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Public Prosecutor v Bani [2019] VUSC 78; Criminal Case 1733 of 2018 (28 June 2019)

PUBLIC PROSECUTOR

V

BENJAMIN BANI

Coram: Chief Justice Vincent Lunabek
Counsel: Mr. Damien Boe for Public Prosecutor
Mr. Colin Leo for Defendant

Dates of Hearing: 13 - 14 June 2019
Date of Verdict: 28 June 2019

REASONS FOR VERDICT

Introduction

1. The Defendant is charged for seven counts of sexual intercourse without consent, contrary to section 90 and 91 of the Penal Code Act [CAP 135].
   
2. He entered not guilty pleas to each and all seven counts as charged against him on the information dated 24 September 2018. The prosecution applied for nulli prosequi in respect to the offences charged in Count 6 and Count 7. Nulli prosequi was granted in respect to these two (2) Counts.
   
3. Defendant Bani was then tried on Counts 1, 2, 3, 4 and 5 of the information. He will be referred to as (BB).
   
4. The complainant of this case is the step daughter of the Defendant. She will be referred to as (DB).
   

Onus and standard of proof of beyond reasonable doubt

5. This is a criminal trial. The law is for the prosecution who brings the charges to prove them against the Defendant. The prosecution has to prove each and all essential elements of each offence on the standard of beyond reasonable doubt before a conviction can be secured.
   
6. If there is a reasonable doubt as to the guilt of the Defendant on an essential element of any offence, I must acquit him on that charge.
   
7. The Defendant elected to give evidence on his own behalf. I must assess his evidence on the same basis as I do to other witness.
   

Elements of offences in counts 1, 2, 3, 4, and 5

8. The prosecution has to prove beyond reasonable doubt the following elements of each count of sexual intercourse without consent charged against the defendant in the information:
   
   • (i) That the defendant BB had sexual intercourse with the complainant DB at the places and times indicated in the charges in counts 1, 2, 3, 4 and 5.
     
   • (ii) That the complainant DB did not consent to have sexual intercourse with BB on the said dates times and places as charged in the information.
     
   • (iii) That the Defendant BB did not have a reasonable belief that the complainant consented to have sexual intercourse with him on those dates, times and places as referred to in the information.
     

Issue

9. The Defendant BB accepted that he had sexual intercourse with his step daughter DB and the complainant consented to each and all of these sexual intercourse activities between them.
   
10. The main issue therefore is whether on each and all the occasions mentioned in the information, the complainant DB consented to have sexual intercourse with him (BB).
    

Prosecution case

11. The prosecution said the prosecution case is that the Defendant BB sexually abused his daughter from 2014 – 2107 a period of 3 years. The issue is of consent. The Defendant says the sexual intercourse activities between him and the complainant were consensual. The prosecution says the sexual intercourse between the Defendant and the complainant as charged are not consensual.
    
12. More specifically, the prosecution says that the following sexual intercourse between the defendant and the complainant are not consensual:-
    
    • (i) January 2014

The prosecution says the complainant did not consent to sexual intercourse that happened between the Defendant and the complainant on January 2014 at Banban area.

(ii) March 2014

The prosecution says that the complainant did not consent to sexual intercourse occurring between the Defendant and the complainant at their house at Diros Barrak over the request for payment of a sport top wear.

(iii) Year 2015

The prosecution says that the complainant did not consent to sexual intercourse occurring between the Defendant and complainant on different dates and times in 2015 as charged.

(iv) Year 2016

The prosecution says that the complainant did not consent for sexual intercourse occurring between the Defendant and the complainant on different dates and times in 2016 as charged.

(v) Year 2017 at Palm Station

The prosecution says that the complainant did not consent to sexual intercourse happening between the Defendant and the complainant in 2017 as charged in Count 5.

Defence Case

13. The Defence case is that the sexual intercourse activities between Defendant BB and his step daughter DB as alleged in the information are all consensual.
    

Rights of the Defendant

14. Before the prosecution case began, the right of the Defendant of the presumption of innocence was read and explained to him (s.81 CPC [CAP 136]). At the end of the prosecution case, the right of the accused under Section 88 of CPC [CAP 136] was also read and explained to him.
    

Evidence and assessment

15. The detailed records of the evidence of witnesses are recorded and contained in the detailed record of evidence of the trial proceedings. The records of evidence include also the statements of prosecution witnesses that are tendered and admitted as evidence by consent and agreement of the prosecution and defence counsel as they are not contentious.
    
16. What I now do is I consider the summary of the evidence of the witnesses and assess them when they are relevant and appropriate to the elements of offences charged in counts 1, 2, 3, 4, and 5 including the total context of the incidents and allegations in this case:-
    
    • 16.1. The defendant is now 62 years of age. He is a retired member of the VMF. He was married and separated to his wife. At the beginning of 2009, he lives in a defacto relationship with Louisa Dovo, the mother of the complainant.
      
    • 16.2. He has a son (Joargim) with his wife. Louisa has 5 children of her own. She brought with her 3 of her children in 2009 in her defacto relationship and they lived with the defendant. The following lived at the house with the defendant BB: Louisa Dovo, her 3 daughters including the complainant DB, Joargim (the defendant’s son) and Claudia Warsal, Joargim’s wife.
      
    • 16.3. The complainant DB is one of the children of Louisa. She lives with the Defendant and her mother (Louisa) and others at Diros Barrack.
      
    • 16.4. The Defendant educated, took every day care and control and disciplined of all the children who lived at his house including the complainant. The Defendant is responsible for the everyday care, control and education of all their children living with them including the complainant. The Defendant pays for the school fees of the complainant as his own child.
      
    • 16.5. The Defendant was transferred from Port Vila to Luganville, Santo in 2010. The Defendant lived at Diros Barrack with Louisa and their children. They lived there from 2010 to 2016. In 2016, the Defendant, Louisa and their children moved and lived at Palm Station after the retirement of the Defendant in November 2016.
      
    • 16.6. The complainant was born on 7 April 1995. In 2009 she attended year 9 at St Patrick College. She spent her holidays at the end of 2009 with her mother and step father in Port Vila. In 2010, she lived with her mother and step father at Diros Barrack, Santo. In 2011, she attended year 11 at St Patrick College. In 2012, she also attended St Patrick College. In 2013, she was only stayed in Santo. She attended another school in Santo but she lived with her mother and step father at Diros Barrack.
      
    • 16.7. In 2014, her step father enrolled her at a Private School called Santo Christian School of Assemblies of God and she lived with her mother and step father at Diros Barrack.
      
    • 16.8. In 2014, she was 19 years of age at that time. Her step father dropped her in the morning and in the afternoon after lunch at her school. He also picked and dropped her home after school.
      
    • 16.9. It is not disputed that the Defendant and the Complainant were seen spending the night together at the girls’ room in the house at the Diros Barrick when the girls were not there apart from the Defendant and the Complainant around the year 2014 (evidence of Claudia Warsal).
      
    • 16.10. It is also accepted that the Defendant treated the Complainant more favorably than any other children living in the house and the complainant DB was well aware of her preferential treatment by the defendant (DB’s evidence and the evidence of Amelia).
      
    • 16.11. It is also accepted that the Complainant and the Defendant were seen sleeping together or laying on the sleeping bed used by the Defendant and his de facto wife (Louisa Dovo) in their room while Louisa Dovo was there or was aware of it but she did not react or do anything about it and Joargim decided to do something about it in 2014 (evidence of Joargim Benjamin Tari).
      
    • 16.12. It is also accepted that the Complainant did not have good relationship with her mother Louisa Dovo (Evidence of Complainant DB) and the Complainant considered that Louisa Dovo is not her mother and treated her as if she is not her mother (evidence of Amelia).
      
    • 16.13. In 2014, Mr. Joargim was not happy with the situation that his father BB did not treat him like he should have, decided to sort out the situation. A dispute arose. Joargim wanted to assault the Complainant DB and her sister Amelia. This was in January 2014. Amelia escaped but retained in the house that night. The Complainant DB escaped to the road that night. A taxi driver named James and Alfred Loli the then passenger stopped and picked up the Complainant DB. They took her to Hakwa Nakamal and then to Second Canal at Luk Dinih Guest House where Alfred Loli stayed. In the early morning, Mr. James drove the Complainant back to her aunty’s place at Sarakata. The Defendant came and took her back to the house at Diros Barrack.
      

January 2014 alleged incident of sexual intercourse without consent

16.14. Two days after the incidence still in January 2014, the Complainant followed the Defendant at his sister’s Nakamal at Sarakata for the Defendant to drink kava. The Defendant had kava. On their way back to the house at Diros Barrack, the Defendant drove passed the house, and went to Banban area at Melbaraf notice board on the side of the road and turned to the direction of the seaside. He stopped near a mango tree. The Complainant said the Defendant told her that he made his own inquiry and found out that she had sexual intercourse with Alfred Loli on the night she escaped from the house. The Complainant testified the Defendant said to her that he is going to organize a meeting and will call on Alfred Loli’s wife to be there at the meeting and to assault her. She said he gave her two (2) options: either he will call the meeting or he will have sexual intercourse with her. She said she told him Alfred Loli did not have sex with her. About the request for sex, she said she did not say anything yet, she was still in the truck, and the Defendant went out and opened the door of the truck where she was. He pulled her outside, unzipped her trousers and panty, pushed her on to the grass, kissed her on her mouth and tongue for less than 7 minutes, removed his trousers halfway, slept on top of her and had sex with her. She said she was crying as the Defendant is her stepfather. She felt bad. She felt a pain inside her. After sex, she wore her clothes and went back inside the truck. She was still crying. The Defendant saw she was still crying, decided not to return at home, he drove the truck to Chapius area. He bought an apple and orchy and gave them to her in the truck. She ate the apple and drunk the orchy while the Defendant went to drink kava there. She fell asleep in the truck and they return home and she went straight to her bed and sleep.

16.15. The Defendant, on the event of January 2014, testified that on their way back after he had drunken kava at his sister’s Nakamal at Sarakata, the Complainant who used to sit at the backseat of the double cabin truck moved forward while he was driving and came to sit in the front passenger seat beside him. He then asked her for sex. She accepted to have sex with him that night. So instead of driving the truck home, he went to Banban area and turned aside the Melbarav notice board followed the road and stopped the truck. He had sex with the Complainant there. He denied the Complainant was crying. After the sex, he wanted to drink more kava and they went to Chapius. On their way to Chapuis, he bought an apple and an orchy and gave them to the complainant in the truck. He went to drink kava at Chapuis. When he returned to the truck, the Complainant was asleep in the truck. He drove the complainant back home.

16.16. The Complainant did not complain to her mother or any of her sisters or step brother at home that her step father had sexual intercourse with her and she did not consent to such sexual intercourse activity. She said everyone at home hate her because her step father treated her more favorably than any others at home. She did not have an easy relationship with her mother. She is more close to her stepfather than her mother.

16.17. I consider the evidence of the complainant. I also consider the version of fact given by the Defendant of the sexual intercourse event occurring in January 2014 at Banban area, Santo. I note there is no independent evidence to corroborate the version of facts given by the Complainant. The Complainant might be truthful in her evidence on the event occurring in January 2014. The question then is whether the prosecution has proved all the elements of the offence of sexual intercourse without consent, contrary to section 90 and 91 of the Penal Code, judged on the evidence of the Complainant and other evidence provided in the trial including that of the defendant. I need to come back to this later.

March 2014 alleged incident of sexual intercourse without consent

16.18. On the evidence of sexual intercourse happening between the Defendant and the Complainant in March 2014, the Complainant testified that it was a Thursday and it was school sport day. The Defendant picked her up from school and drove her home for lunch. The Complainant told him to buy her a sport top. He told her that if she wanted him to buy her a sport top, he must have sexual intercourse with her. She said she said nothing to him. She ate her lunch and she undressed herself and rounded her body with an orange towel. She went and took her bath for about 5 minutes. When she finished, she opened the door to come outside, she saw the Defendant was at the door of the bathroom. He pulled her into his room. She rounded her body with the towel. She was naked. He pushed her to the corner. He kissed her and kissed her nipples and had sexual intercourse with her. He drove her back to school, paid her sport top and picked her back home after school.

16.19. The Defendant said he was in his bedroom. He read a passage of the bible where Moses said he wrote the Genesis. He wanted to find out the truth. The Complainant came to his room after her bath. She had the towel rounded her body. She was naked. He wanted to lay on top of her but she refused as she had her bath already. She asked him instead to sit on top of him and had sex with him. The Defendant said the Complainant held on his penis at that time. This is also consistent to the Complainant’s evidence that she held the Defendant’s penis at one occasion.

16.20. On my assessment of evidence of the March 2014 event, the prosecution fails to prove that the complainant did not consent for sex at that time, nor the prosecution failed to prove that the Defendant did not have a reasonable or an honest belief that the Complainant consented to have a sexual intercourse with him as alleged in Count 2 of the information.

2015 incident of sexual intercourse without consent

16.21. In respect to the event of 2015, (Count 3), the Complainant testified that the Defendant threatened her with a “bread knife” after he asked her for sex at lunch time, she refused.

16.22. The Defendant accepted he had a bread knife in the kitchen. He denied he threatened her with a bread knife. It was a lie.

16.23. The Defendant is not charged with the offence of threats to kill a person, contrary to section 115 of the Penal Code. He was charged in count 3 with the offence of sexual intercourse without consent, contrary to sections 90 and 91 of the Penal Code. There is evidence that in the year 2015, there were sexual intercourse activities between the Defendant and the Complainant. It is also evidence that at a lunch time in 2015, the Complainant said the Defendant threatened her with a “bread knife” when she refused to have sexual intercourse with her. There is no specific evidence or detailed evidence of the facts of sexual intercourse occurring at that lunch time when she refused to have sex with him. Whether the sex occurred after the said threats with the “bread knife” is not clear or whether the threats with the “bread knife” occurred when she refused to have sex with him and he forced her with the “bread knife” to have sex with her is not clear either. The Defendant denied he threatened the Complainant to have sex with him in 2015 or at any time.

16.24. Again, here two versions of the same facts situation – which one is to be believed? The prosecution needs to show more than what is provided in the evidence. I need to come back to this later also in the consideration of the total context of the situation and allegations.

2016 incident of sexual intercourse without consent

16.25. In respect to the event in 2016 (Count 4), the Complainant’s evidence was that the Defendant had sexual intercourse with her still but not like in 2014. The Defendant did not approach her like the previous years. At one stage, at lunch time, at Palm Station, the Defendant told her that if she refused to have sex with him he will commit suicide. The Defendant said any sex that occurred at that time was consensual. He denied he threatened the complainant that if she refused to have sex with him or reported the matter, he will commit suicide. In 2016, he was in China and he was also sick. The prosecution did not put this question to the Defendant as to whether or not he would kill himself if the Complainant reported the matter.

16.26. This is an allegation of something it was said, was said in 2016, without specific facts connected to the sexual intercourse with the complainant and that she refused to have sex with him because of the threat of the risk of the defendant’s suicide. The allegation is too general for the prosecution to proceed on such a charge in Count 4.

2017 incident of sexual intercourse without consent

16.27. In respect to the event of 2017 at Palm Station (Count 5), the Defendant asked the Complainant to massage his leg. This was in his room. Then after the massage, the Defendant removed the Complainant’s panty and forcefully had sexual intercourse with her until the Defendant ejaculated, after which the Complainant wore her clothes and the Defendant dropped her back at her school at Santo Christian School. The Defendant said that this was a consensual sex. There are two versions of the facts again. Whether the evidence established the Complainant did not consent to sex at that time is for the prosecution to prove. It may be that the Complainant did not consent for sex. The other aspect is whether or not the prosecution established that the Defendant did not have a reasonable or honest belief that the Complainant consented to have sex with him in 2017 as alleged. That is a matter that the prosecution must prove beyond reasonable doubt. I will come back to this when I assess the total context of the facts and the allegations in this case.

16.28. On a total consideration, this is a case where at no stage did the Complainant attempted to report the matter, apart from 2016 when she went with her boyfriend at Beach Front while the Defendant, his de facto wife and other children attended to a retirement farewell organized by the VMF. After the farewell, the Defendant returned with others at home and saw the Complainant was at home. He asked her why she was not there and he assaulted her. She cried and she told her mother she did not come with them because her stepfather said bad words to her and asked her for sex. She said her mother did not take notice of what she said. It is noted that this is a complaint to the mother of her step father asking her for sex. But it was not a complaint that her stepfather had sexual intercourse with her and she did not consent.

16.29. It was in 2018 when she started working with the Red Cross in Santo that the matter was reported.

Application of law to facts

17. The prosecution submitted that the facts of this case are similar to the facts in the case of PP –v- Welektabit [2016] VUSC 19, where the Complainant was running away from her home and refused to return back to her home. The reason for her to escape and refuse to return home was that she was not happy of what her father did to her which she was not consented to. Her escape from home was the trigger to report the matter to the police which she did with some assistance. The facts of the present case are substantially distinguished from the case of PP –v- Welektabit [2016] VUSC 19. In the present case, the Complainant did not escape her home to lodge a complaint against her step father because he had sexual intercourse with her without her consent as alleged in counts 1, 2, 3, 4 and 5 of the information. She had left her home because she had a boyfriend and she wanted to be free with her life. Something that was not possible as her stepfather controlled her life and her actions as she testified in her evidence. Although, she had a boyfriend, she did not complain to him on her own free will or it never comes to her mind to complain to her boyfriend or to ask her boyfriend to assist her to go to the police to lodge a complaint of the fact that her stepfather had sexual intercourse with her without her consent. In any event, despite the fact that she had a boyfriend her stepfather still attempted to have control over her life again.as reflected in the evidence when her step father, among other things, went to her boyfriend’s house and told him to stop his relationship with his step daughter. Again, she did not complain to him or she did not lodge a complaint to the police. It was because the step father behaved in certain ways towards the boyfriend that the boyfriend himself suspected something. It was not the will or intention of the complainant to report the actions of the step father to the police. It was through a lengthy telephone enquiry by the boyfriend himself going into specific questions and enquiries of personal and private life of the complaint and her step father that the complainant admitted that her stepfather had sexual intercourse with her. Again, this was not a complaint that her step father had sexual intercourse with her without her consent. She admitted that her step father had sexual intercourse with her on various occasions.
    
18. I have applied my mind and considered the following case authorities: PP V. Tor [2003] VUSC 101; Ishmael –v- PP [2005]; McEwen –v- PP [2011] VUCA.
    
19. I consider the evidence of the complainant and prosecution witnesses. I also consider the evidence of the defendant himself. I further consider the overall context of what was alleged in its totality including the following:-
    
    • In 2014, the complainant was 19 years of age at that time. She is 24 years old at the date of trial. The defendant was 57 years of age and he is 62 years old at the date of trial. They are step father and step daughter. They are two adult persons. It is not disputed that they have sexual intercourse from 2014 to 2017. The defendant has preferential treatment towards the complainant. She was aware of her preferential treatment by the defendant. The complainant was closer to her stepfather than her own mother.
      
    • The Defendant and the Complainant were seen spending the night together at the girls’ room in the house at the Diros Barrack when the other girls were not there in the room apart from the Defendant and the Complainant around the year 2014.
      
    • The Complainant and the Defendant were seen sleeping together on the sleeping bed used by the Defendant and his de facto wife (Louisa Dovo) in their room while Louisa Dovo was there or was aware of it or was made aware of it but she did not react or did anything about it which prompted Joargim Tari’s reactions to do something about it in 2014.
      
    • The Complainant did not have good relationship with her mother Louisa Dovo. The Complainant considered that Louisa Dovo is not her mother and treated her as if she is not her mother.
      
    • The Complainant did not complain to her mother or any of her sisters or step brother at home that her step father had sexual intercourse with her and she did not consent to such sexual intercourse activities. She did not have an easy relationship with her mother. She is closer to her stepfather than her mother.
      
    • On the total consideration context, it is a fact that at no stage did the Complainant attempt to report the matter to anyone or the authorities.
      
    • The Complainant did not escape her home to lodge a complaint against her step father that he had sexual intercourse with her without her consent as alleged in counts 1, 2, 3, 4 and 5 of the information (like the factual situations of the case in PP v Welektabit [2016] 19). Here, she had left her home because she had a boyfriend and she wanted to be free with her life. Something that was not possible as her stepfather controlled her actions and her life as she testified in her evidence when she lived with her mother and step father at Diros Barracks and at Palm Station, Santo.
      
    • Although, she had a boyfriend, she did not complain to him or it never comes to her mind to complain to her boyfriend or to ask her boyfriend to assist her to go to the police to lodge a complaint of the fact that her stepfather had sexual intercourse with her without her consent on various occasions in 2014 to 2017..
      
    • In any event, despite the fact that she had a boyfriend, her stepfather still attempted to have control over her life again.as reflected in the evidence when her step father went to her boyfriend’s house and told her boyfriend to stop his relationship with his step daughter (the complainant). Again, she did not complain to her boyfriend or she did not lodge a complaint to the police at that time.
      
    • It was because the step father behaved in certain ways towards the boyfriend that the boyfriend himself suspected of something. It was not the will or intention of the complainant herself to report the actions of the step father to the police. It was through a lengthy telephone enquiry by the boyfriend himself going into specific questions and enquiries of personal and private life nature of the complainant and her step father that the complainant admitted that her stepfather had sexual intercourse with her on various occasions. Again, this was not a complaint that her step father had sexual intercourse with her without her consent and cannot be treated as recent complaint.
      
      • It was only then that with the assistance of the people from the Red Cross (Santo), she went with her boyfriend (Andrew) to the police in Luganville and lodged her complaint.
        
    • There is no independent evidence to corroborate the evidence of the complainant on any of the allegations in counts 1,2,3,4 and 5. This does not mean that the complainant is not truthful or that she could not be believed. It is important to understand this, here, taken the fact that the complainant is woman.
      
    • In law, the court can rely on the evidence of a witness alone, be it a woman or girl to convict an accused person for sexual intercourse without consent as I have done so in appropriate cases.
      
    • In this case, the prosecution did not provide evidence to independently support or strengthen the evidence of the complainant. The evidence in this case is based mainly on the version of facts given by the complainant in her evidence and the version of facts given by the defendant in his evidence. The question for the court is which one to believe or accept in such a circumstance? There is no pick and choose situation by the court. It will depend on the factual circumstances of each particular case.
      
    • In law, it is the duty of the prosecution to prove each and all essential elements of the offences in counts 1,2,3,4 and 5 as I have defined them at the beginning of this judgment. If there is a probability that what the defendant says in his evidence or his version of facts could be believed or raises a reasonable doubt in its likely probability on the overall assessment of the evidence, I must acquit the defendant on such an offence in that count or in all the offences in all the counts as the prosecution fails to prove the case on the criminal standard of beyond reasonable doubt. Also if the evidence of the prosecution witnesses including that of the complainant cannot be believed as it is so weak or too general or contradicted to each other on any or all of the essential elements of an offence or offences, I must acquit the defendant on that count or on all the counts. But if the prosecution proves each and all essential elements of the offences as defined on the evidence of the complainant alone and or with the strength and support of independent evidence and no reasonable doubt could exist, I must convict the defendant on any or all of the offences in the counts.
      
    • It is noted that the prosecution’s cross examination of the Defendant was more concerned and focused on the morale or biblical prohibition effect of such a relationship between the father and his stepdaughter than focusing on factual material evidence of the offence of sexual intercourse without consent as alleged and charged against the defendant in counts 1,2,3,4 and 5 (the prosecutor is reminded that the judge is the judge of fact and law but not a church pastor).
      
20. It is for the prosecution to prove each and all essential elements of the offences as charged in Counts 1, 2, 3, 4 and 5.
    
21. It may be that the Complainant could be truthful when she gave her evidence in respect to any or all of the offences in counts 1,2,3,4 and 5. However, the onus is on the prosecution to prove the charges on the criminal standard of beyond reasonable doubt.
    
22. In this case, I am satisfied that reasonable doubt exist in the overall context and totality of the evidence on the charges laid against the Defendant in this case in counts 1, 2, 3, 4 and 5 as alleged against the Defendant in the absence of any independent corroborating evidence of the complainant.
    
23. I came to the conclusion that the prosecution has failed to prove the offences of sexual intercourse without consent in Counts 1, 2, 3, 4 and 5.
    
24. I accordingly must acquit the Defendant in respect to each and all counts in 1, 2, 3, 4 and 5.
    

Verdicts

25. The following are the verdicts of the Court in respect to the defendant Benjamin Bani:
    

Count 1: Not Guilty

Count 2: Not Guilty

Count 3: Not Guilty

Count 4: Not Guilty

Count 5: Not Guilty

DATED at Luganville Santo this 28^th day of June, 2019

BY THE COURT

............................
Vincent Lunabek
Chief Justice