IN THE HIGH COURT OF SOLOMON ISLANDS
(APANIAI, J)

Criminal Jurisdiction

REGINA

-v-

MACBERTH GUA

Dates of Hearing: 24th to 27th September and 4th October 2012.
Date of Judgment:  8th October 2012.

Ms Fineanagnofo for the Crown.
Mr. Allan Hou for the accused. 

JUDGMENT

Introduction:

1.	Macberth Gua ("accused") is charged with the rape of Agastar Tafuselo ("victim") on 31st March 2009. The incident has occurred in a palm oil plantation at the Foxwood area, North Guadalcanal.

2.	It is not disputed that at the time of the alleged rape the victim was the wife of the accused. The marriage ceremony between the accused and the victim was conducted at Horara village, Isabel Province, by an Anglican priest and marriage documents were signed at that ceremony. Thereafter, the couple has lived together as husband and wife for 10 years and there are 2 children of the marriage.

3.	The victim admits that she has not filed any formal divorce proceedings against the accused and there is no formal separation order or agreement in force between her and the accused.

4.	She says she has deserted the accused in or around 20th March 2009 and has been living with another man since then. She says she is still living with that other man and that she has no intention of returning to the accused.

5.	At the close of the Crown case, counsel for the accused submits that the accused has no case to answer.

Accused's case:

6.	Counsel has based his submission on three grounds.

7.	First, counsel says that there is no corroborative evidence to support the victim's allegation.

8.	Second, counsel says that there are inconsistencies in the evidence of Crown witnesses. I understand this to mean that because of the inconsistencies, it would be unsafe to convict on those evidence. 

9.	The third ground submitted by counsel is based on the long standing proposition of law that, since the accused and the victim were still legally married at the time of the alleged rape, it is not possible in law for the accused to be convicted of rape upon his wife.

10.	The third ground involves important legal considerations, hence, I will leave it to the last. I will deal first with the first two grounds.

The law on no case submissions:

11.	No case submissions are based on section 269(1) of the Criminal Procedure Code ("CPC") which provides as follows:

"269. - (1) When the evidence of the witnesses for the prosecution has been concluded, and the statement or evidence (if any) of the accused person before the committing court has been given in evidence, the court, if it considers that there is no evidence that the accused or any of the several accuseds committed the offence, shall, after hearing, if necessary, any arguments which the public prosecutor or advocate for the prosecution or the defence may desire to submit, record a finding of not guilty."

12.	In Tome v R ("Tome"), the Court of Appeal said (at p.3) that the test called for by s. 269(1) (CPC) is whether, at the close of the prosecution case, there is "no evidence that the accused committed the offence". This means that if there is some evidence that the accused committed the offence then the accused must be called upon to state his case.

13.	At this stage inconsistencies in evidence, whether within the testimony of a witness or as between witnesses, are not relevant considerations. What the court needs to do when determining whether or not an accused has a case to answer is simply to take the evidence most favourable to the prosecution and then decide whether, if the evidence is accepted, it is capable of proving beyond reasonable doubt that the accused is guilty of the offence.

14.	The test at this stage is not whether the prosecution has proved its case beyond reasonable doubt but rather whether the prosecution has produced evidence which, if accepted, is capable of proving beyond reasonable doubt all the elements of the offence charged.

15.	The test has been further explained by the Court of Appeal in R v Somae. In that case, the Court of Appeal reiterated the principle that the prosecution evidence that is to be considered for the purposes of a no case submission has to be capable of amounting to proof beyond reasonable doubt of the accused's guilt. It is not enough if it is merely capable of proving the possibility of guilt. It has to be capable, if accepted, of proving guilt beyond reasonable doubt. In other words, in order to establish a case to answer, there has to be some evidence capable of establishing, whether directly or inferentially, each and every element of the offence charged beyond reasonable doubt.

The present case:

16.	I now turn to the present case.

17.	The Crown has called five witnesses. The first witness is the victim herself (PW1). Her evidence is that she worked at ITA Hardware in Honiara. It was lunch time and she had gone to Poma store where she bought some utensils for her and her new partner with money provided by the new partner.

18.	She was returning to ITA Hardware when the accused grabbed her and forced her into a taxi driven by the accused. She did not want to go into the taxi so they struggled. She said her blouse got torn during the struggle. This happened at the front of the LKP Hardware.

19.	After forcing her into the taxi, he drove towards Ranadi and then up in the direction of Henderson Airport. They came to an oil palm plantation where the accused turned down towards the sea from the main road. The accused then stopped the taxi at an isolated spot in the oil palm plantation and then forced the victim to perform oral sex on him.

20.	The victim said she did not want to perform the oral sex but the accused threatened her and held her head and forced her to open her mouth whereupon the accused then pushed his penis into her mouth.

21.	After forcing her to perform oral sex on him, the accused then forced the victim onto the back seat of the taxi and then had sexual intercourse with her per vaginum. She denied consenting to the sexual intercourse and said that she did not do anything because the accused had threatened her and she was afraid of the accused. 

22.	The evidence by Dr. John Taniamae (PW5), who carried out a medical examination on the victim in the evening of 31st March 2009, confirmed that sexual intercourse occurred that day. His evidence is capable of corroborating the victim's evidence that she was sexually assaulted that day.

23.	Nadia Sikilabu (PW2) and Annie Kole (PW3) spoke of seeing the distressed condition of the victim and the torn clothes she came into the house with on that day. Their evidence is also capable of corroborating the victim's claim of rape.

24.	Hence, on the issue of corroboration, I am satisfied that there is evidence capable of corroborating the victim's evidence. I reject the submission that there was no evidence to corroborate the victim's evidence.

25.	Counsel has also raised the issue of inconsistencies in the evidence by the Crown witnesses. However, as stated by the Court of Appeal in Tome, inconsistencies in evidence (whether within the testimony of a witness or as between witnesses) are not relevant at the no case stage. Inconsistency in evidence is one of the matters that go towards credibility of witnesses and any decision on credibility should be dealt with only after hearing all the evidence in the case.

26.	All these evidence, if believed, is capable of proving beyond reasonable doubt that the accused is guilty of the offence with which he is charged.

27.	The submission that the accused has no case to answer on the basis of the alleged inconsistencies in the Crown evidence and the alleged non-corroboration of the victim's evidence is therefore rejected.

Is a husband criminally liable for raping his wife?

28.	The final point raised by counsel is an old principle, said to be part of the common law of England, which says that a man could not be guilty of rape upon his wife.

29.	Counsel says that the accused and the victim, at the time of the alleged offence were, and still are, legally married and therefore, in law, the accused cannot be guilty of rape upon his wife.

30.	For that reason, counsel says that the accused has no case to answer.

31.	In support of his submission, counsel has referred to a statement by Sir John Muria CJ, in R v Gwagwanga & Taedola ("Gwagwanga") whereby His Lordship said (at p. 4) that the present law in Solomon Islands was that a man could not be guilty of rape upon his wife on the basis of the implied consent to sexual intercourse given by the wife to her husband on marriage unless that consent is revoked by a decree nisi, a separation order or in certain circumstances by a separation agreement.

32.	The authorities referred to by His Lordship in support of that statement are R v Clarke ("Clarke"), R v Miller ("Miller") and R v O'Brien ("O'Brien"). These cases were decided in 1949, 1954 and 1974 respectively, however, those cases have recently (in 1991) been over-ruled by the House of Lords' decision in R v R (rape: marital exemption) ("R v R").

Origin of the rule of marital exemption:

33.	I agree that it has generally been accepted as a principle of the common law of England that a man cannot be guilty of rape upon his wife. The principle is based on a proposition by Sir Matthew Hale, in his book "History of the Pleas of the Crown", in which he made the following proposition:

"But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract".

34.	The implication of Hale's proposition is that by marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances and irrespective of whatever the state of her health is or how she is feeling at the time.

35.	Hale's proposition was again repeated by East in his "Treatise of the Pleas of the Crown" where he said:

"…a husband cannot by law be guilty of ravishing his wife, on account of the matrimonial consent which she cannot retract".

36.	However, in later years, the rigidity of the Hale proposition has led to the introduction of exceptions and qualifications to the general proposition. For instance, in R v Clarence, Wills J (at p. 33) said:

"If intercourse under the circumstances now in question constitute an assault on the part of the man, it must constitute rape, unless, indeed, as between married persons rape is impossible, a proposition to which I certainly am not prepared to assent, and for which there seems to me to be no sufficient authority".

37.	In that same case, Field, J. had expressed similar sentiments when he said (at p. 57):

"But it is argued that here there is no offence, because the wife of the prisoner consented to the act, and I entertain no doubt that, if that was so, there was neither assault nor unlawful infliction of harm. Then did the wife of the prisoner consent? The ground for holding that she did so, put forward in argument, was the consent to marital intercourse which is imposed upon every wife by the marriage contract, and a passage from Hale's Pleas of the Crown ((1736) p 269) was cited, in which it is said that a husband cannot be guilty of rape upon his wife, "for by their mutual matrimonial consent and contract the wife hath given up herself in this kind to her husband, which she cannot retract." The authority for Hale CJ, on such a matter is undoubtedly as high as any can be, but no other authority is cited by him for this proposition, and I should hesitate before I adopted it. There may, I think, be many cases in which a wife may lawfully refuse intercourse, and in which, if the husband imposed it by violence, he might be held guilty of a crime."

38.	In R v Clarke, an exception was introduced to the general proposition whereby it was held that a husband loses his immunity for rape upon his wife if there is in existence a separation order providing that the wife should no longer be bound to cohabit with the husband. 

39.	A similar exception was introduced in R v Miller where it was held that the husband's right to sexual intercourse with the wife ceases where a decree nisi is obtained and that upon the pronouncement of a decree nisi the wife's implied consent to marital intercourse given by the wife at the time of marriage is revoked and a husband will be guilty of rape if thereafter he has sexual intercourse with the wife without her consent.

40.	There have been several other recent cases in which Hale's proposition has continued to be recognized but with further exceptions being introduced specifying the circumstances under which a husband would be guilty of rape upon his wife even where the marriage still exists.

Abolishing of the rule of marital exemption:

41.	It was not until the 1991 that the Hale proposition was laid to rest by the House of Lord's decision in R v R.

42.	In its decision delivered on 23rd October 1991, the House of Lords ruled that the Hale proposition was no longer law.

43.	After reviewing the authorities, Lord Keith, who delivered the judgment of the court said (at pp.483 – 484):-

"For over 150 years after the publication of Hale's work there appears to be no reported case in which judicial consideration was given to this proposition. … It may be taken that the proposition was generally regarded as an accurate statement of the common law of England. The common law is, however, capable of evolving in the light of social, economic and cultural developments. Hale's proposition reflected the state of affairs in these respects at the time it was enunciated. Since then the status of women, particularly married women, has changed out of all recognition in various ways which are very familiar and upon which it is unnecessary to go into detail. Apart from property matters and the availability of matrimonial remedies, one of the most important changes is that marriage is in modern times regarded as partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband. Hale's proposition involves that by marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances and irrespective of the state of her health or how she happens to be feeling at the time. In modern times any reasonable person must regard that conception as quite unacceptable".

44.	With those statements, the rule that a husband cannot be criminally liable for raping his wife if he has sexual intercourse with her without her consent was declared no longer part of the law of England.

45.	The court said that Hale's proposition reflected the state of affairs at the time the principle was enunciated. However, in the light of the changing status of women and the growing recognition that a husband and wife are now equal partners in marriage, the perception that by marriage the wife submits herself irrevocably to sexual intercourse with her husband in all circumstances, including sexual intercourse obtained by force, has become unacceptable in a modern society. The court held that on grounds of principle there is now no justification for marital exemption in rape.

Should marital exemption principle continue to apply in Solomon Islands?

46.	Counsel for the accused submits however that notwithstanding the House of Lord's decision in RvR, the statement by Sir John Muria in Gwagwanga remains part of the law of Solomon Islands by virtue of section 2(1) of Schedule 3 which provides as follow:-

"2. (1) Subject this paragraph, the principles and rules of the common law and equity shall have effect as part of the law of Solomon Islands, save in so far as:-

(a)	they are inconsistent with this Constitution or any Act of Parliament;

(b)	they are inapplicable to or inappropriate to the circumstances of Solomon Islands from time to time;

(c)	in their application to any particular matter, they are inconsistent with customary law applying in respect of that matter."

47.	I do not agree with that submission for the reason that the statement by Sir John Muria in Gwagwanga (decided on 20th November 1991) was based on the decisions in Clarke, Miller and O'Brien which were over-ruled by the House of Lords' decision (dated 23rd October 1991) in RvR.

48.	This means that the common law propositions in Clarke, Miller and O'Brien, which were the authorities for His Lordship's statement in Gwagwanga, have ceased to be valid principles and rules of the common law at the time His Lordship pronounced them as the law applicable in Solomon Islands.

49.	Even if I were wrong in this, it is my view that the Hale proposition (where a husband cannot be guilty of rape upon his wife) has run its course and is no longer applicable nor appropriate in the circumstances of Solomon Islands. The proposition should now be confined to its grave.

50.	The time when women are considered as sex objects or as subservient chattel of the husband in Solomon Islands has gone.

51.	In this modern time, marriage is now regarded as a partnership of equals and this principle of equality has been reflected, not only in international conventions to which Solomon Islands is a party, but also in the entrenched provisions of the Constitution.

52.	One of the international conventions to which Solomon Islands is a party is the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) which, in article 15, calls on all state parties to accord women equality with men before the law and, in article 16, calls for the same personal rights between husband and wife.

53.	As for the Constitution, sections 3 and 15 of the Constitution guarantees women equal rights and freedoms as men and affords them protection against all forms of discrimination, including discrimination on the ground of sex.

54.	Furthermore, judicial decisions regarding rape and similar offences against women have also reflected the judicial approach to offences affecting women.

55.	The courts have stated time and again that rape is an offence which is often committed out of a selfish desire to gratify a man's own sexual desires, appetite and fantasies in disregard for the rights, dignity and feelings of the victim.

56.	A husband raping his own wife does so for no other reason than to satisfy his own selfish desires at the expense of the wife's dignity and feelings. Such behaviour must come to an end.

57.	All these instances show the changing attitude in Solomon Islands towards the status of women and the recognition that women are equal partners with men in nearly all things, including marriage.

58.	In my view the time has come for this court to take a hard look at this old marital exemption rule and see whether its terms accord with what is now regarded generally in these modern times as acceptable behaviour.

59.	If the court considers the rule as no longer applicable then in my view it has a duty to change it. That is what I now do.

60.	This is not the creation of a new offence against husbands. What is being done here is, in the words of Lord Keith, who delivered the judgment of the House of Lords in RvR, removing a "common law fiction which has become anachronistic and offensive".

61.	Hence, to the question whether or not a husband can be criminally liable for raping his wife, the answer must now be "yes".

Conclusion:

62.	I therefore reject the submission that a husband cannot be convicted of rape upon his wife and rule that the accused has a case to answer.

THE COURT