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Regina v Kaimanisi [2013] SBHC 192; HCSI-CRC 306 of 2008 (9 December 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
MWANESALUA J

Criminal Case Number 306 of 2008

REGINA

V

KIKO KAIMANISI
JARED MEKE
CHRIS TEVATA
JOHN PENAI
PAUL BILLY PILUA

Hearing Dates: 15,16,17, 20th October & 4,5,6 & 7th December 2013
Judgment Delivered: 9 December, 2013

Mr. R Iomea for the Crown
Mr. S Kalu for Kiko Kaimanisi
Ms. S Karani for Jared Meke
Mr. G Ghemu for Chris Tevata
Mr. L Hite for John Penai
Mr. R Dive for Paul Billy Pilua

JUDGMENT

1. Kiko Kaimanisi was charged with one count of rape and one count of indecent assault. He pleaded guilty to indecent assault but pleaded not guilty to the rape charge.
   
2. The evidence against him comes from two sources. The first source is his caution statement admitted through a voir dire. And the second is from his evidence in Court during the trial.
   
3. This is the evidence from his caution statement. He was at the scene of the offences adjacent to the land previously owned by the Australian High Commission. He approached the victim while she was lying facing up on the ground while she was being sexually assaulted by one of the men who were present at the scene. He knelt down beside the victim and kissed her mouth and sucked her breast. He then mounted the victim and had sexual intercourse with her. He ejaculated in her vagina and then left her. He described the victim as having light skin with black hair.
   
4. In his evidence on oath, Kiko Kaimanisi said, he returned from Kaware Night Club on 13th April 2008 in the early morning. He was hungry and walked straight to his house, but his wife was not in their house as she went to Namaruka where his male granny had died. He said that he went to the scene to follow a short cut road to Namaruka at the former Australian High Commission property. But when he reached the scene, he saw Jared Meke having sexual intercourse with the victim. He then went to the victim and sucked her breast but did not have sexual intercourse with her. After that, he returned to the main road and walked towards White River, to go to Namaruka to see his deceased granny and wife. He agreed that the victim did not give her consent for him to suck her breast.
   
5. The Court observed the manner in which he gave his evidence in Court. In his oral evidence, he excluded himself from having sexual intercourse with the victim. He said, that morning he was drunk when he returned with the other men from Kaware club. This Court is of the view that he made up the story that he went straight to his house because he was hungry. He also lied about intending to follow a short-cut road to Namaruka at the former Australian High Commission land. This was because after he had sexual intercourse and indecently assaulted the victim, he returned to the main road and walked to White River to go to Namaruka.
   
6. Jared Meke left Kaware Night Club in the early morning on 13 April 2008. He walked from the club towards White River on foot. He remembered seeing the victim with a man from Gilbert walking ahead of him. When he came closer to them, the man walking with the victim ran away from the victim. He saw the victim very frightened and cried. He said he was drunk and admitted having sexual intercourse with the victim. He said the victim wore a blue jean. This is the brief of his evidence in his caution statement.
   
7. Jared Meke also gave evidence under oath. He said, he went to Kaware Club on the night of 13 April 2008. He left Kaware Club about 5 am and walked towards White River. He saw a girl sitting at the side of the small road going towards the previous property of the Australian High Commission. She was crying and looked frightened. He had conversation with her. He described their conversation as follows:
   

"When I went to the girl and asked her, she said I am afraid and I reached out and took her hand and pulled her up, which she got up but she was drunk so she leaned on me. She leaned on me and held my hand and we walked along the road going up to the crusher. I whispered to her and asked saying, I want to go with you". They both walked up but she said she was afraid to go along that road because it was still dark, and so, she pointed to the side of the road and say let's just go there. We moved into the bushes and we took our clothes off. I took off my trousers and she took her trousers off and she laid down and I had sex with her. I stood up, put my trousers back on and stepped over the girl and I saw Billy behind me and Kiko crawling towards us. Kiko had a shirt tied around his head. A big shirt".

8. This evidence appears to show that Jared Meke had sexual intercourse with the victim with her consent. However, this inference is denied by the victim when she gave her evidence under oath. He said:
   

On the evening of 12 April 2008, she and her cousin brother, Mote Tebaua, went to Aloha and then to Top Ten night clubs in Honiara. Then later on went to Kaware Night Club at Kakabona, outside of Honiara until early morning of 13 April 2008. They left Kaware back to Honiara on foot at about 5 am on 13 April 2008. As they were walking along the road, a group of boys walked up after them, shouted to them, saying "Neko, wait". She became scared of the boys and her cousin brother told her to walk faster because he would not be able to protect her if the boys caught up with them. When the boys caught up with them, his cousin brother ran ahead to get assistance.

9. The boys caught up with her. They held her and pulled her along a side road going in land to the former Australian High Commission property. She called out to her cousin brother for help but he was not there to assist her. She refused and struggled when the boys pulled her to go with them. They pulled her into the bush and lay her facing up on the ground. She said that there were about seven boys who pulled her to go with them. When they reached the scene, they took off her trousers and pant. Some of the boys then remove her necklace, earnings, $20.00 and her parents' wedding ring. She told the Court that three of the men had sexual intercourse with her. Each of them took turns to rape her. Apart from raping her, some of the men kissed her and suck her breast. She experienced pains on her body and stomach due to the acts which the boys did to her.
   
10. The victim was examined by a doctor after the incident. The medical report shows a 2cm bruise on her breast, the valva had deposits of fine foreign dirt; the vaginal vult contained numerous thick muloid like fluid and there was slight abrasion over the left labia minora.
    

The evidence adduced by the victim shows that she was pulled from the main road to the minor road leading into the bush as soon as the group of boys caught up with her from behind and pulled her to the scene of the offences. The evidence shows that the Defendants acted together to pull the victim to the spot where she was stripped naked and raped and indecently assaulted. The accuseds were present when the victim was gang-raped which was very painful to her.

The Court does not believe Jared Meke's evidence that the victim had given her consent for him to have sexual intercourse with her.

11. Paul Billy Pilua went to Kaware Night Club at about 2.00 am on 13 April 2008. He arrived at the Club at about 3 am and left at about 5.45 am and walked back towards White River on foot. Mote Tebaua, who accompanied the victim on 13 April 2008 said that they left Kaware Night Club about 5.30 am. On his evidence on oath, Jared Meke said, when he stood up after having sexual intercourse with the victim, he saw Billy at the scene of the rape. Tom Dobu was at Savo Market when he heard a female screaming at the scene. He walked there and he saw Jared Meke having sexual intercourse with the victim, who was lying faced up on the ground. Dobu went on to say that it was Billy Pilua who had sexual intercourse with the victim after Jared Meke. Dobu said that it was when Billy Pilua was having sexual intercourse with the victim that Kiko Kaimanisi kissed the victim. The victim was crying in pain at that time. Dobu knew Billy Pilua well as they are in-laws and they live together at Karaina settlement within the White River area. Dobu also saw John Penai and Chris Tevaka at the scene but they did not sexually assault the victim. The Court accepts Dobu's evidence as being truthful.
    
12. There is evidence to convict Kiko Kaimanisi, Jared Meke and Paul Billy Pilua of one count of rape each. They are each convicted of rape accordingly. Further, Kiko Kaimanisi is convicted of one count of indecent assault. There is no evidence to convict Chris Tevata and John Penai. They are acquitted of rape.
    

THE COURT