Home | Databases | WorldLII | Search | Feedback Supreme Court of Vanuatu

Public Prosecutor v Melek [1998] VUSC 89; Criminal Case No 003 of 1994 (16 November 1998)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

HELD AT LUGANVILLE/SANTO

(Criminal Jurisdiction)

Criminal Case No.3 of 1994

PUBLIC PROSECUTOR

-V-

TAVUI MELEK

Coram: Mr Justice Oliver A Saksak

Mr William Falau - Clerk

Counsel: Inspector Wilson D Garae, State Prosecutor for Public Prosecutor

Mr Hillary Toa for the Defendant

ORAL VERDICT

The defendant is charged with having sexual intercourse with a girl of 14 years contrary to section 97(2) of the Penal Code Act [CAP. 135]. He does not deny intercourse but challenges the Complainant's age. A short trial was held to determine the age of the complainant. The Prosecution adduces evidence from Dr Adelfa Destura who confirms that at the time of examination the Complainant was 14 years of age. The offences complained of took place in 1993 indicating that the complainant was at the time 13 years of age.

Mr Toa makes a no-case submission submitting that the Prosecution has not provided sufficient evidence to satisfy the Court as to the age of the Complainant. The Defence challenges the doctor's report on the basis that it is based on outdated materials which is itself not corroborated.

I dismiss the application. The Complainant and her mother come from a backway village on Santo, namely Fanafo. The Complainant was dismissed from school at class 2 as a result of pregnancy from this relationship. Her knowledge and understanding is very minimal. The mother is no exception. In cross-examinations they would give contradictory answers to what they give in their evidence in chief. This, is mainly due to their lack of understanding. I believe the Complainant and her mothers evidence as to what they thought the complainant's age was at the time of the offence. Further I believe the Doctor's finding that the Complainant's age was 14 years at the time of examination in or about 1994.

For those reasons I am satisfied that the Prosecution has proved beyond doubt the age of the Complainant and in view of the Defendant's Admission, I accordingly convict the Defendant.

In sentencing him I take into account what has been said on the Defendant's behalf by his Counsel. In particular that he has paid a customary fine of VT 25.000 to the Complainant's mother and a pig and cooked laplap to the father.

I sympathize with the Defendant at the information alleging police brutality and humiliation at jail No 6 during his arrest and detention.

I find insufficient evidence to pursue or consider that matter. But I consider the fact that he has cooperated with police and that he has attended court at all times when his case has been called. I take into account the fact that the defendant has reformed his way of life, now a born-again Christian and his pledge that he would not repeat this action in the future. But this leniency must not be seen as an encouragement to others to do what this defendant has done. You may not be too lucky as this defendant has been.

In the circumstances, it is appropriate that the Court treats the Defendant under Section 42(1) of the Penal Code Act. A conviction is recorded against him but the Defendant is discharged on condition that should he repeat this act within a period of 6 months from today, he will be call upon by the Court and sentenced accordingly for this Offence.

DATED at Luganville this 11th day of November, 1998.

Sealed: 16th November, 1998.

BY THE COURT

OLIVER A SAKSAK

Judge of the Supreme Court