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Raha v Regina [2006] SBCA 13; CA-CRAC 017 of 2006 (25 October 2006)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

After trial before Palmer CJ, the appellant was convicted on 31st May 2005 on three counts viz (1) rape contrary to section 137 of the Penal Code (2) indecent assault contrary to section 141 of the Penal Code and (3) assault occasioning actual bodily harm contrary to section 245 of the Penal Code, all of these on Cristina Odogasia and all on 22nd September 2000. He appeals against the three convictions.

In summary the prosecution alleged that the appellant came home in the early morning after several hours of drinking. He was drunk (perhaps very drunk). His wife at first would not let him in. They quarrelled and he chased her so that she fled to a neighbour’s house. Cristina worked for the family as a house keeper and lived in their home. After the appellant’s wife had gone he knocked on Cristina’s door. When she opened it, the Prosecution case was that he asked her to have sex with him and when she refused he assaulted her causing bruising and cuts to her lips. He pushed his penis into her mouth and told her to lick it. He then licked her between the legs and raped her.

The Defence says that there was no sexual intercourse despite two or three attempts because he had drunk too much. But he says they hugged and kissed and her licking him and his licking her were consensual so that there was no assault or indecent assault.

The learned Trial Judge sets out at length the details of these conflicting allegations and it is unnecessary to repeat them at this stage. Suffice it to say that he was satisfied on the evidence of Cristina, and a Doctor who examined her when she went to the hospital the following day that Cristina had cuts and bruises on her lips and mouth. This was consistent with the evidence of the appellant’s wife and two other women who saw her shortly after she went to the neighbour’s home. Moreover he accepted the evidence that the wife and another friend had heard screams coming from the appellant’s house after the wife had left and when the appellant clearly was there, as was Cristina.

The Judge heard arguments as to whether the fact that no semen was seen at the police station or at the hospital meant that sexual intercourse had not taken place, but he directed himself that the issue was whether penetration had occurred without consent rather than whether semen was found. He said "I am satisfied Prosecution has satisfactorily discharged the onus of proof in this case by establishing the crucial elements of lack of consent in the evidence, by what the Victim told the Court had happened by her words, actions and behaviour and supported by the independent evidence of at least three witnesses (J, R and K) and that of the Doctor who carried out the medical report on him. The explanations offered by the Defendant have been so week, ambiguous, far fetched and highly improbable to be credible and reliable. I am satisfied so that I am sure sexual intercourse occurred in this instance without the consent of the Victim."

He accepted Cristina’s evidence that there had been no consent to the indecent acts with the penis or between her legs and that Christina’s evidence as to her injury, (was supported by her doctor) was "the only reasonable and explanation"" of her injury, which he accepted.

Mr Barkley, however, says that in deciding that the appellant was guilty on each charge the Judge reversed the onus of proof. And this vitiates his decision.

Mr Barkley bases his submissions principally on Palmer -v- The Queen [1998] HCA 2 and the passages dealing with the proper approach where it is suggested that there is a motive for the complainant to lie. Brennan CJ said at page. 5, after setting out the cross-examination challenged.

"It is one thing to permit cross-examination of a complainant in order to elicit, if possible, a motive to lie. It is another thing to permit cross examination of an accused to show that an accused cannot prove any ground for imputing a motive to lie to the complainant . ........the fact that an accused has no knowledge of any fact from which motive of the kind imputent to the complainant in cross examination might be inferred is generally irrelevant. In general, an accused’s lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie."

At page 7, he continued –

"If credibility which the jury would otherwise attribute to the complainant’s account is strengthened by an accused’s inability to furnish evidence of a motive for a complainant to lie, the standard of proof is to that extent diminished.

Kirby J said at p.30.

"By initiating questions as to the accused’s knowledge of the motivation of the accuser, the risk may be run of effectively shifting the burden of proof at trial to the accused, such that he or she was virtually obliged to demonstrate the falsehood and improper motives of the complainant."

The appellant contends that the trial Judge acted contrary to the statements in the majority judgment in Palmer to which we have referred. In particular the appellant challenges the following passages from the Judgment as showing that he had shifted the burden of proof to the appellant –

1. (At p.9) "no adequate explanation has been provided by the defendant for the cuts on the mouth of the victim or the noise heard by J and R coming from [the appellant’s house] the residence or the appearance, behaviour and condition of the victim as described by those three prosecution witnesses. The Defendant has provided no reasonable explanation for the victim’s appearance and behaviour".

This is said requires him to give evidence of which he had no knowledge and indeed of the victim’s condition in the neighbour’s house when he was not present.

2. "It has never been sought to be suggested to the victim that she was trying to make a scene to try and hide what happened. That her crying, trembling and being upset were all pretensions, because that would have been the case if the Defendant’s version was accepted. It was never suggested to J K or either, that the victim was making all these up and that she was never seriously/really upset. It was never put to them that they lied about the appearance and demeanour of the victim" (p.9).

Again he said that he never suggested these matters. By requiring the Appellant to "give" "adequate" or "reasonable" explanation and he possibly could not do so reverses the onus of proof.

3. "I have instead to the evidence given under oath by the victim and observed her demeanour carefully but I cannot be satisfied that her credibility had been shaken, thrown into doubt or rendered ........................?" (p.10).

"The explanations offered by the defendant have been so weak, ambiguous, far fetched and highly improbable to be credible and reliable." (p.11).

"No explanation whatsoever has been given for the injuries sustained by the victim on her lips" (p.11).

The appellant’s comments that by requiring the appellant to give explanations which he was not required to give, the Judge reversed the burden of proof.

As a result of all these comments there has been miscarriage of justice.

It is important to recall that in Palmer McHugh J dissented. He accepted that different opinions were held in different Australian jurisdictions on this matter. He held that on a charge of sexual assault, the accused can be questioned as to whether he or she knows of any reason why the complainant should fabricate the charge (pp 11 – 12). The Jurors were bound to ask themselves "why would the complainant invent this terrible allegation?" That being so it better to give them directions on the matter including directions on the burden of proof in criminal cases, the possibility of fabrication by complainants in sexual offence cases and other possible motivation, the need to be satisfied whether the complainant was telling the truth.

In Palmer the issue was as to questions put to the accused. There the trial was by Judge and Jury and the Court was concerned with the effect of such questions on the Jury. In R v T 2 NZLR 275, the New Zealand Court of Appeal at pp265, 6 said –

"New Zealand trial practice has allowed the accused to be asked whether he knows of any reason for the complainant to fabricate her account, and for the prosecution to use the absence of any credible reason as a closing argument in favour of the complainant’s credibility."

He added that it is important not to develop "a gap between the law and common sense in a facet of criminal trials as basic as the assessment of credibility".

The Court of Appeal in the Judgment of Eichelbaum CJ said at pp265-266 –

"We accept that ‘why should complainant lie?’ should not be presented in a way which would deflect or distract the jury from the central issue, whether the Crown had proved the charge and each element of the charge beyond reasonable doubt. Nor should any suggestion be allowed that there was an onus on the accused to advance a credible answer ... the charge to the jury needs to be clear that regardless of the absence of evidence of motive, the onus of proof remains on the Crown throughout. We also accept the distinction between questions relating to facts on the one hand and opinion on the other, and that absence of evidence of motive should not be equated to absence of motive ... The question: ‘Why should she lie?’ must be interpreted as and confined to the eliciting of facts known to the accused, not speculation as to possible motives."

In R -v- B 2003 1 WLR 2809 the Court of Appeal in England agreed with Eichelbaum CJ’s judgment in RVTE. The issue at trial there was whether the Prosecution should be allowed to ask the accused "if he could think of any reason why the two complainants should tell lies against him." The Judge ruled that the Prosecution could ask that question, "but questions should be limited". The Court of Appeal said at paragraph 42 –

"The Prosecution, as it seems to us, was entitled by the question to seek to close, with finality, an avenue which was open to the defence. We do not accept that the asking of the question was unfair, or had any impact on the burden of proof. The evidential effect of the answer, in the context of the burden of proof, was a matter for the summing up, with directions tailored to the circumstances of the particular case. The question did not, as it seems to us, invite speculation. It sought to ascertain the state of the defendant’s knowledge."

In the present case the learned Judge was not sitting with a Jury so that the anxiety expressed in the majority judgment in Palmer about the effect of such questions on a Jury does not directly arise. The trial Judge must, however, remind himself of the directions which it was accepted in R v T should be put to a Jury - the onus of proof, the importance of assessing the complainant’s credibility.

The Chief Justice set out clearly the overriding principle –

"The burden of proof rests with the Prosecution throughout to prove beyond reasonable doubt that the Defendant raped the victim, indecently assaulted her and caused harm to her. If any doubt is raised so that I cannot be sure those offences occurred, the Defendant must be acquitted" (p.6).

The crucial issue in any rape charge is the issue of consent. It is the duty of the Prosecution to prove that the victim in this case did not consent.

He then set out the detailed allegations. Her claim that she refused to have intercourse but he penetrated her, whether he ejaculated inside or out of her set against the appellant’s denial of penetration, his initial difficulties because of the alcohol he had drunk, his denial of intercourse followed by his claim that what happened in hugging and lying on the floor was consensual. Her claim of having been punched causing bruises and cuts on her mouth as confirmed by a medical report as set against his denial that he ever struck her or saw any bruises.

The learned Judge said that he had no doubt that she had been raped and that she had not consented; nor did he have any doubt that the appellant had assaulted and indecently assaulted her.

If this were all there could be no challenge to the Judge’s findings. There was ample evidence for them even if they were denied by the appellant.

The appellant says, however, that the passages to which reference been made, vitiated the Judge’s conclusions because they put the onus on the appellant to prove that rape and assault did not happen and to prove consent.

It is clear that the Judge did not exclude the questions why should she lie about what happened or why other witnesses should have lied. He said that the Defendant had given no adequate explanations "of the cuts on her mouth or the victim’s frightened condition" nor any "reasonable explanation" for the victim’s appearance and behaviour. It was never suggested to the victim or the other witnesses that their account was all made up.

These passages were all, it is accepted, reflections on the appellant’s case but it does not seem to this Court that they can possibly be categorized as transferring the burden of proof to the appellant. They are all relevant to the question whether the victim’s evidence could be believed and was sufficient to establish the offences. The Judge accepted both that her evidence was credible and sufficient but he concluded in support of that finding that the accused had done nothing effectively to challenge or undermine it.

"I have listened to the evidence given under oath by the victim and observed her demeanour carefully in Court but cannot be satisfied that her credibility had been shaken, thrown into doubt or rendered incredulous. On the other hand he said "I feel that the explanations offered by the Defendant to be so[? too] improbable to be incredible or untruthful."

Accordingly, despite Mr Barkley’s forceful argument the Court does not accept that the conviction should be quashed. The onus of proof was not transferred. The appeal is dismissed.

Lord Slynn of Hadley P
McPherson JA
Morris JA