In the High Court of Kiribati
Criminal Jurisdiction
Held at Betio
Republic of Kiribati

Criminal Case No. 25 of 1997

The Republic

vs

Biriteiti Iorim

For the Republic: Ms Tiantaake Beero
For the Accused: Mr David Lambourne

Date of Hearing: 12 January 1998

JUDGMENT

The accused, Biriteiti Iorim, is charged with having sexual intercourse with a collateral contrary to section 158(1) of the Penal Code Cap. 67 in that on the 3rd of February, 1996, at Tebanga village, Abemama, she had sexual intercourse with a collateral by blood named Berakai Matarake, who is her first cousin.

The prosecution called two eye witnesses to the incident. The first was Marebu Torake, a girl aged 17, who is a second cousin of the accused. The second was Rarite Iorim a girl who did not know her age but looked to be about the same age as the first witness. She is the accused's sister. Both witnesses gave evidence that they looked into an old babai pit and saw the accused having sexual intercourse with Berakai. The second witness also testified that Berakai is the first cousin of the accused.

If the testimony of these two witnesses had been the only evidence against the accused then an essential element of the offence would not have been proved, since neither witness explained what she understood sexual intercourse to mean.

However, the accused had given a cautioned statement to the police in which she admitted that there had been penetration. She also gave sworn evidence to the same effect. In both her cautioned statement and her sworn evidence she also admitted that Berakai is her first cousin.

I am therefore satisfied beyond reasonable doubt that, at the time and place alleged, the accused had sexual intercourse with a collateral.

The accused testified that the offence charged was not the first time that she had had sexual intercourse with Berakai. The first time had occurred in 1994, not long after her father had died. She was born on 24 November 1979, so that she would have been 14 or 15 years old at that time. The exact age of Berakai was not known by any of the witnesses but there was evidence that he is currently in his twenties. According to the accused, they were on their way home after seeing a movie when he pulled a knife on her and threatened to "kill her like a cat" unless she did what he wanted. He then raped her. The accused said that the same thing had happened about six times until they were discovered. On each occasion she was threatened with the knife and told that she would be killed if she told anyone what had happened. She said she was afraid of the accused and is still afraid of him. There was evidence from Police Constable Beeni Ikauea that Berakai is about the same size as himself, which means that Berakai is a much bigger man than average. In contrast, the accused is a very small girl who, in my opinion, could pass for much younger than her 18 years.

She admitted giving a cautioned statement to the police in which she stated that she consented to sexual intercourse with Berakai. Her statement was taken at 11.58 pm on 4 February 1996. As she sat in the police station waiting to give her statement, Berakai was brought in and placed in a cell. She became afraid and did not tell the police that she had been raped at knife point.

I thought the accused stood up well to cross-examination. Nevertheless, there was one passage in cross-examination, upon which the prosecution rely, in which the accused seemed to agree that she told the police the truth. The passage began with these questions:

Q	"When the police took your cautioned statement you told them lies?
A	They were the truth.
Q	So it was true you consented?
A	Yes, that's the truth but I did not consent."

There followed a number of questions suggesting to the accused that she had told the truth to the police and the accused agreed that she had. I formed the impression at that stage that she was confused by the questions rather than shaken, and this impression was confirmed by her re-examination. It was clear that the "truth" she was referring to in that particular passage of cross-examination was the truth of her cautioned statement as representing what she had told the police. She was not referring to the contents of the cautioned statement as being the truth.

The prosecution case is not necessarily inconsistent with the evidence of the accused, with the exception of her cautioned statement for which she has given an explanation. Consequently, I do not consider that the prosecution have eliminated any reasonable possibility that the accused was acting against her will at the time of the alleged offence. There is, of course, no onus on the accused at any stage to prove her innocence. The onus of proof beyond reasonable doubt remains upon the prosecution from first to last.

I should make mention of what has been argued on behalf of the accused. It is submitted that the defence of compulsion has been raised and that the prosecution have failed to negative it. Such a defence is provided for in section 16 of the Penal Code Cap. 67 which reads as follows:

"A person is not criminally responsible for an offence if it is committed by 2 or more offenders, and if the act is done or omitted only because during the whole of the time in which it is being done or omitted the person is compelled to do or omit to do the act by threats on the part of the other offender or offenders instantly to kill him or do him grievous bodily harm if he refuses; but threats of future injury do not excuse any offence."

In my view, such a defence is not appropriate in the present case. Section 16 deals with the situation where a person commits an offence under threat of instant death or grievous bodily harm. In the present case, as mentioned earlier, the possibility remains open that the accused was raped. Needless to say, the victim of a rape commits no offence by being raped, and it makes no difference that the rapist is a close relative.

Looking at the whole of the evidence, I am not satisfied beyond reasonable doubt that the accused has committed the offence charged, or any offence. She is therefore found not guilty and acquitted accordingly.

Dated the 14th day of January 1998

The Hon R B Lussick
Chief Justice