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Bauro v Reginam [1977] KIGIHC 7; [1977] GILR 45 (7 November 1977)

[1977] GILR 45

HIGH COURT OF THE GILBERT ISLANDS

Criminal Appeal No 1 of 1977

MOTINNANG BAURO

v.

REGINAM

Before: O'Brien Quinn C.J.
Basis: 7th November 1977

Criminal appeal - Rape - corroboration - distressed condition of complainant - recent complaint - no warning given as to corroboration - appeal allowed.

The appellant was charged before the Senior Magistrate’s Court with rape contrary to section 129 of the Penal Code (Cap 8) and the facts found by that court were that the appellant attended a dance on Makin on 11th July 1976 and that during the evening he called the complainant out of the dance, punched her in the stomach, gagged her, carried her a long distance through babai pits and over rough ground and eventually raped her. The appellant denied all this and claimed that the complainant had been his girl friend for two months and that she was a willing partner in the sexual intercourse. The injuries found on her were not, he claimed, inflicted on her by him but by her parents after she had returned home. The Senior Magistrate laid great stress on the condition of the complainant and her recent complaint but did not warn himself on the question of corroboration.

HELD: That the Senior Magistrate’s Court had not gone into the evidence sufficiently, and, in particular, had not considered the question of corroboration in any detail. That the Senior Magistrate's Court had not warned itself on the question of corroboration and that the prosecution had not made out a charge of rape beyond a reasonable doubt

Authorities referred to:-

R. v Redpath (1962) 16 Cr. App. R. 319

R. v Wilson (I)(1974) 58 Cr. App. R. 304.

J. A. B. Disney, Crown Counsel, for the Crown
The appellant in person

O'BRIEN QUINN C.J.:

1. This is an appeal against the decision of the learned Senior Magistrate given at Betio on the 25th October 1976 in which the appellant was convicted of rape contrary to section 129 of the Penal Code (Cap 8) and sentenced to a term of imprisonment of four years.

2. The facts as found in the record of the court below were that on the evening of 11th July 1976 the appellant attended a dance at the Catholic Maneaba on the Island of Makin. During the evening he called out the complainant, punched her in the stomach, gagged her, carried her a long way through babai pits and over rough ground and eventually raped tier at Utiroa.

3. The appellant denied the truth of this evidence and claimed that the complainant had been his girl friend for some two months before the 11th July 1976 and that they had danced together at the Maneaba. He also stated that she left the dance willingly with him and willingly went a long distance with him and willingly had intercourse with him. He insisted both in this Court and the court below that even though he was married and had five children (he claimed to have ten in this Court) he wished to marry the girl.

4. The learned Senior Magistrate in a short judgment found that the appellant had punched the complainant, that she didn't approve of what he had done to her, that he fractured her ribs and left red marks on her neck where he had strangled her. The Senior Magistrate said:-

“Had Ruti agreed she wouldn't have complained.”

5. On appeal, the appellant reiterated his story which had not been believed by the Court below. The appellant also raised the point that he had not caused the injuries to the girl but that if anyone had done so it could have been her parents between the time she left him and the time she was medically examined.

6. Learned Crown Counsel argued that the learned Senior Magistrate was entitled to convict the appellant as there was ample corroboration and abundant evidence of recent complaint by the victim. He stated in argument that evidence of recent complaint was not corroboration in itself but pointed to the veracity of the complainant. He laid great stress on the condition and injuries of the girl which were deposed to in the evidence of the Hospital Dresser who examined her soon after the events took place. He also emphasised the point that signs of a struggle were found at the place indicated by the complainant as the place where the incident occurred. The appellant's replies that he did not know anything of the causes of the girl's injuries and that her wet dishevelled condition was due to her having slipped while passing through a babai pit, were pointed out by learned Crown Counsel as showing the weakness of the appellant's story. He also stated that if the appellant had suspected the parents of the girl of beating her why did he not cross-examine the mother on that point or even the girl her-self.

7. I have listened carefully to the appellant's version of the matter and have taken detailed notes of learned Counsel's submissions.

8. In cases where an accused is charged with rape the court must be careful to observe the rules of evidence on the question, as rape is a serious offence which carries a maximum sentence of imprisonment for life. The main rules of evidence applicable are that the accused must be identified, that the complainant had sexual connection with the accused, that such sexual connection was without her consent and that there is in practice corroboration of the story told by the complainant. Corroboration is not required by law but is always looked for in practice and, while an accused may be convicted without corroboration, the court so convicting should believe the complainant and warn itself of the dangers of the convicting as it must be remembered that in many cases, and particularly in this instant case, there is only the evidence of the complainant and the accused, either or both of whom could be lying.

9. Stress was laid on the aspect that recent complaint had been made by the girl to her father and that her distressed condition and injuries supported the truth of her story. While this may be true, however, neither of these two matters constitutes corroboration. While there are many decisions on the point of the evidence of a victim’s distress being possibly capable in law of amounting to corroboration, R v Redpath (1962) 46 Cr. App. Rep. 319 being a leading case on the matter, it has been put beyond all doubt in R v Wilson (I) (1974) 58 Cr. App. Rep. 304 by the Court of Appeal which held that the appearance and emotional state of a complainant in a sexual case may, in very special circumstances, be regarded as being capable of affording corroboration of the evidence of the complainant but a very guarded approach to this should be made. Distress on the part of the complainant, the Court of Appeal held, should not be over-emphasized and there should he a warning that, except in special circumstances, little weight should be given to it.

10. In this present case, apart from recent complaint and evidence of distressed condition, what support is there for the evidence of the complainant? The complainant's story that the appellant called her out of the dance, punched her in the stomach, gagged her with his shirt and carried her over a long distance, 451 paces, before raping her must be taken and examined in the light of the appellant's story, which the learned Senior Magistrate seemed to have failed to do. After all there are two sides to every story and, unless one is shown to be worthless or untruthful it should not be rejected. Does it seem likely that the appellant who, even on the girl's mother's evidence "used to come to our house and wanted to be a son of my husband" would openly call the girl from a public dance where there were crowds of people, with-out a word punch her in the stomach, take off his shirt, gag the girl with it, carry her a distance, rape her and then go home peacefully well knowing that if that were so he would be found out in a small place like Makin? Or is it more likely that the appellant and the complainant, who were on more than friendly terms, would have made love and, on the girl's return home late from the dance bleeding as a result of her first ever act of sexual intercourse, would have been questioned by her parents and, on the truth emerging, would have been punished by her father and a complaint made to the Police to save the family honour?

11. These aspects do not appear to have been examined by the court below. The learned Senior Magistrate seems to have accepted that the complainant's ribs were fractured but that does not appear from the medical evidence. He also stated that the red marks on the girl's neck resulted from her being strangled by the appellant but at no stage does the complainant say that the appellant strangled her. She said that he punched her, hit her, dragged her by the hair, gagged her, but never did she say that he strangled her. The learned Senior Magistrate also said "Had Ruth agreed she wouldn't, have complained" but that, could well be considered to bag the question. Further the evidence of a struggle at the scene is equivocal. The appellant's story has been consistent through-out and, even when first approached at his house by the Police, he frankly told them that he had had intercourse with the complainant which he could well have denied as there were no witnesses whatever to what took place between the appellant and the complainant, even though, from the complaint's story the first part of the episode must have taken place just outside the Maneaba.

12. Again why was the complainant's father not called as a witness and why did the court below not take note of the discrepancy between the evidence of the girl who said "I first met my father after I was raped, and my mother on our way to the house before going to the Policeman" and the evidence of her mother who said "While I was searching I met my husband who informed me that Ruth had returned and she was crying because Motinnang (Accused) had raped her"? One might well ask why the appellant did not cross-examine on this point or put it to the mother that her daughter had been punished. However, with-out the aid of a lawyer the appellant would probably not be??????

????????-corroboration in any detail, nor did it warn itself to be on guard in a case of this nature. While, therefore, not saying that I believe or disbelieve either party I must hold, on the law and on the practice in sexual cases, that the prosecution did not make out the charge of rape against the appellant to the standard required by law, that is, beyond a reasonable doubt, and I must allow this appeal and order that the appellant be acquitted.

14. The appeal is, therefore, allowed and the appellant acquitted of the charge of rape on the grounds that the case against him was not proved to the standard required and that there was a reasonable doubt as to his guilt.

15. The appellant is, therefore, ordered to be released after serving over one year in prison.