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R v Tauhuto [2024] SBHC 173; HCSI-CRC 29 of 2024 (19 November 2024)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 29 OF 2024

REX

V

DOMINIC TAUHUTO

Date of Hearing: 9 October 2024, 10 October 2024 11 October 2024, 18 October 2024
Date of Judgment: 19 November 2024

Mr Samuel K Tovosia for the Crown
Mr O Limeniala for the Accused

JUDGMENT AFTER TRIAL

R. Faukona, DCJ.
Introduction:

1. The accused Mr. Dominic Tauhuto was charged with one count of rape contrary to section 136 F(1) (a) (b) of the Penal Code as amended by the (Amendment) (Sexual Offences) Act, 2016.
2. The accused Mr. Tauhuto whose age cannot be remembered, is an adult and hails from Taramata village, South Malaita, Malaita Province.
3. The complainant is Miss Margaret Huhuwa, aged 19 and is the biological daughter of the accused. She is from Taramata village as well, South Malaita.
4. The alleged offending is said to have occurred on 7^th August 2022, at Taramata village. On that date it was alleged that the accused had sexual intercourse with the complainant Miss Huhuwas without her consent and knowing about, or reckless as to the lack of consent.
5. The accused do not wish to give evidence hence close its case and allow the Court to consider the evidence available before it.

The issues:

6. There is but one issue, whether or not the accused had sexual intercourse with the complainant without her consent and knew about or was reckless as to the lack of consent.

Prosecution Evidence:

7. Before actually delved with the evidence, it is pertinent to ask, was there actual sexual intercourse took place between the accused and the complainant within the meaning of S.136 D (2) (a) of the 2016 Sexual Offences Amendment Act.
8. And was that act of sexual intercourse consented to by free and voluntary agreement or was the complainant submits because of force, fear of force or fear of harm to herself. See S. 136 A (1) and (2) of Amendment Act 2016.
9. Or was the accused reckless as to lack of consent if he is aware of the risk to the complainant who does not consent and it is unreasonable to take the risk, see S. 136 E (a) of the Amendment Act 2016.
10. What the complainant/victim told Police was twofold. One that her father was a cruel person who often bashed her and her other siblings when they were slow to do what he said. He would scold them badly and even burnt their bodies with fire.
11. Secondly, on 7^th August 2022, her father followed her to the room when she was about to change clothes after shower and forced her to have sex with him. He was armed with a bush knife at that time. She was scared so she obeyed by lying down, open her legs and the accused had sex with her.
12. Before the victim gave her statement to Police, PW1 Mr. Samson Houlia, the victim’s teacher noticed that the victim had black bruises on her arms and blisters on the legs. PW1 was suspicious of such brutal bashing. He asked the victim who did not answer.
13. PW1 invited the victim to his house on 28^th August 2022. In his house he interrogated her. The first question as he asked, did your father do any wrong to you? That time the victim was sobbing with teary eyes and told PW1, that her father had sex with her twice. First time was on 4^th September 2022, the second incident occurred in their house at Pita’are settlement.
14. Having full knowledge of the victim’s plight, Pw1 told her to return on Thursday, 1^st of September 2022, so that she would accompany him and other teachers travelling to Afio to get their salaries. At the same time reported what the accused had done to her.
15. As plan PW1 and 3 and other teachers travelled to Afio. From Afio PW1 and 3 proceeded to the Police Station at Maka where PW1 introduced the victim’s problem and then left for Afio. The victim was then transferred to Auki where she was lodged at Auki Care Centre with Sister Doreen. It was in Auki she gave her statement to Police.
16. PW1 adduce in Court that as a teacher he was concerned and merely assisting the victim to resolve her plight.
17. According to PW2, the mother of the victim stated in Court that the victim never told her and husband that she would accompany PW1 to travel to Afio and Maka. After they have left home that she heard her daughter had gone to Maka with PW1.
18. In that circumstance, the hastening action by PW1 in persisting the victim to report the mater to Police render some suspicion; raising the question whether the assistance was genuine or not.
19. In her oral evidence in court, PW3 stated by denying her father had raped her even on one single occasion. What she told the Police was what PW1 influenced and forced her to relate the story falsifying her father.
20. The reasons are that PW1 had sworn at her in custom that she must report to Police what she had told him. Secondly, she said that PW1 has an interest in the outcome of this case because he and the accused had been involved in a customary land dispute.
21. Given the answers in the examination in chief are unfavorable to prosecution, the Counsel for the Crown applied under S. 162 (1) (a) of the Evidence Act to declare the evidence of the victim (PW3) unfavorable.
22. I grant the application and the victim was cross-examined by the prosecution instead of examination in Chief.
23. Sadly, the victim has not changed her story however, maintain her story as she uttered part of it during examination in chief. In fact, in totality she denied being raped by her father any time. The only person having sexual intercourse with her was his father’s nephew, Mr. Chris.
24. When she was cross examined by the defence Counsel, she stated that it was Sister Doreen who actually related her story to Police Auki. She was just sitting beside her listening.
25. If that was actually occurred, then the stories which Sister Doreen told the Police were stories which she obtained from the victim herself. However, if the victim is correct then Sister Doreen should not be permitted to relate victim’s story on her behalf. She should be allowed to answer and tell her own story from her own mouth.
26. The problem with the issue about Sister Doreen relating the victim’s story to Police rather than herself, is that Sister Doreen or one of the Police Offers present during the interview is not called to witness what exactly happened on the day of interview. With the absence of such the allegation uttered by the victim as to what Sister Doreen did is not rebutted in evidence.
27. The victim in cross examination by the Court in respect two photographs as exhibits, whether the sport she was pointing to done so by her voluntarily. The answer she gave the Court is negative. She told the Court that she was forced by the Police officer interviewing her to point to sport in their house where her father raped her of which was contrary to her consent according to her. Again, the Police Officer was not call to give evidence whether she forced the victim to point to the sport.
28. Another question by the Court is in relation to the medical report. The victim admitted she was examined by a medical nurse at Kilu’ufi Hospital following notice served by Police request. There was a medical report compiled on 11^th September 2022.
29. In answering the Courts interrogation question the victim stated that the only person she had sex with is Mr. Chris. She admitted she loves him and enjoyed having sex together.
30. That answer seems to indicate that both had consensual sexual intercourse. Despite her answer it is quite doubtful, given the medical report which the nurse conducted that the hymen was torn, there are multiple tears and lacerations on the vaginal introitus, vaginal wall. There is presence of semen fluid in good quantity in the vaginal cavity.
31. In normal circumstances such report portrays rape and non-consensual sexual intercourse. The fact the victim denies her father not being the perpetrator, left the question whether the victim had sex with her boyfriend for the first time. Or alternatively the boyfriend was having a rough sex with her, or being inconsiderate and not mindful about her being suffered.
32. The next witness is PW2, Selina Haruia, the mother of the victim. She told the Court she did not see any strange or irregular occurrence or behavior in their house. She did not notice or form any suspicion in regards to the behavior of her husband and her daughter.
33. She concluded by saying the victim is a girl who did not listen to her and her husband. On cross examination she stated that PW1 was the architecture of the entire episode. He did that because he wanted the accused (her husband) to be kept in prison. And the reason she gave was because there was a land dispute between PW1 and the accused.

Assessment:

34. It is a non-denial fact alluded to by PW1 describing PW3 as slow in her learning. That is evidentially manifested by her age which is 19 but still in grade 5 that is not normal. My observation of the demeanor of PW3 is that she is fragile in her caliber and slow in learning and understanding.
35. This class of human is susceptible to accepting any information, direction, careless of whether that information will in criminate her in the future. Her contrary evidence to that of PW1 is an absolute contradiction and denial of what she told him in his house on that Sunday afternoon.
36. The tale of the story, can be viewed as PW1 manipulating the victim. At the beginning he seemed to act as a teacher with a heart to assist. However, further evidence reveals that when he transported the victim to Afio and subsequently Maka Police Station, the victim did not tell her parents, that she would travel with PW1 to Afio and Maka Police Station. In fact, their journey to Maka was concealed from the victim’s parents.
37. What transpired later was that she never returned home but transported to Auki where she stayed during the course of the investigations.
38. The reason attested for the alleged manipulation according to PW2 and 3 that Pw1 is not happy with the accused because there was a land dispute between them.
39. We have checked the Local Court Office in Auki and we found there are two land disputes involving PW1 and the accused which is still pending in the local court.
40. Civil Case No. 12 of 2019 involved PW1 and Peter Houwao (plaintiffs) against Steven Awai (defendant). The second case is Civil Case No. 38 of 2020 involving PW1, accused, Simon Taárurato and James Koke Plaintiff versus Steven Awai (Defendant). Both referrals concern Pitaole Islands customary land.
41. It would appear PW1 would like to be a separated plaintiff in the two referrals, why? The intention of PW1 may not be clear but one can guess perhaps he would like to block the second plaintiffs in the second referral. How would he advocate as two separate plaintiffs in the same land dispute against the same defendant? The actions PW1 resort to by frog lipping is unimaginable and can cause disharmony within the Plaintiffs themselves.
42. If the accused could not accept such, then it is normal for him to disagree with PW1 of his up normality.
43. In Court PW1 insisted that he has no land dispute with the accused. That can be true, but the manner in which PW1 frog lipped himself to join the accused in another referral in the same land dispute, is an irregular behaviour. There is no question however, the accused is bound to have negative feelings against PW1, and eventually cause disharmony between them.
44. I do not accept PW1’s evidence related to the land dispute, customary land is a lifeline asset to Solomon Islanders. Any indifferences between the parties or within one party, could trigger conflicts and casualties if worst comes to worst.
45. What could have been indifferences between PW1 and the accused as parties to the land dispute, had made its trail into the investigation records and subsequently evidence in Court.
46. The architecture of that evidence genesis from the first meeting PW1 and PW3 had in PW1’s house, that was the story which was eventually given to Police by Sister Doreen. PW3 denied voluntarily releasing the story and denied being raped by the accused, his father. PW2 denied noticing any irregular behaviour between her daughter (the victim) and her husband the accused which will aggravate any suspicion of any relationship.
47. The two links which could have been patched by prosecution is, if Sister Doreen be called as witness to rebut PW3 evidence that she did not tell Police her story but Sister Doreen did on her behalf.
48. Secondly a Police Officer who took the photographs which Exhibits in Court, to affirm that PW3 was forced to point to a sport she was raped by the accused. And may be the medical nurse.
49. In the absence of any such evidence, the prosecution evidence, taking it to its highest has failed to provide evidence to support a charge of rape beyond all reasonable doubt. Therefore, I must find the accused not guilty to the charge of Rape and hence acquit him accordingly.

Orders:

1. The accused is found not guilty of rape contrary to section 136 F (1) (a) (b) of the Penal Code as amended in 2016, thereby acquit him accordingly.
2. The accused be released from remand with immediate effect after this judgment is read.

The Court.
Hon. Mr. Rex Faukona.
DEPUTY CHIEF JUSTICE.