Public Prosecutor v Yaput [2003] VUSC 10; Criminal Case No 057 of 2002 (3 March 2003)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

Criminal Case No. 57 of 2002

PUBLIC PROSECUTOR

-v-

STEVEN YAPUT
NIWASA RAMANA

JUDGMENT

Steven Yaput is charged with rape contrary to Section 91 of the Penal Code Act, [CAP. 135] in that “samtaem long namba 5 March 2002 long haos blong yu mo wife blong yu long Ohlen area, yu bin minim blong rapem girl ia Janet Ruth we long taem ia hemi without consent blong hem.”

Niwasa Ramana is charged with aiding and abetting rape contrary to Sections 30 and 91 of the Penal Code Act in that at the same time and place “yu bin minim blong helpem husband blong yu ‘Steven Yaput’ blong hemi rapem girl ia Janet Ruth we long taem ia hemi without consent blong hem.”

The prosecution case is this. Niwasa Ramana and Steven Yaput have lived together as man and wife for two years. There had been some problems in their relationship. Niwasa had had an affair with another man. Yaput was hitting her. The complainant is the cousin sister of Niwasa. She was aged 20 – 21 years and had only recently come from her island to Port Vila. She had never had sexual intercourse before.

On 5^th March the complainant went by invitation of Niwasa to the defendant’s home. In the evening all three went to church and returned to the house. The complainant wanted to go home but the defendants wouldn’t let her go. A bed was prepared for her and she lay down. Niwasa turned off the kerosene lamp despite the fact the complainant wanted it on.

A little while later the two defendants came to her room. Niwasa told the complainant she must have sex with Yaput so her, Niwasa’s, sins could be paid out and Yaput would stop hitting her. She was told Yaput would cut her neck if she didn’t agree.

The complainant was scared and said she didn’t want this. Niwasa held the complainant down, Yaput lifted her skirt, removed her pants and had sex with her. The complainant was crying and unable to move. She was in pain and breathless.

The next day the defendants offered the complainant VT3,000 and a T-shirt. She refused these and returned home. The complainant did not tell anyone until October when she confided in her pastor. He took her to the police and she made a statement. The defendants were interviewed and admitted the rape and aiding the rape.

The complainant became pregnant as a result of what happened, and now has a two month old child.

The defendants denied the offences. They said there was sexual intercourse but it was by consent. The complainant was happy to stay the night. Niwasa asked her to have sex with Yaput. After some reluctance she agreed. Niwasa was not in the room when it took place. Yaput stated that he didn’t get a full erection, but agreed, in cross-examination, that he did penetrate the complainant and did ejaculate.

Both defendants say there was no problem the next day. The complainant was not upset. They prepared and ate food together. About a month later the complainant willingly stayed the night with them and they looked after her because she was sick during the night. The defendants say there was a long delay in reporting the matter and question whether the real motive for the complaint is one of obtaining an order for child maintenance. There were people in neighbouring rooms the complainant could have called to.

The two defendants challenged the admissibility of their statements to the police. A voir dire was held and they were both found admissible. Nevertheless, I reconsider the circumstances of the making of these statements and their contents.

This is a criminal case. The prosecution must prove their case beyond reasonable doubt. It is not for these defendants to prove anything. I consider each defendant and each count separately, although they are necessarily intertwined. Further, this is an allegation of a sexual nature. I remind myself that although I can convict on the uncorroborated evidence of the complainant I should look for corroboration.

This case is essentially a matter of credibility. Unless I am satisfied beyond reasonable doubt that the complainant is telling the truth then I must acquit. I have considered carefully the evidence of the complainant and Steven Yaput and Niwasa Ramana. I watched each one closely while they were giving evidence.

I accept the evidence of the complainant. I find her to be truthful and reliable. She answered questions in an open and frank way, whether or not the answer assisted her complaint. There was an element of naïvety about her. When parts of the defence case were put to her she reacted with wide-eye incredulity before rejecting what was put. Further, I do not believe that, in March 2002, as a young woman, recently arrived from her island and a virgin that she would agree to have sexual intercourse in the circumstances the defendants suggest. She was manoeuvred into staying the night and then became frightened by what was said and done. She supplied consistent and convincing detail, for example, feeling she was unable to breath, the offer of money and a T-shirt.

I considered separately and together the evidence of each defendant. I did not believe their evidence. They have been together two years and there were difficulties between them. The idea existed between them that if Yaput had sex with the complainant it would resolve their difficulties. I cannot say precisely when that idea formed. I am satisfied it had formed by the time the complainant was stopped from going home that evening. Both Yaput and Niwasa were fully aware the complainant did not want sex. Niwasa held her down, Yaput removed her pants and had sex with her. That was rape and aiding and abetting rape.

I do not find the fact the complainant did not cry out undermines her evidence. She was frightened, and then breathless. I have considered whether the failure to confide in her mother or other close person, or the gap between the incident and reporting affects her credibility. I find it does not; given the type of woman she is that is understandable or even to be expected. I reject the suggestion the case was brought to gain child maintenance. The complainant spoke to the pastor when her advancing pregnancy was obvious and the emotional strains upon her became great.

Before I consider the statements under caution I find that even without them the truthfulness and reliability of the complainant is sufficient to found a conviction.

As a matter of law the statement of each defendant can amount to corroboration. The statement of Niwasa Ramana goes into considerable detail of what happened, and in particular the fact the complainant refused sexual intercourse. I find her statement does amount to corroboration of the complaint.

The statement of Yaput is much shorter. There is a general acceptance that what the complainant says is true. This must be treated with care in the absence of detailed admissions. He does state “Mi wantem admittem long you Police that allegation mo ol toktok we Janet Kenjon imentionem long statement blong hem oli true everyone.” In the next paragraph he sets out the reason and continues “so long wan taem mi Steven mo Niwasa ibin toktok wan ples nao mitufala ifuckem Janet ...”

I find Yaput’s statement to police is corroboration of the complainant.

Before making the findings. I reconsidered the evidence of the three interviewing police officers. I accept their evidence as set out in the voir dire. I find the statements were voluntary.

In these circumstances I find Steven Yaput guilty of rape and Niwasa Ramana guilty of aiding and abetting that rape. I convict accordingly.

Dated at Port Vila, this 3^rd day of March 2003.

R. J. COVENTRY

Judge.