Ishmael v Public Prosecutor [2005] VUCA 1; Criminal Appeal Case 04 of 2004 (3 May 2005)

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)

CRIMINAL APPEAL CASE No. 04 of 2004

BETWEEN:

JOHN ISHMAEL
Appellant

AND:

PUBLIC PROSECUTOR
Respondent

Coram: Justice Bruce Robertson
Justice John von Doussa
Justice Patrick Treston
Justice Oliver Saksak
Justice Hamlison Bulu

Counsel: Mr. Peter Bartels for the Appellant
Mr. Nicholas Mirou, the Public Prosecutor

Date of hearing: 27th April 2005
Date of judgment: 3rd May 2005

JUDGMENT

John Ishmael appeals against his conviction on a charge of rape contrary to Section 91 of the Penal Code Act [CAP. 135] and against a sentence of 8 years imprisonment imposed upon him.

Rape was defined at the date of the offending:-

“90. No person who has sexual intercourse with a woman or a girl without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representation as to the nature of the act, or, in the case of a married woman by impersonating her husband, commits the offence of rape. The offence is complete upon penetration.”

Mr. Ishmael admitted that he had sexual intercourse on 17 November 2003 with the 17 year old complainant but contended that it was consensual. His defence was grounded in section 12 of the Penal Code which, as amended by Act No. 27 of 1987, provides:-

“A mistake of fact shall be a defence to a criminal charge if it consists of a genuine and reasonable belief in any fact or circumstance which, had it existed, would have rendered the conduct of the defendant innocent.”

As the Chief Justice noted the process by which section 12 of the Penal Code operates is as follows:

“(a) the accused must satisfy the Court that the defence of honest and reasonable mistake is ‘sufficiently raised’, then if so,

(b) the prosecution must negative the defence by proving beyond a reasonable doubt that either:

(i) the accused did not genuinely believe [that the complainant consented]; or

(ii) the belief of the accused [that the complainant consented] [i.e. a reasonable man standing in the shoes of the accused would not have believed that the complainant consented].”

Four men (Daniel Kalmaire, Kalfau Alick Kalmaire, Adam Silas and John Ishmael) were charged with raping the complainant in succession and a fifth (Simon Frank) was charged with aiding the offence contrary to sections 30 and 91 of the Penal Code Act. Simon Frank had sex with the complainant before any of the others but there was no allegation of criminality with regard to that incident.

All the accused were convicted on all the charges in a Judgment delivered by the Chief Justice on the 23 July 2004. On 11 August 2004 all were sentenced to terms of imprisonment. In each case the Chief Justice took a starting point of 8 years and increased this for aggravating factors and reduced it for mitigating factors. In the case of John Ishmael the aggravating factors were the premeditated/planned sexual assault on a victim of less than 18 years which warranted an increase to 9 years. Because he was only 19 at the time, an allowance was made for youth. After consideration also of almost 14 weeks spent in custody he was sentenced to 8 years imprisonment.

There is very little argument about the factual background. The 17 year old complainant had grown up with and knew well both this Appellant John Ishmael and Simon Frank. She was a former girl friend of Simon Frank. There is no question but that on a number of occasions in the past she had had sexual intercourse about which there was no complaint, with people including the Appellant John Ishmael sometimes involving a number of men in succession.

On the morning of 17 November 2003, a group of young men were together fixing a truck. Discussion turned to the possibility of them having sexual intercourse. The eldest of the group Daniel Kalmaire told Simon Frank that he would like to have sex with the complainant. Later that day the possibility was discussed again among the group. Messages were sent out to the complainant and a friend of hers who was the first choice of John Ishmael. The friend did not respond but the complainant came. Initially she walked with Simon Frank to the nakamal together with Ben Alick, another man who was with the group during much of that day.

Simon Frank told the complainant and Ben that they were to wait for him at the gate to the hospital further up Wales Street. The complainant walked up there with Ben but then decided to go home. She proceeded to walk into the hospital ground. Ben went and told Simon Frank that she was going home and Simon Frank, Ben Alick and this Appellant John Ishmael ran after her. They went in different directions. It was Simon Frank who stopped her and he told her to go back to the nakamal at Wales Street. They walked back through the hospital ground and met up with Daniel Kalmaire, Kalfau Alick and Adam Silas. There were subsequent conversation with John Ishmael where he inquired as to where the complainant and Simon were. He was told they were coming up straight away.

The five men waited at the white gate above Mangoes Resort. Simon and the complainant came past where the men were waiting at the first gate. The couple went back up to the second gate and entered the yard. Simon Frank then walked back alone to the first gate and looked at the men waiting there before he walked back to the complainant at the second gate. He complimented her and then sexual intercourse took place in the paddock while lying on Simon’s shirt. After it was over and the complainant was putting on her clothes, Simon told the complainant that a friend wanted to have sex with her as well.

The Judge heard evidence as to what happened thereafter as it was a joint trial. For the purposes of this appeal we accept Mr. Bartels’ submission that as John Ishmael was not directly present or connected with what happened next we do not take it into account on the critical issue of his belief although it is an inevitable and necessary conclusion that John Ishmael knew generally what was going on during this period. Nonetheless these men were not charged with being parties to the rapes committed by the others who were in the group on that evening so the position of John Ishmael must be viewed in a circumscribed way.

The uncontradicted evidence is that a little later John Ishmael and Ben Alick walked to the second gate and entered the yard. When Simon Frank came out of the yard they spoke with Simon Frank and John Ishmael said: “olsem wanem ia”. We heard a great deal about what that comment meant. It is not critical in determining the appeal but within the context of the case it is difficult to treat it as being simply a casual greeting to someone he had seen already a number of times on that day.

When John Ishmael went into the yard he came across Adam Silas having sexual intercourse with the complainant. When Adam had finished and left the scene, without words or comments of any sort John Ishmael had intercourse also. When he was finished John Ishmael said to Ben Alick that it was his turn but Ben replied he did not want to indulge.

The critical question is whether at that time and under those circumstances the prosecution has proved beyond reasonable doubt that John Ishmael did not genuinely believe that the complainant consented or that a reasonable man standing in his shoes would not have believed that the complainant consented.

At the heart of his defence was what had occurred in the past. It was undisputed that in the past there had been several sexual encounters sometime with more than one man. There was no particular evidence as to the details or the total circumstances of any of the incidents.

In his evidence in chief John Ishmael stated and maintained that he believed that the complainant was consenting.

In cross-examination he said:

17. Why you did not ask Elice if she is ok to have sex with her?
1. I did not speak to her.
17. Why?
1. I just want to have sex. I did not want to talk to her.
17. You did not care whether she is consented or not?
1. If she had not agreed she would have pushed, kicked me. She did not do anything.
   

At a later point the cross-examination continued:

17. I put it to you at this time the difference is that all boys did not ask Elice if she agreed to have sex, simply went ahead to have sex not caring if she wanted to have sex or not.
1. If she did not want to have sex with me she would have pushed me out.

She laid down. She said nothing to me and I think it was ok.

17. You did not turn your mind as to whether she consented.
1. When I knelt down – she saw me, recognized me out.
17. Your thinking at the time was I push my penis in her. If she kicked me.
1. No. When I knelt down she saw me she said nothing.
   

The Chief Justice found John Ishmael was not a trustworthy witness and some of his accounts of events were rejected. Without entering into that finding we note that simply on the evidence he himself gave there was no room for a reasonable belief that the complainant was consenting or that John Ishmael could have honestly held that view. It is beyond comprehension in those circumstances that he could have held that belief. We have reached a clear conclusion that the Appellant made a totally unjustified assumption. He did not turn his mind to this fundamental issue. He was utterly unconcerned as to how she felt and in our view the learned Chief Justice properly entered the conviction.

Every man or woman has control over their own bodies and what they do with them in an intimate way with other people. The fact that a woman has consented to a sexual encounter on one occasion provides no licence for a man to assume that she consents on any subsequent occasion. A woman does not have to kick or scream or push someone away. She is entitled to be treated with courtesy and respect.

When assessing the reasonableness and honesty of the belief of John Ishmael it must be looked at within its total context. In this case it included the conversation all the men had earlier in the day. That was not a declaration that they were going to rape but was an interest and determination in having sex with her. This was always an influence. After she joined them, she started to go away but was pursued by the group.

John Ishmael, although he waited some distance away knew that his companions had gone into the yard. He well knew what was on their minds and what they wanted to happen. When he went into the yard himself he saw the complainant having intercourse with another man. It defies common sense or logic for him to assert that without a word or gesture he could honestly believe that seconds later she wanted him also to penetrate her. This is a man who simply made an unjustified supposition because there had been sexual contacts in the past. At times that had been with other people as well as himself he assured she was free for all and available to him whenever he felt the need for sexual relief. John Ishmael knew what she had been through. It is difficult to imagine how traumatic the whole event must have been for her. The fact that she showed some anxiety as to whether John wore a condom is consistent with her being concerned to protect herself. It is no indicator of willingness or encouragement in the circumstances as he knew them to be. He actually observed part of the immediately previous sexual encounter. Had he turned his mind to what he knew of the others would have been about in light of their intentions, he could never have honestly believed that without any inquiry that she was consenting. Sexual encounters involve the mutual assent and the voluntary commitment of two parties. There can be no doubt that the woman was never consenting [and Mr Bartels has not from the totality of the evidence try to argue otherwise] but equally it is not reasonably possible that John Ishmael could have honestly believed she was.

There was a good deal of evidence in the Court below and submission before us concerning evidence about a “cry”. The Chief Justice made a finding about that which provided additional support for this conclusion. We are not satisfied that his conclusion was incorrect but the conviction could have been entered with or without that material. It is not critical to the finding which had to be reached.

A number of the grounds of appeal related to the issue of corroboration. Traditionally there was a rule in which judges directed juries (or when sitting alone reminded themselves) of the dangers of convicting in sexual cases on the uncorroborated evidence of complainant alone.

With respect to Mr. Bartels we do not see corroboration as an issue in this case at all. Mr Ishmael is to be convicted totally on the basis of his own evidence, his own observations and his own assumptions. This case is not the appropriate time for this Court to consider the place of corroboration in the 21^st century in Vanuatu and the circumstances in which it will be necessary or can arise. Courts are always cautious when in a criminal case there is one on one evidence, because the criminal standard requires proof beyond reasonable doubt. That means the court must assess whether a relevant denial could reasonably be true. We have viewed and assessed this case on the basis of what Mr Ishmael himself has said so corroboration is not an issue. It is not the complainant’s evidence which inevitably leads to conviction, but his own.

The other specific complaint raised on the appeal was the manner in which the Chief Justice assessed and used the evidence of the friend to whom the complainant initially told her story and the evidence of Ben who was in the yard and spoke about hearing a “cry”. We have mentioned the latter. The Chief Justice’s finding that it was not a “cry” of ecstasy is not necessary to justify conviction although it was clearly an available view of the evidence.

Likewise the former is not a matter which is necessary to our assessment of the criminal responsibility in this case. As we suggested to Mr Bartels in argument, as it was not disputed that complaint was made by a very distressed complainant, it was a serious Hollywood she was putting on if all that had occurred was consensual.

Nothing has been advanced which suggests in any way that the view of the Chief Justice who heard and saw all these witnesses over many days can be attacked. But as importantly it is to be remembered that it is not any of that evidence which is essential to upholding the conviction. The central probative testimony comes from John Ishmael.

John Ishmael treated this complainant as his chattel to use as and when he wished, without regard to her views or her position. There was nothing in the history of the matter which would have justified such callous and inappropriate behaviour. It was clearly criminal and a conviction for rape should have been entered.

The issue of an appropriate sentence raises more difficult problems in this case. The Chief Justice took the view that because it was a rape which involved more than one person, the proper starting point was eight years which is entirely consistent with the authorities. There can be no doubt that from the total material which has been put before us as relevant to John Ishmael’s case, that starting point was appropriate in respect of the three men who had no sexual history with the complainant. Equally it was appropriate with regard to Simon Frank who appears to have seen himself as some broker who could make available the sexual favours of his former girlfriend to men generally.

In assisting the culpability of this Appellant however, we must have regard to the fact that his offending arises from his mistaken judgment about the issue of consent. The circumstances of every rape must be viewed in their total surroundings. The circumstances of this case relating to John Ishmael are very unusual by reason of his past relationship with the complainant.

We have already made very clear the fact that there has been a previous sexual history between the complainant and John Ishmael provides no excuse in law for what he did. However, in our view, his error (and a very serious one it was too) needs to be viewed differently from the position for instance of two men who grab a woman walking in the street and take her into bushes and rape her.

John Ishmael made a fundamental mistake because did not ever turn his mind to the fact that consensual sexual encounters involve two people in equal positions making a choice to so involve themselves. Men do not have any degree of control or domination over women.

We do not accept that this man who was over 19 at the time of the offending entitled to any substantial discount because of his youth. His actions were unjustified and unacceptable and indicate that he has a lot to learn about the respective positions of women and men.

We have however concluded that a lesser term of imprisonment would be sufficient to reflect the culpability which is inherent in his wrong assessment of the complainant’s consent which the prosecution overwhelming proved that he had made.

Mr. Bartels submitted that there should be a recognition of the fact that the Appellant has already demonstrated a willingness to use the time in prison for constructive learning and training. This Court is always encouraged to know that positive steps are being taken to better equip a prisoner for his eventual return to the community. This is commended and encouraged as in virtually every case there will have to be a reintegration of a former prisoner back to his family and into society generally as a positive and contributing member. The assessment of that and any consequences flowing from it are issues for those determining release dates and not a factor in determining the appropriate sentence to be imposed.

We have regard to the fact that he has spent some time in custody. The sentence of eight years imprisonment is quashed. In its place the appellant John Ishmael will serve a term of 5 years imprisonment commencing from 11^th day of August 2004.

Dated at Port-Vila this 3^rd day of May 2005

BY THE COURT

J. BRUCE ROBERTSON J
JOHN von DOUSSA J
PATRICK I. TRESTON J
OLIVER A. SAKSAK J
HAMLISON BULU J