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Republic v Aata [2004] KIHC 47; Criminal Case 64 of 2003 (17 March 2004)

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

High Court Criminal Case No. 64 of 2003

THE REPUBLIC

vs

TEMWAKE AATA

For the Republic: Ms Ruria Iteraera
For the Accused: Ms Taoing Taoaba

Date of Hearing: 15 March 2004

JUDGMENT

The accused, Temwake Aata, was originally charged with attempted rape but on the day fixed for the trial the Republic substituted the charge of assault occasioning actual bodily harm.

The victim, Nei Remire Otea, a young woman now 19, on Sunday 13th October 2002 went with the accused to a spot next to the soccer field at Bonriki. They found a group of his friends drinking there. The drinking continued for some hours but Nei Remire had no alcohol. The members of the group decided to move. After some time Temwake and Nei Remire followed but did not find where the others had gone:-

(He ) Went looking for them. He returned and sat on my legs, told me to take off clothes. I did. Said he was going to have pretend sex with me. I agreed. Told me to take off panties but I refused ....... Forced me to take them off...... knocked me down: tied my hair to a plant. When I tried to shout hands over mouth. I bit his fingers: he bent over and bit under my eye. I punched him on the cheek. He released his teeth. Blood started to flow on to my face. He forced my throat against it: squeezed neck. Bit under the left eye. I struggled to breathe. Tried to stick fingers down my throat: to stop me breathing ....... He ran away.

I inspected a slight linear scar about 1cm long under the victim’s left eye.

In cross-examination Nei Remire agreed Temwake bit her to make her free his fingers.

Detective Constable Biribo Taomati, the Investigating Officer, went to the hospital. There he saw an injury to Nei Remire’s cheek: a laceration: her eyes were a bit swollen.

The accused’s caution statement was tendered by consent. The accused admitted what had gone on:-

....I blocked her mouth to stop her from screaming. Instantly, she bit my hand. In turn I bit her chin whereas she stopped biting then I left since I noticed blood coming out from her face.

No evidence by or on behalf of the accused. Ms Taoaba submitted that the accused had to bite the victim to get her to free his fingers. She argued the defence of necessity.

I reject the argument. The young man got himself into this situation by blocking the victim’s mouth. He should not have behaved so roughly towards her. He has only himself to blame. He cannot use his own wrong actions as a defence.

“’Bodily harm’ has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the victim” (Archbold, 2003 ed, para 19-97)”.

The accused is guilty of quite a serious assault and it was an assault which caused Nei Remire actual bodily harm.

Dated the 17th day of March 2004

THE HON ROBIN MILLHOUSE QC
Chief Justice