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Republic v Tekanene [2004] KIHC 92; Criminal Case 63 of 2003 (6 February 2004)

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

Criminal Case No. 63 of 2003

THE REPUBLIC

vs

TIAON TEKANENE

For the Republic: Mr David Lambourne
For the Accused: Mr Banuera Berina

Date of Hearing: 4 February 2004

JUDGMENT

A legally qualified medical practitioner is accused of indecently touching a patient during the course of his examination of her at the Betio hospital. He is charged with indecent assault.

It was the morning of Friday the 5^th September last year. Nei Ranatu Tabuariki, aged 22 and married, went with her mother Nei Karaea Tekatiba, to the hospital as she had vomited blood. She saw the accused, Dr Tiaon Tekanene in his office. Her mother waited outside. Nei Ranatu's evidence in chief:-

He sitting – told me to come in – asked me what wrong – vomiting blood – told me to lie on bed to examine me. First my eyes, chest with stethoscope, examined stomach – pulled down my underpants. Wearing tibuta and shorts – no bra. When he pulled down pants could feel 2nd or 4^th finger touching vagina. Doctor was standing on my left. No gloves. Pulled down shorts and underpants in line with vagina. Tip of my vagina – finger moved sort of tickling. I didn't say anything because I assumed that was his job also. He came back to stomach massaged me. Inserted finger again to tip of – clitoris – massaging stomach again. Thought it wasn't proper. Final movement – had left hand fiddling with clitoris – right hand fiddling with nipple. I said "What are you doing?" He let go – massaging stomach – "It's finished now". Hand under tibuta. He was close to bed. ----------- his penis fully erected.

The accused helped her to sit up and explained her medication.

In cross-examination Nei Ranatu agreed that a door into the office was partly open while she was in the room. The examination had taken an hour or more: it was a long time. When pressed Nei Ranatu insisted that she was not mistaken as to the length of time. Although she had said in examination in chief Dr Tiaon had always been her doctor, in cross examination she said that this was the second time he had examined her.

Until Nei Ranatu said the examination had taken more than an hour, I felt able to accept her evidence. I began to have doubts when she said that. It is so unlikely that the doctor would have taken anything like an hour on a busy Friday morning to carry out the examination she described.

Nei Karaea in examination in chief gave the same estimate of time: "almost one hour plus". Not only did I doubt the estimate but I noted that both mother and daughter gave the same doubtful estimate. That gives rise to suspicion of concoction between mother and daughter.

Nei Karaea:

She told me not happy the way she had been examined – he touched my clitoris and nipples. On our way out from the hospital.

The Solicitor General fairly acknowledged that Nei Karaea's evidence was not corroborative of her daughter: it merely went to shew the consistency of her daughter's story.

The other prosecution witness (who gave her evidence first) was Nei Tokaman Tikataake, Senior Nursing Officer and in charge of the Betio Hospital on the 5^th September. Standing operating procedures provide that during examination a patient should be accompanied but this was not a necessity "unless private parts are to be checked". Given the patient's symptoms, there was no need to check the complainant's private parts: I conclude that the presence of a nurse was not required.

The accused gave evidence. He denied having touched the complainant's private parts. All he agreed was that his right hand touched a breast in the course of examination. He had pulled her pants down only as far as the super pubic area. The examination "took 5-10 minutes: no more than 10". He denied sexual arousal. I do not put any weight on the complainant saying that she felt and saw through his shorts his erect penis. If it were erect it could have been for reasons nothing to do with the complainant.

The door left partly open led into another examination room. The medical assistant, Tonganibeia was, during the morning, examining patients in it. There was no rule against staff members coming into the accused's office: the medical assistant could come in and out if he needed advice.

I am confronted with the uncorroborated evidence of the complainant and the blank denial of the accused.

The complainant's obvious mistake in her estimate of the time taken for examination and her mother confirming the mistake surprised and unsettled me. It was a pity the nursing officer gave evidence first and not last. I would like to have heard her on how long as a rule consultations last. I can only go on my own experience and observation. They are that five to ten minutes for that examination is far more likely to be accurate than more than an hour. I remember both daughter and mother gave the same estimate. They may have used slightly different words but the estimates came through interpretation as the same.

The Solicitor General reminded me that I-Kiribati do not have the same concern about time as (most) I-Matang: I should not set much store by a mistake like that. Yet it is such an over estimate and persisted in, that I do set store by it. Moreover it is not as though daughter or mother were vague about the time (for example, "it may have been less than an hour but it was a long time"). They were definite, "more than an hour".

The Solicitor General reminded me that I may convict on an uncorroborated complaint. So I may but before I do I must be sure of it beyond reasonable doubt. For two reasons I cannot be sure. Firstly the mistaken time estimate. Second, the doctor, being conscious that someone could come into the room at any time and he could be seen or the patient protest it is unlikely that he would take such a foolish risk as indecently to touch the patient.

The Republic has not proved its case beyond reasonable doubt.

I find the accused not guilty.

Dated the 6^th day of February 2004

THE HON ROBIN MILLHOUSE QC
Chief Justice