IN THE SUPREME
COURT OF
THE REPUBLIC OF
VANUATU
(Criminal
Jurisdiction)
CRIMINAL CASE No.16
OF 2001.
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PUBLIC PROSECUTOR
-v-
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ORIS ORISSON
Coram: Chief ce
Lunabek
Mr. Less J. Napuaty
for the Public Prosecutor
Messrs. Nigel
Morrison and Jennifer La’au for the Defendant
Date of trial: 7, 8
and 13 August 2001.
Date of Judgment: 29
August 2001.
ORAL JUD
This is the judgment
of the Court in this criminal trial. The trial took place at Port Vila and
the proceedings were conducted
mostly in Bislama and English (for some
point). The judgment is written in English.
The defendant is
Oris Orisson from Malekula island and lives in Port Vila. The defendant is
the Manager of the Cooperative
Federation and is the employer of the
complainant, prosecutrix.
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The defendant was committed to
the Supreme Court and was charged with two (2) coun counts of rape, contrary to
Section
91 of the Penal Code Act [CAP. 135].
The particulars of the charges
arespan>
¨ &&nsp;;&nspp;&nssp; &nbp;
sspan lang="ang="EN-GB" style="font-size: 12.0pt">That on or about
24 April 2001, in the cold room o Airpt Pora, the defendant
used his cap to for thns Emma Nelsonelson to s to sack hack her frer from heom her jobr job
if she did not have sexual
intercourse with you.
¨ &&nsp;;&nspp;&nssp; &nbp;
sspan lang="ang="EN-GB" style="font-size: 12.0pt">That on or about
22001, rentuse aen Arort Vthe defendant use
his capacitforce/threaten
Emma Nelson to s to sack hack her frer from heom her jobr job if s if she
he
did not have sexual intercourse with you.
The defendant pleaded “not
guilty” to both counts. The pwere noted and the trial pral proceeded on
that basis taking into account of the rights of the accused
under Section 81
of the Criminal Procedure Code (C. P. C) [CAP. 136].
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This is a criminal trial a
in every criminal trial, it is for the prosecution wion who brings the charge to
prove it.
There is no burden on the defence whatsoever. The law is that the
prosecution must prove each and essential elements of the
offence charges
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 doubt and be acquitted.
The offence of rape is defined
by Section 90 of the Penal Code as follows:-
“Any person who has sexual
intercourse with a woman oran 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:-
In Count 1
">
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1. &nbssp; &nbssp; &nbp; &nbs;
s the accused, Oed, Oris Orisson had sexual intercourse with the
complainant/prosecutrix on 24 April 2001 at the cold room of
the Airport, at
Port Vila.
clasoNormtyle="text-align:lign: just justify; ify; text-indent: -34.9pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1">
2. &nsp; & p;&nbp; &nsp; &&nbp;;&nbpp; &nnsp;
p;
Thet thseconsent of the complainant/prosecutrix was obtained by:-
nbsp;
(a) &nnbsp; &nnbsp; &nbp; &nbp; &n p;
force; or
(b)">(b) &&nsp;;&nspp;&nssp; &nbp;
1">
(c) ;&nspp;&nssp; p; &nbp; &nbp; intimid tion of anyf any kind; or
(d)">(d) &nbssp;&nnbsp;&nsp; &nsp; &nbssp; &&nsp;;&nsp; &nbp;
of r dily harm harm; or
class="MsoNormal" style="text-align: justify; text-indent: -34.9pt; margin-left: eft: 105.8105.8pt; margin-top: 1; margin-bottom:
1">
(pt">(e) ; &nnsp;&&nsp;;&nbp; &nbp; &nnbp;&
means of falsefalse representation as to the nature of the act.
p>
clasoNormtyle=-aligstify; text-indent: -34.9pt; margimargin-left: 70.9pt; margin-top: 1; marginargin-bott-bottom: 1om: 1">
">
3. &nnsp;&&nsp;;&nspp;&nssp;&nsp; p;
s That that the defendant know that the complainant did not consent to
sexual intercourse on 24th April 2001 at the cold room at the
Airport, Port Vila, or the dant wckless (defe(defendantndant had had been
in different
to the feeling and wishes of the complainant) as to whether she
consented.
In Count 2
1. style="font:7.0pt "Tiot;Times New Roman""> &nbssp;&nnbsp;&nsp; &nsp; &nbssp; &&nsp;;&nsp; &nbp;
thet ccused, Oed, Oris Orisson had sexual intercourse with the
complainant/prosecutrix May 2t a r house at Ohlen, Por Vi/span>
>
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2. ;&nspp;&nssp; p; &nbp; &nbp; That ths consent ofnt of the complainant/prosecutrix was obtained by:-
&pt"> nbsp;
(a) &nbbsp;&&nsp;;&nsp; &nsp; &nnbp;& &n foan>force; oce; or
(b)">(b) &nbssp;&nnbsp;&nsp; &nsp; &nbssp; &&nsp;;&nsp; &nbp;
ofnshreats; ots; or <
(c)(c) &nbbsp; &nbbsp; &nbp; &nbp; &nb p;
/span>intimidation tion of any kind; or
0pt">(d) & p; &nsp; &nsp; ;&nbpp; &nnsp;&&nsp;
p;
fe r oflyodily harm; or
(e) &nnbsp; &nnbsp; &nbp; &nbp; &n p;
means of fals false representation as to there ofact. n>
p>
clasoNormtyle="text-align: justify; marg margin-toin-top: 1;p: 1;
marg margin-boin-bottom:ttom: 1">
1">
3. & p;&nssp;&nsp; &nsp; ;&nbpp; &nnsp;&&nsp;
That thendefendant knew that:
p clasoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">: 1">
classNormal"rmal" style="tee="text-align: justify; text-indent: -34.9pt; margin-left: 105.8pt; margin-top: 1; margin-bottom:
1">
n lang="EN-GB" style="font-size: 12.0pt">(a) &&nsp;;&nspp;&nssp; &nbp;
(b) &nnsp;&&nsp;;&nspp;&nssp;&nsp;
an>op that the defendafendant was reckless (he had been indifferent to the
feelings
and wishes of the complainant) as to whether she consented.
The trssues before this
Court are:-
&bsp; ;&nbssp;&nbp; &nsp; ;&nbpp; &nnsp;&
sp;
than>the manner by which consent was obtained; and
pan lEN-GB" style="font-font-size:size: 12.0 12.0pt">&pt"> nbsp;
(b) p;&nbbsp;&nsp; &nsp; p; &nnsp;&
sp;
ifan>if so, whether the defendant knew that the complainant was to
consenting to sexual intercourse on 24tp> Ap001 aMay
2001.an>
The prosecution case is that
the complainant Emma Nelson was by the defendant Oris Oris Orisson on two
different occasions,
firstly at the Airport in the cold room on the 24th
April 2001, and secondly, at Ohlen area, Port Vila, in a rented house on the
2nd of May 2001. The prosecution says that the prosecution has
proved its case beyond reasonable doubt on the two different occasions
(24
April 2001 and 2 May 2001) that the complainant’s consent was obtained by
the accused from the prosecutrix by means
of “threat or intimidation of
any kind”, namely that the prosecutrix would loose her job, if she did
not have sexual intercourse with the accused/defendant.
The defence case is that the
Court c be satisfied beyond reasonable doubt that the threats were were of
such a nature
which would initiate the consent to rape. Further, the mind of
the victim just prior to sex should be considered by the judge
of fact. The
defence say that in this case, there is simply no evidence upon which the
Court can be satisfied beyond
reasonable doubt that the defendant knew that
the complainant was not consenting to sexual intercourse.
Summary of evidence
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Prosecution
(provided in Court)
Defence
(provided in Court)
Discussion on the
evidence
It is common ground that the
defendant amplainant had had a consensnsensual sexual relationship for
several years.
Exed orally in Court.
Law
1) &nnsp;&&nsp;;&nspp;&nssp;&nsp;
an>Rpcent complaint innt in how reference to submissions
& p; &nsp; &nsp; ;&nbpp; &nnsp;&&nsp;
Law of corroboration warning (see corroboration in … Judgt.)
4 style=tyle="margin-top: 1; margin-bottom: 1">
Application of law
Section 90 of the Penal Code
provides for consent obtained by “free or mear means of threats; or
intimidation of any kind, or …” is wide enough to cover threats other
than threats of bodily harm, such as public humiliation, blackmail or
substantial
economic harm.
1.&n;"> &
Sexual
intercourse of 24th April 2001
Upon considerll the
evidence together, I have some doubt as to wheo when exactly the threats or
intimidation by the defendant
occurs. The evidence for the complainant is
tot his effect, “from we hemi stap talem oltaem se you wantem work or you
no wantem work.” The prosecution fails to prove that on 24 April 2001
when the complainant was reluctant to have sexual intercourse, then,
the
defendant intimidated her saying “you wantem work or you no wantem wok”.
This doubt is further … by the
fact that, although, the complainant denies that there was no sexual
intercourse with the
defendant on 14 April 2001 as the defence says, the
defendant testifies to this effect and he was not cross-examined on this
in
the trial by the prosecution. This leads to a reasonable doubt in the
benefit of the defendant.
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The charge be dismissed against
the defendant.
p class="MsoNoMsoNormal" style="text-align: justify; text-indent: -18.0pt; margin-left: 18.0pt; margin-top: 1; margin-bottom: 1">
2. &n Sexual
intercourse of 2 May 2001
1. & p;&nssp;&nsp; &nsp; ;&nbpp; &nnsp;&&nsp;
Find thas consent of complainant was obtained by “threats or
intimidation of any kind”, namely that the prosecutrix would loose he joshe dt consent to sexual inal intercotercourse with the defendant on 2 May
2001.
2. &nnbsp;; &nsp; &nsp; &&nbp;; &nnsp;&
p;
No evidence by prosecution that the defendant knows that thtim
perso not nt toon 2 001 fails to prhis.
Conclusion: &nbbsp; Verdipardipan>
&
Count 1: &nnsp;& Nsp;Guit y
Dated at Port Vilis 31st
day of August 2001.
>
Vincent LUNABEK
Chief Justice
