Public Prosecutor v Black [2009] VUSC 4; Criminal Case 57 of 2008 (24 February 2009)

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

Criminal Case No. 57 of 2008

PUBLIC PROSECUTOR

V

TOM BLACK

Coram: Justice N. R. DAWSON

Date of Hearing: 18th December 2008, 27th January 2009, 29th January 2009, and 5th January 2009

Date of Decision: 24th February, 2009

Counsel: Mrs. Laumae for Public Prosecutor
Mr. Bennett for Accused

VERDICT

1. Mr. Black has had a trial where he was charged with two counts of Sexual Intercourse Without Consent contrary to section 91 of the Penal Code Act [Cap.135]. The evidence of the expert witness Dr. Sly was heard on 18th December 2008 and then the trial resumed on 27th January 2009. The evidence of Dr. Sly was held early due to his imminent departure from Vanuatu to live and work in Ethiopia.

2. In every trial the burden of proof or the onus of proving the charges rests upon the prosecution. The onus remains on the prosecution from the beginning of the trial until its end. An accused person is not required to give or call evidence. In this case the accused chose not to give or call evidence and that is his right and he has no obligation to do so. It is not to be assumed that he is guilty of a charge because he did not give or call evidence. The onus of proof on both counts still lies on the prosecution and the accused does not have to prove his innocence. That he has not given evidence means that the Court has heard evidence adduced only from the prosecution witnesses. During the course of the trial, reference was made to a police statement made by the accused to the police. The Court is entitled to take into account that the accused was not cross examined on it.

3. The prosecution must prove each charge to the standard of proof of beyond reasonable doubt before the accused may be found guilty of a charge. The prosecution must prove each charge and every element of each charge to the point of beyond reasonable doubt. In other words, the Court must be sure and satisfied upon the basis of the evidence produced at trial that the accused is guilty of a charge before reaching that verdict. If there is a reasonable doubt about a charge or any element of the charge then the Court is bound to find the accused not guilty of that charge. The Court must consider each charge separately taking into account only the evidence relevant to that charge. A separate verdict is required for each charge.

4. The essential elements the prosecution must prove on each charge of unlawful Sexual Intercourse Without Consent are:-

1. The accused had sexual intercourse with the complainant that involved the penetration of the vagina of the complainant by the penis of the accused as it is alleged in each count in this trial;
   
2. That sexual intercourse took place without the consent of the complainant. Consent is not given if obtained through intimidation, threats of violence, and fear of physical harm to the complainant as alleged in this trial and;
   

100. That the accused did not believe on reasonable grounds that the complainant was consenting.
     

5. The Court heard evidence from Dr. Sly concerning his examination of the complainant after the alleged offending. Normally witnesses only give evidence about what they saw, heard or did and are not allowed to express opinions. But people such as Dr. Sly who have specialist qualifications and experiences are permitted to give evidence of opinions about matters within their areas of expertise. In assessing Dr. Sly’s evidence and his opinions the Court may have regard to his qualifications and experience. But this is not a trial by expert and it is for the Court to decide how much weight or importance it gives to the opinions of Dr. Sly, or whether it accepts them at all in the context of all evidence that the Court has heard.

6. Evidence of Dr. Sly was that his findings were consistent with the history that had been provided to him of multiple episodes of forced vaginal intercourse and to support the assertion that the complainant was a virgin prior to the assault. During cross examination he said that his findings were consistent with forced vaginal intercourse but they were also consistent with sexual intercourse generally and that his evidence supports but does not confirm that the complainant was a virgin prior to the alleged incidents. Nor could he conclusively determine that the complainant had been a virgin before the alleged incidents. He also gave evidence of facial injury to the complainant consisting of a minor swelling to her left lower lip. He also found evidence of swollen labia, a recent tear of the hymen, and a reddening of the posterior forchette.

7. Evidence was given at the trial by the complainant, a young woman of 18 years who is student in Port Vila. Her evidence was that in the early hours of the morning of 5th April 2008, she and a female cousin and three other cousin/brothers were at the Trader Vics nightclub. They were there for a period of approximately 5 hours and during that time the whole group consumed three jugs of Tusker beer. At 3 am they left the nightclub and walked to Fresh Wota Park. When they got there they met a group of boys whom they did not recognise, and it was dark at that time. One of the boys grabbed and held her female cousin, another boy grabbed and held her, and held a big knife to her neck. After the boy had grabbed hold of her, she had no idea what happened to her female cousin. At the time they arrived at Fresh Wota Park there was only the complainant, her female cousin, and the boyfriend of her female cousin in her group. The male in her group tried to call for help but the boys in the other group chased him and the complainant did not know what happened to him after that. Another of the boys had a small knife which he held to her waist. The two boys with the knives told her not to cry and that if she continued to cry they would cut her neck off. The evidence of the complainant was that she was extremely frightened when she was being held in this manner, and when they told her to follow them she did so because she was afraid they would cut her neck. The boy with the big knife led her away with one arm around her shoulders while holding the big knife to her neck with the other hand. As she was led away the other boys followed behind including the boy with the small knife. She was led by the boy with the big knife to an area behind a road at Fresh Wota Football field where the boy with the big knife pulled her into the long grass. The other boys remained on the road. In the grass he tried to have sex with her with the use of force. She did not want to have sex with him so he removed her pants and trousers and tried to have sex with her but at that time another boy came and called him. He then told her to put her clothes back on and held and pulled her away once more.

8. She was taken to an area known as Sam Siko’s place and by the time they got there the other boys had gone and she was left alone with the boy with the big knife. The boy with the big knife took her down a road she did not know and into some bushes. He told her he wanted to have sex with her but she said she did not want to. He removed her clothes and she was crying at that time because she did not want him to do this. She was afraid of the big knife and concerned that he would cut her neck with that knife. After removing her clothes he had sex with her by inserting his penis into her vagina. The complainant’s evidence was that it was the first time that she had had sex, that she was crying, that she did not want to have sex, and she was very afraid. She said she also felt pain and she bled from her vagina as a result of him having had sex with her.

9. After they had sex they stayed where they were. The complainant wanted to put her clothes on but he told her not to. He was then lying down with his eyes closed. She wanted to put her clothes and ran away but he woke up and would not let her leave. The complainant said she did not scream or shout because he told her not to and because they were in the middle of the bush, she would not be heard.

10. She told him that they should go back but he did not want to and indicated that he wanted to have sex a second time. Her evidence was that she did not want to have sex but again he forced her to do so the second time. The complainant said that after the second occasion that they had sex she was very hungry and she spoke kindly to him to persuade him to go back but he did not want to. They eventually did leave, going back up the road that was not recognisable to the complainant and when they reached the Survival School they separated and she went straight home to her house. By the time they reached the Survival School, it was daylight and she could clearly recognise the accused.

11. The evidence of the complainant was that she had not seen the accused prior to that night, she did not know him prior to that time, and she had not seen him again since that time. She identified the accused in Court.

12. She told her mother what happened when she got home and her parents took her to the police station on Monday, the next day. She said that no one forced her to report these events to the police, and she did so of her own will because she did not like what the accused had done to her and because he had taken her to a place that she did not know. After making her complaint to the police she went to the hospital for examination by Dr. Sly the same day. She then returned to the Police Station to sign her Police Statement.

13. Evidence was also given by Davis Saravanu, a police officer in the Criminal Investigation’s Unit, relating to his arrest of the accused. His evidence was that the accused admitted having sexual intercourse with the complainant but said that the sexual acts were consensual. His evidence was that when he first located the accused, the accused tried to hide but once he had called the accused over to him the accused then co-operated throughout.

14. The Defence submissions to the Court do not dispute the two acts of sexual intercourse between the accused and the complainant. The Defence does put the prosecution to the proof that the two occasions of sexual intercourse were non-consensual. It submits that the prosecution carries the burden of proving the elements of non consensual sexual intercourse and that is correct.

15. The Prosecution submit that the victim has maintained her evidence consistently throughout the trial, she has consistently stated that she was frightened and could not do anything to resist because she was threatened with and frightened of the big knife by the accused. Prosecution submits that a knife is a very dangerous weapon and the complainant consistently maintained that the accused had sex with her twice without her consent. Prosecution submits that she was forced to have sex in circumstances where consent was not given by the complainant and the accused could not possibly believe on reasonable grounds that the complainant was consenting on either occasion.

16. Defence submits that the evidence of Dr. Sly is inconclusive of forced sexual intercourse or that the complainant was a virgin at the time of the alleged offences. They also pointed the record of Dr. Sly to the effect that the complainant had told him that she had been sexually assaulted by two men twice each.

17. The Defence also points to the evidence of Senior Sergeant Saravanu who confirmed in his evidence that he had cautioned the accused at the time of his arrest, that the accused had admitted sexual intercourse with the complainant and said that it had been obtained consensually. It also points to the evidence of Senior Sergeant Saravanu that the accused was co-operative during the course of his interview. It is submitted that this is not the behavior of a guilty person.

18. The Defence also submitted that there is no corroborating evidence to support the evidence of the complainant that she had not consented to the two occasions of sexual intercourse with the accused.

19. The Defence also submits that the Court can doubt the evidence of the accused after considering her sworn evidence in the course of the trial, her demeanor as a witness during the trial, and to her prior inconsistent statement to Dr. Sly. The Defence submit that the complainant was unresponsive and evasive in the witness box and the Court can have a reasonable doubt about her evidence.

20. In considering the evidence of the complainant the Court must remind itself that the credibility and reliability do not necessary amount to the same thing. The witness maybe entirely credible in her evidence but due to a variety of factors it may not necessarily be reliable.

21. In this case the Court finds the complainant was a credible witness. She was very consistent in her evidence on the points that mattered. It is not unusual to show some inconsistencies between evidence given in Court and statements made over nine months ago just after the alleged offence took place. It is more likely to be a matter of concern if a witness is absolutely consistent as that would tend to indicate a rehearsal of her evidence.

22. On the important points, the complainant was consistent in her evidence. She was clear in her evidence that prior to the alleged offences that she did not know the accused, and he took her away by force and threats with a big knife held to her throat, that she told him on both occasions she did not want to have sex with him, that he forced sexual intercourse upon her on both occasions, that it caused her pain and to bleed, and that throughout she was scared and frightened of the accused.

23. It is also apparent to the Court that the complainant is a slightly built 18 year old young woman (17 at the time of the alleged offending) and the accused is a much bigger strongly built young man. The surrounding circumstances of what happened prior to the acts of sexual intercourse have not been disputed. These circumstances include her being forcibly taken away from her friends by complete strangers carrying weapons with threats that they would cut her neck off if she did not go with them. It happened during the dark of the night where she could not properly see the persons who were taking her away by force and threats and to her being taken by the accused to a place that she did not know and did not want to be. These circumstances support her consistent evidence that she did not consent to sexual intercourse on either occasion with the accused.
    

24. The Defence points to the evidence of Dr. Sly saying the complainant said that she had sex with two boys on two occasions. It is submitted that Dr. Sly is a fluent bishlama speaker, that he was an honest witness, and that his evidence can be relied upon to point towards the lack of truthfulness of the complainant. When Dr. Sly was asked in cross-examination whether he was fluent in bishlama his answer was "enough, particularly in medical terms". It needs to be noted that Dr. Sly was questioning the complainant with the view to obtaining the history she could provide to assist him in coming to his medical conclusions. He was not examining her from the point of view of obtaining evidence for a later court trial. His evidence would indicate that he is not necessarily totally fluent in bishlama and given this possible lack of fluency and the purposes for which he was asking the complainant for information it is not inconceivable that there was a misunderstanding between the complainant and Dr. Sly as to the number of the alleged offenders.

25. With respect to the Defence’s submissions regarding the lack of corroboration of the complainant’s evidence the Court must remind itself that corroboration is not essential to prove a charge and a lack of corroboration does not mean that the Court cannot come to a guilty verdict on either count. In offences involving unlawful sexual intercourse, it is not unusual for there to be only the complainant and the defendant present at the time. The overriding standard of proof that must apply is that of whether the charges are proven beyond reasonable doubt.

26. I find that the prosecution witnesses, including the complainant, were credible and reliable witnesses. Notwithstanding a vigorous defence conducted for the accused, I am satisfied to a standard of proof of beyond reasonable doubt that the prosecution has proven each of the elements in each charge against Mr. Black. I find that both charges of unlawful sexual intercourse without consent are proved and Mr. Black is found guilty accordingly.

27. You have the right to appeal this verdict. When you appeal you must lodge a notice of appeal within 14 days of today’s date. You are remanded in custody until 27th March, 2009 at 2 pm for sentencing. A pre-sentence report is ordered to be prepared by the probation service for sentencing.

Dated at Port Vila, this 24th day of February, 2009

BY THE COURT

N. R. DAWSON
Judge