Public Prosecutor v Tasso [2002] VUSC 39; Criminal Case No 018 of 2002 (19 June 2002)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Criminal Jurisdiction)

CRIMINAL CASE No.18 OF 2002.

PUBLIC PROSECUTOR

-v-

WILLIE TASSO

Coram: Chief Justice Vincent LUNABEK

Mr. Eric Sciba for the Public Prosecutor

Mr. Hilary Toa for the Defendant

JUDGMENT

This is the judgment of the Court in the trial of Willie Tasso. The trial took place at Port Vila and the proceedings were conducted in Bislama. The judgment is written in English.

The defendant is Willie Tasso and is the Chairman of Vanuatu Independent Movement and worked in the office of that Movement. The office of the defendant is located on same building as that of the South Seas Shipping.

The defendant was committed to the Supreme Court and was charged with 6 counts of Indecent Assaults, contrary to Section 98 (2) of the Penal Code Act [CAP. 135] and one count of rape, contrary to Section 91 of the Penal Code Act [CAP. 135]/

Count 2

As to the offence of rape, contrary to Section 91 of the Penal Code, it is particularised as follows:-

“That sometime in the month of January 2002, the defendant had sexual intercourse with the complainant Orelly Tabi at the Vanuatu Independent Movement Office, Port Vila, by false representation. The defendant misrepresented to the complainant that sexual intercourse is part of the interview procedure to get a job on board Pacific Sky.”

As to the offences of Indecent Assaults (x 6 counts), contrary to Section 98 (2) of the Penal Code, they are particularised as follows:-

Count 1

“That Willie Tasso is from Ambrym and he works at Get Away Island Tours, Vila, as General Manager. In or about November and December 2001 at the Vanuatu Independent Movement Office, Vila, the defendant indecently assaulted Orelly Tabi by having the complainant to masturbate his penis and at the time the complainant is over 13 years of age.”

Count 3

“That the defendant, in or about December 2001 at the Vanuatu Independent Movement Office, Vila, he indecently assaulted Roslyn Tasso by having her masturbate his penis and at the time the complainant is over 13 years of age.”

Count 4

“That the defendant, in or about December 2001 at the Vanuatu Independent Movement Office, Vila, the defendant indecently assaulted the complainant Lollyn Tete by getting her masturbate his penis and at the time the complainant is over 13 years of age.”

Count 5

“That the defendant, in or about December 2001 and January 2002 at the South Seas Shipping Office, Vila, he indecently assaulted the complainant Marian Kalran, by getting her to masturbate his penis and at the time the complainant is over 13 years of age.”

Count 6

“That the defendant, in or about 10 January 2002 at the South Seas Shipping Office, Vila, he indecently assaulted the complainant Lilly Albert by getting her masturbating his penis and at the time the complainant was over 13 years of age.”

Count 7

“That the defendant, in or about 10 January 2002, at the South Seas Shipping Office, Vila, the defendant indecently assaulted the complainant Netty Edmandley by having her masturbating his penis and at the time the complainant was over 13 years of age.”

The defendant pleaded not guilty to all 7 counts (1 count for rape and 6 counts for indecent assault).

The pleas were noted and the trial proceeded on the basis that Section 81 of the Criminal Procedure Code [CAP. 136] was read and explained to the accused. The defendant understood his right contained therein.

This is a criminal trial. It is for the prosecution who brings the charges to prove them. There is no burden on the defence whatsoever. The law is for the prosecution to prove each and essential elements of the offence(s) charged 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.

As to the offence of Rape, it is defined by Section 90 of the Penal Code as follows:-

“Any person … upon penetration.”

In this trial, the offence of rape alleged against the defendant is based on false representation as to the nature of the act.

In the trial, it is conceded that the defendant has sexual intercourse with the complainant Orelly Tabi. It is also conceded that complainant Orelly Tabi consented to have sexual intercourse with the defendant but the consent was induced by false representation of the nature of the act. That is the only issue for the prosecution to prove in respect to the offence of rape on the criminal standard required.

As to the offence of Indecent Assault, contrary to Section 98 (2) of the Penal Code Act [CAP. 135]. Section 98 (2) says that:-

“No person shall indecently and forcibly assault any other person not under the age of 13 years.”

For the defendant to be found guilty of the offence under Section 98 (2) of the Penal Code, the prosecution must prove beyond reasonable doubt of the following essential elements of the offence.

1. The accused intentionally assaulted the victim.

2. The assault, or the assault and the circumstances accompanying it (the assault), are capable of being considered by right-minded persons as indecent; and

3. The accused intended to commit such an act as is referred to in 2 above;

4. The accused had used force to indecently assault the complainants.

The defendant is charged with 6 counts of Indecent Assault (apart from rape in Count 2).

The prosecution has not led any evidence to prove beyond reasonable the offence of Indecent Assault, against the complainant Lollin Tete, as charged in Count 4.

The defendant Willie Tasso is not guilty as charged. He is therefore discharged of the offence as charged in Count 4.

Evidence

Rape

Consent obtained by false representation as to the nature of the act.

Evidence is that Orelly Tabi worked for Vanuatu Independent Movement for 6 months. During that period, defendant and Orelly Tabi had sex three times. Last time sex occurred was in January 2002 which is alleged in Count 2.

First and second time of sex no complaint. This during working period of six months in the office and at 4.30 PM.

The nature of the act is not clear by violence.

Orelly Tabi is going to work further months with the defendant. The evidence pointed to procedure for work. She is working for Vanuatu Independent Movement. A relationship between the defendant and the complainant Orelly Tabi. … to boyfriend/girlfriend without threat or intimidate. … deny as to the consent of the complainant Orelly Tabi which is … by false misrepresentation by the nature of the act.

Doubt be in favour of the defendant.

Offence of rape:

Verdict: Not guilty.

Indecent Assault

5 counts of indecent assault.

(Count 1, Count 3, Count 5, Count 6 and Count 7).

In Count 1

First Element: established on standard required.

Element 2 : established on standard required.

Element 3: established on standard required.

Element 4: use of force – no evidence – this, not proved.

Verdict: Defendant not guilty.

In Count 3

Defendant not guilty.

In Count 5 (Complainant Marian Kalran)

First Element: made out.

Element 2: made out.

Element 3: made out.

Element 4: Force used: yes, by way of threat or intimidation for complainant to lose her job.

Verdict: Defendant guilty as charged under Section 98 (2) in Count 5.

In Count 6

No force used.

Verdict: Defendant not guilty as charged in Count 6.

In Count 7

No force used.

Verdict: Defendant not guilty as charged in Count 7.

Dated at Port Vila, this 19^th day of June 2002.

BY THE COURT

Vincent LUNABEK

CHIEF JUSTICE.