Supreme Court of Vanuatu

15. In the present case, the essential elements that the prosecution must prove beyond reasonable doubt are:
    
    1. That the defendant Mr Solomon assaulted the body of the complainant Ms T;
    2. That Mr Solomon intended to assault the body of the complainant; and
    100. T0' >That the assault caused damage of a temporary nature.
         

100. The Evidence
     

Count 1

16. The prosecution called 3 witnesses namely Ms T, Dr Tony Harry and Mrs Flora Tambe. Defence cted tted to the evidence of the fourth witness Mrs Leikana Hake being read into evidence (“Exhibit P2”). Prosecution tendered without objection the record of Mr Solomon’ice iiew on 2 on 26 Ja60;January 2015220;Exhibixhibit P3”).
    
17. It is undisputed that sexual intercourse took place betweentween Ms T and Mr Solomon on 23 January 20his was Ms T, Dr , Dr Harry and Mr Solomon’s evidence and defence accepted that as a fact.
    
18. The sole issue is that of f consent. The complainant says that she did not consent whereas the defendant says that the sexual intercourse was consensual. The Court is required to be satisfied beyond reasonable doubt as to the absence of consent which necessarily entails a consideration of all of the evidence including the testimony of the defendant before arriving at a conclusion on this question.
    
19. Ms T gave evidence that she and Mr Solomon were both students at Epauto Secondary School in 2013 and 2014. On 23 January 2015, she was in town and after agreeing via text messages, took a bus to Mr Solomon’s house at Switi area, Port Vila. When she arrived, there were two family members at home with Mr Solomon. He made them go and do something so that they would not see Ms T enter the house. Ms T and Mr Solomon reviously usly had sex at Mr Solomon’s house and after that, she saw signs of pregnancy. She had told Mr Solomon and he said he could get a medicine to inct terminate the pregnancy. At his house, she drank a sour sour lemon drink and medicine that he gave her. After this, Mr Solomon’s dad came home to eat his lunch. She remained in Mr Solomon’s bedroom, that he had told her to stay quiet there, not to make noise, while he went out to see his dad. Mr Solomon and his dad ate lunch then watched TV. Eventually Mr Solomon&#82dad and the two two family members left for afternoon exercise; Mr Solomon declined to go with them.
    
20. After this, Mr Solomon cmon came to see her in the bedroom then went back to the lounge and turned the music up so loud the house vibrated. On return to the room, Mr Solomon asked her to have sex with him. She replied that she didn’t feel like having sex. They both went to the bathroom after that. On return to the bedroom, he again asked her for sex. She told him that she still did not feel like having sex with him. He then held her hands tightly, pushed her onto the bed, removed her skirt and panty, then pushed his penis into her vagina. She says he wasn’t inside her long because she was struggling to get away from him.
    
21. In cross examination, Mr Morrison pointed Ms T to her statement to police on 23 January 2n which she had saad said that Mr Solomon was behind her and pushed his penis into her from behind. Ms T said that she couldn&#8 remember the details of her statement as it was made quite a while ago. She agreed with Mrth Mr Morrison that her words to the police were true. That is, when she and Mr Solomon had sex on 23 January 2015, that he did so from behind her. She agreed too that her memory of what happened was not clear because of the time that had passed.
    
22. Ms T’s evidence was that after that, Mr Solomon sat behind her. Then suddenly from behind her, he put his forearm to her neck as if he wanted to strangle her while he held her hands tight with his other hand. She bit his hand and then he let her go. She then rolled to the edge of the bed and tried to regain her breath. He sat next to her, rubbing her back and saying he was sorry, he didn’t mean to do that. At that point, she couldn’t see but he must have reached down the side of his bed, pulled out a small knife and speared her with it on the right side of her chest near her breast. This required surgery at the hospital that has left her with two scars and hospitalization for nearly a month.
    
23. She pulled the knife out of her chest and her blood shot out. It was then that she realised it was a knife and ran out of the bedroom. As she swung through the lounge she didn’t see but Mr Solomon stoned her with something. She ran out of the house and only at the gate did she realise she was not wearing any clothing on the lower part of her body. She pulled her shirt lower down to cover herself and looked for someone to help her. She ran to a nearby yard and hung onto the woman she found there. That woman helped her by holding on to her, supporting her to a mat, made her lie down, covered her with a skirt and have a drink of water. After that they got her onto a truck and took her to the hospital.
    
24. Ms T gave evidence too that during her relationship with Mr Solomon, she had heard news of him with other girls. She had taken a holiday job at Au Bon Marche and when he texted her she would not reply. That’s when she met Graham, who she mentioned in her police statement, and had a sexual relationship with Graham too. She said Mr Solomon did not know of her relationship with Graham.
    
25. When Ms T was examined at the hospital, her answer to Dr Harry about whether or not she was currently pregnant was, “No”. She confirmed in cross examination that this was not a truthful answer. That she was pregnant at the time and did give birth from this pregnancy. She remains unsure who the father of the child is.
    
26. Dr Harry’s evidence was that he medically examined Ms T at 8.30pm on 23 January 20 it was alleged tged that she had been sexually assaulted. His evidence was that her hymen was red and tender to touch. I did nod Dr Harry’s evidence conclusive that Ms T’s presentation was caused by sexual xual assault. He said the cause was a penis had been inserted without any lubrication, causing redness of the hymen. However, he also said this could be caused by just rubbing using fingers or an object. In cross examination, he agreed this could also present without there having been sexual assault.
    
27. Dr Harry’s medical report and that of Dr Ricky Mera, both dated 23 January 201e tendered withowithout objection (“Exhibit P1”). Under cross examination, Dr Harry confirmed that the information set out in the report was supplied by Ms T herself. As stated aboer answer to the question wion whether or not she was currently pregnant was, “No”.
    
28. Dr Harry confirmed that Ms T’s injury would cause a permanent scar but that the injury would heal, which it has.
    
29. Ms Tambe’s evidence was that Ms T ran into the yard that she was in at Switi area. By that point, Ms T was weak from the loss of blood from her wound. She helped Ms T by holding on to her, supporting her to a mat, and covering her body with a calico. She said Ms T told her that Arnold sd hred her with the knife. She removed the knife from Ms T and gt to the truck drivedriver who took Ms T to the hospital to go and show it to the doctor. Mrs Tambe’s mum Ms Hake heloo bying Ms T a drink rink of water and giving the skirt that they helped her to put on.
    
30. I shall now consider the defence that Mr Solomon put forward. Having understood his rights under s. 8the Criminal Procedure dure Code, he elected to give evidence on oath. There is in fact little conflict or dispute as to what occurred between Mr Solomon and Ms T prior to 23 January 20oth Both gave evidence that they were students at Epauto Secondary School. They had begun going out with each other in late 2014 and had previously had sexual iourse at Mr Solomon’s house. This resulted by Januarynuary 2015 in their fearing that Ms Twas pregnant and they were then looking for ways to get rid of the baby.
    
31. This was distressing, as Mr Solomon in particular spoke about in his evidence. He said that when she told him, he was shocked as all the time he used a condom. He was confused too and trying to wrap his head around it, so he didn’t text her back for a few weeks. Once they contacted each other again, they were trying to think of ways to get rid of the baby. Ms T told him of a leaf (‘lif’ in Bislama) to drink with lemon. He said that leaf grew along the road towards their school. He prepared the leaf with lemon and they met after school at church and he gave it to her. She drank it that day and then asked him if he had some more, to prepare it and let her know.
    
32. This culminated in their agreeing to meet at Mr Solomon’s house on 23 January 2015. When she got there, Mr Solomon again gave M0;T theT the leaf with lemon and a tablet to drink to terminate the pregnancy. He confirmed that he and Ms T kept their relationship secret. He just didn’t want anyone to see her come into his house. At this point in time, they weren’t talking much. He was still shocked that she was pregnant and still confused about the situation they were in. While she took the drink, he realised that she was not that talkative that day. He tried talking but she was not responding. He said he didn’t take much notice that day, that maybe she was stressed out with the pregnancy and all.
    
33. Mr Solomon’s evidence was that his dad came home earlier than usual, around 12.30pm. When his dad arrived, he joined him in the living room so as not to act suspiciously. They ate lunch and then Mr Solomon fell asleep on the couch. He woke and then his dad and nephew and cousin left the house for exercise at Korman. He told them he wasn’t feeling well and would stay back. They left at 3.45pm. He then had the house to himself and put on music, as he normally did every afternoon.
    
34. Mr Solomon gave evidence that after he put on the music, he returned to his bedroom and Ms T was on his bed. They started kissing and cuddling then had sex. They had sex with him from behind. They had sex for a few minutes and then he went to the kitchen and she came out to go to the toilet. Mr Solomon said he asked her before having sex. That she was OK with it and they had sex. He said that after she said that, she removed her skirt and underwear, folded them and put them on the ironing table next to his bead. He went to the other room and put on a condom then they had sex.
    
35. In cross examination, Mr Solomon denied that Ms T refused to have sex with him. He said that she agreed to have sex with him at the time. He denied forcing her to have sex, saying he didn’t force her to do anything. He said that he didn’t force her to lie down; she was already lying down. That he didn’t push her down. He denied removing himself from her because she struggled and screamed. He also denied that at the time he held her strongly with his arm and forced her not to breathe. He denied that she bit him in order to force him to release her, and that he had sat next to her on the bed and said sorry to her.
    
36. In stating that she did not consent to the sexual intercourse, Ms T initially said that Mr Solomon held her hands ly, tly, pushed her onto the bed, removed her skirt and underwear then forced his penis into her from in front of her. However, when reminded in cross examination of what she had told the police, she agreed that her words to the police were true. That is, that when they had sex on 23 January 2015 that Mr Solomon did so from behind her. She also agreed with Mr Morrison that her memory of events was not good. She lied to the doctor too in telling him she was not pregnant. This contradicted what had happened that day which was that she went to Mr Solomon’s house to drink a lemon drink and take medicine aimed solely at terminating a pregnancy that both she and Mr Solomon feared that they had on their hands. The inconsistencies in Ms T’s evidence and cknoacknowledgement that her memory of events was not good lessen, in my view, her credibils a witness.
    
37. Ms T’s evidence was also that before 23 January 2015, she had commenced a sexual relationship with another man, Graham. She did so because she had heard that Mr Solomon haer girlfriends. Sds. She did not tell Mr Solomon about this relationship.
    
38. Defence raised that she didn’t take the first opportunity that she had to tell someone that she had been sexually assaulted. If she had, that would have been evidence of her state of mind. Considering that she may have consented to the sexual intercourse but then tragically ended up with a knife in her chest, I can understand her not telling the women who came to her aid at Switi area that she had been raped. In any event, there is no corroborating evidence that she did not consent.
    
39. I remind myself of the danger in a sexual assault case of convicting the accused on the evidence of the complainant alone. Moreover, of doing so where there is some evidence from the complainant that the Court is uncertain about.
    
40. The inconsistencies in Ms T’s evidence cast doubt in my mind that she was a truthful witness. However, my overall impression is that despite the inconsistencies, Ms T conveyed throug evidence ence that she did not consent to sexual intercourse with Mr Solomon on 23 January 2015>
    
41. Having carefully considered vidence adduced before this Court, I find that the essential elements that the prosecution tion has proved in respect of Count 1 are that:
    
    1. On 23 January 2015, the defendant Mr Solomon had sexual intercourse with the complainant Ms T and that this involved the penetration of the vagina of the complainant by the penis of the defendant; and
    2. Secondly, that the complainant Ms T did not consent.
       
42. As the Court of Appeal stated in Siply v Public Prosecutor CRAC 07 of 2015 (15 April 2016) at para. 31:
    

It is of course possible that a complainant does not consent to intercourse but the defendant nevertheless has, or cannot be proved not to have had, a reasonable belief that she was consenting. That this is an element of the charge of sexual intercourse without consent in Vanuatu despite it not being expressly mentioned in the legislation is confirmed by the judgment of this court in McEwen v Public Prosecutor [2011] VUCA 32.