Public Prosecutor v Tom [2004] VUSC 75; Criminal Case 007 of 2004 (17 May 2004)

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

Criminal Case No. 07 of 2004

PUBLIC PROSECUTOR

–v-

KALMER TOM

Coram: Justice Treston

Mr. Stephen for Public Prosecutor
Mr. Bartels for Defendant

Date of hearing: 17th May 2004
Date of Decision: 17th May 2004

ORAL DISPUTED FACTS DECISION

This has been a disputed facts hearing. The accused has pleaded guilty to 1 count of rape and a summary of facts has been presented. There are effectively two elements in the summary of facts which are in dispute. The first is this, the summary of facts refers to the defendant opening the door of the back seat of the vehicle in which the victim was sitting and asking to her to come out of the taxi or else he would kick her with his shoes.

The complainant, the victim, has given no evidence at all about that at this disputed facts hearing. That was a disputed fact. I delete the reference to the threat allegedly made by the accused to the victim from the summary of facts. However, in view of the evidence that has been given today there is clearly something that must be added to the summary of facts namely, that the accused pulled her out of the car and pushed her to the side of the road. That was not contested and that is clearly the factual situation. However, I find that there were no threats that the accused would kick her with his shoes, should she not get out.

The other matter of disputed facts has been this. There was some dispute between the parties as to whether or not the victim ran towards the door when she was in the what clearly was a small hut. She had not said that she had ran towards the door in her initial statement, she said that in evidence today but I find that in fact she did not ran towards the door. The accused denied that and said that there was simply no room to allow that to be physiologically achieved in any event.

However, more significantly was the contention made by the complainant that the accused told her that if she did not have sex with him, he would cut her with a knife and when she turned, she saw a bush knife and a small knife on the table close to the bed where the act of intercourse, the rape, eventually took place.

The accused denied that he said that and not only denied that there was a small knife or a bush knife on the table near the bed but denied that there was even a table in the room at the time.

I have heard the evidence from the complainant and the accused at this disputed facts hearing. The matters of fact that are in dispute are not matters that need to be proved by the prosecution beyond reasonable doubt because they are not essential ingredients of the charge of rape but they are peripheral matters that are relevant and compelling because they may well influence the question of sentence ultimately when that exercise is undergone. I have got to say that having heard the victim and the accused give evidence about this contested threat and the contested facts as to whether or not there was a bush knife and small knife on a table is equally balanced between the evidence of the complainant and the accused. Where that is the case and bearing in mind the standard that I must consider finding must be in favour of the accused in these circumstances. What the complainant said could be true. What the accused says about the knife could be true. There is no compelling evidence one way or the other. It is simply the complainant's word against the accused's word and in all the circumstances I am not able to say that either of them is to be preferred. Thus I will not include that threat nor the fact that there was a small knife and a bush knife in the room at the time and will sentence on that basis.

That is the finding of the Court in relation to the disputed facts.

Dated AT PORT VILA, this 17^th day of May 2004

BY THE COURT

P. I. TRESTON
Judge