R v Aligao [2022] SBHC 81; HCSI-CRC 20 of 2018 (1 July 2022)

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Case name:	R v Aligao

Citation:

Date of decision:	1 July 2022

Parties:	Regina v Mendana Aligao

Date of hearing:

Court file number(s):	20 of 2018

Jurisdiction:	Criminal

Place of delivery:

Judge(s):	Maina; PJ

On appeal from:

Order:	Therefore, I find the Accused Mendana Aligao guilty on the 24 Counts of indecent acts and rape accordingly convict him on the charges as follows, indecent assault Counts 1, 2,3, 10 and 12, Rape Counts 4, 5, 9, 11, 17, 20, 21, 22, 27, 29, 30, 31, 32, 33, 39, 41, 42, 43, and 44

Representation:	Olutimayin O Ms for the Prosecution Ifuto’o B for the Defence

Catchwords:

Words and phrases:

Legislation cited:	Penal Code S 141, S 136,

Cases cited:	The Queen v Lillyman [1896] UKLawRpKQB 126; [1896] 2 QB 167, R v Ferris [2004] SBHC 124

You, Accused Mendana Aligao pleaded not guilty on 44 counts of indecent assaults and sexual intercourse offences against your stepdaughter. The counts are 5 counts of Indecent Assault contrary to section 141 of the Penal Code and 39 counts of Rape contrary to section 136 of the Penal Code.

The Accused was allegedly committed the offences during the period between 2002 and 2014. The Complainant (name withheld) was born on 29 April 1995 and she was 7 years old at the time of the first offence and about 19 years old at the time of the last one.

Accused Mendana Aligao is from Lauwata Village, Central Kwara’re, Malaita Province and the Complainant is from Titiana Village, Western Province.

Accused and Complainant’s mother Baratepa Toma (deceased) had lived in defacto relationship from about 2001. The Accused was the Complainant’s stepfather.

The Accused has two daughters with the Complainant’s mother, namely Hellen Toma and Kalinda Toma.

When the Accused and Mrs Baratepa Toma started to live together, they resided at Neiko Store, Vura and rented a store. They lived with the Complainant and she started the pre-school at St Nicholas in 2001.

At the period of the offences, the Accused and Complainant’s mother lived together and the Accused on certain occasion or some time worked as taxi driver.

For all these counts, the Crown carries the burden of proof and the standard is beyond reasonable doubt on each of the counts.

In brief, the elements of indecent assault are the offenders identify, unlawfully and indecently assault and the woman or girl. In addition, for the rape the elements are identify of the offender, unlawfully sexual intercourse with a woman or girl and without her consent.

The Prosecution primarily relied on the Complainant’s evidences and the issues are:

There are 44 counts against the Accused and he pleaded not guilty on all charges. At the trail, the Crown only called the Complainant as the witness and she gave sworn evidences. Upon her evidences, the Crown closed its case.

The Victim was 7 years old in 2002. In a house behind a store at Naha, Honiara the Accused called the Victim to come to him. She went to him and the Accused told her to lay on top of his belly. Victim went and laid on his belly. She laid there and felt the Accused pulled down her trousers. Accused then with his hand and fingers held and played with the Victim’s vagina. After the Accused had finished with her, he told the Victim not to tell anyone.

In the June 2003 when the Victim was 8 years in a house at Mbokonavera, the Defendant put his fingers inside her vagina and touched her breasts, which were just popping out.

In 2003 when the Victim was 8 years, the Defendant put his finger inside her vagina, played with her vagina and sucking her breast.

The Accused held her breasts and vagina under her clothes in their family bedroom at Mbokonavera. She did not want him to do that to her.

In their family bedroom at Mbokonavera, the Accused held her to face him and he rubbed his front part on her and his private part on her backside. He did not ask her but he just did that to her. She did not want him to do that to her.

In February 2006, the Defendant came to the room where the Complainant was sleeping. She was awoken as the Defendant was on top of her. He told her to remove her clothes and he pushed his penis in her vagina. She felt the penis went inside her vagina and was very painful to her.

At that time, she was 11 years old and the first time for any man to have sex with her. The Accused did not ask her to have sex with her, he just ordered her to take off her clothes and she did not want to have sex with him.

A week after the first incident in February 2006, the Accused had sex with her inside a vehicle registration AB 1049 at Panatina. He pushed his penis inside the Complainant’s vagina. Complainant told Accused Mendana that it was pain to her but he continued to have sex with her.

Again, Accused did not ask her for sex, he just told her to lay down in the back seat of the car and remove her school uniform that she did. She did not want to have sex with him.

The third incident in 2006 was on 12 May. The Accused had sex with her at her sister Taowea’s birthday and it was inside the vehicle no. AB 1049 at a spot between Lawson Tama and St Barnabas Church. As the Accused usually did to the victim, he played and sucked with her breasts and then had sexual intercourse by pushed his penis in her vagina.

He did not ask her for sex, he just ordered her to undress. She did not want to have sex with him.

The accused had sex with her in their family bedroom in Mbokonavera when he pushed his penis into my vagina and then he had sexual intercourse with her.

He did not ask her for sex, he just ordered her to undress. She did not want to have sex with him.

Complainant can remember on 3 occasions in 2008 when the Accused “used her, used her body to play”.

The first incident was on 17 September 2008 when her mother gave birth to her sister Kalinda. Her mom was in the hospital when the Accused had sex with her that night at their family bedroom in Mbokonavera. He did not ask her, he just had sex with her; she did not want to have sex with him.

The second incident in December 2008 was on one Thursday when her mother went down to Gizo for the ordination of her grandfather for a minister. That night the Accused had sex with her in their family bedroom at Mbokonavera. He did not ask her, he just had sex with her; she did not want to have sex with him.

The third incident in 2008 was one Friday and the second day her mother went down to Gizo for the ordination of grandfather for a minister. That night the Accused had sex with her in their family bedroom at Mbokonavera. He did not ask her, he just had sex with her; she did not want to have sex with him.

On Monday at the first week of school in 2009, the Accused picked her from the school with the car Reg: no. AB 5757 and took her to SIFF academy area. At that place, he parked and ordered the Complainant to take off her school uniform and there the Accused had sex with her at the back seat of the car. He did not ask her, he just had sex with her; she did not want to have sex with him.

Complainant can remember two incidents in 2010. The first incident happened on a Monday night when she and her sisters returned from Gizo after the cementing ceremony of their great grandmother’s grave. The Accused came to her in the night and had sex with her in their family bedroom at Mbokonavera. He did not ask her for sex and she did not want to have sex with him that night.

The second incident in 2010 happened in July on a Sunday when she and the Accused went to pick flowers to make garlands for exchange students who came to their school. The Accused stopped the car in front of the Golf Club and he ordered her to go to the back seat and take off her clothes. He then had sex with her in the car. He did not ask her for sex and she did not want to have sex with him that day.

Complainant remembers 4 incidents in 2011 and the Accused continued to use her for sexual intercourse. The first incident happened on a day when all the family went to the funeral of an old man in White river. The Accused came, picked and took her to their home at Mbokonavera. No one was at home, and the Accused told her he would have sex with her before taking her to the funeral gathering.

He had sex with her in the family bedroom before taking her to join the rest of the family at White River. He did not ask her for sex and she did not want to have sex with him that night.

The second incident in 2011 was at the Victim’s 16^th birthday on 29 April 2011. The Accused picked her after the school in the car Reg. AB 5757 and they drove to the spot between Lawson Tama and St Barnabas Church. At that place, Accused ordered the Victim to go to the back seat and take off her uniform, which she did. The Accused came to her and they had sexual intercourse. On that day, she told him that she did not want him but he did not listen to her. Accused told her that she is now a big girl (16 years) and her vagina was wide enough for him. Again, he did not ask her for sex and she did not want to have sex with him.

The third incident in 2011 happened when she was at Form 3 and it was in October. On Monday, the Accused picked her up after school and drove them in car Registered No. AB 5757 to the spot between Lawson Tama and St Barnabas Church. He ordered her to go to the back seat, take off her uniform and he had sex with her. Again, he did not ask her for sex and she did not want to have sex with him.

The fourth incident was in 2011. The same week of the incident on Count 32 had happened but it was on Friday. The Accused picked her up after school and drove them in car AB 5757 to Honiara Hotel car park. At the place Accused ordered the Victim to go to the back seat, take off her uniform and he had sex with her. Again, he did not ask her for sex and she did not want to have sex with him.

The incident happened on a day when her school class was to go and visit their sick classmate who had a heart problem in hospital. The Accused did not let her to go with her classmates. He picked her up after school and drove the car to Level 5 at FFA. He ordered her to go behind the car and take off her uniform and he had sex with her. Again, he did not ask her for sex and she did not want to have sex with him.

This incident happened during her exam week and she lived with her granny at Naha. The accused rang her at the night and told her to wait for him after school.

After school, the Accused came and picked her. She did not want to go but her friend told her to go with the Accused otherwise he may beat her. She went to him and the Accused drove the car to Level 5 at FFA. He ordered her to go behind take off her uniform and he had sex with her. He did not ask her for sex and she did not want to have sex with him.

Complainant recalls well of three incidents in 2014. The first incident was in the first week of term 1 in Florence Young School. Accused came to pick her up from school and drove to the Golf Course. At the place, he told her to go to the back seat of the car and remove her uniform and he had sex with her. Again, he did not ask her for sex and she did not want to have sex with him.

The second incident in 2014 was in the same first week of term 1 in Florence Young School. Accused came to pick her up from school and told her they were going to straighten the things. He drove car MA 0472 to the space between Golf Course and Telekom. He told her to go to the back of the car seat and remove her uniform and he had sex with her. He did not ask her for sex and she did not want to have sex with him that day. She told him that he said they came to straighten the things, but the Accused told her to “just get” on the back seat as it will be a fast one and after this, everything will stop. She went on the back seat and did as he instructed her and then had sex with her. In addition, she did not want to have sex with him

The last incident was in 2014 when she was in Florence Young School. After school, Accused came and picked her. The Accused drove the car MA 0472 to Level 5 at FFA. He ordered her to go behind take off her uniform and he had sex with her. He did not ask her for sex and she did not want to have sex with him.

The Crown has led evidences as stated above for the 24 Counts - Cts 1, 2, 3, 4, 5, 9, 10, 11, 12, 17, 20, 21, 22, 27, 29, 30, 31, 32, 33, 39, 41, 42, 43 and 44.

For the other 20 counts – Cts 6, 7, 8, 13, 14, 15, 16, 18, 19, 23, 24, 25, 26, 28, 34, 35, 36, 37, 38 and 40, no evidences were led at the closed of the Crown on the charges, therefore the 20 counts are dismissed and Accused is acquitted on the charges.

Counsel Ifutoo for the Defence submitted that Accused has put his case to the Complainant when she gave her evidence. He denies the allegations, thus has put the Prosecution to the high standard of proof. Counsel said that the Accused bears no onus to prove his innocence.

Defence Counsel further submitted that the Complainant said the Accused had abused her since 2002 when she was 7 years old until 14 years and he questioned why she did not shout or do anything to attract attention when the Accused had sexual intercourse with her. He said most of the offences occurred in the places where people were around.

Counsel for the Defence said that Complainant had all the opportunities to report these sexual assaults to her mother, father, uncles, aunties, grandpas’ and sisters but she did not tell anyone of them. On the absence of recent complaint, Counsel raise doubt on the Complainant’s credit as a witness.

He referred to the cases of The Queen v Lillyman^[1] and Regina v Ferris^[2] and the raise the matter recent complaint. I noted these cases, thus the court to warn itself and or them re-emphasis the principle of recent complaint that the evidence is admissible to show the consistency of the statement or contact of the Complainant and constitutes a buttress to the credit of the Complainant who has given evidences of having been subject to a sexual offence.

There were no Complainant’s evidences on the 24 counts of indecent assaults and sexual intercourses against him and Accused acquitted on the charges.

Accused decided to remain silence and it is the Prosecution to proof the charges against him on the required standard of beyond reasonable doubt. Defence Counsel raised the questions of not shouting to attract attention of other people, not reporting these sexual assaults to her mother and close relatives. Such as stated by Defence Counsel, raise the doubt on the Complainant’s credit as a witness.

The position of the law on these matters is clear by the enactment of sections 18 and 19 of Evidence Act 2009. It states that the court may rely or depend on uncorroborated evidences and court need not exercise caution before convicting an accused in reliance on evidences given by a child; a victim of an offence against morality; or evidence in relation to an offence against morality where there was delay in reporting the crime.

It is so and the court must satisfy that the evidences alone of the Complainant meets the standard of proof beyond reasonable doubt. With this case, the evidences of the Complainant are not challenge as the Accused decided to remain silent and did not call any witness.

The Accused was the stepfather of the Complainant as he remarried her mother. She relied on the Accused to provide all the necessities as he remarried or now her mother’s husband, father with her sisters. Accused also warn her not to tell her mother and others. The sexual acts were done by the Accused in their house and out away in the vehicles.

The Complainant gave evidences on oath for all the 24 charges and she was cross-examined by the Defence Counsel on the evidences. She maintain that the Accused had done these acts to her without her consent in her evidences at the time of the offences.

The Accused with the submission by the Defence Counsel just stated that he did not indecent assault and did not have sex with her and nothing further than that.

The Accused and mother had been living together since Complainant was 7 years old in 2002 and the Accused is therefore the stepfather of the complainant.

I find the Complainant is honest and her evidences is reliable and I am satisfied that evidences on Counts 1, 2, 3, 10 and 12 of Indecent Assault and Counts 4, 5, 9, 11, 17, 20, 21, 22, 27, 29, 30, 31, 32, 33, 39, 41, 42, 43 and 44 of Rape are proof beyond reasonable doubt by the Crown

The Accused repeatedly and or continuously did the indecent assaults and sexual intercourses with the Victim without her consent for the period of 12 years from 2002 – 2014. The evidences were not challenge by the Defendant.

Therefore, I find the Accused Mendana Aligao guilty on the 24 counts of indecent acts and rape and accordingly convict him on the charges as follows:

High Court of Solomon Islands

R v Aligao [2022] SBHC 81; HCSI-CRC 20 of 2018 (1 July 2022)