Public Prosecutor v Tor - Judgment [2003] VUSC 101; Criminal Case 023 of 2002 (12 December 2003)

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

Criminal Case No. 23 of 2002

PUBLIC PROSECUTOR

–v-

ANDERSON TOR

Coram: Justice P. I. Treston
Mr. Macintosh & Mr. Shaw for Public Prosecutor
Mr. Toa for Defendant

Date of Hearing: 3, 4, 5 & 12 December 2003

ORAL JUDGMENT

The accused is charged with rape under section 91 of the Penal Code CAP 135. The particulars of the charge or count are set out in the papers. The particulars are that he is from Pentecost, living at Vila, and sometime around 9 January 2002 in two places in the area of White Sand Country Club and in the area of Le Meridian Vila, forced a girl Rinette Hehe to have sexual intercourse with him at that time against her will.

I remind myself that it is the judge's responsibility to decide all questions of fact and to decide what evidence he will accept or reject or what weight he will give to any part of the evidence. I remind myself that I must come to my judgment solely upon the evidence, which is placed before me in this court, and I must consider the whole of the evidence when considering my judgment.

When I consider the oral evidence I must take into account not only what has been said but also how it has been said because how I assess the demeanour of a witness can be valuable aid in judging his or her reliability and credibility. I must be objective and reach my decision without being influenced by matters of prejudice or sympathy. And of course it is the judicial responsibility to be impartial and to apply common sense and knowledge of human nature.

Under section 81 of the Criminal Procedure Code [CAP 136] I am mindful that the accused is presumed to be innocent unless and until the Prosecution has proved his guilt beyond reasonable doubt. There is no onus upon him to prove his innocence. And if at the end of the trial any reasonable doubt exist as to his guilt, the accused will be deemed innocent of the charge and will be acquitted. This section and the provisions of it were read out to the accused before the Prosecution case.

Under the law no person shall be convicted of any criminal offence unless the Prosecution shall prove his guilt according to the law beyond reasonable doubt by means of evidence properly admitted. The determination of guilt beyond reasonable doubt, of course, the law provides shall exclude consideration of any possibility, which is merely fanciful or frivolous.

Proof beyond reasonable doubt simply means that the Court must be sure or satisfied of guilt before a judgment of guilty can be entered and another way of talking about the standard of proof is that any benefit of the doubt must be given to the accused.

A prima facie case was effectively conceded at the conclusion of the Prosecution evidence and I ensured that Section 88 of the Penal Code was complied with, indicating to the accused that he was entitled to give evidence on his own behalf in addition to calling other people as witnesses. This he did both giving evidence on his own behalf and calling one witness. The accused was advised that he was not obliged to give evidence and could elect to remain silent but that if he did not give evidence that would not lead to an inference of guilt against him. The accused, as I say, elected to give evidence and to call one witness.

I am entitled to draw inferences or conclusions from facts, which have been put to me in evidence. Conclusion are not guesses rather they are logical, reasonable and fair deductions from facts have been proved. In this case from all the evidence the Prosecutor has asked to draw certain conclusions from certain circumstances and I will talk about those later but I am certainly not here to speculate nor am I here to guess.

I have referred to Section 91 the Penal Code, which provides that no person shall commit rape. Section 90 defines rape and for the purposes of this trial any person who has sexual intercourse with a woman or a girl without her consent, or with her consent if the consent was obtained by force or by means of threats or intimidation of any kind or by fear of bodily harm, commits the offence of rape. The offence is complete upon penetration.

The law has been referred to by counsel in relation to that charge and the definition of its essential ingredients. There are 4 essential ingredients (1) the identity of the accused (2) the place and time of the alleged offence (3) the fact that there was sexual intercourse and (4) that this was without consent or in any other way described by the definition.

The first three elements are not in contention in this trial. The accused does not deny that that was he who was involved. The date and place as I have already referred to in the allegations are conceded. Sexual intercourse is conceded in each of those places although to the Court of Appeal the accused at the earlier hearing had said that that consent to sex was the sole issue. Here there are three allegations of rape, the accused admits sexual intercourse on two occasions first the second incident at the White Sands that I will refer to shortly, and in the vicinity of the Le Meridian. As to the first allegation by the Prosecution, the accused now contends there was no sexual intercourse as such complete upon penetration but sexual activity, which he called preparatory to sexual intercourse. The issue is whether there are two or three incidents of sexual intercourse and were they without consent or with consent obtained by other ways as it is described in Section 90.

When I refer to the issue of consent, consent means of course agreement given by a person who is able to understand the significance of what is about to happen and who is able to make an informed and a rational decision as to whether to consent or not. Any consent must be freely given. It is important to distinguished between a consent that is freely given and submission to what the complainant may regard as unwanted but unavoidable. For example, submission by the complainant because she was frightened of what might happen to her if she did not give in, is not true consent. Equally submission because the complainant might feel powerless or threatened or exhausted is not true consent and the fact that a person does not protest or physically resist or ceases to do so, is not of itself to be taken as a consent. Such consent may be conveyed by words, by conduct or by combination of both, but of course those elements are already somewhat described in the definition under Section 90 to which I have already referred. Those are the issues.

As to the evidence, in general terms, it is alleged that the complainant and her aunt on 9 January 2002 or thereabouts at around 8pm in the evening had decided that the temperature was hot and they had gone outside to take some air. Eventually the bus driven by the accused came by and the complainant Rinette Hehe and her Aunt Wendy Garae got in to the vehicle to go for a ride. There were various destinations for the bus for a start when alcohol was purchased and eventually the vehicle proceeded to White Sands Resort, having stopped on two occasions for the occupants to relieve themselves, and it was there that the complainant said two incident of sexual intercourse took place with the accused, one outside the bus and another inside the bus when the seat had been rearranged to allow this to occur.

The accused says that on the first occasion there was sexual intercourse of a consensual nature between him and the complainant, there was no sexual intercourse outside the bus but inside the bus and thereafter the four people in the bus, the accused, his friend Reynolds Bebe, the complainant and her aunt drove into town, got some more alcohol went to a beach area near Le Meridian where the complainant said there was more non consensual intercourse between her and the accused. Of course the details about all the circumstances surrounding the journey in the bus and the activities at White Sands and the Le Meridian was much more detailed and that is just are the bare bones of what occurred. After the incident at Le Meridian, the accused dropped the complainant and her aunt back home.

At the same time that sexual activity was going on between the complainant and the accused there was sexual activity on one occasion at White Sands between Wendy Garae, the complainant's aunt, and Reynolds Bebe and Mr. Bebe said there was other sexual activity in the van on the way back into town from White Sands and also at the Le Meridian and the accused's contention was that this was a totally consensual evening involving the taking of alcohol and sexual activity between the four persons throughout the evening.

As far as the evidence of the complainant herself was concerned she said that she and her aunt had gone out at about 8pm when the red taxi bus stopped and she saw the accused. She realised that she hadn't seen him or hadn't meet him before but it was clear that her aunt knew him. They got into the bus. When she said her aunt was talking about going for drink, she said no drop her home, but they would not. She said that they forced her to drink, she did not want to, and she eventually drank two bottles of Rum and Cola. She said that she and her aunt had not agreed to go to White Sands. There had been a suggestion that they go to an area by the big tree around USP to drink but that was not accepted by the accused and his companion. She said the accused would not take her home.

At White Sands she said her aunt got out of the bus with the other man. She said that she was afraid because she was by herself in the bus. It was dark, there was no light around from the bus or other cars. She said that the accused got into the back of the bus where he tried to touch her on her breast, and tried to kiss her. She struggled, he stood on the carton of drinks that was there and when it fell over and he tried to pick it up she got out of the bus and made her way away. She said she didn't want it to the accused. She got out of the bus and ran she said to the main road nearby where they were parked and the accused ran after her and tried to grab her. He grabbed her by the left wrist and put his fingernails into her skin, which was painful. She said she called to her aunt but the accused said to her 'fuck you, stay quiet' which made her even more scared. He took her back towards the bus by pulling her. They went past the bus; he was touching her breast. She told him she did not want it, she was crying, she said the accused put his hand under the top where she was wearing a bra, tried to take her shorts off, held her by the wrist pulled her shorts down and tried to kiss her, and told her to lie on the beach. She said she was struggling, he said 'stay quiet, don't you know me, I can assault you' she said she was getting really scared. He took his clothes off and took off her panties and tried to take off her top, she would not let him, she said he took off his pants and lay on top of her with his erect penis and she felt him put his erect penis into her vagina. She said she did not know how it felt particularly because she was struggling too hard. She was still crying saying 'I don't want to' he said 'why are you crying, you want me to leave my wife and take you' she said she again called out for Wendy but obviously her aunt was too far away with Mr. Bebe, the accused's friend. She said that incident of sex did not take too long, she put her clothes and went back to the bus, still crying.

The accused went into the bus and again she said that he started touching her. He tried to put his tongue into her mouth, kissed her, took his trousers off again, and took her clothes off again. She was struggling, she said he said again "be quiet or I will kill you". She said he opened her legs with his hands while she was still struggling and again put his penis inside her vagina. At the time she was saying "I don't want it" he said "This will be the last one".

After the sexual intercourse she said he went outside and called the others to come back and they drove to Freshwota and stopped at a black market to buy some more drinks. There Ms. Hehe said that she jumped out of the bus, and the accused got out of the bus, from the driver's seat and grabbed her back in to sit in the front with him.

She said they then drove to the area by the Meridian near some bushes. The accused took her out of the bus while the others remained inside. He asked her to get on the ground in an open area where there was no light. He touched her again on her breast. She said he pulled off her shorts, took his trousers off, grabbed her hand and pulled her over to an area. She said she didn't want to whereupon he grabbed her and he was too strong. It was painful she said, he was walking in front of her. She was following and he again kissed her with his tongue, held her by the breast and told her to hold him by putting her hand on his shoulders. He told her originally to lie down and she did not want to and he held her standing in the air and had sex with her. She said she didn't want it to happen but he wouldn't stop. He was holding her around the hips and she was crying again. He asked her about whether she had a boyfriend. She said yes and he asked her whether she wanted to stay with him whereupon she said nothing. They both went back to the van. She feeling very upset. She was crying and when she got into the van, Wendy said " Did he rape you" to which she nodded. It seems about that time according to the complainant Mr. Bebe said that the accused had had bad thoughts about the complainant and her aunt. She said that they were driven to their house by the accused. She was not feeling good, was upset and crying that her aunt had said not to make any noise because if her mother came out she would ask questions.

The complainant said she did not sleep but went and saw Erina Vuti next day and told her everything that had happened that night. She had gone to her because she was a close friend and her cousin's sister and was older than her.

The complainant denied asking the accused to have sex with her on any of the three occasion.

Under cross-examination the complainant denied knowing that something like that would happened and denied hearing that the two men get more liquor they would have sexual intercourse with her and her aunt. She said she did not agree to go to White Sands for sex and denied the other allegations made to her about pulling her own tee-shirt up and moving the accused's mouth down her groin area. She denied taking her own clothing off and confirmed that the accused had used threatening language to her when she was scared of him, she denied that oral sex took place the time of the first incident.

Wendy Garae gave evidence and said that the accused had asked Rinette to drink, she said no she did not want to and she denied they came into the bus to drink but only wanted to go for a ride. She said that she initially drank the complainant's share of liquor and confirmed that Rinette had said that she wanted to go home. She said that the accused had forced Rinette to drink and told her to drink and had said that if she didn't drink, he would open her mouth and put the drink inside. At White Sand when she and Mr. Bebe went back to the bus, the complainant was crying, and she was still upset when they arrived at Freshwota. She got out of the bus but the driver came around and told her to get back inside. She was clearly upset and angry and had asked her to get out and they would walk home but she had told her niece that it was too dangerous at that time of the night. She said that she asked the accused what had he done to Rinette and he told the niece to get into the front so that he could apologise to her. He had grabbed her by the left wrist and there were scratches on Rinette's left wrist, which she showed her next morning. At the Meridien she said that when the complainant came back to the bus, she had hung on her and when she asked her why, the complainant told her that the driver had forced her to have sex with him.

Under cross-examination Ms. Garae denied agreeing to go to White Sands and to have sex. At the Meridien she said that the accused had come and pulled the complainant out of the bus, Rinette had said that she did not want to go. When Rinette came back she confirmed that she had been crying and had also been crying at White Sands.

Mr. Reynold Bebe confirmed that the accused was his uncle, he also confirmed that Rinette was crying in the bus to White Sands when they got back on board and at Freshwota, the accused had got out of the bus and grabbed Rinette wrist and put her back inside the bus.

Mr. Bebe also confirmed that when the accused and the complainant came back to the bus at the Meridien, Rinette was crying and had been crying on the way to the Meridien as well and as they left the Meridien, she was sobbing silently.

Mr. Bebe agreed that on the way to White Sands, Rinette did not use expressions of endearment towards the accused.

Ms. Arina Vuti said that on 10 January 2002 about 7am, Rinette had come to see her and had told her story in significant detail about what had happened the night before. Ms. Vuti observes that Rinette had scratches on her left wrist.

Mr. Kensley Joe also gave evidence that how he had explained procedures to the complainant.

The accused elected to give evidence and I advised him that under Section 88 of the Criminal Procedure Code that in making his defence in the trial he was entitled in addition to calling other persons as witnesses to give evidence himself on his own behalf upon oath or affirmation and subject to cross-examination by the Prosecution. I told him that, however, he was not obliged to give evidence and may elect instead to remain silent. I told him that if he did not chose to give evidence that would not itself lead to an inference of guilt against him.

Before the Prosecution opened its case, I had told the accused in accordance with Section 81 of the Criminal Procedure Code that in this trial he was presumed to be innocent unless or until the Prosecution had proved his guilt beyond reasonable doubt. I advised the accused that it was not his task to prove his innocence and if at the end of the trial, any reasonable doubt existed as to his guilt he would be deemed to be innocent of the charge and would be acquitted.

The accused himself said that he had used no force and that any sexual intercourse with the complainant had been consensual. He said there had been two incidents of sexual intercourse without force or duress, that there had been a common agreement between the four of them, for sexual intercourse to take place at White Sands. He said that they stopped at White Sands and Mr. Bebe and Wendy Garae were hugging and kissing. He made enquiry as to where Rinette was and was told that she was on the other side of the bus. He went to find her and saw her standing under one of the pandanus trees. He went and hugged her and they started kissing which included French kissing. He said that she held his penis, pulled up her top and bra and asked him to kiss her on her breast. He said he hugged her around her shoulders, she held his penis with her right hand and he kissed her breast and she asked him to kiss her down by her vagina and pulled her pants down on one side. He said that he pulled the other side down and she stepped out of her clothes herself, bent backwards and open her legs and they went down to the grounds and he kissed her vagina. He said that she also asked him to kiss her breast at the same time and was pumping up and down again towards his face for a while. They stood up and walked to the bus and he arranged the seats so they could have intercourse on them and she got in the bus and lay down. He removed her clothing, she opened her legs and he penetrated her with his penis. He denied that Rinette was crying at any stage and after that they went to Freshwota and got more alcohol and then went to the Meridien. He got out of the driver's seat, went around to the other door, stood in the grass and stretched his hands out, Rinette stretched her hands out to him and took his hands and got out of the bus. He did not grab or pull her. They walked straight to the beach but it was high tide and they could not find a suitable spot. He said she was not crying and did not call out to Wendy and did not say she wanted to go home. Each took their own clothes off, but because it was raining and the ground was wet, they could not have intercourse on the ground, so she held onto his neck and he held onto her posterior to get into position for penetration and they had sex as he stood up. He said they got dressed, went back to the bus and then he dropped them at their home. He denied that Rinette was crying when they got back onto the bus. The accused denied threatening Rinette or putting any finger marks on her left wrist.

Under cross-examination the accused agreed that he never asked Rinette directly about having sex. He denied once more using any force. He said she agreed to have sex at the Meridian without being asked.

The accused also called Doctor Vurobaravo to give evidence but that did not assist the accused in anyway because the Doctor said it was not physically impossible to have sex on two occasions as alleged at White Sands.

The Prosecution in closing agreed that the issue for trial was identified by the parties was whether or not in the circumstances, the complainant consented to the sexual acts alleged or consented by reason of force used against her or by threats made to her or any intimidation of any kind or by fear of bodily harm.

The Prosecution reminded the Court that it is not simply for the Court to prefer the evidence of one witness to another, but that the Court must be satisfied that there was proof beyond reasonable doubt. Suspicion of criminal conduct is not sufficient to found a conviction. The Prosecution submitted that individually and in combination there were compelling reasons for a finding of guilt. The complainant, it was submitted, gave a coherent and logical account of the events, which did not involve embellishment or exaggeration. She was frank and responsive to questions in evidence in chief and adhered with quiet determination to her allegations under cross-examination.

Submissions were made about the facts and the reason for her not leaving the bus in the circumstances of having her aunt there and the times and distances involved. Corroborative evidence, it was submitted, could to be found from the injuries on her left wrist. The evidence, the Prosecution contended in various detailed submissions, ought to result in the Prosecution witnesses being accepted. On the other hand the accused should not be accepted. The Prosecution submitted that his memory of events at this trial seem better than his recollection of the evidence that he gave in the Court of Appeal some seven months ago. There were matters of significance and not peripheral matters that were not put to the Prosecution witnesses. They were detailed and the Prosecution submitted that as to his credibility, his evidence before the Court of Appeal to which I will refer a little later, indicated that the Court should not accept his evidence on a credibility basis.

In hearing submission on behalf of the defence, I am grateful for the detailed factual analysis made by counsel as far as the facts and conclusions that the Court should draw from those facts that was set out in the submissions from the defence. Effectively, the defence submitted that the complainant was not forced to go on the bus, she was not a young person, she had a job, drinks were involved, she had partaken in those drinks, it was a long distance to White Sands, there was more than one occasion when she could have absented her from the bus and found her own way home.

It was submitted she was a willing party on the bus and the accused's version of events should be accepted. It should be accepted that there were no threats or force. There were no calls for help, the defence submitted, no resisting was present and all the circumstances are indicative of the consent of the complainant to sexual intercourse on the two occasions that the accused admitted. Everyone in the bus agreed what would be going on, it was submitted. There was mutual consent throughout and there were unexplained questions and answers, which the Court should place significant emphasis upon, which called into doubt the complainant and her version including the fact that she did not report the matter for some days, and did not submit herself to medical examination. Why had she stayed on the bus for so long? Why had she asked for food and it was submitted that she could have got out on the way to White Sands or on other occasions and the evidence of the accused ought to be accepted and that evidence was consistent with the consent of the complainant. It was submitted that this was a whole evening of consensual sex and drinking activities and particularly on the last occasion at Le Meridian given that the sex took place in an upright position in the way that has been described by both parties. That would, the defence submits, give a strong indication that that sexual activity was consensual.

There were contradiction within the Prosecution case itself with its own witnesses in relation to the number of times the witnesses Mr. Bebe and Ms. Garae had had sexual intercourse. That cast a significant doubt, it was submitted, upon the Prosecution case even on its own face and the accused ought to be acquitted because there should be a reasonable doubt left in the mind of the Court.

Over the effectively three and a bit days of the hearing of this matter I have had the opportunity to see and hear the witnesses and to make findings as to credibility. I have had detailed submissions from both counsel as to reasons why I ought to find one way or the other on the basis of careful analyses of the evidence and submissions as to which evidence I ought to accept and which evidence I ought to reject.

The accused has given evidence. I have already said that he did not have to do so and he didn't have to call the witness that he did to give evidence. The fact that he did does not mean that he has taken on any responsibility of proving himself innocent. The onus of proving guilt remains on the Prosecution.

Effectively, however, experience has shown the Courts that three possible conclusions can arise whether there is defence evidence.

First, I might think that the defence evidence is credible and reliable and a convincing answer to the Prosecution evidence. If I accepted the accused's version that the sexual intercourse on all occasions was with consent, clearly then my verdict would be not guilty.

Second, I might think that that although the defence evidence or part of it is not entirely convincing it leaves me in a position of being unsure of what the true position is, in other words it raises a reasonable doubt in my mind. If that were the case, it would follow from what I have said that again my judgment would be not guilty. It is the first two of those alternatives that the defence submitted to me I ought to find. First that I accept the accused in total or second, if I was not accepting all his evidence, I might be left in a state of reasonable doubt.

On the other hand the third option is this, I might think that the defence evidence or part of it or a major part of it, is entirely unconvincing and reject it as unworthy of belief. If that were the case, I should be careful not to jump from that conclusion to an automatic conclusion of guilt, although in this case the issue is limited to consent, or even regard that conclusion as adding the case against the accused. I would still need to go back to the rest of the evidence and make sure that the Prosecution had proved the essential ingredients of the charge beyond reasonable doubt. And that effectively is the stance that the Prosecution argued that I should take, viz. that I should reject the evidence of the accused but nevertheless on the basis of the rest of the evidence, I should find the charge established.

I turn to questions then of credibility. As I have said over the period of the trial I have had the opportunity of seeing and hearing the witnesses and making assessments as to them and their credibility. I have taken into account not only what has said but how it has been said in assessing their demeanour. I must say that I found the evidence of the complainant to be persuasive. She was a reliable and credible witness. Despite rigorous cross-examination she did not change her testimony in any particular or material way and I accept her evidence as to what the accused said to her and what he did to her. I accept that he made the threats that were outlined by her and that he had sexual intercourse with her without her consent.

On the other hand, I say that I reject the evidence of the accused. The accused himself I found to be somewhat smug and glib and he had a convenient memory when questions became difficult for him. For example, he said he couldn't remember various conversations on more than one occasion. He fell into contradiction in his evidence for example on one occasion he said he couldn't remember if Rinette was crying but on another occasion he said Rinette was definitely not crying. He said he couldn't remember on one occasion if Wendy Garae and Reynolds Bebe were having sex on the back seat as they drove along, on another occasion he said yes they were having sex on the back seat. A measure of his evidence then related not only to convenient memory but also contradictions within his own evidence.

Another guide to his credibility, was during the course of the hearing when in fact the Prosecution witness Reynolds Bebe was giving evidence, the accused from the dock endeavoured to communicate with that witness by signalling to him no doubt as to what the answer to the particular question that was being asked might be. The accused was warned about that and later apologised but that gives an indication as to the manipulation with which the accused has treated the Court and its processes.

That manipulation was not limited to this hearing either, because in his appeal to the Court of Appeal, the transcript of the notes of evidence were put to the accused. Clearly to the Court of Appeal this accused said:- "Because it was not the first time those girls have sex with me on the same bus I was driving". The accused in this Court has endeavoured to persuade this Court that he meant it was not the first time he had sex with Wendy Garae on the bus, but clearly and unequivocally he had said to the Court of Appeal that was not the first time that he had sex with either or both of these girls. There can be no argument in my view as to that, and my conclusion from that, is that on earlier occasion in the Court of Appeal he was endeavouring to place himself in a better light before that Court in support of this appeal, because clearly if he had had sex with the complainant Rinette on another occasion it would be more likely that if that had been consensual and not complained about then on this occasion it might have been the same. But the fact of the matter is he gave evidence to the Court of Appeal that he now accepts and which everyone accepts was in accurate and that again gives a guide and an assistance as to his credibility and I find that the accused does not come out well from either of those incidents.

In addition, there were significant matters, some of some substance, which were not put to the complainant or to other Prosecution witnesses. Examples of those were set out in the submission made by the Prosecutor. There were other examples that I myself noted in the course of my analysis of the evidence. One was when Reynolds Bebe had said that he would have sex with Rinette and the accused said he had already had sex with the other woman and that he would have sex with Rinette. That was not put. He said that he told them, meaning the girls that that they would drive towards White Sands and have sex there. Other matters that were not put involved the allegations that Rinette would get drinks and pass them to Wendy that was never put to Rinette. It was not put to Rinette that when they came back together from the beach, that they were holding hands. It was not put that she was holding onto his back during sexual intercourse. It was not put to her that she had said in response to a question "Any more drinks on the bus?" and she had said "No, its finished". There was an incident when the accused said when they stopped at Freshwota he tilted back the driver's seat and took a rest there, that was never put either. There were other examples also of significant matter of substance that were not put and I must say that that was not necessarily the fault of defence counsel but goes again to the credibility of the accused because it give rise to the reasonable inference that he has not been completely candid and has been making up his evidence in relation to those matters as he goes along.

For those reasons I find that I do not accept the evidence of the accused as opposed the evidence of the complainant.

There was a criticism made as to the delay that was occasioned by the complainant reporting the matter officially to the police. When such a criticism is made, it is of course incumbent upon the Court to say that there might be very good reasons why a complainant for such an offence may refrain from or in this case delay from making a complaint. After all the matter was discussed at a very early stage with her friend Ms. Vuti. Ms. Vuti had a partner in the police and he was not at Vila, he was at Tanna. They had discussed it between themselves and decided that it would be better to wait for his return before going to the police. This they did for some days. And in addition the complainant after all was a young woman at the time. She sought advice from her friend. Ms. Vuti was not much older. They decided for whatever reason to wait until Mr. Kensley Joe would return from Tanna. That seems to me to be quite realistic and proper reasoning and I find nothing untoward about that in the circumstances.

I am not satisfied that that delay could ever result in a fabrication of the evidence or the complaint. That was so because the nature of the evidence and the complaint had already pegged at the time of the recent complaint evidence, which was, given only 5 hours after she had returned home on the night in question, in her disclosure to Ms. Vuti. To suggest that during the time between the actual events and the actual reporting to the police that there was any fabrication cannot in my view be sustained in any way whatsoever.

However, in this case the evidence goes simply beyond findings of credibility of the complainant and the accused. The evidence of the complainant is in fact corroborated not only by the witnesses but by the unspoken testimony of the injuries to her wrist and the scratches. As a matter of law injuries sustained by a complainant are capable of corroborating her evidence in relation to an alleged rape. The complainant herself mentioned the scratches. Wendy Garae and Erina Vuti saw them and the probative weight of that evidence and observation is significant.

In addition, both Wendy Garae and the accused's friend Reynolds Bebe both gave evidence that the complainant was crying at White Sands and at Le Meridian. That evidence again, and I accepted the evidence of both of those witnesses, is corroborative of the complainant's version and it is only the accused who has been forced to say first that there was no injuries to the wrist and if there were he did not cause them, or secondly that the complainant was never crying. Such crying of course, such distress, not only at White Sands but also at Le Meridian is not consistent with consensual, enjoyed sexual intercourse, as the accused would have it.

The recent complaint evidence of Ms. Vuti, which I accept, was full, detailed and consistent with the complainant's version and assists me from the finding that the complainant was indeed a person who is not only credible and reliable but consistent. The recent complaint evidence of course can never prove the events in this jurisdiction or be evidence as to what happened. It goes to the consistency of the complainant's version and to her credibility and both of those aspects come out in the complainant's favour. Furthermore, the complainant told her aunt Wendy Garae at Le Meridian that the driver forced her to have sex as the complainant, in the words of Ms. Garae, hung on her. Even the next day the complainant told Ms. Garae that the accused had forced her to have sex at Le Meridian and that he pulled her back at White Sands when she ran off. That again is recent complaint evidence which goes to the credibility of the complainant and it assists me in finding that I accept her evidence absolutely and I reject the evidence of the accused.

Having said all that, in summary, I find that the accused according to law beyond reasonable doubt by evidence properly admitted is guilty of the charge and count of rape.

Having made the findings of credibility that I do, I also find that there were three incidents of sexual intercourse without consent or certainly by means of consent, which had been obtained by virtue of the clear threats and intimidation which had been made to the complainant. There was not only fear of bodily harm in the mind of the complainant but also demonstration of it because of the injuries to her wrist. Force was used and clearly by the time the third incident of sexual intercourse was concerned her will had been so overborne by the earlier behaviour of the accused that there could in no way be said to be consent or certainly at that stage any consent was obtained by earlier threats and intimidation. She was incapable of resistance by then and any perceived consent was not genuine.

One must also look at the realism of the matter. The complainant was only just over half the age of the accused. He was a much older, a much more sexually experience person and for that reason alone one can understand the position of the complainant. As I say having said that I find that the allegations of the Prosecution are proved beyond reasonable doubt and the accused will be convicted of the count of rape.

Dated AT PORT VILA, this 12^th day of December 2003

BY THE COURT

P. I. TRESTON
Judge