Public Prosecutor v August [2000] VUSC 72; Criminal Case No 014 of 2000 (27 November 2000)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

Criminal Jurisdiction
CRIMINAL CASE No. 14 OF 2000

PUBLIC PROSECUTOR

-v-

ALI AUGUST

Corampan>Justice Vincent Lunabek, Acting Chief Justice

Ms Kayleen Tavoa for the Public Prosecutor
Mr. Hillary Toa for the Defendant

JUDGMENT

Introduction

This is the judgment of the Court in this criminal trial. The trial took place at Port-Vila and the proceedings were conducted in Bislama. The judgment is written in English.

The defendant is Ali August. He is from the island of Tanna and Malekula and lives in Port-Vila at the airport area (closed to Switi Ice Cream). He was committed to this Court, charged with the offence of rape, contrary to section 91 of the Penal Code Act [CAP 135]. The charge is particularised as follows:

That on or about early 28 July 2000, at the Airport area, he raped a woman, Edna Samson, that is, he had sexual intercourse with her without her consent.

The defendant pleaded “not guilty” to the offence as charged. The plea was noted and the trial proceeded on that basis.

Before the trial began, Section 81 of the Criminal Procedure Code [CAP 136] was read out and explained to the accused.

This is a criminal trial and as in every criminal trial, it is for the prosecution who brings the charge(s) to prove it (or them). There is no burden on the defence whatsoever. The law is that the prosecution must prove each and all essential elements of the offence charged against the accused beyond reasonable doubt. If at the end of the day, 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.

Section 91 of the Penal Code Act [CAP 135] provides:

“No person shall commit rape.

Penalty: Imprisonment for life”.

The offence of rape is defined as follows:

Section 90 of the Penal Code says:

“Any person who has sexual intercourse with a woman or a girl without her consent, or with the 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 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.”

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

1. That the accused, Ali August had sexual intercourse with the victim complainant on the early hours of the 28^th July 2000 at the Airport area.

2. That the woman complainant did not consent to have sexual intercourse with the defendant on the early hours of the 28^th July 2000 or that her consent was 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.

3. That the offence of rape is complete upon penetration.

In this trial, the prosecution and the defence agree and it is not disputed that the defendant, Ali August had sexual intercourse with Edna Samson on the early morning of 28^th July 2000 as alleged.

The only point of dispute before the Court in this trial is the issue of consent.

The prosecution say that on the early hours of the 28^th July 2000, the victim/complainant, Edna Samson did not consent to have sexual intercourse with the defendant Ali August.

The defence contended that at the early hours of 28^th July 2000, the defendant, Ali August consented to have sexual intercourse with the complainant. The defence say that the consent of the complainant can be understood from the conduct of the complainant herself at that time and also from the previous sexual relationships between the complainant and the defendant.

Summary of the evidence

The prosecution called 3 witnesses: the complainant, Edna Samson, Police Officer and Doctor Thomas Vurobaravu.

Edna Samson gave evidence to this effect. She is 28 years of age. She works as a house girl of a Michel Furet at the Airport area. The defendant lived in the same area with the complainant. She said Ali forced her to have sexual intercourse on 28^th July 2000. He forced her to have sexual intercourse and she did not consent to it.

On Friday 28^th July 2000 in the early hours, she met the defendant at the sea front, in Port-Vila, during the independence celebrations. Ali August asked her 100 Vatu. She gave it to him. She told Ali that she would go home and she asked Ali to accompany her because she could not find her friends.

Then Ali went to join his friends and drunk kava. She looked for Metas and she found her with her auntie. Metas is the girl who shares the room with the complainant at the Airport area.

Metas' parents also work on the same area.

She called Metas. Metas came with another girl. They were ready to come home with Edna. She said she took a bus with Ali, Metas, a girl and her mother to Agriculture Station. The girl and her mother went to Agriculture Station. The bus dropped the complainant, Metas and Ali at the Switi Ice Cream (Airport area). They all lived in the same area. They walked together passed the plantation in the main road, then there was a junction. She and Metas follow the junction to their home and the defendant, Ali, follow the other junction to his house.

She said when she got in her house with Metas, she tried to light the candle and she heard knocking on the door. She opened the door and saw the defendant, Ali August, at the door. Ali told her if he could come in waiting for the rain to stop. They talked and Metas was laying on a mat. She felt asleep.

The rain had stopped. She wanted to sleep. Ali told her to accompany him to the gate of the house.

She knew very well Ali August. Ali held the complaint’s T-shirt by her neck, and pushed her to go outside. She followed him. She did not make anything or even say anything.

She said they moved – walked outside on same level. She told Ali to go. Then he held her and tried to undress her. She tried to resist but she said Ali is a man. He is powerful.

He stood by her back, bent her and had sex with her by holding her belly. She said although he penetrated her by her vagina, she did not consent to it.

She struggled to get away from the defendant. She did not shout, but she wanted to get away from him. They had sex for about 15 minutes then she said she struggled and then got away from him.

She said the defendant had sex with her on previous occasion. This is the third occasion but she did not complain to the police. She forgave him. After the incident, she came home and went to bed. Then she felt her head and eyes were darkened. She saw lots of blood from her private part. She tried to stop the blood but she could not. She washed her head but her eyes were darkened and the bleeding could not stop. She spent 4 days in the hospital.

She was cross-examined, she admitted when the incident occurred, there were houses and people around. Twelve people lived in the same house as the complainant. She also said that the proper way for a man and woman to have sex is in a house. She said the sex took place one (1) meter from the gate.

When she removed herself from the defendant, she did not pass over the gate but she went through the fences.

She also said when the accused had sex with her, she saw a torch light from the house next to hers. She accepted that at that time, she thought that if the neighbours knew about this, she and the defendant would be disciplined.

She said she knew Ali has a wife. She had sexual intercourse with the defendant on previous occasions. The defendant had sexual intercourse with her for the first time when she was already teaching Sunday School and Ali has already a wife.

On the previous occasions, when they had sex, Pastors of their Church did never discipline her because they did not know. But she said the Pastors knew on the third occasion when she was admitted in the hospital. She was concerned about her life. So she said she complained to the police to stop Ali continue to do in what he did to her.

She further said that she complained against Ali because he took her by her back and she lost lots of blood. She had only one life.

She said Ali caused her bleeding. She pointed out that if Ali had sex with her in the normal way it may be alright. But he had sex with her by her back as if she was an animal. This is like by force. She added that on 28^th July 2000, she did not consent to what Ali did to her when she saw the torch light, she run away.

Under re-examination, she said the defendant did not ask her to have sex and hold her by the back. She confirmed, she saw the torch light after the sex occurred for sometime and she tried to get away from the accused. She finally said on 28^th July 2000, she did not consent.

Mrs. Merelyn George is the second prosecution witness. She is a Sergeant Police Officer. She went to hospital on 29^th July 2000 and saw Edna Samson who was just admitted there. Edna told her that a man forced her and had sex with her. She took a statement from the complainant at the hospital. She confirms in substantive part, the evidence of the complainant/victim.

On 1^st August 2000, she interviewed the defendant and got a statement from him after cautioned him. This was done on the basis of the report/statement she got from the complainant/victim. The defendant confirmed the content of the victim told her were true.

The third and last prosecution witness is Doctor Thomas Vurobararu. He made an examination on the victim complainant on 28^th July 2000 in the afternoon. He made a medical report and his findings were to the effect that, at the time:

1) the patient looked generally weak. She complained of abdominal pains, dizzy and vaginal bleeding;

2) as to the patient’s genitalia, she had 2 cm laceration on posterior formix (right). The Doctor reached the conclusions that the patient sustained trauma to her genital.

This is an indication that the laceration can be the result of a forceful sexual intercourse or the use of material such as stick – broom stick.

Under cross-examination, the Doctor confirmed that the patient was actually bleeding according to the tear. This was not the patient’s menstruation. The Doctor also accepted that the laceration could be the result of a strong movement of the complainant apart from the forceful sexual intercourse.

The Defence’s evidence

Ali August is from Tanna and Malekula. He is 22 years of age. He lived with a woman and have 3 children. He works at a Farm at the Airport area. (Michel Furet is his employer).

On 27 July 2000, he was at sea front with his friends. They drank kava at the independence celebrations. He went with the complainant, Edna Samson and others at the sea front, Vila. He asked 100 Vatu to Edna and she gave it to him. She asked him 3 times if he could accompany her to her house. He accepted. He took a bus with Edna, Metas, another girl and her mother. There is no dispute. This confirmed what the complainant said.

On the early hours of the 28^th July 2000, when Metas felt deeply asleep on the mat in the main room, he came outside the house with Edna. The defendant said they come outside because when they were inside, he wanted to have sex with Edna. This is not the first time he had sex with her. He also said he had that thought when it started to rain.

He said he did not know whether Edna knew that he wanted to have sex with her. He added that Edna did not even know that he wanted to have sex with her. He held her hands to go outside the house. They went pass over the gate. He could not remember what Edna said at that time. Two metres after the gate, he said he took off Edna’s clothes. They had sex about 5 to 6 minutes, they saw a torch light and suddenly, Edna got out of him and run away with her clothes. She did not pas over the gate. She went through the fence.

He added, when he took off Edna’s cloth, she did not move. She was quiet. He assisted Edna to bend. He held her by her back. She did not say anything when they started to have sex. It was when they saw the torch light that Edna ran away. He said Edna told him, there was a torch light and she ran away.

He was not aware that Edna go admitted to the hospital. He did not know that she had cut on her body and she was bleeding.

He confirmed that the Police Officer took his statement by reading to him the report statement of the complainant, Edna.

Under cross-examination he said he did not ask Edna to have sex. He said he was hanging on her. He accepted that when Edna did not say anything nor push him out, he thought, Edna consented to have sex with him.

He confirmed that police read Edna’s statement to him and wrote down what he said when he said he forced Edna to have sex.

Consideration of the evidence

Upon considering all the evidence together, I come to the conclusion that the complainant, Edna did not consent to have sexual intercourse with the defendant on 28^th July 2000.

I am satisfied beyond reasonable doubt that the defendant, Ali August, had sexual intercourse with the complainant Edna Samson on 28^th July 2000 and that she had not consented to sexual intercourse.

VERDICT

I find the defendant, Ali August, guilty of the offence of rape contrary to Section 91 of the Penal Code Act [CAP 135].

DATED at PORT-VILA, this 27^th DAY of NOVEMBER, 2000

BY THE COURT

Vincent LUNABEK J
Acting Chief Justice