Public Prosecutor v Worwor [2014] VUSC 51; Criminal Case 32 of 2014 (23 May 2014)

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

Criminal Case No. 32 of 2014

PUBLIC PROSECUTOR

vs

JEAN PAUL WORWOR

Coram: Mr. Justice Oliver A. Saksak
Counsel: Mrs.Losana Matariki for the State
Mr. Henzler Vira for the Defendant

Date of Trial : 21st -22nd May 2014
Date of Verdict : 23rd May 2014

ORAL VERDICT

1. The Defendant Jean Paul Worwor pleaded not guilty to-
   

Count 1- Sexual Intercourse without consent contrary to section 90 and 91 of the Penal code Act Cap.135 (the Act)

Count 2- Threats to kill contrary to section 115 of the Act, and

Count 3- False imprisonment contrary to section 118 of the Act.

2. His trial hearing commenced on 22nd May 2014. Before the Prosecution opened its case the Court read the Statement of Presumption of Innocence under section 81 of the Criminal Procedure Code Act Cap.136 (the CPC Act). The Court explained its contents to the Defendant in Bislama.
   
3. As in all Criminal cases, the general burden of proving the Defendant's guilty rests on the Prosecution. The standard of proof required is proof beyond reasonable doubt. This burden and standard are stipulated by section 8 of the Act.
   
4. The elements the Prosecution has to prove to the Court to the required standard are-
   
   1. For sexual intercourse without consent.:
   1. The Defendant must have had sexual intercourse with the Complainant.
   2. It was done without the consent of the Complainant.
   3. Consent was obtained by force, threats of intimidation of any kind or by fear of bodily harm.
      
   2. For threats to kill-
   1. There were oral threats made by Defendant.
   2. There threats were directly made at the Complainant.
   3. The Defendant knew the contents of the threats.
      
   100. For false imprisonment:
   1. There must be a confinement.
   2. The confinement must be unlawful,
   3. The Confinement was done against the will or consent of the Complainant.
      
5. The Prosecution called evidence from six witnesses including the Complainant. I summarise only the relevant parts of the witnesses and testimonies in the following manner-
   

1. Paulina Melekun – at student nurse at the Vila Central Hospital (VCH). On the morning of 27th November 2013 she left her home at Bladiniere's Estate at about 5:00am to walk all the way to the VCH to attend classes at 7:30am. She followed the main road through town, up through the Independence road by the Police college, to Collardeau Road and taking the Vila East School road towards the VCH. At the main road near the gate to the VCH she heard a voice calling her. At first she did not take any note but kept walking. But the call continued and when she looked she saw the Defendant approaching her. He had a piece of metal (iron) in his hand, he abused (swore) at her and asked why she did not hear him calling. The Defendant held her hand and threatened her to follow him and that if she refused, he would insert the piece of metal into her vagina. The Defendant pulled her into an empty yard and house opposite the VCH. Inside the house the Defendant pulled her by her shirt towards him and started to kiss her passionately. She did not want to do so and she struggled and bent down. The Defendant however removed her T-Shirt. Then he went for her trousers and pulled it down. In doing so the zipper got broken. She was left with her panty and bra. The Defendant went for her panty and pulled it down and in doing so the panty was torn. She identified these clothes which she tendered into evidence as Exhibits P1, P2 and P3. The Defendant then pushed her down and threatened her further saying: " If you call out, I will kill you dead like the Montmarte student" . Then he squeezed her legs and forced them to open. She could not move anymore so the Defendant had sex with her. After doing so the Defendant told her not to put her clothes back on but to remain naked. Then after 5 minutes he forced her again to have sex with her the second time. Prior to having sex the Defendant licked her vagina. She tried kicking and struggling but he had sex with her again ejaculating into her. She felt sore in her body. She told the Defendant she had had enough and asked him to let her go to attend her nursing school. But the Defendant told her she would not go but she would stay on with him until they would go to his home together. The Defendant then grabbed her mobile phone and told her not to tell the police and said he was not afraid of the police. At those words, she stayed on with him and did not leave until she went to his home with him. At about 4 o'clock pm she told him she would go to her house, collect her clothes and to return to see him. She asked for his name then the Defendant allowed her to leave. He said his name Jean Paul Worwor. She then went out, stopped a bus and went back to her home at Bladinieres' Estate. Upon reaching her home, she rang to her dad at around 4:15pm. She was crying over the phone when she spoke to her dad. She was crying and shaking because she was frighten. Her dad told her to wait until he got home so she could relate the full story of what happened to her. When her dad arrived, he was drunk with kava. She told him everything that the Defendant did to her. Her dad advised her that they would go to the police the next day to report the matter. The next day, being a Thursday she and her dad went to the police station at 7 o'clock am. The police gave her a Medical form and advised her to go to the VCH for medical checkup. Then they went up to the VCH. The doctor was busy and she had to wait until 5 o'clock pm that day. She was examined by Dr Margaret Tarere. After that the Police took her statement also at the VCH.
   

6. In cross- examination this what transpired:
   

Q: Defendant ejaculated into you?

A: Yes.

Q: You did not have any protection?

A: I had Loupe.

Q: You stayed with the Defendant until 4:00pm?

A: Yes.

Q: You did not go to school?

A: No

Q: Refer to a document- an Attendance Sheet. Do you know this document?

A: Yes it is an attendance sheet. Teachers would just tick it without checking whether we were present or absent.

(Note: Mrs Matariki first raised objection to this document but later withdrew the objection. The document was tendered as Exhibit D1)

Q: You agree that on 27th November 2012 you were at the school?

A: No

Q: You and the Defendant had known each other for 3 months?

A: No.

Q: In fact you both met at the Church of Christ?

A: No.

Q: From there you reached the road where it all happened?

A: No.

Q: When you reached the house you went into the sitting room first?

A: Yes we passed through it.

Q: Because people would see you from the road, you told him you wanted to go to the bed room.

A: No.

Q: Inside the room you kissed?

A: He forced me to.

Q: You removed your clothes, you laid down and he had sex with you?

A: No, he forced me.

Q: You had sex only once?

A: 2 times.

Q: You left the house at 7:00 am that morning?

A: No.

Q: And you followed a short cut to hospital?

A: No.

Q: Ten at lunch time you went to meet the Defendant at his work place?

A: No.

Q: You went to take back your phone which he took from you?

A: No.

Q: Then in the afternoon you went to see him again?

A: No.

Q: Then both of you went up to the front gate of the Vila East School?

A: No.

Q: There you told him that because he had ejaculated into you, you were afraid of being pregnant so you told him you would go home, bring your clothes and return to live with him?

A: No.

7. In re-examination this is what transpired:
   

" Q: Why did you follow him into the house?

A: With all the threats and force he used, I followed him.

Q: How did he force you?

A: Because he had a piece of iron with him and he told me he would push it into me.

Q: Who was in the House?

A: No one.

Q: What happened the first time?

A: He removed my clothes, he pushed me down and had sex with me.

Q: What happened that day?

A: We remained in the house until 4:00pm."

8. Mr Nalo Matan, the Complainant's guardian gave the following relevant evidence:

" On 27th November 2013 I was still at work when Paulina rang me. This was after she had arrived back home. She was crying. I asked her what had happened. She told me she had a problem with a boy called Jean Paul Worwor. At this, I sought permission to leave. I arrived at home and saw Paulina. I saw her shaking. It took a long time before she told me what happened. She said as she was going to school, she followed a private road and a boy approached her, threaten her and forced her into an empty yard and house and forced her to have sex with him. I asked her why she did not call out and she said she was afraid as he had a piece of iron and told her that he would beat her to death if she did not comply with his demands. He told her he would kill her dead like the Montmarte student. She said he removed her clothes and had sex with her twice. That she stayed with him for the full day... Because it was late I told her we would go to the police the next day. The next day we went to see the Police. They asked us to go to the hospital. I accompanied her to the hospital. I left her in the hand of a Frenchman and I returned to work."

9. Dr.Margaret Tarere examined the Complainant at 4:00pm on Thursday 28th November 2013. She recorded the Complainant's story as follows:
   

"The case came to me on 28/11/013. She came with her story that she lives at Bladiniere Estates. She walked that morning. At 6:45am she passed the Vila East School. She heard a voice calling her. He swore at her and she looked back she saw the Defendant holding a piece of iron approaching her. He held her hand and led her to an empty house. He forced her to have sex with him. He kept her until afternoon when he allowed her to leave to get her clothes to return to live with him. That is when she escaped... Upon examination I found a bruise on the libia or private part. I used an instrument to look into the vagina. I discovered she was using a loupe but that it was misplaced. Loupe is a family planning device. There is a string attached to the vagina. When it is misplaced it can happen due to two things (a) it may not be placed correctly or (b) it happened as a result of sexual intercourse." As to what could have caused by a blow as a friction by use of a hard object."

The medical report was tendered as Exhibit P4

10. Corporal Lily Joel, the investigating Police Officer gave evidence. She interviewed the Defendant. His statements are recorded in the Record of Interview. She cautioned him and informed him about her rights. She informed him about the allegations made against him. The Defendant agreed to be interviewed. He was interviewed. At the end he signed on every page on his own free will. She made a statement in relation to her interview with the Defendant. She made another statement in relation to the Defendant's breach of bail. One said: " On 9th May 2014 the Defendant came to my house and told me to go to the island with him. He asked me whether my husband was present and I said "Yes". Then he asked me if the girl (Paulina) was pregnant. I said "No" and he asked me where she lives. I told him that she lives at Bladiniere's Estate. He said: "If I see her, I will kill her dead." Then he asked me why I did not withdraw the case. I told him that many police officers were already involved in the case and if I did, they would be asking questions. He insisted that we should withdraw the case and he would sort it out with us later. I told him that would be corruption at its best. I told him to appear in Court on 21st May 2014 to tell the Court what he did. Then he left. I was aware of his bail conditions and that he had breached a condition. So I went to the Police station to follow the matter up.
    
11. The evidence of Police Officer Mark Willy and of Senior Sargent Davis Saravanu were relevant only to the breach of bail of the Defendant but were not relevant to the offences of rape, threats to kill and false imprisonment.
    
12. From the evidence as summarised, The Court ruled the prosecution had established a prima facie case against the Defendant to require him to make a defence. The Court then read and explained section 88 of the CPC Act to the Defendant in Bislama.
    
13. The Defendant chose to give evidence himself and called evidence in his defence from two other witnesses. The Defendant's case was simply that sexual intercourse took place but that the complainant had consented. His evidence was that upon arrival at his workplace at the VCH, he took his helmet and went down for the drill. After that he went up to the road by church of Christ. He saw the Complainant and told her to stop and she smiled back at him. He told her to follow him to an empty yard. He put his arm around her shoulders. As people were going to work she told him to remove his hand so he did. They reached the empty yard. He went in first. He called to her and she followed him inside. They went to the sitting room and sat on the cupboard. He wanted to kiss her on her tongue and have sex with her in the sitting room. She said okay but ... as it was too open that we should go to another room. We entered the room and I kissed her there and I told her to remove her clothes. She removed her trousers and her panty. Then I had sex with her. While I was having sex with her I heard a noise outside. I told her I would check out the noise to see if someone was spying on us. I went into the first room but no one was there. I returned inside and had sex with her, ejaculating into her. That was the only time I ejaculated. She told me she was taking family planning and she could not be pregnant, so I ejaculated into her. We left the house at 7:00am sharp. We came back to the main road. I asked for her phone. She told me to push my hand into her basket. I looked inside and saw only one phone, a Nokia. There was no sim card inside. I told her I would borrow one from my work mate and use it and that at lunch she could take it back.
    

At the main road I told her to follow me but she told me she would follow the shortcut road back to school. I followed the main road back to work.
I told her to come see me over lunch to take her phone back. She came and stood by the gate looking into our workplace. I went over to see her and she told me she was going into town. That I would keep the phone until later. In the afternoon at 3:30pm she came and stood by the gate. I went to see her and took her hand and we walked to the Vila East School. There we sat down near a light post and told stories. She told me her breasts were sore and also her legs. She told me she would go and take her things and to return to live with me. I told her not to do so, that we should hang around for a while, that our relationship should continue for a bit longer before that happens. She said she felt she would get pregnant. When she left, I went back to work again. We finished at 6pm that day. Normally we finish at 4:30pm, I work at the construction at the Hospital (VCH)."

14. John Ates gave oral testimony in defence. He said he was the storage manager and keeps record of names. He confirmed he knows the Defendant as one of their employees. He confirmed the Defendant was at work for the whole day. He produced a Time Sheet as Exhibit D2.
    
15. George Mael gave evidence in defence. He said he came down from the bus, and that he saw the Defendant and the Complainant walking up towards Sarambetu Church and beyond. He said he saw the Complainant come back to see the Defendant again at 4:30pm.
    
16. From the evidence adduced the Court is satisfied beyond reasonable doubt that-
    
    1. With respect to sexual intercourse without consent:
       
    1. The Defendant had sex with the Complainant.
    2. The Complainant did not agree.
    3. Even if she agreed, The Court found evidence that the Defendant had not only forced her, but that he had threatened her with death threats and that he had caused her to fear for her personal safety.
       

The torn Zipper and panty are clear evidence of force. The bruise on the libia implies force and pressure. The Defendant's own testimony was that the Complainant felt sore on her breasts and her legs, implying force used. He knew the Complainant was not consenting yet, he persisted.

2. With respect to threats to kill, the Court is satisfied beyond reasonable doubt threats were made directly or indirectly to the Complainant. Mr Matan confirmed those threats. Dr Tarere recorded those threats. The police officer recorded the threats. The Defendant had a piece of iron with him that day to reinforce those threats and fears of bodily harm. He knew the contents of those threats.
   

100. With respect to false imprisonment, the Court is not satisfied this offence has been proved beyond reasonable doubt. There is doubt by the Attendance Sheet tendered by the defence. The Complainant did not rebut that evidence. She could easily have done so by calling the Nurse on duty that day. That failure or omission creates doubt in my mind as to the Defendant's guilt.
     

17. The Defendant's evidence lacks credibility, as regards the charges in Counts 1 and 2. The evidence of John Ates is not relevant. The Time Sheet tendered is wrong in that it gives the date of offending being a Sunday when it should be a Wednesday. The Time Sheet gives inconsistent timing for what the Defendant said. It shows he finished that day only at 4 o'clock pm and not at 6 o'clock as he said in oral evidence. George Mael's evidence was unreliable. It did not confirm what the Defendant had in his hands at the time. His evidence was irrelevant to the charges in Counts 1 and 2.
    
18. In Conclusion the Court reaches the following verdicts-
    
    1. In respect to sexual intercourse without consent - Count 1. The Court returns the verdict of guilty.
       
    2. In respect to threats to kill, the Court returns the verdict of guilty.
       
    100. In respect to false imprisonment, the Court returns the verdict of not-guilty. The Defendant is accordingly acquitted of this charge.
         
19. Convictions are accordingly recorded against the Defendant in relation to the charges in counts 1 and 2.
    
20. The Court Orders that the Defendant be remanded in custody until the date of Sentence on Wednesday 11th June 2014 at 9:00am, when he shall be brought up to Court.
    

DATED at Port Vila this 23rd day of May 2014.
BY THE COURT.

OLIVER.A.SAKSAK
Judge