Public Prosecutor v Lini [2011] VUSC 258; Criminal Case 26-10 (30 August 2011)

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

"Her name is Resnet Lini, 18 years old. Does not know her date of birth. Her mother's name is Elsie Lini and her father's name is Robin Lini. Has 2 brothers and 3 sisters including herself. She is the 5th born. Does not know when she was in Santo. Does not know how many weeks she was there for, but was in Santo for a long time living with her mother. At Labultamata, lives with her mum and dad. Never lived with any other family. Father was looking after her.

In September 2009, her dad came over to her bed one night and asked to go with her. She did not want to but he forced her so she agreed to go with him. Then later, her blood was on the bed. Her mum was also in the room but that she was sleeping on another bed close to the door, her bed was at the other end about 4 – 5 metres away. Mummy was already asleep when her daddy came in. When he came in, he held her and she woke up. He held strongly on her neck. Could not see who it was and asked "who are you?" and he replied "Your daddy". Could recognize his daddy's voice. Then he asked to go with her but said she did not want to. He spoke in language. Did not understand what he was saying to her. He told her she should not tell anyone what happened to her or he would cut her throat. Then after he had had sex with her, the defendant went back to his room. She said she wore a shirt and a skirt. That the defendant removed her panty and her shirt as well. Later, she said her skirt was not removed. She said her body became "strong" or stiff and that she was lying down. She made noises but he held her mouth so she could not talk. Her mother was sleeping. That the defendant spent a long time with her giving the duration as 5 minutes. Then he left her and went back to his room without telling her anything. That he held a small knife. She knew this because he had held the knife to her throat, and told her not to sing out. Then when he had finished, the defendant told her to remove the bed sheet that had bloodstain on it and wash it in the morning of the next day. She then fell asleep. In the morning, she got up and washed the sheet bed as instructed but that no one saw her do it. She felt sore in her body and did not tell anyone what her father had done to her that night because he had told her not to."

" She did not know the date. Her mother had gone to Santo. Her brother and his wife were living in their own house. She went to call her father, the defendant to come and have his food. However, he held onto her as the place was already dark. She called him the first time but he was asleep. The second time, she called him the defendant woke up. He then held her tight and took her. He removed her panty and her shirt but her skirt remained. He told her that if her brother and his wife came around, she should not tell on him. This was said after he had gone with her. He did not have anything in his hand at this time. She felt her body become stiff. It lasted for 5 minutes. She saw a small amount of blood and she left the room."

" It happened on 8th May 2010 in the house. He called her and told her he was going to the garden. Mum was in Santo. She was lying down feeling sick. But she was surprised as he was standing there and asking her to go with him. He did not say any other word. She said he told her to remove her clothes but she did not want to. But he told her: "Why are you afraid?" So she complied by removing all her clothes. Then he took her. He removed his own shirt and trousers and went with her. He took about 5 minutes. She felt pain. She saw blood, small blood. Then she put her clothes back on and he went outside without saying a word. Then she went back to sleep, feeling bad as Mummy was in Santo and never spoke with her."

"It was not too long after the third time. This happened at Lolvotar just near the main road. Defendant had sent her to collect "navara" (young coconuts) for pigs in the morning. Mummy was in Santo. This was the first time he had ever sent her to collect navara for pigs. On her way, she heard a noise and when she looked she was surprised at her daddy standing there. Then he made her lie down and he went with her again. There are no houses close by. He rebuked her for not lying down and then she did so and he went with her. Later, he got up and went to Loltong village. She put on her skirt and shirt. The defendant told her to go back home. He had a basket over his shoulder. He came to Loltong. He removed her under-pant. She wore only skirt. Her skirt remained. He did the same thing as he did on three previous occasions. He removed his trousers half way down and told her to lie down and she did so. She was afraid of him but he told her not to be afraid. So he went with her and then told her not to collect navara anymore but to return to the village instead. So she returned while he went to Loltong village."

"First told Simon Vasi after defendant had assaulted her over a torch light. She cried and went to the house of Fr Simon Vasi. His wife held her and asked her why her dad had assaulted her. She said it was over his torch light. She told Fr Simon Vasi about some things her father had told her and Fr Simon Vasi said he knew what those things meant. They kept her with them at their house until her mother returned. Her sister Primrose went for her and asked her to return but she refused. Primrose told her she saw a dream that their father had been going with her. Her brother John Robin Lini was present at the time. They pressed upon her to tell so she told them what had happened to her. Then they asked her to go back to them and they sent her up to live with her small sister in the other village in the bush. She told her uncle and her brother. Her mother was still in Santo at the time. Then they arranged for her father to go to Santo."

Questions	Answers
- You are 18 years old, true?	Yes.

- You don't know the exact date of your birth, true?	Yes.

- If I told you, you are 19 years old you would not know, true?	No answer

- How many rooms in the house?	3.

- In September 2009, how many children were in the house with you?	None.

- In September 2009, you have not provided the exact date, true?	No answer

- The third time happened on 8th May 2010, true?	Yes.

- The fourth time, you have not given any dates of day, month and time, true?	Yes.

- If you do not know the date then, would it be true that you are lying about all these?	No answer.

- In September 2009, the house had 3 rooms?	Yes. I and mum slept in one room, dad slept in the other.

- You are lying. Mum did not sleep with you. You slept alone, didn't you?	No answer.

- You said dad came and held you tightly on the neck, true?	Yes.

- You said you got a shock and asked; "who are you?" And he answered; "It's your daddy", and that he put a a knife at your throat. But you did not see, true?	No answer.

- You felt the knife?	Yes.

- But you did not see?	No answer.

- If you did not see the knife but only felt it, it is possible it wasn't a knife, true?	No answer.

- He removed your panty?	Yes.

- How long was the knife held against your neck for?	No answer.

- When he was removing your panty, his hand was not over your mouth so you could not cry out, was it?	No answer.

- You did not call out to your mother, did you?	No answer.

- Did you make a noise at the time?	Yes.

- Did your dad sleep on top of you for long?	Yes.

- You don't know how long for, do you?	No answer.

- At the time, both of you were talking but mummy did not hear?	No answer.

- When your dad slept on top of you, you did not tell him you did not want to, did you?	No answer.

- You did not struggle with your legs or hands to show you did not want to engage, true?	No answer.

- You have told the Court that "papa igo wetem mi" many times over but you have not described in any detail what he actually did to you, true?	No answer.

- In September 2009, haven't you lied that something happened?	No answer.

- In September 2009, you never told mummy that you saw blood?	No answer.

- Then you said you washed the linen next morning and that you felt sore but you never mentioned it to your mother?	No answer.

- The only reason is that nothing really happened, true?	No answer.

- On the second occasion (time), mummy was on Santo, true?	No answer.

- You were not afraid of your father, did you?	No answer.

- You said he would "go wetem you" again?	Yes.

- He did not hold any knife at the time, true?	No answer.

- Your brother and his wife live very close by and you did not cry out to them for help, true?	No answer.

- You saw small blood but you did not tell your brother and you felt pain in your body but did not tell your brother, true?	No answer.

- You have never described in any detail what your father did when he was sleeping with you, true?	No answer.

- The only reason you did not do so was that nothing happened to you at the time, true?	No answer.

- On the third occasion on 8th May 2010, did daddy go with you?	Yes.

- At that time you were sick and was alone?	Yes.

- You did not tell your brother and his wife that you were sick that day, did you?	No answer.

- At the time dad came and asked to go with you again?	Yes.

- At the time you said he removed your skirt and panty but did not say what he did to you and what activity occurred, true?	No answer.

- You saw small blood, was sick but did not tell anyone at all about it, true?	No answer.

- You said after that you fell asleep true?	Yes.

- You never described what activity he did with you at the time, true?	No answer.

- On the fourth occasion, you haven't given any specific dates, the number of day and month and year, true?	No answer.

- And the only reason is that you do not know?	No answer.

- Your dad sent you to collect navara. Mum was still in Santo. This took place on the main road where public pass all the time, true?	Yes.

- You said you were surprised to see him there also, and that he asked to "go wetem yu" again, and that he removed your clothes, but you never described what activity he did with you, true?	No answer.

- After he had finished, you went back to your village and dad went to Loltong, but you never told your brother about this, true?	No answer.

- You did not tell because nothing happened at the time, true?	No answer.

- You said dad assaulted you over a torch light but you you never said on what date, true?	No answer.

- I put to you that you were cross with your dad because he had assaulted you on your neck, true?	No answer.

- You ran away to Fr Simon Vasis's house and told him your dad assaulted you over the torch light. And you told him that you did not want the same thing that happened to your sister to happen to you, true?	Yes.

- You never told Fr Simon that your dad was "go wetem yu", true?	No answer.

- You cannot explain that phrase that "papa igo wetem mi" because he never did anything to you, true?	No answer
	.
- It was only after your sister told you about her dream that your dad was taking you that you started talking about your father doing these things to you, true?	No answer.

- I put it to you that you do not know your age and that you are lying that your dad took you on those four occasions, true?	No answer.

- Your father did not have sex with you at all, true?	No answer."

As regards the wife of the defendant, none of her evidence would corroborate the evidence of the complainant. On all other occasions apart from the allegations about the September 2009 incident, she was in Santo and did not know what was happening. All her evidence therefore, even if given would be irrelevant.

As regards Wilton Bule's evidence, it was clear to me that everything he would say, even if he gave evidence would simply be hearsay evidence. And as such, it would be irrelevant evidence. The complainant's evidence does not show she spoke with this person at any time.

Under those given circumstances, the Court considered that on the evidence of the complainant standing alone, there was no way the prosecution could be seen to discharge its legal and evidential burden of proof beyond reasonable doubt that the defendant was guilty. Standing alone and on its face, the evidence of the complainant, in view of the cross-examination of her by defence counsel, it was clear to the Court, the prosecution had not established any prima facie case against the defendant to that point in time. It was therefore in the view of the Court necessary to stop the trial at that point.

Supreme Court of Vanuatu

Public Prosecutor v Lini [2011] VUSC 258; Criminal Case 26-10 (30 August 2011)