IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 144 of 2004

STEPHEN ROMANE

–v-

REGINA

(KABUI, J.)

Dates of Hearing: 13th and 14th October, 2005
Date of Ruling: 17th October 2005.

H. Kausimae for the Crow.
L. Kershaw for the Accused

RULING

Kabui, J. The defence has questioned the competency of the complainant to give evidence against the accused of her rape and indecent assault in Honiara on or about 18th or 19th February, 2004. The defence bases its case upon remarks made by the complainant’s mother in her statement to the Police and Dr. Vavala in his medical report on his examination of her following her rape and assault, implying that she is somewhat abnormal. The defence calls for the barring of the complainant from giving evidence on the basis that she is incompetent to do so. That is the issue before this Court.

Medical evidence.

The complainant may well be abnormal but the extent of her abnormality has not been established. It is therefore not known whether or not she is able to distinguish between telling the truth as a witness and can take the oath of telling the truth and nothing but the truth. Medical evidence has been called in the form of a report on the complainant prepared by William Same, a person qualified in mental health. His provisional diagnosis is that the complainant suffers from a mild mental retardation or disruption of normal mental development. 

The need for an inquiry.

The medical evidence at hand does not tell me whether the complainant is capable of knowing the difference between telling the truth and not telling the truth. Does she have the capability to do so? The answer is that there is no way of finding out unless I make an inquiry of her to find out. 

The rule governing the issue of competence of a witness.

The general rule is that “witnesses who are incapable of understanding the oath and of giving rational testimony, due to mental illness, drunkenness and the like are not competent” to give evidence. (See, Phipson on Evidence, Fourth Edition, 1990, at 144 and in R. v. Lee [1988] Crim. L. R. 525).

There are exceptions to the rule.

The above rule is not absolute because there are persons who may still be able to give evidence even when they may be regarded as being abnormal in terms of mental health. In Durham v. Durham, 10 P.D. 80 at 93, Hannen, J. said-

“I have known instances of persons of unsound mind giving evidence in courts of justice of facts within their own knowledge, and their statements have been acted on. But it is evident that statements made in such circumstances must be received with caution, and they must be corroborated by, or be consistent with, the other evidence of the facts in question”.

In practice, the position is that-

“When a mentally-ill person is tendered as a witness it is for the judge to decide whether he understands the nature and obligation of an oath and is of competent understanding to give evidence”.

(See Phipson on Evidence at 144 cited above).

If the judge so decides in favour of the witness giving evidence on the basis that the witness does understand the nature of the proceedings, it does not matter that the witness is unaware of the existence of God. The witness can be sworn to give evidence. (See R. v. Bellamy [1986] Crim. L. R. 54 and R. v. Hayes [1977] 2 All E.R. 288). 

The inquiry to find out the capability of the complainant to give evidence as a witness.

I started off this inquiry by asking the complainant a number of questions. I asked who her name was and she said Anita. I said Anita who and she said her father’s name. I said who was her father’s name and she said Saognoku. I asked for her mother’s name and she said Hetty. I asked whether she had brothers and sisters and she said she had three. When asked how many were brothers and how many were sisters she said two brothers and one sister. Asked whether she went to School she said no. Asked whether she went to Church on Sundays, she said no. Asked whether her parents did she said no. Asked why, she said her parents just did not go to Church on Sundays.

Asked whether she knew about God she said yes. Asked whether God liked people who told lies, she said no. Asked whether it was good to tell lies to her parents, she said she did not lie to her parents. When the question was repeated, she said she never lie to her parents. Asked whether it was right to tell lies to the court she said she did not tell lies to them, meaning court. Asked whether she was aware of why she came to court she said yes. Asked whether she had come to tell her story she said yes. Asked whether she could tell her story in court she said yes. Asked whether she could tell the truth in court if she was asked to do so she said she could tell her stories.

At this point, Counsel for the defence suggested that a few more questions could be asked to establish whether she understood the difference between a lie and truth. Counsel framed the questions and I put them to the complainant. Asked what would she say if someone said she had ten brothers and one sister, she said whoever said that was not telling the truth. Asked by what means she got to court, she said they walked down. Asked what would she say if someone said she came by taxi, she said that someone who said that was lying.

Assessment after the inquiry.

In my view, the complainant does understand the difference between a lie and truth. She does understand that it is not right to lie to anyone or in court. She does understand that it is important to tell the truth in court if she is asked to do so. She therefore understands the moral of telling the truth as against telling lies.

Counsel for the defence has argued that understanding the nature of the oath or affirmation is not enough; there must be in place the ability to give evidence in a rational way. On this point, Counsel relies upon the observations made by William Same in his report to the Court. I do not dispute those observations because that is why in his provisional diagnosis, he says the complainant has a mild mental retardation or a disruption of normal mental development. The diagnosis is not an absolute bar to the complainant’s competence to give evidence on oath.

The argument by Counsel is begging the question that answering it. The question is that despite her condition, can she still be able to give truthful evidence on oath knowing the value of telling the truth in a court of law. The answer is yes she can subject to how her evidence is led by the Crown. Even witness who are sane do sometimes suffer from forgetfulness, deliberate lying and giving contradictory or confusing answers in evidence. I think the complainant is capable of giving evidence that is rational despite her condition. An example are rational statements she gave to the Police otherwise there is no case against the accused in the first place.

Conclusion.

I find that Anita Saognoku is competent to be sworn as a witness to give her evidence. She will not be barred as requested by the defence. I rule accordingly.

Frank O. Kabui
Puisne Judge