shirt and she was not able to recognise him. But the Complainant looked to that person and told her that he was spencer.

Spencer called to the Complainant and witness Brijet Woto but the two girls continued to walk on the road. He then called out to the complainant to go to him. Complainant went to Spencer and both went in the market house at the side of the road. This witness said she called for the complainant but accused Spencer told her to go home first and complainant Jemah would come back behind her or later.

Witness Brijet Woto left but came back to the market house as she thought or concern of the complainant. She then called for the complainant but accused Spencer talked to her in an angry voice. She was afraid of him and so she left and went back home.

This witness stated in the evidence that when Spencer met her and the complainant at the side of the road, they stood at about 5 – 6 metres away from each other. She did not see any had happened in the market house.

6. Defence Case

Accused Spencer himself gave sworn evidence for the defence case.

He stated that the complainant Jemah Wori had been his girlfriend and he had known her for a month. Complainant just arrived at Noro about 2 months.

On 27^th January 2019, Accused Spencer was at market house at the COC area by himself and he saw Jemah and her sister. He knows and used to see Jemah’s sister but do not know her name ever to talk to her.

Accused called out for Jemah to come to him but she told him to wait as her aunty sent them. She then came in the market house and sat on the hammock while he sat on the stool. He asked Jemah why she caused problem to him at the house when they had an appointment. He had waited until he was tired of waiting then he came to Jemah at the house.

Accused said he told her that she had caused the problem as her aunty had found out that he been taking her. He said the complainant told him that he should not come to house as she was going to come to him. Accused said had said “sorry” to Jemah for doing such and coming to her that resulted to the problem.

Jemah told him not to stay at the market house as her aunty may find out about them and they have to move away from there. She told him to go first ahead of her and she would follow him. So he left and walked to about 100 metres ahead to Nick’s house and waited for her. There he met a boy and he told him that Nicky was not at the house.

Accused Spencer said that he asked the complainant if they can go to the place he knows and the complainant told him before that she must also quickly leave her at the house.

Accused and Complainant left and went through the village and many people there went or had gone to the gardens. They went to the bush and mangrove sites where crocodile are also there.

Accused and Complainant came to a well and there was a stone sitting there. At the stone site, Accused asked for sexual intercourse with the complainant. He pulled out his shirt and Jemah asked him to move further in the bush. She moved closed to him and he hugged her and then removed her skirt. She wanted to pull out her clothes and so she by herself pulled down her trousers and pants. And there she lay on the accused’s trousers and there Accused laid on top of the Complainant put his penis in her vagina and they had sexual intercourse.

After the accused released his sperm he lifted the complainant and she wore her clothes.

They moved to a pool and complainant jumped in and swam and accused also went the pool and swam. The came out from the pool and went to the COC area when it was already about 6pm.

Accused took her close and left to walk to the auntie’s house.

7. Analysis of the Evidences

The accused admitted had sexual intercourse with the complainant near the well and stone at the bush on 27^th January 2019 but denied using force or without her consent.

Thus, the element of the offence of rape with the identity of the offender, unlawful sexual intercourse and with a girl or woman are not contested except without her consent or obtained by force, threats or intimidation of by fear of bodily harm.

The entire evidences of the complainant and accused were speech by speech or not corroborated which I will be examined in due course or later.

However, the evidence of the Crown witnesses, complainant and PW 2 Brijet Woto when they met the accused Spencer at the market reveals the propositions in the evidences.

In brief, Complainant Jemah Wori in her evidence in chief stated that when she and her sister met the accused at the market house he called her but she refused and said “mi lazy” but accused came to her held and pulled her from the side of the road to the market house. Thereafter in the market house the accused threatened her with a hand saw at his hand.

However, PW2 - Crown witness Brijet Woto in her evidence in chief stated that when they saw a man who covered his head with a shirt and she did not recognise him but the Complainant told her that he was Accused Spencer.

Spencer called out to them they continued to walk on the road but when he called out to the complainant to go to him, the Complainant went to him and both went in the market house at the side of the road. Accused Spencer told Crown witness Brijet Woto to go home first and complainant Jemah would come back behind her or later. Witness Brijet Woto upon some concern to the complainant then went home and Complainant came back later.

Beside the above, the evidences of the complainant and accused were speech by speech or not corroborated. The individual evidences of the complainant and accused reveal the act of sexual intercourse occurred at the side of the well and the stone in the bush.

As submitted the Crown’s case with force or without consent of the complainant commenced when the accused met the complainant and her sister at the COC area and the market house when the accused held and pulled the complainant from the side of the road into the market house.

On the way to the bush the accused had made spoken words of threats to shoot with stones and timbers when taking the complainant to the bush. It is also stated in complainant’s evidence with removal of her clothes, told her to touch his penis, pushed her head to his penis climbed on top of her and pushed his penis into her vagina and had sexual intercourse with her until he ejaculated.

However, the accused denied all the alleged acts of sexual intercourse with the complainant with force or without her consent as stated in his evidence on oath as stated above.

Beside what the Complainant said in evidence in chief she was asked by the defence at CXM if she met any people on the road and when he followed the accused to Nick’s house and to the bush. The complainant answer was yes but he cannot run away as the accused is stronger than her and was afraid of him.

It is also noted from the Complainant and accused evidences that at the market house the accused first went and followed the road to Nick’s house and the bush. It was after and as described by the complainant as a distance of about 100 metres away before she came behind accused. Also the accused stated he went to Nick’s house and waited for her.

This has raise controversy to the evidence of the complainant as it may be a time to escape from the threat of the accused.

Further the attitude of the complainant after sex when jumped and swam in the pool with accused raises doubt with a person who claimed to rape with force or without consent but frankly moves or collaborate with such behaviour and attitude with such a man that threat to her life.

These evidences of facts from Crown witnesses are not credible and reliable and containing the truth they present controversy and a reasonable doubt as to the guilt of the accused, he therefore must be given the benefit of that doubt and be acquitted.

Orders of the Court

1. The accused is acquitted on the charge of rape
2. No further order

THE COURT
Hon. Justice Leonard R Maina
Puisne Judge