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R v Salemu [2018] SBCA 20; SICOA-CRAC 9001 of 2018 (12 October 2018)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

Introduction

1. This is an appeal dated 26^th March 2018 filed against conviction on one count of unlawful sexual intercourse with a child under 13 years of age, contrary to Section 142 (1) (a) of the Penal Code. This offence has been previously described as “defilement of girl under 13 years of age,” has then been repealed by the Penal Code (Amendment) (Sexual Offences Act) 2016 together with other sexual offences including rape.
2. The appellant was sentenced to 9 years imprisonment.
3. This appeal is only made against that conviction. If it is successful, the sentence of 9 years imprisonment will be set aside. If it is not then that sentence will remain as it is not challenged in this appeal by the Appellant.
4. The conviction is challenged on the basis that it was unsafe and unsatisfactory.

Factual backgrounds

5. The Appellant, Vincent Salemu, was charged and tried with two (2) sexual offences in the High Court on 28 and 29^th November 2017. The charges being one count of rape and one count of unlawful sexual intercourse with girl under 13 years of age, contrary to Sections 136 and 142(1) (a) of the Penal Code respectively. The prosecution alleged that:
   • (a) The Appellant on unknown date between 1^st and 31^st July 2013, at Masi village did have unlawful sexual intercourse with his step daughter, the complainant (B. T.) without her consent; and
   • (b) The Appellant on unknown date between 1^st July 2013 and 31^st August 2013 at Masi village did continuously have unlawful sexual intercourse with (B.T.) a girl under thirteen years of age.
6. The Appellant, Vincent Salemu, married with Benedita Ruruatu, the mother of the complainant. Before, they married, Benedita Ruruatu was made pregnant by one Pua, the Appellant’s brother. Pua and Ruruatu’s child is the complainant in this case (B.T.). The Appellant is not only the complainant’s stepfather but also her uncle. The complainant knew that the Appellant is her stepfather, she also knew that her biological father is Pua, the Appellant’s brother.
7. It was a fact that in the month of July 2013, the complainant was living with her mother and stepfather at Masi village, Guadalcanal Province and was attending Makaruka Primary school and was in grade 4.
8. In an evening of July 2013, she was sleeping in her bed when she noticed her stepfather, Salemu, was on top of her. He removed her skirt and had sexual intercourse with her. She felt pain and she also noticed blood coming out of her vagina. She could not shout as he blocked her mouth with a blanket. This was the first time the Appellant had sexual intercourse with her.
9. After the first incident, the Appellant would have sex with her again anytime he wanted. Sometimes she would allow him to come to her when he wanted to have sex with her although she did not want. In other occasions, she would want to have sex as well so she would have sex with him.
10. In July 2013, they had sex about five times. She never told anyone about the alleged rape or about any other time the Appellant had sex with her. Her mother noticed that she was very close to the Appellant and asked her about it but she also did not tell her mother of her relationship with the Appellant.
11. The sexual intercourse between the Appellant and the complainant continued over a period of time and as a result, she became pregnant in May 2014. Even then, she did not tell anyone that she was pregnant except the Appellant. Later on her mother recognised that she was pregnant and asked her about it. It was then that she told her mother that it was the Appellant who made her pregnant. The complainant did not lodge the complaint to the police but one of her uncles did.
12. The Judge found on the evidence of the mother that the Appellant and the complainant were very close to each other, and this raises an inference they had an intimate relationship and that the sexual intercourse between them may have been consensual from the very beginning. He found the Appellant not guilty and acquitted him on the first count of rape, contrary to s.136 of the Penal Code.
13. On the second count, the Judge noted that sexual intercourse was not denied and all that the prosecution has to prove is that the complainant was under 13 years of age. The Judge found and accepted the evidence of the mother (PW2) about the date of birth of the complainant that she was born on 26 November 2000. That means that at the time of sexual intercourse in July 2013 to 31^st August 2013, the complainant was about 12 years and 8 months old. The Judge found the complainant was clearly under 13 years of age. The consent is no defence for an offence under s.142 (1) (a) of the Penal Code. The Judge was therefore satisfied and convicted the Appellant on the charge of unlawful sexual with a child under 13 years of age. He had then sentenced him for 9 years imprisonment.
14. The Appellant now appealed against his conviction on the unlawful sexual intercourse with a child under 13 years of age under s. 142 (1) (a) charge in count 2.

Appeal Ground and submissions

15. The only ground of appeal advanced by the Appellant is that the learned trial Judge erred in finding the complainant was under the age of 13 years on the evidence before the Court.
16. It is submitted by the Appellant that the verdict was unreasonable and unsafe as it cannot be supported having regard to the evidence.
17. The Appellant advanced that an element of the charge to be proved beyond reasonable doubt was that the complainant was under the age of 13 years at the time of the offence in July 2013.
18. The Appellant submitted further that the finding of the trial Judge was made contrary to the evidence because the complainant and her mother accepted when they were each cross-examined that the complainant B.T. was 20 years of age at the time of trial in July 2017 and she must have been 16 years at the time of offence but not under 13 years of age as alleged by the prosecution. This suggestion of age of 20 years was made by the defence counsel when cross examining the complainant and her mother on a figure of “18” written on the birth certificate of the child of the complainant as the age of the mother of the child (complainant) produced by the prosecution to prove that as a result of the sexual relationship between the Appellant and the complainant, the complainant got pregnant and gave birth to a child (girl) in July 2015 and she was 2 years of age at in July 2017 at the time of the trial.

Discussion on the appeal

19. We note that in July 2013, the complainant B. T. attended grade 4 in Primary school. Her mother Benedita Ruruatu testified the complainant was born on 26 November 2000. The complainant knew also her date of birth from her mother.
20. The age of the complainant was not at issue until such time it was suggested to her by the defence counsel that she was 20 years old in July 2017 and she accepted based on the age of “18” years marked as her age on the birth certificate of her child (P5). The complainant’s mother said the complainant was born on 26 November 2000 but in cross-examination, she accepted the suggestion that the complainant was 20 years while she was cross-examined by the defence counsel based on P5 document.
21. In the High Court, the trial Judge found as follow:
    • “with regard to the second count, sexual intercourse was not denied; hence, all that the prosecution need to prove is that, complainant was under 13 years of age. As I stated earlier, I accepted PW2’s evidence about the complainant age that she was born on the 26^th November 2000. That means that at the time of sexual intercourse in July 2013 to 21^st August 2013, the complainant was about 12 years, 8 months old. She was clearly under 13 years, hence, consent is no defence. I am therefore, satisfied that the prosecution had proved charge of defilement against the accused beyond reasonable doubt. I convict the accused as charged.”
22. We note that exhibit P5 was the birth certificate of the child of the complainant. But it was not that of the complainant. It was brought in by the prosecution to relate the fact that the complainant was pregnant as a result of the sexual relationship she had with the Appellant and she gave birth to a child which is 2 years of age in July 2017.
23. It was said there was no reason provided by the trial Judge to reject or disregard the suggestion that the complainant was 20 years of age in July 2017.
24. We do not accept the submissions advanced by and on behalf of the Appellant for the reason that follows.
25. In this case, there was no birth certificate provided as to the age of the complainant. The trial judge considered all the evidence before him in the trial. The following passages of his judgement illustrate how he dealt with and resolved the conflicting aspect of the evidence before him in the trial:
    • “Prosecution never asked the complainant about her age however in cross examination when the defence counsel suggested to her that she was 20 years this year, she said yes. For a village girl who left school in grade 5, I believe she would not have the ability to quickly calculate her correct age under the intimidating atmosphere of the court room and the pressure in the witness box so she could easily agree with any suggestion by a man in black clown (gown) and a grey wig without being sure about what she said”.

And further, he added:

“PW2 is the complainant’s mother. She told the court that the complainant was born on the 26^th November 2000. However in cross examination when the defence counsel suggested to her that her daughter was 20 years old this year, she said yes. Just like the complainant I think PW2 agreed to the suggestion just because she confused as opposed to being sure about her answer. Defence also submit that the complainant’s date of birth recorded on her child birth certificate should be the correct date of birth of the complainant. I do not agree, there is no evidence the complainant’s date of birth stated on her child birth certificate is the complainant correct date of birth. On the contrary I am satisfied on PW2’s evidence that her daughter the complainant was born on the 26^th November 2000”.

26. The trial Judge considered all the evidence that is available in the trial and he preferred and accepted the evidence of the complainant’s mother. He rejected the suggestions put forward by the Defence counsel in cross examination that the complainant was 20 years of age in 2017 based on the birth certificate of the complainant’s child (P5). He gave an explanation as to the reason why he preferred the evidence of the mother of the complainant as to the date of birth of the complainant. The Judge was entitled to so find on the basis of the material evidence of the mother. She knew of the date when she gave birth to the complainant which was 26^th November 2000. We note that section 175 of the Evidence Act might have assisted the trial judge in his assessment of the age of the complainant coupled with the evidence of the mother (s.175 of the Evidence Act is defined later).
27. We see no error made by the trial judge in his resolution of the conflicting evidence before the court. That is the normal part of the duty of a trial judge in disputed evidence or discrepancies or inconsistencies of evidence in the trial court.
28. We confirm the trial judge’s findings and ruling on the conviction of the Appellant on the offence of unlawful sexual intercourse with a child under 13 years of age, contrary to Section 142 (1) (a) of the Penal Code. The conviction was safe and satisfactory as it was based on the evidence the trial judge found and accepted.

Steps to be undertaken by the prosecution in future similar cases

29. In this case, we observe that the proof of the date of birth of the complainant would have been simply undertaken if the simple precautionary steps have been followed by the prosecution pursuant to Part 15 of the Evidence Act of 2009 prior to the trial. We note that these steps were not undertaken by the prosecution in this case.
30. For ease of reference we set out below that Part 15 of the Evidence Act which (relevantly) provides:

“Part 15 – PROOF OF BIRTH

Proof of age determined by the court

175. In any proceeding if the court does not consider that there is evidence or sufficient evidence to determine the age of a person, that court having seen that person, may itself determined the question.

Proof of age by birth certificate

176. An official document purporting to be either the original or a certified copy of a certificate, entry or record of a birth alleged to have taken place whether in Solomon Islands or elsewhere is evidence in a proceeding of the facts stated in the document.

Presumption of age

177. (1) If the age of a person is relevant to proceedings before a court and-

(a). a document appears to be a certified copy of, or extract from, the register of births under the Births and Deaths (Registration) Act (Cap. 168), or a register of births kept under the law of the country in which the person was born, is produced to the court; and
(b). the name of the person to whom the document relates is the name or a former name of the person whose age is to be considered, it will be presumed, in the absence of evidence to the contrary, that the person whose age is to be established is the person named in the document produced to the court and that the date of his or her birth is the date of birth shown on that document.”

31. The offence of unlawful sexual intercourse with a child under 13 years of age under section 142 (1)(a) of the Penal Code Act requires the prosecution to:
    • (i) prove or have the evidence of the age of the complainant through the production of the original copy of the birth certificate (which is the best evidence) (s.176); or
    • (ii) obtain for production a certified copy of, or extract from, the register of births. under the Births and Deaths (registration) Act (Cap. 168), or a register of births kept under the law of the country in which the person was born(s.177); and
    • (iii) the prosecution may include a register of births kept by the hospital or clinic where the complainant child was born (or delivered) or a register of births kept by the complainant’s local church or school.
    • (iv) Finally, if there is no record of birth or document to certify or prove the date of birth of the complainant then the prosecution must have ready a person who has the knowledge of the date the complainant was born and have him or her testified to that effect like (the mother) in the present case giving the court some evidence to determine the age of the complainant (s.175).
32. However, contrary to the present case, the above described steps have to be undertaken by the prosecution; the prosecution must have them ready at the trial management preparation; and must have them disclosed to the defence so that the prosecution and the defence may have them included in the Memorandum of agreed facts and issues between the prosecution and the defence before the criminal trial begins.

Result of the appeal

33. The appeal against conviction is therefore dismissed.

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Goldsbrough P
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Ward JA
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Lunabek JA