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Public Prosecutor v Shem [2003] VUSC 74; Criminal Case 054 of 2002 (7 March 2003)

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

Criminal Case No. 54 of 2002

PUBLIC PROSECUTOR

-v-

PAUL SHEM
SAM KOILO

RULING ON VOIR DIRE
RULING ON NO CASE TO ANSWER SUBMISSION

Both defendants made signed statements to the police. The prosecution rely on those statements. The defence says they were not voluntary.

I have heard the evidence of Police Officer Flora Songi and George Twomey for the prosecution and the two defendants. Each officer gave evidence to say there were no threats, force or inducement. They each accepted to a greater or lesser degree the defendants were superficially injured. This occurred on arrest on 12th October.

The statements were made on 23rd October. The two defendants had been in custody in cell No. 6 at the police station. They were both serving prisoners and had escaped.

The defendants say they were assaulted and beaten at various times. Sam Koilo’s beating appears to be greater than that of Paul Shem. Koilo is described as a ‘serial escaper’.

The alleged rape took place in the early morning of 12th October. The defendants were arrested that day. The complainant’s statement is dated 23rd October, the same day as the defendants’ statements. It is not clear from the evidence if the alleged rape was reported on 12th or 23rd. Either the complainant for no good reason on the face of the evidence delayed her report 11 days or she made it on 12th and interview was delayed 11 days. In either event both defendants had been kept in cell 6 for that time and had suffered some assault before giving their statements.

I do not say I accept everything the defendants said on the voir dire. However, I am not satisfied when they came to make their statements that either was made voluntarily.

The only remaining evidence is that of the complainant. I was not satisfied with her evidence. Even making allowance for the fact that people will behave very differently when giving evidence in this kind of case, her manner of giving evidence lacked the attributes one would expect. She smiled relaxedly towards the defendants as she left the witness box. It did not appear to be one of the nervousness or relief at having finished. She knows the defendants and associated with them.

There is no other evidence. In these circumstances I am not satisfied there is a prima facie case to answer. I dismiss the charges.

Dated at Port Vila, this 7th day of March 2003.

R. J. COVENTRY
Judge.