Public Prosecutor v Frank [2004] VUSC 63; Criminal Case 004 of 2004 (23 July 2004)

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

CRIMINAL CASE No. 04 of 2004

PUBLIC PROSECUTOR

-v-

SIMEON FRANK
DANIEL KALMAIRE
ADAM SILAS ISMAEL
JOHN ISMAEL

Coram: Chief Justice Vincent Lunabek

Counsel: Mr. Liam Shaw for the Public Prosecutor
Mr. Felix Laumae for the Defendant, Simon Frank
Mr. Bill Bani for the Defendant, Daniel Kalmaire
Mr. Ronald Warsal for the defendant, Adam Silas
Mr. Peter Bartels for the Defendant, John Ishmael

Interpreter: Ms Jennifer Nicole
Court Clerk: Marilyne Sese

JUDGMENT

I. INTRODUCTION: NATURE OF CHARGES AND PLEAS

This is the judgment of the Court in this case. The proceedings took place in Bislama and English. The judgment is written in English.

The defendant, Simon Frank, is charged in Count 1 with the offence of Aiding Rape, contrary to Sections 28 and 91 of the Penal Code Act [CAP. 135].It is particularized that Simon Frank is of Efate Island and he lives in Port-Vila.

In or about 17 November 2003 at an empty yard near Mangoes Restaurant at Seaside area, Port-Vila, he aided the following Defendants: Daniel Kalmaire, Adam Silas Andrew, Kalfau Alick Kalmaire and John Ishmael to have sexual intercourse with the Complainant (C). without her consent.

Simon Frank pleaded not guilty to the charge of Aiding Rape, contrary to Section 28 and 91 of the Penal Code Act [CAP. 135].

In count 2, the Defendants Daniel Kalmaire, Adam Silas Andrew, Kalfau Alick Kalmaire and John Ishmael are charged with the offence of rape, contrary to Section 91 of the Penal Code Act [CAP. 135].

It is particularized that Daniel Kalmaire Adam Silas Andrew, Kalfau Alick Kalmaire of Efate and John Ishmael of Nguna, all live in Vila. In or about 17 November 2003, in an empty yard near Mangos Restaurant at Seaside area, Vila, they forced C and have sexual intercourse with her without her consent.

Daniel Kalmaire, Adam Silas Andrew and John Ishmael pleaded not guilty to the charge of rape, contrary to Section 91 of the Penal Code Act.

Kalfau Alick Kalmaire pleaded guilty to the offence of rape, contrary to Section 91 of the Penal Code. His sentence is adjourned pending the outcome of this case.

In this trial before the Prosecution opens its case, the statement of the presumption of innocence is read and explained to each of the defendants as set out under Section 81 of the Criminal Procedure Code Act [CAP. 136].

II - STANDARD OF PROOF AND ESSENTIAL ELEMENTS OF OFFENCES

This is a criminal trial. The law is for the prosecution who brings the charges to prove each and all essential elements of the offences as charges beyond a reasonable doubt. The prosecution must prove each of the Defendant’s guilt beyond a reasonable doubt. If at the end of the day, I am left with a reasonable doubt as to each of the defendant’s guilt, then each of them be entitled to the benefit of the doubt and be acquitted.

I bear in mind that the Defendants, Daniel Kalmaire, Adam Silas Andrew, and John Ishmael are charged jointly in count 2 with the offence of rape which is alleged to have been committed by each on the same and not separate occasions, and all or some of them are together, it is not essential for the prosecution to establish that each was acting in concert with the other. It is open to me as the Judge of fact, to convict each of them having committed independently the offence which is subject to the joint charge (rape in count 2).

This means that where one of the Defendants who is jointly charged with an offence is acquitted, the other may be convicted of that offence as if they had been charged in a separate count with a separate offence.

Each and all Defendants made statements in this case. Trials within trial were held as to whether or not statements were obtained voluntarily and after deletion of some portions, they were admitted in evidence.

The Defendants elect to give evidence in this case. They did not need to do so. As in any criminal case, there is no evidential burden at all on the Defendants. They could remain silent and simply allowed themselves to be tried on the evidence called by the prosecution as set out under Section 88 of the CPC [CAP. 136] which was read and explained to the defendants, makes it clear to this effect.

In any event, the Defendants gave evidence. This means that having given evidence the Court must assess their evidence in the same way as any other evidence given by the prosecution witnesses.

The offence of rape is defined under Section 90 of the Penal Code [CAP. 135] as follows:-

Section 90

“RAPE DEFINED

90. No person who has sexual intercourse with a woman or a girl without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representation as to the nature of the act, or, in the case of a married woman by impersonating her husband, commits the offence of rape. The offence is complete upon penetration.”
    

The prosecution must prove that the Defendants: Daniel Kalmaire, Adam Silas Andrew and John Ishmael had sexual intercourse with C without her consent. The elements of the offence to be proved by the prosecution beyond a reasonable doubt are:-

1. The Defendants: Daniel Kalmaire, Adam Silas and John Ishmael;
   
2. Had sexual intercourse;
   
3. With the Complainant;
   
4. Without her consent.
   

In the present case, the first three elements of the offence of rape are not disputed.

The only element in dispute is the fourth, i.e. “without the consent” of the Complainant.

In this case, the Defendants raised and grounded their defence on the plea of genuine and reasonable mistake of fact as set out under Section 12 of the Penal Code which provides as follows:

“A mistake of fact shall be a defence to a criminal charge if it consists of a genuine and reasonable belief in any fact or circumstances which, had it existed, would have rendered the conduct of the defendant innocent.” (As amended by Act No. 27 of 1987).

The process by which Section 12 of the Penal Code operates is as follows:

(a) the accused must satisfy the Court that the defence of honest and reasonable mistake is “sufficiently raised”, then if so,

(b) the prosecution must negative the defence by proving beyond a reasonable doubt that either:

(i) the accused did not genuinely believe [that the complainant consented]; or

(ii) the belief of the accused [that the complainant consented] [i.e. a reasonable man standing in the shoes of the accused would not have believed that the complainant consented].

The expression “sufficiently raised” means that Parliament requires the accused to provide a “foundation in evidence” for the defence of honest and reasonable mistake of facts as evidentiary onus.

I accept as a persuasive authority, the decision of the Australian High Court in He Kau Teh v. The Queen (1985) 157 CLR at 592-3 per Dawson J where it was stated as follows:-

“There is, however, no justification since Woolmington v. DPP for regarding the defence of honest and reasonable mistake as placing any special onus upon the accused who relies upon it. No doubt the burden of providing the necessary foundation in evidence will in most cases fall upon the accused. But it is not inconceivable that during the case for the prosecution sufficient evidence may be elicited by way of cross-examination or otherwise to establish honest and reasonable mistake or to cast sufficient doubt upon the prosecution case to entitle the accused to an acquittal. The governing principle must be that which applies generally in the criminal law. There is no onus upon the accused to prove honest and reasonable mistake upon the balance of probabilities. The prosecution must prove his guilt and the accused is not bound to establish his innocence. It is sufficient for him to raise a doubt about his guilt and this may be done, if the offence is not one of absolute liability, by raising the question of honest and reasonable mistake. If the prosecution at the end of the case has failed to dispel the doubt then the accused must be acquitted.”

Section 9 of the Penal Code provides:

“BURDEN OF PROOF IN CERTAIN CASES

9. Unless otherwise expressly provided by law, the burden shall rest upon the prosecution to disprove beyond reasonable doubt any plea of provocation, compulsion, coercion, self-defence, necessity, consent, accident or mistake of fact which has been sufficiently raised by the defence as an issue. ”
   

By perusing the language of Section 9 of the Penal Code, the plea for defence of consent is one of the pleas specifically covered. It is then clear that there is no onus upon the accused to prove honest and reasonable mistake upon the balance of probabilities. The prosecution must prove the guilt of the accused persons beyond a reasonable doubt.

The accused Simon Frank, is charged with the offence of aiding the rape of the Complainant. by the four Defendants (including Kalfau Alick). The offence is contrary to Sections 30 and 91 of the Penal Code Act [CAP. 135]. The definition of rape has been provided under Section 90 of the Penal Code. Section 30 of the Penal Code says:

“Any person who aids, counsels or procures the commission of a criminal offence shall be guilty as an accomplice and may be charged and convicted as a principal offender.”

The prosecution alleged that:-

(1) Simon Frank brought the Complainant to the place where she said she was raped; and

(2) He arranged for the other Defendants to be hiding in the vacant land.

The prosecution must prove beyond reasonable doubt that: Simon Frank aided the Defendants to have sexual intercourse with C without her consent by-

(i) Bringing C to the place where sexual intercourse occurred; and

(ii) arranged for the defendants to hide or be in place (here vacant land) where the incident occurred; and

(iii) he himself is present at the scene and watching or making sure that a particular course of event occurred.

EVIDENCE

The detailed record of the evidence are contained in the note of evidence. What follows are summary of relevant part of the evidence. Some parts that are not in dispute are taken from the submissions of the counsel when made in writing.

Events of the day of 17.11.03

• On 17 November 2003 Daniel Kalmaire told Simon Frank that he wanted to have sex with C, an ex girlfriend of Simon Frank.
  
• Simon Frank agreed to arrange for Daniel Kalmaire to have sex with C.
  
• When working on his truck at No.3 area, Daniel Kalmaire told John Ishmael of his intention to have sex with C and John Ishmael told him that he wanted to have sex with her after him. But then John said it was a joke and they laughed at it.
  

Meeting at Seaside garage

• Simon Frank, Daniel Kalmaire, Adam Silas, Kalfau Alick and John Ishmael met together at a garage at Seaside Police at around 1900 hours where Simon Frank sent a younger boy to fetch C.
  
• Daniel Kalmaire reminded Simon Frank, his cousin, to ensure that he arranged sex with C.
  
• C came and John Ishmael asked her to fetch Jesse Steele.
  
• She went to fetch Jesse Steele from her home three times but Jesse Steele did not want to come.
  
• Daniel Kalmaire went to Mark Reginals’ Nakamal and had 2 shells of kava and was slightly affected by the kava.
  

The Complainant attempted to go home

• She walked with Simon Frank to the Nakamal. Ben Alick was with her. At the Nakamal, Simon Frank told her and Ben Alick that they were to wait for him at the gate to the hospital further up Wales Street.
  
• She and Ben Alick walked to the hospital and waited.
  
• She decided to walk home as she was tired and proceeded to walk through the hospital. Ben Alick went and told Simon Frank that C was going home and Simon Frank with John Ishmael and Ben Alick ran after her and Simon Frank went and stopped her and told her to come with him and walked her past the Nakamal up Wales Stree.
  
• Ben Alick and John Ishmael walked through the hospital grounds to Wales Street near Mangoes Resort where they met up with Daniel Kalmaire, Kalfau Alick and Adam Silas. A conversation took place where John Ishmael was asked by the others were C and Simon were and he told them that C and Simon were coming up the Street.
  

Events at the yard above Mangoes Restaurant

• John Ishmael, Ben Alick, Daniel Kalmaire, Adam Silas and Kalfau Alick went to the white gate above Mangoes Resort and waited there for Simon Frank to bring the Complainant.
  
• Simon Frank walked C past where the men were waiting at the first gate to the yard above Mangoes Restaurant to the second gate and sat with her in the yard for some time.
  
• Simon Frank then walked alone to the first gate and looked at the men waiting there and then walked back to C at the second gate.
  
• Simon Frank then walk complimented C and asked her to have sex with him to which she agreed.
  
• Simon Frank and C then walked down to the first gate and into the yard and had consensual sex about 30 metres inside the yard.
  
• Simon Frank took off his shirt and laid it on the ground for C to lie on and Simon Frank and C had consensual sex.
  
• After the consensual sex, C was putting her clothes on when Simon Frank told her that a friend of his wanted to have sex with her. C told Simon Frank that she did not want to have sex with his friend. Simon Frank said to her that she would have to say that to the friend when he came.
  

Below is the summary of factual events which amount to the alleged offences:-

Alleged offences

• Daniel Kalmaire approached C. C asked Daniel Kalmaire to get a condom.
  
• Daniel Kalmaire had sexual intercourse with C while Adam Silas was present.
  
• Kalfau Alick then had sexual intercourse with Elice Haggai while Adam Silas was present.
  
• Adam Silas then had sexual intercourse with C.
  
• John Ishmael walked with Ben Alick to the second gate and into the yard and down where he was approaching the area where the sex took place and when he stopped and said to Simon Frank. “Olsem Wanem ia?”
  
• John Ishmael walked down and then had sex with C.
  
• Ben Alick was told that it was his turn by the men but he did not want to have sex with C.
  
• Simon Frank then approached C and walked with her out of the yard and into the grounds of Port-Vila hospital.
  
• Simon Frank left C Haggai to walk home.
  

Complaint to Jesse Steele

• C did not go home but went to Jesse Steel’s place where she woke up Jesse Steele and spoke to her about what had happened.
  
• C when stayed the night at Jesse Steele’s place and went home early in the morning.
  

Physical examination by Dr. Allah of the complainant on 19.11.03

• The Complainant was examined by Dr. Cecil Allah on 19 November 2003 where he observed bruising to her lower hips and a urinary tract infection. She complained to him of being gang raped.
  

Commence of Police investigation

• C made a statement to the Police commencing 8.40AM detailing the incident.
  

Meeting/talk between Ben Alick, Simon Frank and John Ishmael on 20.11.03

• By 9.00AM that day, John Ishmael’s father (a high ranking Police Officer) had returned home from his work at the Police Station and told John Ishmael that the Police were going to come and arrest John and Simon.
  
• John Ishmael met with Ben Alick and Simon Frank at Simon Frank’s house at around 9.00AM where John Ishmael told them that the Police were going to come and arrest them. Ben Alick told John Ishmael and Simon Frank that he had heard C cry. John Ishmael told Ben Alick not tell that C had cried.
  
• Simon Frank and John Ishmael were arrested on 20.11.03 and participated in interviews with Police.
  
• Daniel Kalmaire, and Adam Silas were arrested on 21.11.03 and participated in interviews with the Police.
  

Complaint’s Evidence

The Complainant gave an account in which she knew nothing of any plan for her to have sex with a group of men that evening. Her evidence was the first she knew of any plan for any sex was when Simon Frank had had sex with her and he told her that a (singular) friend of his wanted to have sex with her where she replied that she did not want to have sex with his friend.

The Complainant’s account was that she was approached by Daniel Kalmaire who held her hands. She asked him if he had a condom. At this time, she was then grabbed with her mouth covered by Adam Silas and pulled to the ground where he held her while Daniel Kalmaire and then Kalfau Alick had sex with her against her will. She stated that she was crying at the time and that Silas was kissing her and she tried to pull her face away. The complainant went on to say that Adam Silas then had sex with her against her will and finally John Ishmael had sex with her against her will.

The Complainant then gave evidence that Simon Frank then approached her and assisted her to get dressed and walked with her part of the way home through the hospital. She did not go home. She went to Jesse Steele’s home where she woke her and told her that she had been raped. The Complainant gave evidence that she told Jesse Steele what had happened. She gave evidence that she was afraid to tell her parents, and told her sister whom she then asked to tell her parents. She gave evidence that after telling her parents they advised her to report the matter to the Police. She gave evidence that she still liked John Ishmael, but she confirmed during cross-examination that the sex between her and John Ishmael was against her will. She gave evidence of having had sex with groups of boys including Simon Frank and John Ishmael in the past and that in relation to those incidents, she had never complained.

Jesse Steele

Jesse Steele gave evidence of the Complainant having awoken her at about 10.30PM on the evening of 17.11.03 and that she saw the Complainant to be in a distressed state and that she cried for some 10 minutes before telling her what had happened. She said in examination in chief that the Complainant told her that she had been raped by a group of boys. Steele was then cross-examined where she said that the Complainant had told her that she had consented to the sex between herself and John Ishmael. In re-examination, an application was made for Steele to be declared hostile which was granted. Steele confirmed that the complaint that was recorded in her Police statement was accurate and made at a time when the events were fresh in her memory. Steele was taken through each of the sentences in her statement and confirmed not only that they were true, but if there was any difference between the statement and her testimony, the statement was more accurate. The relevant part of her statement that she confirmed was as follows:-

“Some boys raped me up there... Five or six... I followed Simon Frank up there and went to the gate to an empty yard behind the hospital. Simon told me to sit down and he showed me a small knife and said, “look at this knife, I used the knife to eat a pawpaw”. After a short time Simon took me into a yard. Adam from Emua blocked my mouth with his hand and two other boys held hands. When I was on the ground four or five boys had sex with me I knew one of them was John Ishmael, and Adam but it was dark. They each lied up to have sex with me in turn and then ran away. After they ran away, I went through the hospital gate to walk home but I was frightened to go home to my mum and dad so I came straight to you. I wanted to tell you.”

Joseph Haggai

Joseph Haggai gave evidence as the father of the complainant that he observed the complainant to be in a stressed state and avoided speaking to him when she came home in the morning of 18.11.03.

Ben Alick

Ben Alick gave evidence as to being a relative and friend of the four accused and of having been with them on the night. He gave evidence in chief of being with John Ishmael as he walked through the second gate and down to Simon Frank where John Ishmael said, “Olsem wanem ia?” and Simon Frank not responding. He gave evidence of Kalmaire, Silas and others coming up to him and telling him that it was his turn now, but that he did not want to have sex with the Complainant.

In his cross-examination Alick gave evidence that he saw C place her legs around John Ishmael. He said also that he mentioned to Simon Frank and John Ishmael that he heard that the C was crying on the night of 17 November 2003 at the time of incident. He explained finally that when he used the word “cry” he meant “cry” in sexual enjoyment.

Evidence of the four accused

Simon Frank

Simon Frank gave an account of the event. In his account he planned for Daniel Kalmaire to have sex with C. He asserted that he had nothing to do with the other boys being at the yard or what they did. He met with John Ishmael and Ben Alick. He was sitting in an area above the area where C was. He gave evidence of the Complainant’s legs around the John Ishmael when they had sex. Frank gave evidence of sitting at least 5 metres away in long grass. He said he could see Kalmaire have oral sex with the complainant and Silas kissing her.

Daniel Kalmaire

Daniel Kalmaire stated in his confession that he did not know the Complainant’s name. Daniel Kalmaire stated in his confession that Simon Frank told Adam, Kalfau and himself to wait at the white gate. Kalmaire further stated that he was 23 on the two occasions in evidence in chief whereas his age was in fact 33 years which he confirmed during his cross-examination.

Adam Silas Andrew

Adam Silas’s account was that he knew nothing of any plan for anyone to have sex with the Complainant, but he first thought something was going on when Kalmaire walked into the yard, and he decided that he would have a turn. He gave evidence that he approached the complainant, did not speak a word, yet from their first second together were kissing each other passionately and that he gradually lowered the complainant to the ground where he then lay in a diagonal position. He stated that when he had walked over, he thought that Kalmaire had finished having intercourse with the complainant, yet when he lay down positioned his body in a peculiar way. Silas in cross examination gave an inconsistent answer in relation to why he lay in the diagonal manner when he said that he knew that Kalmaire was going to come and have sex with the complainant. His evidence was that he and the complainant passionately kissed each other for some time while two other men (Kalmaire and Kalfau Alick) had sex with her.

John Ishmael

In examination in chief, John Ishmael put a story before the Court that his sexual intercourse with the Complainant had been entirely opportunistic - he just happened to be present when Simon Frank brought C to the yard and just happened to decide on his own that he would have sex with the Complainant and that because she did not kick him away, she consented. Ishmael also gave evidence of having strong feelings for the Complainant and that he planned to marry her when the case was over.

In cross-examination, John Ishmael stated the Complainant was in fact his second choice for a sexual partner for the night. He stated that the Complainant was simply a woman; her identity on the night was unimportant to him. He also stated that their past sexual experiences had no bearing on his decision to have sex with her. He stated that he didn’t ask her whether she wanted to have sex with her because he was there to have sex, not to talk. Ishmael was cross-examined at length about his statement to the Police which he gave evidence at the trial was not his words and that he had been forced by the police to make the statement, yet agreed that he had never raised any of these matters when he gave evidence on the voir dire where he did raise a dispute about some of the words. In relation to the plan to marry the Complainant, Ishmael stated that the idea had been his parents and was to form part of a custom ceremony in relation to the events if the complainant’s family agreed.

ASSESSMENT OF EVIDENCE: FINDING OF FACTS AND CREDIBILITY

There is evidence that the Complainant had previous sexual intercourse with a group of young men including Simon Frank and John Ishmael but she did not complaint.

However, in this case, there was a significant difference. In this case, the Complainant complained to her close friend immediately after the incident. She was at that time in a distress state. This was a lengthy trial for some weeks. I have ample opportunity to observe each and all witnesses, their demeanour in the witness box and hear their evidence in the witness box.

The following observations came out as a result of such hearing and observations. The Complainant looks and keeps looking at the Court and counsel. She did not look at the ground and mumbling responses. She wrote down and explained her past sexual incidents. I find that she is frank, honest, truthful and reliable witness.

Jesse Steele told the truth in her statement to the Police. She gave different account or new accounts of events when she said that the Complainant agrees to have sex with John. That part was not contained in her statement to the Police. She said the question was not put to her when she was interviewed. That can be an oversight. However, here, the evidence pointed to John Ishmael wanted Jesse Steele in the first place that night. The Complainant was sent three (3) times by John Ishmael to fetch Jesse Steele for him. This did not eventuate. The evidence of John Ishmael shows that he and Jesse’s family are closed friends. I reject that part of Jesse’s evidence as she did not tell the truth on that very part.

I have observed Ben Alick. I find he told the truth in some parts and tell lies in some other aspect of his evidence. I reject that part of his evidence when he said he saw the Complainant placing her legs around John Ishmael. Alick was with the four accused. The four accused gave this same version of events. Alick did not say so in his statements nor any of the accused.

The evidence of Simon Frank is contradicted by the evidence of others when he said he had nothing to do with the other boys being at the yard or what they did. I find that Simon Frank is the leader of the enterprise. He claims he was there and watching, but his account on these point of facts are contradicted by the evidence of other witnesses present at the scene. I do not accept his accounts of events and reject them accordingly.

Daniel Kalmaire is not a reliable witness. His testimony is full of contradictions and inconsistencies. I do not accept his evidence. He is not a trustworthy witness.

Adam Silas Andrew could not explain his two contradictory accounts concerning the positioning of his body. There are contradictions in his evidence and his accounts of events were not plausible. Adam Silas was the one who grabbed the Complainant and covered C’s mouth with his hands and pulled her on the ground where he held her while Daniel Kalmaire and Kalfau Alick had sex with her against her will. His accounts of events were rejected.

There are inconsistencies in the evidence of John Ishmael. He is evasive when answering questions in cross-examination. I consider his evidence and demeanour. He is not a trustworthy witness. His accounts of events are rejected.

It is to be noted that the Complainant’s evidence was that after the initial conversation between Daniel Kalmaire and the Complainant about the condom, no further conversation took place between the Complainant and the four men who proceeded to have sex with her. None of the accused disputes this. John Ishmael’s evidence was that he was there to have sex with the Complainant, not to talk to her.

On the facts as accepted, the only rational conclusion is that on 20 November 2003, there was a meeting between Simon Frank, John Ishmael and Ben Alick. They discussed about certain events including the sexual incident of 17 November 2003. The fact which is accepted is that the three (3) men knew that the Police will come and questioned them.

It is accepted as fact that John Ishmael tried to influence Alick Ben to alter his account of events to the Police by saying “yu no talem se Elice hemi cry”. Ben Alick’s evidence that when he mentioned the word “cry” he meant cry in sexual enjoyment is rejected as a matter of common sense. If there was such a sexual enjoyment which is manifested by the “cry” of the Complainant as Alick said, there would be no complaint. The Complainant’s evidence was that she cried during the incident on 17 November 2003. She then complained to her friend Jesse Steele that she was raped by a group of boys. She was in a distressed state and she cried for about 10 minutes before telling Jesse what had happened to her.

The statement made by each of the four accused were admitted into evidence after rulings had earlier been made by the Court as to the voluntariness of the statements. The Court accepted beyond a reasonable doubt that the statements, as amended, were voluntarily made. The four accused gave evidence at these voir dires and made complaints about some aspects and not others. This each of the four accused agreed to in cross-examination as each of them in their evidence at trial raised further matters as the accounts that they did not contest at the voir dires contained significant differences to the accounts they presented at trial.

The statements of each of the accused contain significant admissions as to their involvement in the planning and implementation of the criminal enterprise. John Ishmael’s statement in particular evidences an enterprise encompassing all of the accused in a plan to have sex with the Complainant, in sharp contrast to his evidence in chief.

It is part of the Prosecution’s submissions that I have to warn myself of the danger to convict the Defendants by relying on the evidence of the Complainant alone without corroborative evidence.

In this trial, the Complainant was a girl. She made her complaint of being raped by the four (4) Defendants. The only issue in dispute is whether or not she consented to have sexual intercourse with the Defendants. At the end of the day, the Court must assess her evidence and the evidence of the Defendants.

In sexual complaint type offences, there is a common law practice that the trial Judge must warn himself or herself of the danger of convicting a Defendant on the evidence of a sole Complainant woman/girl without any corroborative evidence in support. There may be good and sound policy basis to justify this practice.

In Vanuatu, a criminal trial is conducted by a trial judge sitting alone. The trial judge is the judge of law and the judge of fact.

The duty of the trier of fact is to:-

• Hear and take the evidence; and
• Observe the demeanour of the witnesses in the witness box; and
• Consider and assess the evidence of each and all witnesses at the end of the trial; and
• Make findings of fact and credibility of the witnesses.
  

A Complainant woman or girl is capable like a man or boy to tell the true account of what happened to her.

This Court is not bound to apply the above practice. It cannot be applied.

If the trial judge on the factual findings is of the view that there is a reasonable doubt as to the guilt of the accused, the judge must acquit the accused person and discharge him/her accordingly. If the judge is sure of the guilt of the defendant(s) beyond a reasonable doubt, he/she must convict the accused person(s) of the sexual offence as charged.

There is no need for such a warning to be made which is degrading to woman, girl prosecutrix and in the light of the constitutional right to equal treatment under the law [Article 5(2) of the Constitution].

The practice of a judge to warn himself or herself, as a matter of practice, is and must be understood to be different from a legal warning which is specifically required by specific provisions of the criminal law such as Section 59(2) of the Penal Code Act [CAP. 135].

CONCLUSION

The offences in counts 1 and 2 have been proved beyond a reasonable doubt on the facts as found and accepted.

In relation to the defence of honest and reasonable mistake of fact, I find that there is no room for any defence. The evidence are overwhelmingly pointed to an intention on the part of the four accused to commit the offences as alleged.

VERDICT

In count 1:

I find Simon Frank guilty and convict him for aiding the other Defendants to rape the Complainant on 17 November 2003, contrary to Sections 30 and 91 of the Penal Code.

In count 2:

I find Daniel Kalmaire guilty and convict him of the offence of rape, contrary to section 91 of the Penal Code [CAP. 135].

I find Adam Silas Andrew guilty and convict him of the offence of rape, contrary to Section 91 [CAP. 135].

I find John Ishmael guilty and convict him of the offence of rape, contrary to Section 91 of the Penal Code [CAP. 135].

Dated at Port-Vila this 23^rd day of July 2004

BY THE COURT

Vincent LUNABEK
Chief Justice