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Court of Appeal of Vanuatu |
IN THE COURT OF APPEAL OF Criminal Appeal 2419 of 2016
THE REPUBLIC OF VANUATU
(Appellate Jurisdiction)
KIKI CHILIA
v
PUBLIC PROSECUTOR
Coram: | ||
Counsel: | Mr. Saling Stephens for the Appellant Mr. Damien Boe for the Respondent | |
Datu>Date of Hearing: > | 14th& 15th November 2016 | |
Date of Jud: | 18th November 2016 at 4.00 pm |
JUDGMENT
INTRODUCTION
“204. Summary rejection of appeal
(1) When a memorandum of appeal has been lodged, the appeal court shall peruse the same together with the record of the case and if it considers that there is not sufficient ground for interfering, it may notwithstanding the provisions of section 201 reject the appeal summarily:
Provided that no appeal shall be rejected summarily except in the case mentioned in subsection (2) unless the appellant or his advocate has had the opportunity of being heard in support of the same.
(2) Where an appeal is brought on the ground that the conviction is against the weight of the evidence, or that the sentence is excessive, and it appears to the appeal court that the evidence is sufficient to support the conviction and that there is no material in the circumstances of the case which could raise a reasonable doubt whether the conviction was right or lead the appeal court to the opinion that the sentence ought to be reduced, the appeal may, without being set down for hearing, be summarily rejected by an order of the appeal court certifying that it has perused the record and is satisfied that the appeal has been lodged without any sufficient ground of complaint.
(3) Whenever an appeal is summarily rejected notice of such rejection shall forthwith be given to the Public Prosecutor and to the appellant or his advocate.
CONSIDERATION
6. The appeal is advanced on the following grounds:
Ground 1
The primary judge convicted the three defendants on a purported charge of coercion when the three men were actually charged for kidnapping. There was virtually no material evidence to support that charge.
Ground 2
There was no evidence adduced before the Court by the prosecution that the three men had had sex with the victim without her consent.
Ground 3
The primary judge was actually coaching the prosecuting counsel in the case when he should be sitting independently as a Judge. [This ground was abandoned at the appeal hearing.]
Ground 4
The primary Judge instructed his Associate to send emails to the three counsel in Port Vila while he was in Santo to say his judgment on the voire dire hearing was an error and should be disregarded.
“105. Kidnapping
No person shall –
(a) convey any person beyond the limits of the Republic without the consent of that person, or of some person legally authorised
to consent on behalf of that person; or
(b) by force compel, or by any fraudulent means induce, any person to go from any place to another place.
Penalty: Imprisonment for 10 years.”
8. It is apparent from the information dated 1st August 2014 that although no subsection of s.105 has been specified, the particulars of wrongclearly show that the charge was laid under subsection (b) of s.105. Of significance is the fact that the allegation does not refer to circumstances alleging that the complainant had been conveyed “beyond the limits of the Republic without her consent” which is one of the elements to be proved under subsection (a). The particulars state as follows:
“Kiki Chilia, Kalo Willie and John Turesometaem long numba 2nd June 2014 long eriablongnumba 2 lagon, yuflaie bin kidnapem girl iaLetisha Reuben olsem, yufalaie bin draggem hem mopullem hem ie go insaed long Black Double Cabin Mitsubishi Truck motransportem hem ie go long Mele Beach we long taemia hemi againsemtingtingblong hem.”
“22. I do not accept the defence evidence which says Ms. LR went on that journey completely of her own free will. I believe that she may have gotten into the vehicle to begin with but that was on the basis that the men were going to take her home. They did not. Had they told her what they planned, and I believe there was some pre-planning involved, she would not have gone with them. I believe her completely when she said in answer to a question from me that she would not have climbed into the vehicle had she known of the men’s intentions. She was kidnapped by all three men.
15. As to ground 2, the Appellant admitted that he had sexual intercourse with the complainant because she consented to him doing so.We consider that this issue of consent is not borne out by the evidence which shows that the complainant testified that she said “No” when the Appellant asked her to have sex with him.
“20. The evidence then turned to the sexual intercourse. Ms. LR described the sequence of the sexual assaults. She said the first man to force her to have sex was Kalo Willie. She was then forced to have sex with Kiki Chilia and then exit the vehicle and have sexual intercourse with John Ture on the beach. Kalo confirms in his statement that he was the first to have sexual intercourse with Ms. LR. John Ture confirms that in his statement that he had sexual intercourse with her on the beach. Neither of them have anything to say about consent. I accept Ms. LR’s evidence on that issue. She declined initially to have sexual intercourse with Kalo Willie. He ignored her protests and removed her clothes and then raped her. She describes how badly she felt about what was happening. I have no doubts about that evidence. As indicated John Ture also confirms in his statement to the police that he had sexual intercourse on the beach with Ms. LR. I accept wholly what Ms. LR says in her evidence that she did not put up any fight. That does not mean that she consented to what was happening to her. In all the circumstances, given all that had gone before, it cannot be the case that John Ture took her lack of fight to be consent. There is no way he could have mistaken her lack of protest to be consent.”
“21. I do not accept a word that Kiki Chilia says in his evidence. He gave the distinct impression he was making it up as we went along. I accept he made a statement early on saying he was the only one to have sexual intercourse but I do not accept his evidence on that and I do not accept that his sexual intercourse with Ms LR was consensual. I do wholly accept the evidence of the complainant. Kiki Chillia frequently said things in his evidence which were not put to Ms. LR when she was cross examined. He explained this by saying he had not put things in his statement because he had forgotten them but telling his story now reminded him of the detail. None of this “detail” had been put to Ms LR and the “detail” was clearly an attempt to make credible a story which was otherwise incredible. I do not accept his evidence that Ms. LR was the instigator of the sexual activity. I do not accept that she had pornography on her phone and asked him to watch it with her. I accept what she says, because of her earlier listening to music and speaking to her mother the battery on her ‘phone was flat’. I accept that the men had in any event taken her phone from her and that she only got it back when she was released at Korman. I do not accept his timings of events either. I have no doubts the initial encounter with Ms. LR was much earlier than he says. He hugely embellished his evidence with detail not put to Ms. LR and I had no doubts that the reason why it was not put to her was because he had just made it up. He was lying.”
24. I do not accept that any sexual intercourse was consensual. Ms. LR was repeatedly raped by these three men. They took advantage of her vulnerability and I find all three defendants guilty as charged on the second count of rape. There is simply no question that they believed she was a consenting partner in the sexual encounter. I do not believe there is any way they could have mistaken her silence as consent especially as she had specifically told at least two of them she did not wish participate in any sexual activity. I have no difficulty in finding that Kiki Chilia dropped off the two other defendants after the offences had taken place at Mele beach and then drove the complainant to Klems Hill where he raped her again. I do not accept there is any way he could have held the mistaken belief that she was consenting to that final act of degradation. He is guilty as charged on the third count.”
21. It is timely to state that we are mindful of the long settled principle, stated andated in common law jurispruisprudence as well as in this jurisdiction, that an appellate court should not interfere with the trial judge’s conclusions on credibility and primary facts unless satisfied that he was plainly wrong.Accordingly, we rejectground 2of the appeal.
23. The judge’s footnote relates to the Decision on Voir Direwhich was given on25th day of February 2016. It explains why the judge sent the email. In any event, the note is self-explanatory and merely alludes to the fact that the judge had circulated a draft in error. It states:
“Note: This is a corrected copy of my decision. It would appear that in my haste to publish this decision before I left on tour to Santo I caused a draft copy to be sent to the parties. Unfortunately I only discovered my mistake when I tried to access the decision during the second week on tour.”
This ground of appeal has no merit.
CONCLUSION
26. We see no merit in any of the grounds of appeal. For these reasons the appeal is dismissed. The Appellant must pay the Respondent's costs of the appeal at the standard rate.
Dated at Port Vila this 18th day of November, 2016
BY THE COURT
------------------------------------------------
Hon. Chief Justice Vincent Lunabek
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URL: http://www.paclii.org/vu/cases/VUCA/2016/55.html