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Public Prosecutor v Kenneth [2002] VUSC 79; Criminal Case 051 of 2002 (27 November 2002)

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

CRIMINAL CASE No. 51 OF 2002

PUBLIC PROSECUTOR

-v-

RANDY KENNETH

Coram: Chief Justice Vincent LUNABEK

Mr. Colin Leo for the Public Prosecutor
Mr. Stephens Saling for the Defendant

Date of Hearing: 22nd November 2002.
Date of Verdict: 27th November 2002.

JUDGMENT

This is trial of the defendant, Randy Kenneth. The defendant is charged with two (2) counts of Indecent Assault, contrary to Section 98 (2) of the Penal Code Act [Cap. 135].

The defendant is a year 9 student of Malapoa College. He has 14 years of age at the time of the commission of the alleged offences charged against him.

The victim L.E.B. of the alleged indecent assault in both counts, is also a student of year 10 at Malapoa College. She is 15 years at the time of alleged incidents.

The particulars of the two (2) offences are as follows:-

In Count 1

It is particularised that Randy Kenneth, you’re from Malekula and you live in Vila as a student at Malapoa College, in or about the month of May 2002 inside the classroom 15 at Malapoa College, you intentionally indecently assaulted L.K. who was only 15 years old at the time of incident.

In Count 2

It is particularised that Randy Kenneth, in or about May 2002 at Malapoa area, you intentionally indecently assaulted L.K. by touching and sucking her private part and she was only 15 years old.

The defendant pleaded “not guilty” to both counts of Indecent Assault. The pleas were taken. The trial proceeded on the basis of Section 81 of the Criminal Procedure Act [CAP. 136].

This is a criminal trial. The law is that the prosecution must prove each and all essential elements of the offence as charged against the accused beyond reasonable doubt. If, at the end of the trial, I am left with a doubt which is a reasonable one, then, it is my duty to apply the doubt to the benefit of the defendant and the defendant must be acquitted of the offence charged against him.

Before the Court can convict the defendant, the prosecution must prove each and all of the following essential elements of the offence of Indecent Assault, contrary to Section 98 (2) of the Penal Code Act [CAP. 135] as charged against the defendant:

1. That the accused intentionally assaulted the victim;
   
2. That the assault, or the assault and the circumstances accompanying it, are capable of being considered by right-minded person as indecent; and
   
3. That the accused intended to commit such an act as is referred to in 2 above;
   
4. That the accused has forcibly assaulted the complainants.
   

The details of the evidence are recorded in the Court file. What follow are the summary of the evidence and the findings by the Court. The defence called the defendant to give evidence on his own behalf. His evidence is on the same equal footing as any evidence given by prosecution witnesses.

In this case, the thrust of the prosecution case in respect to Count 1 are as follows:-

Sometime in May 2002, the victim/complainant L.K. was in a classroom at Malapoa College. The classroom is numbered as classroom 15. The complainant was given a project to do by her teacher Mrs. Tukune. The complainant made her project in room 15 at Malapoa College. The complainant was then joined by one of her friends, Charity, in the classroom. Both girls discussed for a while about Charity’s religion (N.T.M.). The complainant is a catholic. The defendant, then came, inside the classroom and sat next the entrance door. The defendant is also a member of N.T.M. religion denomination. Charity then, left the classroom at about 4 p.m. The defendant moved close to the complainant and sat closer to the defendant’s left side. There was a meeting in another classroom 16 by social science teachers. The defendant, then, placed his hand on the complainant’s left thigh. The defendant moved his hand on the skirt of the complainant. The victim/complainant pushed out the defendant’s hand and asked him to leave her.

The defendant did not leave. He held on firmly on the victim’s hand and told her not to talk loud as there was a meeting in next classroom. The defendant, then, again pushed his hands into the victim’s uniform blouse towards the cleavage of her blouse. The victim/girl pushed out the defendant’s hand. The girl/complainant felt very disgusted. She took her books and charts and went home.

The victim confirmed in her evidence that although the defendant did not touch her private part, he attempted to do so but she refused and put him away.

The defendant in his evidence confirmed the facts as alleged in substance.

The evidence as shown in Count 1 amount to an harassment situation as the victim/complainant told the Court in her evidence.

Section 98 (2) of the Penal Code provides:-

“No person shall indecently and forcibly assault any other person not under the age of 13 years. Penalty: imprisonment for seven years.”

Sexual harassment is not the type of offence which is prohibited under Section 98 (2) of the Act.

Further, even if there is an assault on the victim and the circumstances surrounding the assault amount to an indecent one, an essential element of the offence is missing and not proved by the prosecution. There is no force used by the defendant to indecently assault the girl/complainant.

Therefore, the 4^th element of the offence of indecent assault is not proved beyond reasonable doubt by the prosecution. The defendant must be discharged on Count 1 as charged.

Verdict

In Count 1: Not guilty.

In count 2: The essential elements are similar to those in Count 1.

1. Assault on the victim by the defendant in the bush at Malapoa Area.
   
2. The assault, on the assault and circumstances surrounding the assault are capable of being considered by young minded persons as indecent.
   
3. The defendant intended to commit such an act.
   
4. There is some degree of force used by the defendant to indecently assault her.
   

In count 2, the followings are the evidence and findings.

On the first week of the second school term of 2002, the offence as alleged in Count 2 occurred. It was during a Tuesday afternoon of that week after 4.30pm o’clock. The victim/complainant did her home work at school. At 4.30pm, she was on her way back to Malapoa Estate where she lives with her parents. She then took a short cut road to go home. She walked along side TVL fence at Malapoa Area. She then heard someone calling her from the main road. She saw the defendant walking towards her from the bush. When the defendant reached the victim, the defendant asked the victim for sex. The victim refused and told the defendant that she must go home. The defendant insisted. He, then, holds firmly on her hands, threw the victim’s bag on the ground, pulled her hands and go with her in the bush.

The girl said she was very scarred and paralysed. The boy asked the girl to penetrate her by the anus and in this way the victim won’t feel any pain. The victim refused and took her bag. She tried to leave. She cannot the defendant held her hand firmly. The girl said at this point of time, the defendant masturbated his penis with one hand and held firmly the victim’s hand with the other. The girl was afraid as she said she was not in that situation before.

The defendant then asked the victim to have oral sex with her. The girl refused. The boy insisted. The girl said she was afraid. She asked the boy to leave her so that she could go home. As the defendant insisted, she voluntarily accepted the defendant removed her underwear and suck her vagina while with his other hand he went on masturbating his penis. The defendant then, asked the girl to masturbate his penis. She said she reluctantly masturbated the boy’s penis until he ejaculated.

An incident happened between the victim and the defendant on the said Tuesday at 4.30PM. This is not in dispute. The defendant called the victim twice when the victim walked along side TVL fence at Malapoa Area to go home. This is admitted by the defendant. The defendant also admitted he held firmly on victim’s hand. The evidence of the victim was corroborated by the evidence of another prosecution’s witness: Sale Vurobaravu. The version of fact put by the defendant is rejected. I did not believe the defendant’s version that he and the victim planned or agreed to meet where the incident occurred.

I have listened and considered the evidence in this case. I am satisfied that each and all essential elements of the offence in Count 2 are proved by the prosecution beyond reasonable doubt. The offence as charged in Count 2 is proved against the defendant on the criminal standard of proof.

VERDICT

The defendant, Randy Kenneth, is found guilty of indecent Assault, contrary to Section 98(2) of the Penal Code.

SENTENCE

To come up for sentence if called upon to do so in the 2 years upon the conditions that:

1. Randy must not watch sex videos, or pornographic books.
   
2. Randy shall not commit any offence and convicted for such an offence.
   
3. In the event that Randy breaches those conditions, then, he shall be called upon for sentence.
   

DATED at PORT-VILA, this 3^rd DAY of DECEMBER 2002

BY THE COURT

Vincent LUNABEK
Chief Justice