PUBLIC PROSR
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-V-
TAVUI MELEK
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Coram: Mr Justice Oliver A
Saksak
Mr William Falau - Clerk
Counsel: ctor Wilson D
Garae, State Prosecutor for Public Prosecutor
Mr Hillary Toa for the
Defendant
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ORAL VERDICT
The defendant is charged with
having sexual course with a girl of 14 years contrary to section 97(2)
2)
of the Penal Code Act [CAP. 135]. He does not deny intercourse but
challenges the Complainant's age. A short trial was held to determine the
age of the complainant. The Prosecution adduces evidence from Dr Adelfa
Destura who confirms that at the time of examination
the Complainant was 14
years of age. The offences complained of took place in 1993 indicating that
the complainant was
at the time 13 years of age.n>
Mr Toa makes a no-case
submission submitting that the Prosecution has not provided sufficient
evidence to satisfy the
Court as to the age of the Complainant. The Defence
challenges the doctor's report on the basis that it is based on outdated
materials which is itself not corroborated.
I dismiss the application. The
Complainant and her mother come a backway village on SantoSanto, namely
Fanafo. The Complainant
was dismissed from schooclat class 2 as a result of
pregnancy from this relationship. Her knowledge and understanding is very
minimal. The mother is no exception. In cross-nations they would give
contradictory answers to what what they give in
their evidence in chief. This, is
mainly due to their lack of understanding. I believe the Complainant and her
mothers
evidence as to what they thought the complainant's age was at the
time of the offence. Further I believe the Doctor's finding
that the
Complainant's age was 14 years at the time of examination in or about 1994.
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For those reasons I am
satisfied that the Prosecution has proved beyond the age of the
ComplComplainant and in view of
the Defendant's Admission, I accordingly convict
the Defendant.
Inencing him I take into
account what has been said on the Defendant's behalf by his Cois Counsel. In
particular that
he has paid a customary fine of VT 25.000 to the
Complainant's mother and a pig and cooked laplap to the father.
<
I sympa with the Defendant
at the information alleging police brutality and humiliation at j at jail No 6
during his arrest
and detention.
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I find insufficient evidence to
pursue or consider that matter. But I consider the fact that he has
cooperated with police
and that he has attended court at all times when his
case has been called. I take into account the fact that the defendant
has
reformed his way of life, now a born-again Christian and his pledge that he
would not repeat this action in the future.
But this leniency must not be
seen as an encouragement to others to do what this defendant has done. You
may not be too
lucky as this defendant has been.
In the circumstances, it is
appropriate that thet treats the Defendant under Section 42(1) of the
Pen Penal Code Act. A conviction is recorded against him but the Defendant is
discharged on condition that should he repeat this act within
a period of 6
months from today, he will be call upon by the Court and sentenced
accordingly for this Offence.
DATED at Luganville this 11th
day of November,
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Sealed: 16th November, 1998.
<
BY THE COURT
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OLIVER A SAKSAK
Judge of the Supreme Court
