IN THE HIGH COURT OF KIRIBATI 2018

CRIMINAL CASE NO. 57 OF 2016

		[THE REPUBLIC					PROSECUTOR
		[
BETWEEN	[AND
		[
		[UATI REVI						ACCUSED

Before:	The Hon Chief Justice Sir John Muria

5 July 2018

Ms Pauline Beiatau for the Prosecutor
Mr Reiati Temaua for the Accused

JUDGMENT

Muria, CJ:	At the close of the prosecution case, the defence now makes a submission of no case to answer on behalf of the accused.  Mr Temaua submitted that on the evidence before the Court, the prosecution has failed to establish a sufficient case for the accused to answer.  As such, applying the test in section 195 of the Criminal Procedure Code, the Court should find that there is no case against the accused, for him to answer.  The case should therefore be dismissed and the accused acquitted.

Counsel also relied on Republic –v- Edward Narayan and Lomi Loo [2012] KICA 9; Crm. App. No. 2 of 2012 (15 August 2012), a decision of the Court of Appeal of Kiribati.  In the appeal by the Republic against the decision of the High Court, the Court of Appeal stated as follows:

“The Chief Justice considered that in a judge-alone criminal trial in Kiribati – unlike in those jurisdictions where criminal trials were decided by a jury, as finder of fact, he was entitled to consider the sufficiency of the evidence at the end of the prosecution case.  This is a slightly different test from the usual one in jury cases exemplified by R –v- Galbraith [1981] 2 All ER 1060:  i.e. that if at the end of the prosecution case there is some evidence possibly implicating the accused, the reliability of what should be left to a jury .  The judge must not in those circumstances stop the case whatever view the judge had formed of that evidence.  The Chief Justice here held that the difference of approach which he took lay in the fact that the judge plays the role of the jury as well as that of the judge in this jurisdiction.

Despite the submission of counsel for the appellant that the Galbraith approach should be followed, we conclude that the Chief Justice was entirely correct in taking the approach he did in circumstances where the trial judge is the trier of fact as well as the arbitrator in law.  As the Chief Justice pointed out, section 195 provides that if the case against an accused is not made out “the court shall dismiss the case and shall forthwith acquit the accused”.

Section 195 of the Kiribati Criminal Procedure Code provides as follows:

“195.	If at the close of the evidence in support of the charge it appears to the Court that a case is not made out against the accused person sufficiently to require him to make a defence, the Court shall dismiss the case and shall forthwith acquit the accused”.

Similar provisions also appear in the Solomon Islands Criminal Procedure Code.  Section 197 of Solomon Islands Criminal Procedure Code is in the same wording as s.195 of the Kiribati Criminal Procedure Code.  It is also the same as s.195 of Tuvalu Criminal Procedure Code.  The Criminal Procedure Code of Fiji, although worded slightly differently, it also provides in section 293(i) that at the close of the prosecution, ‘the Court, if it considers that there is no evidence…. record a finding of not guilty”.

The acquittal of the accused in a no case to answer in the jurisdiction referred to, clearly reflect the difference in the test in R –v- Galbraith [1981] 2 All ER, 1060 (trial by jury) and Criminal Procedure Code provisions (tried by Judge alone) in the jurisdictions mentioned.  In a trial by Judge alone, the Judge is “the trier of fact as well as the arbitrator of the law”.  In such a situation, the judge is entitled, as explained in Republic –v- Narayan and Loo, to consider the sufficiency of the evidence of the prosecution evidence at the close of [the prosecution case.   See also the case of R -v- Lutu [1986] SBHC 16; 
[1985-1986] LILR 249.   If after doing so, the judge finds that there is so little or insufficient evidence, even if uncontradicted, to ground a possible conviction, the judge should not require the accused to make a defence.  The judge should stop the case and acquit the accused.

In the present case, the evidence of the victim is that she and two of her friends, all set out from St Louis High School and went to William Goward Memorial College where they met the accused and his friends.  Together they set out in a bus to Temwaiku to find fermented yeast to drink.  She (victim) drank six cups of fermented yeast and later had another two or three cups of fermented yeast at their second drinking spot.  The accused was with her and their friends all throughout their drinking sessions.  She agreed to the accused to accompany her to go to relieve herself in the bush.

The victim’s evidence is also that the accused had sexual intercourse with her while she fell asleep, after relieving herself.  She said that she did not know that the accused had sex with her, only that she felt pain in her vagina.  The victim never told her friend Teina who was with her all throughout their drinking sessions, that the accused raped her.  She only told Teina that the accused took her virginity for which she said she was not happy.

The prosecution evidence continues, that the victim, accused and their friends were together, even after the accused had sex with the victim.  They left together to catch the bus and together they boarded the bus at Temwaiku.  The accused and victim were sitting at the back seats in the bus.

In her own evidence, the victim agreed she and the victim were sitting together at the back of the bus.  She agreed that while they were in the bus, she (victim) and accused were kissing and were causing disturbances in the bus.  The other passengers in the bus were disturbed and so the bus driver had to stop the bus outside the Bikenibeu Police Station, to drop off the three, the victim, the accused and Teina.

As a result of the report from the bus driver about the disturbances caused by the victim and accused in the bus, the Police Officer (PW2) entered the bus and asked the victim, accused and their friend Teina to leave the bus.  They were taken into the Police Station.

While at the Police Station, the victim did not complain about being raped by the accused.  This was, of course, not surprising since the reason for being dropped off at the Police Station was not because the victim wanted to make a complaint about being raped by the accused.  The three were dropped off at the Police Station because of the disturbances and nuisance they were causing in the bus.

It was after being questioned about the disturbances in the bus, that the victim was asked about the blood on her skirt.  At first she agreed she did not complain about being raped by the accused when she was asked about the blood on her skirt.  It was some time a little later that a female police officer asked her again about the blood on her skirt that the victim stated that the accused raped her.

When asked in cross examination why she was kissing the accused whom she said raped her while they were in the bus, she shifted the blame to Teina.  She said it was Teina who made her kiss the accused in the bus.  This was the man whom she said raped her, yet she was sharing moments of excitement and fun with  him in the bus by kissing him and hugging him and making disturbances and nuisance in a public bus.  This is hardly the trait of a woman who has a grudge for being raped.

It is for the prosecution to bring evidence to support its case.  Teina and the female police officer who took the victim’s story (if ever that was done at all) could have shed further light on the victim’s story.  They were not called.  That, of course, is a decision by the prosecution.  But the case presented in this case to support the charge of rape against the accused could not possibly ground a conviction even if uncontradicted by the defence.

It would therefore be a fruitless exercise to require the accused to make his defence to the charge of rape brought against him in this case.  

I find that the case against the accused is not made out sufficiently to require the accused to make a defence.  The case is dismissed and the accused is acquitted.

Dated the 9th day of July 2018

SIR JOHN MUJRIA
Chief Justice