Public Prosecutor v Orisson [2001] VUSC 98; Criminal Case No 016 of 2001 (31 August 2001)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Criminal Jurisdiction)

CRIMINAL CASE No.16 OF 2001.

PUBLIC PROSECUTOR

-v-

ORIS ORISSON

Coram: Chief Justice 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 JUDGMENT

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.

The defendant was committed to the Supreme Court and was charged with two (2) counts of rape, contrary to Section 91 of the Penal Code Act [CAP. 135].

The particulars of the charges are:-

¨ That on or about 24 April 2001, in the cold room of the Airport at Port Vila, the defendant used his capacity to force or threatens Emma Nelson to sack her from her job if she did not have sexual intercourse with you.

¨ That on or about 2 May 2001, in a rented house at Ohlen Area, Port Vila, the defendant use his capacity to force/threaten Emma Nelson to sack her from her job if she did not have sexual intercourse with you.

The defendant pleaded “not guilty” to both counts. The pleas were noted and the trial 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].

This is a criminal trial and as in every criminal trial, it is for the prosecution 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 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

1. That the accused, Oris Orisson had sexual intercourse with the complainant/prosecutrix on 24 April 2001 at the cold room of the Airport, at Port Vila.

2. That the consent of the complainant/prosecutrix was obtained by:-

(a) force; or

(b) means of threats; or

(c) intimidation of any kind; or

(d) fear of bodily harm; or

(e) means of false representation as to the nature of the act.

3. That the defendant know that the complainant did not consent to sexual intercourse on 24^th April 2001 at the cold room at the Airport, Port Vila, or that the defendant was reckless (defendant had been in different to the feeling and wishes of the complainant) as to whether she consented.

In Count 2

1. That the accused, Oris Orisson had sexual intercourse with the complainant/prosecutrix on 2 May 2001 at a rented house at Ohlen Area, Port Vila.

2. That the consent of the complainant/prosecutrix was obtained by:-

(a) force; or

(b) means of threats; or

(c) intimidation of any kind; or

(d) fear of bodily harm; or

(e) means of false representation as to the nature of the act.

3. That the defendant knew that:

(a) the complainant did not consent to sexual intercourse with him on 2 May 2001 at Ohlen Area, Port Vila; or

(b) or that the defendant was reckless (he had been indifferent to the feelings and wishes of the complainant) as to whether she consented.

The trial issues before this Court are:-

(a) the manner by which consent was obtained; and

(b) if so, whether the defendant knew that the complainant was to consenting to sexual intercourse on 24^th April 2001 and 2 May 2001.

The prosecution case is that the complainant Emma Nelson was raped by the defendant Oris Orisson on two different occasions, firstly at the Airport in the cold room on the 24^th April 2001, and secondly, at Ohlen area, Port Vila, in a rented house on the 2^nd 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 cannot be satisfied beyond reasonable doubt that the threats 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

Prosecution (provided in Court)

Defence (provided in Court)

Discussion on the evidence

It is common ground that the defendant and complainant had had a consensual sexual relationship for several years.

Explained orally in Court.

Law

1) Recent complaint in how reference to submissions

2) Law of corroboration warning (see corroboration in … Judgt.)

Application of law

Section 90 of the Penal Code provides for consent obtained by “free or 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. Sexual intercourse of 24^th April 2001

Upon considering all the evidence together, I have some doubt as to 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.

The charge be dismissed against the defendant.

2. Sexual intercourse of 2 May 2001

1. Find that consent of complainant was obtained by “threats or intimidation of any kind”, namely that the prosecutrix would loose her job if she did not consent to sexual intercourse with the defendant on 2 May 2001.

2. No evidence by prosecution that the defendant knows that the victim person did not consent to sex on 2 May 2001 fails to prove this.

Conclusion: Verdict

Count 1: Not Guilty

Count 2: Not Guilty

Dated at Port Vila, this 31^st day of August 2001.

BY THE COURT

Vincent LUNABEK

Chief Justice