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Public Prosecutor v Sablan [2003] VUSC 37; Criminal Case No 020 of 2003 (3 July 2003)

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

CRIMINAL CASE No. 20 of 2003

PUBLIC PROSECUTOR

-v-

NAUSE SABLAN

Coram: Chief Justice Vincent Lunabek

Counsels: Mr. Eric Sciba for the Public Prosecutor
Mr. Hillary Toa of the Public Solicitor’s Office for the Defendant

JUDGMENT

The defendant, Nause Sablan is charged with two (2) counts: (1) Indecent Assault, contrary to Section 98(2) of the Penal Code (in count 1) and (2) Attempt to have sexual intercourse with his daughter, contrary to Section 28(1) and 95(1)(a) of the Penal Code Act [CAP. 135].

The offence in Count 1 is that Nause Sablan is from Efate and he lives at Erakor Village. On or about 15 March 2003 in his house at Erakor Village, he indecently assaulted his daughter B.S. by touching her private part and inserting his finger inside her vagina. At that time she was only 15 years of age and she is his daughter.

In count 2, it is alleged that the defendant, Nause Sablan, on 15 March 2003, in his house at Erakor Village, the defendant attempted to have sexual intercourse with his daughter B.S.

The defendant pleaded not guilty to both counts.

The prosecution case is that on 13 March 2003, at 3.00AM o’clock in the morning, the girl complainant helped her mother putting marketable goods into the truck. Her mother, then, left for market at Port-Vila. The girl returned in the house. The defendant/father was in the house. The defendant called the victim twice. First, he gave her biscuits to eat. She returned to her bedroom and read a book. Second, he called her and forced her to remove her cloth and laid on the bed. The defendant touched her breasts and her private part and inserted his finger into her vagina. He also attempted to have sexual intercourse with the girl.

The defence case is that the defendant is insane. He has a sick mind. He could not recall about the alleged offences or when and how the offence are committed.

Section 81 of the Criminal Procedure Code was read and explained to the defendant before the prosecution opened her case.

Section 88 of the Criminal Procedure Code was read and explained to the accused at the end and closing of the prosecution case.

The defendant understood his rights under ss. 81 and 88. The defendant is also informed that he has the onus to prove the defence of insanity on the balance of probability. The trial proceeded on the basis that the alleged two (2) offences are not committed but strongly disputed.

The prosecution called two (2) witnesses: the girl-complainant and her mother Marika.

The girl-victim (complainant) gave evidence that on 15 March 2003, in the early morning at about 3.00 am, after she helped her mother by putting the goods for her mother to do market at Port-Vila market, she returned to her bed. Her mother left.

Her father called her in her parents’ room. He forced her to remove her clothes. If she refused, he will cut her with a bush knife. She cried. The defendant touched her breasts, her private part. He inserted his finger into her vagina.

She gave evidence, her father is sick. Something he could not recall of what he did. Her father gets cross for little thing. Even if nothing is wrong her father gets cross and started to assault her mother. This happened to him when he drunk kava, alcohol and even when he had no kava or alcohol. She knows her father was sick. She said “head blong hem i rong”. She would be happy if her father gets special treatments. She is now living with her grand mother in a different house. She wanted to come back and live with her parents if her father is properly treated.

Marika is the wife of the accused. She gave evidence that her husband’s mind started to be affected sometimes in 1988-1989. She said before 1988 he was alright. In 1988, the defendant was bodily assaulted with a bush knife on the left side of his head. He spent some time in hospital almost two months. After the hospital, he started to change. He got crossed for little things. He hit the wall of the house with his head. She never got him to the hospital. She does not know whether there is treatment for that kind of behaviour. She would be happy if her husband could get proper treatment.

She gave evidence that sometimes the defendant broke lovers or things in the house. She talked to him but he could not recall about what he did. He looked worrying.

At the end of the prosecution case, the Court ruled that, as a matter of law, there is a case for the defendant to answer in respect to Count 1. The defendant is therefore required to put forward his defence in relation to Count 1.

As to Count 2, there is no case requiring the defendant to answer. The defendant could not be convicted on the strength of the evidence adduced by the prosecution in respect to Count 2. The offence as charged under Count 2 is, thus, dismissed. The defendant, Nause Sablan, is discharged and acquitted on Count 2 accordingly.

The defendant gave evidence. He could not recall about the alleged offence. He could not say what or how they occurred. He knows about the alleged offence when he was in Court. He was arrested on 14 March 2003 by the police and kept in police cell until released on bail. He was seriously assaulted by his “small papa” Alexandre Sablan in 1988 with a bush knife on his left head, left arm, and left of his back side. After the assault he started to have problem with his mind.

He gave evidence that for minor thing. He must leave. When he did something, he first slept before he could calm himself down.

In Court, he realized he has broken the law. He says sorry to his daughter. On the whole of the evidence before me, there is no dispute that the defendant committed the offence of indecent assault on 13^th March 2003 at 3.00AM o’clock in their bedroom on his daughter. The defendant admitted to this effect. The defendant’s counsel conceded also to this effect.

On the basis of the evidence before me, I find that the defendant has a mental disorder or deficiency which leads to an absence of self control during the commission of the offence in count 1. The evidence shows that this mental disorder has manifested itself in violence and is prone to recur. The evidence of the defendant which is supported by the evidence of the victim girl and her mother lead to this effect.

By applying Section 20(1)(2) of the Penal Code Act [CAP.135], I find that the defendant, Nause Sablan, is insane. The defence of insanity is proved on the balance of probabilities.

VERDICT

1. The defendant, Nause Sablan is acquitted of the offence as charged in Count 1.
   
2. The victim girl was seriously affected. It was very painful for her to give evidence against her father doing the trial. Since there is no specific confinement scheme in Vanuatu, I consider it is essential to protect the defendant, the victim daughter, the family and the community, to adjourn the matter to consider and explore a restorative justice process based on custom, village and traditional “welfare or social support” under Section 20(3) of the Penal Code Act [CAP 135] and Section 119 of the Criminal Procedure Code Act [CAP. 136].
   
3. The next date for hearing is set on Monday 14 July 2003 at 1.30PM o’clock in the afternoon.
   

Dated at Port-Vila this 3^rd day of July 2003

BY THE COURT

Vincent LUNABEK
Chief Justice