Public Prosecutor v James [2013] VUSC 44; Criminal Case 01-13 (22 March 2013)

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

CRIMINAL CASE No.01 OF 2013

PUBLIC PROSECUTOR

- v –

JOSEPH JAMES

Coram: V. LunabeK CJ
Counsel: Ms Kayleen TAVOA, Public Prosecutor
Mr Andrew BAL for the Defendant

JUDGMENT ON VERDICT

Introduction

Joseph James, this is the judgment on your verdict. You were charged with one count of sexual intercourse without consent, contrary to section 91 of the Penal Code Act. On 5 February 2013, you pleaded not guilty to the charge. A trial was required. Before the commencement of the prosecution case, your right of presumption of innocence was read and explained to you by the Court. You have confirmed to the Court that you understood it (section 81 - Criminal Procedure Code). The prosecution case then began.

For obvious reasons, the names of the complainant woman will be omitted. She will be referred to by the initials (K.S.).

Prosecution case

The crux of the prosecution case is that on 3rd November 2012, Joseph James, you had sexual intercourse with the complainant (K.S.) at the Kawenu Beach, Malapoa area, and at the time of the intercourse she did not consent to have sex with you but you obtained her consent by force.

Contended Issue

Your defence lawyer informed the Court that on 3 November 2012 at the Kawenu beach, you had sexual intercourse with (K.S.) but it was a consensual sex. The consent is therefore the only issue in this trial.

Criminal Standard of Proof

In this trial, the law is that the prosecution must prove each and all essential elements of the offence charged against you on the criminal standard of proof of beyond a reasonable doubt. The standard of beyond reasonable doubt does not mean certainty. If I am not sure about your guilt, I must acquit you of the offence; if I have a doubt on your guilt and that doubt is a reasonable one, I must acquit you. If at the end of the trial, after I have considered and assessed the whole of the evidence and submissions of the prosecution and your defence lawyer and if I am sure of your guilt in my conscience as a trial judge of fact, I must convict you of the offence charged against you.

Essential elements of offence

Before you could be convicted for the offence of sexual intercourse without consent, the prosecution must prove the following elements on beyond reasonable doubt:

1. You had sexual intercourse with (K.S.) on 3 November 2012.

2. The sex took place at Kawenu beach.

3. The complainant (K S) did not consent to have sexual intercourse with you on 3 November 2012 at Kawenu beach.

4. You had a reasonable belief that the complainant had consented to have sex with you on 3 November 2012 at Kawenu beach.

The first two elements (1 and 2 above) are admitted by you. They are satisfied on the criminal standard of proof. The prosecution must only prove elements 3 and 4 on the required standard of proof of beyond reasonable doubt.

Summary of prosecution evidence

The prosecution called five (5) witnesses. (KS) is the first prosecution witness. She is the complainant in this case. She gave evidence to the following effect. She is from a mixed Tongoa/Malekula parentage. She works at Au Bon Marché No.2. On the night of 2 November 2012, she said she went out to Planet 107 club by herself. She met a woman friend from Banks Island. She did not know her name but she recognised her face. Her woman friend from Banks lived with a Whiteman (French). At Planet 107, she had some drinks with her friend from Banks.

Her friend from Banks was at the Planet 107 with the Defendant, Joseph James. At that time she did not know the name of the Defendant Joseph James. They left Planet 107 at about 10.30am-11.00am. It was daylight and the sun was not the early morning sun. The sun hit on the body. She could feel it. She did not know of the name of the Whiteman she referred to but she recognised his face.

They left Plant 107 in the Whiteman's truck. When they left in the truck, she could not recall where they were going. She said she recalled when the children called out and she could not get herself up because this man Joseph was on top of her and banged her head on the sand. She felt the sand and the roots of mangroves trees. She felt she was not in the house. She explained when she wanted to get out the Defendant hit her head on the sand. She realised her panty was no longer on her. She saw her panty on the sand. She wore a T-shirt, a grey skirt and a panty. When she realised she was on the beach, she tried to get herself up. The Defendant was on top of her and had sex with her. She heard a person shouting. She turned herself and saw the person who shouted was Peter. That person called on the Defendant in Tanna language. She saw the Defendant came out from her and buttoned his trousers. She saw the police cage truck arrived.

She said she did not consent to have sexual intercourse with the Defendant. The police truck took her and the Defendant to the police station.

(K S) was cross-examined. She confirmed she went to Planet Club 107 by herself. She said she arrived at the Club at 2.00am o'clock. She was asked and she explained that before she went to Planet 107, she had few tuskers at Club 21. When she arrived at the Planet she recognised other persons in the club. She confirmed Defendant Joseph James was at the Planet 107 with her friend from Banks. She was asked and she confirmed she recalled talking to Joseph James in the Planet 107. She testified that her discussions with Joseph James were just on general discussions only. She said she did not recall about her having specific topic of discussions. She was asked and she confirmed she was drunk at the time. She was asked and she denied that she agreed that she told the Defendant Joseph James to pay drinks for her so that he could have sexual intercourse with her. She was asked and she confirmed that after they left Planet 107, she could not recall where they went as she was drunk. When asked if she was too drunk she confirmed her drunkenness.

It was put to her and she denied she asked the Defendant to pay a bottle of whisky at Au Bon Marché Man Place and so that he could have sex with her. She was challenged on her answer and she said she answered no to the question because she was too drunk. She said also that she did not recall that they stopped at Au Bon Marché to pay drinks.
She was asked and she answered that after the Planet 107, her girl friend offered that they dropped her at home. She was in the truck with her woman friend. The whiteman drove the truck. She did not know that Joseph James also was getting into the truck. She explained when she and others were in the truck, she did not know where they were going.

It was put to her and she denied that she was not dropped at her home because she agreed to have sex with the Defendant. She said she could not recall that and she was too drunk.

It was put to her and she refused the proposition put to her that she had drinks with the Defendant at the Planet 107 since 9.00pm o'clock that night. She explained that on Friday 2 November 2012, she was still at home at 9.00pm o'clock. She could not recall of the discussion of having some roasting on the beach because she was too drunk.

She was asked and she confirmed that she saw the Defendant at Planet 107 and the next time she saw the Defendant again was at Kawenu beach. She was asked and she answered when she woke up at Kawenu beach she did not see her girl friend from Banks and the whiteman. She was also asked and she accepted that when she was dropped off at Kawenu beach with Joseph James, she was sleeping on the sand at Kawenu beach. She did not recall that she had further alcohol drinks with Defendant Joseph James. She was asked and she confirmed she was too drunk.

She was asked and she denied she started sleeping at Kawenu Beach from 8.00am to 1.15pm on 3 November 2012. She explained that it was not 8.00am in the morning. She repeated when they left the Planet 107 the sun was burning. It was about 10.30-11.00am o'clock. The sun was not an early morning sun. She confirmed she recalled she was inside the truck and the next thing she recalled she was on the beach. It was put to her and she denied that she had ever asked the Defendant to pull her under the roots of a mangrove three to have sex with her. She was too drunk and she could not recall.

She further said when she was woken up; there were lots of people around. She confirmed her panty was removed from her and it was on the beach. It was put to her and she denied she removed her panty herself. She could not recall of removing it herself. She confirmed that at that time, when she was woken up, she realised that the Defendant was already on top of her. She realised a forceful weight was on top of her. She felt pain on her back. When she tried to remove herself, the Defendant hit her head against the sand. She realised she was on the beach. She heard children shouting. The Defendant was having sexual intercourse with her. It was put to her and she answered she did not consent for the Defendant to have sexual intercourse with her. She was challenged as to why not calling for help and she answered she had tried to get herself up but the Defendant hit her head against the sand. It was put to her and she said she had bruises on her body and on the back of her body and on the back of her head. She had also mentioned the medical report of her examining doctor. It was again put to her and she confirmed the Defendant hold her head and banged it on the sand of the beach to have sexual intercourse with her.

She denied of any recollection of her agreeing having sexual intercourse with the Defendant. She confirmed when asked that she was too drunk.

On her re-examination, she confirmed that when they left Plant 107, her girlfriend told her to get inside the truck and she will be dropped off. She clarified that once she was in the truck, she was drunk and she could not recall getting to Au Bon Marché and which direction the truck took at that time.

She confirmed she had never given her consent for the Defendant to have sex with her. As to the time she stopped the Defendant to have sex with her, she clarified:

"sem time ia mi wake up. Mi filim sand beach. Mi no stap long house. Mi stap long natongtong. Taem mi stap blong get up. Mi save se hemi stap on top long mi. mi hearem ol pikinini oli singsing out." [At the same time I was woken up. I felt the sand on the beach. I was not in the house. I was on the mangroves (roots). When I started getting up I realised he was on top of me. I heard children shouting].

She further clarified that she heard the voice of a man (Peter) calling out to the Defendant in Tanna language but she did not understand what was said.

Peter Marau was the second prosecution witness. He gave evidence to the effect that he is a police officer – a senior Sergeant – a police officer for 28 years. On 3 November 2012, at about 1.00pm-3.00pm o'clock he was watching soccer matches at Kawenu soccer field. He said he heard people called out and called for police. He went and looked on the beach and he recognised the Defendant who was sleeping on top of a woman. He saw a little bit of struggle. He saw the sand coming up. He saw a slop. It was lower tide at that time. He was about 10 meters. He described the struggle he saw in that the hand of the woman was trying to get out from the man. The hand of the woman was trying to push her out of the man. He knew the Defendant. He talked to him and asked him of what the Defendant was doing in the face of the public. He said the Defendant recognises him. The Defendant then stood up. The penis of the Defendant was outside. People could see it. He described it as wet as having sex.

From the distance of 10 meters he was before, he walked toward the Defendant and the woman. Then the Defendant pulled his trousers up. He said the Defendant was drunk. He said he recognised the woman. The Defendant told him he paid the drinks for the woman and the woman promised him to have sexual intercourse with her. He said he told the Defendant not to do this thing there. There were lots of people. He said (KS) was ashamed and looked down. He saw her panty was on the sand. He described the sand and the structure of the sand showed that there was some struggling. He also saw the top of the shirt of (KS) was broken. When shown to him, he recognised the cloth that (KS) was wearing on the date of the incident. He then phoned the police general duties at the police station; they arrived and took the Defendant and the complainant in the police truck (cage) to the police station.

Peter Maru was cross-examined. He was asked whether he had seen exactly what the Defendant did to the woman. He answered in the negative (no). He repeated he did not see exactly what the Defendant did to the woman until the Defendant got himself out from the woman. He was challenged to what he said in his statement to the police. He explained that in his statement he said he saw both the Defendant and the woman. The woman was struggling and also there were many people, as soon as he spotted both the Defendant and the woman, no one else came closer to them. He denied the woman started struggling when the people shouted. He was asked and he confirmed the Defendant told him that the paid drinks for the woman to have sexual intercourse with her. This witness testified that the Defendant swore and said:

"Fuck be mi pem drinks blong woman ia..." [Fuck but I paid drinks for this woman...]; and Peter said he responded to the Defendant in this way: "yes but hemia ino meanim se bae you gat sex wetem hem." [Yes but this did not mean that you would have sexual intercourse with her].

The Defendant insisted he paid the drinks for the woman. He confirmed he saw the cloth of the woman was torn but he did not know who did that.

Nick Siri was the third prosecution witness. He is a police officer. – A Constable. On 3rd November 2012 it was a Saturday. He was in the police truck when he was asked to attend a scene at Kawenu beach. He said there were lots of people. Defendant Josep was standing. The woman was sitting. He said he asked the woman what happened. The woman told him that the Defendant had sexual intercourse with her but she did not consent to have sex with him. Defendant forced her to have sex with him. He said he asked Joseph and Joseph said to him: "mi mekem sex, mi wrong finis" [I had sexual intercourse I was already wrong.] He said the Defendant and the woman were taken into police truck. He explained that there were lots of people. He smelt alcohol on the woman. The backside of the woman was covered with sand. Her face was covered with sand. He said he saw the sand on her back and face and the structure of the sand where the incident occurred as if she was trying to move away from a force situation. He confirmed his evidence in chief while cross-examined.

Rantes Aline was the prosecution's second last witness. She is a police officer – A Constable. She joined the police since 2 years. She conducted the interview of the Defendant. She said during the interview the Defendant said the woman agreed to have sexual intercourse with him. The record of interview was tendered by consent (Exh.P1).

Doctor Tony Harry is the last prosecution witness. This witness is a practician Doctor at the Vila Central Hospital. He worked as a general doctor for 8 years. He then undertook further special studies and obtained Masters in obstetrics and gynaecology. He is now a specialist obstetrician and gynaecologist in the hospital. He had checked the complainant woman (KS) on 3 November 2012. He said the woman was in the out patient section.

She was referred to him in a room. He described the physical appearance of the woman to the effect that she was emotional; there was sand all over her body; her cloth was torn and she held her panty in her hand as it was removed. She was crying. She smelt alcohol. Her body was in pain. He then obtained the consent of the woman for medical examination. He explained the medical report and his findings (Exhibit P.3). The right jaw was swollen. There was tenderness on her right side head. There was tenderness spotted below her rip. There was tenderness on her proximal phalange (little finger). There was a linear bruise on her forehand. There was tenderness on her right and left elbows.

The Doctor explained that tenderness means that there was injury inside the body. It was an internal injury. There were no outside bruises. He further said that the tenderness could be caused by force applied on the body against a rough and blunt object on the external part of the body of the woman. There was sand all over her body and there was sand also inside her vagina. There was no spermatozoid found but there was an infection detected.

In his cross-examination, he said tenderness means there is injury but you cannot see it with your necked eyes from outside. He was asked and he confirmed that the patient has a linear bruise and there were tenderness on other parts of her body due to force or physical contact applied on her body.

He explained the patient complained of tenderness on her body, so he applied palpate on her body. That is how he could find tenderness on her body as the patient felt pain on that part of her body when he applied palpate.

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

Court Ruling pursuant to section 164 Criminal Procedure Code Act [Cap. 136])

At the end of the prosecution case, the Court ruled that a case was made out against the Defendant. The Defendant is required to put forward his defence. Section 88 of the Criminal Procedure Code Act was read and explained to the Defendant. His right to remain silence was also explained to him. In the event that the Defendant calls' witnesses or gives evidence himself on his own behalf, the Defendant and his witnesses shall be cross- examined by the prosecution and the court shall assess his evidence and evidence of his witnesses on the same footing as evidence of any prosecution witness. The Defendant understood his right thereunder.

Defence case

The defence counsel summarised the defence case in this way:
The Defendant is charged with sexual intercourse without consent, contrary to section 91 of the Penal Code Act. The defence said that there was consent between the Defendant and the complainant. The consent was obtained at an earlier stage at the night club before sexual intercourse occurred. The Defendant exercised his right to give evidence himself on his own behalf.

Summary of Defence evidence

Joseph James gave evidence on his own behalf. His evidence is to the following effect. He is from Imale village, whitesands area, Tanna. He resides at Tagabe Side River. He works at Nasama Resort.

On 2 November 2012 in the night he was inside Planet 107 club. He was in the Planet since 9.00pm o'clock and had a jar of tusker to support his kava ("kale"). Inside Planet 107 he recognised his friends. Linda of Banks is one of his friends in the Planet that night. He was drinking with Linda in the Planet for some time. They then saw (KS). (KS) seemed unhappy as she had no drinks and she asked others to pay for her drinks. He said Linda told him that they called (KS) to join them to drink as Linda saw that (KS) started to ask people to pay alcoholic drinks for her. (KS) joined them. He testified that at the time, he saw that he was the only one to pay the drinks for the three of them. They talked to each other. Then the owner of Planet 107 club (Sabi Natonga) offered him a jar of whisky coke as he is his cousin brother.

He said (KS) talked to him and asked if he knew Sabi Natonga. He said he told (KS) that Sabi Natonga is his cousin brother. He said Kathleen told him that she had two children from Sabi Natonga. He was her former boy friend.

He said when they drunk whisky and tusker, he said (KS) told Linda that she liked him. (KS) asked about his name to Linda. Linda told her that his name is Joseph. He said (KS) further told him in Planet 107 to pay dinks for her so that he could have sexual intercourse with her. He said at that time he did not take note of doing this because he has a wife. He also said the club was closed at 7.00am o'clock in the morning. He said (KS) told to pay for her drinks and then to have sex with her. He said he paid the last jar of tusker and they left the Planet 107 club at 7.00am in the morning.

He said (KS) and Linda suggested they would go for roasting on the beach. They were waiting for the old French man to come and take them for roasting on the beach. When he arrived, they followed the road form La SMET toward Au Bon Marché Man Place. Inside the truck, he said (KS) told Linda that she liked him. They stopped at Au Bon Marché because he said Linda and (KS) asked him to pay a bottle of whisky. He paid the bottle of whisky with two (2) canes of coca cola. They drove to main wharf road to drink the whisky. They found the place was not appropriate, so they drove to Kawenu beach and they arrived at 7.45am. They all got out. When asked, he explained – (KS), Linda and the old Frenchman and he got out. He said the old French man did not consume alcohol liquor, just the three of them. They drank the whisky after (KS) "hemi K.O". [She was in a dead sleep].

It was low tide. Linda and her French boyfriend returned home. He stayed with (KS). He drunk his whisky and waited for (KS) because of their agreement during the night. He said she told him to pay her drinks so that he could have sexual intercourse with her. He said (KS) slept on her left side for 7 hours. He said the sea started to come back ashore. He said (KS) opened her eyes and saw him. He said she told him to move her to the other side of the mangroves and have sexual intercourse with her before they could go apart.

He said he saw people watching soccer but because of their agreement he followed (KS) and have sexual intercourse with her under the head of the mangrove tree. He said (KS) took off her panty while she was still drunk. He said (KS) told him to harry up. He then pulled the zipper of his trousers and (KS) hold on his penis and put it into her vagina. He saw Peter coming up. He stood up and pulled the zipper of his trousers. Peter asked him of what he was doing there. Peter told him to wait for the police. Police truck arrived. Police took him to the police station and placed him in cell No.6 for 24 hours as police could not obtain a statement from (KS) because she was still too drunk.

He was referred to his answers to questions in the record of interview as there were inconsistency between his answered in the record of interview and his oral testimony. His answer to qestion 40 in the Records of Interview (Exhibit P.2) is an example:

"Question 40: Police i wantem talem long you Joseph James se fasin we you mekem olsem blong havem sex wetem (KS) we hemi no long tingting blong hem, hemi good or ino good? [Police would like to ask you Joseph James whether your act in having sexual intercourse with (KS) without her consent was good or bad.]

Answer to Q. 40: "I nogud ia." [It was bad].

He was then asked to explain his answer. He explained in this way:

"Mi talem Olsen from se woman ia i forcem mi blong gat sex wetem hem taem hemi askem mi blong pem drinks blong hem. Mi follem hem blong gat sex wetem hem." [I said this because this woman had forced me to have sexual intercourse with her when she had asked me to pay for her drinks. So, I followed her to have sexual intercourse with her].

Joseph James was cross-examined. He said Planet 107 club is situated 10 meters from his residence (house) at Tagabe side river, Port-Vila. He used to go to Planet 107 to watch people play balls. On 2 November 2012, he confirmed he was in the Planet 107 club with Linda. He also confirmed that (KS) had joined them later on.

Inside the Planet 107, (KS) saw that Sabi Natonga offered him a jar of whisky coke. (KS) asked him whether or not he knew who Sabi Natonga was. That was the first conversation he had with (KS). The second conversation was when she asked the Defendant's name to Linda.

It was put to him and he said (KS) told him to pay her drinks and they will have sexual intercourse. It was put to him and he said it was not possible to have sex with her inside Planet 107. It was put to him and he said it was not possible to have sex with her in his house. It was put to him and he said it was not possible to have sex with her outside the Planet 107.

However, he added that when he purchased alcohol drinks for (KS), he did not have intention to have sex with her.

It was put to him and he confirmed that when they came out from Planet 107, (KS) was drunk. He did not go to his house. They wanted to do roasting on the beach.

It was put to him and he confirmed that he did not go back to his house after the Planet 107 was closed because he thought he would not purchase alcohol drinks for (KS) for nothing. It was put to him and he confirmed that there were women like her who asked for men to purchase their alcohol drinks in the club.

It was put to him and he confirmed that they stopped at Au Bon Marché and Linda and (KS) asked him to pay a bottle of whisky. He purchased one bottle of whisky and 2 canes of coca cola. They went then to the main wharf. It was not appropriate for them, and then they went to Kawenu beach. At Kawenu, he said after 10 minutes they arrived, (KS) was in a dead sleep. He confirmed she was too drunk. He confirmed that before she came to Planet 107, (KS) was already having some alcohol drinks. It was put to him and he agreed that when a man or woman was too drunk and then went into a deep sleep ("hemi k.o."). He or she did not know what he or she was doing or what was done to him or her.

He confirmed he stayed with (KS) when Linda and her boyfriend left and returned home. It was put to him and he accepted that when (KS) felt into a dead sleep, she has spoiled the agreement for them to have sex. It was also put to him and he accepted that because she felt into a dead sleep and more and more people came and watched soccer matches, sexual intercourse between them was no longer possible.

It was put to him and he denied when he had moved the body of (KS) from where she was sleeping to a head of mangrove tree with the intention to have sexual intercourse with her. It was put to him and he confirmed that when he moved her body to another place she had woken up. He was challenged with the evidence of (KS) to the effect that she was woken up because she heard the voices of the children shouting and she had realised she was lying on the sand but not in a house, He responded that (KS) was woken up because it was again high tide and the sea started to come ashore and washed (KS)'s leg.

It was put to him and he answered that at that time he said (KS) told him to hurry up and have sex with her. He repeated that (KS) was still drunk. It was put to him and he said it was not his feeling to have sex with her but she was asking him. It was put to him and he denied that (KS) was woken up when she heard the shouting from the children and trying to push him out from her. He was challenged on his evidence that (KS) held on his penis and inserted into her vagina while (KS)'s evidence was that when she was woken up, she felt that the Defendant was already inside her and she tried to push the Defendant out of her. He denied that and said it was not true.

The evidence of (KS) that when she was woken up, she felt that she had no panty and she saw her panty was on the beach. He denied this and said it was not true. He denied that he removed (KS)'s panty. He said he could not do that because the place was a public place. He was further challenged because although he said it was a public place he went on to have sexual intercourse with her in any event. He replied that because it was a public place they were trying to hide behind a mangrove tree.

It was put to him that he had sex with (KS) to complete the agreement he mentioned. He answered that (KS) held his penis and placed it inside her. He said he saw Peter coming and he stood up and pulled the zipper of his trousers. He was reminded about Peter's evidence that Peter heard people shouting. He answered that (KS) put his penis inside her vagina and then she lifted up he legs. So people saw her legs up and so they shouted.

He was confronted with Peter's evidence that Peter heard people shouting he could not yet see both of them but Peter said he saw the sand coming up over them in the air. It was put to him that (KS) was struggling to come out from him by using her hands throwing the sand while He was on top of her. Defendant Joseph denied this and said it was not true.

He accepted that Peter saw his backside when he was on top of (KS) and when he got up Peter recognised him. He accepted that he moved (KS) to the roots of a mangrove tree but he explained that because (KS) told him to move her to another place under the mangrove tree to hide her from the many people.

He was challenged on the answers he gave in his answered to the questions in the record of interview and his oral testimony when they were not consistent to each other. He denied he had sex with (KS) before she was woken up from her dead sleep.

Discussion on evidence: Assessment and credibility

I have heard the evidence of prosecution witnesses and also the defence witness (the Defendant himself). I have also considered their respective demeanour in the witness box. The Court makes the following findings of facts and related credibility (when relevant so to do).

• On 3rd November 2012, Defendant Joseph James had sexual intercourse with the complainant (KS) in the afternoon of that day at Kawenu beach.
  
• Before, during and after the sexual intercourse on 3 November 2012 at Kawenu beach, complainant (KS) was still very drunk.
  
• (KS)'s evidence was to the effect that when they left Planet 107 club, after they went in the white man's truck, she was drunk and she did not know where they were going. She recalled that she was awaken by the voices of the children shouting as she heard these voices. She then felt the sand. She realised that she was not sleeping in the house but on the beach. She felt the roots of mangroves on her backside. She realised that the Defendant was already on top of her and had sexual intercourse with her. She felt his body was inside her. She tried to remove herself from the Defendant. The Defendant held on her head; he banged her head on the sand. He assaulted her on the right side of her jaw.
  
• After the police took (KS) to hospital for examination, police could not obtain a statement from her. She was still drunk. That is the reason why the Defendant was further held in cell No.6.
  
• Peter Maru found her crying. She looked down. Her panty was on the sand.
  
• Doctor Harry smelt alcohol on her. Her body was covered with sand including in her vagina.
  
• Defendant gave evidence to the effect that (KS) was drunk. She had some alcohol drinks before she came to Planet 107 club. (KS) "Hemi k.o." after 10 minutes they arrived at Kawenu beach because she was too drunk.
  
• The Court found that (KS) did not consent to have sexual intercourse with Defendant Joseph James on 3 November 2012 at Kawenu beach. While she was still in a dead sleep, the Defendant removed her from the place she was lying to another place under the head of a mangrove tree and roots. He had sexual intercourse with her while she was still in her dead sleep.
  
• The Court accepted (KS)'s evidence that she was awoken by the voices of the children shouting when they saw what the Defendant was doing. At that point she heard these shouting voices. She felt the sand – the roots on her back side. She realised the Defendant was already on top of her and she felt his penis was inside her. She was struggling to remove herself from the Defendant.
  
• Peter Maru's evidence supported the struggling version of the evidence when he saw the backside of the Defendant lying on top of the complainant (KS) and he saw the sand thrown up in the air. He was 10 meters away. He went to the place of the incident and recognised the Defendant Joseph James who was drunk. He described the Defendant's penis as wet as Defendant had sexual intercourse with the complainant woman and he had just withdrew his penis from the body of the woman.
  
• The medical evidence was in support of the struggling version of the facts and corroborated the evidence of the complainant. Doctor Tony Harry gave evidence of his examination and findings as contained in Exhibit P3. The complainant woman was crying. She smelt alcohol and he could see that her body was in pain. He described and explained his findings. The woman's right jaw was swollen. She had tenderness on her right side of the head. Tenderness was spotted below her rip. There was a linear bruise on her forehand. There was tenderness on her right and left elbows. The Court accepted the doctor's evidence and his technical and medical meaning that tenderness meant there was an injury but you could not see with your naked eyes. It was like an internal injury. The way he identified the tender on the body was by the complainant indicating to him where she felt pain and he palpated the area with his hands and the complainant woman reacted by feeling pain on that particular area of her body.
  
• Another piece of evidence in support of the version of the evidence of the complainant woman and to the effect that she was struggling to remove herself from the Defendant was that her panty was removed and was on the beach where her shirt or the top of her shirt was torn.
  
• The Court accepted the evidence that the complainant said she could not recall removing them herself. There was no evidence of the complainant tearing the top of her shirt. It is rational to infer on the basis of the above accepted facts that the only person who could have done this was the Defendant as there was no one else with them at the time of the intercourse (apart from the children swimming but watching some distance away). It is rational to infer and so the Court accepted that the tearing of the shirt is in support of the struggling process to get herself out of the Defendant. Other aspects of the evidence that are in support of the struggling version of facts are that she was on her back during the whole ordeal and at no time did she get up until the intervention by Peter. There was no mention of her in an upright position except Peter's evidence who stated that when he intervened that was when Defendant Joseph James left the complainant woman. Then he said she sat up on the beach. The doctor's report is consistent with the description of the complainant woman that the Defendant had hit her face so that she would lie down. She had a tenderness and swollen right lower jaw. His description of him lying on top of her and of him stops her from getting up to call for help caused tenderness in her two (2) elbows. The evidence of the Defendant that the complainant was laying on her side for seven (7) hours at the same place (see picture 1 of Exhibit P1), cannot be accepted as it is not rationally possible to explain how she could receive these injuries on different part of her body if she had only slept on her left side for such a number of hours. The only rational explanation is that after she was moved by the Defendant as the Defendant said to another place, then, she had received those injuries as described by the complainant woman. This was consistent with the texture of the sand (Peter Maru's evidence) where the Defendant and the complainant were shown that there had been struggle in that place coupled with the sand that were removed and thrown in the air when the Defendant was on top of the complainant. This is also consistent with the evidence of the doctor and findings that the woman had tenderness on her backside and other parts of her body due to force or physical contact applied to her body. It is rational to infer that she had received these injuries after she was moved by the Defendant to another place under the head and roots of a mangrove tree.
  
• Finally, the struggling version of fact is consistent with the finding of the doctor that sand was in her private area of her body and inside her vagina.
  
• The evidence of the Defendant is rejected as he could not rationally be believed. The Court rejected the Defendant's version that there was an agreement between the Defendant and the complainant to the effect that the Defendant paid the alcohol drinks for the complainant and in return he will have sexual intercourse with her.
  
• On the defence evidence, the Defendant and Linda saw the complainant and invited her to join and shared their alcohol drinks with them as she could not afford to pay herself her own drinks. Then on the Defendant's evidence he was the only one to pay the alcohol drinks for the three (3) of them. At some stage of his own evidence the Defendant accepted the proposition put to him that when (KS) was in a dead sleep sex was no longer possible. The Defendant also accepted the proposition put to him that the fact that he paid the drinks for the women could not be for nothing.
  
• The Court found, on the basis of the above accepted facts and on rational inference that it was the belief of the Defendant that because he paid the alcohol drinks of the woman in return he could have sex with her whether the woman consented or not. That belief was not a reasonable one. On the facts of this case, the Defendant could not be justified on the basis of this belief and whatever behaviour or act of the woman before the intercourse at Kawenu beach on 3 November 2012, could the Defendant be reasonably believed that the woman by the said behaviour or act consented to have sexual intercourse with him as he testified.
  
• In this case, the facts show the following:
  

(1) The complainant woman did not consent to have sex with the Defendant; and/or
(2) The consent of the woman was obtained by force; and/or
(3) The consent of the woman was obtained by the effects of alcohol.

• In light of the above, the version of facts of the defendant (evidence) was rejected in its entirety as not truthful.
  

Law and its application

Applying the law to the facts as found, section 90 of the Penal Code (Amendment) Act No.25 of 2006 defines sexual intercourse without consent. It provides:

Section 90 – Sexual intercourse without consent.

"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 representations as to the nature of the act; or
  
• (v) in the case of a married person, by impersonating that person's husband or wife; or
  
• (vi) by the effects of alcohol or drugs; or
  
• (vii) because of the physical or mental incapacity of that person;
  

Commits the offence of sexual intercourse without consent."

[Underlined are my emphases]

In the present case, there is overwhelming evidence that the complainant did not consent to have sexual intercourse with the Defendant on 3 November 2012 at Kawenu beach. The evidence of struggling and the consequential injuries on the body of the woman are testimony of this conclusive fact-finding that force was used. Further, there is overwhelming evidence that the complainant woman's state of mind was affected by alcohol. On any rational base, even if the Defendant paid the drinks of the complainant woman so that the Defendant could have sexual intercourse with her as the Defendant put it, the situation as described could not be amounted to consent for sexual intercourse either.

The Court is satisfied that the prosecution has proved each and all essential elements of the offence charged under s.91 of the Penal Code Act on the criminal standard of beyond reasonable doubt.

VERDICT

Defendant Joseph James is found guilty of sexual intercourse without consent, contrary to section 91 of the Penal Code Act and convicted him accordingly.

DATED at Port-Vila this 22nd day of March 2013

BY THE COURT

Vincent LUNABEK
Chief Justice