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Regina v Nickson [2008] SBHC 20; HCSI-CRC 328 of 2006 (22 February 2008)

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 328 of 2006

REGINA

V

GRAEME NICKSON

(Faukona, J.)

Date of Hearing: 22, 23, 24, October 2007, 26, 27, 28, November, 2007,
4 December 2007, 21, 23, 28, and 29 January, 2008

Date of Judgment: 22 February, 2008

Louise Kleinig for the Prosecution
Tui Savu for the Defence

JUDGMENT

Faukona J:

1. The accused Graeme Nickson is charged with one count of Rape and an alternative Charge of Defilement of a girl under the age of Fifteen (15) Prosecutions had referred me to Section 166[1] which provide that the offence of Defilement is on automatic alternative for the charge of rape.

2. On the outset I will first consider the charge of rape. Should I find the accused not guilty, then I will proceed to consider the charge of defilement.

3. The offence of is rape defined by Section 136[2] and the punishment for rape is provided for in Section 137[3]. The prosecution alleged that the accused raped the complainant on 10th or 11th December, 2005, at Antioch Village, East Guadalcanal. That is to say that the accused had sexual intercourse with the complainant without her consent. The accused denied the allegation and pleaded not guilty to the charged

4. The Prosecution Case

The Prosecution alleges that on the 10th of December, 2005, Late evening, or 11th of December 2005, early morning as the complainant, Miss Emmelyn Tharele was walking to a house of her friend, the accused Graeme Nickson, a married male relative, gripped her by the hands and told her to go with him. She tried to scream but the accused put his hand over her mouth and squeezed tightly hurting her face. She struggle to get away but the accused held her tightly, and she could not escape. Whilst holding on to her hands the accused walked backward pulling her to a place near a pigpen, underneath a tree.

5. At that location the accused ordered the complainant to lie down. He ordered her to lift her skirt. She felt frightened. The accused then held his penis with his hand and forced it inside her. She felt pain. He said it was sweet. After he finished he put on his trousers and walked off towards the beach. The complainant did not agree to the sex.

6. The Defence Case

The defence offer no evidence or call any witnesses. Its case emerged through cross examination, as the accused opted not to give evidence or call witnesses. In fact it is his right which he exercises lawfully according to his own will. The defence that emerged from cross examination was that the accused and the complainant were in a boy/girl relationship, and they had two prior sexual encounters not involving penetration. On this occasion they had made prior arrangement to meet in secret that night.

7. The defence also rely on the strange behaviour of the complainant after the alleged rape. After realising she was bleeding she went to the well to wash herself. By doing so she went past eight family homes without calling for help. As she continued bleeding she walked to the sea to wash herself. Again she went past her own parent’s house and three other houses but she did not stop or cry for help. Whilst drawing from the well twice she did it silently ensuring her parents were not disturbed to wake up. After washing herself the complainant changed her clothes before calling out to her dad. That behaviour is wholly consistent with a person trying to conceal something from everyone else including her own parents and wholly inconsistent with someone distress or disorientated and looking for help.

8. The defence also rely on the inconsistencies in the complainant’s evidence regarding hair on the accused chest and black pubic hair around his private part. Also in regards to the colour of the accused trousers; also inconsistencies in relation to her statement recorded by police.

9. Defence Council also point out that there is no corroborative evidence. The only evidence that may have corroborated the complainant’s evidence is from Dr Zutu who examined the complainant under anaesthetic. Dr. Zutu concluded that injuries sustained by complainant was because her vagina was not lubricant enough to accommodate the accused penis and had nothing to do with the issue of consent. He also concluded that he could not tell whether injuries were resulted from consensual or non consensual sex because the same or similar injuries would result even between consenting parties, so long as the woman is not sexually aroused or ready when penetrated.

10. The Law

The offence of rape is defined by section 136[4],

"Any person who has unlawful intercourse with a woman or girl, without her consent or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the fact, or in the case of married woman, by personating her husband, is guilty of the felony termed as rape".

Section 137[5] provides for the punishment for rape.

"Any person who commits the offence of rape shall be liable to imprisonment for life".

11. The elements of the Offence of Rape

The elements of the offence of rape are:

(a) The accused

(b) Sexual intercourse with the complainant

(c) Without the complainant’s consent, or with her consent if the consent was obtained by force, by means of threats or intimidation, or by fear of bodily harm

12. Emerged from the conduct of this trial, through the evidence of the complainant, cross examinations, and from the records of interview under caution; it is not disputed that sexual intercourse did take place between the accused and the complainant. Medical evidence by Dr. Zutu also confirms that sexual intercourse took place.

13. The only element that is apparently in dispute is the element of lack of consent.

14. The prosecution which bear the burden of proof must prove beyond reasonable doubt that the complainant did not consent. The accused has nothing to prove. He stands innocent until the prosecution has proved the charge.

15. The only question which I felt called upon to decide was whether in fact the complainant was shown to have consent to sexual intercourse. The question is an essential issue of fact. In the case of R v. Donvan[6].

"A second observation which may fairly be made is that consent, being a state of mind is to be proved or negatived only after a full and lawful review of the behaviour of the person who is alleged to have consented. Unless a jury is satisfied beyond reasonable doubt that the conduct of the person has been such that, viewed as a whole, it shows that she did not consent, then the prisoner is entitled to be acquitted".

16. The state of a persons mind can be ascertained only by considering and weighing the ascertained facts about the persons conduct, or if as reasonable person thought that the conduct of the complainant, viewed as a whole was consistent with consent, then I ought to find the prosecution had not negatived the consent.

17. The same can be said that consent can be determined by an examination of the circumstances, surrounding the case[7].

18. Corroboration in rape charge (Lack of Consent)

The essence of corroborative evidence is that it confirms supports or strengthens other evidence in the sense that it renders the other evidence more probable. That words of Lord Simon in DPP v. Kilhourne[8] refers to by defence in the case of Gonevou v. State[9]

"Corroboration is therefore nothing other then evidence which confirms or supports or strengthens other evidence. It is in short, evidence which renders other evidence more probable".

19. In the case of Gonevou v. State[10], His Lordship stated on Page 4

"It is necessary to make clear that to constitute corroboration it is not just evidence that confirms or supports or strengths the complainant’s, evidence but also it comes from a source independent of the complainant of that it confirms, or tends to confirm, in some material particular, that the accused committed it"

20. This led on to the general warning, of which courts are quite mindful about convicting the accused on the uncorroborated evidence of a complainant in sexual offence. The prosecution has referred to the words of Daly CJ in R –V- Gere[11]

"I must therefore give myself a strong warning of the dangers of convicting an accused on the testimony of such a complainant in the absence of supporting evidence........... Even if I find there is no supporting evidence if after considering the warning I have given myself most careful, I am completely sure that the complainant is telling the truth then I may nevertheless convict on her evidence close".

I have taken on boarding the same warning as in the above case, when deciding the case before me.

21. The Evidence:

Background History:

The complainant Emmelyn Therale and the accused Gaeme Nickson were both residents of a small village called Antioch, East Guadalcanal, and was within walking distance of the Ruavatu Catholic Mission Station. The village consisted of a number of traditional thatched dwellings. In fact it was a small community. Many people living in Antioch village were related to one another.

22. The complainant was a school student attending Ruavatu Primary School. She was in Grade 3 in 2005, and was living with her parents Christina Poemane and Peter Kokolu.

23. The complainant and the accused were related to one another as second cousins. In Solomon Islands second cousins are very close in blood ties. Even if the accused is single it would have been forbidden in custom for him and the complainant to have a relationship or get married.

24. The Issue of Identity and Penetration

Identity and penetration are non issues, as it apparently appears from the proceedings that the accused did not dispute. The only issue to be decided by this court is the issue of lack of consent by the complainant to have sexual intercourse with the accused.

25. Evidence related to the issue of consent

Consent in a sexually related case is a human state of mind; in particular, the female partner which must be acquired or obtained before the male partner could have sexual intercourse with her. It is a prior action or behaviour displayed by the complainant to indicate she had consented to an act of sexual intercourse which is about to happen. Not always necessary that the actual words consent be conveyed, but so long as the behaviour and conduct of the female partner, or the words she said, give a clear implication that she consent to the act of sexual intercourse which she is about to participate in.

26. The main witness for the prosecution in this case is the complainant herself. Miss Emmelyn Tharele was called to the witness box and gave her sworn evidence.

27. She said on the night of 10th December 2005 or early morning 11th December 2005, she left Joseph Para’s house after chatting and chewing bettlenut with Joseph Para, his wife Miriam Pegoa, the accused Graeme Nickson, his wife Takule and Judith Bosa. After some time she noticed that Judith Bosa had left, so she proceeded to Judith Bosa’s house. She told the court there was no light in the village that night. She found out that Judith was not in her house, so she went to Joseph Para’s house.

28. On her way someone grabbed her by the hands and told her to go with him. She realized by his voice that it was the accused Graeme Nickson, a married relative of hers. She struggled to get away but he held her tightly, and she could not escape. According to the complainant the accused grabbed her with one hand covering and pressing her mouth to prevent her screaming out and the other hand onto her both hands. The accused then pulled her around Judith Bosa’s parent’s house towards the bushes away from the village.

29. She told the court that while he was still holding onto her he walked backwards, pulling her to a place near a pig pen, underneath a tree. At that spot the accused removed his trousers and hanged them on a tree, and then ordered her to lie down. Shy lay down on her backside. He ordered her to lift her skirt. She felt frightened. The accused then held his penis with his hand and forced it inside of her. The accused then started pumping up and down. She felt it was painful. He continued thrusting causing her further pain. She also said the accused did not do it for long. Then the accused stood up and went down to the beach.

30. When the accused stood up and left, the complainant then felt she was bleeding so she went to wash herself in the well (Vurae). As she continued bleeding she went to the sea (beti) to wash herself. She washed herself again at the well, removed her clothes, and then walked to her house, put on fresh clothes, and called for her father, who was at the time asleep. Her father then woke her mother and got a lantern. Her father could see blood coming from between the complainants legs. So he went to get John Pai, a custom healer to perform traditional medicine to stop the bleeding. Despite that the bleeding continued. John Pai then asked the complainant if she had been with anyone. The complainant said the accused fucker her.

31. The complainant gave evidence that at that time she was not strong, she was weak and bleeding. She also said she felt dizzy.

32. The complainant was then assisted to Ruavatu Clinic by some girls, other villagers and family members. She then received basic treatment from a nurse, Samuel Topilu (PW9). She also in evidence said that she had not been with any man before and had not experienced her period yet at that time.

33. Under cross examination the complainant denied planning to meet the accused in secret that night. She denied participating by pumping her bottom up. She denied having a boy friend/girl friend relationship with the accused. She also denied previous sexual encounters with the accused.

34. How credible and reliable is the complainant’s evidence under oath in this court. The defence has made no challenges to the evidence, starting from when the accused grabbed the complainant, right up to when the act of sexual penetration had been completed.

The defence also offered no explanation as to how the consent was made and conveyed to the understanding of the accused. However, the defence advance and challenge the behaviour of the complainant after the act of sexual intercourse had taken place. Also point out certain inconsistencies in the evidence of the complainant. These inconsistencies will be dealt with in later course of this judgment.

35. Noted from the normal course of things, consent usually and expectedly whether it be in terms of words said, or by behaviour and conduct, conveyed prior to the actual act of sexual intercourse or during the act of sexual intercourse if the complainant by her behaviour and conduct withdrew her initial resistance. This court faces crucial situation especially when the accused elected to remain silent and offers no further explanation as to how consent was communicated to him.

36. In the absence of such, I am obliged to draw a full and careful review of the behaviour of the complainant.

37. The defence argued that after the incident, having realized she was bleeding, the complainant went to the well to wash herself. In doing so she went passed eight houses including her parent’s house but could not bother to call out for help. As she continued bleeding she went to the sea to wash herself. Again she went passed four houses including her parent’s house but could not bother to call out for help. On her return she went passed those houses again but still could not be bothered to call for help. She even failed to tell her parents of what happened to her at first instance. That behaviour is wholly consistent with a person trying to conceal something from her parents and wholly inconsistent with someone in distress, shock or disorientated and looking for help.

38. The prosecution’s version of the complainants behaviour that night, after the incident was that after she realized that she was bleeding heavily was perfectly consistent with the behaviour that one would expect from a person in great pain, frightened at her blood loss, suffering from shock, a person who had been violated by a relative who should have been able to trust.

39. In my view, after observing the complainant in the witness box on 22nd October, 2007, that was twenty months after the incident, and after being convinced by her own evidence that she was in Class 3 when the incident occurred and had not had her period yet, and the evidence of the two doctors and Mr. Topilu that the complainant still had no pubic hair around her private part, I am convinced that she was below the age of 15 years at the time of the incident.

40 What would then be the expectation of a child below 15 years of age who had just gone through, for the first time a penetration by an adult penis into her vagina with consequential continues bleeding; will she expectedly at firs instance to report what happened to her to her first and nearest neighbour, or parents. In my view nothing more then what she did was expected. She is not adult girl or a girl who had experienced sex where expectation of her immediate reporting is high, and she carries responsibility on her part to do so at first instance. Nothing more can be expected of a child than an adult female.

41. In a child situation, they tend to do what they ought to do at first instance. In this case that’s exactly what happened. While the complainant could no longer manage and control bleeding she finally inform her parents and Mr. Pai.

42. Secondly, in Solomon Islands, tradition, children do not openly talk about sex to their parents or grown up men even in circumstances where they were sexually abused until the situation is out of control then they would reveal the truth.

43. I accepted the fact the behaviour of the complainant immediately after the incident was perfectly consistent with the behaviour from a person in pain and in great fear at her blood loss, and suffering from shock. Of course she would not know what do. She was in a state of confusion. Shock and confusion often distorted the mind. Again she is a child with a new experience and a bad one for her too with life threatening injuries. She did what she did to help herself instantly.

44. I must conclude that the behaviour of the complainant after the incident was normal for her age and experience. Even when she drew two buckets of water from the well, it was near or past midnight and her parents were fast asleep. How could they hear her. There was no evidence how heavy they slept and whether they had been woken on other past occasion by persons drawing water from the well at night. I agree with the prosecution submission on this point.

45. Under cross examination the complainant denied planning to meet the accused secretly that night. She also denied participating actively in the sex by pumping her bottom up. She denied having boy friend/girl friend relationship with the accused.

46. In contrast the action employed by the accused in grabbing and dragging the complainant to a pig sty; is an unchallenged piece of evidence, did not reflect the meeting was a planned one. No one in his rightful mind would restraint his girl friend and had sex with her in an uncomfortable spot, a place photographs reveal to be littered with twigs leaves and stones (see book m). If indeed the complainant agreed to meet the accused that night in a secret location to have sex then what expected of the accused was a caring sex knowing that he will initiate his younger girl friend into sexual intimacy. There was supposed to be reciprocity in sexual encounter, in which the accused is expected as a married man to ensure the complainant is ready for sex, and ensure she was not hurt, or not forced and rough sex.

47. The evidence of the injuries sustained by the complainant was a result of forceful, rough and uncaring sex, without regard for her pleasure and comfort. The result reflected that sex was not agreed upon.

48. On the question of positive response by the complainant by pushing her bottom up during sex, it defies all common sense that how would a child who had not experience sex in her life pushed her bottom up. Not only that, but the pain and suffering she went through during penetration was not comfortable and enjoyable so that she would expect to response positively.

49. Inconsistencies

The defence rely on certain inconsistencies in the evidence of the complainant and I have examined the inconsistencies closely.

50. The first one was related to the colour of accused trousers. That clearly relates to identity. In this case identity is not an issue. The second inconsistency was in relation to recognising accused voice. Again it is a question of identity which is not an issue here.

51. The inconsistency in regards to whether she could see accuseds penis and his black hair at night. I accept that is an inconsistency.

52. The fourth inconsistency was in regard to who actually pulled her skirt up. Initially she told the count that the accused pulled her skirt up but quickly agreed to what she said to Police in her statement that is, the accused told her to pull her skirt up and she did. Immediate change to part of statement or answers in court is normal, especially in the process of examination in chief a witness might have an answer, during cross examination she might give another answer, later in re-examination she might refer to first answer or different answer. The court will accept the final answer after re-examinations. In this case I accept the final changes that it was the accused who told her to pull up her skit and she did it. The same statement she did mention to Police. Quiet rightly there was no inconsistencies at all.

53. The last inconsistency was in regards to the complainant evidence that the accused held her on to her shoulders when he told her to lie down, not her waist as she had told Police. That inconsistency related and closely associated with the actual act immediately prior to sexual intercourse. Penetration is a non issue before this court and I do not wish to venture into examining this issue.

54. I accepted that there are certain inconsistencies in the evidence of the complainant but not to the extend they have negative impact on the overall credibility and reliability as a witness, and I accept she is a credible and reliable witness.

55. Corroboration

The law related to corroboration has been initially discussed in this judgment. What other evidence is available to support the complainant’s story in regards to the element of consent. Out of twenty eight prosecution witnesses the only other witness who gave evidence that goes to support the issue of consent is Dr. Zutu.

56. On the outset let me point out clearly that I do not, and will not accept the evidence of the parents of the complainant as corroborative evidence in regards to distressed state of the complainant when she arrived home. The distressed state did not, and I agree with the defence, tantamount to any corroboration from the complainant parents, but merely formed part of the complaint.

57. Dr. Isanah Zutu was a medical Officer in Obstetrics and gynaecology at the National Referral Hospital. He gave evidence that he examined the complainant at the National Referral Hospital at about 11:00 am on 11th December 2005, suffering from severe haemorrhagic shock and heavy bleeding. Blood transfusion was immediately arranged and emergency examination under anaesthetic in an effort to determine and treat the source of complainants’ bleeding.

58. Upon examination of the complainant’s vagina Dr. Zutu revealed that the complainant sustained a ragged tear of 5cm in length, 4 cm wide and about 1.5cm deep. That completely penetrated the mucosa of the vagina down to the surrounding muscles and extends from one cm from the entrance of the vagina right up to the furthest part of the vagina known as the fornix.

59. He also gave evidence that the complainant’s hymen was completely disrupted by the penetration indicating she had not been sexually penetrated. He also noted that the complainant had a superficial injury to her labia minor.

60. The major injury requires two deep stitches which was performed by Mr. Zutu.

61. Dr. Zutu forms the opinion that the injuries were caused by a forceful penetration. He further stated that the complainant’s vagina was not in a state of sexual readiness and not lubricant enough at the time of penetration. The male partner would have experienced resistance upon attempting penetration but would have to force through to achieve penetration. As a result the sex was rough, painful and forceful.

62. Dr. Zutu also said in court that the vagina is a unique organ of a woman which when lubricated can accommodate any penetrating penis even the vagina of a girl of 13 years. He cannot tell whether the injuries inflicted were with or without consent because the same injuries can be sustained between consenting parties if the woman’s vagina is not lubricant enough. Lastly he did mention that woman or girl who had previously experience sex would possibly sustain injuries especially when the vagina is not lubricant. However, for a girl who experience sex for the first time it would be easy to sustain such injuries if the vagina is not lubricant or there was rough and forced sex.

63. Medical evidence from Dr. Zutu that the sex was forceful, rough and uncaring, evidenced by the injuries corroborates the complainants unchallenged portion of evidence that she was grabbed by the accused, shutting her mouth and dragged her to a pig sty and had sex with her without her const.

64. No man in his right mind will do what the accused did to his own girl friend. He was expected as a married man to be cautious and caring when engaging his younger girl friend into sexual intimacy, and particularly when the complainant had no experience in having sexual intercourse. But it did not happen in this case. The accused knew he could not fulfil his sexual desire from his own wife because she was pregnant so he must find it outside. He did so to his own relative whom she trusts for help and security.

65. The accused desire to have sex with the complainant revealed in the complainant’s statement given to Police that the accused had held her breasts on two past occasions. I have no doubt that they were not done in a boy/girl relationship but out of evil ego. Later, on 20/12/05 it materialised in reality when the accused did have sex with the complainant without her consent.

66. Dr. Zutu’s evidence corroborates the evidence of the complainant that sex was rough and forceful and done without regard to her pleasure or comfort. Any sex done following an act of grabbing and dragging to an uncomfortable environment is a forceful sex without the girl’s consent. I must draw inference that the complainant’s consent was never obtained or acquired, or of little or no concern to the accused. See DPP v Morgan[12];

..."that if the intention of the accused is to have intercourse nolens volens, that is recklessly a not caring whether the victim be a consenting party or not, that is equivalent on ordinary principles to an intent to do the prohibited act without the consent of the victim..."

67. I finally find that the prosecution has proved its case beyond reasonable doubt that the accused’s sexual intercourse with the complainant was not consensual. I therefore find accused guilty of the charge of rape.

68. Lastly I do not intend to deal with data reports submitted by the defence, as they fail to call a witness who might provide expert evidence on the topic of the article. They are merely extracts from websites, their authenticity remain in doubt unless the maker tendered to the court in a usual and normal process of tendering documents in court.

69. Having found the accused guilty of the charge of rape I do not wish to draw judgment to the alternative charge of defilement.

THE COURT

^[1] Criminal Procedure Code
^[2] Penal Code.
^[3] Penal Code.
^[4] Penal Code
^[5] Penal Code.
^[6] [934] 2 KB 498, p. 504.
^[7] The State v Sugeri Sipi [1987] PNGLR 357.
^[8] (1973) 1 AER 440, at 441.
^[9] [1994] FJCA 7.
^[10] Ibid
^[11] [1980-1981] SILR 145 p. 146.
^[12] [1975] UKHL 3; [1975] 2 All ER 347 p. 357 (f).