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

Criminal Case No. 24 of 2003

PUBLIC PROSECUTOR

–v-

KALORIS ERICK HORTIAL

Coram: Justice Treston

Mr. Mirou for Public Prosecutor
Mr. Kausiama for Defendant

Date of Hearing: 20 October 2004
Date of Decision: 21 October 2004

ORAL DECISION

This is the decision in the case of Public Prosecutor v Kaloris Erick Hortial. The accused has been charged with 4 counts under the Penal Code Act. There are 2 alleging indecent assault and there are 2 alleging unlawful sexual intercourse. The first 2 counts arise under section 98 (1) of the Act and the second 2 counts arise under section 97 (1) of the Act.

Count 1 alleges that the accused, at that stage living at Liro village on the island of Paama, sometime in January 2003 indecently assaulted Alice Kidley and the details alleged were that the accused made her take off her clothes and slept on top of her and touched her private part with his private part when she was twelve years of age.

The second count alleged likewise that sometime in January 2003 the accused indecently assaulted Alice Kidley when he made her take off her clothes and touched her private part with his penis and then made her lie down again inside the Naiet plantation and the allegation was that the accused slept on top of her and was touching her private part with his penis again likewise when she was 12 years of age.

Count 3 was the first alleging unlawful sexual intercourse and detailed that sometime in January 2003, in a bush behind the Naiet plantation, the accused had sexual intercourse with Alice Kidley when she was under 13 years of age and likewise the second allegation was that sometime on 16 February 2003 on a beach near the sea at Paama, the accused had sexual intercourse with the complainant.

At the outset, it was confirmed by the counsel for the accused that the age of the complainant Alice Kidley was not an issue and did not need to be proved.

I remind myself that it is the judge's responsibility to decide all question of fact and to decide what evidence the Court will accept or reject or what weight the Court 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 all of the evidence while considering my judgment.

When I consider the oral evidence, I must take into account not only what had been said but how it had been said because how I assess the demeanor of a witness can be a 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. I must be impartial and I must apply common sense and my 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 exists as to his guilt, the accused will be deemed to innocent of the charge and will be acquitted. The contents of that section were read out to the accused before the Prosecution case.

Section 8 (1) of the Penal Code provides that

"no person shall be convicted of any criminal offence unless the prosecution shall prove his guilt according to the law and beyond reasonable doubt by means of evidence properly admitted; the determination of proof of guilty beyond reasonable doubt shall exclude consideration of any possibility which is merely fanciful or frivolous."

Proof beyond reasonable doubt means that the Court must be sure or satisfied of guilt before a judgment of guilty can be entered.

It was accepted during the course of this trial by the defence that there was a prima facie case made out against the accused and I ensured that section 88 of the Penal Code Act was complied with by indicating to the accused that he was entitled to give evidence on his own behalf in addition to calling other people as witnesses. 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. He elected at this trial to give evidence.

I remind myself of course that I am entitled to draw inferences or conclusions from facts, which have been proved to me in evidence. Such conclusions are not guesses rather they are logical, reasonable and fair deductions from facts, which have been proved. In this case the Public Prosecutor has asked the Court to draw conclusions from the circumstances that have been proved and I will advert to that a little later. Of course I am not here to speculate nor to guess.

In relation to the charges themselves, section 98 (1) of the Criminal Procedure Code provides that 'no person shall commit any act of indecency with any other person under the age of 13 years'. As I have said the age is not an issue in this trial. As to indecency there is no fixed legal definition of indecency. It is for the Court to decide as a matter of fact whether what was done if it were accepted was indecent and the Court decides that by applying what it considers to be the standards commonly accepted in the community. In other words if the Court consider that what was done was something that the community generally would regard as indecent then for the purposes of this trial it is indecent and that is a matter for the Court to assess and to decide.

In relation to the first 2 counts, the element of consent arises. Consent in the context of a charge such as this means a consent that is freely given by a person who is able to understand the significance of what is going to happen. If I considered that it was at least a reasonable possibility that the complainant did consent or that the accused honestly believed that she did even if he was mistaken or had no reasonable grounds for that belief, then the charge would fail. So if consent and honest belief in consent is raised the burden is on the Prosecution to prove beyond reasonable doubt, first that the complainant did not consent and second that the accused did not have an honest belief that she consented.

As will become apparent, however, in the context of this case, the accused denies absolutely that the indecent assault occurred at any stage.

In relation to count 3 and 4 unlawful sexual intercourse. Section 97 (1) provides that 'no person shall have sexual intercourse with any girl under the age of 13 years'. Likewise age is not an issue. The other essential ingredients are as follows although in mentioning those, I note that the legislation provides that it is no defence to charge under this section that the girl consented or that the accused believed that she was of or over the age in question. The essential ingredients are of course first that the accused was involved, second, that he had sexual intercourse with the complainant and sexual intercourse is the penetration of the vagina of a woman by the penis of a man. Any degree of penetration no matter how slight is sufficient. There does not have to be full intercourse in the sense of ejaculation. But the penetration must be intentional, that is, deliberate as opposed to accidental. I have already referred to the question of age.

And it is clear from the evidence of the complainant in this trial, that if her evidence was accepted, there was certainly sexual intercourse because she said in evidence that on these occasions which she referred to, the accused pushed his penis into her vagina which is of course in accordance with the definition of sexual intercourse that I have already given. She also referred in the course of evidence to the question of threats in that she said that she did not want to go to the plantation on one occasion but the accused threatened her by saying that he would take a knife and cut her should she not comply.

As far as the evidence is concerned, it is relatively straightforward. The complainant gave evidence that on 6 occasions in January and February 2003, the accused had sexual intercourse with her. That evidence, of course, was not in accordance with the indictment that was read to the accused. The original charge in front of the Magistrates' Court for the Preliminary hearing alleged in Count 1 three incidents of sexual intercourse and in Count 2, one further incident of sexual intercourse. The first three being in January and the count relating to the fourth incident being in February. Those were the charges originally put to the accused in this trial but the Public Prosecutor sought to adduce a further indictment, which I already referred to in detail. Although he submitted that that was in accordance with the evidence when one peruses the evidence that was in fact not the case. But in any event it is clear that unlawful sexual intercourse can include the elements of indecent assault so to that extent if the unlawful sexual intercourse in counts 1 and 2 were proved by evidence, they would be sufficient to constitute, in my view, offences of indecent assault although clearly unlawful sexual intercourse is a more serious charge than indecent assault or indecency with a child under the age of 13 years of age.

Significantly, also at the preliminary hearing, evidence was given by a number of witnesses. There were in fact six witnesses who gave evidence at the preliminary enquiry. At this trial, it is only been the complainant who has given evidence. The trial had already been delayed to allow her to fly to Port Vila. In the course of the hearing, the Prosecutor indicated to me at the commencement of the trial that the other witnesses had not been able to come to Vila because of the nature of the weather and the airport involved. I allowed him the opportunity of adjourning the trial if he thought fit to allow the witnesses to be heard. He declined that alternative and elected to proceed on the evidence of the complainant alone. So the other witnesses Gideon Avock, Diana Bill, Bill Edward, Mar Gedion and Saki Heiyie in fact did not give evidence.

In addition, at the preliminary hearing there was tendered to the Court, not only the birth certificate of the complainant but also a medical report. The author of that medical report was not called to give evidence. The Public Prosecutor did not seek to produce the medical report and the defence in any event would have objected to it in the absence of author of the report but the only evidence given at this trial was from the complainant and the accused. 

Effectively, the complainant's evidence was that sexual intercourse took place on the 6 occasions that she referred to detail. As far as the accused was concerned, he denied in his evidence which he elected to give, any incidents of sexual intercourse and in relation to the first matters which arose in January 2003, he said that he did not have any contact with the complainant in any event and gave evidence about where he was and what he was doing on the days when allegations were made by the complainant. In relation to the February incident, the accused said that certainly when he was at the beach in his words "taking the air", the complainant came along and displayed her private parts to him but he denied that there was any sexual intercourse between the two of them and in fact his evidence was that he sent her off home at that time.

In view of the way that the trial proceeded and in view of the fact that it was the complainant only, who gave evidence together with the accused, I must turn my mind to the question of corroboration. Even though a case does not fall within a statutory category, judges are required under the common law to heed the warning of the danger of convicting on the uncollaborated evidence of a witness who falls within, in this case the category of a complainant in a sexual offence. The requirement that one should warn oneself in respect of evidence given by witnesses falling within that category is a rule of law. What is looked for under the common law rule is confirmation from some other source that the suspect witness is telling the truth in some part of her story which goes to show that the accused committed the offence with which he is charged. As a matter of law, corroboration must come from a source of, which is independent of the witness whose evidence is to be collaborated. It is a question of law as to whether certain evidence is capable of being corroboration but of course, in this case as I have said, there was no corroboration at all in relation to the evidence of the complainant.

To conclude in relation to corroboration, I point out there has never been a rule of common law that one cannot in an appropriate case, bearing in mind what I have already said, convict in the absence of collaboration, however, desirable it might be that there should be corroboration. So the Court is entitled in appropriate cases to convict on uncorroborated evidence but it must heed the warning that I have referred to and must take that into account.

I have had the opportunity, of course, of seeing and hearing both of the witnesses in this trial. The accused has given evidence as I have said he did not have to do so and in so doing he has not taken on the responsibility of proving his innocence. The onus of proving guilt remains on the Prosecution.

In summary then in this trial, I have referred to the two witnesses concerned. The complainant has said that the accused had sexual intercourse with her on six occasions, five times in January 2003 and one time in February 2003. She was firm and steady under cross-examination despite her age of 13 years and did not recant at all. Of course, as I have said, there was no corroboration. The Prosecution in its submissions indicated that the two versions before the Court involve findings of credibility and as I have said that myself demeanour is an important consideration. The Prosecutor submitted that the victim was a young innocent and unsophisticated girl. She gave evidence on oath, she proved to be a strong person because even under cross-examination she was not shaken. The Prosecutor submitted that the Court should accept her version as one of truth. He referred to the knife and the harsh word used and to the fact that the accused is a stronger person much more so than the complainant, which would put fear into her. 

On the other hand, the accused denied that sexual intercourse ever occurred between them. He acknowledged that they had been together on the February date but that nothing untoward occurred between them except that she displayed her private parts to him and he sent her home. 

As I mentioned during the closing of the defence, it was a shame that those particular matters were not put to the complainant in that way but the accused, in fairness, was equally firm and resolute under cross-examination in denying that sexual intercourse ever took place. As I have already said he went further and said that he had never seen the complainant or been with her on the January dates and he gave evidence about where he had been and what he had been doing at those times. Of course he accepted that he and the complainant lived in the same village.

The defence submitted that both witnesses gave uncorroborated evidence and the Court should be careful and note, as I have already said, that the accused was not shaken by any questioning under cross-examination.

Thus, there are two competing and diametrically opposed versions. One equally as strong as the other. I have no reason to prefer one version to the other. The scale in this case is equally balanced and when that occurs the Prosecution has failed to prove the case to the standard of proof beyond reasonable doubt. The Court is not saying that the events referred to by the complainant never happened. It is saying that the Prosecution has not proved the case to the required standard.

In summary when I look at the case and the burden of proof and the principles that apply to all criminal trials I cannot be sure, having heard the evidence, of the guilt of the accused. He must as a result of that be acquitted.

Mr. Hortial, please stand.

I have found you not guilty for the reasons I have given. You are now free to go.

Dated AT PORT VILA, this 18th day of October 2004

BY THE COURT

P. I. TRESTON
Judge