Home | Databases | WorldLII | Search | Feedback Court of Appeal of Solomon Islands

Tuha v R [2022] SBCA 4; SICOA-CRAC 22 of 2021 (8 July 2022)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. This is an appeal against the conviction of the defendant, Richard Tuha (“the Appellant”) in the High Court on the 13^th August 2021, on a charge of rape, contrary to section 136F (1) (a) & (b) of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. The parties to this appeal were offered the choice of a virtual or paper hearing. Presently the borders to the Solomon Islands are closed and the Court of Appeal is thus constrained. In the event the parties chose to have the appeal dealt with by the circulation of papers. We reserved the right to call a virtual hearing should any matter arise on which we sought to ask questions of counsel. No such matters arose.
3. The Appellant relies on four grounds of appeal as follows:
   1. That the learned Judge erred in law and/ or fact and/or his discretion and thereon misdirected himself when he determined that the Appellant was guilty of Rape contrary to Section 136F (1)(a) & (b) by refusing to accept as credible evidence, the evidences or witness testimonies of PW2 and DW1 thereby rendering the said conviction unsafe.
   2. That the learned Judge erred in law and/or fact and misdirected himself when he relied on evidence of PW4 corroborating the victim’s evidence without considering that the victim was diagnosed by PW4 with Pelvic Inflammatory Disease and not any form of Sexually Transmitted Disease rendering such reliance unsafe to justify a conviction.
   3. That the learned Judge erred in law and/or fact in failing to consider that the elements of the offence of Rape contrary to section 136F (1) (a) & (b) could not have been proven beyond reasonable doubt as the Appellant had hearing impairment or disability.
   4. That the learned Judge erred in fact in failing to consider all the circumstances surrounding the commission of the offence for Rape contrary to Section 136F (1) (a) & (b) by the Appellant and thereby rendering the conviction unsafe.

Brief Background.

4. The Crown alleges that the victim had been taken in a taxi, driven to a side road in the Ranadi Area before being raped by the Appellant. They allege the vehicle stopped beside the road and after parking, the driver left the Appellant and the victim in the vehicle alone. The driver only returned after he was called by the Appellant on the phone to return.
5. The defence on the other hand was to put the prosecution to proof and to rely on the surrounding circumstances and events which occurred and which they said should raise a reasonable doubt in the mind of the Judge. They relied on the location where the vehicle was parked, that it was day time, the windows of the taxi lightly tinted and so it was possible for people to look into the vehicle, that there were passers-by and therefore when those factors were taken into account, it was unlikely that the rape could have taken place. They relied on the evidence of the driver and also on that of the Crown witness PW2, who took the victim into the taxi and left her and then was picked up again after some 20 or so minutes after.
   • Appeal Ground 1. That the learned Judge erred in law and/ or fact and/or his discretion and thereon misdirected himself when he determined that the Appellant was guilty of Rape contrary to Section 136F (1)(a) & (b) by refusing to accept as credible evidence, the evidences or witness testimonies of PW2 and DW1 thereby rendering the said conviction unsafe.
6. This ground alleges that the trial judge’s finding in not accepting the evidence of PW2 and DW1 as credible evidence was unreasonable in the circumstances and rendered the conviction unsafe. In other words by rejecting their credible evidence he fell into error and exhibited prejudice against the Appellant, by accepting the stereotypical image of how an alleged victim or an alleged perpetrator of a sexual offence ought to have behaved at the time or appear when giving evidence, instead of judging the evidence on its intrinsic merits, as set out in the case of R. v. Miller^[1].
7. In the case of McCann (1990) 92 Cr App 239, the Court of Appeal said that while it had to give great weight to the trial judge’s exercise of discretion, its power to review was not limited to cases where there had been errors of principle, or a lack of material on which the judge could have arrived at his decision. It must if necessary examine anew the relevant facts and circumstances to exercise a discretion by way of review if it considered that the trial judge’s ruling might have resulted in injustice to the appellants^[2].
8. It is also a well-established principle on appeal that an appellate court will not disturb the findings of fact of the trial judge when it is dependent upon his assessment of the credibility of witnesses, which he has had the advantage of seeing and hearing, an advantage denied to an appellate court^[3].
9. An appellate court may intervene if it is shown that the trial judge’s exercise (or non-exercise) of a discretionary power was adverse to the interests of the defence either because of a material irregularity or the conviction was thereby rendered unsafe. Such appeals however are frequently dismissed as the discretion is vested in the court below and only in extreme cases can an appellate court will interfere^[4].
10. This appeal ground raises the question as to the findings on the evidence by the trial judge of the evidence of the two witnesses PW2 and DW1.

Evidence of PW2

11. PW2 is a Crown witness who was with the victim, who had arranged for a taxi to pick her (PW2) and the victim up on that particular day of the rape.
12. It is not disputed that she and the Appellant were known to each other. It is also not disputed that the victim did not know the Appellant or the driver (DW1) of the taxi which picked her up.

It is also not disputed that this witness was the one who had arranged for the Appellant to come in the taxi and supposedly pick them up to drop them off at her Aunty’s place. The taxi pickup was therefore pre-arranged between PW2 and the Appellant.

13. Her evidence in essence consisted of accompanying the victim to the taxi, leaving her inside and then having to go back supposedly to the house to get her bag before returning. This took some 20 – 25 minutes according to her evidence. By the time she got back the taxi had left. She was later picked up by the taxi with both the Appellant and the victim in the vehicle and after the rape had taken place.
14. She and the victim were then dropped off at the Kobito Bus Stop before walking to her Aunty’s place where they spent the night.

The analysis of PW2’s evidence by the Judge.

15. In his assessment of the evidence, the Judge was satisfied the victim was about 14 to 15 years old at the time of the commission of the offence and that the trial occurred some two and half years later. He was satisfied that she was a reliable witness as to her account of what happened. This is amply set out in paragraphs 10 and 11 of his judgement, where he made some important findings of fact.
16. He also accepted PW4’s evidence as reliable and noted that she was an impressive witness. PW4 is the nurse that conducted the physical examination of the victim when brought to the Clinic and made her observations in a report which was marked as Exhibit P2.
17. He also accepted as reliable the evidence of PW3, who he found gave background evidence of her relationship with the victim and of “recent complaint” evidence. The victim was living and working with PW3 in her house as a house-girl when as a result of a disagreement between them the victim decided to run away from their house that particular day and enlisted the assistance of PW2 to help her escape and hide with the intention it seems of returning back to her parents at her home village in Isabel. She was the one who on being told of the rape took the victim to the clinic for examination and also reported the matter to the police.
18. In his analysis of PW2’s evidence, the trial judge found that some parts of her evidence contradicted other parts of her evidence. He accepted that her evidence was important in so far as it confirmed the identity of the Appellant as the person beside the taxi driver. He found her actions in leaving the victim in the taxi as odd and “did not make sense”. This is based on his finding of facts that she was away for some 20 – 25 minutes. She then later asked the victim if the Appellant had done something to her, implying that she was expecting something to be done to her.
19. He also found her evidence to be contradictory in relation to the victim being upset when she got into the taxi, then seen by her playing on the cell phone of the Appellant and being happy when she was picked up afterwards. The judge noted that this piece of evidence was never put to the victim when she was cross examined^[5]. If that were to be relied on as part of the defence, then that should have been put to the victim to give her an opportunity to rebut or explain. The Judge was entitled to disregard that evidence in lieu of the victim’s evidence.
20. In Browne v. Dunn^[6], Lord Herschell said (at 70-71):
    • “... I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice, but is essential to fair play and fair dealing with witnesses ....
    • All that I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story has not been accepted.”
21. In Bulstrode v. Trimble^[7], Newton J. said (at 846) citing Cross on Evidence^[8]:
    • “In the cross-examination of a witness “any matter upon which it is proposed to contradict the evidence-in-chief given by the witness must normally be put to him so that he may have an opportunity of explaining the contradiction, and failure to do this may be held to imply acceptance of the evidence-in-chief”.
22. The judge was entitled in the circumstances to reject the evidence of PW2 in relation to those statements. He was also entitled to make a finding on the evidence that this witness as a friend of the Appellant attempted to do all she could to assist him, including setting up the victim for the Appellant.
23. We are satisfied no error of law, fact or misdirection occurred in respect of this finding and accordingly this appeal in relation to PW2’s evidence should be dismissed.

The evidence of DW1.

24. DW1 is the taxi driver who drove the vehicle to the side of the road at the Ranadi area and parked the vehicle beside the road. His evidence as to the time of the incident is clearly at odds with the version of the Crown. He says it was in the morning part, when the Crown’s version and the timing accepted by the Judge was in the late afternoon. Again the judge was entitled to make that finding on the evidence.
25. His account as well as to what happened when he parked the vehicle differs from the version of the Crown. He says he stopped the engine and walked out. He also says the door of the passenger’s seat in front was open. He says too that the car did not have any air conditioning and so if it was closed it would be very hot. He also says that he was out for only a short time before returning back to the vehicle.
26. His version that he was away for only a short time before returning contrasts with the Crown version, that he only returned after he was called on the phone by the Appellant.
27. His evidence also was that when he returned to the vehicle, he saw the victim playing with the phone of the Appellant and looked normal.

Analysis of the evidence of DW1.

28. The judge’s assessment of the evidence of DW1 is at paragraphs 15 and 16 of his judgement. The judge correctly noted the difference in timing as claimed by that witness to be in the morning and held that it could not be in the morning but in the evening. He was entitled on the evidence to reject his evidence on that point. The judge also found that he was not an impressive witness and one that can be relied on.
29. He also noted that when this witness stopped the vehicle and got out to get betel nut, which he did not use and buy drink and cake, was because of a pre-arrangement with the Appellant. He also found that he only returned after he was called to return by the Appellant over the phone. We are satisfied he was entitled to make that finding on the evidence and did not commit any error of law or fact.
30. As to the use of the cell phone the judge also rejected that evidence as unreliable. He noted that this was not put to the victim in cross examination. The same goes with the evidence that the door of the vehicle on the passenger side was open and that there was no air condition in the vehicle. These were never put to the victim to rebut.
31. We find no error of law and/ or fact and/or in the exercise of his discretion when he rejected the evidence of PW2 and DW1 as unreliable and therefore dismiss appeal ground 1.
    • Appeal Ground 2. That the learned Judge erred in law and/or fact and misdirected himself when he relied on evidence of PW4 corroborating the victim’s evidence without considering that the victim was diagnosed by PW4 with Pelvic Inflammatory Disease and not any form of Sexually Transmitted Disease rendering such reliance unsafe to justify a conviction.
32. PW4 was the nurse that conducted the physical examination of the victim when she presented herself to the Clinic as a victim who had been subjected to rape. The judge found her evidence in essence to be quite impressive, done according to medical guidelines that had been set up for such victims that presented as having been subjected to sexual violence.
33. Her evidence on this is also uncontested. The judge was therefore entitled to rely on her evidence as corroborating the victim’s evidence that she had been forcibly raped. Her observations of the description of the victim's vaginal wall as showing erosions is consistent with penile penetration and consistent with the evidence of the victim.
34. When asked to explain what erosions on the vaginal wall meant, she explained as follows:
    • “Okay erosions are, it’s like there are bruises. If go on to further explain that when there is a penetration happening to the cervix normally when it’s quite in a harsh you will see there’s erosion. Erosions are some kind of scratches because the cervix is not ready.”

She continued:

“Okay moving on to assessing the walling of the vagina you can see lacerations, grazes and even bruises and tears on the walling of the vagina. And I forgot to mention that but the secretion on the vaginal it consist of some kind of a blood stain, old blood stain. So then after assessing that then I finally removed the speculum.”

35. Under cross examination she explained that the vaginal wall is smooth and covered with lactose mucus and the like. She explained that when there is erosion it meant that something hard is pushing against them. When that happens, then that is when erosions can occur. She also explained that the presence of erosions is not normal and can indicate infection being done by a penetrator.
36. We are satisfied that her explanation and clarification speak for themselves. The judge was entitled to rely on her evidence as corroborating the evidence of PW1.
37. On the suggestion that the presence of Pelvic Inflammatory Disease was inconsistent with the evidence of rape, we find this to be without basis. There is no evidence to suggest that the observations of PW4 and her finding as well of the possible presence of Pelvic Inflammatory Disease to be contradictory. Her diagnosis that the victim may have Pelvic Inflammatory Disease was a separate assessment done towards the pelvic area where the ovary and fallopian tubes are located and was compatible with her relevant finding relating to the vaginal wall and that it reflected the presence of a penetrator.
38. This ground must be dismissed as baseless.

Appeal Ground 3. Hearing Impairment of the Appellant.

39. This ground can be shortly disposed of. There is simply no foundational basis or shred of evidence adduced to suggest that his hearing impairment raised any reasonable doubt as to his actions, which were amply and plainly articulated in the evidence of the victim. It is pertinent to note that her evidence of sexual violation is uncontested. There is no evidence to support the suggestion that no rape could have taken place or that if there was any sexual intercourse that took place, that it was without consent due to his hearing impairment or disability. That was never put to the victim to suggest to her that she could not be raped as a consequence. We fail to understand how that impairment could have affected the judge’s finding of guilt in the circumstances of the offending and the clear uncontested evidence from the victim.
40. The course of defence taken all along has been for the Crown to prove its case beyond reasonable doubt. We are satisfied the judge was entitled to rely on her evidence and that of PW3 and PW4 to corroborate her evidence of rape.
    • Appeal Ground 4. That the learned Judge erred in fact in failing to consider all the circumstances surrounding the commission of the offence for Rape contrary to Section 136F (1) (a) & (b) by the Appellant and thereby rendering the conviction unsafe.
41. An appellate court may intervene to examine anew the facts and circumstances to exercise its discretion if it is satisfied the trial judge’s ruling might have resulted in injustice to the appellant^[9].
42. It is necessary therefore that the appellant in this case also demonstrates that there has been injustice in his case because the trial judge had erred in law or fact and or in the exercise of his discretion to consider all the circumstances surrounding the commission of the offence of rape.
43. We are satisfied this ground can shortly be disposed of. There is simply no basis on which this submission can be sustained. No error of law, or fact or misdirection has been recounted to support this appeal ground. We are more than satisfied the trial judge carefully and meticulously considered all the necessary facts, and carefully assessed the weight to be attached before determining the guilt of the Appellant. His findings of facts are unassailable and this appeal must be dismissed as well.

Orders of the Court:

Dismiss the appeal and conviction affirmed.
Goldsbrough P
Palmer CJ
Hansen JA

^[1] [2010] EWCA Crim 1578.
^[2] See Blackstone’s Criminal Practice 1992, paragraph D21.22
^[3] Saunders v. Adderley [1998] UKPC 29; [1999] 1 WLR 884 (PC); Ofea v. R [2019] COA-CRAC 22 of 2019, (18 October 2019; Harold Keke and Ors v. Reginam COA-CRAC 8, 9 and 11 of 2005 [2006] SBCA 1, COA-CRAC 008 009, 11 of 2005 (25 May 2006);
^[4] Grondkowski [1946] KB 369.
^[5] Rule on Browne v. Dunn [1893] 6 R 67
^[6] (ibid)
^[7] [1970] VR 840,
^[8] 3^rd Ed, pp 211-212
^[9] McCann [1990] 92 Cr App 239