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Regina v Kamania [2013] SBHC 50; HCSI-CRC 432 of 2012 (15 May 2013)

IN THE HIGH COURT OF SOLOMON ISLANDS
Criminal Jurisdiction

REGINA

-v-

MATHEW MUMANE KAMANIA

Date of Hearing: 7th, 8th and 9th May 2013

Date of Judgment: 15th May 2013

Mr. S. Ngava for the Crown.
Mr. S. Aupai for the accused.

JUDGMENT

Apaniai, PJ:

The charge.

1. The accused is charged with one count of rape contrary to section 137 of the Penal Code.
   
2. It is alleged that the accused had sexual intercourse with Ms. Hilda Tiba ("complainant") without her consent on 25th August 2010 at Pulakesele bush, Big Ngella, Central Islands Province.
   
3. The accused has denied the charge of rape but has indicated that he is prepared to plead guilty to attempted rape only. The Crown has, however, decided to proceed with the trial on the rape charge.
   

The law.

4. Rape is an offence under section 136 of the Penal Code. To be guilty of rape, there are two basic elements that the prosecution must prove beyond reasonable doubt. These are:-
   

[a] whether the accused had sexual intercourse with the complainant; and,

[b] whether the complainant had not consented to the act of sexual intercourse.

Crown evidence.

5. The Crown had called 2 witnesses. They are the complainant, Ms. Hilda Tiba (PW1) and Mrs. Mabel Numo, ("Mabel") (PW2).
   
6. Also tendered into evidence by consent are a statement by Frank Kevin Pisu dated 6th September 2010 (Exhibit "P1"), a statement by Helen Toto dated 6th October 2010 (Exhibit "P2"), a statement by Fr. Nathaniel Posa dated 25th August 2010 (Exhibit "P3") and a medical report by Mabel dated 25th August 2010 (Exhibit "P4").
   
7. The evidence by the Crown is as follows.
   
8. The complainant is a 22 year old girl from Ngella, Central Islands Province. She was approximately 20 years old at the time of the alleged offence.
   
9. On 25th August 2010, she went to her garden at Purakesele to get some food crops. She went there by herself. As she was digging a mount of pana, she sensed someone was behind her. She turned and saw the accused. She knew the accused and she recognized him. The accused was about 6 meters away from her when she saw him. He was holding a long bush knife at that time.
   
10. She became frightened and ran away from the accused. The accused pursued her. She then paused and asked the accused where he was going. The accused replied that he was just strolling in the bush.
    
11. She then ran towards the road but the accused ran after her and cut across in front of her. She stopped and cried. She wanted to cut him with her knife but the accused removed the knife from her. They then struggled and fell to the ground. They were still in the garden when they fell down. The garden was slightly on a slope so they rolled down the garden. They struggled as they rolled. The complainant was facing upwards when they came to a stop.
    
12. The accused then climbed on top of the complainant, pulled down his zipper and then tried to push his penis into her vagina. The complainant said she felt the accused's penis slightly entered her vagina but that she managed to grab the accused's scrotum and pressed it hard. As a result, he desisted and stood up from her. He told her not to tell anyone at home about what happened and then left.
    
13. The complainant then returned home. She was crying. When she arrived home, she told her parents and her brother and two sisters about what the accused did to her. In his statement (exhibit "P1"), the complainant's brother, Frank Kevin Pisu, confirmed that he saw the complainant crying when she came home from their garden that day. Mr. Pisu said that he tried to ask the complainant why she was crying but the complainant could not answer him. He therefore went and reported the complainant's distressed condition to their father.
    
14. The complainant's father then took her to Tulagi police station where she lodged a complaint to the police. She was also medically examined later that same day by nurse Mabel Numo (PW2) at Tulagi clinic at the request of the police.
    
15. Mabel Numo (PW2) had also given evidence. Her evidence is that she had medically examined the complainant later in the afternoon of 25th August 2010. She had carried out the medical examination on the complainant at the request of the police. During the examination, she found that the complainant's clitoris was ruptured and that the rupture was fresh. She also found that the complainant's perineum had bruises just below her vaginal canal and that the bruises were still bleeding. She said that the complainant was having her menstrual period at that time but that she was able to differentiate the menstrual blood from the blood coming from the bruises. She said the bruises were pink in colour which means that they were fresh bruises. She also said that the bruises could be caused by projectiles such as a stick or an erect penis. She had also produced a medical report (exhibit "P4") setting out her findings.
    
16. The accused has also given evidence on oath. In his evidence, he did not seriously dispute the substance of the complainant's evidence except as regards the question of penetration. He alleged that his penis never entered the complainant's vagina. He admitted, however, that there was some struggle between him and the complainant in the garden and that he had a knife with him at the time. He also admitted that the complainant had grabbed his scrotum during the struggle.
    

Did sexual intercourse occur?

17. In law, it is not necessary to prove sexual intercourse by the actual emission of seed. Sexual intercourse is established if it is shown that penetration of the vagina did occur[1]. In R v Sisiolo[2] ("Sisiolo"), Lungole-Awich said (at p. 2):
    

"Sexual intercourse is, to use the old expression, having carnal knowledge of a woman. In rape, it is just penetration of the vagina by the penis, however slight the penetration may be. No more than penetration is required in sexual intercourse."

18. In the present case, the evidence by the complainant is that the accused's penis had slight penetrated her vagina. This is corroborated by the evidence by Mabel Numo (PW2) who saw fresh rupture to the complainant's clitoris as well as fresh bruises just below her vaginal canal. Mabel said that the bruises were still bleeding at the time of the examination. The examination was made later in the afternoon of the same day of the alleged offence. There is no suggestion that she had had sexual intercourse with, or had been sexually assaulted by, anyone else other than the accused that day. The combination of these evidences has convinced me beyond reasonable doubt that it was the accused's penis, which had penetrated the complainant's vagina and had caused the injuries to the complainant's vagina.
    
19. While it may be said that full penetration did not occur, the case of Sisiolo makes it clear that the slightest penetration is sufficient to found sexual intercourse. I am therefore satisfied beyond reasonable doubt that sexual intercourse did occur as alleged against the accused.
    
20. As regards the issue of consent, it is also clear from the complainant's evidence, and it has not been denied by the accused, that the complainant did not consent to sexual intercourse with the accused at that time. The evidence of the struggle that occurred between the accused and the complainant is clear testimony of no consent.
    

Verdict:

21. I therefore find the accused guilty of rape upon Ms. Hilda Tiba and he is convicted accordingly.
    

THE COURT

______________________
James Apaniai
Puisne Judge

^[1] See section 168 of the Penal Code.
^[2] CRC No. 5 of 1998; see also R v Peter Taku Unreported Criminal Case No. 3 of 1995.