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Public Prosecutor v Ligo [2003] VUSC 30; Criminal Case No 021 of 2001 (18 June 2003)

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

CRIMINAL CASE No. 21 of 2001

PUBLIC PROSECUTOR

-v-

NORMAN LIGO
YVONNE NAMEL

The Public Prosecutor, Mr. Nicholas Mirou
Mr. Hillary Toa for the defendant

JUDGMENT

This is the judgment in the case. The defendant Norman Ligo is charged with the offence of Rape contrary to Section 91 of the Penal Cod Act [CAP. 135]. The particulars of the offence are set out below:

Norman Ligo, you blong Pentecost mo you stap live long Port-Vila, samtaem long nmaba 18 March 2003, long house blong you mo girlfriend blong you long Ohlen Area, you been minim blong rapem girl ia Anna Johnson we long taem ia hemi againsem/without consent blong hem.

The defendant Norman Ligo pleaded not guilty to the offence as charged. The trial proceeded on that basis. The defendant was informed about his right under Sections 81 and 88 of the Criminal Procedure Code.

The brief facts of the case are set out below:

The victim is 20 years of age. She is from the Island of Paama. On the 18^th March 2003 at around 10.00AM the victim went to visit her boyfriend. She met the two defendants on the road at Number 2 Area. The first defendant is Norman Ligo and the second defendant Yvonne Namel. But this trial is not about the second defendant, Yvonne Namel. Yvonne Namel pleaded guilty to the offence of Rape on 30 April 2003. Her sentence was adjourned pending the outcome of the trial of Norman Ligo.

The two (2) defendants asked the complainant as to where she was going. She replied that she wanted to see her boyfriend. They asked her to follow them. Then they stopped a red bus and entered into the bus. The second defendant Yvonne told the victim to accompany them to their house at Ohlen Area. She told the victim that they will drop her later to her boyfriend’s house. The defendant replied positively in a sense that Yvonne is her sister since they have been living together at Seaside Paama. The bus stopped at the defendants’ home. The second defendant told the victim that the first defendant is going to buy some Rum Cola. So that they will wait for him. The first defendant came with three Rum Cola. It was shared equally among them. The victim finishes hers, the first defendant drunk his cola but did not finish it. He gave half of the cola to the victim. While the victim was enjoying drinking the first defendant interrupted by saying ‘mummy mi harem se trousers i taet tumas bae mi karemaot nao’. Immediately the second defendant says ‘mi too bae mi karemaot blong mi’. The first defendant removed his trousers and his underwear. The second defendant in similar manner removed her clothes but not her panty. The defendant had earlier instructed her not to switch on the light. The place was a bit dark. The victim recognized their clothes because of the intrusion of the moonlight through the window.

The first defendant then walked nakedly towards the victim, he asked the victim to remove her clothes. The victim refused. She told the second defendant that she could not do such an act to her boyfriend, the first defendant. The second defendant replied that the first defendant is not her boyfriend. He is everybody’s boyfriend including the victim.

The first defendant approached the victim. He tightly blocked her mouth. He told her not to move, he them removed the victim’s T-shirt and her brow to ties. Both defendants helped remove the victim’s trousers and her pant. In the process of removing her panty, the victim was kicking in a sense that she tried to avoid the acts of the defendants.

The second defendant told her not to be afraid and to be shameless. The victim tried to put her clothes back on but she was stopped by the first defendant. The first defendant pulled out the trousers and panty from the victim’s hand. He threw them into the dark. The first defendant was holding his penis. He moved his penis closer to the victim’s mouth. He invited the victim in a forceful manner to perform fellatio or to suck his penis. The victim refused. The first defendant pushed her down. The victim tried to escape. The first defendant is bigger and heavier. He slept on the victim. The second defendant stepped in. She blocked the victim’s mouth from shouting. She was at the same time squeezing the victim’s breast. The victim felt a lot of pain in her breast. The victim told the second defendant to loose her hands from her mouth. The second defendant told the victim not to make noise. At the same instance the first defendant opened the victim’s legs, he inserted his penis into the victim’s vagina. He had sex with the victim and at the same time he tightly held her hands.

The second defendant stood and watched the two had sex. The first defendant at last ejaculated. He told the victim that he intended to live with her and that he would let go his girlfriend the second defendant. The second defendant then told the victim that ‘i finis nao’.

The first defendant then asked the victim to perform cunnilingus or to suck the second defendant's vagina. The victim replied that she had never done such an act and she refused. The defendant told her not to go. They told her that they wanted to perform another round and she can then leave. The victim put her clothes back on. She pleaded the defendants to drop her off. They failed to do so. She made her way to the road and took a bus and left.

The victim made additional statement that when they reached home the first defendant asked the victim to massage the second defendant because her body was painful. The second defendant removed her jersey and the victim massaged her back. The second defendant went to an extent where she removed her own trousers and her panty. The victim told the second defendant that she never perform that kind of activity. The second defendant replied that when she got drunk her whole body was painful. The second defendant even invited the victim to massage her vagina. She replied negatively. The first defendant then held the victim’s hand and placed it outside the second defendant’s vagina. The victim pulled out her hand. She insisted that she could not involve in that act because she called the second defendant as her sister. That’s the summary of the prosecution case in respect of the brief facts.

The defendant’s case is that the victim/prosecutrix accepted with her free will without force nor threat to have sex with the defendant. The only issue before this Court is the issue of consent. As held in previous rape cases, the point for consent is whether the victim/complainant said yes or no to have sex with the defendant before the sex took place. What happened during the sex, what happened as a consequence of sex is not relevant for determination as to whether or not the consent has been reached.

The prosecution called 2 witnesses, the complainant and a police officer. The evidence of the complainant is that she did not consent to have sex with the defendants. The complainant/victim described the way the sex occurred. She denied at no stage she consented. She explained as she said in her evidence that the co-defendant helped in the sexual activity by the first defendant in that she held her hands and putting her hands on her mouth.

The defendant’s evidence is that the complainant consented to have sexual intercourse with him on 1 March 2003. He said at no stage he said that there was any force or threat used. The defendant said the complainant at her own free will consented to have sex with him as described in the evidence.

I had the opportunity to observe the complainant and the defendant and their demeanor in the witness box. This is a case where as a matter of fact the Court is faced with two versions of facts. It is wrong for a Court as a matter of fact to just prefer one side of the versions of the facts. The law is and is always that the duty is for the prosecution to prove his case beyond a reasonable doubt. Nothing more nothing less. It is not the duty of the defendant to prove his innocence.

There are essential elements of an offence of rape. I am not going to detail all of them for the simple reason that all other elements have already been agreed upon, and established as agreed facts. The only factual issue as I have said is whether the complainant/prosecutrix consented to have sexual intercourse with the defendant on 18 day of March 2003 at his house at the time of the incident.

The complainant said she did not consent to have sex with the defendant N. Ligo. The defendant, Norman Ligo said the victim consented with her own free will. That is the reason why Yvonne helped her by placing her hand into the victim’s mouth not to make noise as there are people around in the neighbouring rooms.

I find as a matter of fact that the complainant/prosecutrix did not consent to have sexual intercourse with the defendant as she mentioned in her evidence.

At trial and during the evidence, I have observed the demeanour of the defendant as a witness in the witness box I do not believe him. I found it extraordinary to see a mother/complainant of three children to accept to have sex with the boyfriend of her sister (as the defendant himself says so in his evidence) and went the next day straight to the police station and complained after the incident. As a matter of common sense the mother/complainant after sex occurred in the manner as described in her evidence, went to the police station and lodged a complaint against the first defendant and the co-defendant because she did not consent to have sex as she said in her evidence. There was no evidence about any other motive by the complainant to lodge her complaint against the two (2) defendants. The only reason is that she did not consent to sex.

I am satisfied beyond reasonable doubt that the victim/complainant did not consent to have sex with the first defendant.

Verdict

I found the defendant Norman Ligo guilty of the offence of rape and I convict him accordingly.

On 18 June 2003, Yvonne Namel seemed to indicate that-

1. She wished to change her “guilty plea” entered on 30 April 2003 to a “not guilty plea; and
   
2. She wished to change her lawyer and asked for Mr. Hillary Toa who represents the first defendant, Norman Ligo to represent and act also on her behalf.
   

On 18 June 2003, the sentencing of Norman Ligo was adjourned to 4 July 2003 at 3.30PM o’clock.

Counsels indicated that because Yvonne Namel is the co-defendant in the commission of the offence on 18 March 2003, it is appropriate that Norman Ligo and Yvonne Namel be dealt with together. And so the sentencing of Norman Ligo be adjourned pending the outcome of Yvonne Namel’s application.

On 18 June 2003, I have indicated that Mrs. Yvonne Namel must have a different counsel, other that Mr. Hillary Toa and that the Court needs to hear her counsel as to the change of his “plea of guilty” to a “not guilty plea”.

The sentence of Norman Ligo and the change of plea of Yvonne Namel are adjourned to Friday 4 July 2003 at 3.30PM o’clock in the afternoon.

Dated at Port-Vila this 18^th day of June 2003

BY THE COURT

Vincent LUNABEK
Chief Justice