Public Prosecutor v Firiam [2002] VUSC 3; Criminal Case No 032 of 2001 (9 February 2002)

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IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

HELD AT PORT VILA

(Criminal Jurisdiction)

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Criminal Case No. 32 of 2001<

PUBLIC PROSECUTOR

-v-

JUDGMENT

ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The defendant isged with rape. There is no dispute that sexual intercourse took place. Has the prosecution proved beyond reasonable doubt that the complainant did not consent ?

The complainant’dence is this. She says in October 2001 she was 21 ye21 years old. She was religious, did not have a boy friend or go to bars or nightclubs. She had had a boyfriend in 1999. They had tried having sex together but she had found it too painful. She said she was a virgin. She says she knew the defendant, but not well having only seen him a few times in the preceding years. At one time he had offered to help her.

On 11^th October she was walking home from helege when the defendant drove past in a car, stopped pped and offered her a lift. There was another man in the front passenger seat. The defendant said he would drive her home. She told him she lived in Melcoffee and got in the back. She did not wish to be his friend as he was older than her and she thought he would have a wife and children.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The defendant t drive to Melcoffee. He went past USP and out along Number 2 Lagoon. When she asked sked why, he replied he was dropping the boy first, referring to the man in the front seat.

She said “I didn’t feel safe. My heart started beatinthought to jump out of the car but he said he'd drop drop the boy first. They talked in language, the boy just smiled at me”.

They drove out to Teouma. The boy was dropped. The defendant said the boy was staying with his uncle. He invited the complainant to sit in the front, but she declined. He said he was going to see two friends.

The defendant did note back into town. He said he was going to a friend’s house. He said then he’d g go back to town. It was the first time she had been in the area. She kept asking where his friends were, and thinking about jumping from the car. They passed through a gate which was opened by a man, the witness Rony Wisyl. She realised the road was going into the bush and kept asking “where is your friend’s house” and he would reply ‘over there’.

She was now frightened and jumped o the car. She sustained a small cut to the outer aspect of t of her lower right arm. She hurt her right leg as well. The defendant stopped the car a short way ahead. It wasn’t going fast. He reversed the car, got out and urinated.

She shouted “Jesus, love me” He said ‘I am only pissing’. She She said she didn’t feel safe. There were no houses, just bush. She said she couldn’t run away. She wanted him to take her back. She was saying “people will look for me,” “I have a boyfriend” and “you are taking my heart”.

He gave her some money which she put on the of the car. He said he would take her home after he had ad kissed her. He said he wanted to kiss her private parts. She kept saying “Please Jesus, no”. He threatened her that he had a knife and pretended to look for it.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> He then took enis out and told her to suck it. He said ‘Do the things you do to your boyfriend”. Sd”. She spat. He had taken off his clothes. He had taken some of her clothes off. She put them back on and got in the car. He took off her clothes and had sexual intercourse with her.

“I didn’t resist. I was frightened and I couldn’t move… it was and I was so scared. I saiI said “Jesus, Jesus”. ”

Afterwards she looked for her clothes in the car. She got out ound them on the top. She sShe said she urinated and went back to the car and thought he would take her back to her house. He was in his underpants. He drove her to the gate. She opened it and got back in. She said she was so scared she told him “I will commit suicide”. He replied “Do you want me to kill us both at the bridge”. She then said “you will pay my way to Santo”. She said she thought he would stop again on the way back and have sex again.

Another vehicle come . They stopped. Willie Kaloris got in the car, the defendant was still wearing only his underpants. Kaloris drove them back. There was conversation and a stop at a store. The complainant was given money to buy drinks and cigarettes. She returned to the car with them. He put money in her handbag.

She asked to go to FreshWater to a friend’s. She dt want to go home. She was scared of what her guardiaardians would say or do. The friend was not there, so she asked to be taken to Switi area. There she went into a friend’s house. The mother was there and the friend arrived shortly after. She told the friend what had happened. She said “I wanted to tell her, but I just shaked.”

Later that night she atten the police station and hospital. She gave a full statement later.

Without setting out every detail, that was tmplainant’s evidence.

The prosecution also called Annie Samuel, the mother of the complainant’s friend, Velma. Mrs Samuel saw she was shaking. Mrs Samuel said the complainant told her “One man, hem spoilem mi” She said a man took off her clothes. She was still shaking, refused food and accepted a drink of water. Velma Wano gave evidence and repeated the complainant’s story as she said the complaint told her. This was almost the same as the complainant’s evidence.

Rony Wisyl was the man at the gate. He remembered seeing the defendant go through in a car with a girl in the back. He thought the defendant was just going through and coming back. He wasn’t there when they returned. He said they went through about 5-30 p.m.

Woman Sergeant Merelyn George, gave evidence of the investigation.

ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The defendant gastatement under caution in which he exercised his right of silence.

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lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The prosecution also called Doctor Sala Vravo to give evidence of his medical examination. It took ook place at 1-30 a.m. He said she “seemed weak”. He found a 1 cm x 0.5 cm laceration of her right forearm. He also found a laceration of her posteria forchette. Everything else was normal. Dr. Grice set out his qualifications and experience. He said he had never seen such a laceration to the forchette caused by consensual intercourse. He said the degree of force would be moderately forceful. He said it was not relevant she was a virgin and said “It is much more likely than not that force was used”. In cross- examination he accepted a much larger than normal penis (50 % larger) might cause such a laceration in normal intercourse. There is no evidence of the size of the defendant’s penis.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> The defendant gave evidence. He said he knew the complainant but not wel was in business with WilliWillie Kaloris. On 11^th October at about 5 p.m. he was driving Kaloris’ car. Willie Namal was in the front. He said the complainant waved at the vehicle, and flagged him down. Namal saw this and told him. They stopped and she laughed and talked. He asked if she wanted a lift and she said yes. She got in. He just knew her as Fabien. He said she told him she stayed at Independence Park. He asked if she wanted to story as they drove about. He saw she wasn’t comfortable and he asked ‘what’s up’. She talked to him in French. She said they could story but she didn’t like his friend (Namal) being in the car. This was soon after 5 p.m. It was still light. He said he would drop Namal at Teouma. He dropped Namal at Teouma and went on towards White Sands. They went through the gate. The house was nearby and Rony Wisyl came out. The rear passenger windows were open. He said ‘Fabien said she was frightened about Rony’. He didn’t give a reason for this. He then drove on and stopped at a place where he says you could still see the road. He said before that he was just swinging the car about and she must have opened the door and come out. “I said you must never do this. You must come back in the truck”. She came back in and said sorry. They then talked in the car. By that time it was dark. He asked if he could make love to her, and she replied ‘I’m still a virgin” She was sitting in the middle of the back seat. She then said “If I let you have sex, what will you give me. I said what do you mean. She said if I want something can you get if for me” She then asked for a ticket to Santo. He says she asked for money, Vt 15,000 and the air ticket to Santo. She pulled up her clothes and he kissed her legs. They went outside and kissed. She asked to kiss his private parts and he agreed. He took off his clothing, but she was afraid there was someone about. He looked around and couldn’t see anyone. They were kissing and feeling each other. She then said they should hurry and go back home as her guardian would be angry. She then kissed his private parts. He then said ‘ Now we can have sex’, and she replied ‘I don’t know how to’. He says then they had sex in the car, she wrapped her arms and legs around him. They then put on their clothes and he drove back. She was in the front until they reached the gate when she opened it, then sat in the back. He said he had put money in her trousers. It must have fallen out. He put on the light and looked for it.

lass="MsoBoMsoBodyText" align="left" style="text-align: left; margin-top: 1; margin-bottom: 1"> He said Kaloris found them at the turning just before the bridge. Kaloris drove back to town. The complainant had her face in her hands. She talked French most of the time, but also Bislama to Kaloris. They stopped at the store and she bought the drinks and cigarettes. He says she told him her vagina was sore and he offered to take her to the hospital. She refused and they went to Freshwater and Switi. He says as she left they kissed, she said thank you very much and went in her friend’s house.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> That is the Defendant’s evidence. The de called Willie Namal and Willie Kaloris to support his evidence.

Willie Namal corroborates what the defendantsaid about the first part up to Teouma. Kaloris said it t was his car. He expected the defendant to bring it back after dropping Namal. When he didn’t return, he went looking for him. He spoke to Namal at Teouma travelled on and then saw light from the car off the road, and the defendant and the complainant together. He left them and waited. On the way back after he joined them he did not consider the complainant was upset. He offered her help if she wanted it. He said they kissed as she was left at Switi.

Whilst there is peripheral evidence to support or contradict the evidence of the ainant and the defendefendant, essentially this is a case as to whether I accept the complainant’s evidence and reject that of the defendant. If there is a reasonable doubt then it must be resolved in the defendant’s favour.

I also remiself of the dangers of convicting upon the uncorroborated evidence of a complainant iant in cases such as this. I look for corroboration. However, if I am satisfied the complainant is telling the truth and the defendant is not, then I can convict.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> There is a difficulty in assessing the evidence of the complainant. Whilst much of the defendant’s case was put to her in cross-examination there were many matters which were not and which should have been. The question was necessarily raised as to whether the defendant’s counsel had a proper proof of evidence, or indeed one at all. I considered whether or not to have the complainant recalled, but rejected this given the nature of the evidence she was giving and the fact the unput material did not go to the heart of the issue.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> I assess carefully the evidence of the ainant and the manner in which she gave it. Whilst she did did not become upset and cry at any time, there was clear distress when she came to the events in the bush. There was a degree of naivety and unworldliness about her which made her evidence believable. I do not find the fact she didn’t jump from the car earlier or seek to attract anyone’s attention or run away is inconsistent with her evidence. I accept that till very late on she believed the defendant when he explained where he was going and she alternated between her fears and instinct and the acceptance of the false assurances of the defendant.

I did not accept the defendant’s evidence. I do not believe him when he asserts that this 21 year old woman, with little sexual experience and who hardly knew him did other than, expect him to give her a lift home. I don’t accept she willingly went off to an isolated area, asked for payment for sex and then performed the sexual acts the defendant describes.

I accept the evidence of Annie Samuel and Velma Wano. They both described the complainant as being in a distressed condition on arrival. The reluctance of the complainant to go to the Police or back home in the circumstances is understandable. Velma accepted it was her that persuaded the complainant to go to the police. This she did very soon after. The version of events relayed by Velma is consistent with that of the complainant. There are one or two differences, but I do not find these are more than questions of recollection.

I accept the evidence of Rony Wisyl. The only question is why the complainant didn’t ask him for help as they went went through the gate the first time. The defendant had told her he was going to a friend’s house and she accepted this. In fact, bit by bit, with a constant stream of false assurances he was taking her to an isolated spot to have sex with her.

I accept the evidence of W George and Doctor Vurabaravo. I look carefully at the evidence of Dr. Grice. He He accepted he did not do forensic work. The Prosecution say his evidence amounts to corroboration. It does not go that far. I accept what he says in his report that the injury seen to the posterior forchette was “consistent with forceable attempt at intercourse “ and was “unlikely to have been caused by consensual sexual intercourse”.

I did not accept the evidence of Willie Namal onimportant points of conflict. The statement he gave t to the police varied in significant ways from what he told the court. He agreed in cross-examination that what he had told the police was not true. The reality might be that what he told the police soon after these events was nearer the truth than what he told this court. However I can place no reliance on his evidence. He couldn’t even remember the name of the uncle he was to stay with at Teouma.

ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> I look carefullyhe evidence of Willie Kaloris. He had lent the defendant the car to take Namal to Teouma. He knew the car had no spare wheel. When the defendant hadn’t returned by 7-30 pm he went with another of his cars to look for the car. He was told by Namal at Teouma that the defendant had driven off in the car with a girl. He went on towards White Sands and saw light from the car some way off the road. He saw the complainant and the defendant kissing . He saw the girl urinate behind the car. He wasn’t sure if she was dressed. He went back and waited at the junction. He says the girl asked for Vt 15,000 and the ticket on the way back. He said he saw them kiss goodbye at Switi.

Whilst I don’t reject the nce of Kaloris I am satisfied he has presented what he saw saw and heard in a light favourable to the defendant. He went looking for his vehicle. Having been told at Teouma the defendant had give off with a girl he continued looking for the car. I do not accept he could have seen at any distance what was happening in the car or who it was. His description of two people kissing and a female urinating is consistent with what the complainant says. He was not in a position to discern the circumstances. It was dark. It is not possible to say how far along the road or off he had gone and how clearly he saw the car. What is clear is that without getting close he came to the conclusion the defendant was with a woman and decided to wait a distance away until they came back. There is a minor difference with the defendant as to whether the latter put his clothes back on at the road side or at the store.

The complainant agrees she asked for ket to Santo in the car on the way back. It might be the suhe sum of Vt 15,000 was mentioned in that or an other context. I am satisfied that by that time the complainant wanted to get back to town and to a friend’s as quickly and easily as possible. I do not find it undermines her credibility that she went back in the car with the defendant and later the defendant and Kaloris. The offers of help and money were made as the defendant and Kaloris realised that the defendant might be in serious trouble.

There is one final issue I must address. Late in cross-examination the complainant was asked a question . The Court record is

“Qp; &bsp; Whun yo sex with himh him you wanted to find out what is was like to have sex (Long Pause) please repeat the question. Question repeated – Yes”

The defence contented that this one answer shews she did in fact consent. Thee difficulties in ensuring ring an exact translation from Bislama, and indeed if the Bislama was precise enough.

Wirst asked the question the complainant spent a long time thinking and apparently puzy puzzling and then asked for the question to be put again. It was put again and after a moment she replied yes.

She was then asked “when had sex excited”. The answer was “No. I was frightened and shakingaking”.

I do not accept this necessarily indicates consent. Tole context in which this incident took place, whatevhatever the specific thoughts of the complainant, was one of the complainant not wanting to happen what did happen and the defendant was fully aware of this.

I am satisfied I can foun conviction on the complainant’s evidence without corroboration. I find the defendefendant came access the complainant by chance. He offered to run her home. She accepted. They hardly knew each other. There was a significant difference in age. The complainant was somewhat naive and unworldly when it should have been clear what might be going to happen. The defendant gave her a stream of excuses and explanations to get her to an isolated spot. Before that happened, he dropped off the other man in the car. She was shaking and praying him not to do anything to her. I do not accept she asked for money nor did the acts he says she willingly did. At one stage she did jump from the car. She was bewildered into not knowing what to do . He raped her. She then stayed with him to go back to town.

She didn’t want the defendant know where she lived. She was afraid to go back to her guar guardians. She went to a friend’s house and told her the story. Her friend saw she was shaking and upset and persuaded her to go to the police.

I do not find this is a case whhe defendant was reckless as to whether she consented, or c or couldn’t care less. He is a mature man. He engineered the circumstances whereby he was alone with her. She had tried to jump from the car. She was praying and saying Jesus and asked to be taken home. I am satisfied the defendant knew she did not consent when he had sex with her.

lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> I am satisfied d reasonable doubt the defendant raped the complainant and I convict as chargedarged.

Mitigation heard.

SENT/span>

The 11^th October 2001 is a date which I am sure you will not forget. Up to time you had led a go a good and useful life. You have a wife and three children who are now growing up. You have been in productive work for many years. You have contributed to the community. You are studying at USP. You have no previous convictions. I accept it when your counsel says there is no likelihood you will be committing crime in the future.

I accept when you set off in the car at 5 pm that day you had no intention to do anything wrong. You agreed to drive the complainant to her house. I am sure you wish now you had done that. There was no reason not to take her home first, then drive to Teouma. Melcoffee is close. Teouma is far.

It was at that stage you started to think you could taketo a remote spot. All your actions and assurances afts after that were done with the intention of taking her to an isolated place. You did that even when it was clear she was frightened and didn’t want to go. I do not know at what stage you decided to have sexual intercourse . But you could see she was a young woman. You hardly knew her. She was praying and asking to go back.

In your defence it has been said she could have jumped out or shouted for help or run off. Sometimes that does happen. This woman was frightened and didn’t know what to do. She continued to believe your assurances when she shouldn’t have done. There was a stage when she did jump from the car.

I accept no violence was used b that for the rape itself. There was no knife, but there ware was the threat of one. Your were an older man, you knew she was a young, inexperienced woman and you took advantage of that.

On the way back, I accept you made offers to help She was driven to one friend’s house then another. S She wanted to get to a friend. You were helping her, she stayed with you. But you also knew she might put you in serious trouble.

I cannot give credit for a plea of guilty. The conant had to give her whole story, she was cross-examiexamined fairly but firmly.

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I have sympathy for your wife anddren. Their lives will be very difficult now, as a result oult of what you have done.

The starting point in English is five years for a contested rape case (R v Billamm 82 Cr. App. R. 347). In Vanuatu, the tariff is the same, see P.P. v. Ali August ( CRC 14/00). I can see no reason to depart from the guidelines in these cases. There are the aggravating features of your age difference and taking her to a remote place. She was a virgin. There was the threat of a knife. There was some injury to her. In your favour is everything about your life apart from that day. I accept there was no pre-planning. I realise a custodial sentence will shatter your life and cause great hardship to your family.

I find the correct sentence is one of five years imprisonment.

class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1"> Informed of right of appeal.

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R.J. COVENTRY

Judge