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R v Sotamana [2021] SBHC 111; HCSI-CRC 132 of 2019 (21 May 2021)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 132 Of 2019

REGINA

V

JOHN SOTAMANA

Date of Hearing: 27-29 April, 4 May 2021
Date of Judgment: 21 May 2021

For the Crown: Ms. P Tabepuda
For the Defence: Mr. L Waroka

Palmer CJ.

1. The defendant, John Sotamana (“the Defendant”) is charged with two counts of rape pursuant to section 136F (1) (a) and (b) of the Penal Code [cap. 26], as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 (“the Amendment Act 2016”). He pleads not guilty to both charges.
2. The two rape charges relate to two incidents which occurred on the 25^th August and 6^th September 2016.
3. The issue of sexual intercourse is not in dispute. The Defendant does not deny that sexual intercourse took place on both occasions. His defence is that on both occasions sexual intercourse was consensual.
4. The burden of proof lies with the prosecution to prove beyond a reasonable doubt that sexual intercourse was without consent and that the Defendant knew or was reckless as to that issue of lack of consent.

The key elements in the offence.

5. Rape is defined in section 136F (1) (a) and (b) of the Penal Code as amended by the Amendment Act 2016 as follows:
   • “(1) A person commits an offence if the person has sexual intercourse with another person:
   • without the other person's consent; and
   • (b) knowing about or being reckless as to the lack of consent.”
6. There are three key elements for proof in a rape charge:
   • (1) That sexual intercourse took place with another person;
   • (2) That it was without the other person’s consent; and
   • (3) That he knew or was reckless as to the lack of consent.
7. There is no dispute on the first element, that sexual intercourse took place on both occasions. The issue for determination arise in relation to the second and third elements, on the issue of consent and knowledge or whether the Defendant was reckless to that fact.

The definition of consent.

8. Consent is defined in section 136A of the Penal Code as amended as follows:
   • “136A Meaning of “consent”
   • (1) In this Part, “consent” means free and voluntary agreement.
   • (2) Circumstances in which a person does not consent to an act include circumstances where:
     • (i) the person submits because of force, fear of force, or fear of harm of any type, to himself or herself or another person; or
     • (ii) the person submits because he or she is unlawfully detained; or
     • (iii) the person is asleep, unconscious or so affected by alcohol or another drug as to be incapable of freely agreeing; or
     • (iv) the person is incapable of understanding the nature of the act; or
     • (v) the person is mistaken about the nature of the act or the identity of the other person; or
     • (vi) the person mistakenly believes that the act is for medical or hygienic purposes; or
     • (vii) the person mistakenly believes that the act will be beneficial to his or her physical, psychological, social or spiritual wellbeing; or
     • (viii) the person submits out of respect or fear due to another person’s position of authority, trust or responsibility; or
     • (ix)
     • (x) the person submits because of threats to shame, degrade or humiliate the person or another person; or
     • (xi) the person submits because of a false representation as to the nature or purpose of the act; or
     • (xii) the person withdraws consent during the act after initially consenting to it.
   • (3) A person who does not offer actual physical resistance to an act is not, by reason only of that fact, to be regarded as consenting to the act.”

The burden of proof lies with the prosecution to establish that there was no consent by the victim.

Brief background facts of the case.

9. The victim in this case is the biological daughter of the Defendant; that is not in dispute. It is also not in dispute that both the victim and Defendant were cognisant of this fact.
10. The mother of the victim had given birth to her when she was still a young girl and unmarried and so the victim had been raised by her grandmother.
11. She was born on or about 11^th September 1998 at Bara Clinic, Isabel Province. At the time of offending, the victim was 17 years of age.
12. She had been introduced to the Defendant as her father sometime in 2002. She went to live with the Defendant and his family in 2013 to attend Pamua Secondary School. She also followed him when he was transferred to Pawa Secondary School in 2014 and 2015 and attended Forms 1 and 2 at the school.
13. In 2016, she went to Guguha Community High School to continue with her studies in the fourth form.
14. In or about August 2016, the Defendant transferred to Guguha Community High School. He stayed at the School Guest House during that time where both offences occurred at that building.

Issue of consent.

15. In both incidences of rape, consent is in issue. Crown says there was no consent; that the victim complied out of fear on the grounds of being hurt or harmed by the Defendant and from his position of authority, trust and responsibility as a father.
16. Defence on the other hand deny there was a lack of consent; that the victim voluntarily and willingly participated on both occasions.

The evidence of the Crown

17. The main witness called for the Crown is the victim herself. Her evidence is supported by the statements of four other witnesses namely, (1) the statement of Jonathan Mali dated 19 October 2016, marked as Exhibit P1, (2) the statement of Nollen Rikanoda dated 19 October 2016, marked as Exhibit P2, (3) the statement of Helen Koleba dated 15 October 2017, marked as Exhibit 3, and (4) the statement of Stephen Maneleba dated 19 October 2016 with Photographs Nos. 1- 16, marked as Exhibit 4. Those documents had been tendered by consent.

Did the victim consent to sexual intercourse?

18. The question whether the victim consented to the sexual intercourse on both occasions is the first issue for determination.
19. The evidence on this as adduced by the Crown in both instances however is fairly clear, consistent as well as being un-contradicted. On both occasions, the victim stated plainly and clearly that she did not consent or agree to have sex with the Defendant when he asked her. She told the court that she did not consent as he was her “real father” and so did not want to have sex with him when asked.

The first incident.

20. On the first incident, being the 25^th August 2016, it was break time from school and she had gone to the Defendant’s house for some food. While she was there, the Defendant asked to have sex with her. She said no to him but then he continued to ask her. She told the court that she then complied with his demands and went into his bedroom. He told her to take off her clothes but she refused and so took off only her pants. She then sat on top of the Defendant and had sex with him.
21. This evidence is confirmed by Jonathan Mali who witnessed the event from a hole in the wall. He saw them having sex with the victim on top of the Defendant and her “jean blue skirt lifted up”. This supports the version of the Defendant that she was an unwilling participant to the sexual intercourse by only removing her underpants and her skirt lifted up.
22. She told the court that she did not want to have sex with him but felt obliged to comply when he insisted on having sex. She told the court that she repeatedly told him that she did not want to have sex with him but that he continued to insist on having sex.
23. She told the court she succumbed to his requests for sex (quick sex), after he was overly persistent in his demands and she became frightened that he might get angry and harm her.

The second incident.

24. The second incident occurred on the 6^th September 2016 after prep or study time. She had also gone to look for food at his house. Her father was there and asked her to have sex with her. Even though she had refused and did not want to have sex with him, he insisted and continued to ask her.
25. She told the court that he continued to ask her and started to raise his voice, telling her to have sex, to do it quickly and then she can go back to her dorm. She told the court that she was sitting down at that time and did not want to have sex with him but he continued to pester her. Eventually she succumbed and followed him into the room and had sex with him. She lied down on the mat and he went on top of her and had sex with her until he ejaculated. They got dressed and then he accompanied her back to drop her off at her dorm.
26. The pattern in both incidences of sexual encounter was the same, persistent requests and demands until the victim complied with his sexual desires to have sex.
27. In both instances, the victim was clear in her evidence that she refused and did not want to have sex with him but eventually complied after so much pressure and persistence from the Defendant.
28. She told the court she was afraid that if she did not comply then he could hurt her.
29. On this issue of fear of harm or being hurt, the victim had given unchallenged evidence of previous instances of being whipped, kicked and hit on the head when the Defendant became angry or upset with her.
30. I am satisfied even if the evidence in relation to those previous acts of violence and behaviour may not be directly related to both incidents, this would have been relevant to the question of fear and intimidation that she may have felt during those times, that if she did not comply and he became upset and angry, he was capable of harming or beating her. This evidence and element of fear on her part has not been displaced in any way to raise any reasonable doubt in my mind that her fear may have been without basis or misplaced.
31. I am satisfied prosecution have established to the requisite standard that her fear of the Defendant on both occasions was both real and genuine. It is pertinent to note as well, that the Defendant is not a stranger but her real father, who should have known better and ought not to have placed her in such a compromising position by continuing to make persistent demands on her for sex when she had refused. The very fact that he had raised such illicit request would have raised fear, trepidation and anxiety on her part, a fortiori, when it was persisted upon in spite of her refusal in the first place.
32. In cross examination, when it was put to her that she was a willing participant she maintained that she only complied because she was afraid of him. She has never been discredited or shaken in cross examination throughout and remained firm and consistent in her evidence.
33. For the following reasons I find that the burden of proof has been discharged by the prosecution. I find that the victim did not consent to the sexual intercourse required by the Defendant.
34. I find on the evidence that the victim did not voluntarily agree to have sex with the Defendant on her own volition and free will.
35. I find on the evidence that her fear of the Defendant to be both genuine and real in that she had experienced in the past being beaten by him when he got upset with her. I find that she did not want to cross that threshold where the Defendant may become angry and harm her, and so as a consequence she complied with his demands on both occasions for sexual intercourse. I am satisfied her fear in the circumstances to be both real and genuine and that there was a lack of consent.
36. I am not satisfied this fear has been sufficiently displaced or discredited by the defence in cross examination, bearing in mind that no evidence in contrast has been offered by the defence.
37. The definition of “consent” in section 136A of the Penal Code as amended by the Penal Code (Amendment) (Sexual Offences) Act 2016 at subsection (1), means “free and voluntary agreement”. The word “voluntary” also means “free will” or “willingly”. In the Black’s Law Dictionary, sixth edition it is defined inter alia as: “Unconstrained by interference; unimpelled by another’s influence; spontaneous; acting of oneself; proceeding from the free and unrestrained will of the person; resulting from free choice, without compulsion or solicitation”.
38. In other words, did the victim agree willingly and freely, without compulsion or solicitation, to have sexual intercourse with the Defendant; that there was no coercion or force applied?
39. There is ample evidence before this court that the victim did not agree or consent to the request for sexual intercourse on both occasions, for the reason inter alia, that he was her “real” father and that she was ashamed, apart from her fear of being hurt or harmed. The evidence adduced by prosecution has been quite clear and consistent throughout, that she was never a willing participant to the demands of the Defendant for sexual intercourse. On each occasion she was asked, she said no to him. This would have been plain and compelling evidence of lack of consent, and has not been discredited by defence.
40. Subsection (2) of section 136A of the Penal Code as amended by the by the Penal Code (Amendment) (Sexual Offences) Act 2016, also describes certain scenarios in which it will be deemed that there is no consent such as in paragraph (a), which provides as follows: “(a) the person submits because of force, fear of force, or fear of harm of any type, to himself or herself or another person;”. The evidence adduced by prosecution in this case falls squarely on all fours under this paragraph.
41. Paragraph (h) of subsection 136A (2) also refers to circumstances in which a person does not consent to an act where:
    • “(h) the person submits out of respect or fear due to another person’s position of authority, trust or responsibility;”
42. Again it has not been discredited so that a reasonable doubt is raised in my mind that the victim did not submit out of respect, or fear due to his position of authority, trust and responsibility as a father. To the contrary, I am more than satisfied, that the particular circumstances of the victim fall squarely within this paragraph, the Defendant as a father was in a clear position of authority, trust and responsibility over the victim.
43. It is not disputed that the Defendant knew that the victim is his biological daughter and vice versa. I am satisfied ample evidence has been adduced demonstrating beyond a reasonable doubt, that this is what has occurred in the circumstances of this case. The victim did not only succumb and submit to the advances and demands of the Defendant through fear of violence and harm, but also out of respect and fear to his position of authority, trust and responsibility towards her.
44. She repeatedly stated in her evidence that she refused his advances and demands knowing that he was her “real father” and that she was ashamed of him, herself and others. He however persisted in his demands even raising his voice.
45. I am satisfied it has been established on the evidence that her compliance was not voluntary or free; she complied out of fear.
46. When asked why she did not shout for help or report the incident as soon as possible to others, she maintained her position that she was ashamed to tell anyone about it. When asked why she did not tell her Grandmother when she was asked about it, she also said that she lied to her Grandmother because she did not want to leave school; she wanted to continue with her school. I find both explanations to be both reasonable, understandable and acceptable in the peculiar circumstances of the victim. This is no ordinary encounter, one of an extreme kind, where the very person who should have sheltered, protected and looked after her had acted in such an unacceptable manner. I am not satisfied that her lies or actions were to hide the fact that she willingly and freely participated in the sexual encounters with the Defendant.
47. When it was put to her that this was because she had consented (voluntarily and freely) to the sexual intercourse, she expressly denied this and maintained her view throughout, that she complied out of fear of the Defendant.
48. I am satisfied her evidence has not been challenged, her credibility tainted and discredited in anyway on this issue of lack of consent on her part.

Did the Defendant know that the victim was not consenting or was reckless to that fact?

49. The next crucial element for determination is whether it had also been proved to the requisite standard that the Defendant knew that the victim did not consent or that he was reckless to that fact.
50. I have had the opportunity to carefully assess the evidence of the victim, observe her demeanour in court and find that throughout she had remained consistent, clear and unfazed about the issue of consent, that she repeatedly refused to have sex with him and denied his advances. I am satisfied this denial or refusal would have been more than sufficient to convey plainly and clearly to the Defendant in no uncertain terms, of her lack of consent. He could not have been mistaken or confused about that plain fact. He should have known and ought to have known that she did not want to have sex with him for the plain and simple reason that he was her “real father”, that it was wrong and that he knew that she was afraid of him.
51. He knew or ought to have known that as a father, he held an inherent position of authority, power, trust and responsibility towards her and that if he persisted in his demands and actions, she was bound to comply. If he did not know, then he was reckless to that most obvious fact.
52. As a father she respected and trusted him that he would not even think of asking her to do such a disgraceful and shameful thing to her, his own daughter, but he did not. He forgot about all those restraints and compelled her to have sex with him.
53. To that intent, he knew or ought to have known, and if he did not know, was reckless to that fact of consent in the pursuit of his sexual desires.
54. He has not adduced any evidence to the contrary that he did not know that she was not consenting or was reckless to that fact.
55. I am satisfied prosecution have established on the evidence that he knew on both occasions that she was not a willing party to his sexual advances and demands.

Decision.

56. I am satisfied prosecution have established on the evidence the elements of the offences of rape on both occasions and he should be convicted accordingly, I do so find.

Orders of the Court:

1. Find the Defendant guilty of both offences of rape; and
2. Enter conviction on both counts of rape accordingly.

The Court.