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

Criminal Jurisdiction

REGINA

 -v- 

BEN KOROUA

Date of Hearing: 26th, 27th March and 16th April 2012.
Date of Judgment: 23rd April 2012.

Mr. Kelesi for the Crown.
Ms Spence and Mr. Rarumae for the accused. 

JUDGMENT

Introduction.

1.	The accused, Ben Koroua, is charged with rape contrary to section 136 of the Penal Code. The prosecution case is that the accused raped Mrs. Petrina Tuaina ("complainant") at Sokupu village at Sikaiana Island on the 6th July 2007.

2.	The accused has admitted sexual intercourse but denied lack of consent. Hence, the only issue in this case is whether the complainant had not consented to the sexual intercourse with the accused.

3.	It is the normal practice in relation to charges of sexual offences that a judge should caution himself of the danger of convicting an accused person charged with rape unless the testimony of the complainant is supported by evidence from an independent source as to the matters in dispute. Sections 18 and 19 of the Evidence Act 2009 ("Evidence Act"), however, do not require any exercise of caution if the judge is completely satisfied as to the truth of the complainant's evidence. The only matter in dispute in this case is whether or not there was consent on the part of the complainant. If corroboration is required, it will relate only to the question whether or not there was consent by the complainant.

Witnesses.

4.	The Crown has called 4 witnesses in support of its case. These are the complainant herself, Petrina Tuaina, Mrs. Rachel Timani ("PW2"), Nimrod Alex Levao ("PW3") and Cathy Hoiao ("PW4").

5.	The only witness called on behalf of the accused was the accused himself who had given evidence on oath.

The Crown evidence.

6.	The complainant's evidence is that at around 3pm to 4.30pm on the 6th July 2007, she went to her pig pen to feed her pigs. On arrival at the pig pen, she noticed that there was no bucket with which to fetch water for the pigs so she went to the house of her uncle, Selemo, where she took a bucket and got water for the pigs. Selemo is the father of the accused.

7.	As the complainant was returning to the pig pen, the accused shouted to her from his house and said that he wanted to tell her something. The complainant replied telling the accused to wait until she had finished feeding her pigs then she would come and then the accused could tell her what he wanted to tell her.

8.	On returning to the pig pen, the complainant started cutting the coconuts when suddenly the accused came and sat in front of her. The accused was drunk.

9.	The accused then told the complainant that he had been having "bad feelings" towards her. She understood this to mean that the accused had been wanting to have sex with her.

10.	The accused then grabbed her hands with one of his hands and pulled her up and, at the same time, threatening to assault her if she refused. The complainant tried to resist but became frightened of the accused and so allowed herself to be led by the accused. He led her to a swampy place, took off her lavalava, laid the lavalava on the ground and pushed the complainant down on the lavalava. He then had sex with her.

11.	The complainant said she did not want to look at the accused while he was having sex with her because he was her cousin and she was ashamed to look at his body. The complainant told the accused that they were brother and sister and he should not do this to her but the accused just laughed it off and told the complainant to forget about them being brother and sister.

12.	As the accused was having sex with her, the complainant lied to him saying there was a person making noise in the bush. She then pushed the accused from her, took her lavalava and told the accused that she was going to see who the person was. She told the accused to wait while she went towards the place where she said the person was to have a look. She went away from the accused and took the opportunity to escape. She went to her house and then to the beach to wash herself in the sea. She said she was crying as she headed to the beach.

13.	At the beach, she met PW2 whom she claimed to be her auntie. PW2 was swimming in the sea at that time. She did not talk to PW2 at the beach. PW2 left the beach first. As soon as she had washed away the mud from her body, she returned to her house and remained there until night.

14.	At around 8pm to 9pm that evening, she went to attend the independence celebrations with her 2 children. There was dancing going on that night. There she met PW2 again. PW2 asked her why she brought her children out in the cold that night. She then told PW2 about the encounter with the accused at the pig pen that afternoon and said that she had to leave her house because she was afraid of the accused. It is clear she did not tell PW2 that she was raped. She merely said that the accused pulled her. She joined the dance that night and then she and her children left with PW2 to PW2's house at about 9.30pm where she and her children spent the night. She returned to her house in the morning.

15.	The complainant said that about 5 days after the incident, the accused came to her house at night and wanted to apologise to her for what he did to her at the pig pen. However, the complainant told him to go away as he was drunk. She said the accused again came on another occasion when he was not drunk and wanted to apologise again but the complainant told him that the matter had already been reported to the chiefs and the local court.

16.	PW2 confirmed in her evidence that the complainant met her at the beach in the afternoon of the 6th July 2007 while she was swimming in the sea but said that she did not talk to the complainant. She said the complainant appeared to be crying when she saw her. She also said she noticed mud on the complainant's calico and that her lavalava was dirty. She confirmed that the complainant did not talk to her at the beach. She did not ask the complainant why she was crying because she thought the complainant had had a row with her brother. She confirmed that she returned to her house while the complainant was still swimming in the sea.

17.	PW2 confirmed that she met the complainant again at the independence celebrations that evening. She said the complainant came with her 2 children. She confirmed that she talked to the complainant and told her to go back to take the children back to her house because of the cold. She said that the complainant told her that she was frightened to go back to her house because the accused might come to her house. She said that the complainant then told her that the accused pulled her at the pig pen that afternoon so she was frightened to sleep at her house. She did not mention anything about the accused having sex with her that night. PW2 confirmed that the complainant and her children had spent the night with her at her house that night. PW2 said that it was after they had slept that the complainant told her about everything the accused did to her at the pig pen.

18.	PW3 said in his evidence that he was in Honiara when he heard of the incident between the complainant and the accused. Upon hearing about the incident, he went to Sikaiana to see the complainant and then brought her and his children back to Honiara. On arrival in Honiara, he and the complainant reported the matter to the police.

The accused's evidence.

19.	The accused had given evidence on oath. His evidence is that he and the complainant had known each other for a long time. He said that they have been meeting each other since May and June 2007.

20.	He said the first time they had sex was in a house in the first week of June 2006. He said that whenever the complainant wanted sex, she would contact him and then they would go and have sex. He said the second time they had sex was at the school area and that the third time was at a playing field at the seaside. He said another time they had sex was in a kitchen belonging to a Robert Elito. He said that the last time he had sex with her was the incident which is now the subject of the present charge, that is, on the 6th July 2007. However, despite saying that, he further alleged that they had sex in August 2010. He also claimed that the complainant's fifth child was his child and that the child was conceived as a result of their sexual relationships in May and June 2007.

21.	In regards to the incident on the 6th July 2007, the accused admitted that he had been drinking home-made liquor that day at Thomas's house. He then went to his house to get more home-made liquor. It was on his way to his house that he met the complainant at the well near his house. He then asked the complainant if she wanted to have drinks with them. The complainant replied that she wanted to feed her pigs first. He then proceeded to his house where he met his friends Gabriel Talosia and Gibson Sealoha. 

22.	The accused said he then followed the complainant to the pig pen. He again asked her whether she wanted to drink but she said not now but tonight. He then asked her for sex but she said that she was frightened or else someone would see them. The accused then told her that if she delayed with the coconuts someone would see them. The complainant then told him to go first to the end of the pig pen where it was private and where no one would see them. The accused went and waited and then she followed about 8 to 10 meters behind him. When they reached the end of the pen, they kissed. The complainant then took off her clothes and laid them on the ground. She then told the accused to lie down on the clothes, which he did. The complainant then laid on top of the accused, took hold of the accused's penis and pushed it into her vagina. They then had sex for about 30 minutes.

23.	After they had finished having sex, the complainant stood up and wore her clothes back. She then told the accused to come back at night for another round of sex. She also told the accused not to tell anyone about their sexual encounter. She then went to feed the pigs while he went back to where he and his friends were drinking.

24.	The accused said that his friends were still there when he returned. He said the complainant went past his house on her way to her house after feeding the pigs. He said that when his friends saw the complainant going past, they joked about her saying it would be nice to have sex with her. It was then that the accused told his friends that he had just finished having sex with the complainant. He said later he knew that the public had become aware that he had had sex with the complainant.

25.	The accused further said that later that evening, he saw the complainant at the dance. He said that he went to the dance but did not stay long. He said he went home and went straight to bed.

26.	He said that the complainant apologized to him in Honiara saying that she was sorry that her husband had reported the matter to the police. He said the complainant had told him that her husband had beaten her in order to report the matter and that as a result she had to escape to Gizo. The complainant had denied this assertion.

27.	In cross examination, he said that he had sex with the complainant three times before July 2007. He said that, apart from the incident on 6th July 2007, he did not tell the police about these other sexual encounters because the police did not ask him about those incidents. When asked by the court whether there is any medical evidence to prove that the complainant's fifth child was his, he said that there is no medical evidence but that he knew the child was his because the complainant told her so and because he had had sex with the complainant in May and June 2007.

Assessment of the evidence.

28.	In analysing the evidence before the court, I will start with the accused's claim that the complainant's fifth child is his child. There is a rebuttable presumption in law that every child born in wedlock is legitimate. To rebut this presumption, the court will require an extremely cogent evidence to prove beyond reasonable doubt that the child is not that of its mother's husband. As Cussen, J. said in the Australian case of In the Estate of L :

"[evidence] will not be sufficient unless it produces a moral and or judicial conviction, so that the tribunal is satisfied beyond reasonable doubt". 

29.	This presumption was also confirmed in the New Zealand case of Ah Chuck v Needham. In that case, the husband and his wife were of Caucasian stock but the wife subsequently gave birth to a child of Mongoloid appearance. At that time, it was proved that the wife had formed a liaison with a Chinese market gardener. However, the court held that these facts were insufficient to rebut the presumption that the child was legitimate.

30.	In Solomon Islands, the customary repercussions in relation to such a claim are so serious that I do not think the standard of prove required in relation to such a claim should be anything other than the criminal standard. The accused must produce evidence to satisfy me beyond reasonable doubt that the complainant's fifth child is his child before I can make any findings to that effect. A mere assertion is not sufficient.

31.	In the present case, the paternity claim by the accused was based on what he alleged as his sexual relationship with the complainant in May and June 2007, a claim which the complainant had denied. Unfortunately, the evidence produced by the accused in support of his paternity claim did not go far enough to prove to the required standard that he is the father of the complainant's fifth child. His evidence was scanty. He initially alleged that he had had sex with the complainant in May and June 2007. However, he later said that his first sexual encounter with the complainant was in June 2007. This was denied by the complainant. There is no medical evidence that he was the father of the fifth child. He called no evidence to support his assertion that he had had a relationship with the complainant during May and June 2010. The claim by the accused is a mere assertion unsupported by evidence. I reject that claim.

32.	I have said earlier that it is the normal practice in relation to charges of sexual offences that I should caution myself of the danger of convicting the accused unless the testimony of the complainant is supported by evidence from an independent source as to the matters in dispute. 

33.	In this case, having observed the complainant and the accused in the witness box; I have no reason to doubt the cogency of the complainant's evidence. I am satisfied the complainant was a truthful witness and I accept her evidence as true. Her evidence need not be corroborated. 

34.	However, should her evidence require corroboration, I am satisfied there is sufficient evidence to corroborate her evidence. The accused's account as to how they first came into contact that day was almost similar to that of the complainant. The evidence also shows that it was the accused who came up with the idea to have sex that day. He was drunk and that may have contributed to his sexual behavior that day. The complainant did not initiate the idea to have sex.

35.	The complainant's evidence that she went to Selemo's house to fetch water is supported by the accused's evidence who said that he met her at the well near his house. Her evidence that it was the accused who first talked to her is supported by the evidence of the accused who said that, upon meeting her at the well, he asked the complainant whether she would like to drink with him. The accused confirmed that he followed her to the pig pen and that he had sex with her near the pig pen. The only major areas of disagreement relate to the discussions between the accused and the complainant within the vicinity of the well and at the pig pen as well as the position applied during the sexual intercourse. The accused said that it was the complainant who was on top of him while the complainant said it was the accused who was on top of her. I prefer the evidence of the complainant.

36.	The picture that the accused had tried to paint by his evidence is that the complainant was the more aggressive sexual player that day and played the leading role in that sexual encounter. I do not believe that was so.

37.	The complainant was certainly distressed that day as a result of what was done to her by the accused. Her distressed condition was confirmed by PW2 who said she saw the complainant at the beach and the complainant appeared to be crying when she saw her. PW2 also said she noticed mud on the complainant's calico and that her lavalava was dirty.

38.	The accused said that it was the complainant who invited him for another round of sex that night. However, the evidence is clear that when the complainant met PW2 in the evening on that day, she told PW2 that she did not want to stay at her house that night because she was afraid that the accused might come to her house that night. If the idea for the accused to come for another round of sex that night was that of the complainant, it seems strange that she should become frightened of the accused to the extent that she had to leave her house to go with her children to sleep in a different house that night.

39.	I have considered the other points submitted by counsel on behalf of the accused such as the failure by the complainant to shout out for help. The complainant admitted that she did not call for help. However, she explained that the reason was because she was frightened of the accused and that the place was too isolated for anyone to hear even if she had shouted. I accept her explanation.

40.	It was also submitted that the complainant had failed to report the incident at first opportunity in that she did not report the rape to PW2 when she first met her at the beach nor did she tell PW2 about the alleged rape when she met her at the dance that night. The complainant explained that she did not tell PW2 because PW2 did not speak to her at the beach. Indeed she did not tell PW2 about the alleged rape at the dance that night, but she did tell PW2 about it in the morning of the next day. I accept the explanations by the complainant. In any event, such failures and behavior as those complained of here go only to the credibility of the complainant. However, I have already said that the complainant is a truthful witness. I accept her evidence.

41.	It was also submitted that the conduct of the complainant in attending a dance that evening when she claimed to have been raped just hours earlier is inconsistent with the behavior of a person who was subjected to rape. However, the complainant explained that she was not dancing with any particular person. She said it was a dance night where everybody was dancing together and that she just joined in to make her feel good after the incident. I accept that.

42.	Finally, it was submitted that the complainant had claimed that she had reported the incident to the chiefs at Sikaiana and yet had failed to call the chiefs to give evidence at trial. This, it was submitted, reflects badly on her credibility. Unfortunately, this submission ignores the fact that it is not the complainant who decides which witness to call and which witness not to call in a criminal trial. That is a decision which lies with the lawyers for the Crown. I reject that submission.

43.	Having rejected the evidence of the accused, I must now ask myself whether the evidence called by the Crown has proved beyond reasonable doubt the issue of non-consent by the complainant. I am satisfied it has. On the basis of the evidence produced by the Crown, I am satisfied beyond reasonable doubt that the complainant did not consent to the accused having sexual intercourse with her on the 6th July 2007.

Verdict:

44.	Accordingly, I find the accused guilty of raping the complainant on the 6th July 2007 and he is convicted of the charge against him. 

THE COURT