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Republic v Ienibwebwe [1998] KIHC 29; HCCrC 42.97 (20 July 1998)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Criminal Case No. 42 of 1997

THE REPUBLIC

vs

TOKARAKE IENIBWEBWE

For the Republic: Mr Ian Read
For the Accused: Mr David Lambourne

Date of Hearing: 6, 7 July 1998

JUDGMENT

The accused has pleaded not guilty to a charge of rape contrary to section 128 of the Penal Code Cap. 67 in that on or about Sunday the 23^rd June 1996 he had unlawful sexual intercourse with a woman, Nei Bereti Tenou, without her consent, at Tabuarorae village, Onotoa island.

The prosecution called 7 witnesses to prove the charge.

The first witness was the complainant, Nei Bereti. She gave her date of birth as 1980, although she did not know the month. She therefore would have been about 16 years of age at the time of the alleged offence.

Her evidence was that on the night of the incident she went to a function being held at another house. There she met her boyfriend Kuriti, who is the son of the accused. They went from there to a vacant house where they had sexual intercourse with her consent. Kuriti then asked her to come with him to tell his parents that they had eloped. However, when they had almost reached the house of Kuriti's parents, Kuriti turned back to fetch something from the house that they had left. She went on alone, woke Kuriti's mother and told her that she had eloped with Kuriti. The accused woke up and, upon hearing her story, told her to go and bring his son. She left and not long after saw somebody who was standing and whistling to her. Thinking it was Kuriti, she went over to him only to find that it was the accused. He blocked her mouth and told her not to make a sound because her relatives were around and they might hear her. He took her to a track and she led the way with him following. They reached the oceanside and stood just above the sea under a uri tree. The accused then asked her if Kuriti had really had sex with her. When she answered yes he told her he was going to inspect her. She protested that he was not the one to inspect her but that it should be done by his wife.

Bereti said that the accused then struck her in the thigh. She fell and when she got up he again struck her in the thigh. Her lava lava had fallen off while this was happening. While she was standing, the accused took off her shorts and panties. She also wore a skirt which the accused could not remove because of some problem with the zipper. He cut the zipper with his toddy knife but the skirt would still not come off. He then threw her to the ground, pulled her skirt up and penetrated her immediately. She struggled but he told her not to make a sound or he would kill her. The accused had sexual intercourse with her for a long time. When he finally got up she ran into the bushes and hid. When he had left the scene she retrieved her clothes but could not find her panties.

According to Bereti she then walked to the house of Teririaki, which was close to the accused's house. She waited until Teririaki and his wife woke up and then told them about being raped by the accused.

When cross-examined she said that she had not told her parents she was going to the function that night because had she done so they would not have let her go. Kuriti had been her boyfriend for exactly a week at that time but she had not told her father about him because she was afraid of her father. She said that if her father had known that she had had sexual intercourse with Kuriti he would have killed her. By eloping with Kuriti she was defying her parents. She intended to live with Kuriti and his family as his wife.

It was put to her that in a statement she had given to the police she had not mentioned that the accused had used a knife to cut her skirt from her. She replied that she told that to the police but they did not write it down. She said that she signed the statement but it was not given to her to read, nor was it read back to her. She agreed that in one part of the statement she had signed a paragraph acknowledging that the statement had been red back to her, but she claimed that that paragraph itself was not true even though she had signed it.

She agreed that she had told the police that when she first went up to the accused he asked her to walk with him and she did so, whereas in her sworn evidence she had said that at that stage he had put his hand over her mouth, picked her up and carried her to a path. She said that the true version was the one given to the police and that what she had said in court was not correct.

Contrary to what she had said in her evidence in chief, she said in cross-examination that she was lying down when the accused removed her shorts and panties. However, she stated that she could not really remember whether she had been standing up or lying down.

Although she had told the court that the accused had inserted his penis as soon as he had got on top of her, she agreed that she had said in her statement to the police that the accused had been unable to penetrate her at first as she was struggling. She said that what she had said in court was what really happened.

She agreed that she later went to Teririaki's house rather than her home, because she was afraid of her parents. She said that when she arrived there she was upset, but not crying. She denied that she had told Teririaki and his wife that Kuriti had also raped her. She claimed that she told them that she had had sexual intercourse with Kuriti but that it was with her consent.

She agreed that while she was with the couple, the daughter of Aran arrived with a message to go and see her mother, who was at Aran's house. She went to her mother and told her what had happened. Her mother told her to go and live with Kuriti at the accused's house or she would be beaten. She agreed that she was quite happy to do this but on he way to the accused's house she was called over by Neru, who lived next to the accused. She told Neru what had happened. Apparently after that conversation, Bereti changed her mind about going to live with the accused.

She said that it was her father who had made a complaint to the police and that at that stage she had not spoken to the police. She spoke to them later that Sunday afternoon. Her mother would not take her to her father because the mother was afraid of him.

She said that the police took her to the village of Buraitan where she was examined by a medical assistant.

She denied telling the police that she had also been raped by Kuriti. She said that she told the police that Kuriti had had sexual intercourse with her, but with her consent. However, she agreed that the first thing the police wanted her to do was to take them to the house where she had sexual intercourse with Kuriti. She agreed that she had later seen Kuriti and the accused being taken away and she heard later that they had both been arrested.

She said that she stayed at her own house that Sunday night. She agreed that she was no longer afraid of her father after having made the complaint of being raped.

The second witness called for the prosecution was Mareta Tokarake, the wife of the accused. Upon being advised of her rights she declined to give evidence and was excused.

The third witness called was Teririaki Tebuataake. He testified that early in the morning of 23 June 1996 his wife woke him and he saw Bereti sitting outside their mosquito net. Bereti went with his wife to the beach and when they returned Bereti told him what had happened. He said Bereti was crying and she was covered in sand.

When cross-examined he agreed that Bereti was a relative of his. He was certain that Bereti was crying before she left for the beach with his wife. He explained that although it was dark he was able to tell that Bereti was covered in sand because he ran his hand down the back of her head and down her hand. He denied that Bereti had told him she had been raped by Kuriti.

The next witness was Teririaki's wife, Eren Teririaki. She also testified that Bereti had told them about being raped by the accused. She said that Bereti appeared sad and had sand on her.

When cross-examined she said that Bereti looked sad but she did not cry at any stage. She also said that at no time that morning did she see her husband touch Bereti. She at first denied that Bereti told her she had also been raped by Kuriti. She said that where, in her statement to the police, she had described what Bereti had told her about Kuriti she had used the word "tauakina". She said that by this she meant sexual intercourse with consent. However, she admitted that in her statement she had used the same word "tauakina" to describe sexual intercourse with Kuriti and with the accused. She further agreed that the word is derived from the word "taua" which can mean rape or sexual intercourse with consent. She then admitted that she had told the police that Bereti had told her she had been raped by both Kuriti and the accused. She immediately recanted that evidence but nevertheless conceded that there had been no misunderstanding between herself and the police. She further greed that shortly after giving the police her statement Kuriti had been arrested and that she believed that in doing so the police had done the right thing.

The fifth witness for the prosecution was Iaaro Toromon. He said that at about 7 am on that Sunday morning he was cutting firewood when he saw the accused arrive on his motorcycle. The accused parked his motorcycle and walked along a path where there were ironwood trees. He did not see where the accused went but he saw the accused return after about 10 minutes, get on his motorcycle and leave. Later that day in the afternoon he gave a statement to the police and showed them where he had seen the accused park his motorcycle.

The next witness was Ngarengare Moneteti, a medical assistant. She gave evidence of a medical examination she conducted on the complainant at 2030 hours on the 23^rd June 1996. She also produced her report of that examination. She was unable to find any bleeding, or lacerations to the vaginal wall. When cross-examined she agreed that she had seen no evidence consistent with rape.

The seventh and last witness for the prosecution was Constable Ioane Namai who was the investigating officer of the alleged offence. He told the court what had been said to him by the complainant about being raped by the accused. He said that he went to the scene and saw that there were signs of a struggle. He prepared a sketch map which he produced in evidence. He said that the complainant also told him that she had had sexual intercourse with Kuriti but his understanding was that she had consented. He said that he later went back to the scene with Iaaro Toromon.

The witness also produced a cautioned statement and record of interview taken from the accused on 25 June 1996 which were put in evidence without objection. The accused said in his statement that when he told Bereti to go and find his son Kuriti she said that she was afraid, so he had agreed to go with her. The statement goes on to say that when they had reached a certain place the accused said that he told her "to show me any mark of her being raped by Kuriti, my son, like a bloody pants or skirt". When she refused he sent her to the village. When questioned by Constable Namai in the record of interview as to why he had not allowed his wife to examine Bereti instead of doing it himself, the accused explained that they had not thought to examine her at first, because she had not come with Kuriti. However, on their way, the accused had felt sympathy for her because if she really was a virgin it would have been "poor" to send her home straight away. He therefore asked her to show him any clue such as blood on her skirt, pants or vagina. When he could not find any he sent her to find Kuriti and bring him back to his house.

Constable Namai also testified that he arrested both the accused and his son Kuriti. He stated that he had intended to charge Kuriti with "going off with a young girl without her parent's permission".

He was cross-examined on his investigation diary and he agreed that the accused and his son Kuriti had been arrested on 23 June 1996 and held in custody until 2 July 1996 when they were both sent to Tarawa under police escort.

He agreed that he had studied the Penal Code during his training as a police officer, that he spoke English and that he understood the difference between the English words "rape" and "sexual intercourse". He said that he could remember being told by the complainant that Kuriti had had sexual intercourse with her but he could not remember whether or not it had been with consent.

He agreed that he had gone with the complainant and her mother to the house where the complainant had had sexual intercourse with Kuriti, which he described in his investigation diary as "the first scene". He said he had been looking for evidence. The investigation diary shows that he had found some blood on the floor and he had made the following entry: "The blood was quite old and I am still doubt whether it was from or after the rape or something else".

He agreed that his diary seemed to indicate that the initial complaint against Kuriti was rape, but he insisted that even though he referred to it as rape he meant sexual intercourse.

The witness was referred to the cautioned statement which he had taken from the accused. He agreed that he had prepared the translation. According to the second last line of the statement, the accused told him: "she refused to show me any raping marks so she twirled on the beach sand". The witness said that the translation was correct. If the accused had used the word "bunorana" he would have written down "sexual intercourse", but the accused had used the word "tauana" (actually the word used in the statement was "tauakina") and in his understanding "taua" refers to the English word "rape".

There was also in evidence a statement which the witness had taken from the complainant. I directed the witness to the part of that document described as an additional statement made on 28 June 1996 at 1720 hours. In it, he records the complainant as saying "This is the way I usually clean my vagina with long before I raped by Kuriti and Tokarake". The witness said that the complainant used the word "tauakin" which translates as "rape".

The witness was also asked in cross-examination whether he had read the complainant's statement back to her. He said that he could not specifically remember doing so but that he always reads a statement back to a witness or gives it to the witness to read. He said that he wrote down everything she told him and if she had mentioned that the accused had used a knife on her clothing he would have been bound to write that down.

That completed the case for the prosecution. I found that a prima facie case had been established and the accused elected to remain silent and call no evidence. I then heard addresses by counsel for the Republic and counsel for the accused.

Before considering the evidence I must direct myself that the burden of proof beyond reasonable doubt remains upon the prosecution from first to last. The prosecution must prove the charge and each element of the charge beyond a reasonable doubt and if it fails to do so then the accused is entitled to be acquitted. There is no onus on the accused at any stage to prove his innocence. In the present case the prosecution must prove beyond a reasonable doubt that the accused had unlawful sexual intercourse with the complainant without her consent, or with her consent if the consent was obtained by one of ways prescribed in section 128.

I must also direct myself that in cases of this nature it is dangerous to convict on the uncorroborated evidence of the complainant. However, bearing that warning in mind, if I have no doubt that the complainant is speaking the truth then I may convict on her evidence, even though uncorroborated.

In reviewing the complainant's evidence, I take into account that she was only 16 years old at the time of the alleged offence and that more than 2 years have gone by since the incident. I would not expect her to be able to remember every peripheral detail of what occurred. However, it can be seen from such evidence that her testimony was at variance with her statement to the police in several important aspects. I doubted that she was telling the truth when she testified that she told the police about the accused using a knife t cut her skirt but that the police officer did not write it down. She admitted in cross-examination that her evidence about what the accused did when she first went up to him was not true, and claimed that the true version was what she had told the police. In contrast, she claimed that her evidence about the accused penetrating her immediately was true and that what she had told the police about the accused having difficulty at first was not true. She conceded in cross-examination that she could not really remember whether she had been standing up or lying down when the accused removed her shorts and panties. However, she had earlier been quite definite in her evidence in chief that she had been standing up.

Furthermore, I think that she attempted to mislead the court on the question of whether she had originally made a complaint of rape against not only the accused but against his son Kuriti. Despite her denial, I am satisfied from the evidence of the witnesses Eren Teririaki and Constable Ioane Namai, given reluctantly under cross-examination, that she did make such a complaint. Having found that, I am not left with much confidence in her evidence of what the accused is supposed to have done.

While the explanation given by the accused to the police in his cautioned statement is curious, I do not think that the evidence of the prosecution goes so far as to eliminate any reasonable possibility that it could be true. In any event, the question is not simply one of making a choice between the complainant's evidence and the accused's unsworn statement. The burden of proof remains on the prosecution, which must establish that the evidence of the complainant is true beyond a reasonable doubt.

I have considered the complainant's evidence not in isolation, but in the light of all the other evidence, and I find that I am left with some doubt as to its truth. The accused is entitled to the benefit of that doubt. He is therefore found not guilty of the charge of rape and is acquitted accordingly.

Dated the 20^th day of July 1998

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE