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

Criminal Case No. 23 of 2002

PUBLIC PROSECUTOR

–v-

ANDERSON TOR

Coram: Justice P. I. Treston
Mr. Macintosh & Mr. Shaw for Public Prosecutor
Mr. Toa for Defendant

Date of Hearing: 3, 4, 5 & 12 December 2003

ORAL RULING AS TO ADMISSIBILITY

In this trial the Defendant has objected to certain recent complaint evidence adduced on behalf of the Prosecution. Written defence submissions were made and the Court has had the opportunity of considering those and hearing submissions of both parties.

In the written submissions, objection was raised to a number of recent complaints including Wendy Garae, Reynolds Bebe, Erina Vuti and Kensley Joe. In fact the recent complaint evidence related to only two of those witnesses. First Wendy Garae and second Erina Vuti.

The defence quite rightly during the course of submission has withdrawn each objection to the recent complaint evidence of Wendy Garae because the defence submissions in relation to that witness relate not so much to the admissibility of recent complaint but the evidence of the complainant and her credibility as a whole and is a properly a matter for submission in closing rather than objection on the basis of admissibility, so their remains to be determined the admissibility of the recent complaint made to Erina Vuti at 7am on the morning concerning this event because it seems that it is common ground that the complainant returned to her home at about 2am, having been dropped off there by the bus driven by the accused.

The objection to the recent complaint evidence is effectively mounted on three heads. First, that the complaint made to Wendy Garae was not the first reasonable opportunity for such a complaint to be made in the factual circumstances surrounding the matter that the complainant was living at home with her mother and grandmother and that it was contended by the defence that the first reasonable opportunity for making a complaint ought to have been to one or the other of those persons, particularly as the relationship between the complainant and the mother was stated to have been a close one.

Second, objection is mounted on the basis that the complaint made to Erina Vuti was not soon enough, bearing in mind the factor that I have already referred to, namely that the complainant came home at about 2am and the conversation with Erina Vuti was not until 7am the next morning. A time delay, it is said, of 5 hours was not reasonable in the circumstances.

The third objection to the admissibility of the complaint evidence was on the basis that the evidence given or the statement given or the complaint made to Ms. Vuti was not spontaneous and was not unassisted and was not unvarnished.

The question of admissibility of recent complaint evidence has been considered by this Court in a decision of the then Chief Justice in the case of Public Prosecutor v Michael Merika reported in volume 2 of the Vanuatu Law Report at page 613. There the Chief Justice, Charles Vaudin d'Imercourt, researched the way that recent complaint evidence has traditionally been dealt with at common law and in particular referred to principles which he had extracted from the decided cases at pages 615 and 616 of the judgment. He said as follows:

"Further to be admissible, a complaint must be made on the first opportunity which reasonably offers itself after the offence and whether this has been done is a matter for the Court before which the complaint is offered in evidence to decide".

A reference was made to a case and he went on to say that:

"If a considerable time has elapsed between the commission of the offence charged and the complaint, it is inadmissible. But the complaint need not need at the very earliest opportunity"

and again authorities were referred to.

"The mere fact that the statement is made in answer to a question is not in itself sufficient to make it inadmissible as a complaint. The question for the Court is whether the statement is spontaneous in the sense that it is an unassisted and unvarnished story of what happened. In each case the decision as to the character of any questions put the relationship between the questioner and the complainant, as well as other circumstances are matters within the discretion of the judge… The fact that the complaint might have been made to others before it was made to the witness who gives evidence of it does not render it inadmissible".

The Prosecution answered the objection to the defence by submitting that the complaint need not have been made to the mother or the grandmother necessarily, that the time delay was insignificant as being a period of 5 hours and that on the evidence the recent complaint made to Ms. Vuti was spontaneous. There was no evidence to suggest that a number of questions had been asked to clarify matters or that any questions asked were of a leading nature. The Prosecution submitted that what was said to Ms. Vuti was an unprompted, lucid account volunteered by the victim. 

I agreed with what the Chief Justice said in the Merika case that simply because complaint may have been made to others before it was made to the victim a witness does not render it inadmissible. There are all sorts of reasons, in my view, why a 16 year old complainant at 2 in the morning, or even earlier or later in the morning at 7am, might have been unwilling to discuss what had occurred with her mother and her grandmother. Elements of embarrassment cannot be excluded and the circumstances were such that I cannot find that the complainant can be criticized at her age and in her circumstances for not seeing her mother or speaking to her mother and her grandmother.

She decided to confide in a friend closer to her age. That time of 5 hours between when she got home and when she spoke to Ms. Vuti is certainly extremely proximate and I take it even further than the Prosecutor is saying that it was prompt indeed in all the circumstances of the complainant and her particular age, experience and with what had happened that night before. In my view it was the first opportunity reasonably presenting itself to her after the offence had been allegedly committed.

As to being spontaneous, the evidence of Ms. Vuti herself satisfies me that it was certainly spontaneous. It was certainly unassisted, it was certainly unvarnished and it was particularly detailed and the evidence of Ms. Vuti is clear that the complainant simply came to her wishing to unburden herself of what had happened the night before and did so, on the evidence, in a way which was spontaneous, unprompted and, as I said, particularly detailed.

What the complainant said to Ms. Vuti was, as the Prosecutor has said, lucid and coherent. I am satisfied that it was voluntary on behalf of the complainant. I am satisfied that the recent complaint statement then was in accordance with the principles as outlined in the Merika case. It was, as I have already said, unassisted, unvarnished and, as one would expect between people of a similar age, it was a confiding of what had occurred in some detail. I cannot say that it is inadmissible simply because in an ideal world the complainant, according to the defence, should have seen her mother or her grandmother and spoke to them first.

This is a discretionary matter and I exercise my discretion in ruling that the recent complaint statement made to Ms. Vuti by the complainant is admissible as a matter of law and will form part of the evidence for consideration by this Court as to the guilt or the innocence of the accused. I rule accordingly.

Dated AT PORT VILA, this 12th day of December 2003

BY THE COURT

P. I. TRESTON
Judge