Public Prosecutor v Dawson [2009] VUSC 142; Criminal Case 67 of 2009 (1 December 2009)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(CRIMINAL JURISDICTION)

CRIMINAL CASE No.67 OF 2009

PUBLIC PROSECUTOR

V

CHRISTOPHER GEORGE DAWSON

Coram: Chief Justice Vincent Lunabek

Counsel: Mr Bernard Standish for the Public Prosecutor
Mr Patrick Finnigan and Ms Jennifer La'au for the Defendant

Interpreter: Ms Jennifer Nicole
Clerk: Mrs Marilyne Sese

Dates of trial: 18 December 2008; 9, 10, 11, 12, 13 March 2009
Date of judgment: 01 December 2009

REASONS FOR JUDGMENT ON VERDICT

I - INTRODUCTION: CHARGE, PARTICULARS & PLEAS

This is the Judgment in the case. The Accused, Christopher George Dawson, was charged with three counts of sexual intercourse without consent, contrary to Sections 90(a) and 91 of the Penal Code Act [CAP.135]. The alleged three counts of sexual intercourse without consent are contained in an information presented in the Supreme Court on 17 October 2008. The three counts are particularised as follows:

That on or about 14 April 2008, at Port-Vila, the Accused Christopher George Dawson had sexual intercourse with the complainant girl:

- by digital penetration of the complainant's vagina (count 1);

- by penile penetration of her anus (count 2); and

- by penile penetration of her vagina (count 3).

The accused was arraigned and pleaded not guilty to all three counts. The trial proceeded on that basis. Section 81 of the Criminal Procedure Code [CAP.136] was read and explained to the accused. The accused understood his rights thereunder.

For obvious reasons, the girl prosecutrix will not be called by her name. She will be referred to as the complainant C in this judgment.

II - ESSENTIAL ELEMENTS OF THE OFFENCE AND BURDEN OF PROOF

(a) Definition of Sexual Intercourse

"Sexual Intercourse" is defined in the Penal Code Act [CAP.135] in Section 89A. Section 89A of the Penal Code provides:

"SEXUAL INTERCOURSE DEFINED

89A. For the purposes of this part sexual intercourse means any of the following activities, between any male upon a female, any male upon a male, any female upon a female or any female upon a male:

(a) the penetration, to any event, of the vagina or anus of a person by any part of the body of another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorised by law; or

(b) the penetration, to any extent, of the vagina or anus of a person by an object, being penetration carried out by another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorised by law;

(c) the introduction of any part of the penis of a person into the mouth of another person; or

(d) the licking, sucking or kissing, to any extent, of vulva, vagina, penis or anus of a person; or

(e) the continuation of sexual intercourse as defined in paragraph (a), (b), (c) or (d); or

(f) the causing, or permitting, of a person to perform any of the activities defined in paragraph (a), (b), (c) and (d) upon the body of another person."

(b) Definition of rape

Section 90 of the Code provides:

"90. RAPE DEFINED

Any person who has sexual intercourse with another person-

(a) without that 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; or

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

Commits the offence of rape. The offence is complete upon penetration."

(c) Offending Section

Section 91 of the Code provides:

"91. PUNISHMENT OF RAPE.

No person shall commit rape.

Penalty: Imprisonment for life."

(d) The Essential Elements of the offence

The following are the essential elements of the offence that the prosecution must prove beyond reasonable doubt before the Court can convict the accused, Christopher George Dawson:

1. The Accused;

2. Had sexual intercourse (by placing his finger in her vagina [count 1], by placing his penis in her anus [count 2] and by placing his penis in her vagina [count 3] with the complainant;

3. And the act of sexual intercourse was done without the consent of the complainant.

(e) The onus or burden of proof

This is a criminal trial. As in every criminal trial, the law is that the prosecution has the duty to prove each and all essential elements of the offence beyond a reasonable doubt against the Accused. The Accused is not required to prove his innocence. If the Accused has to give evidence himself or call other person to give evidence on his behalf, I must consider his evidence and the evidence of his witnesses on equal basis as any evidence of the prosecution.

The onus or burden of proving guilt of the accused person beyond a reasonable doubt rests upon the prosecution and it never shifts. The prosecution must prove beyond reasonable doubt that the accused person is guilty of the offence which he is charged before he can be convicted. If I have a doubt and the doubt is a reasonable doubt as to whether the accused committed the offence of digital penetration of the complainant's vagina (count 1); penile penetration of her anus (count 2) and penile penetration of her vagina (count 3), it is my duty to give the accused the benefit of the doubt and to find him not guilty on one or all counts of 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 satisfies the conscience so that I as a conscientious judge of fact feel bound or impelled to act upon it. Conversely, when the evidence I have heard leave 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 of the offence or if the evidence of the accused either standing alone or taking together with all of the other evidence leave me in a state of reasonable doubt I must acquit him. But if upon consideration of all of the evidence taken together at the end of the trial, the arguments of counsel and the charge I am satisfied that the accused has been proven guilty beyond a reasonable doubt as I have defined these words above, it is my duty to convict the accused. I must say that 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 an imaginary or fanciful doubt which might be conceived by an irresponsible judge of fact to avoid his or her plain duty. This is emphasized by Section 8 of the Penal Code Act [CAP.135] in these terms:-

"8. (1) No person shall be convicted of any criminal offence unless the prosecution shall prove his guilt according to the law beyond reasonable doubt by means of evidence properly admitted; the determination of proof of guilt beyond reasonable doubt shall exclude consideration of any possibility which is merely fanciful or frivolous.

(2) In determining whether a person has committed a criminal offence, the Court shall consider the particular circumstances of the case and shall not be legally bound to infer that he intended or foresaw the natural or probable consequences of his action.

(3) If the prosecution has not proved the guilt of the accused, he shall be deemed to be innocent of the charge and shall be acquitted forthwith."

III - THE PROSECUTION CASE

The prosecution case is as expressed in the prosecution opening statement of 9 March 2009. It is summarised below: At the material time, the complainant was a 16 years old girl who was resident in Port-Vila. At or about 3.15pm on 14 April 2008, she walked past the offices of Dawson's Builders (the office of the Accused). As she walked past the main door of the premises, the Accused yelled out "hey yu kam fastaem". The complainant walked inside as requested and sat down on a chair as directed by the Accused. The Accused then reached into a pocket in his trousers and took out 1,500 Vatu (a 1,000 Vatu note and a 500 Vatu note) and gave the money to the complainant.

The complainant asked "hemia blong wanem ia?" the Accused replied "you tekem, hemi blong you ia." The Accused then proceeded to sexually assault the complainant. He lifted up her T-shirt, unclipped her bra, held her breasts. The complainant attempted to get away, but she was held by the Accused and could not escape.

The Accused took the complainant into a back room of the business, where various tools and materials were kept. He removed her pants and blocked her mouth so that she could not call out. He penetrated her vagina with his finger. This caused her pain. After he did so, he penetrated her anus with his penis and then penetrated her vagina with his penis.

While he was in the act of sexual intercourse, he was disturbed by two men coming to the office. He withdrew before ejaculation. The complainant was bleeding as a result of the sexual assault. As she left the building, the Accused told her "yu no mas talem out".

The complainant made a fresh complaint to two probation officers employed by Correctional Services. They noted her distressed condition and took her to the police. At the police station, the complainant made a formal complaint and gave the 1,500 Vatu to the police. The complainant was taken to Vila Central Hospital for medical examination and treatment.

The doctor who performed the examination noted her distress condition. He noted that she was bleeding from the vagina. He noted an acute hymeneal tear and bloody vaginal discharge. It is the prosecution case that the findings of the doctor were consistent with her complaint of rape.

Police attended the Accused's business premises but found it locked and unattended. They received information as to his residence and attended there. He was not at home but his house girl gave police his mobile phone number. He was contacted and requested to attend the police station. He attended and was arrested and charged.

Bloodstains were photographed on the floor of the room in which she alleged the incident occurred. His clothes were seized and he volunteered to give a buccal swab for DNA analysis. Subsequent DNA analysis confirmed that the bloodstains on floor of the premises and located on the Accused's clothing were a match with the complainant's blood.

The prosecution case is fundamentally based on the evidence given by the complainant, it is the prosecution case that if the Court accepts, beyond reasonable doubt, the evidence of the complainant (oral testimony, content of her written statement, admitted as Exhibit P11), then, the Court would be satisfied, to the requisite standard of proof, of the guilt of the Accused in relation to all three counts of the Information.

It is also the prosecution case that there is an abundance of independent evidence corroborating the testimony of the complainant which is summarised below.

Evidence of John Jack George and John (Junior) Ierongen both from Correctional Services. They will give evidence of the complainant's fresh complaint. They drove her back to Vila. The complainant filed her complaint to the police. She was taken to Vila Central Hospital. Doctor Jason Sly performed examination of her. She was bleeding. The findings of the Doctor were consistent with the complaint of rape. The evidence will be given by police officers who attended the accused's office and the scene of crime. There were blood stains on the floor. The police took cloth of complainant and those of the Accused and kept them separately for DNA analysis purposes in Australia. There will be evidence that from the Report made by scientists in Australia that the blood found on the cloths of the complainant are identical to blood found on the cloth wore by the Accused. The probation officers will further give evidence that they noted distress of the complainant after the incident. They will say that the accused had blood on him that they saw on 14 April 2008 when they visited his office in the afternoon of that day. There will be evidence that the accused was arrested. He had a conversation with various police officers. He admitted that he pushed his finger in the complainant's vagina. The Accused denied he penetrated the complainant's anus and vagina with his penis.

The law is for the prosecution to prove its case beyond reasonable doubt. In the present case, with respect to Count 1, the only issue is consent. As to counts 2 and 3, the dispute between the prosecution and the defence is broader. It is the prosecution case that if the Court reaches the conclusion that there is penetration of the vagina by the accused's penis, on the required criminal standard, then, the prosecution must prove that sex occurred without consent.

IV - SUMMARY OF PROSECUTION EVIDENCE

The prosecution called the following witnesses: the complainant, Isabel Sali; (the mother of the complainant); John Jack George; John (Junior) Ierongen; Leiwawa Rarua; Edward Kalura; Davis Saravanu and Doctor Jason Sly. The following exhibits were tendered as part of the prosecution case:

[P1] curriculum vitae of Dr Jason Sly; [P2] Sexual Violence Examination Record prepared by Dr Jason Sly; [P3] DNA Sample Information Forms confirming swabs taken from the complainant by Dr Sly; [P4] Orange shorts worn by the complainant at the time of the incident; [P5] Blue T-Shirt worn by the complainant at the time of the incident; [P6] Purple striped underpants worn by the complainant at the time of the incident; [P7] Booklet of photos and accompanying statements prepared by Tony Berry; [P8] Shirt worn by the Accused at the time of the incident; [P9] shorts worn by the Accused at the time of the incident; [P10] 1,500 Vatu (1,000 Vatu note and 500 Vatu note) handed by the complainant to Davis Saravanu; [P11] Statement of the complainant; [P12] Record of Interview between Davis Saravanu and the Accused at Port-Vila Police Station on 15 April 2008; [P13] The statement and Report on the Examination of Items relating to a case of Alleged Sexual Assault of Gita Lala dated 16 October 2008 produced and admitted by consent.

Below is the summary of each of the prosecution's witnesses:

The complainant is the first prosecution witness. She gave evidence to the following effect. Her date of birth is 12 April 1992. She is now 16 years old. She was 16 years of age on 14 April 2008. She does not know the Accused, Christopher George Dawson. She recalled something happening to her on 14 April 2008 in the building close to a second hand store. She now knows it happened in the Christopher Dawson building. She recognised and identified and pointed to the Accused, Christopher George Dawson as the person who did what happened to her on that date. She never saw the Accused before. She lived in Port-Vila on 14 April 2008, she went to work. She had a rest time during lunch time. She went to see her mother. She started work at 3.30PM o'clock. Before 3.30PM, she walked down the street to BP Wharf to the second hand shop there. The whiteman she identified as the Accused called her up and say "hey you come fastaem". She never sees the man before. She went inside his office. The Accused put his hands in his pocket and pulled out 1,500 Vatu. She asked him "hemia blong wanem ia?" He told her it is for her. She had no idea as to what and why he gave her the money. Then, his hand hold her bra and breasts. She did not give permission for him to do that. She was not interested in allowing him to touch her. She wanted to stand up and run away. He held her and told her to keep quiet. When she stood up, he pulled the collar of her T-shirt. He pulled her to the tools room. The tools room is on the side of the office in the same building. In the tools room, he started pulling off her trousers and her panties. She was wearing shorts and T-shirt. She recognised and identified a pair of orange short, blue T-shirt and a pair of panties that she wore on 14 April 2008 at the time of alleged incident [Exhibits P4, P5, P6].

She gave evidence that after the whiteman had taken off her panties, the whiteman started to push his finger inside her vagina. She did not allow him to do that. He did not ask her to do this. There was no conversation between her and the accused before he put his finger inside her vagina. She said she was scared. She did not feel comfortable. She said when the finger was inside her vagina, she started bleeding. She said she was not bleeding before. She denied having her monthly period before the insertion of the finger in her vagina. She said she did not have any kill on her body before.

She said after the Accused pushed his finger in her vagina, he put her on a short table and started to push his penis inside her anus. She denied she told him to do so. The Accused did not ask her. She said there was no conversation at all before he push his penis in her anus. She said it was painful and she was scared. She was afraid. She said he put his penis in her anus for a short time after he put his penis inside her vagina. She said she did not allow him to do that. The Accused did not ask her to do that. She said it was painful and she was scared.

She said two men came knocking on the door of the office. She said the whiteman heard it and went out. She said she then put on her clothes and ran outside. She said the whiteman told her not to tell anybody. When she walked outside she saw a white vehicle outside She said she did not have a conversation with the two men at that time. She ran away towards the market.

As she ran away, the two men saw her and stopped and called out to her and asked her of what happened. She said she told them what happened. She explained to them that the whiteman assaulted her. She said she told them that the whiteman had raped her. The two men drove her towards Seaview and the two men told the police. The police told her to go into the police truck and they took her to the police station. Police asked her what happened. She said she told them and explained everything that happened. Police arranged for her to go to the Vila Central Hospital. At the hospital, a white doctor examined her. Doctor Sly was examining her. She told Dr Sly of what happened to her. She also made a statement to the police. She said she never wanted to have sex with the whiteman. She was shown a number of photographs. She saw the photos and gave the following explanation: The first photo shows the building of the whiteman's office - Dawson's building. The second shows the door to the main building. The 3rd photograph is the photo of the room he told her to sit on the chair. The fourth photo is the photo of the chair he asked her to sit on. She also recognised the photo showing inside of the tools room. The short table he put her on. The two other pictures are about the blood stains. She recognised the photographs of the Vatu 1,500 notes given to her by the Accused and she gave them to the police. (Exhibit P7)

The Claimant was cross-examined. She confirmed she made a statement to the police. She confirms the truthfulness of her statement. She confirmed she never look the Accused before and she never talked to him before. She confirmed that she did not know the Accused.

Her statement to the police was marked for identification (D1). It was put to her that she first had contact to Dawson 2 years before in 2006. She denied this. It was put to her that 2 years prior to 14 April 2008, she rang Dawson and asked that she met him. She denied that. It was put to her that in that same call she declined to explain to Dawson what she was ringing for. She denied that. It was put to her that there was such a meeting and she told Dawson that she rang him before. She denied that. It was put to her that at Au Bon Marché, she asked Dawson if Dawson and his wife could adopt her. She denied this. It was put to her that she told Dawson that she saw Dawson and his wife to be nice people and Dawson asked her if she has parents and it was put to her that she told Dawson her parents said she was stupid. She denied all these. It was put to her that at Au Bon Marché, Dawson told her that he had children and that if she had problem she should speak to her teacher or priest. She denied that.

She was asked if she worked for Vanuatu Woman Centre (V.W.C.). She confirmed this and she said she worked for V.W.C. for 5 months before 14 April 2008. She could not remember the date she commenced employment with V.W.C. She worked for 5 months as a volunteer. She received some payment of Vatu 6,000 every 2 weeks. She was asked if she knows Marilyn Tahi. She confirmed. She said Marilyn Tahi is her step-mother. She confirmed Marilyn Tahi is the Coordinator of V.W.C. She was again asked if she still say that she worked for V.W.C. in 2007 or November 2005 until 2006. She said she is sorry she could not remember the exact time.

It was put to her if she forged a cheque of Vatu 60,000 and withdrew Vatu 60,000 on 26 May 2006. She replied she took the cheque from the house of her friend. Her friend wrote the cheque for her. It was put to her that she was accused of stealing the money. She replied she went to the bank. She drew out the bank cheque and her friend gave her 6,000 Vatu.

She was asked if she admitted this to Marilyn Tahi that she stole Vatu 60,000. She replied that few days later, when that girl told her she admitted. She said when she told them about it she said she was the one who took the money. She was asked if she was ever charged for it. She said no. They asked her to refund it. She was asked if there was publicity or news on newspaper. She said no. She said she received 6,000 Vatu. She repaid back some money.

She was asked if about May 2006, she came to Dawson's office at D-Dock. She said no. It was said to her that Dawson will give evidence and will say that she asked him to give her 50,000 Vatu to replace the money she took to get her job back. She denied that.

It was put to her that on the period before 14 April 2008, on a number of occasions, she called the office of Dawson and she spoke to Dawson and asked him for bus money 100 Vatu or 200 Vatu. She denied this. It was put to her that on 11 April 2008, she went to Dawson's building, knocked on the door and went inside the office. She answered no. it was put to her that on 11 April 2008, she spoke to Dawson and told him that it was her birthday and asked him for 5,000 Vatu. She said no. It was said he replied to her that he did not have money with him and that she will return in the afternoon. She answered no. She was asked if her birthday was on 12 April. She answered yes.

She was asked and she confirmed on Monday 14 April 2008, she walked past Dawson's building at about 3.00PM o'clock. It was put to her that she knocked on the door. She answered no.

She was asked she told the Court that she walked past, the whiteman called on her and she identified the whiteman as Dawson who called her. She said yes. She was asked where was Dawson standing when he called her. She replied: at the door. The door was open. He was standing at the door of the building. It was again suggested to her that if Dawson said she knocked on the door and he opened the door whether it was not correct. She replied it was not correct. It was suggested to her that if Dawson said on that Sunday she came past his house whether she did past the Accused's house on the said Sunday. She replied no. She said she did not know his house. It was put to her again that when she was inside Dawson's premises, she reminded Dawson that he was going to give her a present. She again denied this.

She was asked that when she left the premises of Dawson she was then taken to police station, she spent some time at the police station and went to hospital. She confirmed by saying yes. She was asked if during that time if she had some involvement with Leiwawa Rarua. She confirmed by saying yes. She was asked if she spoke to Leiwawa Rarua about circumstances of what happened at Dawson's office on 14 April 2008. She confirmed by saying yes.

She confirmed she told her that she went to second hand cloths shop. It was put to her that she came past Dawson's building, a whiteman that wore glasses she knew he is the boss of the company. She said no. She said she told Leiwawa Rarua the whiteman standing out at the door called her. She was asked if she knew he is the boss of the company. She answered no. She said she thought he is the boss of the company. She was challenged as to how she thought that this man is the boss. She replied because he was the whiteman standing in the door. She was asked again whether she thought he was the boss. She said yes.

She confirmed one of the police officers was police Officer Davis. She confirmed that police officer Davis took her statement. She confirmed that in her discussions with Mr Davis, she told him that when she left Dawson's office, she saw a white car outside. She said it was parked closed to his office. She said it was what she thought. She thought the truck was the Accused's. She said there was no sign on it. She said also that one of the female police officers told her that the gentleman (Accused) was driving a white truck.

She was asked to look at some photographs. She was shown photographs Nos.10 and 11. She said they are the pictures of a truck. She was asked and she confirmed she saw no sign and no writing on the other side of the truck. She confirmed it was the truck she saw parked. She was asked and she confirmed photo No.1 is about the door; photo No.2 is about the desk; photo No.3 is about the chair; photo No.5 is about the office desk shown in photo No.2; photo No.5 shows 2 doors; the door on right side is on different office; photo No.4 shows the work desk table like 2 shaped. She was asked and she confirmed that the whiteman called her from the main door and called her in and she mentioned she sat down at some stage.

She was shown some photos of office location and was asked to show which chair she said she sat on. She said she sat on chair in photo No.4.

She was shown photo No.6 taken from inside a window on the right side. She confirmed that. She was asked and she confirmed that if she was standing in the office in photo No.2 and in particular photo No.3 she could see the window.

It was put to her Dawson will say that she knocked on the door and he let her in his office. She denied this. It was put to her that he was working there. He was standing and she came towards him she turn her bottom and rub her back against his groin. She said no. It was put to her that she took Dawson's hand and placed it on her stomach. She denied this. She said he did put his hand on her breast. She said she did not put his hand on her breasts.

It was put to her she then lifted her T-Shirt and asked Dawson to untie her bra. She said no. It is not true. It is put to her and she denied that she pulled her T-shirt up to her shoulders. She said he was the one who did all of that. It was suggested to her and she denied that when he continued to press her breasts, she told him to hurry up. She said she did not say that. She said she was trying to get away. She was asked if she worked at 3.30PM, she confirmed she started work at 3.30PM.

It was put to her that following what occurred, both of them walked to tool room. She denied that and said he pulled her in the tools room.

It was put to her and she denied she said to him: "fuck me or fuck me now." It was said she repeated to him he must hurry up. She denied this and said she never said that. It was put to her and she denied she placed Dawson's hand close to her private part or on top or close to it. It was said and she denied she removed her cloth. It was said and she denied she placed her cloth on hard wood or window frame. She said he was the one who removed her clothes on her. She was shown the photograph of the hard wood frame. She was asked and she denied she removed her clothes and panties and placed them on the hard wood of the window which was no longer there. She again denied that by saying no.

She was asked and she confirmed the Accused pushed his finger – one finger inside her vagina. She was asked she confirmed he inserted his penis in her anus and vagina. She was asked and she confirmed the 3 acts occurred in the tools area. She was asked where in the work room area, one place there or at different place in there. She replied one place at the table. She was shown photo of a table in the tools room, she confirmed that was the table on the photo she was referring to.

She confirmed she was taken into inner office; she was asked to sit on a chair and the Accused touched her. She confirmed this happened at front office. The door was open. She was asked and she confirmed another office behind. She confirmed she said Dawson seated her in the room behind and she was asked and she confirmed the office in photograph No.4 - Dawson's office. She confirmed he pulled her by the collar of her T-shirt into the tools room. He took out her cloths. She was shown photo No.7 and she identified a white table there. She was asked again that she said he took off her clothes. She said yes and she said he put her cloth on the concrete on the floor and she put a cross (+) where she said he put her clothes on (which is on right side corner of the room).

She was asked and she described that he moved around his finger in her vagina in and out about 3 minutes. She said she began to feel sore. She started to bleed. She said after he used his finger in her vagina, she said he inserted his penis in her anus for about 2 minutes after he pulled it out and have it in her vagina for about 5 minutes.

She was asked if she ever in the previous occasions stated the time he has his penis inside her vagina was about 15 minutes. She replied she was not sure about. She said she never indicated the insertion of the penis into the vagina was about 15 minutes.

She was taken back to 14 April 2008 in the afternoon. She confirmed she was taken by the Probation Officers to the police and she was then taken to Vila Central Hospital. After hospital, she got back to the police station. She confirmed that that same evening, she went to Dawson's building with police officers and lawyer Garry Blake.

She was asked to point out in the building what occurred on the day of 14 April 2008. She recalled about photographs were taken of the Accused's building. She recalled she was shown blood on the floor on various places. She confirmed she provided police officers of what happened in the Accused's office.

She confirmed she informed the police officers of the chair that was in Dawson's office. She was asked if she informed the officer that that was the chair Dawson sat on. She said she told the police officer of the chair the Accused told her to sit on. She was shown a photograph at page 1 (of Exhibit P7) of a chair in the inner office. She was asked to read about a passage of her statement to the police "... chair we Dawson i sitdaon long hem when he gave me the money..." and she was asked when it was so when she said that he seated her down. She replied she was sitting on the chair and he was standing up.

It was then suggested to her that upon the assumption she informed the officer that was the chair Dawson was sitting on. She replied she did not say that to the police. She said she told the police that was the chair she was sitting on. It was suggested to her that if she was right, the police officer got it wrong. She said yes.

It was put to her and she denied that while she was sitting it was in awkward position and she encouraged him.

It was read to her what the police officer said in his statement to the effect that she told him Dawson was sitting on the chair when he gave her 1,500 Vatu. She denied that and said she told the police that was the chair she was sitting on when Dawson gave her the 1,500 Vatu.

She was asked and she confirmed thing stopped when someone knocked on the door. She confirmed Dawson went out from the tools room to front door and spoke to the man who knocked on the door. She confirmed she got her cloth and panties from where she said Dawson put them on the floor.

She confirmed blood was coming out from her vagina close to the table. She was shown blood stains taken from photographs (Exhibit P7) on the floor. She said she thought the blood stains were there when she went to get her cloth.

She was taken through other photographs and she was questioned on the cross-sign she marked on one of those photos to identify where she said Dawson put her clothes. She was asked and she confirmed she said blood sucking into her pants. When she was asked why there should be blood fallen 3 meters from the table, she replied that the photographs have different dimensions and she put a cross (+) to where her clothes were. It was put to her that if that was so, the clothes were put near the door. She answered Dawson put her clothes somewhere in that area. It was further again asked and she confirmed her clothes were put on the floor.

She was asked and she confirmed she was asked to give a description of Dawson's penis. She was asked if she knows the difference between circumcision and non-circumcision. She replied no. A picture was shown to her. She confirmed she drew the picture. She denied the hand writing on the picture was her hand writing. She just drew the picture. She was asked she confirmed that that was the image of Dawson's penis she saw that day. After it was explained to her the difference between a circumcised penis and an uncircumcised penis, she was asked if she understood the difference and that what she was drawing was an uncircumcised penis. She replied she did not know. She said after she drew the picture the police told her that the penis she drew was uncircumcised.

It was asked to her and she said Dawson's penis was erected when they were in the office. It was suggested to her that when the alleged penetration occurred she would have a good look at penis. She replied she had a good look at it. That was what she drew. She was then asked may be the penis was not erected. She replied she did not know.

She was asked and she confirmed she was pulled from the collar of her T-shirt. She was asked if there were any stretch marks when she said she was drugged. She replied that he pulled her on the back and blocked her mouth. It was insisted that when he dragged on her there were no obvious stretch marks. She replied he did pull it. She was asked again if there was a stretch mark on the T-shirt. She said no. It was again suggested to her Dawson inserted his ginger into her vagina in and out and then moved. She replied that was correct and said he dragged her into the work room. She was asked it was from the table. She replied it was closer to the table. It was put to her that the use of finger did not occur at the short table. She replied that he did this and then dragged her to the work room.

She was questioned as to why she said all activities occurred at the table and now she said the insertion of the finger occurred before. She replied that it was not that far away from the table and he dragged her into the bench. She further replied that was because the questions were not clear and counsel (defence) did not ask where exactly.

It was put to her that in her evidence in chief, she gave evidence of penetration of finger then she was dragged further for penis insertion in the anus and vagina. She said he pulled out his trousers and dragged her in the work room. She was asked and she confirmed Dawson raped her.

She was questioned about what she told Dr Sly. She was asked to confirm that she told Dr Sly that she had previous sexual experience. She said no. It was put to her that prior to 14 April 2008, she had a boyfriend. She said yes. She was asked about how many boyfriend. She said one – about 6-8 months until 14 April 2008. After he (boyfriend) heard what happened to her, they stopped. She was asked and she denied that she had sex with her boyfriend. She was asked if she ever tried to have sex with her boyfriend. She said no. They never slept together. It was asked and she denied she never told Doctor Sly that she attempted to have sex with her boyfriend and they stopped. She denied she ever had attempted sex with other people. It was suggested to her if she would appreciate that sometimes the use of a finger in the vagina is the way for woman to feel if she is ready to have sex. She replied what is the question? It was put to her that by moving a finger she can become arose. She replied she did not know that.

She confirmed again Dawson took off his trousers and put them on the floor on the right side corner – bottom corner and she put a cross sign (+) on photo No.2 to mark the place Dawson pulled his trousers off. It was asked and she replied Dawson did not wear underwear or panties. She confirmed Dawson penetrated her anus and vagina.

It was put to her that Dawson will say that he did not have an erection. She replied no. She did not agree. She was asked and she denied that she encouraged and used words "fuck me" or "hurry up". She denied she took Dawson's penis and rapted up. It was put to her that Dawson will say that he was unable to get an erection and so was unable to penetrate her vagina. Again she denied that. It was suggested to her that Dawson said he told her this was not going to work as he could not have an erection. She denied this by saying it was not true. She was asked and she confirmed the activity took place on a work table someone knocked on the door and whatever had happened stopped. Dawson put his penis back into his trousers as he was walking towards the door. She said when Dawson went outside she went to get her clothes.

Dawson was with the person who knocked on the door for 5 minutes. She said she put on her shorts on and went outside. It was suggested to her that before she left Dawson's office she waited in the work area inside. She denied that and said she did not wait. She said she put on her clothes and rushed out. The man who talked to Dawson came back to the truck. Dawson was standing near the table near the front door.

She was asked and she confirmed Dawson was a stranger to her. Dawson was standing in front of the door of his office and he asked her to come in. She was walking toward the second hand shop. He called out to her. She said she thought he was going to ask her about somebody or an office.

She was asked she confirmed her evidence that Dawson first touched her breast. She confirmed she did struggle. She did try to get away. He placed his hands in her mouth. He held her by the collar of her T-shirt and dragged her. She tried to kick him to get away. She said he pushed his finger inside her vagina close to the table. She was asked and she confirmed she did not consent to the 3 acts she described. It was put to her she did not kick, struggle and shout. She replied he was holding onto her.

It was put to her when someone knocked at the door Dawson went out why she did not show up and asked for help. She replied at that time it did not come to her mind to call. She said she rushed outside after putting her clothes. It was put to her and she denied that she told Dawson to come back next day on the same time.

It was suggested to her and she denied that before she went she asked for money. It was suggest to her and she denied that as a result he gave her 1,500 Vatu. It was suggested to her and she denied that Dawson said this was the birthday present.

She was asked she confirmed her father will be annoyed to hear what happened. It was put to her and she confirmed her father could be violent. It was suggested to her that was why she came out of Dawson's office and moved to road toward market place. She replied this was after she came outside. She ran to go and see her mother. She said she did not know the Correctional Officers who spoke to her. She confirmed she had blood on her T-shirt. She was shown a trousers and asked if there was blood. She said no. She was shown her panties. She said there was blood there. She was asked and she confirmed she recalled one of the 2 Correctional Officers asked her "master rape you" and she said "yes". She further said she said yes but against her will. She said the other officer talked to her when she was cleaning her T-shirt. She said they asked her if she was raped.

It was asked to her if she recalled her previous answers to the questions she was asked in cross-examination, she confirmed and she denied every assertions the defence counsel put to her in the initial meeting and about asking money. She said she said no to everything because she did not know Dawson before. She repeated she denied talking to Dawson about asking money. She was asked to rethink about all questions and suggestions put to her of what Dawson said were true. She categorically said no. it was not true.

It was put to her that Dr Sly gave evidence and Dr. Sly informed the Court that in reliance of what she told him (Dr.) of what happened, he (Dr.) looked for symptoms of activities she described – the drag – sexual activities and the struggle – Dr Sly said he was unable to find any stretch or bruises on her body.

She replied as to her bra, he took it off when he dragged her he pulled her by the collar of her T-shirt. Dr Sly did not give her a full check of her body. It was put to her whether she ever told the police Dawson took off her bra. She replied she believed she said Dawson lifted up. It was again put to her and she categorically denied that she went there looking for a birthday money.

She was re-examined. She was asked to clarify her answers given to the questions asked about Dawson's penis. She was asked before 14 April 2008, how many penis she saw. She answered none.

Isabelle Sali is the second prosecution witness. She gave evidence that she lives in Port-Vila. She sells clothes at the Market Place. She got 4 children. The complainant is her first child. She is 16 years on 12 April 2008. She met her husband Hannington when the complainant was 3 years old. Her husband is the father of her other 3 children. Her husband looks after the complainant as his first child. They live together. She gave evidence the complainant was led to believe that Hannington was her biological father. Another person told her that Hannington was not her father. It was painful for them. Benjamin Matan is the father of the complainant but never cared for her and never wanted her. She confirmed Benjamin Matan lived with Marilyn Tahi, the Coordinator of the Vanuatu Woman Centre (V.W.C.). She knew the complainant worked for V.W.C. She said initially she did not want her to work for V.W.C. But as Marilyn insisted, she accepted for the complainant to go work for V.W.C.

She confirmed she knew the complainant had a small trouble at V.W.C. She said the complainant worked there as a volunteer and was paid 6,000 Vatu. When asked about the trouble her daughter had she said she took money from V.W.C. and she (witness) paid it back. She paid back 28,700 Vatu. She said a friend working with the complainant got her to take the money as a result she did no longer work there. She said since she stop working, the complainant saw Marilyn once at her home but not at her office.

On 14 April 2008, the complainant lived with her at home. She was working at the time for Phoenix. She usually finished work and come home about 5.45 to 6.00PM o'clock. On 14 April 2008, she expected her to arrive. She said they waited after 6.00PM she did not arrive home. They waited from 6.00PM to 9.30PM. She did not come. So she and her husband took a bus and looked for her. They looked for her at PMC Church. They asked a friend and she told them that the complainant had not worked in the afternoon. She was ready to get into the bus when the police rang her mobile phone and told her that the complainant had a problem.

She described her relationship with the complainant to be very close. They shared everything. She said when the incident occurred she had a broken heart as before the incident her daughter went to work and then come back home. She was asked about the proposition that she and her husband hate the complainant and thought she was stupid. She replied they never said that the complainant was stupid. She said they considered her as the first born of their children.

Isabelle Sali was cross-examined. She said on 14 April 2008, she went to work at 7.00AM o'clock. She returned home at 5.30PM. When she left home, the complainant was still at home as she started work at 9.30AM. The next time she saw the complainant was on the night of 14 April 2008 at 9.50PM.

She was asked she said she did not know exactly the date or month the complainant worked for V.W.C. as a volunteer. It was suggested and she said it may be the complainant worked there in November 2005 but it is not appropriate. It is again suggested and she confirmed the complainant started work about November 2006. She confirmed she finished work there on June 2006. She confirmed the complainant was paid 6,000 Vatu fortnightly. She started work at the age of 13 and 7 months. She said the complainant did not go to school because she is the only one to work. She could not pay school fees for all the children. She was asked and she confirmed that in the period of her employment but before the taking of the money come to light, the complainant did not live on her own. She always lived with them. It was suggested and she denied having any arguments with her daughter.

She was asked and she understood the complainant took 60,000 Vatu but she said she paid back the money. She confirmed she paid by 28, 700 Vatu.

She gave evidence that the V.W.C. used the complainant's contributions and salaries to pay back the money.

She said the complainant did not go to Solomon Islands. They all put monies together to pay for the trip. She was asked as to whether she knew how the complainant got the 60,000 Vatu. She said she saw Marilyn's letter. The complainant was given a cheque and she added "TY" to make 60,000 Vatu at the request of her friend and it was her friend who took the money.

She gave evidence she paid 28,700 Vatu every time a cruise ship coming. She said it took her less than a year to pay back the amount. She also said she gave the complainant different amount every time for payment. She did not keep the receipts but she knew she paid all the money. She confirmed she paid back the money. She decided voluntarily to pay back because she felt she should.

She said she did not go to V.W.C. She decided to pay because the complainant is her daughter. She gave the money to the complainant to pay back the amount taken. She said it was her idea to pay back the money but the complainant was not going back to work. She confirmed the complainant worked with V.W.C. until June 2006. She confirmed there was no Court charged laid against the complainant. She said after the complainant took the money, she refunded. She confirmed the matter remained a private matter between her – the complainant and V.W.C.

It was put to her that whether she knew the complainant has a boyfriend in the period before 14 April 2008. She said no. She never told her. She said the complainant went sometime to youth centre. She repeated when asked that she did not know that the complainant had a boyfriend for a period of 6 months. But she said the complainant had never had sex with the boy. She denied that the complainant ever mentioned to her that either this boy or another boy attempted to have sex with the complainant and she felt sore and stopped.

John Jack George is the third prosecution witness. He is employed by the Department of Correctional Services as Probation officer. He was in that position on 14 April 2008 in Port-Vila. On that date, he recalled he worked with another Probation Officer John (Junior) Ierongen. At 3.00PM on 14 April 2008, John Junior Ierongen and himself went out into a truck. They went to the office of the owner of Dawson's Office. He recognised him. He identified the Accused in the defence dock. He said he talked to him at the time. He said the person they were supposed to talk to was Ishmael Fatalini. He said the Supreme Court directed them to file a pre-sentence report. They arrived at Dawson's office at 3.05PM. He gave evidence that when they got to the office, the lorry of the boss was outside the office.

The door was closed but not locked. He knocked 4 times very loudly on the door. There was no response. He was ready to go back to the truck. Then, Master opened the door and said "hey olsem wanem?" he said he told him he wanted to talk to one of his employees. He said Dawson said he was not there. He was at Pango. He then corrected himself by saying sorry – he sent us to Ifira Point. He was asked if he noticed anything about Dawson. He answered it was not the first time they saw the master. On the same day, they went earlier to see him. He sent them to Stade area. They came back in the afternoon. He gave evidence that he saw the body of the Master. He was sweat and there was blood on his hand. He said he was concerned and told his friend that the Master's face was sweating profusely and there was blood on his hand. He gave evidence of the blood. He said he saw blood on the master's hand and on the front of his T-shirt and in front of his trousers. He was close to the master. The master was wearing short trousers – a long brown short brown colour and he thought the colour of the T-shirt is white.

He said he asked the master where his employee worked. He said he told the master that he had sent them to Stade area but the employee was not there. So he said in the afternoon, the master sent them to Ifira Point. He said the master went back inside.

When he went back inside the truck he said he told the other officer that he saw the master was covered with blood. He said they thought they might help him. He said they decided to go and asked people on the wharf if they knew anything. He said they said a girl was inside with him. He said he was in the truck and he saw the girl opening the door of Dawson's office and came outside. He said he saw her again when he gave her to the police. He gave evidence that the girl was crying. She ran in the road. He said they felt sorry for her and asked her to come in the truck. She refused first as she was crying.

He said he asked her whether something wrong to her. He asked her master raped you. He said she said yes. He saw blood on her everywhere. He said after they talked to her, she showed them 1,500 Vatu the master gave it to her. They decided to take her to the police. The police truck turned to the market place. They gave her to the police there. He said before 14 April 2008, he did not know the complainant.

John Jack George was cross-examined. He confirmed he made 2 visits to Dawson's office on 14 April 2008. He needed to talk to Ishmael Batnali who was in the report. He was asked if he wanted to talk to Hilaire Doriri or Ishmael. He said he wanted to talk to both. The second visit was in the afternoon at Dawson's office. He confirmed in the first visit he spoke to Dawson and Dawson sent them to Stade area. On the second visit in the afternoon, he did not find the employees, he spoke to Dawson and Dawson told them to go to Ifira Point.

It was suggested to him that it was the reverse in that Dawson told him to go to Ifira Point in the morning and in the afternoon Dawson told him to go to State area. He replied it was not like that. He said the master talked to him in the morning. He confirmed Dawson told him to go to the Stade area and in the afternoon they went back to Dawson's office and Dawson told them to go to Ifira Point.

He said he made a statement to the police. He accepted the content of his statement was true. It was put to him that when he made his statement he only referred to one visit to Dawson's visit. He said that was correct. He mentioned the second visit in the afternoon. He said he did not mention the first visit in the morning in his statement but he said the master knew it.

He was referred to his statement (page 2 – last paragraph). It was suggested to him that Dawson told him that the employee was at Stade area. He said Dawson talked to them about both places on that day. At the office he told him to go to Ifira Point. They went to both places as they needed to find the employees. He was again asked about the first visit in the morning and he replied the master advised them to go to the Stade area to check out. They went there. The employee was not there. They then visited other co-offenders involved in the same incident. They came back to Dawson's office in the afternoon. Dawson advised them to go to Ifira Point. He said in his statement he mentioned Stade are. In the afternoon he said Dawson told them to go to Ifira Point.

He gave evidence before he visited Dawson he did not know Dawson. He said they knew his office because of the big writing on his office. He said he never knew Dawson before 14 April 2008. He confirmed in the afternoon when he came back to Dawson's office, a truck was outside - a white lorry. He said when he and his friend stopped at Dawson's office in the afternoon, his friend told him "hey this is the truck of the master" he must be inside. He also said that in the morning when they came, the truck was there. He said he did not know that the truck is for Dawson. He said he remembered he saw the truck on the construction work. He said they were enquiring as to where Dawson Constructions are and he said they were told to go there. There was a big white lorry there.

He was asked that it was hot on 14 April 2008 and people sweat. He replied it was correct but the master had air condition in his office.

He was asked and he confirmed that when he knocked on the door, the white lorry was parked outside Dawson's office. The truck of the master was in front of the office alongside a joint building and a second hand shop. He said he knocked on the door. He called "oh oh oh". He knocked 4 times and he tried the door. It was open and he waited he came back to the truck. Dawson came out. He gave evidence that his truck was parked just outside. The master saw them. They faced the door of the office. There was no activity it was 3-4 o'clock. They came and stopped in from of the door. They just came to ask Dawson where his employees worked. They were not stopping for a very long time.

He said he saw Dawson and Dawson spoke to him. He told Dawson they went to Stade area this morning. They did not find the employee they were looking for. Dawson told them to go to Ifira Point. He said that was all they went for and he had a short conversation with Dawson.

He was asked and he confirmed he said he observed Dawson's face was sweating profusely and there was blood on his cloth. He was asked and he confirmed after he talked to Dawson, then, he went and talked to some people on the wharf. He said just few meters away. It was suggested to him about 15-20 meters. He said too long. He talked to some people with the other officer John Junior Ierongen at the Nakamal. They talked to the people less than a minute - short time only. He was asked and he denied he talked to the people at the nakamal that Dawson had blood. He said some people said he had blood on him. May be had an accident. He said he did not ask them why Dawson had blood on him. They are not Dawson's employees. He was referred to his statement, he denied giving any details of what he saw to the people there. He said they saw him with lots of blood. They asked some people there if the master had an accident.

He said when they talked to the people there, a young man saw the girl coming out from Dawson's office. He said he also saw the complainant. He said he was in the vehicle and he saw the girl opened the door and came out.

He was referred to his statement (paragraph 2). He explained that he went back to the truck. He told his friend Dawson was covered with blood. He said then his friend said he might have a problem – may be an accident or someone assaulted him. He said his friend said they asked the people there. Some people were sitting there and said he was in his office. A young girl went inside. He said that is what he said in his statement.

He was questioned about his evidence that he saw the girl was running toward the main road and was asked to show where he wrote that in his statement. He replied he did not put it in his statement. He said he saw the boy called out that the girl came out of the office and when he came to Court defence counsel asked him different sort of questions.

It was pointed out to him that he said this is his statement. He replied the defence counsel was correct but the girl was in the truck and she was crying. He said he saw her crying – but he did not put it on his statement.

He gave evidence that when he saw her at the time, he felt sorry for her. She was scared. He said he asked her master did something to you. He said she said yes. He was challenged about making certain assumption by saying "master i rapem you". He answered he was sure something happened. It was not an assumption. He further said that in his statement he used the word "assault". He said the girl told her yes as he was not a police officer. It was put to him whether he asked her about the money. He replied he asked her master gave you something. He said it was common. He said she said yes. He said she took out from her pocket 1,500 Vatu. He said she told them the master gave the amount to her.

He was referred again to his statement. He asked her question and she replied. He said his colleague listened to what he asked her about.

He was shown Dawson's shirt he wore on that time. He was asked to look at it and show where on it blood stains he described he saw on the shirt. He answered this was way back in April 2008.

He was shown and asked to look at the trousers and tell the Court if he saw blood on the trousers. He replied he understood the defence. He saw blood on it.

He confirmed they took the girl to the police. The police truck came at the market place. They handed her to the police at the market place.

The market place was about 50 metres. He said the girl complainant was with them in the truck for a short period. He did not know the names of the police officers there but he recognised their face. He confirmed a female police officer was there too.

It was put to him from time they arrived at Dawson's door and arrived at police officers at the market was 1 hour. He denied that and said it was too long.

This witness was re-examined. He said he wore a watch at the time and he said his intention was to go to Ifira Point. He confirmed he went to Ifira Point thereafter. He said time was 4.30PM. He said they had to hurry up. This was where they were told the man was not here. He was somewhere. They were advised to come back the next day. He said the vehicle is their work truck and they must return it back before 4.30PM.

John Junior Ierongen was the fourth prosecution witness. He gave evidence to the effect that his name is John Ierongen Junior. He was called John Junior. He resides in Port-Vila. He is a probation officer and worked on 14 April 2008 with John Jack George. He was requested to prepare a pre-sentence report about an employee of Dawson. On 14 April 2008, he went with John Jack George to Dawson's office. John Jack George was the driver.

He gave evidence that after John Jack George returning from Dawson, George informed him that he saw Dawson with blood. He said they asked people there if anyone got in a bit up Dawson as he was covered with blood. He said the girl too was covered with blood. She was asked if she was raped and she said yes. He said she produced 1,500 Vatu notes given to her by Dawson. He said they decided to take her to the police. He said a police truck was at the market place and they gave the girl to the police at the market area.

He did not know Dawson. He did not know the girl complainant. He was asked if he knew why she was asked if Dawson paid any money to the girl. He replied when incident like this happened, they assumed that money was given to calm down and not to speak out. He gave evidence of his observations of the girl that she was scared, had blood on her clothes. He said he was in the truck. He only saw the girl complainant. He participated in the conversations with the girl. He asked the girl not to be scared as they took her to the police. He did not wear watch at the time. He estimated about 4 minutes to bring the girl to the police.

John Ierongen Junior was cross-examined. He confirmed he made 2 visits to Dawson's office on 14 April 2008. He said in the first visit, he spoke to a lady. The person he was looking for was not working at Ifira Point but at Stade area. He confirmed he made a statement to the police. He said in the first part of his statement he said he went to Dawson's looking for Doriri. In his statement, he confirmed that he said the first time, Dawson said the employee was working at Ifira Point. He said he spoke to a lady and the lady told Dawson the employee was at Ifira Point.

He confirmed he went to Ifira Point but he did not find the employee. They went to Stade area. He was not there. They went back to Dawson's office and Dawson said the employee worked at Ifira Point.

He confirmed he was in the truck. John Jack George came back to the truck. He did not pay attention. He said John Jack George told him he saw blood on Dawson's body. They were in the truck and saw people at the nakamal. He was asked and he confirmed a person said a girl was in Dawson's office. There was no information that Dawson asked her to get in. He said they spoke with them for about 2 minutes and a boy said: "hey the girl came out of the office". She headed toward the market area. He said they followed her and catched her up. When she came in the truck, he said they informed her that they were Probation Officers. He admitted he did not say that in his statement. He said the girl was in the truck for about 2 minutes before they took her to the police. After they dropped the girl to the police truck, they went back to look for Doriri at Ifira Point.

He insisted they went to the Stade area in first time and they came back to Dawson's office as they could not find Doriri. He said Dawson told them to go to Ifira Point. So they went to Ifira Point.

He confirmed John Jack George asked the girl complainant "Master raped you". She replied yes. He was asked and he confirmed that John Jack George asked the complainant how much the master gave. The girl produced 1,500 Vatu.

He saw a male police officer and a female police officer when they gave the girl to the police. He said they took few minutes after they spoke to the girl before they gave her to the police. It was suggest the time was 4.00PM. He denied as they still had the time to go to Ifira Point. He said it was couple of minutes from Dawson's office to the police truck.

John Ierogen Junior was re-examined. He was asked that when he was asked question about conversation about anyone going to Dawson's building a boy said a girl had gone in. However, he clarified there were no discussions of whether or not Dawson asked the girl to go inside his office.

Leiwawa Rarua was the next prosecution witness. She gave evidence to the effect she is a police constable. She joined the police force in June 2006. She said she was working as a police officer on 14 April 2008. She started work on 7.30AM o'clock on 14 April 2008. She was a traffic officer on 14 April 2008, she worked with other police officers in a police truck.

She gave evidence she recalled the name of the complainant in the case before the Court. She said they were at the Market Parking area the girl complainant came to the police truck with the driver of the truck who drove her to the police truck. She then knew the driver of the truck was John Jack George.

She was asked if John Jack George told her something about what happened. She said yes. She said he told them that they had found this girl near the bus stop and she said the driver of the truck told them they should talk to her. It was 4.15PM. She said she checked the time of her mobile phone and the time of vehicle.

She said they asked the girl to come with them and they took her to the police station. She said she had conversation with the girl. They took her to the police station at about 2-3 minutes. When they arrived at the police station, the police driver informed the Family Protection Unit and got relevant information for them to take the girl to the hospital. Then they took her to the hospital. She confirmed the girl was examined by Dr Sly.

She gave evidence of her observation of the girl when she first saw the girl. She said when the girl walked she walked painfully and awkwardly. She said the girl was wearing a blue T-shirt and there was blood stains on her left side. She was wearing a short trousers. She could not recall about the colour. She gave evidence that the girl told her of what happened to her. She said the girl told her that she went to the second hand shop. A whiteman called her to his office. She went in to see. He gave her 1,500 Vatu and asked her to have sex. She said the girl refused. He took her to another room and forced her to have sex. This witness said the girl told her of what happened when she was in the police truck with them. So she said they brought her to the police station. She confirmed she took the girl to the hospital. She confirmed she was present when Dr Sly examined her. She said she was in the same room but she was not close when Dr Sly examined her. She estimated about 10-20 minutes. She said when Dr Sly completed his examination of the girl, she called the police truck to bring the girl back to the police station. At the police station she handed her over to criminal section. She went home after 4.30PM.

Witness Leiwawa Rarua was cross-examined. She confirmed she had given details about the conversations she had with the girl complainant when she was in the truck. She confirmed the girl told her she went to the second hand shop. She confirmed the girl told her she passed Dawson's building a whiteman wearing glasses called her. She was asked to give her understanding after what the girl told her if the girl knew the man she said the girl knew him but she did not know his name. She was asked if the girl told her that she met the man before. She answered no. She was asked if the girl knew he is the boss of the company. She answered yes.

Edward Kalura was the next prosecution witness. He joined the police force since 1993. On 14 April 2008, he was attached to Traffic Section. He started work on 14 April 2008 at 7.30AM. He was patrolling the streets with other police officers. On 14 April 2008, he recalled he met the complainant girl about 4.15PM at the Market car parking area. He was sitting behind the police double cabin and the 2 Correctional Officers he gave their names as Jack George and John Junior delivered the girl to them.

He said he saw the girl. She was looking down. She looked sad. Her hands were on side. Tears were dropping at her eyes. He said he had a conversation with the girl. He said he asked her if it was true that the person raped her. He said the girl said yes. He said he asked her if she was telling the truth. The girl said yes by nodding her head. He said she said she was 16 years old at the time. He said he told her that what happened to her was serious. They got her to the hospital. She got into the police truck. They brought her to the police station. A female police officer accompanied her with other officers.

He confirmed that he saw tears on her eyes. She was sad. She was looking down. He asked her about her mother and she told him her mother worked at the market place. He said they informed Sexual Unit offences unit.

Edward Kalura was cross-examined. He was asked if he questioned her whether it was true this person raped her. He replied yes. He was asked and he confirmed he was asking the question because one of the Correctional Officers who had brought the complainant to them told them so. He was asked if the Correctional Officer said one whiteman raped her in his office. He confirmed that.

Tony Berry was the next prosecution witness. His evidence was that he is a police office since 1997. He is a crime scene officer. His duties are to attend the crime scene and examine the crime scene and collect evidence in order to assist the Court. He said he knew about the case against the Accused. In relation to this case, he took some photographs. He took these photographs on 15 April 2008 at 9.15AM. He went to Dawson's office with other officer, Davis, Nigel Morrison and Dawson was present.

He gave evidence he took clothes, trousers, T-shirt of Accused and the complainants' and send them to Australia for DNA analysis. (Exhibits P8 and P9). He also sent swabs. He compiled an album of photos he took with explanation. He said he put explanation on the photos as a result of what he was told by officer Davis Saravanu. He said Davis took some photos to ensure that nothing is removed. (Exh.P7 is the album of the photos he prepared). He drew the diagram.

Berry Tony was cross-examined. He confirmed when he took the photos Davis was there. Nigel Morrison was present. He said he mentioned the Accused was present but he was not too sure whether Dawson was there. Room 1 was the reception area. Room 2 is the office. He was asked about a chair the complainant claimed the Accused was sitting on when he handed 1,500 Vatu. He replied Davis told him that after he attended the scene on 14 April 2008 with the complainant. He confirmed he provided explanation to each picture. He confirmed he was accompanied by officer Davis Saravanu who supplied to him the information he put in his explanation.

Fred Pakoa was the next prosecution witness. He said he is a police officer some 2 years ago. He said on 14 April 2008, he was on call about 5.15PM and was there with other officers when officer Davis Saravanu arrested Dawson. He was present when Davis cautioned Dawson. He said he was present when Dawson admitted to officer Davis Saravanu that he pushed his finger into the vagina of the complainant. He said Dawson came and talked English and was frustrated. He said he could not recall exactly what he said but he was sure Dawson said he pushed his finger into the vagina of the complainant. He saw the girl and he did not know the name. He was told he is a girl from Pentecost. He denied Dawson used the word "girl Pentecost".

Fred Pakoa was cross-examined. He confirmed he did not know the name of the girl. He knew it after. He confirmed he made a statement. He was challenged whether he stated the information given to him was that the girl was from "Pentecost". He said on the second paragraph of his statement. He said he did not accompany Davis and Tony Berry on 15 April 2008 at Dawson's building but he was present on 14 April 2008 when Davis arrested and cautioned Dawson.

He denied and said he did not remember conversation between Davis and Dawson like this: What have you been doing in you office that afternoon". He said he did not recall Davis asked Dawson he raped the girl. He denied he remembered Davis said Dawson broke this girl – blood over her. He was asked and he said he did not remember Dawson used the word "kiaman".

Davis Saravanu was the prosecution second last witness. He works with Police Force for 16 years. He was the Head of Family Protection Unit and investigation in sexual offences. He was the primary officer to investigate the case against Dawson. He was involved when he received report on 14 April 2008 at 4.30PM from officer Edward Kalura. The first thing he did was to issue a medical report and brought the complainant to hospital. After the girl was taken to hospital he visited the crime scene with officer Kalendas and another (Jacob). They went to get Dawson. He said they arrived at Dawson's office 15 minutes after 4.30PM. Dawson was not there. Door of Dawson's office was closed. They got information about his residence. He was not there either. Dawson's house girl gave them Dawson's mobile telephone number. He said he called Dawson. Dawson answered him. He told him to come to the police station at 5.00PM. Dawson arrived. He got him to general duties officers. He explained to Dawson as to why he wanted him at the police station. He said he told Dawson the police wanted him because of allegations the victim girl said he raped her. He was asked about the words used. He said he told Dawson: "the police wanted you because you had a sexual relationship with a girl". He said Dawson responded that he was not even had sexual intercourse with the girl but he pushed his finger into her vagina. He gave evidence that he said to Dawson if only for a few minutes he had thought of his wife and children. He said Dawson said he was just acting stupid.

He said he arrested Dawson and cautioned him. Dawson asked to get his lawyer - Nigel or Garry Blake. He thought it might be Garry Blake. He said he thought he put Dawson first in custody for 30 minutes. There was an application for bail and the Supreme Court granted bail to Dawson with conditions. He confirmed that on the same night he went back to Dawson's building with the victim and Dawson's lawyer. He said he got some photographs to ensure that evidence were not removed. On the next day officer Berry was with him at Dawson's building for photographs of the scene. He took a statement from the complainant girl on 14 April 2008 from about 6.15PM to 10.00PM.

He said he took accurate records of what she told him. The statement was shown to him and he was asked to read from a passage: "Taem mi walk about igo..." this witness was asked and he confirmed that the complainant girl told him that Dawson told her to sit on a chair. He said she told him that Dawson gave 1,500 Vatu. The girl complainant gave him the said 1,500 Vatu and he put them in an envelop (Exhibit P10). The original statement he obtained from the complainant was shown to him and he confirmed it (Exhibit P11).

On 15 April 2008 in the afternoon, he conducted an interview with Dawson in the presence of his lawyer and he produced the record of that interview (Exhibit P.12). He was aware the cloths wore by the complainant and Dawson were obtained by the police and sent to Australia for DNA analysis. He confirmed Dawson agreed swab be obtained from him for DNA analysis purposes in Australia. He produced the report (Exh.P13).

Davis Saravanu was cross-examined. He confirmed a drawn picture of the penis of the Accused made by the complainant. She told him it was white and big and looked like it was not circumcised. He confirmed the drawing of the penis was done by the complainant and he made the handwriting on the document (Exh.D2). He confirmed he is the police officer in charge of this case. He took information from John Jack George. He was asked what John Jack George said when they saw some men sitting in the nakamal. He said John Jack told him they went there. They asked some of the people there if they saw anyone there. They told him Dawson lives at the area.

He was asked and said he first me the complainant in from of the police truck. He was asked if the complainant said Dawson was the person. He said she did not explain properly. She was scared and sad. He was asked and he replied the complainant did not tell him of the name of Dawson. He said he found the name because it was written on the front of the office. He further said some people in that area knew very well about Dawson and his construction company. He confirmed when asked he obtained information from the police officers the girl was raped by a man. He confirmed he got Dawson's mobile phone number from the house girl. He confirmed when Dawson arrived, he was wearing the same cloths he wore during the sexual activity with the complainant. He said he saw blood on the trousers. He was asked of the Accused's clothes when he saw him at the police station. He replied he thought after the incident Dawson did not have any chance to get changed. He might have dropped his workmen. He said Dawson may have understood police wanted him for such a reason.

He confirmed when he interviewed Dawson other police officers were present. He was asked about questions he was asking the Accused before Mr Garry Blake arrived. He replied he asked the question and Dawson said he did not do anything. He further said during the conversation, Dawson said he pushed his finger inside her vagina. He said he put to Dawson that question when he saw the blood on his trousers. At the first instance Dawson denied the bloodstains. He confirmed when asked that he charged Dawson with sexual intercourse without consent before Dawson's solicitor arrived.

He was asked if he recalled Dawson said "Hemi kiaman long you". He replied he could not remember. Mr Garry Blake arrived not too long after the phone call to him. He confirmed Dawson was in custody for 30 minutes. He was asked about what Blake said and he said he could not remember but he confirmed they discussed and made arrangements about the Court hearing in the evening.

He was asked questions about the details on the complainant and he said she was in the hospital at that time. He said his main concern was that Dawson be remanded in custody. He confirmed the defence applied for bail with conditions and that Dawson should not attend his office. He confirmed he attended the crime scene with Dawson's lawyer and other police officers. He said he wanted to make sure that evidence was not disturbed. He took photographs of the main entrance, inside where the alleged incident occurred. He was asked he confirmed Blake told Dawson not to say anything more. He was shown photographs taken by police officer Tony Berry (Exh.P7). He confirmed the photos of the full building, the first room in the 3rd photo Dawson gave the money to the girl. It was suggested photo of the chair Dawson sat down when he gave the money to the girl. He said yes and added he was present with Tony Berry but the girl complainant was not present. He said she was present the previous evening. He was asked he passed on information to Berry. He replied he pointed where the chair was. He thought the information was the one he passed on to Berry. She went in and the suspect invited her in the first room.

In his re-examination, he confirmed he got information from the girl complainant.

Dr Jason Sly gave his evidence on 18 December 2008. For present purposes he will be considered the prosecution last witness. Dr Sly is a doctor of medicine. He was posted in Vila Central Hospital on 2006-2008. He is a qualified Doctor and has qualification and undertook training in sexual assaults examinations. He was trained in specific areas in forensic. He said he had 6 years of training, lectures and tutorial training in examination profiles. He was involved in 15 to 20 situations of examinations in Australia. He provided a recent copy of his C.V. detailing his qualifications (Exhibit P.1)

He recalled he examined the girl complainant of this case. He completed a record of his medical report on the sexual assault on the complainant (Exhibit P.2).

He said at page 1 of the report his findings on his recollection that the girl complained of digital penetration of vagina and penile penetration of the anus and penile penetration of the vagina. There was bleeding from the vagina. There was an acute tear which was consistent with recent sexual intercourse within 24 hours. The findings were consistent with the complainant's complaint of rape. He was asked if the girl was a virgin. He said to his recollection, she had a boyfriend. She attempted to have sex with her boyfriend but failed. At page 3 of the report on the medical history (paragraph 2) he noted penetration attempted but not completed. He took swabs from the girl vagina, anus and clothes for DNA analyses.

Dr Jason Sly was cross-examined. He confirmed he examined the girl on 14 April 2008. He confirmed all information provided to him for the medical history, history of offence and details of assault were provided by the girl complainant.

He said the girl spoke Bislama. She was not conversant in English. He was asked about the details of his examination of the girl complainant on the date of her first period, previous pregnancies and number of births incidents after 20 weeks as reflected in the form.

He was asked about the history of previous sexual activity of the girl. He said to his recollection, she said she had used condom with her boyfriend. The impression is that they attempted but failed. He was then asked 2 or 3 occasions. He answered at least one occasion. He recalled.

He was asked about physical sign of struggle on the body. He replied he would anticipate some sign. He did not find any. He said there was no evidence of abrasion near the shoulder. He confirmed his findings that the girl has vaginal bleeding and pain in her anus and vagina. He was asked and he confirmed that it is fair to say that that was based on what the girl told him that she was raped.

It was suggested and he confirmed that if he saw bruises, they will be evidence to support what he reported on.

He was asked to assume that the act complained of was consensual and was asked if it is possible to have a tear on bleeding vagina. He said it is possible. He was asked and he confirmed a tore hymen does not always mean sexual intercourse. He was asked and he gave an example of falling and false play by a girl. He said a hymen does not usually contain blood only when the hymen is tore. He said it is possible that if a finger or 2 are inserted into the vagina will result in acute vagina discharge.

He said rape lasted for 15 minutes. He did not recall the timing of each act. 15 minutes is very vague. He was asked if 15 minutes of sexual intercourse there was DNA evidence of the penis inserted into the vagina. He answered if ejaculation occurred yes but if ejaculation was not occurring, it is less likely.

He was asked of the summary of sexual assault – object used but penis was not inserted. He answered no. other than penis, digital object inserted in the vagina, that is his understanding.

He was shown a drawn picture of the penis drawn by the girl and he said it is a picture of a non-circumcised penis. It was suggested to him that this was an assumption of a consensual sex. He answered yes on the signs.

In re-examination, he confirmed that the diagram of a penis is more consistent to a non-circumcised penis.

That is the end of the prosecution evidence and the end of the prosecution case.

Section 88 of the Criminal Procedure Code [CAP.136] was read and explained to the Accused. The Accused understood his rights thereunder.

V – THE DEFENCE CASE

It is the defence case that the Accused denied and disputed the three (3) counts of sexual intercourse without consent charged against the Accused Christopher George Dawson. It is said that the defence need to satisfy the Court that there is a reasonable doubt. The defence raised issues in respect to recent complainants and corroboration of the evidence of the complainant. It is part of the defence case to endeavour to persuade the Court on two (2) bases:

1. The reasonable doubt goes to the circumstances and, thus, conscientiousness of guilt; and

2. Credit of the complainant's testimony.

The Accused exercises his right under Section 88 of the Criminal Procedure Code [CAP.136] to give evidence himself and call witnesses.

VI - SUMMARY OF DEFENCE EVIDENCE

The defence called the Accused himself and the following witnesses: Marilyn Tahi; Peter Wilson and Darryl Constantin.

The following exhibits were tendered as part of the case for the accused:

[D1] Statement of John Jack George

[D2] Two pages of drawing of the Accused's penis by the complainant with the writing by Davis Saravanu.

[D3] Photos (1-11) taken by the Accused on weekend of 7-8 March 2009.

[D4] Letter from Ridgway Blake to Vanuatu Women's Centre dated 19 December 2008.

[D5] Letter from the Vanuatu Women's Centre to Ridgway Blake dated 12 February 2009.

The Accused Christopher George Dawson gave evidence on his own behalf. He gave evidence to the effect, he lives in Port-Vila at No.2 area for 18 years. He is from Melbourne, Australia. He is a builder and he arrived in Vanuatu from Fiji in 1995. He was assisting in the building of USP Complex. He took up the employment self-employment 2 years after. He is the President of Vanuatu Quash Federation. His daughter played tennis. He met with Evelyne Jacobé who was the Tennis Coach. He knew Darryl Constantin of ANZ Banking Services. Constantin moved to Bred Bank. He was asked and he confirmed he heard the evidence of the girl complainant. He denied her evidence that before 14 April 2008 she never met him and did not know him.

He said about 2 years ago, the girl rang the office. He said she asked if she can talk to him and had a meeting with him. He denied she gave any reason as to why she wanted to have a meeting with him. He said as a result of that phone call, no meeting took place.

He said she did not inform him about her name. He said after the phone call he saw the girl before 14 April 2008. He said when he got to the truck, a young girl approached him and said she was the one who rang the day before. He said the young girl was the girl complainant who gave evidence in this trial during the week. He said she said she was the girl who rang him in the office. He said he said hello to her. He said she said she saw him and his wife they looked nice people. He said she asked if they will adopt her. He said he was chocked. He said he said no. He has two (2) children of his own. He said he suggested to her to speak to her teacher or a pastor if she had a problem at home. He said he asked her if she had a parent. She said yes and he said that was when he asked her to speak to a teacher or a priest if she had problem at home. He said she did not go to school. She worked. He said she said her parents could not pay her school fees because he said she told him her parents said she was stupid.

He said he apologised by saying he could not help her. At that meeting he said he was not aware of her name. He said subsequent to that meeting, occasionally he saw her around in the street she waved. Other times he passed her at the market place or somewhere in town. He said if he was in the truck she waved. He said if he was walking they stopped and said hello. He said sometime she asked for 100 Vatu or 200 Vatu for bus fare. He was asked to confirm and he confirmed that he gave evidence about the initial phone call, the meeting at Au Bon Marché were about 2 years ago.

He was asked if on any occasion he had any involvement with the girl in the period from after Au Bon Marché meeting. He said yes on Friday before 11 April 2008 she came in the office and knocked on the door. He denied he had any association with her before 11 April 2008. He then said sorry. There was contact about a month after Au Bon Marché meeting. He went to his office and she knocked and he opened the door and the girl came in. He then said she said hello and he said hello. He said she asked him if he could lend her 50,000 Vatu. He said she told him that she was sacked from her job. If she replaced 50,000 Vatu, she might get her job back. He said he responded by saying he did not have 50,000 Vatu to give her.

He said she told him she was accused of stealing the money. He said he asked her where she worked and he said she said she worked at Women's place at No.2. He said he did not really hear about women's place. He heard about Women Centre. He said he did not give any money. He said he heard from the girl's evidence that she was employed by Vanuatu Women Centre.

He said he lived in Vanuatu for more than 18 years and he never had any contact with Vanuatu Women Centre. He said on 18-19 December 2008 he drove his lawyer (Patrick Finnigan) to meet people there. He was inside the truck. He was aware his solicitor wrote to the Vanuatu Women Centre. He was aware a response was received from Vanuatu Women Centre in writing.

He was asked about his evidence of having some contact with the girl on Friday 11 April 2008. He confirmed and said about 3.00PM o'clock in the afternoon. He was in his office. There was a knock at the door. He went to the door. The girl complainant was at the door. She came into the office and said hello and he said hello and he said she asked if he could give her 5,000 Vatu for her birthday. He said he told her he did not have 5,000 Vatu with him. He said he could not help her at this time. He said she said she will come back at 5.30PM when she finished work. He was asked about his experience of being in Port-Vila and receiving request of money. He said it happened all the time. He gave 100 or 200 Vatu for bus fare or ice cream. He said he gave larger amount to his employees for school fees or deaths as he knew the employee will give it back as he controlled their wages.

He gave evidence that on 14 April 2008, about 3.00PM she knocked at the door. He said he was at his desk. He said she opened the door and came in. He said she said hello. She said she came to the office at 5.30PM on Friday 11 April 2008 and nobody was there. He said she said she came to his house on Sunday. There was no car there. He said she asked if he had something for her birthday present.

He said prior to the hearing, he had taken a number of photographs from 1-11 photos. Photo 1 shows the entrance of the building. Photo 2 is about the reception. Photo 3 is of the same reception taken from opposite direction. Photo 3 shows the area of his office - 2 shaped bench – computer in the corner, paper work and office stuff. The door to the right there is in his office. The door to the left is the door to the workshop area. Photo 6 was taken inside his office looking to workshop area. There is a window and he could look through the reception area. The door into his office (door to the right) was not locked. The door from workshop can be locked. The door from workshop (photo 7) is about a white bench – table to cut timber. He was asked he said the photo was taken on Saturday this week. Photo 8 was taken – looking back. Photo 9 was taken – standing behind the table saw – looking toward waiting room right side of Au Bon Marché. There were 2 doors in the area. He confirmed there was air conditioning in his office. Photo 10 is about a white truck. There was no sign on it. He produced the list of photographs (Exhibit D3).

He gave evidence he was in his office the girl had sought something from him. He was standing in the middle of the office. She was facing toward him. He said she turned around and back toward him. He said she had her bottom in his groin area. He said she took his left hand and placed it in her stomach area and he said he lifted up to her left breast. Nothing was said by anyone. He said she lifted up her T-shirt and he placed his hand on her breast again. He untied her bra. He put his hands on her breasts and pushed one of his fingers in the girl's vagina. He said there was no objection from the girl. He said the girl said they needed to hurry up because she needed to go back work by 3.30PM.

He said they moved to the workshop area. He denied restraining the girl. He denied dragging her to the workshop area. He said she was actually encouraging him. He said she was pressing her bottom toward his growing area. He said she said "fuck me" or "fuck me now" one or the other he was not sure hundred percent. He said she moved away from him. He said he took his penis out. He was asked and he confirmed he inserted his finger into her vagina. He said she said they needed to hurry up. He said she took her clothes off and put them on the window frame.

Some photographs were shown to him. He was asked to comment. He said page 2 shows the window fame. He said after she removed her short he tried to penetrate her vagina. His penis was not erected. They went to the table. He said he said this was not going to work. He said about that time they heard knocking on the door. He said he put his finger into her vagina and she was holding his penis with her hand. He moved his finger in and out for a minute or half not longer. He confirmed there was a point he stopped and they moved on the table.

He denied he penetrated her anus. He was asked if he observed any blood. He said not at that stage. He said he saw blood after he went out and spoke to the Correctional Services people and when he came back in. He confirmed the Correctional officers came to see him in the morning. He said they were looking for Hilaire Doriri – Leikon. He said he told them he was working at Ifira Point. That was at 8.00AM in the morning. He said in the afternoon, he was in the process of sizing up his trousers. He said the Correctional Services officers told him – sorry they went to Ifira Point in the morning, the employee was not there where else he might be. He said he told them to go to Stade where Municipal Stadium is near Tennis Club.

He was asked about evidence that he was sweating profusely. He said he was standing outside the door and spoke to the Probation Officer for 1 or 2 minutes not more. He went back to the office. He said the girl was adjusting her clothes near the window frame. Then he said that was when he noticed blood on the T-shirt and he noticed blood on his hands. Nothing was said by him or the girl. He said he went back to his office and he sat on the chair. He put his hand in the pocket and gave her 1,500 Vatu. He said she took it and he said she said she will be back the next day at the same time and she left. He said he washed blood on his hand. He went back to his office. He left his office 10-15 minutes. He visited the worksite at Joint Court area and Stade. The door was unlocked during the time the girl was in his office and before she left. He confirmed he received a phone call from the police station. He said he dropped off his employees at No.3 and USP. He confirmed a second call and he parked over the police station. At the police station, he was taken to a police room there were police officer Davis, a female police officer and people in and out.

He confirmed there were conversation between him and police officer Davis. He said Davis told him what had he done in the office that afternoon. He said he had done nothing. He said officer Davis did not indicate to him what he wanted to do. He said officer Davis said to him if he did fuck one young girl that afternoon in his office. He said he said no he did not. He said he told Davis the girl "hemi kiaman long you". He said officer Davis charged him with sexual intercourse without consent. He said he asked to call his lawyer and officer Davis accepted. Blake arrived 10 minutes after and asked what happened. He said he told Davis that the girl "hemia kiaman long you". He denied saying the girl is from Pentecost. He said Blake arrived with other police officers. He said Blake said Davis what happened. He said Davis said he was charged with raping a girl. Blake asked how old. Davis said 16 years. He said Blake looked at him. He said he said something that she came to his office. He said Blake looked at him and he said that he said only he fingered her. She came to his office. He said Blake told him not to say anything else. He said he asked Blake to get him out of there. He said bail application was made and granted with conditions. He said Blake, Davis and the girl went back to his office in the evening of the incident. He did not get there. He said Davis went back to his office with Nigel Morrison in the morning of the next day at 9.00AM o'clock. He was not present. He said Davis got a statement from him. He was shown and confirmed his record of interview. Questions 22-25 were about alleged incident. He said his lawyer advised him not to answer any question.

He said officer Davis did not enquire about his previous association with the girl. She was asked about the evidence of Sonia about her drawing of his penis. He was asked and he said he was circumcised.

He denied the said incident occurring on 14 April was occurring without the consent of the girl. He said the activities occurred in the office, then they moved to the workshop room. He denied any force made by him on the girl. He said the girl left the workshop, came to his office and he gave her 1,500 Vatu. He said she said she will be back the next day at the same time and he said she closed the door.

He confirmed he received copies of witness statements after 15 April 2008 from the Public Prosecutor's office. He said Nigel Morrison gave him a copy 3 weeks after. He saw the statement of the girl complainant and when asked he said he could not see anywhere her birthday was 12 April but he said in the statement of her father and mother her birthday was a Saturday. On the question if he was aware of the girl's birth certificate supplied. He said on a Saturday or Sunday.

The Accused Christopher George Dawson was cross-examined. He confirmed he had no prior connections before 14 April 2008 with John Jack George, John (Junior) Ierongen, Isabel Sali, Hannington Sali, Edward Kalura, Fred Pakoa, Rony Kallong, female police officer Leiwawa Rarua, Willie Joel, Davis Saravanu, Tony Berry. He confirmed none of prosecution witnesses has any animosity with him. He accepted when asked that prior to 14 April 2008 the dealings he had with the girl complainant on his evidence has no animosity. He lived in Port-Vila for 18 years at Avenue Captain Cook near Roy Gallimore about 100 metres. He worked in Fiji, Australia and moved to Vanuatu in 1989. He came in Vanuatu in 1987 and was involved in the construction of USP Complex. His wife's name is Carolyne Dawson. He is still married with her today. He said after he worked with USP Project he worked in numerous projects at Litzlitz Wharf, Malekula and he finally worked for Wilco Modular in early 1990 for 2 years and then he was self employed. In 1992 he formed a joint partnership. He could not remember why Dawson Building started in 1995. His licence dated 1992. His first daughter, Anna was born in 1991 and her sister was born in 1998. They both attended boarding school in Australia. He got associated with Tennis Club and his daughter played tennis under the coach of Evelyne Jacobé. He confirmed he heard the girl's evidence denying consensual relationship with him on 14 April 2008. When asked about the date and time of his meeting with the girl at Au Bon Marché No.2, he could not provide any and no diary kept about the said meeting.

He said the girl rang and said she wanted to have a meeting with him. He said he was busy. She did not give her name and he did not query about who she was. He said it was not unusual. He said he was not sure the next date or after he met with the girl at Au Bon Marché No.2 car parking. He denied driving with the white truck. He said he had the Toyota motor vehicle taken in photo with a sign "Dawson Building" with his mobile phone and e-mail address. He said the girl approached him. He said he said hello to her and she said hello to him. He said she said she was the one who phoned him the other day. He said she said he and his wife are nice people. He said she asked if he and her wife could adopt her. He said he said no as he and his wife have children. He said he asked her if she had parents. He could not remember the date of this conversation. He confirmed he did not know her name.

He said he was nervous when he was asked if he got other meeting with the girl. He confirmed it was unusual for a girl to approach him. He said he did not tell his wife about this. He said when he worked on Malekula, there was a cleaner who asked him if he had children. He said he said yes and the cleaner asked him if he would want her. He was not offended. He accepted to be approached by a complete stranger. He was asked that when he connected himself in his evidence about the meeting with the girl, he said it was about one month later. The girl asked if he could give her 50,000 Vatu. She lost her job and if she paid VT50,000 she could get her job back.

He said he never sent the girl away and never told her not to come back to his office. He was asked if he asked the girl of where she worked. He said she said Women Centre at No.2 but she did not give him her name and he did not ask her name. It was put to him and he confirmed he had 2 significant meetings with the girl but he never asked her about her name. He said he had no explanation as to how she knew him. He said he did not ask her.

It was put to him that it is improbable that the girl rang him and asked him for a meeting. He replied it was not unusual – not in Vanuatu. It was put to him apart from the Malekula example, it was unusual and he confirmed. He said he did not tell anybody about Vatu 50,000. He said he did not tell his wife about the meeting. He confirmed he did not tell his wife or anybody about the girl asking for VT 50,000. It was put to him that he made a point that people in Vanuatu asked for money but 50,000 Vatu is unusual. He said the amount is unusual.

He confirmed when asked that he did not tell the girl not to come back to his office. He was asked about other significant meetings, he said he had no idea. He saw her generally sometimes when driving a white car or on foot. He could not specify the dates and times he said he spoke to her over the period of 2 years. He said sometimes she asked for 100 or 200 Vatu for bus fares or ice cream. He said he never asked the girl if she has a birthday every year. He confirmed she never came to him on 12 April 2006 - nor that she ever asked him any money or she never rang him and requested he gave her a birthday present on 12 April 2007.

It was put to him that it was pretty unusual for her to contact him on 14 April 2008. He answered no. He said the girl came in the office at 3.00PM on 11 April 2008. She knocked. She asked for 5,000 Vatu for her birthday on 12 April 2008. He said he told her he did not have 5,000 Vatu. He confirmed when asked that he did not tell her to go out of his office. He was asked why he did these things. He replied it did not worry him and he said if she came everyday he will do the same thing.

It was pointed out to him that he did not know her name. He said yes.

It was put to him whether it was usual practice to close office before 5.00PM. He said yes when he checked at his workers and dropped them off. He said he had ignored telling her to come at 5.30PM. It was put to him and he accepted that if he told her to go and never come back, she will lose interest. When asked he accepted he did not mention to her that they had significant conversations two years ago.

He was then asked about 14 April 2008. He said she knocked on the door. She came in. She said hello. She said she came in on Friday at 5.30PM. The office was closed. He said she came to his house. He said she said there was no car there. He said she asked if he could give her 5,000 Vatu for her birthday present. He was asked if he replied to her. He said no. But that they were probably on the beach that was why there was nobody at home.

He was challenged as to why he did not give details. He said he did not think they were important. He confirmed he never told her not to come to his house. When asked he confirmed he never asked her how she knew where he lives. He said he was not concerned. He was asked if he was going to tell his wife about the girl coming to his house. He said no. He was asked if it was important for his wife to know he said no.

He was asked again about his evidence the girl asking 50,000 Vatu 2 years before and 2 years after she came back for 5,000 Vatu for birthday present. He answered yes. He confirmed he had 4 significant meetings with the girl and she never told him of her parents, her sisters or brothers nor their names. He said he never asked her how she knew him. He said he never expressed annoyances about her knowing where he lives or about request for money.

He accepted he never discouraged her to come back. He confirmed his evidence he told the Court of the girl's desire to be adopted by him and her dismissal from her job on basis of dishonesty. It was put to him that what he told the Court about were just nonsensical. He denied that.

He confirmed he told nobody of his conversation with the girl. It was pointed out to him, the office is his office. However, it was put to him that it was strange that the girl came into his office and he followed her. He said he could remember and it was not strange. He said she asked if he had a birthday present. It was put to him again that he did not say anything for the request for birthday present. He answered he had no idea. If he said something he did not know. He said he did not take note of 14 April 2008. He accepted he described connections of sexual activity.

He confirmed he is married and has 2 daughters. He said he knew the girl was younger than his 2 daughters. He accepted he is a man of some considerable privilege and power and in Vanuatu people called a whiteman master. He accepted as 50 years old expatriate he had his experiment in life. He was powerful than a 16 years old ni-Vanuatu girl.

It was put to him that on 14 April 2008, without any prompt from him, she was sexually aggressive towards him. He said he would not say aggressive. It was put to him she was given sign of aggressiveness. He said he would not say aggressive. He was asked to describe the conversations leading to matters of sexual activities. He answered that the questions (of counsel) were funning.

It was put to him that on his version the girl was vulnerable, out of work and without a warning she started sexually aggressive to him and he was asked if he still stood by what he said. He answered yes he did. He was asked the girl became sexually aggressive toward him. He confirmed by saying yeah. He did not put any stop. It was suggested to him and he accepted he could have stopped this.

He was asked and he confirmed of what he said she placed his hand on her stomach. He lifted it on her breast. He confirmed he crossed the line and he did not stop it and he had no idea as to why he did not stop it. It was pointed to him that he did not tell her he is a married man. He said he did not tell her not to do this. He said he did not tell her that he did not know her name. He answered that the questions (of counsel) are funny. He said he did not tell her that they should not do this. She was younger than his daughters. He denied this was nonsensical. He was asked he confirmed his evidence that she rubbed her bottom on his back. He said she lifted her T-shirt. He touched her breast. He was asked and he said no words said apart from asking for the birthday present.

He said he left the office to the workshop area. He could not remember who followed who. He answered she might followed him. He was asked and said he had no idea as to who did what.

He was asked and he confirmed when inside the workshop he said the girl said "fuck me or fuck me now". He said she removed her short and underwear and put them on top of the window frame. He said he inserted his finger into her vagina. He said he had her hand on his penis while they were still standing. He was asked and he confirmed the girl was very short and he now accepted that the action of his finger inside the vagina caused her to bleed.

He was asked and he said he did not see any blood before. He was asked about the blood on her T-shirt and he answered he did not know. He was asked about blood in the workshop area. He said he did not know. It was put to him if it was dark. He answered it was dark.

It was put to him and he accepted he tried to insert his penis into her vagina. It was put to him he did not ask her. He answered no. He was asked he had fulfilled his sexual desire. He answered yes. It was suggested he was a lucky guy and he replied yes. It was not a regular thing. He said no. It was put to him that he took her on the table. He said he could not remember. His penis was not fully erected. He said both of them moved to the workshop room. He did not know who led the way to the workshop room. He said he might lead her. He said he had no reason why he had no idea. He was asked they he could not remember of the details. He answered he did not think they were important. He was asked he confirmed she was sitting on the table. It was put to him that the issue whether the penis was circumcised or not was not an issue. He confirmed this by saying yes. He agreed she saw his penis. He agreed she was sitting facing him. He admitted when asked he attempted to have more sexual intercourse. It was put to him it was not an accident. He said his penis was not fully erected. He did not know if he felt guilty. He denied he was frustrated of the way thing gone. He was asked whether he felt this was not a big deal. He answered no. He was asked and he confirmed her behaviour as a sexual instigator seducing a 50 year old man and for him it was not unbelievable. It was put to him that it was the case he withdrew from sexual activity when there was knocking on the door. He answered yes.

It was put to him that he did not say anything to her at that point. He answered no. It was put to him he did not express any gratitude to her. He said no. It was put to him he did not ask her how she felt. He answered no. He agreed he spoke to John Jack George but he could not remember who he spoke with. He was told he spoke with John Jack George. He confirmed he did not have any relationship with him. He confirmed John Jack George had no reason to embellish his story.

It was put to him that John Jack George gave evidence that he was sweating profusely. He answered he was sweating but not profusely. He was asked and he accepted he was encouraged in the sexual activity to cause sweat on him. He said he was sweating but not profusely.

He was reminded about the evidence of the Correctional Officer John Jack George who saw blood on him and thought somebody might assault him. He said yes he remembered. He remembered their evidence with John Junior about the boys at the nakamal. He was asked if he knew the boys there. He answered he knew the faces. Some worked for Dihn Van Than. He confirmed the Correctional Officers came back to his office in the afternoon to see him. He confirmed he left his office 10-15 minutes after the girl left.

He said when he had conversation with the Probation Officer, he did not notice any blood on him. He confirmed it was still day time. He could not say how she felt. When he came back he said he went to his office. It was put to him that on his evidence the day before, he said when he came back from outside he went to the workshop room. He confirmed that he said he did not recall saying anything to her. At that point he saw blood on his hand. He was asked if he went back and washed his hand and went to his office. He replied he might go to the office. It was put to him that in his evidence he said he went to see the girl he saw blood on his hand and on her T-shirt. He said no. He was asked if he had asked her to wash the blood on her. He said no. He confirmed he said he washed blood on him in a bucket near the air conditioning workshop.

He was reminded of his evidence he said he washed his hands and go back to work on his computer. He said he had no idea. He denied he had any diary note. He was asked if he was concentrating. He said he might read newspapers.

It was put to him that even after the sexual activity occurring, he did not want his wife, his daughters and friends to know about it. He answered no. It was pointed to him that before discussions about the computer, he said he saw the girl adjusting her bra and cloth and he was asked why he said he gave her 1,500 Vatu. He answered for her birthday.

He was reminded that in his evidence he said he gave 100 or 200 Vatu. He confirmed that. He said she came on 11 April 2008 he said he told her he had no money. He was then asked why he paid her for sexual activity on 14 April 2008. He answered for a bit of both and more than birthday.

He was asked about his evidence that she said she will come back tomorrow about the same time. He confirmed and said he won't be there. He confirmed he did not say anything. He confirmed he did not tell her not to come back. He was asked why he did not want to tell her about. He said it was about 30 seconds. It was put to her that she gave evidence that he saw her leaving. He said he was in the office. He paid her 1,500 Vatu. He described she appeared to be fine. He was asked and he accepted he did not have any concern as to how she was.

It was suggested to him that if his versions of evidence were correct, she will have an expectation for more money. He answered he had no idea. It was pointed to him he said she asked money on 11 April 2008. He confirmed that. It was put to him that she did not ask money on 14 April 2008. He confirmed that and he admitted he gave money on 14 April 2008. He said she left and closed the door. He said he did not see that she was distressed. He was asked and he accepted as correct that after hearing evidence from the 2 Correctional Officers, the investigating officers and Dr Sly she was in a distress condition.

It was pointed to him of the evidence that she appeared in a complete distress condition. She was bleeding and crying. He heard evidence she left his office he was asked if he accepted that. He answered no.

He was asked if he had any explanation she was distressed. He answered he imagined she panicked. He commented on prosecution witnesses' evidence and said some said 4.15PM – 5.00PM. There was a big gap he said. He confirmed he read most of the brief of evidence. He accepted Dr Sly recorded he examined the girl at 4.00PM and 4 other referred to time after that.

The witness said he loves his wife. He said he was not going to tell his wife because of embarrassment. It was suggested to him and he confirmed he was prepared to tell his wife about his versions of evidence. He was asked when he found blood he did not asked the girl if she was alright. He answered he did not recall saying anything. It was put to him he said as she was leaving he said she said she was going to work.

He confirmed he received a phone call made by police officer Davis. He denied that when he was called at the police station, there was any association with the alleged sexual activity. He was called at 5.00PM. He said he did not know what happened. He said police officer Davis asked what he was doing that day in the office. He replied he did not do anything because the said sexual activity was consensual.

After he said Davis said he fucked a young girl, he agreed that was what was said he did. It was put to him that that was true as he said he could not have an erection. It was put to him and he agreed that that was a full answer. It was put to him that he did not say that he attempted to penetrate the girl. He said yes. He admitted he said he fingered her vagina and he told Davis that the girl "hemi kiaman long you".

Davis arrested him for sexual intercourse without consent. He said Garry Blake is his friend. A very good friend for 10 years. He rang Blake and told him about what he said Davis told him. He admitted he saw blood on the girl. It was then put to him that it was not a surprise to him when Davis told him that the girl was covered with blood. He answered no. He said he did not know the girl's island of origin and her name. He said Blake asked what was going on here. He said he did not have any details of what was happening.

He said Blake asked how old is she and Davis said 16 but he said he was not sure. He said Garry Blake looked at him and when asked if Blake asked him any question, he said he did not recall. When he was asked if Blake was looking at him as a lawyer or his best friend, he said Blake looked at him. He said he said he only fingered her. He said he said words to this effect. When he was asked if fingering her was not serious, he said he did not know. He said immediately after he said these words, Blake told him not to say any other words. He said Blake arranged for his Supreme Court sitting. In Court he was accompanied by Nigel Morrison.

He was asked about his evidence of having any association with the girl. He confirmed that. It was put to him and he accepted he knew Davis was talking about the girl. He confirmed when asked that when Davis said he arrested him for having sexual intercourse without consent, he knew it was about the girl complainant.

He said he then knew the girl said she never know him before 14 April 2008. He was asked and he agreed he claimed previous association with the girl but he never told of his prior association with her. He said he was asked what happened in the afternoon. It was suggested to him and he accepted by saying it was correct when he accepted, he was able to access the girl's date of birth from the brief of evidence.

The following propositions and corresponding answers were given:

Q. Put to you the girl was walking past your building on 14 April 2008 – do you agree?

A. Disagree.

Q. Put to you you yelled at her "hey you come fastaem".

A. Disagree.

Q. She came to your office.

A. Disagree.

Q. You invite her to sit down.

A. Disagree.

Q. You gave her 1,500 Vatu.

A. Disagree.

Q. You agree you asked her to come to your office.

A. Disagree.

Q. You touched her breast.

A. Disagree.

Q. She wanted to get away you dragged her to the workshop room.

A. Disagree.

Q. All the way she wanted to get away.

A. Disagree.

Q. You got off her short and panties.

A. Disagree.

Q. You put her on the table.

A. Disagree.

Q. You blocked her mouth.

A. No.

Q. You put a finger in her vagina.

A. Yes.

Q. When you do that you did not ask her consent.

A. Not correct.

Q. You put your penis in her anus.

A. No.

Q. You put your penis in her vagina.

A. No.

Q. The sexual activities caused blood to the girl.

A. Yes.

Q. You still penetrated her vagina when you have been disturbed by a man knocking on the door.

A. Disagree.

Q. You put your penis and size up and go to door.

A. Yes.

Q. You told the girl not to tell anyone.

A. Disagree.

Q. Put to you you hurry up to go outside.

A. Disagree.

Q. Is it the case that you did not know what happened to the girl once she left you office.

A. Fair to say that.

Q. Put to you before 14 April 2008 you never spoke to the girl.

A. Disagree.

Q. Put to your that you digitally penetrated her vagina on 14 April 2008 without her consent.

A. Disagree.

Q. Put to you you have penile penetration of her anus without her consent on 14 April 2008.

A. Disagree.

Q. Put to you you have penile penetration of her vagina without her consent on 14 April 2008.

A. Disagree.

Q. You were charged. You independently got investigation revealing she had taken money.

A. Disagree.

Q. The reason you offered evidence was you made suggestions that you knew the girl when you did not have any previous association with the girl.

A. Disagree.

The Accused Dawson was re-examined. He said he did not tell the girl to get out when she asked for 50,000 Vatu because he said he always tried to be courteous to people. When asked about the birthday on 11 April 2008, he said it was not a demand. He finally said his vehicle got his details in the middle of 2007.

Marilyn Tahi was the second defence witness. She is the Coordinator of V.W.C. since 1992. She was aware she was asked to come to Court about a person by the name of (the girl's name). The girl is related to her. She is married to the girl's biological father. Four (4) years ago she became married to Benjamin. She confirmed the girl took employment with V.W.C. in November 2005. She confirmed a letter was sent to her office enquiring about the girl. She said the letter was sent on 19 December 2008 and she provided a response to that letter on 12 February 2009.

She was asked and she confirmed the fact set out in the letter in paragraph 1-7. She discovered a cheque presented was 60,000 Vatu. She had occasion to speak to the girl about the circumstances of the cheque for Vatu 60,000. She said she did not say anything. The finance officer had a meeting with her. She herself had conversation with the girl about this. She said the girl admitted to her she defrauded the cheque. She said the girl received Vatu 6,000 wages. She was asked if the girl repaid the money. She said she had repaid 54,000 Vatu and the remaining was written off. She was asked about the evidence of the girl's mother that she gave the money to the girl. She replied she did not know about what the girl's mother did but the girl brought the money to the V.W.C. She said the loss of the money had adverse effect with the donor. She produced letters (Exhibits D4 and D5). The matter was kept confidential. No charge was laid. No publicity in the newspaper.

Marilyn Tahi was cross-examined. She said prior to her being summoned, she spoke to Jennifer, Garry Blake and Finnigan. She said she had conversation with Garry Blake about evidence. She was asked to give a general opinion about the girl. She said she is good with the staff. She said she did not know she had an involvement with one of her friends. She categorically said there was no suggestion the girl was going to work after the repayment of the money.

She confirmed in June 2006, V.W.C. got this matter private. The girl was very young on 14 April 2006. She said they met with the managers and the girl said she is going to refund. She said V.W.C. had 10 members of the staff. She confirmed Vila is a small place. If one wanted to find out about something one could not say it was kept confidential. There was no guarantee of linkage. The girl was employed as a volunteer and she got paid a superannuation fund (VNPF). V.W. C. paid VNPF contributions but they have no control over VNPF. On that information she said she had no comments. She confirmed she knew the girl as a worker of V.W.C. and that she has a connection with her husband Benjamin. She confirmed she had still contact with the girl and she considered her as a genuine person. She said the girl never spoke to her about the accused, Dawson.

Peter Wilson was the third defence witness. He is a resident of Port-Vila since 1971. He ran a building company with Wilco Modular since 1995. He set up Wilco Hardware and disposed of his interest in 2003. He said they employed Christopher George Dawson during 1992 as project manager for about 2 years. After he went to Wilco Hardware he still had connection with Dawson. He was asked to express any view on how he found Dawson with honesty. He said he is an honest person.

Peter Wilson was cross-examined. He said he did know why he came to Court. He knew Dawson is a married man. He knows his wife. He was asked if his opinion of Dawson be changed after he had sex with a Ni-Vanuatu girl of 16 years old. He said unless proved guilty. He heard the evidence alleged against Dawson and what Dawson said he did. He said the behaviour was not very astute. He said he was disappointed. He admitted the behaviour of the Accused affected his opinion of him.

Darryl Constantin was the last defence witness. He is the General Manger of Bred Bank. He was born in Mauritius, entered in Vanuatu in 1987 and worked for ANZ Bank. He knows Christopher Dawson in late 1987-1988. He was very close to a Manger of ANZ Bank. Christopher Dawson was his customer. He worked with ANZ Bank from 1987 to September 1994. He approached Dawson when he worked with the Bank of Hawaii. He returned to Vila in June 2007 to set up Bred Bank Vanuatu. He denied Dawson is a customer of Bred Bank. He was closer to Dawson for sport activities. He played squash with Christopher Dawson. He knows his wife. He says Dawson is a person who goes straight to the point. He said he is truthful.

He was cross-examined. He said during difficult time, Christopher Dawson was helpful. He said Dawson also said what he thinks. He confirmed he knows Dawson. He said he is not here to tell the Court how he thinks about Christopher. He has given evidence of what he said happened. He said he used to go out with Dawson and he never saw something wrong with Christopher and his wife. He knows Christopher. Christopher Speaks his mind and knowing him he tells the truth. He admitted that if Christopher had a relationship, he said he is not truthful with his wife. He said he is little bit disappointed. However, he said he did not change his opinion about the person.

That is the end of the defence evidence and the defence case.

VII - DISCUSSION ON EVIDENCE: ADMISSIBILITY, CREDIBILITY OF WITNESS AND FINDINGS OF FACTS

In this trial I am both the judge of law and the judge of fact. As the judge of fact, I saw the witnesses and heard their evidence. I also observe the demeanour of the witnesses in the witness box. I consider the evidence of the witnesses through their oral testimonies and statements and exhibits. I hear, read and consider arguments and submissions of counsel of which I am greatly assisted. The following assessments and findings are made:

The complainant was still 16 years of age at the time she gave her evidence. I saw her demeanour in the witness box, I agree with the prosecution that she was shy, quiet and respectful. I read her statement (Exhibit P11) and consider her oral testimony, her evidence was consistent with her previous statements she made at earlier times, out of Court. Her statement (Exhibit P11) is admitted. She gave honest, credible and reliable evidence. She was subjected to strenuous, searching, probing cross-examination from an experienced, senior counsel over many hours, yet she maintained her demeanour and was consistent in her testimony. She testified over the course of her day and maintained her position throughout.

I find she is honest and simple when she made appropriate concessions when questioned about her previous employment with the Vanuatu Women's Centre (V.W.C.) and her dismissal from that employment. She did not seek to deny that that occurred. She admitted her involvement in the fraudulent alteration of a cheque for 6,000 Vatu on account of allowances, to the amount of 60,000 Vatu and the withdrawal of the larger sum from the bank.

It is an accepted fact that the evidence given by the complainant that she had never met the Accused prior to 14 April 2008 is plausible and stands up to scrutiny. It is accepted as inherently improbable that the complainant would have two isolated meetings with the Accused in 2006 during which she disclosed the most private, personal information, followed by several completely inconsequential meetings, prior to the girl returning to the Accused's business premises to seduce him to have sexual intercourse and/or to request money from him.

If the complainant was to make a false allegation of rape against the Accused, the question is why would she deny having previously met him in the circumstances suggested by the Accused? It is rational to say that if she did intend to falsely accuse the Accused of rape, it would have been easier for her to have done if she established that she had a prior connection with the Accused whereby she confined in him and trusted him to the point where she had told him that she wanted to be adopted by him and his wife. It is more rational to say this because such previous connection (if it existed) would lead the girl to more readily trust the Accused inside his business premises. Further, if such previous connection has occurred as described by the Accused, the complainant could not possibly have known whether or not the Accused had told other people of that previous connection and for example the Accused's wife. It is accepted that there would be a considerable risk for the girl to deny the previous connection in those circumstances.

I find that the complainant, despite her youth and worldly inexperience, was remarkably consistent in her previous out of court statements and in her court testimony. It is a fact that each of the various versions given by her was fundamentally consistent with all other versions, namely:

- Her report to Dr Sly during the medical examination on the afternoon of 14 April 2008;

- Her detailed statement given to Davis Saravanu over several hours on the evening of 14 April 2008;

- Her evidence-in-chief and cross-examination in the Supreme Court on 9 March 2009.

It is a fact that the events the subject of the charges, occurred at about 3.15PM on 14 April 2008. It is noted that the Accused, in his evidence, consistently referred to the fact that the complainant stated several times that she had to be at work by 3.30PM. It is a fact that the complainant, in a distress state, agreed that she had been raped when asked by Mr George after she left the Accused's building. According to the medical report prepared by Dr Sly, he examined her at 4.00PM. Within that short period of time from 3.30PM-4.00PM, the complainant was able to give details of what occurred to her to Dr Sly and such details have remained consistent ever since. It is accepted that it is inherently improbable, indeed completely implausible that the complainant initiated sexual activity in the manner described by the Accused in the evidence he gave at trial.

Isabel Sali, the mother of the complainant gave evidence of her concerns on the afternoon/evening of 14 April 20008 when the complainant did not return home at the regular time in accordance with her usual practice. Her cross-examination as to the previous employment of the complainant at the Vanuatu Women Centre, the circumstances of her dismissal from that employment and the repayment of the money to the centre affects some way her credit. However, it is noted that the evidence relating to the employment issue is of such a limited relevance that no weight could be attached to it.

I find that witness John Jack George was an impressive witness. His evidence assumes great importance, because he had contact with both the Accused and the complainant immediately after the events the subject of the charges. The Accused confirmed that he had had no previous dealings or contact with Mr John J. George prior to 14 April 2008, and that Mr George had no apparent animosity towards the Accused, or a motive to be untruthful. It is accepted as fact that Mr George's observations of the Accused and the complainant are highly probative of the allegations of sexual intercourse without consent. The evidence of distress observed by Mr George is corroborative of the complainant's complaint. The conversation between Mr George and the complainant does amount to a fresh complaint and is admissible. In any event, not only was the conversation not objected to at trial, but the Accused tendered the Statement of Mr George (D1), as part of his case. It is accepted that the relevance of the complainant agreeing she had been raped, and of having been paid 1,500 Vatu by the Accused, goes to her consistency. I find that the evidence of Mr George was both credible and reliable. The evidence of Mr George is accepted as a truthful and accurate account of his observations on the afternoon of 14 April 2008.

The Accused confirmed that he had had no previous dealings or contact with Mr Ierongen prior to 14 April 2008, and Mr Ierongen has no apparent animosity towards him, or motive to be untruthful.

Mr Ierongen's observations of the complainant are highly probative of the allegations of sexual intercourse without consent. The evidence of distress observed by Mr Ierongen is corroborative of the complainant's complaint. Mr Ierongen was present to hear the conversations between the complainant and Mr George.

I find that the evidence of Mr Ierongen was both credible and reliable. I accept his evidence as truthful and accurate account of his observations on the afternoon of 14 April 2008.

The Accused confirmed that he had had no previous dealings or contact with Constable Rarua prior to 14 April 2008, and that Constable Rarua had no apparent animosity toward him, or motive to be untruthful. Constable Rarua was an honest witness, who was being truthful while giving evidence. Constable Rarua's observations of the complainant's distress that "when the girl walked she walked painfully and awkwardly... There was blood stains on her left side..." are highly probative of the allegations of sexual intercourse without consent. The evidence of distress observed by Constable Rarua is corroborative of the complainant's complaint.

Constable Rarua testifies that she became involved at 4.15PM on 14 April 2008. While there is no basis for rejecting the evidence of Messrs George and Ierongen that they immediately drove the complainant to the police and handed her to Traffic Officers who were parked at the Market place (such officers including Constable Rarua), it is apparent that Constable Rarua must have mistaken as to the time she testified she became involved in the investigation. Her evidence that she was aware of the time by checking her mobile phone and the time on the police truck must have been an error. If her phone was set an hour ahead of time and the clock of the police truck was set in accordance with the time on her phone, such would explain the timing error. Constable Rarua was present during the complainant's medical examination by Dr Sly and that that examination commenced at 4.00PM. In any event, nothing turns on that error.

The Accused confirmed Constable Kalura had no apparent animosity towards him, or motive to be untruthful. Although uncertain, the Accused testified that he may have had previous dealings with Constable Kalura through rugby.

Constable Kalura was an honest witness, who was being truthful while giving evidence. Constable Kalura's observations of the complainant's distress are highly probative of the allegations of sexual intercourse without consent. It is accepted that the evidence of distress observed by Constable Kalura is corroborative of the complainant's complaint.

However, it is apparent that like Constable Rarua, Constable Kalura must have been mistaken as to the time he testified he became involved in the investigation. He also testified that he became involved at 4.15PM on 14 April 2008. For the same reason given above, that part of his evidence is accepted as an honest mistake. Although, he was not asked to in evidence, it is probable that his recollection was informed by the time that appeared on the clock in the police truck. Again, in any event, nothing turns on that error.

The Accused confirmed that he had had no previous dealings or contact with Constable Tony Berry prior to 14 April 2008, and that Constable Berry had no apparent animosity toward him, or motive to be untruthful.

Constable Berry's evidence is accepted as honest, credible and reliable. He performed his duties as a Scenes of Crime Officer professionally and dispassionately. It is apparent that the narrative given accompanying the photographs in Exhibit [P.7] was provided to Constable Berry by Davis Saravanu. It is not disputed that the complainant was not present with Constable Berry when those photographs were taken. Constable Berry testified that the description of the photographs on the bottom right of page 1 of exhibit [P.7] which states: "chair we Dawson i bin sidaon long hem mo givim money long victim" was written by him as a result of information supplied by Davis Saravanu. However, although, Davis Saravanu accompanied the complainant to the Accused's building on the evening of 14 April 2008, it is apparent that she never told Davis Saravanu that the Accused, Dawson, was sitting on that chair when he gave her the 1,500 Vatu. Davis Saravanu took the complainant's statement (Exhibit P.11) in which the complainant stated:

"Taem mi go, hemi openem gud door, mi go inside then hemi sarem door bakeken mo hemi talem long mi ie se mbae mi sit down long wan chair long office. Mi kirap mi go sit down followem toktok blong hem, then hemi pusum hand ie go long pocket trousers blong hem mo pullum out money."

The Accused confirmed that he had had no previous dealings or contact with Constable Fred Pakoa prior to 14 April 2008, and that Constable Pakoa had no apparent animosity towards him, or motive to be untruthful. Constable Pakoa's evidence is accepted as honest, credible and reliable. He was present at the police station when the Accused admitted that he had put his finger in the complainant's vagina.

The Accused confirmed that he had had no previous dealings or contact with Corporal Saravanu prior to 14 April 2008, and that Corporal Saravanu had no apparent animosity towards him, or motive to be untruthful. Corporal Saravanu co-ordinated the investigation and was the officer in charge. His evidence is accepted as honest, credible and reliable.

Dr Jason Sly gave his evidence on 18 December 2008. The Accused confirmed that he had had no previous dealings or contact with Dr Sly prior to 14 April 2008, and that Dr Sly had no apparent animosity towards him, or motive to be untruthful.

Dr Sly's evidence is accepted as honest, reliable and credible. He acted professionally and dispassionately in conducting his examination and in giving his evidence in Court. Dr Sly reached an opinion that his findings upon examination of the complainant were consistent with her complaint of rape. In cross-examination, he made appropriate concessions when alternative suggestions were made to him.

It is apparent from medical evidence that the complainant suffered an acute hymenal tear during this incident. It is accepted that the presence or absence of a hymen is not definitive as to the virginity. However, it is accepted that the damage to the hymen (and the bleeding generally) is consistent with a girl who presented as sexually inexperienced. On oath, the complainant denied having had prior sexual intercourse, but had some attempted sexual intercourse unsuccessfully with her boyfriend.

In any event, even if the complainant had had prior sexual intercourse with another boy that would not have been probative as to whether the Accused had sexual intercourse with the complainant with her consent on 14 April 2008.

The Accused confirmed that he had had no previous dealings or contact with Ms Gita Lala prior to 14 April 2008, and that she had no apparent animosity towards him, or motive to be untruthful. Although, she was not called as a witness, her statement and report were tendered by consent. Her evidence confirmed that the blood located on the floor of the premises, on the clothing of the complainant and on the clothing of the Accused was, in all probability, that of the complainant. This fact is not disputed by the Accused.

It is noted that while the evidence of the complainant is the foundation of the prosecution case against the Accused, it is accepted that, in this case, there was abundance of independent evidence corroborating the complainant's testimony, namely:

1. Evidence of John Jack George as to the appearance of the Accused when he spoke to the Accused outside the Accused's building immediately after the incident. Mr George testified that the Accused was "sweating profusely" and appeared to be bleeding ("fulap blood"). His appearance was so remarkable, so unusual, that Mr George expressed concern to his colleague, John (Junior) Ierongen, as to the Accused's health and safety, believing that the Accused may have been assaulted inside his building or been involved in a serious industrial accident. The Accused's appearance as noted by Mr George was consistent with frenetic sexual activity, particularly as that activity resulted in bleeding to the complainant (see Points 2 and 4 below);

2. Evidence from Mr George and Mr Ierongen, who were the first people to see the complainant when she left the Accused's building after the incident. They testified as to her bloodied appearance, distressed state and to her fresh complaint of rape;

3. Evidence of the 1,500 Vatu given to the police by the complainant, corroborating her allegation that the Accused had given her 1,500 Vatu in side the building prior to sexually assaulting her;

4. The medical evidence in which Dr Sly formed the opinion that his findings upon examination of the complainant were consistent with her complaint of rape. The complainant attended upon him in a distress state, bleeding in the area of her vagina and he noted a fresh, acute tear to her hymen.

5. Partial admissions made by the Accused to police when first charged. According to police officers present at the time, the Accused admitted inserting his finger inside the complainant's vagina. Further admissions made by the Accused when giving evidence on oath at trial (see below);

6. Evidence of blood stains on the floor of the Accused's workshop where the complainant alleged she was raped;

7. Evidence of blood stains on the clothing of the complainant and on the clothing of the Accused and further evidence of DNA analysis of those bloodstains. The Statement and Report on the Examination of Items Related to a Case of Alleged Sexual Assault of Gita Lala dated 16 October 2008 [P.13], tendered by the prosecution by consent, established beyond reasonable doubt that the blood stains on the Accused's clothing were a match with the complainant's blood.

I remind myself that although the Accused is not obliged to do so, the Accused elected to both give evidence and call evidence on his behalf. By doing so, he did not assume any burden or onus of proof. It is for the prosecution as a matter of law to prove the charges against the Accused beyond reasonable doubt. When I assess the Accused evidence, I assess the Accused evidence and the evidence of his witnesses in the like manner I assess the evidence of the prosecution witnesses.

I find that the evidence given by the Accused, Christopher Dawson was inherently unlikely and implausible. He gave evidence and his version does not bear up to scrutiny and his credibility was demonstrably damaged in cross-examination. His demeanour was arrogant and at times non-responsive. When tested on vital aspects of his testimony, he repeatedly answered "I don't know", "I can't recall", "It may have or it may not have", "your question is funning". These answers were given to questions when it would be expected that the Accused would have an accurate recollection.

As to the claim that he had previous meetings with the complainant, prior to 14 April 2008, the Accused conceded that:

- She had never told him her name;

- She had never told him where she lived;

- She had never told him who her parents were;

- She had never told him how many brothers and sisters she had;

- She had never told him the names of her brothers and sisters;

- She had never told him how it was that she knew who he was;

- He had never asked her how she knew who he was;

- He never told his wife that a young girl, who was a complete stranger to him, had asked for him and his wife to adopt her, supposedly solely on the basis that he and his wife had looked at her the previous weekend and had smiled at her;

- He had never expressed any surprise, or alarm, or concern, or annoyance that she knew where he worked nor, more significantly, where he lived. Rather than express concern as to how she knew where he lived, he testified that he told her "we were probably at the beach" when told that she had been to his house on Sunday 13 April 2008;

- He never discouraged her from coming back after she appeared at his office, out of the blue, without warning, on 11 April 2008, when she had only been in the office once before which was about two years earlier, and had requested the payment of 5,000 Vatu by way of a birthday present;

- He never told any other person about any of these meetings with the complainant;

It is significant that the Accused maintained that he asked the complainant "where do you work?" in response to being told that she had been dismissed from her employment, but still had not, and did not, ask the more basic question "what is your name?"

As to the events that occurred on 14 April 2008, the Accused:

- Could offer no explanation as to why she presented as sexually aggressive, when there had been no prior demonstration of interest in any sexual activity by either of them with the other;

- Never attempted to dissuade the complainant from sexual activity by either pointing out that it was wrong because he was married, that he was so much older than her (50 years compared with 16 years), that his daughter was older than her;

- Could offer no explanation as to why he willingly participated in the sexually activity. When questioned in cross examination, he answered "I don't know";

- Could not give any clear evidence as to who lead the other from the front door into the inner office. He testified that the complainant may have led him to the office, or he may have led her. He said he could not remember this fundamental detail;

- Could not offer any explanation as to how it was that he did not observe any blood until he returned from his conversation with Mr George, when he noticed it on the complainant's shirt for the first time, and then on his own hands. When asked whether he expressed any concern for the complainant, whether he asked her if she was alright, he answered "I don't know";

- Could not recall what he was doing at the computer after the incident, although he had returned to whatever it was he was doing prior to the sexual activity;

- Gave the complainant the 1,500 Vatu, admitting in cross examination that it was for "maybe a bit of both, for her birthday and for the sexual activity. Maybe";

- Could not be certain that he did not tell her about what happened "I don't recall. I don't think so. I may have told her not to tell anybody";

- Maintained that the complainant took the 1,500 Vatu, thanked him and indicated that she would be back the following day about the same time. The Accused did not say anything in response to tell her not to do so, but maintained that, if she had have returned the next day, he would have ensured that he was not on the premises;

- Testified that the complainant appeared fine when she left. "She was fine. Not distressed. She was in a hurry to get back to work";

- Testified that he loved his wife, was not going to tell his wife about the incident and that not telling her was the equivalent of lying to her; and because of embarrassment;

- Maintained that he considered that the incident was merely "a casual sexual encounter";

- Maintained that, in his opinion, "fingering her is not very serious, no".

The evidence of the Accused is rejected as incredible and unreliable.

Mrs Marilyn Tahi was an honest and reliable witness. Her evidence is accepted.

It is not accepted as fact that the Accused and the complainant had met on earlier occasions because of the Accused's knowledge that the complainant had worked at the Vanuatu Women's Centre and been dismissed from that employment. This is more unlikely. However, such information could have come to the knowledge of the Accused through other means. Indeed, the Accused personally acknowledged in cross-examination that information about the employment history of a person (including dismissal from employment) is readily obtainable by any person in Vanuatu who seeks to investigate such issues. Further, Ms Tahi, who testified on behalf of the Accused, could not guarantee that such information about the complainant had not been disclosed, even though the Management of the Vanuatu Women's Centre intended to keep the matter private and confidential. The evidence on the issue as contained in Exhibit [D.4] indicates that the Accused did not have the level of specificity of knowledge that he claimed in the witness box. In that exhibit, the Accused's lawyers, Ridgway Blake, asked seven questions of the Vanuatu Women's Centre. Question 4 asked:

4. If the answer to question No.3 is yes, state the detail of the issue such as the amount involved, when the taking or stealing occurred and whether (name of the complainant) admitted the taking or stealing of such money? (Emphasis added)

It is apparent from that question that the Accused neither knew how much had been stolen, nor when the incident took place.

Further, Mrs Tahi confirmed that, even if the funds had been returned, the complainant would not have been re-employed.

As to the complainant's general character, Mrs Tahi testified that, notwithstanding the incident involving the cheque, in her opinion the complainant was a good girl who had worked well at the centre.

Mr Peter Wilson gave evidence for the Accused.

Mr Wilson conceded that, when advised of the circumstances surrounding 14 April 2008, based solely on the Accused's version, that affected his assessment of his honesty, integrity and character.

Mr Darryl Constantin gave evidence for the Accused. The weight which could be given to Mr Constantin's character evidence is minuscule. He was generally testifying that the Accused was a "good friend" rather than as to his honesty and integrity. In cross-examination, Mr Constantin was generally unresponsive. When pressed, he agreed that when advised of the circumstances surrounding 14 April 2008, based solely on the Accused's version, that affected his assessment of his honesty, integrity and character.

The defence submissions that the obvious way of the complainant being able to contact the Accused initially was that the Defendant about mid 2007 had all his contact details on both sides of his Hylux truck, including phone number, are rejected. There was no accepted evidence of a phone call made by the complainant to the Accused as put by the Defence.

The evidence of the Vanuatu Women's Centre stealing by the complainant of 60,000 Vatu (with the assistance of a friend who got the cash to go to Fiji ) is only relevant to the complainant's credit. Any other suggestions connected with that information as put by the defence are rejected. It is accepted that forging a cheque from one's employer is far from a small problem. Indeed, it is a very serious breach of faith and trust. But again, on the evidence in this case, it is only relevant to her credit but not on her evidence that "she did not know Dawson before". It is accepted that Dawson independently found out of the Vanuatu Women's Centre stealing by the Complainant after he was charged. However, the attempt by the Accused to use that situation to raise a reasonable doubt cannot succeed. It is, thus, rejected.

The defence says there is some corroborative evidence called which indicated that the complainant already knew Dawson because she was able to tell officer Leiwawa Rarua that as she passed Dawson's Builders Office, a white man that wore glasses that she knew was the boss of the Company sang out. The Defence continued to say that when questioned on it, the complainant changed her position and said that it was because he was a white man who had come out of the premises. The explanation of the complainant follows her understanding in Bislama about a question or questions structured in English (although translated to her in Bislama). In her Bislama structure of speaking, when I listen to her evidence, it is apparent that she does not distinguish between "mi save" and "mi think" (which is common in Vanuatu and particularly among less educated Ni-Vanuatu and notably Ni-Vanuatu Francophone). She thought he was the boss. But when asked (in English Language and interpreted in Bislama) she answered with her structured Bislama "mi save se hemi master blong company." It is accepted as an honest explanation of her understanding and answer to the question asked and as such, no suggestion of lies or corroboration can be explored from such a situation.

She gave similar sort of answer when asked about the Accused's vehicle. She was able to identify his vehicle because it was parked outside beyond the door of Dawson's building. Her evidence that "mi save" does not mean she "knows" but she "thinks" as she said in her cross-examination.

It is accepted that Dr Sly gave evidence of the Complainant replying to him during her medical examination that her method of contraception currently in use is condom. It is also accepted that Dr Sly gave evidence of the complainant attempted sexual intercourse with her boy friend at one occasion to his recollection but then stopped because it had been sore. It is apparent that the complainant does not distinguish between a sexual intercourse and an attempted one, although, there was evidence of an attempted sexual intercourse with the boy friend. That is the reason why when asked she said "Be mi never sleep wetem hem." It is accepted that the complainant drew the diagram of an uncircumcised penis and when asked she said she did not know the difference between a circumcised and an uncircumcised penis and after she drew the diagram the police told her it was an uncircumcised penis. It is accepted that the above show the situation of an inexperienced girl of 16 years of age. It is noted and accepted that because of her sexual and worldly inexperience, it was more unlikely that she would be sexually aggressive toward the Accused (a business man of 50 years of age who has had experiment of life) by taking the initiative as described in his office and ended up in his workshop room. It is difficult to see how the inconsistencies suggested by the Defence will raise a reasonable doubt. However, as mentioned earlier, if the complainant had had prior sexual intercourse with her boyfriend or drew an uncircumcised penis while the prosecution accepted the Accused's penis is circumcised, they would not have been probative as to whether the Accused had sexual intercourse with the complainant with her consent on 14 April 2008 in his workshop room on a short electric saw table.

Other suggestions or submissions made by the defence and contrary to prosecution evidence are rejected.

At page 21 of the Defence Submissions (at Paragraphs 31 and 32), the Defence suggested that:

"31. The location and timing of the activity, a busy place, a door which remained unlocked and open to the public at about 3 pm is not the usual place you would expect a predator planning sexual violation on a stranger to carry it out.

32. As (name of Complainant) passed, the entrance of Dawson Construction, Christopher Dawson:

I looked towards the open door and a white man was standing near the table, he said "hey you come in here quick", he spoke Bislama, I went into the office. I thought may be he want me to clean the office or something.

(Counsel underlining)

It was suggested that this statement might seem plausible, in itself. Although, the Defence Counsel invites the Court not to resolve that because there were more serious inferences adverse to the complainant two observations can be made. First, the translation is not accurate and not complete. In the second line, he said" hey you come here first" as opposed to what was said above. Second, in the third line of Counsel's underlining, it should be read: I thought may be he will ask me about someone or an office for me to show him instead of what was said above and underlined by counsel. This is more in line with the written statement of the Complainant than what was underlined by the Defence Counsel above.

VIII - THE LAW AND ITS APPLICATION

- The Evidence of Recent Complaint

The Court accepts evidence of recent complaint as an exception to the hearsay rule because it can tend to confirm the consistency of the statement of the complainant. In Public Prosecutor v. Mereka [1980-1994] Van LR 613: d'Imecourt CJ stated:

The mere fact that the statement is made in answer to a question is not in itself sufficient to make it inadmissible as a complaint. The question for the Court is whether the statement is spontaneous in the sense that it is an unassisted and unvarnished story of what happened. In each case, the decision as to the character of any question put, the relationship between the questioner and the complainant, as well as other circumstances, are matters within the discretion of the Judge see R v. Norcott [1917] KB 347.

In this case, Probation Officer John Jack George disturbed the sexual activity involving the Accused and the complainant on the 14 April 2008. He saw the Defendant. He observed him. There was blood on his clothes and his body. He talked to the Accused. He was sweating profusely. He expressed his concerns to the other probation officer about he Accused's health condition and security. He then saw the complainant. She was crying. She was covered with blood on her body and on her T-shirt. He asked her if she was raped and she said yes and she showed 1,500 Vatu given to her by the Accused as the payment of sex as partly admitted by the Accused in his cross-examination. In such a circumstance although, the questions are of a leading or suggestive nature, they were asked after observations on the Defendant status and conditions and discussions with the complainant and her distress condition. The Accused had partly admitted he gave the money for sex. I accept such statements as evidence of recent complaint.

In law for a conviction to be secured, it does not require a recent complaint. In this case, there was a recent complaint from the complainant to John Jack George when she said yes she was raped when asked and 1,500 Vatu was paid to her before she was raped.

Corroboration

There is no specific statutory provision covering the matter of corroboration in criminal cases in Vanuatu. The Vanuatu Courts have recourse to the position at common law with regard to corroboration. The legal position at common law is that generally one witness is sufficient in all cases at trial. In any event, judges are required to head the warning of the danger of convicting on uncorroborated evidence of witnesses who fall into one of the following categories:

(a) accomplices; or

(b) complainant in sexual offences; or

(c) the unsworn testimony of a child.

(PP v. Mereka [1992] VUSC 10, [1980-1994] VLR 613; PP v. Sano Alvea [1996] VUSC 18; Walker v. PP [2007] VUCA 12).

Although, in PP v. Sano Alvea [1996] VUSC 18, I held the view that in sexual offences cases corroboration warning is a requirement of law. However, in the case of PP v. Allen Noppert and Dorah Noppert (Criminal Case No.56 of 2007), I had reviewed the position I had on the matter and held that it is a requirement of practice. That is the position which I apply in this case.

In the present case, there were overwhelming other evidence corroborating in material ways the evidence of the complainant. As such, no corroboration warning would be required.

The most significant piece of corroborative evidence in this trial was the evidence of the complainant's distress, observed by at least five witnesses. The prosecution counsel referred the Court to the judgment of the Court of Appeal of Fiji in Soqonaivi v. State (Majority Judgment) [1998] FJCA 64, (per Tikaram P and Tompkins JA) in which it was held:

"We turn now to consider the submissions relating to the evidence of her distress. The Judge directed the assessors:

'The second item of evidence that is capable of amounting to corroboration is the distress of the complainant immediately after the incident. The complainant's mother gave evidence that she was asleep and heard the frig door open. Then she heard the complainant in her bedroom and the complainant was crying. That was shortly after the complainant got home from the Accused's house. Significantly, the complainant was not crying in front of her mother. She was in her bedroom, on her own, and her mother, who had been woken by the frig door closing, happened to hear it. Mrs Davis said that she then went into the complaint's room. She described the complainant as crying and shaking. Constable Kumar said that when he saw the complainant later the same morning she looked very sad and distressed. However, that was a considerable time after the incident. If you are satisfied that the complainant was genuinely distressed shortly after the alleged rape then that could be corroboration of her lack of consent. However, again you must exercise some caution in using the evidence for that purpose. You must first exclude the possibility that she was distressed for some other reason that is consistent with the Accused's explanation. For instance, remorse because she had participated in sexual intercourse with the accused or because he had assaulted her causing a painful injury.'

Mr Fa accepted that evidence of distress is capable of amounting to corroboration. But he submitted that the Judge's warning to the assessors that that evidence should be treated with caution, was inadequate.

In R v. Redpath (1962) 46 CRAPP Re 319, Parker LCJ said:

'It seems to this court that the distressed condition of a complainant is quite clearly capable of amounting to corroboration. Of course, the circumstances will vary enormously, and in some circumstances quite clearly no weight or little weight could be attached to such evidence as corroboration. Thus, if a girl goes in a distressed condition to her mother and makes a complaint, while the mother's evidence as to the girl's condition may in law be capable of amounting to corroboration, quite clearly the jury should be told that they should attach little if any weight to that evidence because it is all part and parcel of the complaint. The girl making the complaint might well put on an act and stimulated distress.'

That approach was adopted by this Court in Maciu Gonevou v. The State Criminal Appeal No.12 of 1992."

I accept the Judgment of the Court of Appeal of Fiji in Soqonaivi referred to above as a persuasive authority for this present case. On the basis of the evidence, I accept that the distress of the complainant was observed immediately after the alleged incident of rape. The alleged incident occurred at about 3.15 PM o'clock on 14 April 2008. Her distressed condition was observed just after the sexual activities were interrupted by the knock at the door by the Probation officer, John Jack George and till 4.00PM o'clock when the Complainant was examined by Dr Sly on 14 April 2008. The Complainant was genuinely distressed shortly after the alleged rape. It is difficult to see how her distress could be for some other reason for example, panicking as suggested by the Accused in his cross-examination or by the fear of her father learning about her participation in sexual activities with the Accused. The evidence as accepted pointed to the effect that when the Accused came out to speak to the Probation Officer, John Jack George, the complainant got her clothes from where she said the Accused threw them on the floor in the workshop room (blood stains found near the table there) and rushed outside without closing the door, contrary to what the Accused said. She was crying. Her hands were on her side. She looked down and tears dropped out from her eyes. When she walked, she walked painfully and awkwardly. The evidence is also that this happened to her in a workshop room; on an electric saw table; the table was short; the Accused put part of the complainant's body (bottom) out of the table. He pushed his penis in her anus for a short time, then pushed his penis in her vagina; she attended upon Dr Sly in a distress state; she had bleeding in the area of her vagina; she had a fresh acute tear to her hymen. so apart from the insertion of the finger into the vagina, which occurred earlier, the other two acts of sexual intercourse as described occurred on the table of the workshop room (not in a bed or spacious area or hotel room). Those facts are more indicative of non-consensual sexual activities. There is no doubt that the complainant was genuinely distressed. This amounted to her lack of consent.

The evidence of the Accused are rejected as unreliable and less than candid. His version of events is implausible and not capable of acceptance.

I am satisfied beyond reasonable doubt that the Accused had sexual intercourse with the complainant by placing his finger into the complainant's vagina [count 1], by placing his penis in her anus [count 2] and by placing his penis in her vagina [count 3] and that these acts of sexual intercourse were done without the consent of the complainant on 14 April 2008, at Dawson's Building Constructions as described in the evidence.

In conclusion, I am satisfied that the prosecution has satisfied the standard of beyond reasonable doubt against the Accused, Christopher George Dawson. The prosecution has proved all the essential elements of each of the 3 counts of sexual intercourse without consent, against the Accused Christopher George Dawson, contrary to Sections 90(a) and 91 of the Penal Code Act [CAP.135].

IX - VERDICT

The Defendant Christopher George Dawson is found guilty of sexual intercourse without consent on the 3 counts charged against him.

DATED at Port-Vila this 1st day of December 2009

BY THE COURT

Vincent LUNABEK
Chief Justice