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

Criminal Case No. 37 of 2010

PUBLIC PROSECUTOR

VS.

DAVID TOA

Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Mr P. Wirrick for Public Prosecutor
Mrs M.P.Vire for Defendant

Date of Trial Hearing: 18th April 2011
Date of Verdict: 18th April 2011

JUDGMENT

Introduction
1.	David Toa was tried on two counts of sexual intercourse with child under care or protection contrary to section 96 (1)(a) of the Penal Code Act Cap 135 (the Act). The maximum penalty for this offence is 10 years imprisonment.

Initially, he was charged with four counts to which he entered Not-Guilty pleas on 8th February 2011. Today at the commencement of trial, Mr Wirrick informed the Court that the two charges of unlawful sexual intercourse contrary to section 97(2) of the Act had been withdrawn. The Court endorsed the withdrawals of counts 3 and 4 and informed the defendant accordingly.

Section 81 CPC Act
2.	The Court read and explained to the Defendant in Bislama the statement of presumption of innocence laid down in Section 81 of the Criminal Procedure Code Act Cap 136 (the CPC Act).

Opening by Prosecution
3.	The Prosecutor then opened its case before calling evidence from five witnesses namely: Aterina Woi (victim), Nathalie Toa, Corporal Rose Stephen, Constable Joseph Chavelier and Nurse Rosita Aru.

Brief Particulars of Offences
4.	The allegations made in relation to the first count was that in or about November 2009 at Lovunkatabola Village, the Defendant had sexual intercourse with the victim who is his step-daughter and who was living with his family at the time under his care or protection. The Second allegation relates to an alleged sexual intercourse with the victim in or about April 2010. The victim was born on 13th May 1995, therefore she was less than 18 years of age.

Burden and Standard of Proof
5.	Section 8 (1) of the Act stipulates the general burden of proof resting on the prosecution on the standard of proof beyond reasonable doubt. Under Section 96(1)(a) of the Act the prosecution had to prove the following elements:-

(a)	Sexual intercourse or attempted sexual intercourse by the Defendant on the victim.

(b)	The victim was the stepchild of the Defendant.

(c)	The victim was living with the Defendant's family at the time of offending.

(d)	The victim was under the age of 18 years.

6.	Evidence by Prosecution
The prosecution called evidence from five witnesses which I summarise in the following manner-

(a)	Aterina Woi (Victim/Complainant)
She gave her age at 15 years. Born on 13th May 1995. Mother is Nathalie Toa and her step-father is David Toa (Defendant) whom she identified as the man sitting in the dock (by pointing). In relation to the offending in November 2009 she said it happened in the night when her mother sent her to fetch water for her as she had toothaches. On her way to fetch water she saw the Defendant who told her to go into the kitchen house. She followed the Defendant's instruction. The Defendant followed her into the kitchen and told her to remove her clothes and laid down on a bed. She complied. The Defendant who was also naked then laid on top of her and had sex with her by putting his private part into her private part. After that, she put her clothes back on and then got water for her mother. All that took about 2 – 3 minutes. She said she felt pain and saw "smol" blood. She said she did not tell anyone about what happened because the Defendant had stopped her not to.

For the April 2010 incident, she said her mother had asked her and the Defendant to go and find some land crabs at night between 7.30 to 8.00 p.m. Upon reaching a creek, the Defendant cut a "leaf laplap" and put it down on the ground. He then put his shirt on the leaf and told her to remove her clothes and lay down on it. He then lay down on top of her and did the same thing he did to her in the kitchen. She felt bad about it, the Defendant had touched her breasts and put his finger into her private part. She said that the Defendant put his private part into her private part. She felt sore. It lasted for about 2 – 3 minutes. Then they put their clothes back on and returned home. He told her not to tell anyone about what had happened. She said the creek was about 5-6 minutes walk from the house. She said the Defendant paid fines of VT2,000 for the 2009 incident and VT5,000 each to her and her mother for the 2010 incident. She said she went for a check up at Lolowai on 18th October 2010. Defence Counsel, Mrs Vire cross-examined Miss Woi on her evidence.

(b)	Nathalie Toa
She is the biological mother of the victim now married to the Defendant since 1996. They now have two other children of 11 years and 1 year 6 months. She said the victim was born on 31st May 1995. From 1 year until 10 years, the victim had lived with her grand-mother. Only after 10 years, the victim had been living with her and the Defendant. On November 2009, the victim was living with them. She said everything was in her statement made to the police. In relation to the 2009 and 2010 incident, she said there was no proof against her defendant husband. About the fines, she acknowledged and accepted a fine of VT2,000 for the 2009 incident and also VT10,000 for the 2010 incident. This happened sometimes in September. She confirmed the victim was calling the Defendant as "Daddy" when she lived with them. Since February 2011, Aterina Woi is no longer living with them. Her statement was tendered as Exhibit P1.
Mrs Vire cross-examined this witness on her evidence.

(c)	Corporal Rose Stephens
On 3rd November 2010, she took the Record of the Interview of the Defendant in the presence of Constable Joseph Chavelier as corroborator. He was informed about the allegations against him. He was cautioned and informed about his rights. The Defendant agreed to participate by answering questions asked by them. He cooperated and answered all questions asked freely. At the end, all was read back to him and having agreed to the contents, the Defendant signed on every page. The Record of Interview was identified and tendered as Exhibit P2.
Defence Counsel had no cross-examination of this witness.

(d)	PC Joseph Chavelier
He confirmed he was present at the interview of the Defendant with Corporal Rose Stephens on 3rd November 2010 as corroborator. He confirmed the process followed and the co-operation of the Defendant.
Defence Counsel did not cross-examine this witness.

(e)	Rosita Aru
A nurse and mid-wife at the Lolowai Hospital who examined the victim on 18th October 2010. The victim was examined at about 3.25 p.m following sexual assault allegations. She examined her straight away finding that her libia was flobby. There was a white discharge at the time. The was vaginal opening which had enlarged. She concluded there had been some sexual activitiy. She identified the medical report dated 18th October 2010 which was tendered into evidence as Exhibit P3.
Defence Counsel did not cross-examine this witness and the prosecution closed its case.

Prima Facie Case Made Out
7.	Defence Counsel did not make any application for a No-Case submission. The Court therefore ruled that the prosecution had established a prima facie case to require the Defedant to make a defence. The Court then read out the statement provided in Section 88 of the CPC Act and explained its contents to the Defendant in Bislama. Defence Counsel then indicated to the Court that the Defendant would give evidence himself but there were no other witnesses.

Defence Case
8.	When the Court resumed at 2 O'clock, counsel made very brief opening indicating to the Court that the Defendant had maintained his not-guilty pleas. The Defendant took the witness stand and gave the following evidence (in summary).

He confirmed his name as David Toa, a 45 year old copra-cutter living at Halabulu Village. Acknowledged the current case between himself and Aterina Woi. On 9th November 2010, he was at his house at Halabulu Village. He confirmed his wife had toothaches and that she had sent the victim to fetch water for her. It was in the night somewhere around 7 O'clock. He was having a bath. When he saw the victim he a "defren tingting" towards her. He then asked her to go to the kitchen and he followed her. In the kitchen he asked her to remover her clothes and lie down on a bed. She did and he laid on top of her. Both of them were naked. But he did not have any sexual intercourse with her. He clarified that he never inserted his private part into the victim's private part. He explained that all that happened was that the victim held onto his penis until he ejaculated. Then they both put their clothes back on and then the victim returned to her mother with water. He explained he could not have sexual intercourse with the victim because she was under aged and she was only a little girl. He acknowledged being interviewed by police and he admitted that he had seen the victim but not in the sense that he had sex with her. He denied stopping her from telling on them.

8.1. For the April 2010 incident, the Defendant said he wanted the victim to relieve him again. He confirmed going with her to the creek to find crabs which is some 5 – 6 minutes walk from the house. He cut a "leaf laplap" and put it down and asked the victim to remove her clothes and lie down. He confirmed he put his shirt down on the leaf. He then removed his clothes and again laid on top of her. He said the same thing happened as it happened previously in the kitchen. He said she only held onto his penis whilst he was lying on top of her. He moved up and down until he relieved himself. He denied he ever inserted his penis into her private part. Then they put their clothes back on and returned to the house.

8.2. The Defendant realized what he did was wrong. Then one morning he sat down at the table together with the victim and his wife and paid fines of VT10,000 to the victim and VT10,000 to his wife. They reconciled and prayed to God for forgiveness and restoration of their relationships and their home. He promised that it would not happen again.

8.3. Mr Wirrick cross-examined the Defendant on his evidence after which the Defence closed its case.

Final Addresses And Submissions
9.There being no evidence in rebuttal by the prosecution the Court heard final addresses first by the prosecution. Mr Wirrick summarized all the witnesses' evidence and submitted that sexual intercourse as defined in section 89 A of the Act was established. He invited the Court to enter alternative verdicts against the Defendant under Section 101 E of the Act if it was not satisfied that the elements under Section 96(1)(a) had been made out.

9.1. Mrs Vire objected to the submission that alternative verdicts should be given under Section 101 E of the Act. She submitted there were doubts in the evidence of the victim which without corroboration the Court should exercise caution. She argued there was a very large time gap between the last offending in April 2010 and 18th October 2010 when the examination and findings were made. This rendered the report unsafe to rely on.

Conclusions By The Court
10. From all the evidence before the Court which have been carefully analyzed and considered the Court asks itself whether the prosecution has proved all the elements required under Section 9691)(a) of the Act to the required standard?

 The elements are –

(a)	Was there sexual intercourse or attempted sexual intercourse by the Defendant on the victim?

(b)	The victim was the stepchild of the Defendant.

(c)	The victim was living with the Defendant at the time of offendings.

(d)	The victim was under 18 years old at the time.

10.1. Section 96(1)(a) states –

"A person must not have or attempted to have sexual intercourse with any child, not being the person's spouse, who is under the age of 18 years and who:

(a)	Being the persons stepchild or foster child, is at the time of the intercourse or attempted intercourse living with the person as member or the person's family; or …….."

10.2. The Defendant did not challenge or deny that –

 (a) The victim was his stepchild; or

 (b) She was living with him and under his care at the time of offending; or

 (c) She was under the age of 18 years.

He however denied he ever inserted his penis into her vagina. The Court prefers his evidence on this element. However, his story confirms that at best he attempted to have sexual intercourse with his stepchild on two occasions in November 2009 and again in April 2010. Section 96(1) covers sexual intercourse or attempt to have sexual intercourse. The Defendant's evidence is consistent with the evidence of the victim for offences in November 2009 and in April 2010. He described them in the view of an experienced and mature married man. The victim, a shy girl who admitted she was afraid of members of the public in Court, it appeared to the Court she did not fully understand the meaning of what sexual intercourse means and what it all involves. The Court was satisfied that no sexual intercourse had been established but merely that an attempt to have sexual intercourse was established by the prosecution beyond reasonable doubt. The evidence of the victim was inconsistent in certain aspects and therefore it was unsafe to rely on it without further corroborative evidence. The medical report was unsafe in that it was not recent, it was made some 6 months after the event.

10.3. The Court declined to reach alternatives verdicts under Section 101 E of the Act and to convict the Defendant for a lesser offence pursuant to Section 109 of the CPC Act because the requirement for offences under Sections 89 and 89 A of the Act are that they must have been performed in the presence of another person. These offendings did not take place in the presence of any other person(s).

Final Verdict
11. The Court therefore returned verdicts of guilty on two counts of attempted sexual intercourse with a child under care or protection contrary to Section 96(1)(a) of the Act against the Defendant David Toa.

Remand Application
12. Mr Wirrick made oral application for the remand of the Defendant pending submissions as to sentence hearing. The application was declined.

Bail
13. Mrs Vire objected to the remand application and requested for extended bail on conditions. The Court accepted the application and extended bail on conditions. A separate order has been issued specifying the conditions. The reason for extending bail was that the Probation Officer who would primarily be in charge of the Defendant on remand was not available at the trial.

DATED at Saratamata this 18th day of April 2011.

BY THE COURT

OLIVER A. SAKSAK
Judge