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Public Prosecutor v Nasamal [2000] VUSC 55; Criminal Case No 007 of 2000 (18 October 2000)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

Criminal Jurisdiction
CRIMINAL CASE NO. 7 OF 2000

PUBLIC PROSECUTOR

-v-

JOSEPH NASAMAL

Coram: Vincent Lunabek J, Acting Chief Justice

Kayleen Tavoa for the Public Prosecutor
Hillary Toa for the Defendant

JUDGMENT

This is the trial of the defendant, Joseph Nasamal. Joseph Nasamal was charged with the offence of rape contrary to section 91 of the Penal Code Act (Cap. 135). The charge was particularised as follows:

That on or about 23 April, 2000 at Namburu Area, Nasamal of Tanna Island, who lives in Port Vila, used force (by showing a small knife) to a girl – Serah Batick and have sexual intercourse with her without her consent.

The law is that in a criminal trial such as this, it is the duty of the prosecution to prove each and all the elements of the offence as charged (rape in this case) beyond reasonable doubt.

The essential elements of the offence of rape are as follows:

1. That the defendant had sexual intercourse with the girl/woman complainant.

2. That girl/woman did not consent to have sexual intercourse with the defendant on 23 August 2000.

For the defendant, to be found guilty, the prosecution must prove each and all elements of the offence of rape as set out above beyond reasonable.

In this trial, it is not disputed that on 23 April 2000, the defendant Joseph Nasamal had sexual intercourse with the complainant, Serah Batick.

The substance of the prosecution case is that he the girl complainant, Serah Batick did not consent to have sex with the defendant and/or that the consent of the complainant was obtained by force on 23 April 2000.

The prosecution called 4 witnesses: the prosecutrix Serah Batick, Police Officer Flora Songi, Doctor Thomas Sala Vurobaravu and Barry Johnson.

The defendant did not give evidence on his own behalf, nor call witnesses to give evidence in support of his defence. By doing so, the defendant, Mr. Joseph Nasamal exercises his legal right to remain silent and he should not be criticised for having not done so. Certainly not by this Court. There was no evidence advanced in his defence.

He forced the girl to take off her cloth behind the bush kitchen. She refused. Suddenly there was light in the house, he told the girl not to make noise. The defendant pushed her to go first and he followed her with a small knife.

They went to the main road and the dant held the victim’s T-shirt to go across the road toad towards the house of Sato Kilman and to the dark corner. He forced her to climb the rock (stone) behind Sato Kilman’s house. He forced her to take off her cloth. She wore a T-shirt and trousers. Then the defendant had sexual intercourse with her 2 or 3 times at that time.

The door of the house was not closed. She could not shout. She was afraid the defendant used the knife on her. On that Easter Sunday early morning, she wore a T-shirt, and when the defendant forced her to have sexual intercourse behind the bush kitchen, he used the knife and stick the victim with the knife and broke her T-shirt at her mid-back side (see Exh.P1).

These facts were corroborated by the evidence of the Police Officer, Flora Songi and Dr. Sala Vurobaravu.

Now, as I note earlier on, the defendant exercises his legal right on silent and did not call any evidence to support his defence.

The question to be decided in the end by me, as the Judge of facts is whether, on the whole of the evidence before me, I am satisfied beyond reasonable doubt that the defendant is guilty of the offence as charged.

There is no dispute that on 23 April 2000 the defendant Joseph Nasamal had sexual intercourse with the victim complainant, Serah Batick. This element of the offence has been proved beyond reasonable doubt.

There are also overwhelming evidence that the victim complainant did not consent to have sexual intercourse with the defendant on 23 April 2000. The issue of consent can be summarised as followed:

· &nnbsp; sp; whether before the sexual intercourse between the defendant and the girl complai the said to havo have e sex sexual intercourse with the defendant.

I am satisfied that the sexual intercourse occurred between the defendant and the girl complainant without her consent and/or if her consent is obtained then, it is obtained by force or by means of threats or intimidation.

This element of the offence of rape has been proved beyond reasonable doubt.

VERDICT

I find the defendant, Joseph Nasamal, guilty of the offence of rape contrary to Section 91 of the Penal Code Act, [CAP 135].

DATED at PORT-VILA, this 18^th DAY of OCTOBER 2000

BY THE COURT

VINCENT LUNABEK J
Acting Chief Justice