Vere v Public Prosecutor [2006] VUCA 15; Criminal Appeal Case 01 of 2006 (6 October 2006)

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

Criminal Appeal Case No. 01 of 2006.

BETWEEN:	DAVID VERE
	Appellant
AND:	PUBLIC PROSECUTOR
	Respondent

Coram: Hon. Chief Justice Vincent Lunabek
Hon. Justice J. Bruce Robertson
Hon. Justice John W. von Doussa
Hon. Justice Daniel V. Fatiaki
Hon. Justice Hamlison Bulu
Hon. Justice Christopher. N. Tuohy

Counsel: Mr. S. Stephens for Appellant
Mrs. K. Tavoa for Respondent

Date of Hearing: 26 September 2006
Date of Decision: 26 September 2006
Date of Reasons: 6 October 2006

REASONS FOR JUDGMENT

This is an appeal against a conviction entered against the appellant after a 2 day trial in the Supreme Court at Luganville for an offence of Rape. It was alleged that the appellant had raped a woman between 1998 and 2001 by having anal intercourse with her without her consent. She later became his wife.

The grounds of appeal raised were that the trial judge erred in the following respects:

1. wrongly held that there was no consent by the prosecutrix due to the fact that it was obtained by threats of intimidation when there was virtually no evidence before the court to suggest there were threats of intimidation. The acts of intercourse by anus occurred in 1998.
   
2. that the trial judge failed to satisfy himself that there was no recent complaint. The two (2) incidents allegedly took place sometime in 1998 which would raise suspicion on the truthfulness of the complaint.
   
3. that the trial judge failed to investigate why the incidents were only reported to the police sometime in 19 August 2005.
   
4. that the trial judge failed to appreciate that the two (2) acts of anal intercourse between the prosecutrix and the appellant were done pursuant to their mutual consent and agreement.
   
5. that the prosecutrix made an indication to the Santo Court staff on 17 March 2006 that the complaint was not true as her father has manipulated her to make the complaint.
   

It was common ground at the trial and indeed so much was admitted by the appellant both in his sworn evidence in chief and in cross-examination that he had had anal intercourse with his wife on 2 occasions in 1998 but that it was consensual.

The complainant testified that anal intercourse occurred on at least 4 occasions, once in each of the years 1998, 1999, 2000 and 2001, and on each occasion she had not consented to the act. She accepted however that the appellant had not used a knife to force her to agree to anal intercourse. In her own words, she consented because: "He (the appellant) insisted, when I said no, he kept on asking and asking and kept on asking."

The trial judge after analysing the evidence made the following relevant findings:

"(1) There was sexual intercourse on the anus only 2 times and not 4 times;

(2) There was consent by the wife, but the Court is satisfied that the consent was obtained by threats of intimidation;

(3) There was penetration."

Before this Court embarked on a consideration of the appeal grounds we indicated that there must be a consideration of what could constitute the offence of Rape under the Penal Code in 1998 when the offence is alleged to have occurred.

Before it was amended by the Penal Code (Amendment) Act No. 17 of 2003, Rape was defined in the following terms:

"Any 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 threat or intimidation of any kind or by fear of bodily harm ................. or, in the case of a married woman by impersonating her husband, commits the offence of rape. The offence is complete upon penetration."

‘Sexual intercourse’ was not statutorily defined however and it does not appear to have taxed anyone’s mind, either before, during or after the trial. It was first raised in the written submissions of counsel for the Public Prosecutor filed in the appeal where she noted: "If the Court is of the view that penile penetration of the anus does not amount to ‘sexual intercourse’ then it is conceded that the appeal against conviction must be upheld".

This point was addressed by appellant’s counsel in a supplementary submission filed on the date of the hearing of the appeal. In it counsel refers to 2 dictionary meanings of ‘sexual intercourse’ which defines it in terms of vaginal penetration by a penis, and counsel submits that the appellant was wrongly charged with an offence which does not exist within the laws of the land.

The relevant and applicable definition of Rape is that which existed prior to the Penal Code (Amendment) Act 17 of 2003.

The offence charged in this instance is alleged to have occurred between 1998 and 2001 which is well before the coming into force of the Penal Code (Amendment) Act on 15th December 2003.

Article 5 (2) of the Constitution also expressly provides:

"(f) no-one shall be convicted in respect of an act or omission which did not constitute an offence known to written or custom law at the time it was committed"

We are satisfied on a plain reading of the definition of Rape that the ordinary and natural meaning and intendment of the expression "has sexual intercourse with a woman or a girl ..." in section 90 of the Penal Code before it was amended, is confined to penile penetration of the vagina.

It follows therefore, that anal intercourse did not constitute ‘sexual intercourse’ for the offence of Rape when it was committed by the appellant on the complainant in 1998.

We are supported in this, by Professor Glanville Williams where the learned author says of the statutory definition of Rape in a Textbook of Criminal Law (2nd edn) (at para 10.8):

"The phrase ‘sexual intercourse’ is used out of prudery, but it is a misleading way of stating the legal requirement which is satisfied by the least degree of penetration. The carnal act must be per vaginam; forcible buggery (as allegedly occurred in the instance) and fellatio (oral sex simulating rape) are not included"

A similar conclusion was reached in the United Kingdom in 1981 in Gaston v The Queen 73 Cr App R 164 where the Court of Appeal, at pgs 166 – 167 held, that Buggery and Rape are separate offences, and that "there is no offence of rape per anum".

Whether there should be statutory amendment to cover other forms of sexual violation is a matter for Parliament. But in the absence of any specific definition to the contrary, we are satisfied that the offence of rape at the relevant time, necessitated proof of penile penetration of the vagina. There is no evidence of that occurring in this case so the conviction cannot be sustained.

There is in those circumstances no need for us to consider the other issues raised in the appeal.

The formal order of this Court is:

• The appeal is allowed.
• The conviction is quashed and the sentence set aside.
  

Dated at PORT VILA on 06 October 2006

BY THE COURT

Hon. Chief Justice V. Lunabek	Hon. J. Bruce Robertson J.
Hon. John. W. Von Doussa J.	Hon. Daniel V. Fatiaki J.
Hon. Hamlison Bulu J.	Hon. Christopher N. Tuohy J.