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Public Prosecutor v Arnhabat [2003] VUSC 50; Criminal Case No 036 of 2003 (17 September 2003)

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

Criminal Case No. 36 of 2003

PUBLIC PROSECUTOR

v

JOHNLYN ARNHABAT

Coram: Justice Treston

Mrs. Tavoa for the Public Prosecutor
Ms. Bangash for the Defendant

Hearing Date: 10, 11, 15 and 16 September 2003

JUDGMENT

The accused is charged with indecent assault under section 98 (2) of the Penal Code [CAP. 135].

The particulars of the charge are that the accused comes from Malekula and was living in the Black sand area, Port Vila and around 18 June 2003 at the Tagabe area, Vila, he intentionally massaged indecently the private parts (vagina and breast) of the woman HAPPILYN ANDRE and while rubbing her with oil, made her feel shame for a lengthy period and the actions were against her will.

I remind myself that it is the judge's responsibility to decide all questions of fact and to decide what evidence he will accept or reject or what weight he will give to any part of the evidence. I remind myself that I must come to my judgment solely upon the evidence which is placed before me in this Court and I must consider the whole of the evidence while considering my judgment. When I consider the oral evidence I must take into account not only what has been said but how it had been said because how I assess the demeanour of a witness can be a valuable aid in judging his or her reliability and credibility.

I must be objective and reach my decision without being influenced by prejudice or sympathy. It is the judicial responsibility to be impartial and to apply common sense and knowledge of human nature.

Under section 81 of the Criminal Procedure Code [CAP. 136] I am mindful that the accused is presumed to be innocent unless and until the Prosecution has proved his guilt beyond reasonable doubt. There is no onus upon him to prove his innocence and if at the end of the trial any reasonable doubt exists as to his guilt the accused will be deemed to be innocent of the charge and will be acquitted. This section was read out to the accused before the Prosecution case.

Proof beyond reasonable doubt simply means that the Court must be sure or satisfied of guilt before a judgment of guilty can be entered.

I have already ruled, for reasons which I gave in writing, that there was a prima facie case made out against the accused and I ensured that section 88 of the Penal Code was complied with, indicating to the accused that he was entitled to give evidence on his own behalf in addition to calling other people as witnesses. The accused was advised that he was not obliged to give evidence and could elect to remain silent but that if he did not give evidence that would not lead to an inference of guilt against him. The accused elected to give evidence and to call witnesses.

I remind myself that I am entitled to draw inferences or conclusions from facts which have been proved to me in evidence. Conclusions are not guesses. Rather they are logical reasonable and fair deductions from facts which have been proved. In this case the Public Prosecutor has asked the Court to draw conclusions from certain circumstances that have been proved. I will advert to that later. I remind myself I am not here to speculate or guess.

I have referred to section 98 (2) which provides as follows:-

"No person shall indecently and forcibly assault any other person not under the age of 13 years".

In my ruling in the no case to answer submission I said that I was of the view that there are four essential ingredients of that charge

(1) That there was a forcible assault; and

(2) That the forcible assault was indecent; and

(3) That the complainant did not consent to what occurred; and

(4) That at the time of the offence the complainant was not under the age of 13 years.

As to these elements I say as follows:-

1. Forcible Assault
   

An assault is the intentional application of force to another person's body. A forcible assault must necessary involve the application of force. Sometime in ordinary conversation one might speak of an assault as being something that is violent. As a matter of law that is not so. Any degree of force is sufficient to constitute an assault for example the lightest touch or a caress can be an assault as a matter of law. The same applies to a forcible assault. The degree of force might be minimal. Of course the application of force, albeit a touching or whatever, must be intentionally done. It must not be an accident.

2. Indecency
   

There is no fixed legal definition of indecency. It is for the Court to decide as a matter of fact whether what was done was indecent. The Court decides that by applying what it considers to be the standards commonly accepted in the community. In other word if the Court considers what was done was something that the community generally would regard as indecent then for the purposes of this trial it is indecent. That is a matter for the Court to assess and decide.

3. Lack of Consent by the Complainant
   

Consent in this context means a consent that is freely given by a person who is able to understand the significant of what is going to happen. If I considered that it was at least a reasonable possibility that the complainant did consent, or that the accused honestly believed that she did even if he was mistaken or had no reasonable grounds for that belief then the charge would fail. So if consent and honest belief in consent is raised, the burden is on the Prosecution to prove beyond reasonable doubt, first that the complainant did not consent and second that the accused did not have a honest believe that she consented.

4. Age
   

This was not an issue and it was quite clear that the complainant at the time of the offence was not under the age of 13 years.

As to the evidence. In general terms the Prosecution case was that the complainant was unable to conceive her own child and was informed by her husband that he knew of the accused who would be able to make her conceive a child. On 17 June 2003 Mr. Andre met the accused in town and told him he would bring his wife to him to massage her in order for her to conceive. This occurred on 18 June 2003 when the couple went to see the accused.

In evidence, the complainant Happilyn Andre said that the accused asked her to go inside the house where they were and she followed him inside. She said there was a mattress in the room on the floor. She sat on the mattress and he pulled a curtain across. She said the accused then asked her a lot of questions confirming that she really wanted to have a child, how long had she been in the de facto relationship, how many times she had intercourse with her de facto husband in a day, and whether when she had intercourse her vagina was painful. The accused then told her that her husband had been spoiling her and that was not how he should do it because the womb falls down and dirt goes inside her womb. The complainant said that then the accused explained to her a number of ways that her husband could do it to her for example putting oil under her arm and her husband would masturbate in her arm, putting oil between her thighs so that he could rub himself between the thighs, and putting oil between her breasts so that he could rub his penis between the two breasts.

The complainant then said that the accused told her to take off her panties. She said she was wearing a shirt and a skirt at the time. She took off her panties but then went outside to call her husband so that he could be present when the accused massaged her. However, her husband told her to go back inside because the accused was his brother in law and he trusted him, so she went back inside because she and her husband really wanted to have a baby. She said that she sat inside on the same mattress and the accused told her to lie down which she did. She said then the accused told her to take out her right breast which she did. She said he then poured oil on her vagina and played with the nipple of her right breast. She didn't say anything because she wanted to have a child. She said that then, while he was fondling the nipple on her right breast, he put his finger into her vagina, whereupon she said "Stop, it is enough". The accused then, said the sperm goes in here when he put his finger into her vagina. She said that the accused said that in her case the sperm did not go in there but passed outside the womb. After saying the words to stop the complainant said she got up and went out not saying anything to the accused because she was feeling very upset. The complainant said that the accused told her not to tell her husband because the things he had done were between him and her and she went out and told her husband to go and speak with his brother in law and was given other dates to attend for massage but thereafter she did not attend further.

The complainant said she did not tell her husband what happened until 24 June because if she had told him immediately before things cooled down she was scared that her husband would assault her. The complainant and her husband went to the Police station on 25 June and went back on 26 June and made a statement.

Under cross-examination the complainant said that she did not have the chance to tell her husband that she was uncomfortable when she went outside for the first time because both of them wanted to have a child and she went back inside when he told her and she did not have a chance to say anything to her husband.

She said that the reason she had not left when the accused asked her to take out her right breast and poured oil into her vagina was because she really wanted to have a child. She accepted that the accused did not use force to make her lie down and did not talk strongly to her and she agreed that the accused had held her abdomen after he had held her nipple and put his finger into her vagina. The complainant denied asking the accused to masturbate her or to hold onto her nipple.

Mr. Andre, the complainant's husband said that he had met the accused in the township of Vila and the accused told him that he could message ladies to allow them to become pregnant. He said that is why he took his wife around to have the accused massage her. He said that his wife had been in with the accused in the first occasion for 30 minutes before she came outside and asked him to come inside but that he did not have bad thoughts about his brother in law, the accused, and he did not consider it appropriate for him to go inside. Mr. Andre said that the second time his wife came out of the house she showed a different face and it seemed that she was angry. He agreed that if she had told him immediately what had happened he would have assaulted her and the accused.

He said that it was on Tuesday 24 June at 22.15 p.m. that the complainant told him why she did not want to go back to the accused and what he had done.

The last witness for the Prosecution, Esneth Hosea, said that she had been massaged by the accused and there had been nothing untoward and he simply massaged her abdomen.

The accused elected to give evidence after the Court ruled that there was a case to answer. He said that he had been massaging for about 44 years including mothers so that they could have babies. He said that he came to Port Vila on 13 December 2002 because Elsie Sawia had paid for him to come here and massage her.

The accused said he did not charge people to massage them because he did not have a license to do the job and just did it to help them out and only massaged women's abdomen to place the womb properly. He said that the session generally took about 2 minutes and only took that long on that occasion with the complainant. He said that after the massage he asked them to tie up their abdomen and if they did not have a cloth they could do it after they had gone home.

He said he had not known the complainant before but her husband brought her over and they went inside and said why are you coming to see me and she told him that she and her husband were trying to have a child and could not. He said that the problem belongs to you and your husband the womb is not placed properly and that he would massage her abdomen and put back.

The accused said that he told the complainant to lie down and he would do the massage and asked her to lift up her shirt and he would massage her abdomen. He then said that the complainant told him that she didn't care about the brother and sister relationship but she wanted something to happen and she took off her panties causing him to turn her face away. He said he sent her out to see her husband saying that he should be in there when the massage was going on. He eventually did say that she asked him to masturbate her and replied that he would do the job that he was suppose to do and would not do anything else and after he had massaged her abdomen he told her that if she had a cloth he would tie her abdomen up but if she did not she would have to go back home and tie herself up.

The accused said he put oil on her belly and massaged her abdomen. He then got up and washed his hands in the sink as he always did between massaging people for health reasons.

He accused said that the complainant and her husband were trying to spoil his job of massaging and that she had asked her to do something that he could not do because they are like brother and sister.

The accused agreed that he told her that if there was dirty inside the womb he would attend to that but would not be part of playing with her private parts as she asked because that was between herself and her husband.

He said that Patricia Talai's husband had come in and got a cup of tea and drunk it and had breakfast. He said that he did notice that the complainant looked upset and her husband had asked when they should come back and he told them two other dates.

He said that his method was not to pour oil on a person but to dip oil onto his fingers and then rub it on their abdomen and he would get more on his fingers until there was enough to massage the person.

The accused said that he had had no other complains against him for the 44 years while he was doing massage he is married with 4 children, two boys and two girls.

The accused denied asking the complainant about her sex life or giving details about the alternatives method of having sex and said that the only question that he had asked the complainant is why had she come to see him.

Thereafter under cross-examination the accused was reluctant to say that he had said to the complainant that if she had dirty inside her womb she could not conceive a child. He then said that the complainant was wearing an island dress and a petticoat underneath that and that he asked her to pull her dress up to reveal her abdomen.

He denied that he had had bad thoughts about the complainant and said he could not do what was alleged particularly in his daughter's bed which would be very shameful for him. He denied telling the complainant to take off her panties and said that all he had done was put her womb back with the massage on the abdomen and there was no need to touch her breast or private parts which are not connected with the womb.

Patricia Talai gave evidence and confirmed that the massage with the complainant had taken place at her house and that the complainant appeared to be the same both when she arrived and went in and out of the house for the first time and the second time. She said that she did not notice anything different about the complainant's manner of walking when she came out but she said that the complainant was wearing an island dress and a cardigan.

The other three witnesses for the accused Elsie Sawia, Eveneth Richard and Greenlyn Tavuti were effectively called to give character evidence and each one said that they had been massaged by the accused who had only massaged their abdomen and that there had been nothing untoward.

In closing submissions the Prosecution submitted that the two elements of indecent assault had been proved beyond reasonable doubt. There had been proof, it was submitted, that an assault had taken place on the victim. The victim had remained consistent in her evidence under cross examination and it was clear, the Prosecution submitted, that while she had consented to have a massage she told the accused to stop when he fondled her breast and touched her in her vagina. The Prosecution conceded that the accused did not force the complainant in a harsh way or threaten her in any fashion but it could be inferred that she thought that to have a baby the accused would massage her but she would not consent to any other actions below the naval or above the abdomen area.

The Prosecution submitted, in summary that the House of Lords test as to an act of indecency as set out in R v Court (1999) AC 28 was whether what occurred was so offensive to contemporary standards of modesty and privacy as to be indecent. Here the Prosecution submitted that the actions of fondling the breast of the complainant and inserting a finger into her vagina was clearly an act of indecency, which had been established. It was clear that the victim was not consenting, the Prosecution contended, because she had told the accused to stop when his finger was in her vagina and thereafter he started to massage her abdomen area, but that was too late. It was submitted that the elements of force and lack of consent and indecency were all proved by the Prosecution.

On the other hand the defence submitted that the Prosecution had not proved each and every ingredient to the necessary standard. The prime defence submission was that the alleged acts had never been committed by the accused, but if the complainant's evidence were accepted, the defence submitted that the charge had not been proved beyond reasonable doubt. That was because the complainant sought out the services of the accused and willing went to where he was. She said he had asked her to remove her panties and she did so unquestioningly and went out the first time because she wanted to have her husband with her. The defence submitted that because she did not tell her husband that (1) the accused had asked her to removed her panties and (2) he had made comments about her sex life and (3) had told her different way to have sex with her husband, when she had the opportunity to do so, that that was an indicator that the complainant could not be accepted. It was submitted that any reasonable person in the situation of the complainant would have mentioned this to her spouse outside, but she did not do so. To say that she did not have the chance was not a suitable response. She should have said something. It was submitted that there was no evidence from the complainant that her husband had forced her to go back inside the house by some threat or other.

The defence then submitted that the complainant, on returning into the house, was asked to lie on the mattress and remove her right breast from under her clothing, with which she complied. The defence said that a query must be raised as to what was going on in the complainant's mind. She then said that the accused poured oil into her vagina and she said nothing and again the defence submitted that it was not a satisfactory response simply to say that she wanted to have a baby and was prepared to do whatever the accused suggested. It was submitted that a reasonable person would have done something to prevent what was going on and to prevent something further from occurring.

The complainant's evidence was that a small child entered the house and came into the room where she was to get a shirt for her father and that the accused stopped and sat down on the mattress beside her. Again, the defence submitted that the complainant did not take any action to prevent anything else happening, and simply to say that she wanted a child was not enough to equate to silence. The defence said that one would have expected that she would have done something.

The defence submitted that there was no suggestion of any threat or violence from the accused and there was no dispute that the complainant was not in isolation and to the contrary she was situated where people nearby were close enough to call out to for assistance or help and could have been summoned. She said the father of the young girl entered the home and the complainant failed to take any steps to say anything to anyone or to remove herself from the situation. The defence submitted that it was only when the accused inserted his finger into her vagina that she said stop, enough, and that once he had removed his finger she said that the accused massaged her abdomen.

The defence said it was all too convenient for the complainant to say that she had not consented to what was happening. Additionally the defence submitted that the complainant only reported the matter to the police after she told her husband what the accused had done to her and that was seven days later. The defence submitted that questions must be asked that to why she did not tell anyone else. Exposing her right breast because he asked her to do so was not a good enough explanation because, after all, the complainant was not a child but an adult married woman presumably familiar with sex and sexual acts. The defence submitted that the complainant should have done something before the acts happened and the accused said that even if her evidence was accepted she could be seen to be consenting to what had occurred.

However, the prime submission for the accused was that he did not commit the acts, did not talk about her sex life or sexual activities with her husband, and did not ask her to remove her panties which she herself had done. The defence said that it was the accused who asked her husband to come inside and he did not ask her expose her right breast and did not pour oil inside her vagina and did not place his hand on the right breast and did not insert his finger inside her vagina. Again the defence submitted that it was far too convenient for the complainant and that the evidence showed that she did not say "Stop that is enough", immediately the accused inserted his finger or when he poured oil onto her vagina. It was submitted that the Court must have some doubt about her lack of consent.

The defence submitted that the accused was a credible witness who gave strong evidence supported by his character witnesses and that a reasonable doubt should exist.

I have had the opportunity to see and hear the witnesses and to make findings as to credibility. The accused has given evidence. I already said he did not have to do so or call other people to give evidence on his behalf and the fact that he had done so does not mean that he had taken on the responsibility of proving him innocent. The onus of proving guilt remains on the Prosecution. However, the defence evidence allows for essentially three possible conclusions as follows:-

(1) I may think that the defence evidence is credible and reliable and a convincing answer to the Prosecution evidence. If that were the case then clearly my verdict would be not guilty.

(2) I may think that although the defence evidence or part of it is not entirely convincing it leaves me unsure of what the true position is, in other word it raises a reasonable doubt in my mind. If that were the case then it follows from what I have said that my judgment again would be not guilty.

(3) I might think that the defence evidence or part of it is entirely unconvincing and reject it as unworthy of belief. If that were my view of course I should be careful not to jump from that conclusion to an automatic conclusion of guilt or even regard that as adding to the case against the accused. If that were the situation I would need to go back to the rest of the evidence and to make sure that the Prosecution had proved the essential ingredients of the charge beyond reasonable doubt.

As to the character evidence, I have heard evidence from Esneth Hosea, Elsie Sawia, Eveneth Richard and Greenlyn Tavuti that the accused had previously massaged them and that they regard him as a person who enjoys a good reputation in that area. That sort of evidence is primarily relevant to his credibility. Clearly I may give it such weight as I think appropriate in deciding whether I believe what he says. I may also take that evidence into account as part of the evidence as a whole in deciding whether it is likely that a person who is said to have that sort of character is likely to have committed the crime. How much weight I give it in an appropriate context is a matter for the Court. It needs to borne in mind however that having a previously good character is not of itself a defence and it is a matter of logic that people can offend for the first time.

I turn to questions of credibility of the witnesses in this case.

I have had the opportunity of seeing and hearing the witnesses and making assessment as to credibility. As I previously said I take into account not only what had been said but how it had been said in assessing the demeanour of the witnesses.

I found the complainant to be a reliable and credible witness. Despite rigorous cross-examination she did not change her testimony in any material way and I accept her evidence as to what the accused said to her and did to her. I accept that her main focus was her desperation to have a child and she was prepared to do almost anything to that end until the actions of the accused became intolerable whereupon she immediately told him to stop that was enough.

On the other hand, I do not accept the evidence of the accused. He tended to be contradictory, evasive and unreliable. A graphic example of his evasion was when he declined to answer a particular question on three occasions when asked whether he had told the complainant that if she had dirty inside her womb she could not conceive a child. He only finally conceded that he had in fact said that to the complainant when asked about it in re-examination. That was so despite having said that he had no conversation with the complainant during or after the massage.

In addition the accused and his evidence contained many contradictions both within his testimony and as between him and his witnesses. I deal with but some of them.

(1) Initially the accused said he told the complainant to lift up her shirt/top so that he could massage her. Later he said that she was wearing an island dress and a petticoat.

(2) He said the complainant was inside for about 2 minutes whereas his witness Patricia Talai said that the complainant was inside the house on the first occasion for 2 to 4 minutes and on the second occasion for 5 to 6 minutes. The accused said that the massage itself took 2 minutes which is again contradictory and it defies common sense to find that the complainant was only inside for two minutes

(3) Patricia Talai said that the complainant was wearing an island dress and a cardigan but the accused made no mention of the cardigan.

(4) The accused said that he would not pour oil on the person but would dip his finger into oil and rub it onto the abdomen until there was enough to massage them. The witness Eveneth Richard who was called by the defence said that the accused used coconut oil to massage her and poured it on her abdomen and then massaged her.

No doubt there are other contradictions but I highlight those few by way of example.

In addition there were significant matters, some of substance, which were not put to the complainant or other prosecution witnesses. This is not necessarily the fault of defence counsel but goes to the credibility of the accused because it gives rise to the reasonable inference that he has not been completely candid and has been making up the evidence as he goes along.

Example of matters not put are as follows:-

(1) The accused said that the complainant and her husband were planning for some reason or other to spoil his job of massaging.

(2) Patricia Talai's husband came inside and had a cup of tea and had his breakfast.

(3) The complainant said that she was wearing a skirt and a top. The defence evidence later was that she was wearing an island dress and a petticoat and a cardigan.

(4) The accused said he did not pour oil on the complainant but dipped his finger in oil and rubbed it on the complainant's abdomen near the belly button.

In summary I find the accused to be unreliable, evasive, contradictory and inconsistent and I do not accept his evidence.

I turn to whether the evidence of the Prosecution has established the essential ingredients that I have outlined above.

(1) I find that there was a forcible assault. I find that the forcible assault consisted of the accused fondling the nipple of the complainant's right breast and at the same time inserting the finger of the other hand into her vagina. That was clearly an assault and that was the intentional application of force to the complainant's body. I find that it was a forcible assault because as a matter of law any degree of force is sufficient to constitute an assault. In this case the degree of force was perhaps medium but it was nevertheless a forcible assault.

(2) As to whether the forcible assault was indecent I find that it was clearly was. As a matter of fact, when I apply the standards commonly accepted in this community, there can be no reasonable doubt that, subject to consent, fondling the nipple of a breast and placing one's finger into someone's vagina without that consent is clearly something that the community generally would regard as indecent in the context of a massage.

(3) As to consent, I find that the complainant did not consent to what occurred. As I have already indicated that her overriding concern and focus was on having a child and she was prepared to do almost anything to achieve that end, but when the matter went beyond the bounds of a massage into an indecent assault she immediately said stop that is enough. I do not accept the defence submission that any reasonable person would not have gone back into the house having been asked to remove her panties and no reasonable person would have complied with the accused's request to take out her right breast. Common sense dictates that the complainant had not foreseen what was about to happen. Immediately when it did happen she indicated in no uncertain terms that she did not consent to what was happening. I do not consider that it is even a reasonable possibility that she did consent and certainly I do not accept that the accused honestly believe that she did consent to what he was doing. In any event that is inconsistent with his evidence that the actions complained of did not occur. I find as a fact that the complainant said stop it is enough immediately when the accused fondled her breast and inserted his finger into her vagina, thereby expressing her lack of consent.

As to the character evidence I find that, simply because the accused did not indecently assault those witnesses that that is of itself a defence. I find that that accused has offended on this occasion and I give little weight to the fact that on previous occasions that he had been massaging women in similar circumstances he did not commit a crime. There can always be a first time and this is the one for this accused.

I have already said that I do not accept the accused's evidence that the events did not occur or that the complainant consented to what did occur.

(4) The defence does not make an issue as to whether the complainant was not under the age of 13 years. She clearly was a woman of middle age and that is not an issue.

In summary I find the Prosecution has proved the guilt of the accused according to law beyond reasonable doubt by means of evidence properly admitted. He is accordingly convicted on the offence of indecent assault.

Mr. Arnhabat I inform you that you have a right to appeal against this decision and that you have 14 days in which to lodge any notice of appeal.

Dated AT PORT VILA, this 17th day of September 2003

BY THE COURT

P.I. TRESTON
Judge