Public Prosecutor v Mariyasua [2000] VUSC 11; Criminal Case No 019 of 1999 (14 March 2000)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CRIMINAL JURISDICTION

CRIMINAL CASE No. 19 OF 1999

IGN="CENTER">PER">PUBLIC PROSECUTOR

-v-

YOAN MARIYASUA

Coram: Mr. Justice Vincent Lunabek J, Acting Chief Justice

Counsel: Mrs. Heather L. Leo, the Public Prosecutor for Prosecution
Mr. Edward Nalial of Counsel for Defendant

Hearing: 29 Feb. & 1, 2, 3, 4, 8 & 10 March 2000
Verdict: 14 March 2000

RER">REASONS FOR VERDICT OF LUNABEK J, ACJ

I. INTRODUCTION

1. Choice of Language

This is the judgment of the Cou this case. The trial took place at Port-Vila, Efate aate and the proceedings were conducted in Bislama. The judgment is written in English.

2. Nature of thef the charge

The Defendant Yoan Maryiasua was committed to this Court, charged with the offence of Unlawful Sexual Intercourse, contrary to section 97(2) of the Penal Code Act (CAP 135). The charge is particularised as follows:

That on or about 11 October 1999, Yoan Mariyasua had sexual intercourse with Moana Willie who was at that time under 15 years but of or over 13 years.

3.

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The accused by Counsel pleaded "not guilty" to that charge. The plea was noted and the triaceeded on that count.

The accused was reminded about his right in the statementement of Presumption of Innocence under section 81 of the Criminal Procedure Code (CAP 136) and it was explained to him.

II. STANDA D OF PROOF AND ESSENTIAL ELEMENTS OF OFFENCE TO BE PROVED BY PROSECUTION

1. Standard of Proof

This criminal trial and as is in every criminal trial, it is for the prosecution who bringsrings the charges to prove each element of the Count. The onus rests on the prosecution from beginning to end. The defendant does not need to give evidence. In this case, he has done so. But that does not affect the onus of proof. The law is that the prosecution must prove each element of the charge beyond reasonable doubt before the accused is found guilty of the charge. That test must be applied separately in respect of each Count.

If at the end of the trial, I am left with a reasonable doubt as to the Defendant’s guilt, then the Defendant will be entitled to the benefit of that doubt and be acquitted.

2. The Essential Elements of the Offence as charged.

Section 97(2) provides:

"(2) No person shall have sexual intercourse with any girl under the age of 15 years but of or over the age of 13 years.

…

(3) It is no defence to a charge under this section that the girl consented or that the person charged believed that she was of or over the age in question.

(4) The girl shall not be charged as a party to an offence under this section."

The essential elements of the offence as charged for Unlawful Sexual Intercourse, which the prosecution must prove beyond reasonable doubt before the accused can be convicted on that charge, are:

1. That the Defendant had sexual intercourse with the girl complainant.

2. That the girl involved in the sexual intercourse has to be under the age of 15 years but of 13 years or over the age of 13 years at the time of the sexual intercourse, that is, 11 October 1999.

III. FACTUAL ISSUE

The age of the girl complainant, Moana Willie, is the only disputed fact between the prosecution and the defence. The prosecution says that the date of birth of Moana Willie is 10 November 1985. The defence says, there is considerable doubt as to the age of the girl complainant.

. SUMMARY OF T OF THE EVIDENCE

1. Prosecution evidence

The prosecution called 7 witnesses.

e first prosecution witness is Annie Ben. A mother of 2 children, employed by Radio Va Vanuatu for 13 years. Yoan Mariyasua is her cousin brother. Their mothers were sisters. She gave evidence to the effect that on 11 October 1999, she and her two children stayed with the complainant, Moana Willie at Alice Ati ‘s house. Alice Ati who is the step-mother of the girl complainant, was on Malekula. She said that on 11 October 1999, she was in Alice’s sitting room. Her older son and Moana watched the television in the living room. Then the accused Yoan Mariyasua came in. The time was 8 o’clock pm. Yoan asked her if Moana could go with him at his house to wash his clothes. She refused and proposed that Moana will go to his house on the next morning. Yoan insisted that Moana should go because he would go to Santo the next morning.

She said Yoan took Moana in his car. After they left, she said she had a bad feeling. So she took a taxi and went to Yoan’s house. At Yoan’s house, she saw Moana’s slippers were outside the main door. She knocked on the door, there was no response. She went with a lady and got a police officer who knocked at Yoan’s door. Again there was no response. She took a bus and went back home and got Michael Manses and she returned with him at Yoan’s house. They knocked and called at Moana. There was no response. They went to Anabrou by bus to get Lewia and they went back with her at Yoan’s house. They knocked again and Yoan opened the door and told them that he did not took Moana in his car. She said Manses went inside Yoan’s room and came outside and told her that Moana Willie was in Yoan’s room.

Under cross-examination she said she went to Yoan’s house after 6 o’clock pm when it was already dark. She confirmed she saw Moana’s slippers at Yoan’s door and she put them in her bag. She confirmed that Michael went in Yoan’s room and told her that Moana Willie was in Yoan’s room. She said also that Moana told her that Yoan had slept with her and had sexual intercourse with her.

The second witness for the prosecution was the complainant, Moana Willie. She is from Malekula. She says she was born on 10 November 1985 and she is 14. She left school. She is the daughter of Anslo Willie and Diana Tangata. She lived with her father and step-mother Alice Ati.

She gave evidence that on 11 October 1999, she was at home. Yoan Mariyasua came to her house and asked her big mother (Annie Ben) for Moana to go and wash his clothes at his house. The reasons being that he would travel the next day to Santo. She said when she and her uncle Yoan arrived at his house, she went in and stayed in his uncle’s living room waiting for him to get his dirty clothes from his room. She said Yoan Mariyasua pulled her hands inside his bedroom. He then locked the door. He told her to take off her cloth. She refused and did nothing. Then she did what he told her to do. His uncle did also take off his cloth. He held on her body and touched her breast. He then slept on top of her. She said Yoan opened her two legs and pushed his penis inside her vagina (private part). This did not take too long then her "big mother" and others came and knocked on the door.

The sexual intercourse occurred during the night. Her uncle drove her back home about 1 o’clock am. She knew the accused, Yoan Mariyasua. He is the cousin brother of her step-mother, Alice Ati.

She was cross-examined by the defence counsel. She denied Alice told her to tell the Court about her evidence. She said she did no longer go to school since 1997 when she finished school at Vila City College. When questioned about her age, she said she was 13, then she said she does not know about her age. However, she denied that she mentioned to Yoan Mariyasua that she was 16 or 17 years old.

She confirmed Yoan drove her back at home at 1 o’clock am.

She said Alice Ati whipped her. She denied she had previous sexual intercourse with a man. She mentioned also that she left the school because her step-mother did not complete to pay her school fees .. So she stopped going to school. She denied the school Principal sacked her from school because of her relationship with a boy. After the sexual intercourse with Yoan, she went to hospital the next day for medical check up.

She confirmed she knew the accused for a long time and she was not afraid of him because he is her uncle.

She was then re-examined about her age in October 1999, and she said she was 14 years old. She said her step-mother whipped her the next day.

The next prosecution witness was Michael Manses. He is from Emau Island, North Efate. He comes from the same island as the defendant but he is from a different village.

His evidence is that Annie Ben told him that Yoan Mariyasua came and took Moana Willie in his car. She and the police knocked on Yoan’s door but there was no response. The door was locked. So she came and got him for help. They went to Yoan’s house at Melcoffee area. Then they went to Anambrou and called on their small mother Lewia. They came back with Lewia and knocked and Yoan Mariyasua opened the door. Yoan told him ‘were you looking for somebody?’ and he said he asked Yoan if Moana was with him in his house. And Yoan said no and he asked Manses to go in his room and checked. He said he went in a room, but he did not see Moana. Then he saw a bra on the floor. He asked Yoan to open the door of another room. He said he went in and he saw Moana was under the bed. She covered herself with the blanket. He saw Moana’s face. He then came back outside and told Annie Ben and Lewia that Moana was inside. He said he knew Moana because he is renting a room for Moana’s parents for 3 years.

He was cross-examined. He said he was related to Yoan Mariyasua. Yoan is the son of one of his aunties. He is also related to Alice Ati, the step-mother of the complainant Moana. Alice Ati is the daughter of his auntie. He confirmed he knocked on Yoan’s door but it was locked.

He confirmed he saw Moana in Yoan’s room under Yoan’s bed. The light was on. He was one metre from Moana. He saw Moana’s face. He did not talk to her and Moana did not make a sign to him. He did not ask Moana to go outside.

The next prosecution witness was Alice Ati. She married Anslo Willie, Moana’s father. She is from Emau Island, North Efate. She looked after Moana and became her step-mother since 1989 until today. At the time of the alleged incident she was in Malekula. Moana stayed in her house with Annie Ben at Alice’s house. She said Yoan is the uncle of her children. She treated Yoan as her brother. Yoan came to her house on regular basis since he worked with the Department of Youth and Sports and also when Yoan joined a String Band Group which practised in her house. Moana’s natural mother is Diana Willie Tangata, from Cook Islands. She had already left Vanuatu. She said after she married with Moana’s father, she looked after Moana and she is her daughter.

She said Moana’s date of birth was 10 November 1985. Moana’s father told her so. In 1989, Moana should be 14 and this year Moana is 15.

She was cross-examined. She said Yoan is her cousin brother. Yoan’s mother and her own mother were sisters. She had nothing against Yoan. She said if she had any bad feeling against Yoan, she would not accept him in her house.

She confirmed Moana’s date of birth was 10 November 1985 and on November 10^th 1999, Moana should be 14. On the date of said alleged incident, Moana was 13 plus. She went for 14 years. She said also after she returned to Vila, she whipped Moana.

The next witness was Mrs. Sylvie Taga. She worked at the Department of Civil Status for 18 years. She is one of the most Senior Civil Status officers.

She gave evidence that the Civil Status Office keeps the records of Vanuatu from the 6 Provinces and the Port-Vila and Luganville Municipalities. The central Register of Civil Status is in Port-Vila. She keeps 6 registers: Births, Acknowledgments, Marriages, Dissolution and Nullification of Marriages, Deaths, Foetus Death. The office of the central register took records, information from registration officers. The office registers the declaration of the people and issue Extracts of Registration made. She said information contained in the Extract documents must come from registration books. An Extract of Birth Certificate was shown to her. She identifies it and recognises the signature as being hers. She said the Extract of the registration of birth was issued in 1986 and came from the registration of birth of children who were born in 1985. She said the Extract of birth certificate is for Moana Willie who was born on 10 November 1985. The registration of Moana’s birth was made in Luganville.

She said she took information from the registration of Moana’s birth which indicated that Moana Willie, a female child was born on 10 November 1985 in Luganville. Moana’s birth was registered in Luganville on 6 December 1985. A copy of which was produced (see Exh. P2). Moana’s birth registration was entered into the central register book at Port-Vila on 6 February 1996. She identified and recognised a duly copy of the Extract shown to her and she recognises her signature on the document as being the issuing officer. She explained concisely the difference between birth registration book (and the extract as contained in evidence).

Under cross-examination, she confirmed that Moana Willie was born on 10 November 1985 as shown in the documents (Exh. P1 & P2).

She said the birth registration was made on the basis of information taken from the babies Medical (blue) Cards. She accepted that if an information was wrong in the birth certificate, she would not know. However, she pointed out that there are discrepancies but discrepancies exist only when the declarant gave the Civil Status Office, wrong information. But there is only 1 registration book for births for each year.

She said that in the case of Moana Willie, the declarant father and /or mother gave the right information and there was nothing wrong with the paper.

Under re-examination, she confirmed that if the information entered was wrong, she would not know. The declarants would notify her office in writing that there was a wrong information given and that a modification of the birth registration is necessary. She finally stressed that in the case of Moana Willie, there was no such notification to modify Moana’s birth registration therefore, she pointed out that there is nothing wrong with the birth registration of Moana.

The next prosecution witness was Dr. Thomas Sala Vurobaravu from Malo Island. He is a specialist doctor in obstetrics and gynaecology areas.

As an obstetric doctor, he deals with pregnant women from checking, labour to delivery stages. He is currently working at Vila Central Hospital department of obstetrics. He practised as a Doctor for 6 years now. He identified a Medical Report shown to him (Exh. P3) and recognises the signature as his. The patient is Moana Willie. The date was 13 October 1999 at 1.30pm. He said that his findings were that:

(1) There were bruising on Moana’s right side of her face, otherwise she has normal physical findings.

(2) Genitals were normal and there was evidence of previous penetrative sexual intercourse (swab taken). The result was that there were normal physical findings.

Under cross-examination, the witness confirmed that there was evidence of previous penetrative sexual intercourse. This means that upon examination, Moana was engaged previously in sexual intercourse before the alleged incident which is the subject of this case. But he could not say when it happened. He said, on his findings, Moana is not a virgin. The evidence of bruising on her right face is not conclusive of the alleged sexual assault.

The last prosecution witness was Police Constable Flora Songi who is attached to Police Investigation Section. She is from Pentecost and married to a man from Tongoa Island. She served as a police officer for 10 years.

Her evidence was that she was at the police station when the complainant lodged her complaint against the accused. She was the investigating officer in this matter.

Defendant Yoan Mariyasua was arrested on 20 October 1999. She said she told him he was arrested because there was a complaint that he had sexual intercourse with complainant Moana Willie. She cautioned him and questioned him and recorded his answers in a form for her own information. She said the Defendant admitted to her that he had sexual intercourse with the complainant, Moana Willie. She released him from Police custody and he was brought into an interview room in the presence of another police officer. After his release, Yoan was cautioned.

Under cross-examination, she confirmed her evidence in chief.

That is the end of the prosecution case. The defendant by counsel accepted that there is a case for the defence to answer. The defendant is called upon to put forward his defence.

2. Defence evidence

Before the defence began, section 88 of the Criminal Procedure Code Act (CAP 136) was read and explained to the defendant.

The defence called 4 witnesse>

The first defencefence witness is the defendant Yoan Mariyasua himself. The defendant is from Emau island, North Efate. He gave evidence to the effect that on 11 October 1999, he went to Alice Ati’s house and asked Moana Willie to go with him in his house to wash his clothes. The defendant lived at Melcoffee. He took Moana Willie in a car. They both arrived in his house, he opened the main door and walked in. Moana Willie followed him. He said he told Moana to wait in the sitting room while he would get his clothes from his bedroom. He said he opened his bedroom’s door and went in. Moana followed him in his bedroom. He said Moana came closed to him and hold his body. She put her hands around his body. He said she held his hands and put them on one of her breasts. He said he asked her twice how old she was. She told him she was 16 or 17 years. He also said that after she touched and held his body, she took of her clothes herself. She, then, pulled the Defendant’s trousers off.

He then said, there were 2 rooms in his house. One was facing the sea and the other room’s window was facing the main road and the Melanesian Furniture building. He said Moana told him that they would move to the room facing the Melanesian Furniture building. Once in the room, he said, Moana slept in one of the bed next to the window and pulled him into the bed. He said she held his penis and put it into her vagina. He also said she told him not to withdraw it and he had it remained in her vagina. He then heard shouting and knocking on the door.

He said his penis remained in the complainant’s vagina for five minutes. He said the door was locked so he could not hear any noises. So he then opened the main door leading to outside. He said he saw Michael Manses who talked to him and his mother Lewia Joseph. He did not see the police. He said, at that time, it was dark. There were no moonlights. They were asking for Moana, he said. He then asked them to come in. Michael Manses came inside his house. He said he sat in the sitting room. Michael went to the first room which is facing the sea and he then went to the second room the window of which is facing Melanesian Furniture. He said Michael Manses said: "Moana is under the bed." Michael then went outside. After others left his house, the defendant told Moana to leave. She asked him to drive her back to her mother’s house.

The defendant accepted that Moana hid under his bed but he said he did not ask her to do so and while she was under the bed, she did not answer the calls from outside. He then drove her back to her mother’s house.

Under cross-examination, the defendant said the incident happened on 11 October 1999. He accepted that when he went and got Moana into his car from her mother’s house, it was about 6.30 to 7 o’clock pm. So when he and Moana arrived at his house, it was already dark.

He has 2 bedrooms in his house. He said that Moana did initiate everything. She laid on the bed and he had sexual intercourse with her. He repeated he asked Moana about her age and she told him she was 16 or 17 years.

He confirmed that on 11 October 1999, he had sexual intercourse with Moana and she consented to have sexual intercourse with him.

The second defence witness was Thomas Faratia. He is the Assistant of Chief Noel Mariyasua. He got instructions from Chief Mariyasua to try to settle the matter between Moana’s parents in accordance with custom. They refused and wanted the Court to deal with the matter.

The third defence witness was Johnson Toa. He is from North West Malekula and works as Senior Education Officer (S.E.O). His evidence was to the effect that in mid-year 1997 he worked at Vila City College. He said he did establish a School Disciplinary Committee. He was the Chairperson of that Committee. He said in December 1998, the School Committee dealt with many cases involving pupils in the College and he recalled about a particular case which was for Moana Willie. He said the Committee heard Moana’s case which was due to downfall in her school results and her relationships with boyfriends. He said the role of the Committee is to hear cases and make recommendations to the school Principal for decision. In the case of Moana, he said, the Committee recommended that she would be suspended for 2 weeks. He also said that the school Principal did not take final decision on Moana’s case. Moana stopped attending the school. He said the Committee did not hear the reasons of her leaving school.

Under cross-examination, he said that the Committee had the report that Moana had outside relationships. He confirmed that the school Principal never took a decision on the basis of the school Committee’s recommendations.

The defence last witness was Jack Taseru. He is from Aniwa Island. He is a teacher at the Vila City College for 4 years since 1996. He gave evidence that Moana Willie was one of the students of the College in 1998. She left school due to school fees problems. There were outstanding fees. He said he did not know about any other reasons apart from Moana’ s school fees problems.

The Enrolment Form of Moana Willie was shown to him (Exh. D2). He recognised it and said that the date of birth of Moana was 10 November 1986. He said the information was given by Moana’s parents on 21 January 1998.

Under cross-examination, this witness said that he was not appointed as Acting Principal of the school in 1998 but he was Acting Principal of the Vila City College in 1999. He also gave evidence that the birth certificate was issued by the office of Civil Status and the school will accept the date of birth certificate issued by the Civil Status. He admitted that in the case of Moana Willie, there is no copy of her birth certificate issued and certified by the office of Civil Status in Moana’s school file and if there is one, then it should be in her school file but there is not.

That is the end of the defence case and indeed the close of evidence in this case.

V. DISCUSSION ONON ON THE EVIDENCE : CREDIBILITY OF WITNESSES & FINDINGS OF FACTS

1. Credibility of witnesses

I have listened, recorded and considered carefully the evidence and demeanour of each of the prosecution and defence witnesses in the witness box and I came to the following assessment in respect to each of all witnesses:

Mrs. Annie Ben is an ordinary mother and her evidence before this Court has some force before this Court. Moana Willie, the girl complainant appears to be a shy girl, she had difficulties in giving evidence in what she had gone through and it is understandable. She was confused about her age in 1997 and then she said she did not know about her age.

Although she was confused about her own age, she is a reliable witness and some credit should be taken in her favour in some part of her evidence. In respect to her age her evidence will be disregarded.

Witness Michael Manses is a powerful witness. There is force in his evidence.

Alice Ati is also a reliable witness. I have no reason to disbelieve her.

Witness Sylvie Taga is also a reliable witness and her evidence has lots of force before this Court.

The evidence of Thomas Sala Vurobaravu has some truth in it but there is no relevance to the factual dispute before this Court. The evidence of Police Constable Flora Songi may be also true but as to the age of the complainant which is in dispute between the prosecution and the defence, her evidence cannot assist the Court on that point.

The defendant, Yoan Mariyasua, elected to give evidence on his own behalf, he admitted he had sexual intercourse with the complainant Moana Willie. Credit should be given to him on that part of his evidence. As to the part of the evidence that the complainant told him that his was 16 or 17 years, I find it difficult to believe him.

The evidence of the defence witness Thomas Faratia is not relevant to the factual issue placed before this Court.

The evidence of witness Johnson Toa, although may be truthful, is not relevant to the factual issue (age of the complainant) before this Court.

Jack Taseru was the defence last witness. He is an ordinary man and a dedicated teacher but I have some difficulty in accepting his evidence as to the age of the complainant Moana Willie.

>2. Finding of faof facts

(a) Finding of facts not disputed

There is overwhelming evidence and it isdisputed that on 11 October 1999, the defendant, Yoan Mariyasua, came to Mrs. Alice Atce Ati’s house, took Moana Willie, the girl complainant in his car and had sexual intercourse with her in one of his bedrooms situated at Melcoffee area, Port-Vila, Efate.

[See evidence of the girl complainant, Moana Willie and the admission of the defendant in Court. This is further support by the evidence of witness Police Constable Flora Songi. On 11 October 1999, after 8 o’clock pm, witness Michael Manses, did identified Moana Willie in Yoan Mariyasua’s bedroom. She was under Yoan’s bed].

As Mr. Taseru’s evidence shows, he performed the duties and responsibilities as Acting Principal of the Vila City College in 1999. He did not act as Acting Principal of that College in 1998 and this is not disputed.

There is evidence from witness Johnson Toa that in 1998, the school disciplinary Committee held a disciplinary hearing in respect to the then student Moana Willie at Vila City College which is not disputed. As such in 1998, Moana Willie, was a student at Vila City College .This is confirmed by the evidence of the girl complainant .

It is not disputed that an enrolment form was issued in support to the then student Moana Willie.

It is also conceded that the Office of Civil Status keeps, among other thing, birth registrations book and issued extract of birth certificate when requested by interested persons or on their behalf (parents for children) for school registration or otherwise.

It is also conceded by Jack Taseru that a duly sealed copy of the birth certificate of Moana should be attached to the Enrolment Form of Moana Willie in her file at the Vila City College. But in this case, there is no such birth certificate of Moana Willie in her school file.

(b) Fi of fact facts disputed

The disputed fact between the prosecution and the defence is about the age of the complainant at the time of the sexual intercourse, that is, on 11 Oct1999.

The evid evidence for the prosecution is that the girl complainant, Moana Willie, was born on 10^th November 1985 at Luganville Hospital - Santo at 13.39 hours. Her father is Willie Anslo and her mother is Diana William Tangata. At that time the complainant and her parents lived at Side-River in Luganville – Santo. Prosecution witness Sylvie Taga gave evidence to this effect by identifying her signature on the complainant’s extract of birth registration which she had issued on 6 February 1996 (Exh. P1). She said she took the information from the registration of birth of the complainant Moana Willie, which is now kept by the office of Civil Status in Port-Vila (Exh. P2).

The Civil Status Officer, Mrs. Sylvie Taga, issued the complainant’s birth extract (Exh. P1) as part of her official duty in the normal course of the business of the office of the Civil Status. I have regard to all the circumstances from which any inference or existence of the facts stated and there is no incentive for the Civil Status Officer to conceal or misrepresent the facts. As she testified under cross-examination, there could be discrepancies in 5 out of 10 situations. However, she stressed that the mistakes could come from the parents at the time of birth registration of children. And such mistakes or errors will be rectified at the request of the parents/declarants who will notify the office of Civil Status for modification of the birth registration of a child.

But, as she emphasised, in the case of the complainant, Moana Willie, there is nothing wrong with her birth registration because her office did not receive any notification from the complainant’s parents to rectify Moana’s birth registration.

I find as a matter of fact that the date of birth of the complainant Moana Willie, was 10 November 1985 as contained in the extract of her birth registration (Exh. P1) which was taken from her birth registration (Exh. P2) kept in the office of the Civil Status in Port-Vila. The extract of Moana’s birth registration (Exh. P1) and her birth registration (Exh. P2) are both issued from the public documents of the office of the Civil Status and can be inspected by members of the public.

I find also that there is evidence that the girl complainant had always been treated as being the female child mentioned in the Extract of Birth (Exh. P1) and the Birth Registration (Exh. P2).

The defence evidence is that Moana Willie was a student of the Vila City College in 1998 and the complainant’s enrolment form at the Vila City College indicated that Moana Willie was born on 10^th November 1986. (Exh. D2 – Evidence of Jack Taseru).

The enrolment form (Exh. D2) produced by the defence, is a copy of an enrolment form. There is no information as to who or which institution issued it. Further the document is admitted in Court on the basis that it was made but not in respect to the truth of its content.

It appears from the document that it was issued in 1998. Jack Taseru gave evidence that he was the Acting Principal in 1999 but not in 1998. Further there is no seal nor signature of the Principal or Acting Principal of the school on the document showing that it is an official document of that school.

Further as testified by defence witness Taseru, a duly certified copy of the extract of birth registration of the complainant, from the office of Civil Status should be attached to the complainant’s enrolment form.

But as witness Taseru admitted, there is no copy of the complainant’s extract of birth registration in the complainant’s file at the Vila City College.

I, therefore, find that the defence document (Exh. D2) is of no value and is, thus, rejected as evidence in this case.

VI. SUBMISSIONS

I will concentrate only on arguments about factual issues and leave aside submissions made on agreed ortted facts.

The prosecution submits that at the end of its case, the defence dice did not make a "no case" submission, therefore, the prosecution says the defence has totally accepted the birth extract and birth register produced by Mrs. Sylvie Taga of the Office of Civil Status as evidence of the age of Moana.

The prosecution submission has no basis and is, thus, rejected for the following reasons . It is important for counsel to make a distinction between a "no case" submission and admission of evidence by the defence. The fact that the defence did not make a submission of "no case" to answer does not amount to an admission of the prosecution evidence on a disputed fact. There is no need for me to dwell on the test to be applied on "no case" submission as opposed to an admission of the evidence by the defence. It is simply enough for me to say that there is no statutory requirement on the defence at the close of the prosecution case in all the cases to make a "no case" submission. It is for the defence counsel to exercise his own practical judgment on case to case basis so that if he is of the view that the prosecution evidence is not enough to require the defence to put forward his defence to make a submission of "no case" to answer.

The defence submits that there is considerable doubt which the prosecution has not removed as to the age of the complainant. The defence, firstly, relies on the evidence of the girl complainant to the effect that she did not know about her age at the time of the sexual intercourse with the defendant. This argument is not very helpful for the defence.

The defence, secondly, relied on the evidence of Mrs. Sylvie Taga that out of 10 registrations of birth, 5 registrations are wrong.

This part of the evidence is the general impression of the witness. It needs to be assessed with the other part of this witness’s evidence.

Mrs. Sylvie Taga’s evidence was also that the office of Civil Status will become aware of the mistake only if the declarants/parents notify the Civil Status about the mistakes/error for rectification of the register. Further, she said that as far as Moana Willie’s birth registration is concerned, the office of Civil Status did not receive any notification from the parents of the girl complainant about any mistake warranting rectification of Moana’s birth registration. She also said that there is nothing wrong with Moana Willie’s birth registration.

The defence, thirdly, relied on the defendant’s evidence to the effect that Moana Willie told him on 11 October 1999 before they had sexual intercourse that she was 16 or 17 year old. This is not a defence in this case.

The defence, lastly, relied on the evidence of Jack Taseru as Exhibited in D1 and D2. This evidence was rejected by the Court.

The defence submitted further that none of the prosecution witnesses was able to tell exactly how old the complainant is. The defence said, the only people who could have dispelled the doubt are the natural parents of Moana Willie, Anslo Willie and Diana William. The defence said that the prosecution fails to call them. The defence relying on Jones v. Dunkel [1959] HCA 8; (1959) 101 CLR 298, said that only the natural parents of the complainant if called by the prosecution could have cleared the doubt as to the age of the complainant.

There is no need to call the parents where there is strong evidence from the office of the Civil Status, as to the date of birth of the complainant which is undisturbed.

VII. DION OION OF THE LAW

It must be remembered that the prosecution is not required to disprove any inference that the ingenuity of counsel might device .The prosecution must ex any reasonable hypothypothesis based on the evidence which is consistent with innocence but not more. R. v Longalis (1993) 10 LRNZ 350 at p. 359.

Section 8 of the Penal Code Act (CAP 135) indicates proof beyond reasonable doubt but states that "the determination of proof beyond reasonable doubt shall exclude consideration of any possibility which is merely fanciful or frivolous".

VIII. APPLICATIOCATION OF LAW TO THE FACTS

The accused Yoan Mariyasua, was charged with the offence of Unlawful Sexual Intercourse with a girl under the age of 15s but of or over the age ofge of 13 years, contrary to section 97(2) of the Penal Code Act [CAP 135].

For the defendant, Yoan Mariyasua, to be found guilty as charged, the prosecution must prove the essential elements which I set out below:

1. That the accused, Yoan Mariyasua, had sexual intercourse with the girl complainant, Moana Willie on 11 October 1999.

2. That Moana Willie was under the age of 15 years but of or over the age of 13 years on 11 October 1999.

I now deal with each essential element of the offence as charged.

1. First element of the offence

In respect to the first element of the offence of Unlawful Sexual Intercourse, both complainant, Moana Willie and the dant, Yoan Mariyasua, testified that they had sexual inal intercourse on 11 October 1999 in the defendant’s bedroom in the evening of that day. The sexual intercourse is not disputed.

I am satisfied beyond reasonable doubt that this element has been proved on the required standard.

2. Secondenlement of the offence

There is evidence from the prosecution that the date of birth of the girl complainant was 10 November 1985. (Exh& P2)

Although the defence attempted toed to disprove the date of birth of the complainant as shown in documents (Exh. P1 & P2) the defence documentary evidence (Exh. D2) is inadmissible and therefore rejected. The reasons being as follows:

The evidence of the defence Jack Taseru shows that there is an Enrolment Form of the girl complainant at the Vila City College in 1998, indicating that the date of birth of Moana Willie was 10 of November 1986, however, his evidence shows also the followings:

(a) There is no birth extract from Civil Status in the school records to confirm this date.

(b) That in his understanding every pupils attending the Vila City College need birth certificate or extract from the Civil Status office.

(c) That there is no copy of the birth certificate of Moana Willie in the school file.

(d) There is no evidence from the defence to confirm whether the signature on the declaration is that of either parent.

(e) The Enrolment Form was not filled by himself (the witness).

(f) The Enrolment Form shown in Exhibit D2 has the Vila City College letterhead, but it does not have the College stamp on it.

For these reasons, the document Exhibit D2 is inadmissible and thus rejected.

Section 97(2) of the Penal Code sanctions the sexual intercourse with any girl under 15 years. The prohibition covers the girls of 13 years or over 13 years but under 15 years at the time of the intercourse.

Therefore, even if the defence document Exh. D2 is admissible, then the date of 10 November 1986 which was inserted in the said Enrolment Form still falls within section 97(2) of the Penal Code Act (CAP 135).

In this case, the duly certified extract of birth of the complainant (Exh. P1) and her duly certified copy of birth registration (Exh. P2), are sufficient evidence that the child therein referred to was born on the date stated, that is, on 10 November 1985.

Further there was also evidence, and it is not disputed that the girl complainant Moana Willie had always been treated as being the girl mentioned in the Extract of Births and the Birth Registration (Exh. P1 & P2).

I am therefore satisfied beyond reasonable doubt that this element is made out on the standard required.

I, accordingly, believe that the evidence taken as a whole compels the finding that I now make.

That I can be satisfied beyond reasonable doubt that, the defendant Yoan Mariyasua, had sexual intercourse with the girl complainant, Moana Willie, on 11 October 1999, and at that time she was under 15 years but of or over 13 years, contrary to section 97(2) of the Penal Code Act [CAP 135].

VIII. VERDICT

I find the defendant, Yoan Mariyasua, guilty of the offence as charged.

DATED AT PIRT-VILA, this 14^th DAY of MARCH 2000

VINCENT LUNABEK J
Chief Justice (Acting)