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 hn
clothes, took off Brigitte’s clothes, pushed her doer 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 cr She went
back with Kanglen. On the way back Christiaistian 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
tol the two defendants had pulled her down to the river and hand had
‘touchem nogud hem’
and ‘pullem shirt mo shirt ibroke” Salita saw Brigitte
was crying.
A custom meeting was arranged
for the nex. The two defendants were eere 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.
class="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
There is no corroboration, but
the complainant’s evidence was reliable and unshakenhaken 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
eve. That is their right and I draw no adverse inference from 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.
Thence only called one
witnesses, Chief Lalie Kaloruk. I will refer to his evidence late 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 thatala I holem nogud mi nomo”
In cross-examination she agreed
there was no for assault. She agreed it w it was “normal” sexual
intercourse. The defence
say at no time did she run or cry out.
lass="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
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 defeaid the custom
ceremony was to ‘clinim gud face’. The two defendants are married. The. 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 ho 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 ece of other
witnesses. Both for the prosecution and tand the defence. They were all doing
their best to
recount accurately what happened.
However, the prosecution must
prove their case beyond reble doubt. That is a very hery 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.
ass="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1">
Dated at PORT VIis 6th
day of June 2002.
p>
R.J. COVENTRY
Judge
