Public Prosecutor v Kalfau [2006] VUSC 46; Criminal Case 059 of 2005 (17 May 2006)

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

CRIMINAL CASE No.59 of 2005

PUBLIC PROSECUTOR

-v-

XAVIER KALFAU

Coram: Chief Justice Vincent LUNABEK

Mr Tevi Lent for the Public Prosecutor
Mr Jacob Kausiama for the Defendant

JUDGMENT

This is the trial of the Defendant, Xavier Kalfau. The Defendant was charged with the offences of:

• Rape, contrary to section 91 of the Penal Code Act [CAP.135]; and
• Attempted Rape, contrary to sections 28 and 91 of the Penal Code Act [CAP.135].
  

The prosecution case is that the Defendant had sexual intercourse with the complainant girl of 14 years of age on 20 September 2005 at 7.00PM at Bahai Centre, Port-Vila. The prosecution alleges that the girl consented to sexual intercourse with the Defendant by force from the Defendant. The prosecution alleges also that on the second incident, at Independence Park, Vila, the Defendant forcefully attempted to rape the girl complainant on 22 September 2005.

The defence denies the allegations. They say that the sexual intercourse occurred on 20 September 2005 with the consent of the girl and there was no force used by the Defendant. The defence denied that the Defendant attempted to rape the girl complainant on 22 September 2005 as alleged by the prosecution.

The law is that it is for prosecution to prove the case against the Defendant on beyond reasonable doubt. It is not the task of the Defendant to prove his innocence. If at the end of the evidence there is a reasonable, I must interpret it in favour of the Defendant and acquit him from the charge.

The complainant girl (DT) is the first and main prosecution witness. She was called in the witness box and took her oath. She understands what is right and what is wrong. She understands to tell the truth to the Court.

Before she gave evidence she asked permission to say something. The Court gave her permission to do so. The girl told the Court that she wrote three letters. One for the Judge, one for the prosecution counsel and one for the defence counsel. She then through Court Clerk gave the letters to the Court, the prosecution and the defence counsel.

Before I read the content of the letter, I asked her to tell the Court what was written in the letter. She said words to this effect:-

"Mi putum wanem we i tru. Hemia nao mi wantem talem. Hemi nogat force. Mi fraet se family blong mi bae oli look me olsem wan solmit or wanem... Bae oli treatem mi nogud. Mi no save se bae family blong mi bae tekem case i kam long Court. Bubu man blong mi nao I report. Taem mi gat sex wetem man ia, bemi no forcem mi. Kasem naoia mi fraet yet. Unle blong mi I talem se sipos mi changem toktok blong mi long Court bae hemi sendem mi long Island (Ambae). Mi sorry long Court blong takem time blong yufala. Mi tekem bible. Mi promes mo mi wantem talemaot truth nomo. Family blong mi oli talem se cousin sister blong mi Patricia Stafford nao I mekem se mi changem tingting blong mi long Court but hemi no true. Toktok ia I blong mi."

Below is her letter:

"To Judge Hamm Bulu

Hi my name is Danielle Toka. (I have a case with Xavier Kalfau) well I would like to withdraw the case for I make a big mistake in saying it was rape but did not know that I would cause all this problems the truth is I went out with Sir Xavier Kalfau with my own will but was afraid to admit because I though my family would look at me as a slut or turn their backs on me. I was also afraid that my cousin sister (Patricia Stafford Xavier’s girlfriend) would beat me up, but really at that time I didn’t know what to say so when my boyfriend asked me was it rape or did you agree I took the idea from there and said yes it was rape (only thinking about me not loosing my boyfriend) but not knowing that it would come to all this. I still am scared of what my family will think of me now but the truth must come out. I sincerely apologize for wasting all of your time but I do believe you would have a punishment for mi. I am so sorry Sir Judge.

Sign

Danielle Toka."

As to the allegation of attempted rape, she said it was no true. On the morning of 22 September 2005, she went to Collardeau to see her cousin sister Patricia. She was not there. Her grandmother was not there either. But Xavier Kalfau was. Kalfau asked her if she told anyone about their sexual intercourse on 20 September 2005. She said no but everyone was aware about it. Patricia asked her why she came to Collardeau, she replied she came to see her but she was not there. She admitted she came twice on that day at Collardeau, first in the morning and then in the afternoon. When Patricia knew that she came also in the morning, she questioned the complainant as to whether she came at Collardeau in the morning and why?

The complainant witness said she cried and she made up the story that Xavier Kalfau attempted to rape her. She said it was not true. She said at that time her sister was very angry and she said if she did not tell lies, her sister would beat her. She said she went to medical examination. There was no evidence of penetration.

On the basis of the prosecution’s main witness statement that she consented to sexual intercourse and that the Defendant did not obtain her consent by force, the trial comes to an end as there is no evidence of the prosecution to prove his case beyond reasonable doubt on the two (2) counts charged against the Defendant, Xavier Kalfau.

In essence, there is no rape nor attempted rape committed by the Defendant, Xavier Kalfau as alleged by the prosecution.

Decision

Xavier Kalfau is therefore acquitted from the offence of Rape contrary to Section 91 o the Penal Code Act [CAP.135] and also acquitted from the offence of Attempted Rape, contrary to Sections 28 and 91 of the Penal Code Act.

Dated at Port-Vila this 17th day of May 2006

BY THE COURT

Vincent LUNABEK
Chief Justice