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Republic v Aretema [2018] KIHC 37; Criminal Case 78 of 2016 (19 September 2018)

IN THE HIGH COURT OF KIRIBATI 2018

CRIMINAL CASE NO. 78 OF 2016

[THE REPUBLIC PROSECUTOR
[
BETWEEN [AND
[
[KOBEBE ARETEMA ACCUSED

Before: The Hon Chief Justice Sir John Muria

28 August & 5 September 2018

Ms Tewia Tawiita for the Prosecutor
Mr Raweita Beniata for the Accused

JUDGMENT

Muria, CJ: The accused has been charged with the offence of rape contrary to section 129 of the Penal Code. The accused pleaded Not Guilty to the charge.

2. As always, in criminal cases, the burden is on the prosecution to prove the guilt of the accused on the evidence adduced before the Court. The prosecution will have to do so by proving all the elements of the offence.

PROSECUTION CASE

3. The prosecution case as outlined by Ms Tawiita of Counsel for the prosecution in opening the prosecution case is that on 19 June 2016, after attending Sunday Mass, the victim returned home to her house. At around 1300 hours, the victim Akata Akau went to the bush to relieve herself. The accused, Kobebe Aretema, saw the victim going to the bush and followed her. While in the bush, the accused is said to have called out the victim’s name asking her to come over to the accused to identify a bucket which was used for mixing yeast.

4. The victim is then said to have gone over to where the accused was to check on the bucket. It was then that the accused immediately pulled the victim, squeezed her against him and threatened her with a knife held to her neck. The accused is then said to have forced the victim to follow him further into the bush, threatening to kill her if she screamed.

5. The prosecution then alleged that the accused forced the victim to lie down and then the accused took off the victim’s skirt and pant. The accused then spread out the victim’s legs and penetrated into her vagina with his penis. That was the first occasion when the accused had sexual intercourse with the victim on that day without her consent.

6. It is further alleged that the accused then forced the victim to follow him further into the bush, still threatening her with a knife and that he would kill her if she screamed. Upon reaching a spot further in the bush, the accused is again said to have forced the victim to lie down. The accused then removed her clothes and had sexual intercourse with her without her consent for the second time that afternoon of 19 June 2016. It is said that by then the victim was tired and had pans in her vagina. It is also said that the victim begged the accused to stop having sexual intercourse with her but the accused never listened to her plea.

7. For the third time, it is alleged that the accused forced the victim to go even further into the bush because she refused to elope with him. The accused continued to threaten the victim with a knife. For the third time, the accused is alleged to have sexual intercourse with the victim in the bush without her consent.
8. The victim, it is said, finally agreed to elope with the accused, so that he could release her. She told the accused that she would go back to her house first and then to elope with him when it was dark.

9. The victim and the accused returned together to the village but separated just before reaching the village. The victim is then said to have told her sister of what the accused did to her. Then the mother took the victim to the nurse to be examined. The nurse, the victim and her mother then went to the police first to lodge their complaint and then went to Kieia Hospital to have the victim medically examined.

DEFENCE CASE

10. The defence case is that the accused and victim were boyfriend/girlfriend. They had been friends for some time but they kept their special relationship hidden from others. In that relationship, they had sexual intercourse on previous occasions before 19 June 2016.

11. The accused’s story is that on Sunday 19 June 2016, after the victim returned from Sunday Mass, the accused and victim agreed to meet each other in the bush. The victim went ahead first and the accused followed her a little later. They met up in the bush as they had done before.

12. While in the bush, the accused and victim spent the afternoon together, had sex together and just enjoying each other’s company. The accused had sexual intercourse three times after which they just spent the rest of the afternoon leisuring before returning to the village late in the afternoon at about 5 pm. Upon reaching the edge of the village, they kissed each other and parted.

ELEMENT AT ISSUE: CONSENT

13. The only contested issue in this case is that of Consent. The accused agreed that he had sexual intercourse with the victim while they were in the bush in the afternoon of 19 June 2016.

14. He, however, said that the victim consented to him having sexual intercourse with her. The victim’s story is that the accused had sexual intercourse with her against her will.

THE EVIDENCE

15. The prosecution called three witnesses. The victim (PW1) gave evidence and said that the accused followed her into the bush when she went to relieve herself. The accused grabbed her, pulled her against him, pointing a knife to her neck, took off her skirt and underwear and had sexual intercourse with her. She said that the accused had sexual intercourse with her without her consent. She said that she was not able to escape from the accused because he threatened her with a knife. The place where the accused had sexual intercourse with her was about 100 metres away from the village.

16. Then the accused took her at knife point a further 25 metres into the bush. At this second spot, the accused again took off her clothes and had sexual intercourse with her against her will. The victim said she begged the accused to stop but he ignored her and focused on having sexual intercourse with her.

17. After having sexual intercourse with her the second time, at that second spot, the victim said that the accused then took her at knife point, to a third place further into the bush. It was at this third spot that the victim tried to escape but the accused stopped her. The accused hit her head, pulled her hair and threw her down to the ground and had sexual intercourse with her at knife point.

18. It was after the third time they had sexual intercourse that the victim told the accused that it would be better if the accused was to go away for the moment and that they would meet up again at night and elope. To that plan, the accused agreed.

19. The victim said that they left together, returning to the village. They parted company just before they reached the village.

20. The victim’s evidence is also that on each occasion, the sexual intercourse lasted only about three to five minutes. The accused met the victim in the bush at about 1.00 pm that day, 19 June 2016, and she returned to the village after 5.00 pm when it was going toward dark.

21. The victim first talked to her sister, Kinaua Akau, when she got back to the village. She told her sister that the accused had sexual intercourse with her in the bush.

22. In cross examination by defence Counsel, the victim confirmed meeting the accused in the bush at about 1.00 pm on 19 June 2016 after she returned from Sunday Mass. She also confirmed in cross examination that the accused had sexual intercourse with her three times on three separate occasions. At each occasion the sexual intercourse only lasted about three to five minutes.

23. Asked in cross examination if her parents were angry with her, the victim stated that they did not get angry with her. Only her mother talked to her. Her father did not talk to her. She denied being beaten by her father for what she did.

24. Again it was suggested to her that she went to Reuben’s house because her father beat her. The victim accepted she went to Rueben’s house but said it was not because her father beat her. She said she just went there for no reason at all.

25. When asked in cross examination that since she and the accused had sexual intercourse three times and each time it was only for about three to five minutes, what have they been doing for the entire time they were in the bush (a total period of more than four (4) hours). The victim’s answer was that they took long in the bush because the accused had been threatening her with a knife.

26. In cross examination, the victim agreed that this was the second time she had sexual intercourse with the accused. When it was put to her that the first time was a week before the present incident, the victim at first was silent. Then she said there was no other time in the past and that this was the first time that she and the accused had sexual intercourse.

27. Asked in cross examination if she was a virgin on 19 June 2016, the victim replied that she did not know if she was a virgin or not.

28. She was asked if she could describe the knife which she said the accused had in cross examination. She replied that she could not describe the knife. She could not remember with which hand the accused was holding the knife when he was threatening her and pulling down her skirt and underpants.

29. It was put to the victim by defence Counsel that when she gave her story to the police, she stated that the accused reached his climax when they had sexual intercourse. She did not say that in Court because, she said, she forgot it.

30. It was also put to her in cross examination if the accused ejaculated during sexual intercourse. Her reply was she could not remember.

31. The victim denied that she and the accused had a relationship. She agreed, however, they were neighbours and that the accused’s house was near her house in the same village.

32. The second prosecution witness was the doctor (PW2) who examined the victim. Dr Atuuna Mareko examined the victim at about 7.00 pm on 19 June 2016. The medical report shows that the victim was fully conscious, with no obvious distress, walking normally and that the victim already had her bath before she came to the hospital to be examined.

33. As to the injuries, the report shows four (4) linear superficial scratch marks 3cm long at the side of the neck (right) and not bleeding, a tender crack at the tip of the nose and not bleeding, a scratch mark 3cm at the left cheek, linear puncture abrasions (from pandanus leave scratch marks) about 5cm distal to posterior aspect of right elbow and scratch marks at the left upper arm.

On vaginal examination, the report shows: no bruising, no lacerations of the hymen and tender posterior to vaginal opening.

Vaginal swap was taken for spermatozoa smear – result was negative.

Asked in examination in chief as to the possible cause of the tender at the posterior to the vaginal opening, the Doctor replied that it could be due to some form of force but not strong enough to cause any injury. When cross examined by defence Counsel, the Doctor stated that even if the victim had washed herself before examination, the examination could still detect cuts or bruises in the vagina. In present case, there was no injuries detected.

34. The prosecution third witness (PW3) is Kinaua Akau, the victim’s sister. PW3 was one of those who went searching for the victim earlier together with two other boys. She was at home at about 5.00 pm when her sister, the victim, came back. She testified that she saw the victim’s clothes were a little dirty and her hair was not intact. She said she also saw the marks on the victim’s neck, which she said looked like marks from a knife.

35. PW3 said that she and the victim did not tell their father what had happened because he was a short-tempered person. So PW3 and victim only told their mother as to what had happened to the victim. PW3 was asked if the victim went to Rueben’s house after she returned to the village, she said that the victim never went to Rueben’s house at all.

36. PW3 and the mother (PW4) took the victim to hospital for examination. PW3 confirmed that the victim took her bath before going to the hospital for examination. She also testified that the victim had her bath before going to see the Doctor because she was feeling uncomfortable with the accused’s sperm.

37. The prosecution fourth witness was Kaborau Tabui (PW4) who is the mother of the victim and PW3. She was also looking for her daughter earlier in the day on 19 June 2016 at the ocean side. Later about 5.00 pm or 6.00 pm she went again looking for the victim. When she came back, the victim had already returned to the village but she was at Taukaro’s house. Taukaro was their neighbour.

38. PW4’s evidence confirmed that the victim returned to the village but that she was at a neighbour’s house (Taukaro’s house). It was there that her mother saw her and the victim reported to her of what the accused did to her. PW4 described the victim’s hair as all messed up and dirty all-over her body.

39. PW4 asked the victim what had happened to which the victim replied that the accused threatened to have sex with her. PW4 said that the victim did not tell her that the accused had sexual intercourse with her, only that the accused tried to have sex with her but the victim refused. PW4 and PW3 took the victim to the doctor to be examined.

40. The accused’s Caution Statement was also put in evidence by agreement. In this Caution Statement, the accused agreed he had sexual intercourse with the victim. He said, however, that he and the accused had consensual sexual intercourse. The accused denied having a knife and denied using a knife to threaten the victim.

41. The accused gave sworn evidence in his defence. He agreed he had sexual intercourse with the victim on 19 June 2016 in the bush and that the sexual intercourse was consensual. He confirmed what he told the police in his Caution Statement. He said that he and the victim were in a relationship and had sexual intercourse on previous occasions.

42. The accused stated that on Sunday 19 June 2016 he did not go to church that Sunday. He signaled her to meet him at the lagoon side. They met at a spot not far from the accused’s buia for half an hour. It was the victim who suggested that they moved further away as she was afraid that her father and relatives would see them.

43. The accused stated that following her suggestion, they moved further into the bush. They came to a spot where there was a ‘te mao’ tree where they spent half an hour having conversations. This was some 30 metres further away from where they first met. They enjoyed each other’s company and had intimate conversations.

44. After spending half an hour or so at the second spot, the accused and victim moved further to another spot. By then it was already about 3 or 4 o’clock in the afternoon. It was at the third spot that they undressed each other and had sexual intercourse for more than five minutes. After they had sexual intercourse they both were happy, lying down naked, relaxing and having intimate exchanges. They even talked about eloping. By then it was about 5.00 pm.

45. As it was going toward evening, and the victim was worried about her parents and relatives looking for her, they put on their clothes and headed back to the village. They agreed to meet again later at night at the accused’s buia. When they got near the village, they kissed and parted.

46. The accused went back to his buia and lied down. His mother (Monika) then came and asked him what he did to the victim. It was her mother who mentioned to the accused that the victim was beaten up by her father. It was his mother who mentioned to him that the victim ran away to Rueben’s house.

47. In his story to the police and in Court, the accused denied using a knife to threaten the victim at all. He stated that he and victim were in a special relationship and that they had been having sexual intercourse in the past. There was no need for him to threaten the victim.

48. He reiterated when cross examined that he and the victim only had sexual intercourse at the third spot where they spent time in the afternoon on
19 June 2016. They both agreed to and enjoyed sexual intercourse. There was no force, no threats of any sort done to the victim.

49. While in the bush, they were lying down on top of leaves of ‘te mao’ trees. Asked in cross examination if he had ‘rough’ sexual intercourse with the victim, the accused said that they did not have ‘rough’ sexual intercourse. They both enjoyed their sexual encounter.

50. As to the injuries, the accused said that the victim had no injuries on her body while they were in the bush and before they left to return to the village. He said that he did not cause any injury to the victim’s body.

51. The accused also said that the police asked him about the knife and told them that he did not use any knife to threaten the victim. The police came to his house searching for the knife but they found no such knife.

52. The defence called the accused’s mother (Monika) as a witness. This witness testified that she heard and saw the victim being beaten up by her father. She saw the father beat the victim with a stick. She did not know why the father beat the victim but later she learnt that her son, the accused, had a relationship with the victim.

53. In cross examination it was put to the witness that she did not see the victim being beaten by her father. The witness was firm in her answer that she saw the father beat the victim with a stick.

SUBMISSION AND DETERMINATION

54. The only issue here is one of consent. Mr Beniata of Counsel for the accused submitted that the accused agreed he had sexual intercourse with the victim and that sexual intercourse was consensual. Ms Tawita of Counsel for the prosecution submitted that the victim did not consent to the sexual intercourse.

55. In my view the case turns on whose story the Court believes. The time spent by the accused and victim in the bush was between four more hours. The victim’s evidence is that the accused had sexual intercourse with her three times, for three to five minutes on each spot in the bush. That was only a total of about 15 minutes altogether. The logical question is: what have they been doing for the rest of the four hours or so in the bush? The victim’s story does not fill the vacuum left after deducing the 15 minutes used up for sexual intercourse as she alleged.

56. When one looks at the accused’s story the four or so hours they spent in the bush together makes more sense. They spent about half an hour at the first spot they came to, and about another half hour at the second spot they came to, and finally by about 3 pm they came to the third spot where they spent longer than half an hour. It was at that place that they spent time and enjoyed each other’s company, followed by sexual intercourse. They had sexual intercourse, after which they laid naked together relaxing until it was about 5.00 pm. The accused’s story matches well with the length of time the accused and victim spent together in the bush.

57. I do not believe the victim’s story that the accused had sexual intercourse with her at the first spot for three to five minutes, then they moved to the second spot where the accused again had sexual intercourse with her for another three to five minute, and then they moved to the third spot where the accused again had sexual intercourse with her for another three to five minutes. Then immediately after that they returned to the village. The victim’s account of what had happened between them in the four or so hours they spent in the bush that afternoon simply does not bear the ring of truth.

58. Then there is the number of times they had sexual intercourse. The victim’s story is that the accused had sexual intercourse with her without her consent three times under knife threats. The victim’s story, in the way she recounted it, tells of the accused using force each time when having sexual intercourse with the victim. The accused’s story is that they spent the afternoon in the bush and at each spot they came to, they enjoyed each other’s company and having intimate conversations. It was only at the third spot that they had consensual sexual intercourse.

59. The victim’s account of what the accused was alleged to have done to her does not have any support in any of the other evidence adduced by the prosecution in this case. In particular, the medical evidence, in particular the result of the vaginal examination of the victim, does not support the victim’s story of a non-consensual sexual intercourse.

60. Again the victim’s story that this was the first time she had sexual intercourse with the accused does not find support in the medical evidence. Despite the medical finding that there was no laceration of the hymen, that does not mean that sexual intercourse did not take place. The evidence is still that there was tenderness to the posterior of the vaginal opening. That is more likely to be consistent with consensual sexual intercourse on a single occasion, rather than multiple non-consensual sexual intercourse.

61. The injuries found by the doctor on the victim’s body, while they may be consistent with non-consensual acts done to the body, they are equally consistent with consensual acts done to the victim’s body. In view of the fact that the injuries were minor and superficial, the prosecution would have to exclude the possibility that the injuries were the results of the victim lying down on rough surfaces, and coming in contact with sharp objects such as pandanus leaves. One of the injuries found by the doctor was a linear puncture abrasion from pandanus leaves. There were scratch marks to the posterior of right elbow and upper left arm.

62. There was evidence from the accused’s mother that she saw the father beat the victim with a ‘te mao’ stick’. This is the only evidence of the alleged beating of the victim by her father. I have to view this evidence with caution since it comes from the mother In support of her son.

63. If I were to give any weight to the evidence of the accused’s mother on the beating of the victim, by her father, I have to look for any supporting evidence from the other witnesses. The victim was asked in cross examination about her father beating her. She denied that her father beat her.

64. However, the victim agreed she knew one Rueben and that she went to his house. When she was asked why she went to Rueben’s house, she said that she just went there. When it was put to her that the reason she went to Rueben’s house was because her father beat her, she said “Nothing. I just went there”. She denied running away from her father.

65. The victim’s sister (PW3) said that the victim was not beaten by her father and that she never went to Rueben’s house. The victim’s mother (PW4) however, in her evidence, testified that the victim went to one Taukaro’s house. Taukaro was a neighbour. That was where she saw her daughter (victim). I find that the victim’s sister (PW3) was not telling the truth when she said that the victim never went to Rueben’s house. On the victim’s and her mother’s evidence, I find that the victim went to Rueben’s or Taukaro’s house. Why she went there, it was not known but there is a strong inference that the victim went there because she was chastised by her father by beating her with a ‘te mao’ stick. The prosecution would have to exclude this strong inference.

66. As to the weapon alleged to have been used by the accused to threaten the victim, there is simply no support for that allegation. There was no knife produced by the prosecution nor was there any evidence from the police that any attempts to secure the weapon had been made.

67. I need only also to take note of the fact that the victim had already had her bath before she went to report to the police and to undergo medical examination. The victim’s action did not help her complaint that the accused raped her.

68. When one put all the evidence together, the victim’s evidence simply does not stand up to the test. The other prosecution evidence also do not support the allegation that the accused had a non-consensual sexual intercourse with the victim on 19 June 2016. There is a lurking doubt left in the Court’s mind after considering all the evidence put before the Court.

CONCLUSION/FINDING

69. On the evidence before the Court and having observed the witnesses, in particular, the victim, gave evidence, I am far from being satisfied that the allegation of rape against the accused had been made out by the prosecution on the required standard of proof beyond reasonable doubt. I have grave doubt as to veracity of the complainant’s story of what took place between herself and the accused on 19 June 2016.

70. I find the accused not guilty of the charge of rape and he is acquitted.

Dated the 19^th day of September 2018

SIR JOHN MURIA
Chief Justice