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R v Pita [2022] SBHC 65; HCSI-CRC 375 of 2021 (6 July 2022)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 375 of 2021

REGINA

V

RODNEY PITA

Date of Trial: 29 and 30 June and 1 July 2022
Date of Decision: 6 July 2022

Ms G Waletofea and Ms D Oligari for the Crown
Mr. S Manebosa (on instructions from Mr. L Waroka) for the Accused

Lawry; PJ

Verdict

1. The Accused is charged with one count of attempted rape contrary to section 136F (3) (b) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016. The information was amended twice. On 29 June 2022 the Statement of Offence was amended pursuant to section 251 of the Criminal Procedure Code prior to the arraignment to correct the name of the statute under which he was charged. On 30 June 2022 the particulars of offence were amended by deleting the word “on” before the date 7 February 2021 and replacing it with the phrase “between 6 and” so that the Particulars of the offence read as follows:
   • “That Rodney Pita of Samanagho village Shortlands, Western Province, at Honiara, Guadalcanal Province, between 6 and 7 February 2021, did attempt to have sexual intercourse with Lenslyn Maliki without her consent and was reckless as to the lack of consent.”

That amendment was made on the application of the prosecution and not opposed by the defence. The Accused was re-arraigned on the amended charge and maintained his plea of not guilty.

2. The prosecution called two witnesses, the complainant [PW1] and her cousin brother [PW2].
3. On 6 February 2021 PW1 was at Rove and purchased a top up for cash power. Afterwards it was raining so she waited for the rain to stop. She saw a vehicle with three persons inside. One was the Accused. She knew him as he worked at the Bulk Shop with her brother. The Accused asked her where she wanted to go and offered her a ride. The three males in the car were drinking. PW1 was sitting in the rear with the Accused. She intended to ride only to the Bulk Shop. The Accused suggested they should go to a shop called Mid West. They did not stop there either but went up to a house in Tinge Ridge. PW1 asked to be dropped off. The Accused said they would go up to the house then bring her back to drop her off.
4. Once at the house at Tinge Ridge the three men in the car did not return PW1 to Rove as they said. The Accused continued to drink and to talk with her for what must have been more than an hour or two. PW1 kept asking to be taken back and the Accused kept saying that they would take her later. The Accused tried to hug and kiss PW1 but she refused him. He asked her to go with him up to the room of the house. He asked her to have sex with him in the house. He said he would drop her back after they had gone to the room.
5. PW1 then said she would walk back and complained that the Accused had lied to her. She began walking away. The Accused grabbed her hand and led her to what he said was a short cut. They got to a mango tree. The Accused still expressed his wish to have sex with PW1. She refused him. The Accused kept hold of PW 1, the ground was rough and slippery. He kept pulling her along what he said was a short cut. They ended up at Bishop Epalle School. There were steps up to a classroom he told her was Classroom 6. He pulled her up those steps. She struggled. At the school he again asked to have sex with her. PW1 said she was trying to get away from him. He grabbed the left side of her shirt and she kept trying to get away. This happened a number of times over a significant period of time. Every time she managed to get away he would run after her and block her. PW1 said she saw security officers and called out to them for help. PW1 said she managed to ring her brother. She did this more than once. She put the phone on to “speaker” which the Accused saw. When the Accused learned she was on the phone he said that he was not scared of her brothers. The security did not help PW1. Eventually PW1 saw a light which was the phone PW2 was carrying. He had run from his house at Tinge Ridge. PW2 ran after the Accused and caught up with him.
6. The Accused managed to run up the hill away from PW2. Once higher on the hill he called out “You wait I will call my brothers and we will come back.” PW1 and PW2 waited for 2 or 3 minutes. The Accused did not return. PW2 is a Police Officer. A police vehicle arrived shortly after and went and collected the Accused from his house.
7. During the struggles between the Accused and PW1, the Accused had pulled at PW1’s shirt and skirt. PW1’s shirt had a torn strap from where the Accused had pulled it.
8. PW2 described his observation of PW1. On the phone he noted she was screaming and crying and asking for PW2 to come and collect her. She was not familiar with where she was. He had run 1.3 to 1.4 kilometers to get to the school. He saw PW1 still arguing with the Accused when he arrived at the school. She was still crying.
9. In cross examination the defence challenged PW1 about differences in her evidence from the statement she had given to the Police shortly after the events with which the Court is concerned. The first was whether she knew just the Accused or the Accused and another in the car she referred to as Alex. She explained that she had learned Alex’s name from the Accused but did not know him before. The second issue was that she had not mentioned wanting to go to the Bulk Shop in her statement. Another issue was whether she sought help from the security on one or more than one occasions. In Court she said that it happened twice and in her statement she had only referred to speaking to the security on one occasion.
10. So far as the interaction between PW1 and the Accused was concerned there was no challenge in cross examination.
11. The Court found that on the charge of attempted rape there was a case to answer. The Accused elected to give evidence. His account was quite different from that of either PW1 or PW2. Much of what was in in his evidence had not been put to either PW1 nor PW2. Of significance however was his agreeing that he had asked PW1 to have sex and that she had refused. He said that happened at Bishop Epalle School. His defence was that he accepted that PW1 did not want to have sex. He said he remained with her so he could accompany her home. He said she refused to go home and just sat on a table at the school.
12. Although counsel had not questioned PW1 about evidence inconsistent with the account of the Accused I allowed the evidence to be given and received submissions from both counsel concerning section 57 of the Evidence Act. Counsel for the Accused apologized to the Court for not having put the inconsistent evidence to the prosecution witnesses. In the circumstances it was not necessary to recall the complainant nor to exclude the evidence. The evidence of the Accused was admitted.
13. As this is a criminal trial the onus is on the prosecution to prove the essential elements beyond reasonable doubt, that is so that the Court is sure. The Accused gave evidence and I have had the opportunity of assessing the evidence of each of the witnesses. I found PW1 to be a credible reliable witness. She was in a very frightening situation and detained for several hours before PW2 arrived. I also found PW2 to be a credible reliable witness. On the other hand, I reject the evidence of the Accused as being self- serving and not worthy of belief. His explanation of remaining at the school as long as he did and what happened at the school could not be true. If he felt PW1 was simply wasting his time by refusing to go back to Rove, where she lived, there was nothing to stop him from simply returning home. His reaction to the phone call and to the arrival of PW2 all demonstrate that his evidence was not capable of belief.
14. There is no doubt at all that the Accused was persistent in trying to have sexual intercourse with PW1. He knew she did not consent and yet he kept detaining her and preventing her from leaving. There is no doubt at all that she was very distressed and frightened. He had tried to pull her into a classroom and I find as a fact that he did so in order to have sex with her. He did not manage to have sex with her. He was working as a security guard for Bulk Shop and is strongly built. His ongoing detention of her was clearly to wear her down in order that he might have sex with her.
15. Section 136F (3) of the Penal Code as amended makes it an offence to attempt to rape another person. The prosecution has proved beyond reasonable doubt that he intended to have sexual intercourse with her and proved to that standard that she did not consent to having sexual intercourse with him. The prosecution has also proved to that standard that he knew she did not consent.
16. The issue for the Court however is whether he intended to have sexual intercourse with her without her consent. Section 136F defines rape has having sexual intercourse with another person without that persons consent and knowing or being reckless as to the lack of consent. The Act does not define attempted rape. Nor is the term “attempt” defined in the Interpretation & General Provisions Act. However, section 378 of the Penal Code provides:
    • “378. When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.
    • It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.
    • It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.”
17. The definition in the Penal Code is consistent with the common law. A criminal attempt consists of the intention to commit the completed offence and the acts undertaken in pursuance of that intention that make up the actus reus of the attempted offence. It is necessary therefore to draw a distinction between acts of preparation and acts of perpetration. This distinction was considered by the House of Lords in DPP v Stonehouse [1977] 2 All ER 909 which reviewed the authorities as the Court of Appeal had said in the circumstances of the case that what the appellant had done was preparation for the commission of the offence, not a step in the commission of it.
18. In the present case it was clear that the accused intended to have sexual intercourse with PW1. He took her down the path that he said was a short cut for that purpose. From the google map produced as PE2 it appears the track that the Accused took PW1 down to the school was not a short cut at all. It appears to have taken her further away from Rove which was the stated intended destination. Whether the pulling her down the “short cut” and pulling her up the steps to classroom 6 is preparation or an overt act to put his design into action is dependent on what his actual intention was.
19. The Accused had pulled on the shirt and skirt of PW1 but the evidence falls short of satisfying me that he was trying to undress her, as submitted by the prosecution. It could equally have been an effort to pull her into the classroom. I pose the question, has the prosecution proved beyond reasonable doubt that he intended to have sexual intercourse with her, knowing she was not consenting or put another way regardless of whether she consented? I find that he had the ability and strength to overcome her resistance if that was his intention. He continued to detain her by preventing her from leaving in the hope that her will would be overcome. He was in the school grounds arguing with her and preventing her from leaving for possibly as long as two hours. The Accused acknowledged that the security guards present knew him and they did not intervene. That does not mean much in the circumstances. It would have added to PW1’s feeling of fear and helplessness. Although detained by the Accused she was able to use her mobile phone to call for someone to come and get her. The Accused recognised that her brothers would be angry with him when he responded that he was not afraid of her brothers.
20. While it is his intention may have been to have sexual intercourse with her without her consent or without caring whether she consented or not, I am left with a doubt which I find is a reasonable doubt that he intended to have sexual intercourse without her consent or without caring whether she consented or not. On the charge of attempted rape therefore I find the Accused not guilty. That however is not the end of the matter. In considering the elements proved by the prosecution the prosecution has proved beyond reasonable doubt that the Accused detained PW1 with the intention of having sexual intercourse with her. Those are the elements required to be proved for an offence of abduction or detention with intent contrary to section 137 of the Penal Code as amended by the Penal Code (Amendment)(Sexual Offences) Act 2016. The maximum penalty for an offence against section 137 is 10 years’ imprisonment. This makes it a lesser offence than the charge of attempted rape.
21. Section 159(2) of the Criminal Procedure Code provides:
    • “(2) When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it.”
22. The Accused was not charged with an offence against section 137. I am however satisfied that the prosecution has proved the essential elements of such an offence beyond reasonable doubt. I therefore convict him of the lesser charge of detention with the intention of having sexual intercourse with PW1.

The orders of the Court:

1. The Accused is acquitted on the charge of attempted rape.
2. The Accused is convicted on the lesser charge of detention of PW1 with the intention to have sexual intercourse with her.
3. The Accused is remanded in custody for the hearing of sentencing submissions at 1.00pm on 22 July 2022.

By the Court
Justice Lawry PJ
Puisne Judge