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Public Prosecutor v Jonah [2025] VUSC 119; Criminal Case 3804 of 2024 (12 March 2025)

PUBLIC PROSECUTOR

v

MICAH JONAH & OBED HIWA

Date of Ruling: 12^th March 2025

Before: Justice Josaia Naigulevu

Counsels: Acting Public Prosecutor – Mr. Christopher Shem

Public Solicitor – Mr. Harrison Rantes

RULING

The Submission

1. At the close of the prosecution case in the trial of Micah Jonah and Obed Hiwa, Mr Harrison Rantes, the counsel defending the two accused persons presented a motion stating that there was no case to answer for his two clients that required them to present their evidence. This motion was made pursuant to section 164 (1) of the Criminal Procedure Code.
   
2. The prosecution at that point had called the lone witness Alvin Jimmy, the complainant to testify. Earlier three other statements, those of Douglas Jason, Jimmy Jason and Fred Naura had been admitted as evidence on the basis of a Memorandum of Agreed Matters filed on the 11^th March 2025. We shall refer to those statements later.
   
3. Mr. Shem chose not to respond to the defence motion.
   
4. The submission did not cover count 2, a count relating to the offence of domestic violence against Obed Hiwa alone. That count is being dealt with separately after an early guilty plea by Hiwa.
   

The Law

5. Section 164 (1) of the Criminal Procedure Code provides:
   

“If when the case for the prosecution has been concluded, the Judge rules as a matter of law that there is no evidence on which the accused person could be convicted, he shall thereupon pronounce a verdict of not guilty.”

6. This section has been authoritively interpreted by the Court of Appeal of Vanuatu in the appeal case of Public Prosecutor v Suaki [2018] VUCA 21. Their Lordships made important statements of the law in paragraphs [10] and [11] of their judgment.
   
7. In the present case, there are two passages in paragraph 11 of their Lordships judgment that I wish to highlight. The first is their statement that:
   

“the question which the judge has to consider at the close of the prosecution case in a trial of indictment or information is whether the prosecution has given admissible evidence of the matters in respect of which it has the burden of proof.”

8. The second is the passage stating:
   

“It seems to us therefore that a consideration of a no case to answer by a judge’s own motion or a submission of no case to answer ought to be upheld in trials on indictment if the judge is of the view that the evidence adduced will not reasonably satisfy...a judge of fact, and this we think will be the case firstly when the prosecution has not led any evidence to prove an essential element or ingredient in the offence charged, and secondly where the evidence adduced in support of the prosecutions case had been so discredited as the result of cross-examination, or so contradictory, or if so manifestly unreliable that no reasonable tribunal or jury might, safely convict upon it.”

9. In the Court’s assessment of the evidence in the present case, the determination of whether or not there is a case to answer essentially turns on the first limb of the two-part inquiry that a judge must engage in, and that is whether the prosecution has led admissible evidence to prove all the elements of the offence.
   

Charge

10. The amended Information filed on the 10^th March 2025, aside from the domestic violence count, preferred two separate counts one against each of the two accused persons for sexual intercourse without consent contrary to section 90 (a) of the Penal Code.
    
11. The element of the offence of this offence is threefold:
    
    1. That sexual intercourse occurred between the complainant and each accused person on the 5^th September 2024;
       
    2. The complainant did not consent to the sexual intercourse with the accused persons;
       
    100. The accused persons could not have reasonably believed that the complainant was consenting to the sexual intercourse.
         

Assessment of the evidence

12. During the course of the trial the complainant was asked whether anything happened in the presence of the two accused persons separately on the night of the 5^th September 2024. In relation to the first accused Micah Jonah, she said that whilst in his room, the accused person did not have sex with her.
    
13. In relation to Obed Hiwa, her evidence pointed to the fact that nothing significant occurred after they returned from town. They did not enter the bush as suggested to her. The prosecutor did not press the point after that.
    
14. Having heard the evidence of Alvin Jimmy during her examination by the prosecutor, the Court concludes that the prosecution has not led any evidence, to prove any of the three essential ingridients of the offence of sexual intercourse without consent.
    
15. The three recorded statements that were exhibited earlier by agreement did not help advance the prosecution’s case.
    

Findings

16. In light of the terms of section 164 (1) of the Criminal Procedure Code, and applying the test pronounced by the Court of Appeal in the Suaki appeal to the entire evidence adduced by the prosecutions, I accept the submission made on behalf of the two accused persons in relation to the offence of sexual intercourse without consent.
    
17. There is no evidence upon which they could be convicted. I must accordingly pronounce a verdict of not guilty for the two accused persons in relation to that charge.
    
18. They are accordingly acquitted of the charge of sexual intercourse without consent. The effect of this ruling is that Micah Jonah will be released from prison today, whilst

Obed Hiwa must remain in custody until the count of domestic violence is resolved.

DATED at Port Vila this 12^th day of March 2025
BY THE COURT

.................................................
Hon. Josaia Naigulevu
Justice