HIGH COURT OF SOLOMON ISLANDS

Case name: 	R v Sakua	
		
Citation:		
		
Date of decision: 	24 February 2023	
		
Parties: 	Rex v Nixon Sakua	
		
Date of hearing: 	15 February 2023 (Gizo Circuit February 2023)	
		
Court file number(s): 	581 of 2021	
		
Jurisdiction: 	Criminal	
		
Place of delivery: 		
		
Judge(s): 	Keniapisia; PJ	
		
On appeal from:		
		
Order:	1. Accordingly, I find the defendant guilty of attempt rape/sexual intercourse. And convict him of attempt rape/sexual intercourse as charged. I record a guilty verdict. I will next proceed to hear sentencing and mitigation.	
		
Representation: 	Mr Meioko for the Crown 
Mr Kwalai for the Defendant 	
		
Catchwords: 		
		
Words and phrases:		
		
Legislation cited:	Penal Code (Amendment) (Sexual Offence) Act 2016 S 136 (F) (3) (a) and (b), S 136 (F) 1 (a) and (b), S 137 F (1) (a) and (b)
Penal Code Act [cap 26] S 378
Interpretation and General Act [cap 85], 
Evidence Act 2009 S 3	
		
Cases cited:		

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 581 of 2021

REX

V

NIXON SAKUA

Date of Hearing: 15 February 2023(Gizo Circuit February 2023) 
Date of Ruling: 24 February 2023

Mr Meioko for the Crown 
Mr Kwalai for the Defendant

Keniapisia; PJ
VERDICT 
Introduction
1. 	Defendant was charged with “attempt rape/sexual intercourse” contrary to Section 136 (F) (3) (a) and (b) of the Penal Code (Amendment) (Sexual Offences) Act 2016 (No.3 of 2016) – hereafter referred to as the 2016 Act. Prosecution alleged that defendant, Mr Nixon Sakua of Sasamunga village, South Choiseul, Choiseul Province, on the 9/07/2018, attempted to have sexual intercourse with Ileen Zataru without her consent and at that time he knew about or was reckless as to the lack of consent.
2. 	To fully understand the charge of “attempt rape/sexual intercourse”, I need to read Section 136 (F) 1 (a) and (b) of the 2016 Act together with Section 378 of the Penal Code Act (Cap 26). Both Counsel submitted that Section 136 (F) (1) (a) and (b) defines rape as having sexual intercourse with another person without the person’s consent and knowing or being reckless about the lack of consent. However, Counsel submitted that the definition of “attempt rape/sexual intercourse” is missing in the 2016 Act or the Interpretation and General Provisions Act (Cap 85). Whilst that may be true, I find the definition of “attempt rape/sexual intercourse” complete by reading Section 137 F (1) (a) and (b) together with Section 136 F (3) (a) and (b). The complete definition I got reading the two sections together is: -
	Section 136 F (1) (a) and (b) “A person commits the offence of rape, if the person has sexual intercourse with another person, without the other person’s consent…”
	Section 136 F (3) (a) and (b) “A person commits an offence, if the person attempts to commit an offence under subsection (1)”
3. 	So, in my mind, if a person “failed in an attempt to have sexual intercourse” with another person without that other person’s consent and knowing about or being reckless as to the lack of consent, then that is “attempt rape/sexual intercourse”. In other words, if a person tries to rape/have sexual intercourse with another person under the compounds of Section 136 F (1) (a) and (b), but failed to succeed, then that constitute “attempt rape/sexual intercourse” under the compounds of Section 136 F 3 (a) and (b)”. Hence the two sections must be read together to arrive at the complete definition of “attempt rape or attempt sexual intercourse”. That is the approach I took to understand the charge of “attempt sexual intercourse”, contained in the information Crown filed 17/11/2021. And then to leave no room for doubt, I also find assistance to understand “attempt sexual intercourse/rape” by reading Section 378 of the Penal Code Act (Cap 26). 
Prosecution’s case
4. 	The prosecution called three witnesses – (i) victim, Ileen Zaturu (“PW1”), (ii) Daisy Kasivita (“PW2”) and (iii) Carolyn Qolelavu (“PW3”).
PW1 daunted by the Court environment 
5. 	Complainant (PW1) gave evidence in the morning of the trial. Court started at 8:30am. We struggled with the witness the whole morning. The witness was not able to tell her story freely, quickly and was taking a long time to answer questions, during examination in chief. She was encouraged to assist the Court in telling her story by: -
(i) 	Court allowed one adjournment for Counsel to talk to the witness in the morning around 10:00 am. 
(ii) 	Court adjourned early at around 11:00 am to re-convene at 1:30 pm to give time and breathing space to the witness. 
(iii) 	Counsel Kwalai, before he started to cross-examine the witness, at 1:30 pm rendered further help by encouraging the witness to answer questions quickly because the Court was mindful of time. 
6. 	Court observed that the witness was frightened of the court environment. When court reconvened at 1:30 pm, I asked the witness what her problem was in the morning. Witness said she was ashamed to talk about what happened to her in Court. Court encouraged her to get over her shame, because her complaint meant she must tell her story in Court. There is no other way around it – even if it means telling her sexually sensitive and private story to total strangers. It is a sensitive and shameful thing to talk about private sexual encounters to a male dominated Court. Almost 5 years later you can still see the psychological impact of the ordeal the victim had to endure from the incident.
Evidence of PW1 and PW2 corroborated in substance
7. 	The story that the complainant was ashamed to tell publicly to strangers in court was about the ordeal she was faced with in having to resist and the struggles in having to refuse to submit to the defendant’s desires to have sexual intercourse with her against her will. The ordeal took place on the 9/07/2018. There was a fundraising held at Vanga, Panarui Village, South Choiseul. At night around 7 pm (PW1 says), or 8 pm (PW2 says) or 9 pm (Defendant says) youths or persons from Sasamunga Village (“S”) were returning from the fundraising at Panarui held at a small village in the greater Panarui Village called Vanga. Inconsistency as to time is minor. I cannot expect that they were looking at a clock that night. 
8. 	PW1 and PW2 were among the youths/persons from S returning home from the fundraising at Vanga, Panarui. The evidence revealed PW1 and PW2 were returning to S in the company of Arthur, Nixon (defendant), Neiman, Blandina, Karen and Simi. I take Judicial notice having been to S briefly in 2022, that it is a long way to walk from Panarui to S. The evidence before me revealed that it can take about 2 hours to walk from Panarui to Kuki village in S. Kuki is one of the small villages inside the greater S village. The first village in S, that you will reach coming from Panarui is called Lokalanji. The last village in S going from Lokalanji is Kuki. From Lokalanji to Kuki are other small scattered villages situated along the coastline.
9. 	As PW1 and PW2 were returning they met up with a group of boys who were drinking “beer mix” at Dara in Panarui area. The group of boys drinking included the defendant (Nixion). Nixon gave evidence that PW1 and PW2 were also drinking with the boys. PW1 and PW2 denied this strenuously. Whether the two were drinking or not is immaterial to the allegation of attempt rape. Boys and girls can drink beer together but having sexual intercourse is another thing altogether. From Dara to S, PW1, PW2, Nixon, Arthur, Neiman, Blandina, Karen and Simi all from S were returning together. On arrival at Lokalanji the first small village in S they all got separated. But for PW1 and PW2 their final destination is at Kuki, the furthest small village at the other end of S. To walk from Lokalanji to Kuki in S is also a long way because S is a very big village stretching along the coastline and some villages also situated inland (take judicial notice because I have been to S briefly in October 2022). From Lokalanji to Kuki PW1, PW2, Nixon, Arthur and one other boy walked as far as Tamata (one village inside S). At Tamata Arthur left the group to go and take Nixon’s bicycle. So, from Tamata to Kuki village PW1, PW2, Nixon and one other boy were left to walk to Kuki. Evidence showed that PW1 and Nixon were together walking in front. And PW2 and one other boy were following from behind.
10. 	I have been to S so I take judicial notice that the walk from Lokalanji to Kuki in S village is a long walk. At night and in the company of a drunken pestering person like Nixon it could take a long time to walk from Lokalanji (one end of S) to Kuki (the other end of S). It was at night but PW2 said the sky was clear so she could see clearly. For most part of the remaining leg of the journey (from Lokalanji to Kuki) Nixion and PW1 were together alone at night going in front and following from behind was PW2 and another boy. This was indeed a tempting environment for a boy and a girl to be staying together alone at night. Mr Nixon was supposed to drop off PW1 and PW2 at Kuki village. PW2 must be a very close relative of Nixon, because throughout her evidence, she never stopped saying “uncle Nixon”, referring to what the defendant did to PW1.
11. 	From Lokalanji to Kuki (one end to other end of S), you have many small villages like Vanikuva, Beleboko, Tagaza, Pirini, Palagazu, Tanabo, Vavudu, Tabasaru, Tamata, Qiqima, Kogo, Vua, Ngarikilo etc. PW1 said the exact location defendant attempted to rape her was between Kongo and Qiqima.
12. 	I am not entirely sure on the evidence, where is the exact location that the attempted rape took place. Without a crime scene visit it is not possible to know the exact location, because there are so many small villages inside S from Lokalanji to Kuki (one end to another). PW1 describe the location as between Kongo and Qiqima. PW2 described the location as a place very close to Kuki village. I will not focus so much on the exact location, suffice to say close to Kuki. I will instead focus, on what happen in terms of the attempted rape evidence adduced in Court. Exact location is immaterial. Intentions manifested in actions and in words about the attempted sexual intercourse/rape is more important.
Attempt sexual intercourse/rape – substantive evidence
13. 	The essence of the attempted sexual intercourse/rape evidence is as follows from the story of PW1 and PW2: -
(i) 	From Lokalanji to Kuki, inside S was a long walk at night and for the whole leg of this journey, it was only Nixon, PW1, PW2 with another boy walking with PW2 from behind. PW1 and Nixon were leading the walk at the front. The boy must have left PW2 along the way close to Kuki. 
(ii) 	Somewhere close to Kuki PW1 (victim) was sexually harassed as Nixon attempted to exert his sexual desires to rape or have sexual intercourse with her. The sexual harassment amounting to attempted rape, on the evidence is as follows: -
(a) 	Nixon held the hand of the victim (PW1). 
(b) 	Nixon pulled her hand and said, “if you fuck me, I won’t kill you with the knife”.
(c) 	And the victim cried, because she was afraid that if she should refuse, she will be cut with a knife, she saw on the defendant. 
(d) 	Defendant forced the victim to take off her trousers. Defendant tried to pull the victim’s trousers off. 
(e) 	Then defendant removed his trousers first and continued to force the victim to remove her trousers. 
(f) 	So, the victim removed her trousers.
(g) 	Both have their trousers removed and only wearing their underwear. 
(h) 	Then Nixon forced the victim to lie on the ground first. 
(i) 	Somehow the victim managed to convince the defendant to lie down on the ground first. 
(j) 	Then the defendant let loose of the victim’s hand and the victim and Daisy run away to Daisy’s house which was close by. 
(k) 	All the while, when the victim was undergoing this ordeal, Daisy was standing close by witnessing all that was happening. She said she was standing close to PW1 and could see clearly at night because the sky was clear. 
(l) 	Daisy was crying, shouting and calling for help, from her other niece. 
(m) 	 Upon escaping from Nixon, Daisy and the victim run all the way to Daisy’s house, where they woke Daisy’s mother and told her everything that Nixon did to them on their way home. It was about 3:00 am or 4:00 am that, the victim and Daisy arrived at Daisy’s house. 
14. 	The preceding paragraph was the evidence in substance of how the defendant attempted to rape the victim. The substantive evidence of the victim was supported by Daisy. There were two witnesses against one for the defendant. A journey from Panarui to Kuki in S would normally take 2 hours. That night the girls had to walk up to 8 hours because there were so many disturbances along the way (met up with boys drinking and returning with others from S). The greatest disturbance came from Nixon, who was drunk and had intent to have sexual intercourse with PW1. If you have been to the village. If you have witnessed village boys drinking alcohol, you will notice that when they drink beer or kwaso they become active, talkative, noisy, play loud music, can sometimes fight or like in this case Nixon went after PW1 for sex to satisfy his sexual gratification which evidently went wild under intoxication.
Defence case
15. 	Defendant elected to give sworn evidence from the dock. And cross examine PW1 and PW2 on his theory that he did not force or threaten the victim with intent to have sexual intercourse with her. That the defendant did not carry a knife that night and did not use a knife to threaten the victim forcing her by fear to surrender to his sexual desires. 
16. 	That the victim and defendant had agreed to have sex, but were disturbed from having the actual act of intercourse by Daisy’s arrival. Defendant gave evidence that the victim repeatedly requested him to accompany her and Daisy to drop them at Kuki village. And that from Lokalanji to Kuki defendant and the victim were together alone for that leg of the journey telling stories and talking about their friendship. That Nixon and PW1 were telling stories and starting a new love relationship. And when Daisy caught up with them, Daisy was angry at him, when she saw them sitting together telling stories at Tapaluku. Daisy came and took PW1 away from the defendant. She did not want PW1 to stay with the defendant.
17. 	Defendant said he accompanied the girls to drop them at Kuki because they requested for his help after some boys at Dara chased them that night on their return from Panarui. 
Court’s preferred evidence
18. 	Court prefer the evidence of the victim and corroborated by Daisy. I found no bell of truth ringing in the defendant’s evidence. Defendant gave evidence that PW1 and him were just sitting down telling stories and starting a love relationship (friendship), when Daisy came, interrupted and got angry with them and insist that PW1 and her go back home. If this story is true that the victim and defendant were beginning a love relationship, then the events that followed did not logically add up. The events that followed were: -
(i) 	On arrival at Daisy’s house, the girls were shaking as they relayed their ordeal to Daisy’s mother. 
(ii) 	Defendant’s brother(s) had to pay compensation to PW1’s family, the next day rather than arrange for their newly established friendship/love relationship to kick off ground. 
(iii) 	The victim reported the matter to police around 28th July 2018 and this file reached High Court in 2021. If indeed Nixon and PW1 were just telling stories and beginning a fresh love relationship, it is illogical for the families to know about and to ask for compensation the next day. Nixon and PW1 discovering a new love affair would hide their sweetest fresh secret sexual affairs that night. If indeed Nixon and PW1 were just telling stories and commencing a new sweet love affair, it is illogical for PW1 to go and make a complain to the police soon after the 9/07/2018 (PW1 statement to police was dated 28/07/2018).
Fresh complaint to Daisy’s mother, another subsequent illogical event
19. 	Daisy’s mother gave evidence that the 2 girls (PW1 and PW2) arrived at around 5 am and woke her up. She observed that the girls were shaking. The girls say they arrived at 3/4 am. The time inconsistency is minor. I cannot expect that they were looking at their clock the whole time. The girls told Daisy’s mum about what Nixon did to PW1 on the road. Daisy’s mother’s evidence is: -
	“The girls arrived. They called me. I opened the door. I looked at them and they were shaking. They were afraid. They were crying. Then I asked, “what happened?”.Then they told me about what occurred to them on the road as they were coming from Panarui. The girls told me about Nixon pulling PW1 and that she struggled. Nixon pulled PW1 and Daisy was also pulling. Nixon say if PW1 do not want to have sex with him Nixon will cut her with a knife. And that if the 2 girls revealed all that happened, Nixon will cut the 2 of them”.
20. 	Counsel Meioko submit that the fresh complaint is admissible under Section 3 of the Evidence Act 2009, saying it has met the 3 basic requirements for admission as fresh complaint evidence in that it was made at the first reasonable opportunity, it was consistent with the alleged complaint and witness must give evidence of the complaint. All three requirements are present here. As soon as they arrive home at 3/4/5 am, they told Daisy’s mum. What they told Daisy’s mum was substantially consistent with the alleged complaint and that the complainant and witness have given evidence of the complaint in Court. This submission is valid and must be upheld. 
Credibility of PW1 and PW2
21. 	I tried to understand what happened to PW1 as described in paragraphs 5 and 6 above. I could understand that PW1 is the victim as well as the witness. As a victim she was ashamed in a court environment to talk about what happened to her, in her private sexual encounter. That I observed to be normal and expected because people are different. Even lawyers become shaky appearing before Judges. How much tougher for a victim witness who is a total stranger to the court setting for the first time. Due to the intimidating court environment the victim witness was intimidated and got confused under cross examination, because Counsel Kwalai was asking questions, sometimes repeating the same question in different ways. But I have no issue with the truthfulness of the substantive evidence, PW1 gave in Court (repeat and reaffirm paragraphs 13 and 14 above). That evidence like I said is mostly corroborated in substance by PW2 who was returning with the victim that night after attending a fundraising at Vanga (Panarui). I have no serious or slightest doubt about the victim’s substantive evidence. PW2 was confident and show no real difficulty in relaying her story to the Court. I have no real issue with her credibility, as well. She was more confident than the victim.
Conclusion and Orders
22. 	I am satisfied beyond reasonable doubt that the defendant had intent to have sexual intercourse (penetration) with the victim. The victim did not want to do that, so struggled with the defendant and escaped with assistance from PW2. Defendant fell short or did not succeed with his intention to have sexual penetration with the victim and so that amounted to “attempt rape/sexual intercourse”. The failed attempts to have sexual intercourse (penetration) are: -
(i) 	Asking victim to take off her trousers and defendant himself taking off his own trousers. So that the 2 of them were wearing only underwear. 
(ii) 	Defendant asked the victim to lay on the ground first. But the victim managed to convince defendant to lay on the ground first. So, defendant let go of her hand and she run away, with Daisy assisting (pulling, crying and shouting for help). 
(iii) 	Defendant tried to achieve his sexual intercourse/penetration agenda by force (pull victim) and (use a knife) to threaten her to submit to his sexual desires. 
(iv) 	I also repeat and re-affirm my findings in paragraph 13 (ii) (a) – (j) – acts manifesting intention to have sexual penetration followed by failed attempts to achieve actual vaginal penetration. 
23. 	Defendant in executing the said acts to achieve his ultimate intent to have sexual penetration with the victim failed to succeed with actual penetration and ejaculation. The failed acts are tantamount to “attempt sexual intercourse/rape” – reading Section 136 F (3) (a) and (b) with Section 136 F (1) (a) and (b) together with Section 378 of the Penal Code (Cap 26) (repeat and reaffirm paragraphs 2 and 3 above). The said failed acts are not too remote but directly or immediately connected towards the defendant’s commission of the offence of “attempt rape or attempt sexual intercourse” (penetration).
24. 	Accordingly, I find the defendant guilty of attempt rape/sexual intercourse. And convict him of attempt rape/sexual intercourse as charged. I record a guilty verdict. I will next proceed to hear sentencing and mitigation. 
THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE