Public Prosecutor v Timbolo [2009] VUSC 94; Criminal Case 86 of 2009 (25 August 2009)

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

Criminal Case No. 86 of 2009

PUBLIC PROSECUTOR

V

EDWARD TIMBOLO

Mr. Lent Tevi for the State
Mr. Jacob Kausiama for the Defendant

ORDERS

Edward Timbolo is charged with three remaining counts. The first count of indecent assault being statute barred, I discharged him on that count. Count 2 now relates to an attempted rape which I called the beach incident. The evidence from the witness is that he got halfway inside her and I record immediately that in my view that is penetration and I will turn to that later. Count 3 relates to a rape which is the house incident as I describe it. And Count 4 relates to incest which relates to a number of instances of sexual intercourse between Maina and Edward Timbolo the defendant in the years 2006 through to April 2009, being the date at which the vessel Freedom returned and shortly after that in May the complainant went to see Leimako Simon on the 2nd May I believe it was the same day she went to the police station and two days later she made a complaint, as to the conduct that has been alleged against the defendant.

The central issue of this trial is that of credibility that is which witness or witnesses does one believe. The burden of proof is on the prosecution. The standard of proof that must be attained is that of beyond reasonable doubt. There is no obligation on the defendant to prove anything in fact as he was told he did not have to give evidence. Even in giving evidence he uplifts no burden to establish anything. There is no obligation for example on the defendant to prove any reason or cause why the complainant should have complained. The prosecution accept that on the issue of consent it’s their obligation to prove beyond reasonable doubt that particular point. The defence submission in summary was one it didn’t happen and secondly if it did happen she consented I find some difficulty with the second aspect of that approach.

What must be established is that the law was altered I am told by counsel in 2007 and that the law is different today as it was at the time of the alleged offending. No need for me to set out the examples of an attempt. But rape is defined under section 90 that was applicable at that time "any person has sexual intercourse with another person:-

(a) without that person’s consent; or

(b) with that person’s consent, the consent is obtained by force by means of threats or intimidation, fear or bodily harm".

And other matters that are refered to there. Section 91 is the punishment of rape the person committed rape and the penalty is imprisonment for life. Section 95 which I am told is the same as the current section deals with incest so that for the question of rape or sexual intercourse and of course it is complete upon penetration the evidence as to getting half way in, in my view is penetration but for the purposes of this trial that is the count that relates to an attempt. In respect of the incest there must be sexual intercourse between a parent and the child with the person charged that is Edward Timbolo knows of the relationship between the parties. The evidence of the complainant indicates that she’s a person of slight build the date of birth despite her giving evidence that she was born in 1992 on 17th August 1993. She gave evidence of the incorrect year but that it is accepted when the exhibit was put to her that that’s the correct date of birth in the birth certificate and Edward Timbolo accepted that he is the father.

So I have indicated the central issue here is which of the witnesses to believe. I record that I’ve had the opportunity to see and hear those witnesses. There is some relevance of the assessment of credibility and some what you would normally call peripheral matters. The defense make the point that there were two versions that I summarize that where there is conflict and you are unable to find anything in an exterior or peripheral way to assist, but where there is the lack of corroboration it’s quite clear that the Prosecution in that instance haven’t discharged the burden to the requisite standard and that the defendant is entitled to the benefit of doubt and that the charges against him should be dismissed.

The defence particularly mentioned corroboration and an additional witness. It is not to produce the maximum amount of evidence available by any prosecutor it is really to grasp and produce evidence that in fact is available and see that one assessed if it carries the prosecution to the point that is obliged to reach.

The Prosecution for its part sets out the long term relationship between the party. Highlight the balance as to strength and maturity and the dominant position of the Accused that is the complainant’s father and the manner in which through his conduct he was able to dictate through fear the conduct of the complainant. I record that I particularly questioned whether the use of the word whipped was a correct translation of the language but I was assured that it was. Yesterday it was put forward by the defendant that the reason for the complaints was the whipping that he had imposed upon Maina because she refused to bring him food. There is independent evidence from the Doctor (who is an independent witness) as to any marks found on the complaint at the time of the examination which was the 8th of May 2009. I gave the Defendant opportunity to point out to me from those diagrams any indications that the whipping had occurred. In addition no question was put to the doctor as to any marks that could be have been depicted or observed on the diagrams from the whipping that the defendant says occurred. Where there is a claim by the Defendant that as a result of a whipping she complained. In the assessment of his credibility and I find that he was lying to me.

There is additional evidence in respect of the movement to the property given by Rita and Carole, the position of dominance of the Defendant is depicted within that scenario. The clear domestic arrangements were that the men and the women were separated. This defendant with unchallenged evidence as I grasp it directed that he would sleep with Maina in another room together with another person who I note was not called by either side to give evidence. There was and I questioned you will recall Rita as to whether there was any discussion with the child as to whether she was happy or content with that arrangement. I was assured that there was no Vanuatu custom that allows 17 year old daughters to sleep with their father. Indication from the evidence was that the age of 10 the females are separated from male. So when one looks at the totality of the issues in relation to credibility there is a clear domination of the domestic arrangement in the property of Rita and Carol as independently advanced. The explanation given by Edward as to the reasons for that I completely discount and clearly put to one side.

The issue of the sleeping arrangements and the issue as to whipping. The sleeping arrangement and the dictates may be relevant to consent if that is in fact an issue. In my view consent is not the issue in this trial. If it is an issue that I’m obliged to consider it relates to the dominating force of this Defendant over the mind and wishes of his young daughter so that consent if it was an issue it needs to be discounted by the Prosecution. On the evidence before me it does, any consent that was forthcoming related to fear and the conduct of the Defendant.

Having had the opportunity to assess and observe the witnesses particularly bearing in mind the peripheral matters that I’ve entered into I have no hesitation in saying that the having seen and heard the witnesses I accept the evidence of the complainant. Her evidence establishes the elements of the offences that I am obliged to consider to the requisite standard that is beyond reasonable doubt and accordingly on each of the three charges he is convicted.

There are some other peripheral matters which I haven’t covered in my decision but which I now wish to record in case they’re available later.

The exhibit 1 which is the medical there is a comment there at page 3 which says that the "eldest sister had a child with her father". I record that in so far as the evidence in this trial that evidence was completely put to one side. Secondly, when the trial started the complainant Maina was seated approximately 16 – 18 feet from the defendant face to face. His disposition and the manner in which he stared and endeavor to influence the complainant caused me grave concern. I directed that she should change her position at the table and swap with the interpreter or translator and that she face me as the judge and that the accused was on her right hand side. I now record that that had no weight whatsoever in reaching the decision that I have previously indicated.

I record by memorandum on the 25th day of August 2009 the prisoner was advised he has 14 days to appeal.

DATED at Port Vila, this 25 day of August 2009.

BY THE COURT

J. CLAPHAM
Judge.