[1980-1994] Van LR 661
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
CRIMINAL JURISDICTION
Criminal Case No. 58 of 1993
 
BETWEEN:
PUBLIC PROSECUTOR
Plaintiff/Applicant
AND:
WALTER KOTA
CHIEF JIMMY KAWAI
CHIEF CYRIL WIS MENESU
CHIEF ANDREW KOAU
CHIEF RINGIMANU
JOSEPH NAYO
CHARLES NARUN KAUIATA
THOMAS NASUP TAURA
BARBARA TEKU MATHIAS
MARIE SALOME MORRISON
MATHIAS TEKU
Defendants/Respondents
Coram: Hon Mr Justice Downing
 
JUDGMENT
[CRIMINAL LAW - CUSTOM - CONSTITUTIONAL LAW - kidnapping - conflict between custom ruling and statute]
In this matter, Walter Kota, Chief Jimmy, Chief Cyril, Charles Narun, Thomas Naespora, Barbara Teku, Marie Salome and Mathias Teku have been charged with inciting to commit kidnapping against Section 35 and 105(b) of the Penal Code CAP 135. Section 35 provides that "it shall be unlawful to incite or solicit another person to commit any offence, whether or not that offence is committed". A person guilty of inciting or soliciting an offence may be charged and convicted as a principal offender.
Section 105(b) provides that "no person shall by force compel or by any fraudulent means induce any person to go from any place to another place. Penalty is imprisonment for 10 years".
In this matter, it is alleged that the complainant Marie Kota was forced to go to Tanna from Port Vila. This was following a meeting which was held on 1 August 1993. This meeting was a meeting of the community from the southern part of Tanna Island. The meeting had been initially called by Chief Jimmy Kawai in an effort to reconcile Walter Kota and Marie Kota, and it must be said that from the point of view of Community interest, I feel sure it was done with the best intentions, and that the chiefs who attended were primarily interested in the well-being of this couple.
Basically the evidence that I find proven, and also the facts that I find proven on the evidence are as follows:
There had been a falling out of Marie and Walter Kota and that at some stage they ceased to live together as husband and wife. On 31 July 1993 Marie Kota, in the company of 2 of her sisters went to a night club. There was some dispute between herself and her husband at the nightclub. There was some involvement of the police, but this appears to have been minor, but in any event it would appear that the community from Tanna found out about this event and as there were 2 very important chiefs who were visiting from Tanna, it was decided that a meeting would be called for Sunday morning to try and discuss the matter and resolve it. Early in the morning Mathias Teku was notified that this meeting was to take place, as were many other people. A discussion was held as to how the presence of Marie Kota would be obtained at the meeting, as difficulties had been experienced in the past, in inducing her to go to that meeting. It was resolved that the Vanuatu police would be asked to assist. It was said in evidence by Mathias Teku that the reason for using the police was to have them bully Marie Kota to come to the meeting. The police were consulted at the Police Station, and 2 police in a police truck, together with Mathias Teku, went to the house where Marie Kota was living, and forced Marie to go to the meeting. I find it most astonishing and abhorrent that Vanuatu Police had anything to do with this matter. And had it not been for the fact that they were firstly requested, and secondly agreed to go, this matter would not be where it is today. The Vanuatu Police had no authority in the legislation of this country to act as they did in this case, to bully and force a person to attend a meeting, and I propose to take this matter up to the Chief Commissioner of Police. When the police, in the presence of Mathias Teku, arrived at No 2 Lagoon, it was approximately 9am. The Complainant was approached and asked if she would accompany the police to the meeting of the Chiefs. The Complainant believed that Mathias Teku was a policeman for the Chiefs. Mathias Teku has denied this, but has admitted that he was a messenger of the Chiefs. For current purposes, I find no difference. The Complainant was told that the meeting was urgent, and having initially refused to accompany the police, the Vanuatu Police, most extraordinarily insisted that she must go. She was scared, but got into the police car at the very least out of respect for the police, and their authority. On arrival at the meeting, she found that there were many people who were already there. She consulted a Chief when she arrived, his name was Chief Joel, having sent her sister to ask for him to help. She had hoped that he would talk at the meeting on her behalf. It would appear however that he did not.
At the meeting the Chiefs and a number of other people suggested that Marie and her husband should get back together. Marie said that she did not wish to go back to her husband, as he had beaten her, and that she wanted a divorce. The meeting was then adjourned for 15 minutes, so that she could decide whether she really wanted the divorce or not. After that period, she said that she did want the divorce, and then it was the Chief Andrew who announced the decision of the Chiefs, that she must go back to Tanna. This decision appears to have been a consensual decision made by all the chiefs present. The Complainant said, and I believe her, that she did not want to go back to Tanna, and the response was that she must go back to Tanna, as it is her home, and things would be sorted out down there. Her sister was also directed to return to Tanna. The Complainant, I believe was very upset at this stage, and that she cried, indicating her upset. Mathias Teku was then asked to drive the Complainant and her sister back to their house at No 2 Lagoon, so that they could collect their clothes, and be at the Government Wharf to catch the Euphrosyne that evening back to Tanna. Joseph Naio was also in the vehicle. This was a vehicle that had, earlier that day, been driven by Walter Kota, and with Mathias Teku as a passenger, to collect Thomas Tereora, who was Secretary of the Community, and bring to the meeting. When they reached No 2 Lagoon, it was said by the Complainant that she went with her sister and started to pack up her clothes. Joseph Naio came in and sat on her bed, to make sure that she was packing her clothes, while Mathias Teku remained outside. The Complainant wrote 2 letters, one to the Association of Women Against Violence Against Women, the other to her employer, Lynn Muller, to explain that she would be away from work. I should add at this point, that her husband had informed the meeting that he would require at least 2 weeks to organise leave from his work in order to go down to Tanna to join his wife. The meeting appeared to have agreed to that, that did not procure the same opportunity to his wife.
After packing her things, the Complainant got into the car, leaving her sister behind, who had been equally ordered to go to Tanna. Mathias Teku and Joseph Naio took it upon themselves to decide that she did not have to go.
The Complainant had no money, and was taken to Mathias Teku's house, where his wife, Barbara, gave her 5,000 vatu. It was said by the Complainant that she was crying at that stage, however, Barbara Teku, in her evidence, said that the Complainant was not upset, however I prefer the evidence of the Complainant on this point, as I am totally unable to believe anything that was given in evidence by Barbara Teku, as she admitted having lied to the Court, and I discount anything that she said.
Mathias Teku, together with Joseph Naio, then proceeded with the Complainant to the Government Wharf, where I find on the evidence that they put the Complainant on to the vessel "The Euphrosyne", to be sent down to Tanna, and that this was in completion of the orders made by the chiefs at the meeting. I believe the Complainant when she said that she was crying, and that she was fearful to what would happen to her, she believes that the situation she was in was such that if she had jumped off the vessel, she would have been beaten up and put back on it, and that if the ship had left the wharf and she had swam to shore, she would have been beaten.
The Complainant arrived in Tanna the following day, having had nothing to eat since her departure from Port Vila. I find that she made attempts to report the matter to police in Tanna, and that she did not talk to the Captain of the Euphrosyne, as she was crying and too upset, and her emotional state was such that she would have been unable to get the necessary assistance. She stayed in Tanna for approximately a week and returned by air the following Saturday.
On the following Tuesday or Wednesday, she consulted the Women Against Violence Against Women's Association who gave her assistance, and then the matter was reported to the police on 23 August 1993. I draw no adverse inference from any delay in making the report.
I find that the Complainant is a thoroughly truthful witness, and that her evidence is substantially corroborated by the evidence of her sister, and various comments made by the Defendants in their evidence. I believe that many of the Defendants have been economical with the truth in giving their evidence, and would point to evidence of Walter Kota, in which he entirely omitted to say that he went with Mathias Teku to collect Thomas Nesu in spite of the fact that he was asked in detail the events of the day of 1 August.
I believe that the evidence of Chief Jimmy, and Chief Cyril was not given with any dishonesty or with a view to attire self-interest, and that their accounts of events was substantially correct and honest.
Mathias Teku, when giving his evidence, I believe was dishonest and I am unable to give very much weight to anything that he said.
For these reasons, I find the charges as laid proven, and thus convict the Defendants. It has been urged upon me that Section 12 of the Penal Code should be applied, and it provides "a mistake of facts shall be a defence to a criminal charge if it consists of a genuine and reasonable belief in any fact or circumstance which, had it existed, would have rendered the conduct of the accused innocent". I do not find that there is any mistake of facts, which would have attracted the operation of Section 12. If anything there was a mistake of law and the effective custom, but not facts.
If before giving counsel an opportunity to address me on a question of penalty, I could make some additional comments. This is a case which points up a problem which is of some significance in Vanuatu. There is a conflict I believe between the Constitution and the Statutory Law of Vanuatu on the one hand, and Custom. I wish to make it clear that this conflict is not a conflict between Custom and English or French Law, but between Custom and the Law of Vanuatu as passed by the Parliament and people of Vanuatu. It raises the question of the role of Chiefs. I think it stems from a misunderstanding of the power that the Chiefs now are able to exercise, and I think that the Chiefs must realise that any powers they wish to exercise in Custom is subject to the Constitution of the Republic of Vanuatu, and also subject to the Statutory Law of Vanuatu. Article 5 of the Constitution makes it quite clear that men are to be treated the same as women, and women are to be treated the same as men. All people in Vanuatu are equal and whilst the Custom may have been that women were to be treated or could be treated as property, and could be directed to do things by men, whether those men be their husbands or chiefs, they cannot be discriminated against under the Constitution. A significant number of cases that come before this Court are as a direct result of the failure to treat women equally, and therefore in so treating women as property as a substantial breach of the Constitution. The Constitution by Article 5(1)(b) provides for the liberty of people. It also by Article 5(1)(i) provides for the freedom of movements. The Constitution provides therefore that no person shall be forced by another to do something against his or her will. The Section 105 of the Penal Code makes it quite clear that no person shall by force compel any person to go from any place to another place. This is merely another way of expressing the right to liberty which is given under the Constitution. The use of the word "force" in Section 105(b) in my view clearly refers not only to physical force, but coercion and the threats of force. Whilst I appreciate in this case that the Chiefs were trying to resolve a problem, they did so from a very biased point of view. It was from a man's point of view and not from the woman's point of view. I believe that Mr Walter Kota was instrumental in the calling of the meeting, and it is most unfortunate that the meeting was called in the circumstances in which it was called. It is also extraordinary as I have said, that the police were used to bully the Complainant, and this has risen again from the fundamental misunderstanding of the constitutional rights by the Chiefs, together with those around the Chiefs, whether they be assistants or members of committees of the community.
It is up to the Parliament of this Nation to consider whether any amendments need to be made with the Constitution or other Legislation to clarify what is the role of the Chiefs. If I might make the comment that I think it is very important that if the role of the Chiefs is clarified by legislation, the fundamental rights of women in Vanuatu must be protected.
The convictions shall be that on the first count, I find Walter Kota, Chief Jimmy, Chief Cyril, Charles Narun guilty of inciting to kidnap, in breach of Section 35 and 105(b) of the Penal Code CAP 135. I dismiss the charge against Mathias Teku. I find Mathias Teku guilty of kidnapping as charged, I note that during the course of the trial, I dismissed the charges against Thomas Nesu, Barbara Teku and Marie Salome Morrison.
 
Sentence
Each of the Defendants with the except of Mathias Teku, in respect of the first charge be fined 40,000 vatu, shall be sentenced to 12 months jail, which sentence shall be suspended for a period of 12 months, and provided you are all or each of good behaviour, then you shall not have to serve any period in jail. You shall also pay a prosecution costs of 20,000 vatu and in default of payment of the fine and costs, you shall serve one day in jail for each 50 vatu not paid.
Mathias Teku, you shall pay a fine of 40,000 vatu and I sentence you to two and a half years in jail, which sentence shall be suspended for two and a half years, and provided that you shall be of good behaviour. You shall also pay 20,000 vatu prosecution costs and in default of the payment of the fine and costs, you shall spend one day in jail for each 50 vatu not paid.
Four months to pay fines and costs.
An application for compensation has been filed in Court.
I order that there shall be compensation in the sum of vt29,600 for special damages and vt150,000 for general damages making a total of vt179,600. This sum is to be jointly and severally the responsibility of the convicted defendant to pay. They shall pay it within 6 months. I wish to make it clear that the compensation order is a civil judgment debt and is recoverable as such and that no term of imprisonment will be given for any failure to pay it by the date ordered. Sequestration proceedings would be necessary in such an event.
Dated this 31 August 1993
DOWNING J