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Republic v Tiim [2006] KIHC 91; 18-06 (1 September 2006)

IN THE HIGH COURT OF KIRIBATI
Criminal Jurisdiction
Held at Betio
Republic of Kiribati

High Court Criminal Case No. 18 of 2006

THE REPUBLIC

v

NAIKEE TIIM

For the Republic: Ms Pauline Beiatau
For the Accused: Ms Taoing Taoaba

Dates of Hearing: 15, 29 & 30 August 2006

JUDGMENT

Three offences were charged against the accused: rape, indecent assault and assault. Respective particulars of the offences:-

On 26 November 2005 at Betio, Tarawa in the Republic of Kiribati Naikee Tiim had unlawful sexual intercourse with Lucinda Peter Tong without her consent.

On 26 November 2005 in between Betio and Teaoraereke on South Tarawa in the Republic of Kiribati Naikee Tiim unlawfully and indecently assaulted Lucinda Peter Tong on a saloon car.

On 26 November 2005 at Teaoraereke Tarawa in the Republic of Kiribati Naikee Tiim unlawfully assaulted Paul Jones.

The events of the night and early morning began with drinking, between 11 pm and 2 am at the Royal, then moved to Taiwan Park. Thereafter two cars were driven by Andrew Tikai and Paul Jones (an I-Matang who was not called and whose absence was not explained) up and down the road between Ambo and Betio. Several women, in their late teens or 20’s were passengers in the cars, at some time in one car, at another time in the other car. Finally the car driven by Andrew was bumped on the causeway - the details of this happening were not given - and damaged. The two passengers in Andrew’s car at that time, the accused, Naikee Tiim and Lucinda Peter Tong, got out, went somewhere off the road and had sexual intercourse. Lucinda swore Naikee forced her: Naikee swore it was consensual. Soon after sex Naikee’s wife, Nei Tebou, came along: Lucinda told her that "her husband did a very bad thing to me".

Some months later Lucinda had consensual intercourse with Naikee.

Naikee’s caution statement was admitted after a short voir dire. Taken on 3rd January:-

In regard to the complaint which was the complaint of Nei Lucinda that I had sexual intercourse with her without her consent but forced her, it was wrong that I had sexual intercourse with her without her consent and she lied that I forced her. I wish to say it here that Nei Lucinda consented to have sexual intercourse with me at that time. That was all I want to say.....

Q.8 According to the information that we have obtained, at that time you told Nei Lucinda to have sexual intercourse with her and she herself refused, is that right?

Ans: Yes, she did refuse because she was afraid but then I had a talk with her and then she agreed.

Towards the end of Lucinda’s cross examination, Ms Taoaba asked her about subsequent consensual intercourse, said to have been in June this year:-

Sleeping with Naikee at Ngaia’s house? - No. I was at Ngaia’s house - he and I went there together. He called me at my house. We went in a car to Ngaia’s house at Taborio. May be 8 pm. He bought beer but I had only one. Left early in morning. He apologised many times. At Ngaia’s house we were talking: went to his car, would not go: went back to house: alone with him inside house. I had sex with him at Ngaia’s house.

The admission was a complete surprise. For two reasons it destroyed Lucinda’s credibility. First because one does not expect a rape victim subsequently to have consensual intercourse with a man who has raped her: not even if it is as long as six months later and the families of the two are neighbours. Secondly and even more significantly, Lucinda told a lie: she first denied the intercourse, then a few questions later in cross examination as my note shews, she admitted it straight out.

The admission of later consensual intercourse after first denying it, made me doubt the reliability of the whole of Lucinda’s evidence.

At the end of the prosecution case, Ms Taoaba submitted there was no case to answer.

There may have been a case to answer on the charge of rape although I doubt how any jury properly instructed could ever have convicted on Lucinda’s evidence especially in the light of Naikee’s denials in the caution statement. Certainly I, as jury as well as judge, could not have found beyond reasonable doubt on the whole of the evidence the charge proved. In a jury trial, at the close of the prosecution, having found a case to answer, the judge may nevertheless direct the jury that at any time from then on they may stop the trial and bring in a verdict of not guilty. [They may not bring in a verdict of guilty until after the close of the defence case, having listened to counsels’ addresses and the judge’s summing up].

In place of the jury in this trial I had no hesitation in bringing in a verdict of not guilty on count 1. I have now given the reasons.

That left the charges of indecent assault and assault. The accused maintained his plea of not guilty to indecent assault but changed his plea to guilty of assault.

As to the assault, at one stage, when Paul Jones’ car stopped, Naikee went over to the driver’s side window, which Paul had wound down and took a swipe at Paul. Paul put up his right arm to ward off the blow from his face: he took the blow on his arm, not his face. The accused admitted the assault in his caution statement:-

Q6: Also from the information which we have been obtained, why did you punch that Imatang guy when Nei Lucinda had got out and went to you?

Ans: Because we were tired of stopping him when we were both riding.

That left only the indecent assault.

Lucinda’s evidence, corroborated by another young woman, Tienita Batiri, was that as they - Andrew driving, Tienita next to him in the front seat with Naikee sitting next to Lucinda in the back seat:-

Accused trying to insert fingers into underpants, squeeze my breasts. Told him not to. He kept on. I didn’t agree. ----- I argued with him not to. I told Andrew what (accused) was doing: told him to stop car but he didn’t. He stopped at Teaoraereke.

Tienita’s account was slightly different: she said that as they were driving back towards Teaoraereke, having gone to Betio, they stopped (for reasons not given) and swapped seats. She went to sit in the front passenger seat: Naikee sat in the back with Lucinda:-

Saw Naikee pulling Lucinda towards him putting his hands inside her shorts. She shouting for car to stop. It didn’t until Teaoraereke at TUC building. Started doing it at causeway - may be four times (examination in chief) ..... Saw Naikee touching Lucinda four times. I looked back. I saw Lucinda hitting driver’s seat telling Andrew to stop. (Cross examination)

Naikee denied that at any time on that journey he had been sitting in the back next to Lucinda. He had not, when giving his caution statement, been asked about anything about an indecent assault. His friend, Andrew Tikai, corroborated Naikee:-

Naikee with me, Lucinda and her friend in the back. Stopped at Teaoraereke for a piss. Only heard voices singing - no shouting or screaming - the girls singing to beat of the music in car. Naikee next to me.

Naikee and Andrew were credible witnesses. Given my lack of confidence in Lucinda’s credibility, even though Nei Tienita backed her up, on the whole of the evidence I could not find beyond reasonable doubt that there was an indecent assault.

The result of the trial is that the accused is not guilty on counts 1 and 2 and guilty on his own admission on count 3. It only remains for the court to consider penalty on count 3.

Dated the 1st day of September 2006

THE HON ROBIN MILLHOUSE QC
Chief Justice