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Public Prosecutor v Shem [2003] VUSC 67; Criminal Case No 039 of 2003 (10 December 2003)

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

Criminal Case No. 39 of 2003

PUBLIC PROSECUTOR

-v-

REUBEN SHEM
EGAN JONAS

Coram: Justice Treston

Mr. Mirou for Public Prosecutor
Mr. Kabini for both Accused

Date of Hearing: 8, 9 and 10 December 2003

JUDGMENT

Each of the accused is charged with rape under section 91 of the Penal Code [CAP 135].

The particulars are that each accused is charged that they are from Emau island but live in Vila and sometime around 12 July 2003 in the Malapoa Area, they are charged that they had sexual intercourse with the complainant Leingire Ben without her consent at that time.

I remind myself that it is the judge's responsibility to decide all questions of fact and to decide what evidence he will accept or reject or what weight he will give to any part of the evidence. I remind myself I must come to my judgment solely upon the evidence, which is placed before me in this court, and I must consider the whole of the evidence when considering my judgment.

When I consider the oral evidence I must take into account not only what had been said but also how it had been said because how I assess the demeanour of a witness can be valuable aid in judging his or her reliability and credibility. I must be objective and reach my decision without being influenced by prejudice or sympathy. It is the judicial responsibility to be impartial and apply common sense and knowledge of human nature.

Under section 81 of the Criminal Procedure Code [CAP 136] I am mindful that each of the accused is presumed to be innocent unless and until the Prosecution has proved their guilt beyond reasonable doubt. There is no onus on the accused to prove their innocence. And if at the end of the trial any reasonable doubt exists as to their guilt, the accused will each be deemed innocent of the charge and will be acquitted. The contents of the Section were read out to the accused before the Prosecution case.

Proof beyond reasonable doubt means the Court must be sure or satisfied of guilt before a judgment of guilty can be entered. I have already decided that there was a prima facie case made out against the accused and their lawyer did not dispute that. As a result I ensured that the Section 88 of the Penal Code was complied with, indicating to the accused that they were entitled to give evidence on their own behalf in addition to calling other people as witnesses. The accused were advised that they were not obliged to give evidence and could elect to remain silent but that if they did not give evidence that would not lead to an inference of guilt against them. They elected to give evidence and to call two additional witnesses.

I remind myself, that I am entitled to draw inferences or conclusions from facts which have been put to me in evidence. Conclusions are not guesses rather they are logical reasonable and fair deductions from facts have been proved. In this case the Public Prosecutor has asked the Court effectively to draw inferences from the evidence of the complainant and the Prosecution witnesses and to find that from those conclusions the charges against each of the accused has been established. I remind myself of course in hearing this case that I am not here to speculate nor am I here to guess.

I have referred to the Penal Code. Section 91 provides that no person shall commit rape. Section 90 defines rape and for the purposes of this trial any person who has sexual intercourse with a woman or a girl without her consent, or with her consent if the consent was obtained by force or by means of threats or intimidation of any kind or by fear of bodily harm, commits the offence of rape. The offence, the law says, is complete upon penetration.

It was clear from the beginning of this case, when the issues were defined that the issue is not whether or not these accused had sexual intercourse with the complainant. The issue is whether that was without consent or if it was with consent if that was obtained by force or means of threats or intimidation of any kind or by fear of bodily harm.

The essential ingredients of a count of rape are that it was the accused who were involved, that it took place at the place and time and date as alleged and that there was sexual intercourse which as I have said is complete upon penetration and for the Prosecution to succeed it must prove that that was without consent or on the basis of the definition I have given without true consent.

Consent in the context of a rape means a consent given by a person who is able to understand the significance of what is to happen and who is able make a full rational decision as to whether to consent or not. Any consent must be a freely given one and it is important to distinguish between a consent that is freely given and submission to what the complainant may regard as unwanted but unavoidable. For example submission by the complainant because she was frightened or because of what might happen to her should she not give in, is not true consent. Equally submission because the person feels trapped or threatened is not consent. The fact that a person does not protest or physically resist or ceases to do so is not of itself to be taken as consent. Consent may be by words or conduct or by combination of both. Clearly the legislation provides, from the definition that I have given, that consent in certain circumstances if obtained by force or by means of threats or by means of intimidation of any kind or by fear of bodily harm is not true consent in terms of definitions that I have just given.

As to the evidence in general terms the scenario as the Prosecutor said in opening, was that on the evening of 12 July 2003, the complainant Leingire Ben a 31 years old mother of three children from Ifira, was returning home after attempting to visit her husband who was in custody. It was about 10 o'clock in the evening when she went to a nakamal and had a shell of Kava, She then went to a black market and bought some alcohol and consumed a little more and about 3am in the morning she saw a red Mitsubishi taxi and saw someone inside who she knew, seated in the back seat, Peter Kalmark a witness. Each of the accused Mr. Shem and Mr. Jonas were in the vehicle and she got into the vehicle knowing the person in the back. During the course of the driving she overheard the two accused speaking in their mother tongue of Emau. She said she heard what they said that and I will refer to the evidence in a bit more detail in a moment. The accused Mr. Jonas was talking about having sex with her. She called for the man to stop. She wanted to jump out but the vehicle was going too fast and she couldn't. She was frightened. The accused Mr. Jonas when they stopped at a small side road off the main road along the coast of Malapoa, pulled her out of the vehicle, she said, by her hand. She cried out in details I will give shortly. Mr. Shem, she said, threatened her. She did not run away. Mr Jonas pulled her away from the car, ripped her clothing, grabbed her breast, sucked one breast and then forced his penis inside her vagina and had sexual intercourse with her. After ejaculating, he left her and then the accused Rueben Shem also came and had sexual intercourse with her in a similar fashion, she was told not to run away. She was struck later on by Mr. Shem one of the accused and ultimately they drove her home.

A formal complaint was not made until the 17 July 2003, the accused were subsequently arrested and now face trial.

In detailed evidence, Mrs. Ben confirmed that as they drove along she heard Mr. Shem and Mr. Jonas talking and saying that they will go and have sexual intercourse with her. She said that Mr. Shem said that he would go first then it would be Mr. Kalmark's turn and then the driver Mr. Jonas's turn. She said that when she heard this, she sworn at Mr. Shem and said 'what are your talking about?' She told them to stop so she could jump out of the taxi but they drove on quickly. She tried to tell them to slow down but they wouldn't listen and headed towards Malapoa, past the field and turned down a little road going to the beach and that is where they stopped.

On arriving there she said that she and Mr. Kalmark sat in the taxi and the driver and Mr. Shem got out. She said that the accused Mr. Jonas came to the door, opened it and pulled her out. She said she didn't want to but he just pulled outside and told her to go down so he could have sexual intercourse with her. She called out to him that she didn't want to but Mr. Shem said if she ran away he would assault her. She said when Mr. Jonas told her to go and lie down she did this because she had heard Mr. Shem saying those words to her. He had pulled her out of the car with her right wrist she did not want to and told him that, but he pulled her all the more. She went and lay down even though she did not want to but she had in mind what Mr. Shem had said to her. She did not want him to have sexual intercourse with her but he broke her bra on the right side, ripped the left side pocket on her pants and tore her panties. He forced himself on her and had sexual intercourse with her. He sucked her breast and then forced his penis into her vagina. After he ejaculated he came out of her and when she wanted to get up he said lie there and called Mr. Shem to come over. She said that Mr. Jonas stood by her side and didn't go away until Mr. Shem came over and also had sexual intercourse with her. He also took out her breast from her bra and sucked it and put his penis inside her vagina. Once more she said that she should not invite him to do that and wanted him to do that but because he had threatened to assault her she just lay there.

The shorts, the panties and the bra were produced in their damaged state. After she had intercourse with Mr. Shem she put her clothes back on and went back to the car, which had broken down. She said they were fixing it she tried to run away but at that stage Mr. Shem assaulted her punching her in the right side of the head causing her earring to fall off. He told her to go back where the taxi was and she went back there and they dropped her home.

The complainant said both of the accused were drunk and although she had had something to drink it was only one rumcola since they had picked her up. In cross-examination she remained firm on her evidence and denied being given money. She denied sucking Mr. Shem's penis and she thought that Mr. Kalmark did not assist or do anything because he was probably scared of the two people as well.

The complainant said when she got out of the taxi, her husband was there and he bashed her on the head with a torch and she was too scared to say anything until the matter had cooled down after a few days.

Mr. Kalmark said that he recalled the conversation about the three of them having sex with the complainant but he had said nothing to that. He said that the complainant had told the others to stop so she could get out but they just drove on. He recalled when the taxi stopped both the defendants got out and Mr. Jonas came around open the door and pulled the complainant out of the taxi. She was saying "no. no. no" and Mr. Jonas told her to come outside the taxi or they would assault.

Mr. Kalmark said that he wanted to help the complainant but he was scared they would assault him so he stayed inside the taxi. They were very drunk and he denied giving the complainant any money for sex.

He was still in the car when the complainant came back after the other two came back and then he got out of the vehicle, went towards the road and then called another taxi and as he was leaving he saw the accused Mr. Shem stand and the victim fell down on the side of the road.

Under cross-examination he said that he had made no attempt to stop the two accused because he was scared to talk or say or do anything because they might have assaulted him.

The husband of the complainant confirmed that he had been in custody on the evening of 12^th July 2003 until the morning of Sunday, 13^th July 2003 because he had been intoxicated the night before and was kept in custody because of his misbehaviour until he was sobered up. He said that he had come home in the early hours of the morning and had seen his wife alight from a taxi and noted that the trousers the pocket of the shorts were ripped. He said he went towards her and had a torch and bashed her with it on the head. They went home. He didn't want to talk about what might have happened because he said if he did, he would assaulted her so he went and stayed with his mother from Sunday to Wednesday and when he returned to his wife she told him that the two men had raped her and she showed him her ripped clothing and they ultimately went and reported the matter to the police. He denied having assaulted the complainant on the evening of 12^th July 2003 and ripping her clothing in that way.

In addition to the evidence of the complainant Mr. Kalmark and the complainant's husband, the evidence of the other police officers was admitted by consent.

Effectively the evidence of those officers was that the accused Mr. Jonas when spoken to by the police, said that he didn't want to say anything and would only talk to his lawyer. Of course he is entitled to do that in the words of the caution that were given to him from the evidence which was admitted and I certainly draw no adverse inference against him for failing to make explanation or for saying nothing to the police. That is his right. He does not have to say anything and it is not for the Court to draw any adverse inference against him because of that. That would make a nonsense of that caution which indicates the people are not obliged to say anything, and if they do they say something that can be used in evidence. Saying nothing is not a matter of where an adverse inference can be drawn, and I draw no inference against Mr. Jonas because of that.

On the other hand when Mr. Shem was spoken to he made what could be called an admission of one kind because after being cautioned he told the police officer Ms. George that it was true that he did not ask Leingire properly to have sex or intercourse with her. Then a full record of interview with him was taken. In the course of that interview the accused Mr. Shem said that when they were coming down the Coral Apartment road Mr. Kalmark was the one that spoken in their language saying that you are the ones that would have sexual intercourse with her.

He said that when she came out of the taxi he did not threaten her and he said that after Mr. Jonas had come back to the car, the complainant was lying down and Mr. Jonas told him that 'one of you two remaining guys could come and have your turn'. He said that he, Mr. Shem, told Kalmark that he was afraid but he heard the complainant say 'hurry up, tip skin'. He had no intention to have intercourse but he said the complainant pulled down his trousers so hard that the button came off. After that he said he unzipped his trousers, she sucked his penis and once it was erect, she told him that she would have intercourse with him and he did so. He denied sucking her breast but said that she had kissed him.

When the evidence of the Prosecution was complete the defendants as I have already said elected to give evidence.

I complied at that stage with the provisions of the law and section 88 of the Code was read out to them advising them that they were presumed innocent until the Prosecution had proved them guilty beyond reasonable doubt. I told them it was not their task to prove their innocence and if any reasonable doubt existed as to their guilt they would be deemed to be innocent of the charge and would be acquitted.

Mr. Jonas gave a complete different story to that of the Prosecution witnesses and the complainant in particular. He said that when they stopped he asked her what's wrong, where do you want to go. She saw Mr. Kalmark in the vehicle and got in and in fact slapped him on the shoulder and swore at him. He said no one in particular had asked her to get in, they stopped for a while at Mr. Kalmark's house and then drove to the beach. Whereupon, he said, Mr. Kalmark gave him a thousand Vatu for the taxi fare. He said that the complainant said that if you want to come with me, you must pay me a total of three thousand Vatu that is a thousand Vatu for each of you. He said that Mr. Kalmark took out his purse, took out a thousand Vatu, paid her and told him that he could go with the lady because he had paid the money.

She took the money, twisted it inside her left bra and started pulling him to go and have sex with her. He denied forcing her out of the vehicle to have sex with her. He said that he told her he didn't want to have sex because her husband was his brother in law but she was really drunk and she was telling him to have sex with her. He said that he did not take her clothes off but she did so. She started to touch him, in his words, badly around the penis area. She put her hand on her vagina wiped it and put it to his face and rubbed her hand on his mouth. He said that there was nothing more he had to have sex with her and proceeded to do so.

He said that she lay down took off her clothes and he had sex and it was that easy. He said that she forced him to have sex with her. She did not refuse. She did not shout for help and was enjoying herself, in his view. When he had finished, he stood up and she said go and get one of the other two and he went to the taxi and heard Mr. Shem speaking to Mr. Kalmark who told Mr. Shem to go quickly and pushed him out of the taxi. He said that thereafter, they had left but the complainant had not resisted and just wanted to have sex with him in his view.

Mr. Shem said that when the complainant got out of the taxi she said for each of them to give her a thousand Vatu, money for sex. He had sex with her. Kalmark gave her the money. He said he saw her lying down and he said is it my turn and she said yes and threw her hands over and caught his trousers, breaking his button. He said she held his penis and sucked it until it became erect. He was drunk. She was drunk and he said she put his penis into her vagina. She did not refuse and after the intercourse had taken place she wasn't trying to run away. He denied assaulting her. But said that he just slapped her because she was too drunk and he did that to put her back into the vehicle. He said she had different trousers on that night.

Mrs. John gave evidence of circumstances back at the home area of the complainant and talked about the complainant having a fight with her husband, the afternoon before. She said that on the Sunday Mr. Ben had assaulted his wife so badly that her face was all swollen up.

Effectively then there are two diametrically opposed versions of the event of 12 and 13 July 2003.

In closing, the Prosecution confirmed that credibility and demeanour was important and that the three witnesses who gave evidence for the Prosecution should be believed. The Prosecutor analysed the facts. He talked about the reason why the complainant gone in the taxi because she had recognised Mr. Kalmark in it and said that one must look at difference in build between the complainant and the two accused who are relatively powerful men. He talked about what had occurred and made submission as to the factual incident and submitted that the only appropriate view that the Court should take was that there had been words used instilling fear and intimidation and that the complainant because she was so frightened of being assaulted, complied with the demands of the two accused.

The Public Prosecutor referred to the evidence of the complainant, when she said they were three men and she was by herself. He said that the evidence of the witness Mr. Kalmark was corroborative of the evidence of the complainant and should be accepted. Their evidence was consistent through out.

On the part of the defence it was argued that it was five days before complaint of rape was made to the police and that should be taken into account. There were inconsistencies, it was submitted, between the evidence of the complainant and the witness Mr. Kalmark particularly where she had said that she and her husband had from time to time gone out with Mr. Kalmark to drink some Kava. Whereas Mr. Kalmark had said that that did not occur.

The two accused should be given credit for the fact that they did not dispute that there was sexual intercourse but they claimed that it was consensual and that should be the approach that the Court should take.

The defence pointed to the evidence of the complainant compared with that of the accused, particularly Mr. Shem, who said that the trousers produced as an exhibit were not the trousers worn by the complainant on the night. He had said that they were brown trousers and not the fawn coloured ones which were produced as exhibit 1.

Counsel for the accused said that they should be accepted as honest people and the Court should believe what they had said and the victim could not be trusted. She had had a fight or a row with her husband on the evening and before the whole incident occurred. She had decided to go out and drink Kava and have a good time and that was not normal behaviour for a mother of three children and the evidence of the accused should be accepted that it was Peter Kalmark that invited her into the vehicle.

The Court should be cautious of the Prosecution evidence and as it is rape only if it was without consent the Court could not be sure that there was no consent to this intercourse in all circumstances.

From all the evidence it was submitted and particularly that from the accused, the victim clearly consented and the evidence of the complainant and the Prosecution should be looked at carefully because Mr. Kalmark and the other two, the complainant and her husband were all friends living in the same area and if Mr. Kalmark was to be trusted he would have reported the incident to the victim's husband on the Sunday and would have reported the matter to the police. There should be a reasonable doubt and it would not be safe in the submission of defence, to find either of the accused guilty of rape.

I have had the opportunity of seeing and hearing the witnesses and making findings of credibility. Each of the accused has given evidence. I already said that they did not have to do so or call other people to give evidence on their behalf and might I say that the evidence they called as to the time that the husband of the complainant was released did not help the accused at all.

The onus of proving guilt remains on the Prosecution and the fact that the accused have given evidence in Court, and called witnesses does not change the onus or burden of proof.

However, when there is defence evidence experience has shown the Court that effectively three circumstances can apply and three conclusions can be reached:-

First I might think that the defence is credible and reliable and is a convincing answer to the Prosecution evidence. If that were the case then clearly my decision would be not guilty.

I might think, second although, the defence evidence or part of it was not entirely convincing it leaves me unsure of what the true position is, in other words it raises a reasonable doubt in my mind. If that were the case then it would follows from what I have said that my judgment again would be not guilty.

Third, I might think that the defence evidence or part of it is entirely unconvincing and reject it as unworthy of believe. If that were my view of course I should be careful not to jump from that conclusion to an automatic conclusion of guilt or even regard this as adding to the case against them. If that were the case I would need to go back to the rest of the evidence and make sure that the Prosecution have proved the essential ingredients of the charge of rape beyond reasonable doubt.

I turn then to the question of credibility and witnesses. I found the complainant to be a reliable and credible witness. Despite rigorous cross-examination, she did not change her testimony in any particular way and I accept her evidence as to what the factual scenario was and what happened during course of that evening.

In addition I find significant assistance from the evidence of Mr. Kalmark whose evidence was candid open and which evidence corroborated that of the complainant.

I do not accept the version that the accused have placed forward for consideration by this Court. That is particularly so because from the observations I have made of them in the witness box but more particularly and significantly there were many matter of substance to their version of events that were simply not put to the complainant or to other Prosecution witnesses. This is not necessarily the fault of defence counsel but goes ultimately to the credibility of the accused because it gives rise to the reasonable inferences that they have not been completely candid and that they have been making up their evidence as they go along.

Example of matters that were not put to the witnesses are lengthy indeed and I propose to refer to some them. It was not put to the prosecution witnesses that the complainant had gone into the taxi and slapped Mr. Kalmark and sworn at him. It was not put to them that they stopped the vehicle before driving to the scene of this allegation at Kalmark's house. It was not put to the Prosecution witnesses Mr. Kalmark in particular that he had said that they must go to the beach somewhere. It was not put that at the beach Mr. Kalmark gave Mr. Shem a thousand Vatu for the taxi fare. It was not put to Mr. Kalmark that he had asked them: Do you want to go out with this woman. It was not put that Mr. Jonas had said we are all from the same island and we have no money. The version of Mr. Kalmark taking out his purse and giving a thousand Vatu to the complainant was not put although he denied it almost in an anticipation of that and it was not put as to what she had done with the money that I have already related. It was not put that the accused Mr. Jonas had told the complainant that he did not want to have intercourse with her because her husband was her brother in law or that she was telling him to have sex with her. It was not put that she started touching him on the penis and did other things with her hand after touching her vagina. It was not put that the complainant had said to Mr. Jonas that he should go and get one of those other two to have intercourse with her and it was not put that when Mr. Jonas went back to the taxi he heard Mr. Shem talking to Mr. Kalmark who said you should go quickly and pushed him out of the taxi. It was not put that Mr. Kalmark told him to go back to the black market and buy more drink and he, Mr. Kalmark and the complainant was holding each other in the back of the taxi and it was not put that they had gone away from the sea and then returned later.

In addition there were other matters in the evidence given by the accused Mr. Shem that was not put to the complainant for example the way that he had come out, and she had thrown her hand over to him breaking his buttons. It was not put that the car had broken down because the complainant had taken off the hand break and it had ended up in the sea.

These were some of the matters that gave a completely different slant of the incident that were never put to the Prosecution witnesses and as I have said the reasonable inference arising from that is that the evidence of the accused had been somewhat and largely made up to suit themselves.

However, in this case the evidence goes beyond the simple assessment of credibility, beyond the corroboration of the evidence from Mr. Kalmark about which I have spoken and whose evidence incidently I accept. There is the unspoken evidence of the exhibits and I say that I find as a fact that the shorts exhibit 1, the panties exhibit 2 and the bra exhibit 3 were the clothes worn by the complainant Leingire Ben on the night in question. The damage to those items of clothing is clear. It is consistent with the evidence of the complainant as to what the accused Mr. Jonas did to those clothes on the night in question and that damage is clearly inconsistent with consentual sexual intercourse. The shorts in their ripped state were also observed by the complainant's husband. He saw them when she was getting out of the taxi and I accept his evidence in relation to that. His evidence gives a consistency to the Prosecution case which is strong and undeniable.

I already said that I accept the evidence of the complainant and the witness Peter Kalmark. The inconsistencies in the Prosecution evidence as outlined by the defence, if indeed there be inconsistencies, I find to be minor and not going to essential and important facts.

Peter Kalmark's evidence I found to be compelling and accurate. He said that the complainant said on the way to the beach, stop I'll get out, but indeed the taxi did not stop but went on at some speed and then the taxi stopped and both accused got out and went around and I find that Mr. Jonas pulled the complainant out as she was saying no, no, no and Mr. Jonas told her to come outside the taxi or they would assault her.

Mr. Kalmark said that he wanted to help her but he was scared they would assault him too because they were husky man who were drunk. I am sure that his lack of reporting the incident to her husband or to the police was indeed for the same fears which he held and the complainant's own worst fears as to use of force and threats and intimidation and fear of bodily harm were realised because Mr. Kalmark saw her being punched by Mr. Shem as he left in the other taxi. Mr. Shem has admitted that assault. That is again a straw in the wind as far as the consistency and realism of the complainant's and the Prosecution case is concerned. Even worse for the accused Mr. Shem, he admitted striking her. And I do not accept for one moment that that was to get her back into the taxi because she was so drunk.

Clearly I find that that was to prevent her from running away.

Some criticism had been directed towards the Prosecution case because the complainant did not make a complaint for some days and there was delay in making the complaint. The law recognises that there can be good reasons why the victim of an offence may refrain from or delay in making a complaint. The delay was not gross and it was not unexpected that she did not say anything until matters had cooled down because her husband immediately assaulted her with a torch when she got out of the taxi. They stayed apart for a few days. That allowed the matter to cool down. They then discussed the matter and it was thereafter reported to the police. That was a logical and reasonable approach, in my view.

In addition I do not consider that there was any responsibility on Mr. Kalmark to report the matter to the complainant's husband or to the police, particularly with the fear that he was clearly subjected to.

In summary, I find that the sexual intercourse by both accused was without the consent of the complainant. It was obtained by force and by means of threats and intimidation and by fear of bodily harm. That being the case in accordance with the definition, it was not true consent. There was admitted sexual intercourse by both accused, complete upon their penetration of her. I find that was the case. And I reject their version utterly for the reasons that I have outlined.

I find the counts of rape proved beyond reasonable doubt.

For the reasons I have given each you is now convicted of rape.

Dated AT PORT VILA, this 10th day of December 2003

BY THE COURT

P. I. TRESTON
Judge-