Bila v Public Prosecutor [2006] VUSC 99; Criminal Case 17 of 2006 (22 September 2006)

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

CRIMINAL CASE No.17 of 2006

BETWEEN:

JOE BILA
Applicant

AND:

PUBLIC PROSECUTOR
First Respondent

AND:

LOUISE WAMBE
Second Respondent

Coram: Chief Justice Vincent Lunabek

Counsel: Mr Hillary Toa for the Defendant
Ms Kayleen Tavoa for the prosecution
The Second Respondent does not attend nor represented

JUDGMENT

This is an application by the Applicant, Joe Bila, seeking various Orders and declarations in the application dated 23 August 2006 and filed on the next date.

The essence of the application is that, the complainant, in the present case, is the wife of the Applicant by customary marriage recognized by law. So, as being the wife of the Applicant, she is not competent to give evidence unless her husband consents to her giving evidence.

Briefly, the Applicant, Joe Bila, has been charged with the offence of indecently assaulting his wife, contrary to Section 98 of the Penal Code Act [CAP.135]. It was alleged that sometime in the year 2003, the Applicant/Defendant had indecently assaulted his wife by inserting into her vagina, bottle of Tusker, lotion, fingers and screw drivers.

There is no dispute that Joe Bila and the complainant are husband and wife by customary marriage as recognized by law. The question the Court is to determine is as follows:-

Is the complainant competent and compellable to testify against her husband, Mr Joe Bila, without his consent in the type of indecency committed by her husband on her body as alleged in this case?

The competency and compellability of husband or wife as witnesses are set out under Section 89 of the Criminal Procedure Code Act [CAP.136]. It reads:

"COMPENTENCY OF... HUSBAND OR WIFE AS WITNESSES

89. (1) Subject to the rules contained in subsection (2) every person charged with an offence, and the wife or husband, as the case may be, of the person so charged, shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person.
    

(2) The following rules shall apply to the witnesses referred to in subsection (1)-

(a) a person charged with an offence shall not be called as a witness pursuant to this section except upon his own application;
(b) the failure to give evidence of any person charged with an offence or of the wife or husband, as the case may be, of the person so charged, shall not be made the subject of any comment by the prosecution;
(c) the wife or husband of the person charged with an offence shall not be called as a witness without the consent of such person unless-

• (i) the wife or husband of a person charged may, under any law in force for the time being, be called as a witness without the consent of such person; or
• (ii) such person is charged with an offence against morality under section 90 to 101 of the Penal Code Act; or
• (iii) such person is charged in respect of any act or omission affecting the person or property of the wife or husband of such person or the children of both or either of them.
  

(d) Nothing in this section shall make a husband compellable to disclose any communication made to him by his wife during the marriage, or a wife compellable to disclose any communication made to her by her husband during the marriage;

..."

Subsection 1 of Section 89 sets out the general rule in relation to the competency of Husband and wife as witnesses. Subsection 2 is the exception to this Rule.

Section 89(2)(c)(ii) and (iii) are the relevant subsections. They read:-

"(c) The wife or husband of the person charged with an offence shall not be called as a witness without the consent of such person unless-

(ii) such person is charged with an offence against morality under section 90 to 101 of the Penal Code Act; or

(iii) such person is charged in respect of any act or omission affecting the person or property of the wife or husband of such person or the children of both or either of them." (underline is added).

The Applicant/Defendant is charged with an offence of Indecently Assaulting his wife and it is a charge of an offence against morality under Section 98 of the Penal Code Act [CAP.135]. It is within the ambit of Section 89(2)(c)(ii) and (iii).

However, the Applicant says through counsel that even if Section 89(2)(c)(ii) (iii) applies the Applicant submits that he relies on Section 89(2)(d) of the Criminal Procedure Code Act [CAP.136] and the expression "communication" in Section 89(2)(d) includes sexual activity between husband and wife during their cohabitation. Therefore, the prosecution is precluded to call the complainant as a witness against her husband as to do so, it will be a breach of Section 89(2)(d) of the Criminal Procedure Code [CAP.136].

Section 89(2(d) reads:-

"(d) Nothing in this section shall make a husband compellable to disclose any communication made to him by his wife during the marriage, or a wife compellable to disclose any communication made to her by her husband during the marriage;"

This begs the question as to whether or not the type of indecency on the body of the complainant as alleged in the charge against the Applicant/Defendant is a "communication" made by the husband to his wife within the meaning of Section 89(2)(d). I answer the question in the negative: No.

The complainant is competent to testify against her husband, Joe Bila, without his consent because the charge against the husband as alleged is an offence against morality under Section 98 of the Penal Code Act [CAP.135] and the Defendant is charged with an act affecting the person of the wife which are within the meaning of Section 89(2)(c)(ii) and (iii). As what is particularized in the offence is not within the meaning of Section 89(2)(d) of the Act, she is also a compellable witness to testify against her husband without his consent.

The application is therefore dismissed. There is no Order as to costs.

DATED at Port-Vila this 22nd day of September 2006

BY THE COURT

Vincent LUNABEK
Chief Justice