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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATUCRIMINAL JURISDICTION
Criminal Case No.17 OF 1998
<PUBLIC PROSECUTOR
-v-
MICHAEL JOHNNY
Public Prosecutor for the State
Public Solicitor for the Defendants<DECISION ON NO CASE SUBMISSION
No case submission is governed by section 1 the CPC which requires s the Judge to rule as a matter of law whether there is evidence or not to either invite the defendant to answer the charges alleged against him or not.
The leading case which had been adopted in this jurisdiction in deciding a case to answer or not is Reg v. Gulbrath (C.A.) which basically required that the judge requires to satisfy, whether it is unsafe for the jury to convict and secondly he should do only this if there is no evidence upon which a properly direct jury could properly convict on it.
This is a rape case and even though corroboration in law is not required at least the evidence of the witness must be reliable and not inconsistent, and this is vital in a case where the victim in a rape case is the only sole and primary witness.
The evidence shows that Rose had sexual intercourse twice already with Michael. That day Michael, Jubili and Rose had lunch together at Michael’s house. After having lunch Michael and Jubili left first to go and fix a cow fence. Rose left after to go back to her village and on her way she met Michael and Michael asked to have sex with her but refused and they continued to walk on together with Michael. After sometimes, after Michael had continued to offer to have sex with her she finally agreed to have sex with him and that can be shown from her attitude. Her attitude being that there were no resistant or even any act of refusal by Rose or violence by Michael. In cross-examination she also admitted that if only Michael had sex with her she would not mind. After Michael having sex with her Michael took off and Jubili came in to her.
Jubili at that time covered his face with a piece of cloth which I believe he did not want Rose to see him. Jubili's statement to the police as tendered stated that he did not have sex with her as he tried to but Rose kicked him off and he left after. Where as the evidence of Rose are in two parts, in examination in chief she said that Jubili also had sex with her that is by penetration and also in re-examination, in cross-examination she said the opposite as in two questions as follows:
Q. Jubili only tried to push his penis into your vagina but did not happen but he tried only. That is his penis did not go into your vagina.
A. Yes.
Q. What you said that Jubili pushed his penis inside is not true.
A. Yes.
Q. When you said Jubili had sex with you meant when Jubili was undressed and he was there with you.
A.. Yes.
The variation of evidence of the only witness who is the victim herself in a rape case when it is inconsistent it becomes unreliable and also raises the question whether she is telling the truth or not unless that inconsistency can be verified by other evidence of truth which is not the case in this matter. Even the cousin brother who said that she came and told him of what happened appeared not to know the real brother of Rose, which I find it hard to believe, as he also comes from the same village and a true cousin of the victim. Again this raises the question of whether he is telling the truth or not.
As stated earlier that if there are no other corroborating evidence in mainly sexual offences cases the Court can still rely on the evidence of the victim alone for conviction but the danger is this if it is inconsistent and not corroborated in any way it is not safe for the court to rely on for conviction.
In this matter I am satisfied that Michael had sexual intercourse with Rose and that sexual intercourse was lawful. As for Jubili I am satisfied that he wanted also to have sexual intercourse with Rose but this did not happen or to say sexual intercourse did not take place. In this case when Jubili wanted to have sexual intercourse with Rose she pushed him off and Jubili left her. If sexual intercourse did take place between Jubili and Rose then the evidence as received from the Prosecution witnesses is insufficient to rely on to invite the defendant to answer the said charge. For these reasons I find no case to answer against both defendants on their respective charges and therefore I do find them not guilty as charge. I now dismiss the charges against them and these are my reasons for doing so.
DATED AT PORT-VILA, this 4th DAY OF NOVEMBER 1998
BY THE COURT
REGGETT MARUM MBE
JUDGEDaniel Willie for the Public Prosecutor
Reynold Liu for the Public Solicitor
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