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

Criminal Case No.40 of 2004

Public prosecutor

-V-

HARRY SIMEON

Coram: Justice H. Bulu

Counsels: Mr. Lent Tevi for the Prosecution
Mr. Christopher Tavoa for the Defendant

Date of Hearing: 21 April 2006
Date of Decision: 1 August 2006

JUDGMENT

Introduction

1.	The accused faced two counts of alleged offences contrary to the Penal Code Act [CAP. 135] namely rape contrary to section 91 and Incest contrary to section 95 (a). 

2.	The accused pleaded not guilty to both counts and trial took place at Lamen Bay, Epi on 21 April 2006. 

3.	The accused and the victim’s father are both from Epi. The victim’s mother is from Paama. The victim called the accused “dadi” and his wife “Mami”. 

4.	Some time in July 2001 permission was obtained from the victim’s parents so she could spend some time with the accused’s family to help in cutting copra. On the relevant date in the night, the accused had sex with his wife and the victim as well. 

5.	The issues arising in this criminal proceeding for the determination of the Court are:- 

(a)	Whether the accused committed incest when he had sexual intercourse with the victim; 

(b)	Whether the accused forced the victim into submission and had sex with her against her own free will.  

Law

6.	Incest is defined in section 95 (1) of the Penal Code Act [CAP. 135] as “sexual intercourse between – 

(a)	parent and child (including an adopted child); 
(b)	brother and sister, whether of the whole blood or of the half blood, and whether the relationship is traced through lawful wedlock or not; or 
(c)	grand parent and grandchild, where the person charged knows of the relationship between the parties.” 

7.	Subsection (2) prohibits persons of or over the age of 16 years from committing incest. The offence attracts a maximum penalty of 10 years. 

8.	Section 91 of the Penal Code Act [CAP. 135] states in no uncertain terms that “no person shall commit rape. Penalty: Imprisonment for life.”

9.	Section 90 defines rape as follows:-

“Any person who has sexual intercourse with a woman or a girl without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representation as to the nature of the act, or in the case of a married woman by impersonating her husband, commits the offence of rape. The offence is complete upon penetration.”

10.	I remind myself of the judge’s responsibility in a criminal trial.

11.	I remind myself that it is the judge’s responsibility to decide all questions of fact and to decide what evidence I will accept or reject or what weight I 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 all of the evidence when 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.

12.	I remind myself that under section 81 of the Criminal Procedure Code Act [Cap. 136] the accused is presumed to be innocent unless and until the prosecution had proved guilt beyond reasonable doubt. The onus is not on him and if at the end of the trial any reasonable doubt exists as to guilt the accused must be deemed to be innocent of the charges laid against him and be acquitted.

13.	Section 81 of the Penal Code was read out to the accused and translated into pidgin for the accused before the Prosecution case.

14.	Section 8 (1) of the Penal Code provides that no person shall be convicted of any criminal offence unless the prosecution shall prove his guilt according to the law beyond reasonable doubt by means of evidence properly admitted; the determination of proof of guilt beyond reasonable doubt shall exclude consideration of any possibility which is merely fanciful or frivolous.

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

Did the Accused commit incest when he had sexual intercourse with the victim?

16.	No submissions were made either at the end of the Prosecutions case nor at the end of the Defence case. Counsels on behalf of both the State and the accused were content to leave their case as was put to the Court through the witnesses evidence.

17.	The Prosecutions called 4 witnesses, namely the victim’s father, the victim, accused’s wife and the Police officer who interviewed the victim and the accused.

18.	Ben Joseph (victim’s father) gave evidence that he is married with 5 children. One of his children is the victim. In Bislama, as is the practice, he calls the accused his brother. In effect they are first cousins as he went on to give evidence that his father and the Accused father were brothers. On cross-examination this witness admitted that the accused is not the victim’s biological father. 

19.	The victim gave evidence that the accused is her Dadi. On cross-examination the following were put to her:- 

“Q: 	Harry Simeon ino stret papa blong yu? 
Ans:	Hemi stret papa blong me. Dadi blong me wetem Harry ibrother. Mi singaotem Harry Dadi. 
Q:	Dadi blong yu italem long Court se hem mo Harry dadi blong olketa i bratas. 
Ans:	Yes. 
Q: 	Stret papa blong you i Ben? 
Ans:	Yes.”

20.	The third witness for Prosecution, who is the accused’s wife gave evidence that Harry Simeon, the accused is not the victim’s father. Ben Joseph is the father. 

21.	The accused in his evidence told the Court that Ben Joseph is the victim’s father. Further that his father and Ben’s father are not brothers. Ben’s father is from Lamen Island whereas his father is from Sara from the family William Tambe. 

FINDINGS

22.	As to Count 1, I am not satisfied beyond reasonable doubt that the accused did commit incest when he had sexual intercourse with the victim on the night in question. 

23.	It would appear from the evidence that there is some close association between the two families that gave rise to the victim to call the accused Daddy. What exactly is that relationship, no attempt at all was made at establishing it. The accused is charged with one count of incest contrary to section 95 (1) (a). That is sexual intercourse between “parents and child, including an adopted child”. 

24.	The evidence of Ben Joseph, Alice Esline and the accused show that the accused is not the victim’s biological father. There is no evidence at all that the accused may have adopted the victim as his own daughter. 

25.	The victim called the accused “Dadi” and she went on to give evidence that he is her Dadi and so is Ben Joseph. It would seem clear to me that when the question was put to her she did not fully appreciate what she was being asked. She answered the question truthfully as she understood it. However, both of them cannot be her biological father. 

26.	Accordingly, I find the accused not guilty of Count 1. 

Did the accused rape the victim?

27.	The victim’s father Ben Joseph. His evidence is that the accused and him are first cousins as their fathers are brothers. In July 2001 the accused and his wife asked their permission for the victim to go with them to help collect and cut copra. 

28.	The victim testified that she calls the accused “Dadi” and his wife “Mami”. She went on to say that after helping with copra cutting they all retired and played cards. She then went to sleep while the accused and his wife were still up. While she was asleep the accused approached and touched her. The following questions were put to the victim on examination and her responses follow accordingly.  

“Q: 	 Wanem ihapen taem yu sleep? 
Ans:	Hemi come stap touchem me. 
Q: 	Who istap touchem yu? 
Ans:	Dadi Harry. 
Q: 	Long night ia how now itouchem you? 
Ans:	Long night ia itouchem leg blong me icome antap long body blong me. 
Q: 	Which part long body blong you itouchem? 
Ans: 	Itouchem private part blong body blong me afta me wake up. 
Q: 	Afta we itouchem private part blong you, afta you mekem wanem? 
Ans:	Mi go hang long Mami Alice. 
Q: 	Afta we you go hang long Mami Alice yu mekem wanem? 
Ans:	Mi talem se yu traem look Dadi Harry. 
Q: 	Afta wanem ihappen? 
Ans:	Mami Alice ipusum me igo long Dadi Harry. 
Q: 	Wanem ihappen? 
Ans:	I forsem me mo tanem me down. Mitufala ikick lelebet. 
Q.	How now iforcem yu? 
Ans: 	Iforsem me blong go wetem hem. 
Q: 	Go wetem hem iminim wanem? 
Ans:	Hemi say bae i havem sex wetem me. 
Q: 	“Kick lelebet” minim wanem? 
Ans:	Iholem tight me, pushum me go taon, come up go taon metufala istrugle. 
Q: 	Wanem now yu talem long hem?
Ans:	Se bai mi reportem you. 
Q: 	Reportem long who? 
Ans:	Long Dadi. Hemi say sapos mi talem bai ilukim me where bae ikatem me wetem woman blong hem. 
Q:	Afta toktok, wanem ihapen? 
Ans:	Hemi stap kick nomo wetem me. 
Q:	You minim wanem? 
Ans:	Hemi continue nomo blong pusum me go taon blong karem out trousers blong me. 
Q: 	Afta wanem ihapen? 
Ans:	Mitufala ikick, me me tired. Afta ikarem out clothes blong me mo kat sex wetem me. 
Q:	Taem hemi stap go wetem you hemi mekem olsem wanem? 
Ans:	Hemi karem out bol blong hem mo pusum icome long cunt blong me.” 

29.	Under cross-examination the victim maintained her position. Namely that she was forced to have sex with the accused. That the accused – 

(a)	forcefully removed her clothing; 
(b)	forced her to open her legs; 
(c)	blocked her mouth so she could not call out or cry; 
(d)	threatened to cut her with a knife if she reported the assault. 

30.	The evidence of the third witness Alice Esline (accused wife). She gave evidence that on the relevant night the accused entered the room where they were sleeping and had sex with the victim. She gave evidence that she slept with her children and the victim in the same room. Set out below are questions put to her and her answers:- 

“Q: 	Taem you talem se hemi go wetem one girl ia hemi who?
Ans: 	(Victim).
Q: 	Hemi go wetem one girl, you minim wanem?
Ans:	Olsem long taem ia now problem istap.
Q:	Wanem problem?
Ans:	Taem ia now olsem hemi mekem problem wetem (Victim).
Q:	Wanem kaen problem?
Ans:	Go wetem (Victim). 
Q: 	Hemi go wetem (Victim), hemi go olsem wanem?
Ans:	Taem we I come insaed I traem hem.
Q:	I traem hem olsem women?
Ans:	Itraem blong go wetem hem be ino wandem.
Q:	Who ino wandem?
Ans:	(Victim).
Q:	Afta?
Ans:	Hemi traem be smol girl I move move. Afta hemi felem se sapos (victim) ino letem, bae me talem long hem se sapos iletem hem bae hemi go wetem.
Q:	Taem we hemi traem be (victim) imove move , hemi minim wanem?
Ans:	Hemi move, olsem hemi no wantem a ting.
Q:	Wanem ihappen afta (victim) ino wantem?
Ans:	(Victim) istap move move olsem se hemi cry. Hemi luk se istap mekem (Victim) olsem now hemi luk olsem hemi fright long hem.
Q: 	I fright long who?
Ans:	Me fright long Harry se sapos mi no talem out bae hemi mekem one somting long me.
Q:	Afta wanem now you bin mekem?
Ans:	Afta me talem long (victim) se you mas letem you long Harry.
Q:	(Victim) italem wanem?
Ans:	Taem me talem olsem now ale hemi go wetem hem.
Q: 	Before you bin askem (victim), tufala ibin move move?
Ans: 	Hemi bin traem be (victim) ino bin wantem.” 

31.	The accused Harry Simeon testified in his own defence. He said that he went to see his wife on the relevant night for sex. However, he was not satisfied as he could not complete his sexual pleasure due to his wife’s ailment. It is a long standing ailment. That each time they had sex his wife would undergo severe pains in her stomach. That night he stopped because his wife was in great pains. He went on to say he saw the young girl lying there near them. The young girl at that time had woken up and saw him naked. At that point that he started to “tok tok wetem girl ia.”

32.	The following questions were put to him.

“Q: 	Tok tok – talem wanem?
Ans:	Me talem se me wandem havem sex wetem hem.
Q:	(Victim) imekem wanem taem you tok tok?
Ans:	Long first ples hemi true hemi rejectem.
Q:	Hemi rejectem, hemi talem long you or action blong hem?
Ans:	Hemi talem long me.
Q:	Wanem now hemi talem long you?
Ans:	Hemi talem long me se hemi fright.
Q:	Taem we hemi talem se hemi fright,ifright long who?
Ans:	Hemi usim one toktok se hemi pretend nomo.
Q:	How now you save se hemi pretend nomo?
Ans:	Me save from se ol toktok we oli come out long court tetei oli talem se hemi move smol nomo, hemi no cry, hemi no singaot.
Q:	Long time ia wanem now you mekem?
Ans:	Mi kat sex wetem hem.” 

Findings 

33.	As to count 2, I am satisfied beyond reasonable doubt that the accused did rape the victim in July 2001 on the night in question. The victim in her evidence came out strongly, through out examination in chief and cross examination that the accused forced her to submit to his sexual desires. When she run to “Mami Alice” she pushed her towards the accused. The accused held her and they struggled as the accused tried to push her down onto the door. In one of her answers to the questions by the prosecutor, she said “Hemi continue nomo blong pushum me go taon blong karem out trousers blong me.” And to another question “mitufala ikick, me me tired, afta ikarem out clothes blong me mo kat sex wetem me.” Under cross examination she maintained her story that the accused removed her clothing by force, forced her to open her legs, blocked her mouth so she could not call out or cry and had threatened to cut her with a knife if she reported the assault. 

34.	I have observed the victim carefully while she was giving her testimony and she appeared to be truthful and frank under very difficult circumstances. 

35.	The third witness’ (Accused wife) evidence is that on the night in question the accused “hemi mekem problem wetem Sabeth … go wetem …” She went on to say that the accused tried to have sex with the victim, however she refused. This is reflected in the following question and answer. 

“Q: 	Itraem hem olsem wanem? 
Ans:	Itraem blong go wetem hem be ino wantem.” 

36.	This witness went on to say that the accused “hemi traem be smol girl imove move. Afta hemi talem se sapos victim ino letem, bae me me talem long hem se sapos hemi letem hem bae hemi go wetem.” (He attempted but the girl would not keep still. So he told me to tell the girl to let herself go with the accused (have sex with him)). 

37.	This witness continued that she became afraid for herself that if she did not persuade the girl to go with her man the accused is likely to do some thing nasty to her. As a consequence of her fear she told the girl that “you mas letem you long Harry”. This is the wife commanding the girl to sleep with her husband. She also gave evidence that before she told the girl to go with her husband, “hemi bin traem be Sabeth ino bin wandem”. 

38.	This witness’ evidence shows that the girl did not want to have sex with the accused. She struggled with the accused when he attempted to do so with out success. The accused then turned to this witness for assistance in getting the girl to agree to have sexual intercourse with him. What did the wife do? She commanded the girl to sleep with her husband. 

39.	I observed this witness carefully and she appeared to be under great difficulty giving evidence against her husband. In some of her answers she appeared to be evasive as they would paint a bad picture of her husband. In some answers she appeared to be telling the truth. I accept those and reject the others where she was vague and evasive. 

40.	In his own evidence the accused admitted that when he first approached the victim to have sex with him she refused or rejected the request. He gave evidence that she said she was scared or afraid and that she used “one tok tok se hemi pretend nomo.” When it was put to him as to how he knew the girl was just pretending but wanted to have sex with him he replied that he knew because “ol tok tok we oli come out long court tetei oli talem se hemi move smol nomo, hemi no cry, hemi no singout.” I find the accused deliberately evasive in his answers in this essential area whether the girl consented to having sex with him. How did he know that she consented. His answer was based on what he heard from other witness in court but not what he did, saw or heard at that moment in time. I reject his evidence. 

41.	Accordingly, I find the accused guilty of count 2. 

42.	The Orders of the Court are:- 

(a)	Sentencing will be at 9.00 a.m. on 31 January 2007. 

(b)	Defendant to remain in custody. 

DATED at Port Vila, this 1st day of August 2006.

H. BULU
Judge.