Public Prosecutor v Kori [2009] VUSC 93; Criminal Case 105 of 2009 (25 September 2009)

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

Criminal Case No. 105 of 2009

PUBLIC PROSECUTOR

V

PAKOA SONGI KORI

Mr. L. Tevi for Public Prosecutor
Mr. A. Bal for Accused

DECISION

Pakoa Songi Kori faces three counts in what is described as the information and he has pleaded that the allegations are not true. The central issue in this trial is has the prosecution established to the requisite standard that is beyond reasonable doubt that no consent was forthcoming from the complainant?

The physical activity of sexual intercourse between the accused and the complainant is admitted by the accused. In his evidence he agreed in the careful questions put to him in cross examination his penis entered the vagina of the complainant.

The burden of proof is upon the prosecution, the standard of proof that must be attained is that of beyond reasonable doubt, there is no obligation on a defendant to prove anything even in giving evidence he uplifts no burden.

It is often said that where an accused elects to give evidence, his evidence may fall to one or three categories. 1, the evidence is credible and acceptable and is a complete answer to the prosecution case. Of course in that instance the accused would be discharged or found not guilty. It may fall into a second category, where we are not sure whether it is true or correct but it raises a reasonable doubt again the benefit of reasonable doubt goes to a defendant or it may fall into a third category that it is incredible and unbelievable one then needs to put it to one side and look at the totality of the prosecution case to see whether the evidence adduced by the prosecution establishes the elements of the offences to the requisite standard which is beyond reasonable doubt.

I have no hesitation whatsoever in saying that the accused having seen and observed him, that he is an incredible and unreliable witness and in many instances in my opinion he lied. When one talks about the assessment of witnesses one normally directs the jury, that you bring to the table of decision making the sort of experience of life were you meet people, you decide whether you can trust or rely upon them and that is the approach that should be adopted in a trial like this.

This accused in giving his evidence gave the appearance of making it up as he went along, whenever he was pressed he changed ground, he raised several portions of evidence which were not put to the complainant. Clearly in my view they were not conveyed by him to his counsel, which he conceded.

The suggestion that there was a love agreement between the complainant of 15 years and himself highlights one portion of it (my word not his) and the potential contradictory claim that the arrangement between them was based on financial reward indicates the view of the Accused of the Complainant.

Of relevance to the exchange of money pursuant to the claim by the accused that within a period of approximately 6 months he paid VT 53,000 to the complainant, is the independent evidence of John Willie. It seems by chance that Willie observed the accused in endeavoring to force VT 500 onto the complainant which she clearly resisted. This evidence which I accept from John Willie strikes at the heart of the explanation as to an exchange of favours for money that is as the prosecution described it, some arrangement for prostitution. So here there is an independent piece of evidence and I regard John Willie as a reliable witness and confirmatory of the evidence of complainant as to advance and the circumstances completely contrary to the claims of the accused. [A well known and experienced criminal trial judge in New Zealand, Justice Speight commented "when I say I don’t believe a witness I really mean I don’t believe him". I emphasize that because it frequently is difficult to convey in words the picture from a written transcript that a witness gives firstly as to their manner of giving, evidence secondly the language used and thirdly (as here) a continual flow of words to endeavor to change grounds and improve their position. The overall impression that I received from the accused is one he gave his evidence and he made it up as he went along, he raised several lots of evidence of great relevance not put to the complainant and I draw an inference adverse to his interests (as previously, stated).

He accepted that he had sex for the first time (initially but changed ground) with the complainant at his own home when his wife was present and then added children to that scenario. I view his claims about $ 53,000 as exaggerated and again not put to the complainant. Then putting his evidence to one side I find in comparison having to had the opportunity to see and observe the complainant and consider her evidence where in conflict with that of the accused I choose to accept it.

I turn immediately to count 3. count 3 in my view is an example of what I said in my opening as to the way in which a Judge is required to assess evidence. The approach that I take is that prescribed by the law. There is a variance as to the identification of the weapon on the third count I put to one side the issue as to date. The date could be altered if necessary to read on or about the time the accused conceded that he had sex with the complainant. The obligation on the prosecution is to establish beyond reasonable doubt the consent was not present. having regard to the variation in the opening and the specific evidence where the complainant did not as the Prosecution conceded come up to brief the allegation is because of fear that the complainant complied with the requests from the accused that I have a reasonable doubt as to the conduct of the complainant and in accompanying the defendant when she conceded in her evidence that her mother was watching a video, 5 meters from the spot that she was in when she received a demand to accompany the accused. I assess that as a reasonable doubt and approaching that as I am obliged to do in accordance with the strictures of the law the accused is discharged on count 3.

In respect of the remaining 2 counts as I have indicated where the evidence of the accused is in conflict with the evidence of the complainant I choose to accept the evidence of the complainant. There is no doubt whatsoever in assessing the evidence that it was the result of fear created by the accuseds conduct that must have kept the complainant quiet in such strange circumstances as being forced to have sex with the accused in the presence of his wife on the occasion of the 4th May. In respect of the 2nd incident I accept the evidence of the complainant that she did not consent to the act of intercourse that occurred. Any consent seen as if by an outside observer flows from the fear created by the dominance of the accused in respect of his age compared to that of the complainant. The conduct at that time, the threats made to the complainant which I accept were in fact made and created fear within her and if there is a variation in respect of either of those two counts in respect of the weapon which was present, stone, knife and stick in the circumstance of the home when one looks at the overall picture of the individual sexual activity and the basis of fear its quite clear that consent did not exist on those occasions.

The Defence for its part contended for a number of matters, the lack of an early complaint; I regard the lack of an early complaint as immaterial, it is well established in my view at the present time that the lack of complaimant or the passage of time from when the incident took place to the time of the complainant maybe of relevance but here is not great because it occurred on 4th August.

And second is that the detail is sometimes at variance. The purpose of a child complaining to the person closest to it, is to seek support and many parents under such circumstances unless experienced and advised immediately do not record and report detail in the specific way that is frequently articulated in an indictment.

Suffice to say there was a complaint which dealt with the issue of sexual activity in overall terms with the complainant and the accused. The evidence of Willie I have previously commented on.

In my view in this instance the accused should thank his counsel for doing his very best under what I would regard as very trying circumstances where there was a complete lack of proper instruction from the accused to his counsel. I make that comment in respect of Mr. Bal in case there is any later criticism of the manner in which he acted for his client. I wish to record that in my view he acted to the highest standards under a difficult situation where the client clearly was giving evidence about which he had received no instructions.

Accordingly as I have indicated the accused is found guilty in respect of counts 1 and 2. The charges are proved to the requisite standard.

You have 14 days to Appeal my decision.

Dated at Port Vila, this 25th day of September, 2009

BY THE COURT

J. P. CLAPHAM
Judge