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Public Prosecutor v Patrick [2003] VUSC 14; Criminal Case No 005 of 2003 (21 March 2003)

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

Criminal Case No. 05 of 2003

PUBLIC PROSECUTOR

-v-

OBI PATRICK

JUDGMENT

The defendant is charged as follows:-

“COUNT 1

Statement blong rong

RAPE – contrary to Section 91 of the Penal Code Act [CAP. 135].

Particulars blong rong

OBI PATRICK yu blong Ambrym/Tanna mo yu stap live long Vila, samtaem long namba 1st January 2003, long Freswota 2 long Vila, yu bin forcem girl ia MAGALIE TAU mo havem sexual intercourse wetem hem long taem ia, agensem will blong hem.”

The prosecution case is this. The complainant is 16 years of age. She was a virgin. About midday on 1st January 2003 she was standing under a pamplemousse tree talking to friends. Serge Atuary and Rodolphe Vira were there. The defendant called her away but she didn’t go. The defendant is a married man with children. The complainant did not know him. The defendant returned later and called her away again. She didn’t go. He came back a third time and told her to come with him. She refused. He said he would break her head if she didn’t go. A friend Serge Atuary was nearby. The defendant told him to be quiet and threatened him. The defendant was holding two stones. He dropped one stone and took the complainant by the wrist. He took her to his house. She was frightened and went into his bedroom.

The defendant started to pull off her T-shirt. She told him she would do it. The same happened with her trousers. She was naked. The defendant took off his clothes. He licked her vagina then put his penis in her mouth. She then lay down and he had sexual intercourse with her. She told him she did not want to, but he continued. He told her to be quiet.

They heard a knock and heard Serge calling out to her. The defendant told the complainant to keep quiet. A few moments later Rodolphe called out. She responded. The defendant held her neck and told her not to call out or he would break her head. She stayed silent. By this time she was crying. Serge threw a pot plant through the window. The defendant put his clothes on went out and chased Serge and they fought. The complainant put on her clothes and ran home. She was bleeding from her vagina. She went out and saw the defendant damaging people’s houses, they were afraid and running away. She also ran off.

The next day she was medically examined. There was evidence of scratch marks to her neck. She complained of a sore wrist, although there were no visible marks. The vaginal bleeding had ceased.

In interview the defendant admitted having sexual intercourse with her, but said it was by consent.

The prosecution called the complainant, Serge Atuary, and Rodolphe Vira. They also called Dr. Ala and Detective Sergeant Maryline George.

The defendant agreed sexual intercourse took place, but stated it was by consent. He said he had drunk alcohol the night before but was not drunk by lunchtime on 1st January. He asked the complainant to come with him. She eventually agreed. There were no threats or force. He did take her by the wrist to lead her, but that was only for a few moments. He said there were others about who could see what was happening or she could turn to for help. He did have stones in his hand but that was only joking towards Serge.

The rest of the way, he says, the complainant followed him. There were a few people about and trucks passing. When he came to his house there were women nearby. He spoke to them. The complainant was on the other side of the road. He went into his house. She was afraid to go into his yard because of the dog. He chased the dog away and she came into the house. They went into the bedroom, took off their clothes. He licked her vagina, he put his penis in her mouth, then in her vagina.

He did not stop her from crying out at all when people shouted for her. He didn’t put his hand on her neck. Any crying out she made was from pleasure. He says he got off the bed, chased Serge away. He came back and continued having sex. She didn’t run away then. When the plant came through the window he ran out and chased the men and fought with Serge and Rodolphe. The complainant left while that was happening.

The defendant says the complainant only alleged rape when the trouble came up over the damage to the houses. He says she had ample time, even if in fear, to run away or seek help. He denied threatening her. He says she followed him into the house.

The defendant gave evidence. Babiti Ihatu gave evidence that the complainant voluntarily followed him. Leanie Fuke gave evidence of being with four other women. She lives next door to the defendant. She saw the defendant and the girl. She said he wasn’t holding her. There was nothing to suggest he was forcing her.

This is a criminal trial. The prosecution must prove their case beyond reasonable doubt. Anything less and the defendant is entitled to be acquitted. This is an allegation of a sexual nature. Whilst I can convict on the uncorroborated evidence of the complainant, I should look for corroboration.

The issue in this case is consent. The prosecution say, the complainant is 16 years, was a virgin and didn’t know the defendant. She only went with the defendant and had sex with him because of the threats and force. The medical examination found scratch marks on her neck. There was not just vaginal intercourse but oral sex. That is remarkable in these circumstances.

The defence say there were a number of moments when the complainant could have walked off or sought help. There were crucial moments when the complainant followed him. He went into the house first. She came in after. A motive is suggested for the complainant making the complaint.

I consider the complainant’s evidence first. I make allowance for the fact she is young and was sexually inexperienced, although the evidence of Doctor Ala tended to suggest she might not have been a virgin.

She gave her evidence calmly and showed signs of distress at intimate moments. The Court was cleared for her to give evidence. It is clear she would not be able to assert herself against a stronger-willed person, particularly an older male. There is a possibility she was simply mesmerised by an acceptance of the directions of an older male.

She accepted she followed the defendant. She says she was frightened of him. She didn’t alert the women because she was frightened of them. She accepted she waited outside then went in the house after him. At one stage she waited outside because of the defendant’s dog, while he chased it away. Inside she agreed he went to take her shirt off. She told him not to and agreed she took off her shirt and then, in the same way, her pants.

There was then the intervention of Serge and Rodolphe. She left and went home. It appears there was more trouble at home because of the fighting and damage than what had happened to her. She left and went to SMET.

She agreed her family had said she must put Obi to Court.

I do not reject the evidence of the complainant. It is difficult to make a clear assessment of what she was agreeing to and what she was not, particularly as she was inexperienced and the defendant is experienced in sexual matters.

The evidence of Serge Atuary and Rodolphe Vira supports the complainant, but is to a large extent consistent with relatives and friends who are angry at an older and married man enticing a girl into sexual acts. There are some important inconsistencies in their evidence with that of the complainant. It is also questionable if they thought the complainant was being raped when the two together, with or without other help did not enter the defendant’s house and stop what was going on. The defendant is not an obviously large or powerful man.

The evidence of Dr. Ala only assisted the prosecution concerning some small scratches.

There was a brief voir dire. I ruled the defendant’s statement to the police admissible. That statement set out in detail the defendant’s version of events. It is consistent with what he says in Court.

He called Babiti Ihatu to corroborate the circumstances of when the complainant went with him. I did not believe Babiti. His manner of giving evidence and the detail he gave led to the assessment that he was helping a friend.

By contrast I do not reject the evidence of Leanie Fuke. She appeared to be honest and reliable. She is a neighbour of the defendant. She saw the complainant and said she did not look frightened. She went into the house after the defendant.

I do not accept much of what the defendant says. He was still drunk from the previous evening. It was obvious the complainant was young and inexperienced. He persuaded her to come with him. He is a man with a wife and children. He knew he should not be doing what he did as far as his position and the complainant’s position were concerned.

There is a very strong suspicion that many of the events that occurred were not with the consent of the complainant. However, I am not satisfied beyond reasonable doubt that the defendant raped the complainant. In these circumstances I must find him not guilty.

Dated at Port Vila, this 21st day of March 2003.

R. J. COVENTRY

Judge.