Public Prosecutor v Aru [2005] VUSC 83; CRC 026 2005 (17 June 2005)

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

CRIMINAL CASE No. 26 of 2005

PUBLIC PROSECUTOR

-v-

BRUCE ARU

Coram: Chief Justice Vincent Lunabek

Counsel: Mr. Hillary Toa, the (Acting) Public Prosecutor
Mr. James Tari for the Defendant

Date of Hearing: 14, 15, 16 June 2005
Date of Judgment: 17 June 2005

JUDGEMENT

INTRODUCTION: Offence & Particulars

This is the trial of the Defendant: Bruce Aru. The Defendant was charged with the offence of Attempted Rape, Contrary to sections 28 and 91 of the Penal Code Act [CAP. 135].

The particulars of the offence are set out as follows:

Bruce Aru is from Ambae Island and lives in Port-Vila. On 10 October 2003, at Malapoa College, Vila he attempted to rape the girl complainant (GS) and at that time the girl did not consent.

PLEA

The Defendant pleaded not guilty to the offence as charged.

His rights under sections 81 and 88 of the Criminal Procedure Code Act [CAP. 136] were read and explained to him. He understood them.

Statutory provisions

Rape is defined by section 90 of the Penal Code as follows:

“90. Any person who has sexual intercourse with another person:

(a) without the person’s consent; or

(b) with that person’s consent if the consent is obtained:

(i) by force; or

(ii) by means of threats of intimidation of any kind; or

(iii) by fear of bodily harm; or

(iv) by means of false representation as to the nature of the act;

(v) in the case of a married person, by impersonating that persons husband or wife;

commits the offence of rape. The offence is complete upon penetration.

PUNISHMENT OF RAPE

91. No person shall commit rape.

Penalty: Imprisonment for life.”

Section 28 of the Penal Code provides for the circumstances in which an attempt commission of a criminal offence occurred. Section 28 reads:

“28(1) An attempt to commit a criminal offence is committed is any act is done or omitted with intent to commit the crime and such act or omission is a step towards the commission of that crime which is immediately connected with it, or would have been had the facts been as the offender supposed them to be.

(2) An attempt shall be committed notwithstanding that complete commission of the offence was impossible by reason of a circumstance known to the offender.

(3) ...

(4) The commission of an attempted offence shall constitute an offence punishable in the same manner as the offence concerned.

(5) ...”

ELEMENTS OF THE OFFENCE

The following are the essential elements of the offence of rape:

1. The Defendant has sexual intercourse with the complainant girl on 10 October 2003;
   
2. Without the consent of the complainant girl;
   
3. The consent of the girl is obtained:-
   

(a) by force; or

(b) by fear of bodily harm.

4. The Defendant attempted to penetrate the vagina of the complainant girl.
   

BURDEN OF STANDARD OF PROOF

Before a conviction can be secured against the Defendant, the law is that the prosecution has the duty to prove each and all essential elements of the offence charged against him as I set them out above.

The Defendant is not required to prove his innocence. If the Defendant elected to give evidence as the accused did in the present case, I must consider his evidence and assess them on equal basis as any evidence of the prosecution’s witnesses.

The onus or burden of proving the guilt of an accused person beyond a reasonable doubt rests upon the prosecution and it never shifts. The prosecution must prove beyond a reasonable doubt that an accused person is guilty of the offence which he is charged before he can be convicted. If I have a reasonable doubt as to whether the accused committed the offence with which he is charged, it is my duty to give that accused the benefit of the doubt and to find him not guilty on the charge. Proof beyond a reasonable doubt has been achieved when I as a Judge of fact feel sure of the guilt of the accused. It is that degree of proof which convinces the mind and satisfied the conscience so that I as a conscientious Judge of facts feel bound or impelled to act upon it. Conversely, when the evidence I have heard leaves me as a responsible Judge of fact with some lingering or nagging doubt with respect to the proof of some essential elements of the offence with which the accused is charged so that I am unable to say to myself that the prosecution has proven the guilt of the accused beyond a reasonable doubt as I have defined these words, then it is my duty to acquit the accused.

If I believe the accused and he did not commit the offence or what he did lacks some essential elements or the offence if the evidence of the accused either standing alone or taken together with all of the other evidence leaves me in a state of reasonable doubt I must acquit him. But if upon consideration of all the evidence, the arguments of counsel and the charge I am satisfied that the accused has been proven guilty beyond a reasonable as I have defined these words above, it is my duty to convict the accused. I must say it is rarely possible to prove anything with absolute certainty. So the proof or the burden of proof on the prosecution is only to prove guilt beyond a reasonable doubt. When I speak of reasonable doubt I use the words in their ordinary natural meaning, not as a legal term having some special connotation. A reasonable doubt is an honest and fair doubt based on reason and common sense. It is a real doubt, not a imaginary or fanciful doubt which might be conceived by an irresponsible Judge of fact to avoid his or her plain duty.

CASE FOR THE PROSECUTION

The thrust of the prosecution case is as follows:-

The alleged incident occurred at Malapoa College on 10 October 2003 in the early part of the evening of that date. The complainant girl (G.S.) was in A.V. Room with other students. She attended an SDA Pray Meeting that evening. The accused and two (2) of his friends, all students of Malapoa College, came to the school.

One of the girls, Leinasu was studying in the classroom. The accused asked her to go and tell the complainant to come and see him. Leinasu refused. The Accused swore at Leinasu and threatened her. She went to see the complainant in A.V. room. She called the complainant. The complainant came outside, The accused grabbed on the right hand of the complainant girl and threatened her. The girl complainant followed the accused on side of the road. After the accused threatened her, he forced her to remove her clothes and lay on top of him. The accused then tried to penetrate the vagina of the girl. He could not penetrate the vagina of the girl. He could not penetrate her. He then forced the girl to lay on the grass. He tried to penetrate the girl again. The bell rang from the school. The accused held on the girl’s skirt. The girl returned to school with shirt. A search party was set to search for the girl complainant. The girl complainant went to see the Boarding Master and told him about part of the incident on that evening. The Boarding Master requested from her an Incidental Report. She provided the Report on 11 October 2003. She mad another report on 13 October 2003 and 14 October she was interviewed by the police and she made a statement to the police on the same date.

The case of the prosecution is that the alleged incident occurred without the consent of the girl. The alleged offence amount to an attempted rape, Contrary to sections 28 and 91 of the Penal Code Act [CAP. 135].

THE CASE OF THE DEFENCE

The defence case is that the Defendant agrees with all the facts as alleged and set out by the prosecution. The only factual dispute by the defence is about the element of consent. In essence, the defence says that on 10 October 2003, the girl complainant agreed to follow the accused on the other side of the road. There were no threats by the Defendant on the girl complainant. The girl complainant consented for the Defendant to have sexual intercourse with her by penetrating her vagina.

EVIDENCE

The evidence for the prosecution. The prosecution called 6 witnesses. The first prosecution witness is the complainant girl (G.S.).

DATED AT PORT-VILA this 17^th DAY of June 2005

BY THE COURT

Vincent LUNABEK
Chief Justice