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Kalmet v Public Prosecutor [1987] VULawRp 1; [1980-1994] Van LR 23 (20 February 1987)

[1980-1994] Van LR 23

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CRIMINAL JURISDICTION

Appeal Case No. 1 of 1982
Judgment No. 1 of 1982

BETWEEN:

JOHN KALMET
Appellant

AND:

PUBLIC PROSECUTOR

Coram: Cooke C. J

JUDGMENT

[CRIMINAL LAW - consideration of "indecent assault" and "assault" - CONSTITUTIONAL LAW - consideration of "serious offence" - Article 5 (2) (a) - "right" to have legal representation]

This is an Appeal by the Appellant against his conviction and sentence.

The brief facts are:

A young American woman decided one afternoon to take a walk from Vila to Pango Village. She had reached the village and was proceeding further towards Pango Point when a car stopped alongside her driven by the Appellant. There were two other men in the car. She did not mention who actually offered her the lift. She declined the offer. The car went on and in a few minutes returned with the Appellant alone in the car. He turned the car in the direction she was walking and indicated to her to get into the car. She told the Appellant to leave her alone. She continued walking with the car behind her. The car then turned off and she continued on the way to Pango Point. She then started to walk back and saw the Appellant who was wearing bathing trunks and socks. Whether this was his dress when in the car I cannot say as no evidence was led to this effect. The Appellant came up to her and said he wanted to show her his village. She walked passed the Appellant but he followed her. The Appellant then seized her forearm but she said she broke his grasp. She told the Appellant not to bother her. She said she was trying to keep clam and started talking to the Appellant as the Appellant walked with her. She mentioned she had seen a small boy piling up wood and that the Appellant waved to him. She said they walked past the boy. While walking the Appellant asked her if she was frightened; if she was married and where was she staying. She told him she was married and showed him her ring. Seemingly the Appellant was not satisfied with her replies because she said he grabbed me but she did not say where he grabbed her. However, she stated she pulled away from him and started running toward the place where she had seen the boy. At this stage she mentioned she was carrying her bag which contained a camera. By mentioning such a thing the Complainant may have thought that the Appellant wanted her camera. She then said that after she started running the Appellant ran after her and caught her from behind. She said he must have had his arms around me. She does not seem to be sure how he caught her but she went on to relate that she fell down twice but got up and ran screaming to the place where the boy had been and stood there and a boy and two men came from the bushes. Later she identified the Appellant to the two men. The Appellant admitted that he offered the girl a lift and that later he saw the girl again and they spoke to each other. They started walking together and he asked the girl various questions and she said she was married. He said "I thought about it. I decided she was making it up and I grabbed her arm. I pulled her arm and saw she had a wedding ring on it meaning she was married so I left her alone." He admitted she did scream out when I seized her arm.

The Appellant is charged with "touching the body of a woman" being an offence contrary to Section 98(2) of the Penal Code. It would be of considerable assistance if the Prosecution in future formed the charge in English as well as Bislama or French. The Penal Code is printed in English and French and the charge should follow the words used in the particular Section of the Code.

Mr Coombe, who appeared for the Appellant, argued that there was no evidence of indecent assault and, if anything, it was a plain assault case. He set out the evidence given by the young lady and referred to the cases mentioned by the learned Magistrate and submitted that in those cases the evidence of indecency was clear.

In the case of R v Leeson (1968) 52, Cr. App. Reports p.185, the facts were - kissing a girl against her will and accompanying suggestions of sexual intercourse. In the case of R v Kilbourne [1972] 3 All ER p.545 the facts related to buggery with young boys and in the case of Beal v Kelley [1951] 2 All ER p.763 the facts related to an indecent assault on a young boy. I agree with Mr Coombe that in the cases referred to by the learned Senior Magistrate there was no doubt that the Court was dealing with cases of indecency on the facts set out and that the law as stated by the learned Judges was correctly stated when they all agreed that the definition of "indecent assault" which has long been accepted in the Courts of England, is - "an assault accompanied with circumstances of indecency on the part of the prisoner towards the person assaulted" but I have to ask myself, are such clear facts apparent in this case.

The girl had her arm grabbed once, then her hand, then when she ran she said - "He ran after me. He caught me and grabbed me from behind and pulled me round so that I was facing him. He must have had his arms around me - around my waist." She says he must but she does not seem to be sure. She does not suggest that he touched her breast or her private parts or that he made any indecent suggestions to her. She did mention that when she was running she was carrying her bag with her which contained a camera. Why did she mention that? Was she afraid that he wanted to steal her camera. Was it an expensive camera? Did the camera contain some important photograph that she did not wish to lose or was the camera of sentimental value? All these questions have to be considered and I must say that having considered all aspects of the evidence I am left with a considerable doubt that the Appellant made any indecent advances to the girl and I must therefore conclude that the learned Magistrate should have entertained a doubt. I must give that benefit to the Appellant. However, there is no question but that the Appellant is guilty of assault upon this young girl and I so find him guilty of assault. The conviction and sentence of indecent assault will be set aside and a conviction of assault will be entered in place thereof.

Mr. Coombe raised an important question on whether there was a breach of Article 5(2)(a) of the Constitution which states -

"(a) Everyone charged with an offence shall have a fair hearing, within a reasonable time, by an independent and impartial court and be afforded a lawyer if it is a serious offence;"

In my opinion it is clear from my interpretation of the Constitution that it was never intended to afford a lawyer to every accused person otherwise the word "serious" would not have been used. What then does the word "serious" mean in the context of Article 5(2)(a). It is true that one ascertains a person's intention from his words, but one considers the words in the circumstances and for the purpose for which they were uttered.

Lord Edmund-Davies put the point in relation to the interpretation of statutes as follows (Morris v Beardmore [1981] AC 446 at 459):

"A Statute does not exist in limbo. It has a background, it rests on an assumption that it will operate only in a certain climate and that circumstances of a certain climate and that circumstances of a certain sort will prevail."

To me the word "serious" is a question of fact having regard to the whole matter in each case. If the facts of indecency were abundantly clear in this case, as they were in the three cases referred to by the learned Magistrate, then I may agree that the case was a serious one warranting the engagement of Counsel for the Accused. I cannot be more specific than that. In the case before me I have no hesitation whatsoever in saying that in my opinion it was not a serious case and therefore I do not agree with Mr. Coombe that the Appellant was denied his fundamental rights under the Constitution when not afforded a lawyer. In future, whether a lawyer is afforded to the accused person will depend on the facts presented.

I now come to the question of sentence.

Mr. Coombe has informed the Court that the Appellant was a fine draftsman in the Survey Department. He has no previous record and that he has a steady girlfriend who is pregnant.

It is my opinion that this is not a case for a jail sentence but at the same time I wish it to be made perfectly clear that any future interference with tourists in the obnoxious manner, as happened in this case, will be severely dealt with by the Court. The record of the Accused has been taken into consideration but to ensure that others will not copy the example of the Appellant I propose imposing a fine of VT8,000 to be paid before the end of this month in lieu thereof one months imprisonment.

The performance of the Appellant was sheer stupidity and bravado but I do not think such will happen again, I hope every consideration will be given by the Government to reinstating him in his previous position. Good draftsmen are scarce and it would be a shame to see his seven years experience in the Survey Department wasted.

Dated at Port Vila this 20^th day of February, 1987.

FREDERICK G. COOKE
CHIEF JUSTICE

[Editorial Note: This decision was referred to in Naling v Public Prosecutor; C.A. 5/84.]