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Public Prosecutor v Olul [2008] VUSC 53; Criminal Case 04 of 2008 (11 July 2008)

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

Criminal Case No. 04 of 2008

PUBLIC PROSECUTOR

-v-

RICKY OLUL

Coram: Justice Christopher Tuohy

Counsels: Mrs. Laumae for Public Prosecutor
Mr. Yawha for the Defendant

Date of Hearing: 8 & 9 July 2008
Date of Decision: 11 July 2008

VERDICT

1. The accused, Ricky Olul, is charged with two counts under section 91 of the Penal Code Act [CAP. 135] of sexual intercourse without consent. That is the offence commonly called rape. Both charges are alleged to have been committed in the early hours of 20th December 2007 at the accused’s house at Teacher’s College at Kawenu. The complainant is the accused’s former de facto partner and the mother of his daughter. The complainant’s name is "N". The trial extended over two days. For the prosecution seven witnesses were called. The accused himself gave evidence on his own behalf and called one witness.
   
2. I first remind myself of the burden and the standard of proof in criminal cases. The burden of proof, the onus of proving the charges, rests on the prosecution and that onus rest on the prosecution from beginning to end of the trial. An accused person is not required to give or call evidence. The accused did both in this case. That does not change the onus of proving the charges. That remains always on the prosecution.
   
3. The second point is the standard of proof, that is the level to which the charges must be proven before the accused can be found guilty. The law is that the prosecution must prove each charge and every essential element of each charge beyond reasonable doubt before the accused can be found guilty of any charge. Beyond reasonable doubt is a well known phrase. It really means what it says. It means that before the Court can find the accused guilty of any charge it must be sure of his guilt, it must be satisfied from the evidence of his guilt. If there is a reasonable doubt about that then the duty of the Court is to acquit the accused.
   
4. The Court must also look at each of the two charges separately and give a separate verdict on each charge. Having said that the nature of the evidence given on both sides in this case is such that it is difficult to see how different verdicts could be given on the two charges in this case.
   
5. The essential elements that the prosecution must prove on a charge of unlawful sexual intercourse without consent or rape are three. The first matter that must be proven is that the accused had sexual intercourse with the complainant. Sexual intercourse is defined as including penetration of the vagina of a woman by any part of the body of another person including of course the penis of a male. Here there is no dispute that there was sexual intercourse by the accused with the complainant on two occasions. The accused acknowledges that so this first element of the charges is proven.
   
6. The second element that has to be proven is that the sexual intercourse was without the consent of the complainant. In this regard, consent means a consent voluntarily given. It is not consent in law that the woman acquiesces because of fear or intimidation. The fact that a woman does not physically resist or ceases to resist does not mean that she has consented.
   
7. The third element that has to be proven by the prosecution is this: that not only was there sexual intercourse without consent, it must be proven that the accused did not honestly believe that the complainant consented. So those are the three elements that have to be proven in any charge of rape.
   
8. As I have said the onus is on the prosecution to prove in this case lack of consent of the complainant and secondly lack of an honest belief on the part of the accused that she was consenting and those elements have to be proven to the criminal standard I have referred to, that is beyond reasonable doubt. So that is the legal framework in which the Court approaches the evidence in this case.
   
9. The accused’s defence is that she did consent. So obviously, that second element of charge is in dispute. Although it was not overtly relied upon it also goes without saying that the accused’s case is also that he honestly believed she was consenting. So in effect that third element also is in dispute in this case.
   
10. I turn now to the evidence. The primary witness for the prosecution was the complainant as is almost always the case with this sort of charge. Only she and the accused were present in the room at the time when the acts of sexual intercourse which are the basis of the charges took place. The reality of the case is that for the prosecution to succeed the Court must be satisfied beyond reasonable doubt of the truth of the complainant’s evidence on the essential issues. I intend therefore to concentrate on the evidence that she gave in Court. I will however refer to the other evidence given both on behalf of the prosecution and on behalf of the defence when necessary.
    
11. The complainant "N" gave evidence that she had been in a de facto relationship with the accused for about five years. They finally separated at the end of October 2007. There was one daughter born to the relationship. After the separation the complainant was living with her parents at Anamburu. The defendant was living at his father’s house at the Teacher’s College.
    
12. On the 19th December, the complainant was working a late shift in her job as an engineer at Air Vanuatu. The shift was due to finish at about one in the morning of the 20th December. While the complainant was at work she received a phone call from the accused. I infer that that phone call was probably made sometime approaching midnight or possibly even later. The accused said in that phone call that he wanted to come out to the airport to see her. The complainant said that she did not want him to but he insisted. He later called again and by that time he had arrived at the airport and said he was at the gate and wanted to talk to her. She went out and met him at the gate. They talked for a while and she went back inside the hangar. He wanted to give her a lift home, that is to her home in Anamburu. She told him that she hadn’t finish work yet and had already asked a work colleague Donald Kawas to drop her home. She asked Donald Kawas if he would also drop the accused at his home and Donald Kawas agreed to that. However, when work finished the accused did not want to go with Donald Kawas. He told "N" that that was because he was not comfortable as "N" had earlier told him that Donald Kawas had possibly made some sort of advance to "N" on a work trip. The accused, according to the complainant, insisted that instead they, that is he and "N", catch a taxi home. That is what happened. Donald Kawas was told that and left them and went his own way.
    
13. The accused and the complainant then walked to the International Terminal. The accused talked to the taxi driver about where they were going and that was out of hearing of the complainant. The accused told her to get into the taxi and she did. When she got in she was expecting the taxi to take her to her home at Anamburu which you reach before you get to the defendant’s home at Kawenu area. After they got into the taxi they drove off and drove past the turn off from the main road towards Anamburu without turning. The complainant said that she then asked the accused where they were going and he said Kawenu. She said she started to cry and asked him to tell the taxi driver to take her to Anamburu. And she told the taxi driver that she wanted to go there. However the taxi drove on. She said that the accused told her that "you don’t have a choice, I’m paying for the taxi".
    

She said that she was crying and asking to go to Anamburu during this time but he was saying "we are not going to Anamburu, we are going to Kawenu". She said that the taxi drove to the gate of Teacher’s College, the accused paid for the fare, she did not want to get out but the accused told her to get out and the taxi drove off.

14. She said she was standing in the middle of the road crying as she did not want to go into the house and she started walking away. She said that the accused was angry, his fists were clenched, he told her to shut up and go into the house so she did so. She said that when they got into the house he asked her to take her shoes off but she did not want to and she sat on the couch. He sat next to her. She said he asked her to go into the bedroom and she told him no. She said that she wanted to sit on the couch until daylight and then go home. It must by now have been half past one in the morning. She said that he insisted that she go into the bedroom. She said she told him that she did not want to. She said he got angry and said he would count to five and if she did not come in he would do something. She said that he started counting and when he got to three, she got up and went in. He then gave her a pair of shorts and t-shirt to wear while sleeping. She said that the reason she went into the room was because she was scared of him because he was angry and because effectively counting to five was a threat. I do not think she used that word.
    
15. After he gave her the shorts and t-shirt to sleep in, she went into the bathroom and changed there. She came back into the bedroom. There was one bed and a mattress in the bedroom. The mattress was his, the accused’s. The complainant laid down on the bed not the mattress. She said that the accused said she should get down on the mattress, that he was insistent and that he told her that she had to do what he said. She said that she then did get down on the mattress and he lay down beside her. She said that while lying down he was trying to put his arms around her, she did not want him to and told him that but he continued on. She said she was crying at him to stop. She said he kept going until he took her shirt and pants off. She all the time asked him to stop but he would not. She said he got his clothes off, got on top of her, she was trying to struggle, he locked her legs with his knees and got hold of her hands, she was struggling and asking him to stop. Then she said he penetrated her. She all the time asked him to stop. At that time he told her that he wanted to finish it and he said he had finished. So her evidence was that at that stage he penetrated her with his penis. She said that the intercourse lasted two or three minutes.
    
16. She said when that finished he got off her, she covered herself up and she said that he then asked her what she was going to do and whether she was going to report him to the police for rape. She said that she did not answer that and he fell asleep. When he did, she got up, changed into her uniform and went out of the bedroom to the kitchen or living room. She said she got dressed into her clothes and went out of the bedroom in order to wait for morning for light to come before she left the house. She said that she was sitting down there and he walked out of the bedroom and said that she should go back to bed. She said that she told him she did not want to and he was standing waiting for her. She said that when she would not return to the bedroom he got angry and said "don’t make me do this again, I’ll count to five and if you don’t go in I’ll do something."
    

She said she got up then was crying and followed him into the bedroom. She said he lay down on the mattress, she still had her uniform on and she lay down too. She said he was trying to put his arms around him. She said to him then "please just stop, you’ve hurt me enough already". She said that she lay on her stomach on the mattress and the accused was trying to hold her, he lay down on her back, she was trying to shake him off. She said that she did not want him to do anything else. She said he got angry again and told her that he had not had enough, that he was not finished with her yet. She said he pulled her up, held her by the hips, he on his knees behind her and pulled her pants down and penetrated her again from behind. She said that she asked him to stop and was crying but he did not stop and kept on going. She said he then lay down on the bed and fell asleep.

17. She said she put her pants back on and waited for daylight. When she heard birds she got up and left the house and went downstairs into the garage area which was below the house. She said it was still dark and she did not want to go into the road until light came. She said that she was sitting and heard movement in the house and then he came to where she was sitting. She said he did not say anything nor did she. When it was lighter, she got up and walked towards the road. He followed her and they both walked all the way to Wilco until the work bus for Air Vanuatu staff arrived and picked her up.
    
18. A witness named Maurice was the driver of that bus. She said that she went with the bus to the airport where staff on the bus were dropped. She asked to stay in the bus for a while and then she asked him to drop her at Bladinière Estates and she went there to see Frederick Loughman. She said that she called him up and said she wanted to talk to him. After the bus dropped her, she told him what she said had happened. She said that Frederick was angry and asked for Ricky’s number and called Ricky, the accused, and told him that he wanted to talk to him and could he meet him. And she then herself was later dropped at Anamburu. She said that she went to the Police later that morning and was medically examined some days later.
    
19. She was cross-examined by Mr. Yawha at considerable length and very skilfully. She was questioned on the history of the relationship and the separation to establish that the accused was still, following the separation up to 20th December, trying to promote a reconciliation. In cross-examination "N" said that she had made up her mind that she was not going back and she had told the accused that. She was questioned about her relationship with Frederick Loughman. She acknowledged that she was seeing him at the time but not, as she used the words, in a relationship with him at that time. She said that when Ricky, the accused, rang her before his arrival at the airport, he told her he wanted to talk. To her he sounded drunk and she said she did not want to talk. She said that at the airport he was angry and swearing a bit and she was scared of him then. She said that he insisted he would wait for her even though she did not want that. She confirmed that she was crying and scared after the arrival at Kawenu, just scared that he might do something nasty. She said that in the lounge they had been talking for five to ten minutes, that he was trying to get her into the bedroom and she wanted to sit down till morning. She confirmed to a question that you can hear from the bedroom if someone is walking around the house. She confirmed that she changed in the bathroom and laid on the bed and then got on to the mattress beside him but said she did not want to. She said she was still crying and she said she was making a noise hoping someone would hear her. She confirmed that she knew that there was a babysitter at the house, Jenny Bebe and I think she was the witness who later gave her name as Jenny Toa and she acknowledged that she slept in the next bedroom to the one she was talking about and that she might have been home at that time.
    
20. To a question, she said that she did struggle a bit, this is on the mattress, but she said she was not able to scream and he told her to shut up. It was put to her directly she was not resisting, her legs were not locked and the first act of intercourse was simply usual love making or usual sex and she denied that. She also said she was crying during the second act and she repeated in cross-examination her account and you heard me already. And that he said I am not finished with you yet. She denied positioning herself for intercourse on the second occasion. She also denied saying that she said the word "daddy" to the accused during intercourse and denied that she said that she had missed him. And she also denied that there was mutual caressing or kissing during the incident of course. She was questioned about why she rang Frederick and said that was not because they were intimate with each other but because she knew he was there to help her. She was further questioned in regard to her relationship with Frederick and it was put to her that she complained of rape to him because she was in a relationship and was worried that he might find out that she had had intercourse with the accused. Her answer to that was "all I know is that I was raped". She also denied that she was influenced by Frederick to make the complaint to the Police and said that she had made up her mind to do so beforehand herself. And there was further questioning regarding statements that have been made.
    
21. The accused also gave lengthy evidence and he also was cross-examined at length. I will return in more detail to his evidence and to the evidence of other witnesses a little later in this judgment. It is enough to say at this point that his evidence of the broad course of events was very much in line with the complainant’s but on the essential issues, the use of actual force to have intercourse and on the issue of consent to the actual intercourse his evidence is in direct contradiction to hers. He denied any actual force and asserted that the complainant consented to the intercourse and indeed responded sexually during it.
    
22. I have very carefully considered the complainant’s evidence both on its own and in light of all the other evidence including the evidence of the accused and his witness. Having done so, I come to the conclusion that on the essential points her evidence is true and I believe it. I reach that conclusion not simply or even primarily on the way she gave her evidence but because it was logical and plausible and consistent with other proven evidence including a considerable amount of the evidence which the accused himself gave. And I want to explain that in more detail.
    
23. First, the way she gave her evidence. She gave her evidence clearly. She was not hesitant or evasive in her answers. Her evidence was detailed in a way which gave it credibility. For example, the evidence about counting to five by the accused. That is the sort of detail which rings of the truth rather than a made up story. She did not resort to saying "I don’t remember, I don’t recall" to any degree. She did on occasions but very few occasions. Her evidence was internally consistent, that is, she did not contradict herself and she maintained the essence of her evidence under a very thorough and searching and, if I might say so, skilful cross-examination.
    
24. Secondly, her evidence was logical and plausible. These are the circumstances that were proven in the evidence. She had left him finally two months before. She said she had made up in her own mind that she was not going back. There had been no indications since she left that she was wavering in that. She said she told the accused she had made up her mind. She obviously had formed a new friendship with Frederick Loughman. However far that it had gone, she was certainly beginning a new relationship with a different man. In my view, it makes it very unlikely in those circumstances that she would be in the frame of mind, especially at half past one in the morning after shift work at night, to willingly consent to intercourse with the accused.
    
25. Next she did not want to go to his house. She made that clear to him. He got her there by a mixture of trickery and duress. He himself as good as acknowledged that in his own evidence. He got into the taxi with her under the impression that she was being taken home whereas that is not what the accused intended and he did not tell her so. She resisted going into the house. She said that she was upset and tearful. Again the accused partially admitted that. He had been drinking. She said he was angry and he partially admitted that at times. And she had just finished a night shift. It is entirely inconsistent that within a short time of those events, being tricked and pushed into going to a house against her will at that time of night after work when he had been drinking on and was angry. It is just inconsistent that within a short time later she would have voluntarily consented to twice having intercourse with him. It is not human nature.
    
26. Thirdly, she was unwilling to go into the bedroom as he acknowledges. That is inconsistent with then voluntarily having intercourse. She did not change into sleeping clothes in front of him. She went into the bathroom to do so. Yet they had been living together for five years and that is not consistent with wanting to have intercourse. She was unwilling to go onto the mattress with him, again as he acknowledges. That is inconsistent with moments later voluntarily having sex with him.
    
27. A very significant fact is this, that straight after the first act of intercourse, as the accused confirmed, as soon as he seemed to be asleep she got up and out of the bedroom. Not only got up from the mattress but out of the bedroom altogether and she changed back into her uniform even though this was the middle of the night, maybe 2 o’clock in the morning. What that shows is that she would not stay in the bedroom and clothed herself in outside clothing waiting for morning. That is completely inconsistent behavior with, as the accused said, a short time previously having sexual intercourse consensually with him. That sort of behavior which the accused confirms happened can mean only that she wanted to get away from him and his bed and that does not fit with just having had consensual intercourse which according to the accused she responded to.
    
28. His suggestion that she changed into her uniform and went out of the bedroom because she had a relationship with Frederick and was guilty about it is not credible. If there was consensual intercourse with the accused she had no need to feel guilty about it, nor indeed was there any need for Frederick ever to know about it. She could have simply gone home then in the morning and that would have been that. If that was the reason that she got up and changed into uniform, because she was feeling guilty about Frederick then that fails to explain why then there was a second act of intercourse, allegedly consensual, a short time later as the accused states.
    
29. The next matter is this. The fact as testified to by "N" and admitted by the accused that he said to her shortly after "what are you going to do? Are you going to report me for rape?" There was a difference in the evidence between them in this respect as to when that happened, as to whether that happened after the first incident of intercourse or in the garage as it was getting light, as he said. There is however, no argument that it was said. The accused acknowledges saying to her afterwards, and on any view shortly after intercourse, "what are you going to do? Are you going to report me for rape?" Now that is totally inconsistent with voluntary intercourse. It is consistent with the accused knowing that she had not consented. Why would you say that if you just had voluntary intercourse with the woman you were talking to. It does not make sense.
    
30. The next point which is important in judging the truth of her evidence is the fact she left the house and sat down in the garage. This must have been 4 or 5 a.m. in the morning. Sometime about 4 a.m. in the morning probably while it was still dark. Why would anyone do that if they had just had voluntary intercourse.
    
31. The next thing is the leaving of the house herself at 5 a.m. and getting on the staff bus at that hour of the morning when the complainant "N" was not working until after lunch that afternoon as it later appeared in evidence. All those things show a strong desire by the complainant to get away from the accused. And that, all of those things, are not consistent with just having finished two voluntary acts of sexual intercourse which he suggested that she enjoyed. They are consistent with her having suffered what she said had happened.
    
32. The next point of confirmation is the clear evidence of her distress in the early hours of the morning. That was observed by people that she had no need to impress and I am referring to the bus driver and the fellow employee both of whom gave evidence that she was crying. The fellow employee was Frank Billy and the bus driver was Maurice Masai. Then there is the distress observed by Frederick Loughman when she got to the area of his place. He said that she was sitting under a tree in the rain crying. Those indications that she was distressed are consistent with her account that she had been just recently raped. And inconsistent with having had consensual intercourse with the accused. Obviously, I have considered whether those signs of distress were put on but I have got no reason to think that, particularly as observed by the bus driver and the fellow employee who on any view of the matter were neutral observers with no axe to grind.
    
33. The next thing which is confirmatory is her immediate complaint of being raped which she made to Frederick Loughman. It is credible that she would go first to him. Evidence of that can be given under the law, not to prove that what she said happened did happen, but to show consistency in the way she behaved after the event. I have no doubt that she already had feelings for him at that time however far their relationship had gone and it was natural for her to go there and make a complaint to him. I do not think that she had any reason to make this up for his benefit. She had no reason to need to manipulate him. They had already embarked upon a friendship or relationship and there was simply no need for her to untruthfully make up an account of rape. There is no motive or credible motive for that.
    
34. The next matter which is confirmatory of her evidence is the accused’s reaction when confronted by the allegations of rape conveyed to him by Mr. Loughman. Mr. Loughman said that the accused’s response as far as he recalled was that he had a few drinks before the incident and was not thinking clearly and that he said it would not happen again and that he appeared remorseful. Significantly Mr. Loughman did not say that the accused made a denial of the allegations of rape. When the accused gave his evidence nor did he say that he had denied to Mr. Loughman that he had raped the complainant even though that was the allegation that was being made against him and he knew that. He also admitted showing remorse but said it was because he felt for "N" sitting under the tree in the rain as described to him by Mr. Loughman. He said that he could not remember saying it would not happen again. He did not actually deny that he said that.
    
35. I accept Mr. Loughman’s evidence that the accused did say that it won’t happen again. In fact, although obviously then and now Mr. Loughman is in a friendship or relationship with "N", he did not show signs in the evidence of having it in for the accused. If he did he could easily have made his evidence worse for the accused if he had it in for him. But there was no sign of that. In fact in some ways he was a little vague in his evidence but he did remember the accused showing remorse and saying it won’t happen again.
    
36. The absence of a denial of rape in the circumstances is not consistent with the accused’s evidence that there had been consensual intercourse. Surely if there had been no rape the first thing he would have said loud and clear to Mr. Loughman was "No I didn’t rape her". He did not say himself that that is what he said. Nor did Mr. Loughman. As I say, I accept Mr. Loughman’s evidence that the accused did say something to the effect of it won’t happen again. That is consistent with something wrong having happened. The lack of denial of rape in the circumstances could be seen as an implied admission that it did happen and thus consistent with the complainant’s evidence. So all of those matters together convince me that the evidence of the complainant "N" was truthful.
    
37. The evidence given by and on behalf of the accused does not change my view. The accused’s evidence in contrast of that of "N" was internally inconsistent for all the reasons I have already mentioned. Things which he himself has admitted were true are inconsistent with the claim of consent. For example the more or less trickery or pressure to get her to his house. Her resistance to going into the house, into the bedroom and onto the mattress. His admission that at time she was fearful. His admission of the comment "are you going to report me for rape?" His evidence confirming that she did leave the bed and the bedroom after the first incident and changed into her uniform. His evidence confirming hers that she did go out to the garage under the house before it was properly light. There is no explanation for those events, which he says happened as well as her, if those things happened before and after two acts of consensual intercourse as he said. So his evidence is internally inconsistent for those reasons. It does not make sense that he acknowledged those things that I have pointed out while saying that they had two acts of consensual intercourse in the meantime.
    
38. Further the way he gave his evidence was significant. I think that the accused Mr. Olul found it very hard not to tell the truth. I do not think he is a natural liar but I think he is a person who naturally tells the truth. I say that because when he was faced with a question which was difficult for his case, sometimes he reluctantly agreed with it. When it was a question very difficult for his case he sometimes said he could not recall or he did not remember often after long pauses. He did not say "no that’s not true". For example he admitted the remark about "are you going to report me?" which of course went against his case. He admitted being angry going into the house although he said because of the dog barking. Significantly the Court put "N"s evidence of "I’ll count to five" to him for confirmation or otherwise. His answer was not that "no that didn’t happen". His answer was "I can’t recall that". If you had not said that you would know that you had not said it. I think as I have said that the accused is naturally an honest person and found it to hard to say "no that’s not true" because he knew it was true. He said instead and after a long pause "I can’t recall". It was the same with the evidence of Frederick Loughman. When that was put to him, that he had said to Frederick that it would not happen again. Again his answer was not "no I didn’t say that". His answer was "I don’t recall that". And I think that is because the accused found it difficult to deny absolutely things which he knew were true.
    
39. I do not think that the evidence of Jenny Toa or the doctor changes things. I have certainly considered the evidence of both of them. As to Jenny Toa, assuming it was the accused and "N" she heard and that is not certain, it is quite possible that she simply slept through what happened. I do not think that "N" ever screamed or yelled out. I think that she was too afraid to do so. Crying does not necessarily mean making a huge noise. It can mean just being tearful and sobbing. I think it is quite feasible that in the middle of the night Jenny Toa heard them coming and went back to sleep again and slept heavily and heard nothing. I do not think that that is inconsistent with "N"s evidence.
    
40. As to the doctor, no injuries were found on "N" four days later. "N" herself never suggested that she suffered any injury. She is a mature adult woman. What she described happening to her physically was no more than what can happen in consensual vigorous intercourse and it will not necessarily cause any injuries that would be noted or at all to a mature adult woman. I do not consider that the doctor’s evidence takes the matter further either way, it is simply neutral. So I do not think that what she described would necessarily have resulted in any observable injury to her.
    
41. So all in all, having considered the matter very carefully and from all angles and looking at all the evidence, I am satisfied that her evidence is true and that she did not consent to intercourse that night and she made it very clear to the accused that she did not. But through a combination of fear, intimidation and some physical strength the accused had sexual intercourse with her on two occasions against her will.
    
42. I am satisfied also that he was well aware at that time that she was not consenting but continued regardless of her wishes. And I am satisfied of those things to the standard required by the criminal law. And I therefore find the accused guilty of both counts.
    

Dated at Port Vila, this 11th day of July, 2008

BY THE COURT

C.N. TUOHY
Judge