Public Prosecutor v Tariodo [2002] VUSC 37; Criminal Case No 004 of 2002 (6 June 2002)

IN THE SUPREME COURT

OF THE REPUBLIC OF VANUATU

(Criminal Jurisdiction)

Criminal Case No.04 of 2002

PUBLIC PROSECUTOR

–v-

KISITO TARIODO

KANGLEN LALIE

Prosecution: M. Forsyth

Defence: H. Toa

JUDGMENT

On Christmas eve Brigitte Sablong, the complainant went with Marie Hellene Taga and Salita Sakari from the Federation Area to Esqual to collect the child of a cousin sister. On their way they met the two defendants. The defendants were drunk.

After collecting the child, Marie Helene and Salita went back with him. At the persuasion or insistence of the two defendants the complainant, Brigitte, went with them. She thought it was alright, ‘stret’, as Kanglen Lalie is a relative of hers. Kisito is also related.

They sat down on the road. Kanglen took a bottle of alcohol and forced her to drink some. It ‘burnt’ inside her.

Kisito had touched her breasts while they walked and Brigitte asked Kanglen to tell Kisito to stop. The two defendants tried to take the complainant down to the river. When she refused, Kanglen held her by the arm and took her down. It was dark. She was crying.

Kanglen took off his own clothes, took off Brigitte’s clothes, pushed her down and had sex with her, “stap insaed tabu ples blong mi”. Kisito then had sex with her. There were no preliminaries, no kissing or cuddling and the two defendants had sex one after the other. She tried to kick or push them away but couldn’t.

Brigitte was crying. She went back with Kanglen. On the way back Christian Sablong, who had gone to find her, met her. He saw she was crying. She told him the two defendants had pulled her to the river and forced her to have sex. This is not corroboration but is evidence of recent complaint.

When Brigitte saw Salita she told her the two defendants had pulled her down to the river and had ‘touchem nogud hem’ and ‘pullem shirt mo shirt ibroke” Salita saw Brigitte was crying.

A custom meeting was arranged for the next day. The two defendants were each fined Vt25,000 and a pig. They didn’t pay this and a few days later the matter was reported to the police. The complainant’s mother also gave evidence. When interviewed by the police the two defendants exercised their right of silence. The prosecution says this is a clear case of rape.

There is no corroboration, but the complainant’s evidence was reliable and unshaken in cross-examination. As long as the Court warns itself of the dangers it can convict. There is recent complainant and evidence of the complainant’s upset state within minutes of the incidents.

The defendants gave no evidence. That is their right and I draw no adverse inference from it. It is for the prosecution to prove their case and do so beyond reasonable doubt. I judge this case on the evidence I have heard.

The defence only called one witnesses, Chief Lalie Kaloruk. I will refer to his evidence later. In closing defence counsel relied on the complainant’s and other evidence to say there must be a doubt. They say Brigitte went willingly with the two defendants. There were houses nearby, people were out and about with the festivities and some outside, preparing food. She knew where they were going and why. Afterwards they went through the yard of some people who were preparing food.

When asked by her mother she did not talk about having sex but that “tufala I holem nogud mi nomo”

In cross-examination she agreed there was no force or assault. She agreed it was “normal” sexual intercourse. The defence say at no time did she run or cry out.

The prosecution reply that this must be assessed in the circumstances of this complainant, the relationship to the two defendants and generally within Vanuatu. In any event, the prosecution say a failure to shout out or run or fight does not in itself indicate consent.

The defence said the custom ceremony was to ‘clinim gud face’. The two defendants are married. Their own witness, Chief Kaloruk, said it was done on this basis and not one or rape. Brigitte’s mother agreed the ceremony was to ‘clinim gud face’. She agreed she was angry when the two defendants failed to pay the fine and then she and Brigitte went to the police. It is not entirely clear from the evidence if the mother understood rape was being alleged until they went to the police. She said a small custom fine had now been paid and they wanted to withdraw the case.

The defence say Salita’s evidence amounted to Brigitte alleging “tufala I holem nogud mi nomo”, and not rape. They say Christian’s evidence is the same. The defence say in these circumstances there must be a doubt.

I do not reject the evidence of Brigitte. Something clearly happened which upset her considerably. I do not say sexual intercourse did not take place. She was 16 years old at the time of these incidents. She placed a trust in one and probably both of the defendants.

I accept the evidence of other witnesses. Both for the prosecution and the defence. They were all doing their best to recount accurately what happened.

However, the prosecution must prove their case beyond reasonable doubt. That is a very high standard. There is no corroboration and the warning the Court must give itself is necessarily in operation in this case. I cannot say I am satisfied beyond reasonable doubt that this offence is proved. In these circumstances I must dismiss the charge and enter verdicts of not guilty.

I would add that this prosecution was properly brought. Further whether or not a custom ceremony has been held and whether or not any fine has been paid it is the Public Prosecutor’s decision to bring proceedings. Defendants cannot expect that prosecutions will not take place if a custom ceremony has been held and any penalty paid. It is for the Public Prosecutor to decide. In case of sexual abuse especially of young people, the public interest requires a prosecution, except in the most unusual circumstances.

Dated at PORT VILA this 6^th day of June 2002.

R.J. COVENTRY

Judge