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

CRIMINAL CASE NO. 157 OF 2014

PUBLIC PROSECUTOR

V

JACK WARESUL

Coram: Justice Mary Sey
Counsel: Mr. Damien Boe for the Public Prosecutor
 Mr. Eric Molbaleh for the Defendant

Date of Hearing: 04 August 2015
Date of Judgment: 19 August 2015

JUDGMENT

1.	The Defendant is charged with one count of Sexual Intercourse without consent contrary to Sections 90 & 91 of the Penal Code Act [CAP.135]. The Particulars Blong Wrong state that “Jack Waresul samtaems long namba 25 August 2014, long yard blong University blong Soat Pacific, long area blong Beverly Hills, yu bin gat sexual intercourse wetem girl ia Ms. I [whom I will not name to protect her identity] where long taem ia hemi no long tingting blong hem.” The Defendant has denied the charge and he has pleaded Not Guilty.

Relevant Law 

2.	Sexual intercourse is defined under Section 89A of the Penal Code Act [CAP.135] in the following language:

"For the purpose of this Act, sexual intercourse means any of the following activities, between any male upon a female, any male upon a male, any female upon a female or any female upon a male:

(a) the penetration, to any extent, of the vagina or anus of a person by any part of the body of another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorized by law; or

(b) the penetration, to any extent, of the vagina or anus of a person 	by an object, being penetration carried by another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorized by law; or

(c) the introduction of any part of the penis of a person into the mouth of another person; or

(d) the licking, sucking or kissing, to any extent of the vulva, vagina, penis or anus of a person; or

(e) the continuation of sexual intercourse as defined in paragraph (a), (b), (c) or (d); or

(f) the causing, or permitting of a person to perform any of the activities defined in paragraph (a), (b), (c) or (d) upon the body of the person who caused or permitted the activity."

Section 90 provides that:

"Any person who has sexual intercourse with another person:
Without that person's consent; or

(a) 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.”

Section 91 prohibits the offence of sexual intercourse without consent and sanctions it with a life imprisonment sentence.

3.	 This being a criminal trial the prosecution bears the burden of proving the charge against the Defendant beyond reasonable doubt. This means that the prosecution must produce evidence that establishes each and every element of the offence charged to the satisfaction of this Court beyond reasonable doubt. The accused need not prove his innocence. 

4.	In McEwen v Public Prosecutor [2011] VUCA 32, the Court of Appeal in dealing with an appeal against conviction on a single charge of sexual intercourse without consent said: 

“13. There are three essential elements of any count of rape. First, that there was intercourse (which is very widely defined) and there is no question that each of the activities which occurred constitute sexual intercourse in law.

14.	Secondly, there was no consent by the complainant. In this case, the judge found as a fact that the complainant did not consent because she was mistaken as to the identity of the man she was involving herself with.

15.	It is an interesting concept that a woman can actively, willingly and enthusiastically involve herself in sexual activity, but if she believes a different person is involved it can be said to be without consent. The law recognises that that can occur and we see no reason to differ from the judge's assessment that what occurred was not consensual because she was mistaken as to the identity of her lover. 

16.	Where we part company with the trial judge is on the fundamental plank that the charge is against this man and the third element requires proof beyond reasonable doubt that he had a guilty mind.

17.	Although the law in Vanuatu does not statutorily identify this third element, as is the case in some jurisdictions, it is a fundamental matter. It is of profound importance that the prosecution proves beyond reasonable doubt that the man did not believe on reasonable grounds that the complainant was consenting at the time that the intercourse occurred.”

5.	 In this present case, the essential elements the prosecution must establish beyond reasonable doubt are that: 

(a) The defendant Jack Waresul had sexual intercourse with the complainant Ms. I;
(b) Sexual intercourse took place without the consent of Ms. I; and
(c) The Defendant Jack Waresul did not believe on reasonable grounds that the complainant Ms. I was consenting at the time that the intercourse occurred.

6.	Before the prosecution case commenced, Section 81 of the Criminal Procedure Code [CAP. 136] was read and explained to the accused. That section reads: 

'In every criminal trial in which a plea of not guilty has been entered, the judicial officer presiding shall, before the prosecution case is opened, read aloud to the accused the following statement of the presumption of innocence' –

"In this trial you will be presumed to be innocent unless and until the prosecution has proved your guilt beyond reasonable doubt. It is not your task to prove your innocence. If at the end of the trial, any reasonable doubt exists as to your guilt, you will be deemed to be innocent of the charge and will be acquitted"

The Evidence

7.	The prosecution called the complainant Ms. I and Constable Kevin Kerry Boe as witnesses. Ms. I told the Court that she is now 18 years old. She lives with her aunt at Fresh Water 4 and she is in year 11 at Epauto Adventist School at Fresh Water 1 in Port Vila. In 2014 she attended school at Vila North and she was in year 10. She said that on 25 August 2014, she finished school at about 10 o'clock in the morning and she then went to see her mother at the Market in Port Vila and she stayed there until 3 o'clock in the afternoon. Her cousin joined her at the market that afternoon and they walked together in town where they came across the Defendant and three other boys. She said the boys, in particular, the Defendant, whistled at her and she then waved to them. She said she was walking from the Market to Evergreen office by Anchor Inn in town and she crossed the road by Evergreen and the boys followed her and crossed the road as well. 

8.	Ms. I went on to state that her cousin then stopped and took a bus there and that she wanted to take the bus but the Defendant asked her not to take the bus but to follow them. She said that she and the four boys turned around and walked back to the library which is by El Gecko restaurant in town. She said at the library she asked the Defendant his name and he pointed to a tattoo on his hand and that the tattoo looked like John or James. She said that she and the four boys took the road from El Gecko and walked straight to LAM store and from there they then followed the straight road from LAM store to CNS building by the Port Vila Municipal Council's office and turned up the hill to the road leading to the Reserve Bank Building. She said she and the Defendant took a photo in front of the RB building before proceeding to the Joint Court area because the defendant had told her that they were going to Joint Court area to see his aunt or mother. Ms. I said that she was thinking of stopping a bus to go home but the defendant convinced her that she should still follow them through a short cut around the Chief Justice's residence to the main road by Computer World near the USP round about. She said she saw the road to her house at Fresh Water and she wanted to go home but the Defendant convinced her to keep following them. 

9.	The complainant said she and the boys including the Defendant then continued walking along the road leading to the junction where the road divides into two with one leading to Korman stadium and the other to Montmartre and Beverly Hills. She said they took the road to Montmartre and Beverly Hills. Then there is a junction and the road continues to Montmartre and there is a turn to Beverly Hills. They took the road to Beverly Hills and that road starts by climbing a hill. She said the fence of USP also turns up the hill. She said close to the bottom of the hill in the fence of USP there is a hole in the fence and the Defendant asked her to go through that fence. She said she replied: "what is the main road for?" So they continued climbing the hill on the main road. At the top of the hill, she said she was tired and so she sat down on a rock to have a rest. By that time, the three other boys were still coming up the hill but still somewhere close to the bottom of the hill. She said while sitting on the rock, the Defendant took her left hand and told her that they should go through another hole in the fence of USP close to where she was sitting on the rock. So they went through the fence and went inside the USP compound where it is bushy with tall trees. She said after they went through the fence, the defendant was not holding on to her left hand anymore but made her to walk in front and he was walking behind her. She said on their way the defendant asked her if he could kiss her. She then told him that she was sick and on her monthly period. She said the defendant said "I know, I know" and was kissing her but she was not interested.

10.	Testifying further, Ms. I said "we took the shortcut from USP and from there we walked up the road going to Beverley hills. There was a hole in the fence and he told me to go through the hole in the fence. By then the others were standing by the road on the right side. We were on the left side. I asked him what was the use of the road and why we should take the fence that was when we took the road. 

Whilst we were walking up the road by where the far road ended it was dusty. The area is Beverly Hills. Upon reaching the top I felt hungry and I was tired so I sat on a rock. He came and took hold of my left hand and forced me to walk.

The others were still standing by the same spot where he had told me that we were going to go through the fence. He took me to a road that had fence and people were standing on the fence.

I asked him where the road leads to and he said to USP Park. He was speaking on his phone in his language. He grabbed hold of my shoulders and said "I want you to kiss me" I saw the way he was acting so I told him I was sick and that I was on my monthly periods. He replied "I know, I know" he forced me and started kissing my mouth. We turned around and starting going back towards the bush. Where he was kissing me was on a road but it was bushy. There were bananas and it was like a slope. There was a huge stone. He took of my clothes. First he removed my bra and then he was sucking on my left breast. I was struggling but because he was bigger than me I couldn't escape.

Then he was trying to remove the shorts I had on and at the sometime I was trying to pull it back on. He then reached down and he pulled down my shorts and my underwear. After he removed my clothes he told me to lie down on the rocky place. He was trying to have sex with me and I was looking for a stone and then he puts his penis in my vagina. It was painful I felt pain I was struggling but couldn't do anything. It was about 5 minutes. His penis was going in and out in and out and I was struggling and whilst this was happening his phone rang. He spoke in his language and after that he started whistling. I heard him saying which road it is to the others. After talking on phone he removed his penis and he was sitting down whistling. I reached out to grab the penis because I wanted to twist it I was sitting and he was sitting in front facing me. I recalled what my mother had told me that for boys if you do something to their penis it is going to hurt them because their lives depend on their penis. That was why I reached out. He said "what are you trying to do?" I was holding on to it and trying to twist it and that was when a boy came. I let go of my hand and that was when he took his shirt and ran off."

11.	During cross-examination it was put to the complainant that whilst they were at LAM store the Defendant had asked her if he could have sexual intercourse with her and that her response was "where?" However, she denied that allegation and she said she had not consented to the sexual intercourse. She agreed she had lied to the Defendant that her name was Jessica and she said she had given him a false name because she knew he was also going to lie to her about his name. She confirmed that the incident had taken place in the afternoon by 4 pm. She was asked why she had followed the Defendant and the other four boys all the way from town to the USP compound and she said she still believed he was taking her to USP Park and then to Fresh Water 4. She agreed she had her bus fare of 150 vatu in her pocket and that she could have used that fare to catch a bus to go home. She agreed that it was not possible for her to catch a bus in the bush. When it was put to her that she had followed Jack into the bush to go and have sex she denied counsel's suggestion. She said she did not cry out for help and for people to show her the road because she did not know "that that problem will happen". She said she was not lying and that she had told the police the truth.

12.	The complainant was re-examined by prosecuting counsel Damien Boe. She said she did not run away because the Defendant was walking behind her and that she would have run away if she was walking behind him. She also said that while the Defendant was pushing his penis into her vagina she had struggled and she had tried to pick up a stone but she couldn't because he was bigger than her and that if she had got the stone maybe she would have hit his head.

13.	The second witness for the prosecution was constable Kevin Kerry Boe. He told the Court he had worked in CID and serious Crime Units for over two years and that one of his duties is as an investigator of criminal offences such as murder, unlawful entry, theft, homicide and others. He said he has now investigated roughly 20 plus cases. He said he could recall this criminal case and that he had witnessed the interview which took place with the Defendant at the investigation office in the CID. The witness produced and tendered the interview record, the Defendant's statement and the doctor's report dated 25th August 2014. 

These documents were admitted in evidence without objection from defence counsel and marked as "Exhibit A, Exhibit B and Exhibit C" respectively.

14.	I shall now turn to consider the defence put forward by the Defendant who, having understood his rights under Section 88 of the CPC, elected to give evidence on oath. There is in fact little conflict or dispute as to precisely what occurred between him and the complainant. However, where they part company in their evidence is on the issue of consent. The Defendant said that when they were at the LAM store he had asked the complainant if he could have sexual intercourse with her and that she did not have any objection to that and instead she had asked the Defendant where they will have sex. 

15.	The Defendant confirmed the route they had taken from the time they had met the complainant in town until the time they climbed the hill to Beverly Hills. He said it was true that he had suggested to the complainant that they should go through a hole in the USP fence. He confirmed that the complainant had then said "main road hemi blong wanem?" and that as a result they had kept walking on the main road to the top of the hill. He confirmed that at the top of the hill the complainant had said she was tired and so she had sat down on a rock to rest. The defendant also confirmed that while the complainant was sitting down, he had taken hold of her left hand and that they had gone through another hole in the fence of the USP compound at the top of the hill into the bush where there are tall trees. He said that when he was taking her to the USP compound it was for him to go and have sex with her. 

16.	The defendant said he had kissed the complainant where they had sex but that there was no objection from the complainant and that instead it was more like kissing each other. He said he and the complainant then had consensual sexual intercourse and that they were both involved in it and they were holding each other during the sexual intercourse. He said the complainant did not try to reach for a stone when they were having sex to hit his head as she said in her evidence.

17.	During cross-examination the defendant said that he had asked to kiss the complainant at the place they were going to have sex. He denied she had told him that she was sick and having her monthly periods. He denied saying "I know I know." He said that he just stood there and that he did not touch the complainant and that she had removed her shorts and her underwear herself. He said that he just saw that she was wearing two panties and that after that they had sex he said he did not see blood or any other substance even on his penis. He also said he did not see the complainant reaching out for a stone to hit him with it nor did she cry when he was having sex with her. He said that it was when the complainant had heard his uncle and another boy coming and maybe she thought that they also wanted to have sex with her and so she grabbed his penis and twisted it. He said he asked her "what are you trying to do?" He said some boys had chased his uncle and as they were coming Joseph Tate had called and asked where he was and he had told him exactly where he was and that Joseph came and stood behind the stone. He said he did not run away and that the complainant started crying when she saw his uncle. He said he stood there and she was crying loudly and that he didn't know what to do so he walked away. 

18.	It is undisputed that sexual intercourse took place between the complainant and the Defendant. The sole issue is that of consent. The complainant says that she did not consent whereas the Defendant says the sexual intercourse was consensual. The Court is required to be satisfied beyond reasonable doubt as to the absence of consent which necessarily entails a consideration of all of the evidence including the testimony of the Defendant before arriving at a conclusion on this essential element or ingredient. 

19.	Having carefully considered the totality of all the evidence adduced before this Court, I find that the essential elements the prosecution has proved in respect of this charge of Sexual Intercourse without consent are that:-

 a) 	On 25 August 2014, the Defendant Jack Waresul had 	sexual intercourse with the complainant Ms. I and that this involved the penetration of the vagina of the complainant by the penis of the Defendant; 

 b) Secondly, there was no consent by the complainant Ms. I. 

20.	However, being mindful of the Court of Appeal's decision in McEwen v Public Prosecution (supra) I have gone on to consider the third element set out in that case. The Court said: "it is a fundamental matter. It is of profound importance that the prosecution proves beyond reasonable doubt that the man did not believe on reasonable grounds that the complainant was consenting at the time that the intercourse occurred."

21. The question is: Did the Defendant reasonably believe that the complainant was consenting? There is evidence of a discussion having taken place between the Defendant and the complainant at LAM store about both of them having sex before the sexual intercourse occurred. It is also the Defendant's evidence that when he was taking the complainant to the USP compound it was for him to go and have sex with her. 

22.	In his closing submissions, defence counsel Mr. Molbaleh submits that, as the complainant had followed the Defendant and the other three boys from the Centre of the town to Beverly Hills some two kilometers away, the Defendant would have been left in a position to reasonably believe that the complainant had consented to having sexual intercourse with him. Counsel further submits that if the complainant wanted to go back home to Fresh Water 4, she had an opportunity to do so when they were standing outside Computer World. There was no need for her to go through a hole in the USP fence and then take the short cut by the bush road with a boy she never knew. Counsel submits that the Defendant believed the complainant was consenting and that this was an ideal road to take to go and have sex in a place where no one can see them.

23.	As I mentioned earlier on in this judgment, this being a criminal trial the prosecution bears the burden of proving the essential elements of the charge against the Defendant beyond reasonable doubt. The accused need not prove his innocence. 

24.	Judging from the evidence adduced, I am not satisfied that the prosecution has proved the third element in this case beyond reasonable doubt. I am inclined to accept the Defendant's evidence as well as defence counsel's submissions on this fundamental matter and this has raised some doubt in my mind. Needless to say, the benefit of the doubt must be given to the Defendant.

25.	In the result, I find that the prosecution has failed to prove beyond reasonable doubt that the Defendant Jack Waresul did not believe on reasonable grounds that the complainant was consenting at the time that the intercourse occurred. I therefore find the Defendant not guilty and he is hereby acquitted and discharged accordingly.

Dated at Port Vila this 19th day of August, 2015.

BY THE COURT

M.M.SEY
Judge