CRC 16/97. HC

IN THE HIGH COURT OF SOLOMON ISLANDS 

Criminal Case No. 16 of 1997

REGINA

V

MAENADI WATSON, SMITH PITAPIO YOUNGSTON WATSON, and SARO NORMAN 

High Court of Solomon Islands
(Muria, CJ)

Criminal Case No.16 of 1997

Hearing: 27-31 March 2000 at Gizo 
Judgment: 31 March 2000

J. Faga for Prosecution
P. Lavery for first and second Accused 
L. Kako for third and fourth Accused

MURIA, CJ: The four accused, Maenadi Watson, Smith Pitapio, Youngston Watson and Saro Norman, have been charged with rape contrary to sections 136 and 137 of the Penal Code. In addition, they have also been charged with the offence of threat of injury to person employed in the public service contrary to section 101 of the Penal Code. It was alleged that on 29 April 1995 the four accused had sexual intercourse with the victim without her consent. With regard to the second charge, it was alleged that the accused threatened to injure one Mrs. Carol, a nurse employed in the public service, for the purpose of forebearing her to perform her public function, namely to attend to the victim of the alleged rape. All the accused pleaded not guilty to the two charges.

Prosecution Case

The prosecution case is that on 29 April 1995 at about 7.00 pm, one of the accused namely Maenadi Watson, met the victim on the road after a Sabbath Service. He asked her to accompany him to a nearby coconut plantation. She followed Maenadi and as soon as they got to the coconut plantation, Maenadi removed her T-Shirt and covered her mouth while the other three who were said to have been waiting there, held her hands and legs. They laid her down on the ground and Maenadi removed her underpants tearing it while Saro tore her skirt. They held her to the ground and each had sexual intercourse with her by force beginning with Maenadi Watson, followed by Youngston Watson, then Smith Pitapio and then Saro Norman.

After having had sexual intercourse with the victim, all the accused ran away leaving the victim lying naked on the ground. The accused ran away as soon as they realized that the victim’s uncle (PW 4) and mother (PW2) were close to the scene looking for the victim who was eventually found by PW 4 lying naked on the ground in the bush. Both PW 4 and PW2 then took the victim back to the house that night.

It was further alleged that the next morning, the mother took the victim to Penjuku Clinic to be examined by the nurse. Upon arrival at the Clinic, the accused were already there and they had an argument with the victim’s mother threatening her that if she let her daughter to be examined by the nurse they would harm her and destroy things in the clinic. That resulted in the nurse not examining the victim and so the victim and her mother returned home with the victim not being examined.

Defence case

The defence case is that the accused admitted having sexual intercourse with the victim but said that it was done with the consent of the victim. She complained of rape only because she was found out by her uncle. It was also alleged that one or two of the boys had previously had sex with the victim.

On the second count, the accused’s case is that they did not threaten the nurse at Penjuku Clinic. All they (at least, Maenadi) did was to put to the victim’s mother that they had sex with her daughter but did not rape her.

No case submission

All the evidence had been called and the defence has now submitted that the accuse had no case to answer on the two charges brought against them. With regard to the first count, both Counsel for the defence submitted that the evidence on the charge of rape had been so discredited or so manifestly unreliable that no reasonable tribunal could convict on it. As to the second count, counsel submitted that there was simply no satisfactory evidence to sustain the charge.

The Law

The starting point on the consideration of a no case to answer submission is section 197 Criminal Procedure Code which provides as follows:

“If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit the accused.”

That section is specifically worded to suit the circumstances of a criminal trial where there is no trial by jury. As such in Solomon Islands where a judge is both a judge of fact and law he is entitled to go beyond the mere consideration of evidence on the essential element of the offence as expressed in the English Practice Note. [1962] 1 All ER 448 and referred to in Archbold Criminal Pleading Evidence and Practice, 39 Ed. para. 575(a). A judge in a criminal trial in Solomon Islands is entitled to consider the sufficiency of the evidence at the close of the prosecution case in order to determine whether or not the accused has a case to answer. The words “it appears to the Court that a case is not made out against the accused person sufficiently to require him to make a defence” in section 197 clearly bore out the basis for the stand which I pointed out. Thus, it is not simply a matter of the prosecution adducing evidence to establish the essential element of the offence, but adducing evidence which is sufficient to make out a case against the accused. That is what the judge must be satisfied with under section 197 Criminal Procedure Code.

In this jurisdiction, R -v- Lutu [1985/1986] SILR 249 pointed this out. It is the authority on the application of s. 196 (now s. 197) Criminal Procedure Code and ought to be followed. His Lordship Ward CJ expressed the law in section 196 in the following words at pp. 250 - 251.

“In this case I am the judge both of fact and law. As such my duty to decide whether a case has been made out sufficiently to require the accused to make a defence under section 196 goes further than that of a judge sitting with a jury.

Thus if at the close of the prosecution case I, as judge of fact, do not feel that there is sufficient evidence even at that stage on which I could convict, I should stop the case.

I feel that the words in section 196 that where “it appears to the court that a case is not made out sufficiently to require (the accused) to make a defence” suggest that, where the tribunal is judge of fact as well as law, it is entitled to consider the sufficiency of the evidence at the close of the prosecution case.”

Having said that, I now turn to consider the submission in this case.

Whether or not there is a case to answer

The victim’s evidence was that at about 7.00pm on the 29 April 1995, she met Maenadi Watson on her way to her house after returning from the beach. He asked her to follow him to a nearby bush in a coconut plantation. She willingly followed. As soon as they reached that place, she told the Court that the accused removed her T/Shirt over her head and then covered her mouth with it. Immediately, she said, the other three accused appeared and two of them (Smith Pitapio and Youngston Watson) held her hands while Saro Norman held her legs. They then knocked her down on the ground facing upward. It was then that Maenadi Watson removed her underpants while Saro Norman tore her skirt. She further stated that Smith Pitapio and Youngston Watson hit her shoulders, as well as being threatened with a knife by Smith Pitapio. The first to have sexual intercourse with her, she said, was Maenadi followed by Youngston, then Smith and finally Saro before her uncle came and found her.

The main contention here is that of consent as sexual intercourse had been admitted. As such the evidence relating to the conditions of the clothes and of the victim’s body are important, as well as the evidence of weapon. I think it is important also to consider the evidence of delay in reporting of the alleged rape in this case.

The Court has to consider the evidence of the prosecution as a whole to see if there is sufficient evidence upon which the Court could convict the accused. There are a number of important features of the prosecution evidence here which must be considered. First the victim’s evidence as to the conditions of her clothes are not consistent. Her mother’s story about her clothes did not support her story either. According to the victim, Maenadi removed her T/shirt in the usual way by pulling it up over her head. It was not torn. It was the mother who said that the T/Shirt was cut in three places. As to the colour of the T/Shirt, the victim said that it was Red while the mother said it was purple. When the victim was recalled, she said in evidence that her T /Shirt was white. The mother also told the Court that the Skirt and underpants were cut with knife while the victim never said that they were cut with a knife.

The victim’s evidence as to the sequence of the accused having sex with her was not consistent. At first she said it was Youngston who had sex with her after Maenadi Watson and later she said it was Smith Pitapio who had sex with her after Maenadi.. When cross-examined by Counsel for Youngston and Saro, the victim changed her story again and said that it was Youngston who had sex with her after Maenadi

The injuries said to have been found by the mother on the body were not seen by the uncle who closely examined the victim’s body. The uncle only found sweat and smell of sperm on the victim’s body. Further while uncle said that he heard crying coming from the bush, the mother consistently said that she only heard whispering coming from the place where her daughter was found. Again, the victim herself confirmed that she only cried because she was ashamed of her uncle. In the end she agreed that she only alleged rape because of shame. Putting all those evidence together with the fact that no complaint of rape was made to the police either by the victim, the mother or uncle immediately after the incident, the story of a rape being committed upon the victim cannot be plausible.

The uncle and the mother were in the best position to report to the police what happened to the victim since they were the ones who found the victim in the bush and to whom she reported what had happened to her. If it was rape, as it is now alleged, why did they not report it immediately to the police at Seghe. Instead they wrote to the. victim’s father in Honiara who then reported the matter, as rape, to the police in Honiara. No blame should be laid against the father for reporting something which might not be necessarily rape since he was only relying on information passed on to him nor should he be blame for the delay in reporting the matter to the police. If it was rape, the best people to report it quickly to the police were the uncle, the mother or the victim herself. A report of rape after two months of the incident when it could easily have been done quickly, must be viewed with some suspicion.

Nobody should condone what these four accused had done to the girl in this case. What they had done could be said to be morally disgusting. But this Court is a Court of law, not a court of morals. The law requires that if rape is alleged against a person it must be established by evidence. In this case the evidence adduced by the prosecution is not sufficient to make out a case of rape against all accused. The charge must be dismissed and all accused acquitted.

As to count 2, it is conceded and rightly so, by Mr. Faga that the evidence simply cannot sustain the charge of threat of injury to person employed in the public Service. The accused have no case to answer on that charge too and it is dismissed. The accuseds are acquitted. Accordingly I dismiss both charges and acquit all the accused.

Sir John Muria
CHIEF JUSTICE