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Regina v Hou - Judgment [2014] SBHC 67; HCSI-CRC 25 of 2014 (22 May 2014)

HIGH COURT OF SOLOMON ISLANDS
(Maina, J)

Criminal Case No: 25 of 2014

REGINA

-V-

LENSLEY HOU

Date of Hearing: 14th and 15th May 2014
Verdict Delivered: 22nd May 2014
Date of Sentence: 22nd May 2014

For Prosecution: M. Manata
For Accused: N. Galo

JUDGMENT

Maina J:

Introduction

The Accused Lensley Hou is charged with one count of rape, contrary to Section 136 of the Penal Code. He pleaded not guilty on the charge on arraignment.

Burden and standard of proof and Elements of rape

The burden is on the Crown to prove the charge beyond reasonable doubt. If not proved on the required standard the charge against the accused must be dismissed and the accused acquitted. In this case, the accused is charged with rape and the Crown must produce evidence to show beyond reasonable doubt that the accused had sexual intercourse with the complainant without her consent.

Fact

The Particulars of this charge is that the accused Lensley Hou on 14th May 2013 at Bethlehem village, West Kwara'ae, Malaita Province raped the victim Betty Tege.

Complainant alleged that she met up at the road with accused and he held or shut her mouth with his right hand and had sexual intercourse with her. He pulled her clothes down and thrust his penis into her vagina but she felt pain and just slightly penetrated in her vagina.

The counsels for the crown and defence on the 17th April 2014 filed agreed facts as following:

• Victim Betty Tege from Korol village West Kwara'ae, Malaita Province She was born on 9th April 2001 and now 13 years old
• On 14th May 2013 at around 6.30 pm the victim Betty Tege was walking towards Korol village after attending a church service at Bethlehem village. The distance was about 1km from home
• Accused and the victim met up
• They had sexual intercourse
• The victim arrived home at around 9.30 pm
• The victim told her parent on what the defendant did to her.
• She was taken
  

Apart of the agreed facts the following evidences is not disputed:

• They had sexual intercourse and defendant penetrated in her vagina
• Victim described the penetration in pidgin as "lelebeti nomoa" a little bit
• The victim arrived late at her home after the Sunday school
• The victim was wept by her uncle Jimmy Gau with his hand at her backside
  

Issue

The only issue in this case is whether the Defendant sexual intercourse with the complainant "without her consent". An issue that would be determine on the credibility of the victim and accused or who the court would believe.

The victim evidence is that she was walking alone after church at Bethlehem village. Along the road the accused jumped at her, covered her mouth with his right hand and held her stomach with the other hand. The accused pulled her into the bush about 40 – 50 meters. Accused hooked her legs and she fell down facing upwards. Accused took off his trousers and told her to quite. He removed her trousers and panty. He then pulled out his penis and pushed it into her vagina and moved his buttock up and down motion. The penis went in "a little bit" and it was painful. She said the she did not allow him to do this to her. She could not scream or shout due to accused pressing his hands over her mouth. She tried to struggle but could not succeed as the defendant was lying on top of her. She could not remember how long accused was on top of her.

At home, she said his uncle Jimmy saw her and talk to her. She told him accused had raped her and his uncle and mum hit her. She said she did not know why they hit her and uncle hit her with a stick.

Victim at the cross- examination said it was about 6.30pm and it was dark and would be hard to recognize people although it was moonlight. She did not have any watch. She maintained that the accused penis went in "a little bit" into her vagina.

When put to her by the defence counsel that when she and accused were in the bush some people were walking along the bush track. She agreed and said that there were two people and they were carrying torch and walked along the road. The distance from them was about 7 metres and at that time Lensley was on top of her.

Accused Lensley Hou in his evidence admitted having sexual intercourse with the complainant and with her consent. His evidence states that he came back after carrying some timbers from the swamp with the other boys. He went and had a bath at the water pipe behind the church when he was about to leave he saw the victim walking past at the road. He asked if he could accompany her to home but the victim asked who are you. He said to her that he is Lensley. Complainant responded that the boys who were sitting at a house near the water pipe might see accused and they will beat him up.

Accused went ahead, the complainant came behind him and they met at the road junction. Accused turned to the right side but the complainant told him that someone had toilet at the side road and so they went to left side led by her. They came to where the road curved and complainant saw some people with a torch and she jumped off the road and accused jumped and followed her. Accused asked that he liked her but that she did not respond but continued playing with the accused mobile phone. They sat down and accused said that he wanted to have sex with her but complainant said that she did not want to involve in such activities. Accused then touched her breast and she continued playing with mobile phone. He asked complainant again and she said to him "it is up to you".

When she said yes the accused took off the complainant's skirt and trousers and he tried to push his penis into the complainant's vagina but she said it was painful. He could not penetrate so he inserted his finger into the vagina.

Accused said when he tried to push his penis into her vagina she did not struggle but only said it was painful. He said that he never shut her mouth. And when removing her clothes she did not complain but said it is up to you. After accused left the complainant he went home.

The case

I am not obliged to look for corroboration in sexual cases and may convict on the complainant's evidence alone. Such is if I am convinced that she is telling the truth and I do remind myself on this obligation. In this case, the crucial evidence is that of the complainant herself and in particular on the evidence that the accused had shut her mouth with his right hand and pulled her to the bush to about 40 -50 metres. And the evidence that complainant tried to struggle but she could not because the accused was on top of her. This is the evidence that relates to no consent was obtained from the complainant.

The complainant's evidence has been assessed and discloses the following:

• no evidence that she struggled to resist the shutting of her mouth.
• no resistance to the act of the accused of pulling her to the bush.
• She said the distance was about 40 -50 metres into the bush. There was no evidence of cry, attempt by her to shout or escape from the accused.
• Even when she heard the talk and torch from the people walking past on the road, she did not attempt to break-free and shout for help.
  

When defence counsel cross-examined her on how far were the people walking at the road and where they had sex, she said it was about 5 -7 metres away (from witness to the clerk associate table in court. She testified in examination-in-chief that the distance which accused pulled her into the bush was about 40 to 50 metres but at the cross-examination she testified that distance she heard the people talking and walking past with torch from the road is about 5 -7 metres.

At the moment of sexual intercourse her evidence, it was pain and the penis went into the vagina "lelebeti nomoa" (a little bit)
There is no dispute on penetration. Whether "lelebeti nomoa" (a little bit) or just a slide into the vagina it is penetration.

There was a blood stain on the complainant's cloth but she confirmed at cross-examination that she had period at that time.

Further, there are inconsistent on complainant's statements:

• At the long form Preliminary Inquiry and on oath she testified that accused used his right hand to cover her mouth while he was holding her breast with his left hand. In her evidence during the trial she testified on oath the accused left hand was on her belly. When crossed examined she agree that belly and breast are different parts of the body.
  
• At the long form Preliminary Inquiry and on oath she testified that she never met the accused at any time prior to the incident. But at trial she said that she recognized that accused voice because she heard him talking to his wife.
  

The question is, if you never met someone before how would you recognize that person's voice. May be or unless that person is a singer and you regularly hear him on FM radio or National radio as SIBC.

This is the inconsistency or discrepancy on statements in the complainant's evidence and alludes or gives rise to the credibility of her evidence. Inter alia, this conduct or behavior is not consistent with that of a person who did not consent to sexual intercourse. Even there is no evidence of distress from complainant except she appeared frighten when confront by the mother and uncle.
The complainant says that she did not consent to sexual intercourse with the accused but the inconsistency or discrepancy on statements in the complainant's evidence do not disclosed that possibility of no consent but raise doubt on her credibility to the Court. Thus it is not safe to convict the accused on the charge of rape.

I am not satisfied to the required standard that the complainant had not consented to sexual intercourse with the accused. And I find the accused not guilty of rape and acquit him on the charge.

Conviction on the indecent assault offence

The accused is acquitted of the offence of rape and section 166 of Criminal Procedure Code empowers the Court to convict the accused of an offence under Section 142 (1) of the Penal Code. Under this section, consent is not a defence. According to the birth certificate for the complainant Betty Tege was on 9th April 2001 and at the time of the offence she was 12 years old.
On the evidence, there is no dispute with penetration and both accused described such as "lelebeti nomoa" (a little bit) also accused said that he pushed his fingers into the complainant's vagina.

I am satisfied beyond reasonable doubt that the accused had defiled a complainant who is under the age years find him guilty and I accordingly convict accused Lensley Hou on the charge of defilement.

Order of the court

1. Find the accused not guilty of rape
   
2. In pursuant to Section 166 of Criminal Procedure Code, find him guilty and accordingly convict him on the charge of defilement of girl under 13 years of age c/s 142 (1) of Penal Code.
   
3. Accused to be remanded in custody to wait for sentence for this case tomorrow 23rd May at 9.30 am.
   

..............................................
Justice Leonard R Maina
Puisne Judge