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Public Prosecutor v Nisa [2005] VUSC 34; Criminal Case No 012 of 2003 (16 March 2005)

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

Criminal Case No. 12 of 2003

PUBLIC PROSECUTOR

VS.

SAM NISA

Coram: Mr Justice Oliver A. Saksak

Counsel: Mrs Linnes Moli for the Public Prosecutor
Mr Peter Bartels for the Defendant

Date of Hearing and Verdict: 16th March, 2005

VERDICT

As trier of fact, I find that the evidence presented by the victim is distorted and without corroboration. The Police Officer’s evidence did not help. Rita’s evidence would have helped but she was not called.

The defendant maintained his position at all times. He denied it all. His statement to the police was ruled inadmissible in parts. He did not backtrack from his version of defence. The Court must accept his evidence.

The Prosecution had the burden of proof. The standard required is proof beyond reasonable doubt. The defendant did not have to prove his innocence. I am therefore not satisfied that the prosecution has discharged that duty.

The Court is aware of the danger of convicting a person on uncorroborated evidence in sexual offences. That danger exists in this case because of the distorted facts presented by the victim herself. For example in 1999 she says she was 10 years of age. She says she felt the defendant’s penis in her private part. The defendant is a full grown adult. She was 10 years old. That she felt nothing. That is impossible.

Then in 2002 again she says she sat on the defendants’ penis. After sexual intercourse she noticed blood fall onto the mat on the floor. This does not reflect the reality.

If there was any blood, it should have been in 1999 and not in 2002.

In 1999 she says Rita was with her when the defendant called her. Rita ran away but she went willingly to the defendant’s house. She was asked why Rita ran away. She says it was because Rita knew what the defendant would do to her. She says she was not afraid of the defendant in 1999 and 2002. But she was afraid of being discovered. After sex in 1999 she dressed up and hurried away afraid at being discovered by someone. But she was afraid of her parents that if they knew or if she told them about it all they would beat her. That indicates she knew that what she did was wrong. Yet she did not think it was necessary or important to report it straight away either to her parents or any other person.

For those reasons I must find this defendant not-guilty. Accordingly I so find.

I accordingly discharge him of the charges of attempted unlawful sexual intercourse contrary section 97(1) and of unlawful sexual intercourse contrary to section 97(2) PCA, CAP. 135.

The defendant is accordingly acquitted.

DATED at Luganville this 16^th day of March, 2005.

BY THE COURT

OLIVER A. SAKSAK
Judge