IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
HELD AT LUGANVILLE/SANTO
(Criminal Jurisdiction)
Criminal Case No.177 of 1998
File No.25 of 1998
PUBLIC PROSECUTOR
class="MsoNormal" align="cen="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
-VS-
LOUIS JIMMY
Coram: Mr Justice Oliver A
Saksak
Mr William Falau - Clerk
Counsel: Inspector Wilson Garae
- for Public Prosecutor
Mr Hillary Toa - for the
Defendant
VERDICT ON NO-CASENSWER
SUBMISSION
Facts:
<
The Defendant pleaded not
guilty to three counts of incest on 18tust 1998. It is alleged thad that
during 1995, 1996 and
1997 the Defendant had had sexual intercourse with
Olis Jimmy his straight sister and that as a result a male child was born.
The girl now about 20 years old in 1994 had a boyfriend with whom she had
her first child a female. This man has since
left her. She further alleged
that when she was 3 months pregnant the defendant started having affairs
with her. This
was in 1995 and continued until 1997.
The Law
The defendant was charged with
incest under section 95 of the Penal Code Act [CAP.135] which reads:
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"95(1) Incest is sexual
intercourse between
(a) &nnbsp;;&nbs.......................
(b) &bsp; nbsp; &nbss;&nbrother and sister,ster,
whether of the whole blood or of the half blood, and whether the
relationship
is traced through lawful wedlock or /span
lass=ormal" style="text-indent: -3t: -34.35p4.35pt; mat; margin-rgin-left: 106.35pt;
margin-top: 1; margin-bottom: 1">
(c) ; .sp...............span>
(2) &nnbsp; No person of or over
the age of 16 years shall hall commit incest,
&pt"> nbsp;
>
>
Penalty, Imprisonment for 10
years.
(3) &nbssp; &nsp; ..............t&quopa>
>
p clasoNormal" ="margin-top: 1; margin-bottobottom: 1"m: 1">
u>
Evidence
Thsecution led evidence by
calling three witnesses as follows:-
(a) & p; bsp; Chief Tavu Mele - A
fo former Policeman, now a chief at Tanavusvus village, South Santo. He is
person
who reported the matter to the Police in June 1998. He did not see
sexuasexual intercourse take place between the defendant
and the girl. He
reported what he was told by other people happened. None of those other
people who saw the defendant
have sex with the girl made statements.
(c) &nbssp;&nnbsp;&nsp; Fsp; Florence Jacob, Poli PolicPolice woman constable attached to Uniform Investigation Branch gave
evidence that she was the interviewing officer who obtained the defendants
admission statement on 3une 1998. She told the
cour court that the defendant
was cautioned and that he gave a statement willingly without being forced.
That the statement
was read back to the defendant after which he placed his
signature.
No case Submissspan>
<
Mr Toa for the defendant made
application that on the evidence presented by the Prosection there was no
prima facie case
made out. He submitted that the prosecution had not proved
that the defendant was straight brother of the girl, Olis Jimmy.
The
Prosecution had not proved that the child alleged to be the defendant's was
related through blood which was a very
technical issue to be proved. He
submitted that the Chief's evidence was hearsay evidence and could not be
admitted.
Reply
lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
In reply Inspector Garae for
the Prosecution submitted that there was sufnt evidence to show that
at
there was a prima
facie case against the defendant. He submitted that Olis
Jimmy was 20 years old and she knew what she was talking about. Further
he
submitted that because the defendant had made admissions in his statement to
the Police on 30th June 1998, that was
sufficient to convict him.
Court Finding and Ruling
I found and rule that there was
no prima facie was case made out by the Prosecution against the accused for
the following
reasons:-
(a) &&nsp;; Sspndara of Proof
oof
required in Ciminal Cases is proof beyond reasonable doubt. This is the
required
standard as stipulated in section 8 o Penae Actt is a ststandard. The ProseProsecutiocution hern here wase was requ required to
prove that the
defendant is the girl's straight brother. The father or mother of the
defendant did not give evidence
in court. They could have done and to show
birth certificates if any that the defendant and Olis Jimmy were their son
and daughter.
(b) p;&nbbsp; Tsp; The rule rule against
hearsay evidence. This is well-established principle of law. No hearsay
evidence can be admissible. Here I agree that Chief Tavu Mele's evidenc
rsay evidence ande and I ru I ruled that it was inadmissible.
(c) p;&nbbsp;&nsp; Tsp; The rule as to
corrocorroborroborration. In cases of this nature it is necessary that the girl's
evidence should be corroborrated by evidence of a further witness. Someone
by the name of Lolo Jurthe defendant's uncle
who awho according to Chief
Mele investigated the affair should have been called to give evidence of his
findings. He
was not called. The result of his findings came through Chief
Mele. That was hearsay evidence which is inadmissible.
For those reasons and in
accordance with section 135 of the Criminal Procedure Code Act [CAP.136] I
ordered that:
(1) ; Tae ch oges
incesincest against the defendant be dismissed.
>
(2) &nbssp; The defendant be
acq acquitted forthwith.
 an>
DATED at Luganville this 6th
day of October, 1998.
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BY THE COURT
OLIVER A. SAKSAK
Judge of the Supreme Court
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