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Republic v Boraia [2003] KIHC 97; Criminal Case 08 of 2003 (1 September 2003)

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

Criminal Case No. 8 of 2003

THE REPUBLIC

vs

NERU BORAIA

For the Republic: Ms Pole Tebao
For the Accused: Mr Aomoro Amten

Date of Hearing:

JUDGMENT

The little boy had a fever. His mother, Nei Ruuti, took him to the hospital at Kariatebike village on Abemama and stayed with him there. His two year old sister came too. So did his grandmother, Nei Moatau, and her partner, Neru Boraia, the accused.

During the night of 22/23 May 2002 Nei Ruuti was sleeping in the solid brick building, part of the hospital and Nei Moatau and Neru were in a thatched roofed building a few metres away. About midnight Neru came over to Nei Ruuti and told her he was going to sleep with her when the moon came up. Nei Ruuti was frightened and went off to see the nurse, Nei Joy. Nei Ruuti persuaded her mother to come over to sleep with her. So she did, but Neru came too. They were all under the mosquito net. The little girl began to cry. Neru told Nei Moatau to take her outside. She did. Neru was alone with Nei Ruuti. She was wearing a bra and shorts. He pulled her clothes, held her tight: he put his hands under the bra on to her breasts: under her panties he touched her vagina: she slapped his hand away. Neru left her and caused a commotion outside. Nei Ruuti went again to see the nurse. They went to the police.

That is the summary of the prosecution evidence given by Nei Ruuti, Nei Moatau and Nei Joy. I accept them all as being honest and reliable.

I have no doubt that this is what happened.

Neru gave evidence in his own defence. His account was altogether different. Nei Ruuti had been at him and at him to have sex with her. She'd been over to him several times. She kept him awake all night. Nei Moatau told him to comply with her wishes. He pulled her hand: she did not object. He touched her breasts: she did not object. He tried to put his hand under her pants: slapped his hand away. He left her.

Of course, the accused does not have to prove anything. The prosecution has the burden of proof beyond reasonable doubt. Having heard all the evidence the prosecution has discharged the burden.

Neru, without Nei Ruuti's consent, against her wishes, touched her on the breasts and vagina. That was indecent assault. There is no direct corroboration of the touching but both her mother and the nurse corroborate Nei Ruuti's account on several surrounding matters.

I find the accused guilty of indecent assault.

Dated the day of September 2003

THE HON ROBIN MILLHOUSE QC
Chief Justice