IN THE HIGH COURT OF KIRIBATI 2019

CRIMINAL CASE NO. 28 OF 2015

		[THE REPUBLIC					PROSECUTOR
		[
BETWEEN	[AND
		[
		[TEKEI MOUTU					ACCUSED

Before:	The Hon Chief Justice Sir John Muria

3, 8, 9 March 2017;
21 February 2018; 2 & 4 May 2018;
30 October 2018; 6 March 2019

Ms Pauline Beiatau for the Prosecutor
Mr Tabibiri Tentau for the Accused

JUDGMENT

Muria, CJ:	The accused, Tekei Moutu, has been charged with one count of rape contrary to section 129 of the Penal Code.  The accused pleaded not guilty and the onus is on the prosecution to establish his guilt beyond reasonable doubt.

Factual Background

2.	Some time after 2 am in the morning on 2 August 2014, the accused was driving back from Bikenibeu to Betio.  On the way, he saw somebody ran across the road at Tenimanraoi Maneaba, Takoronga.  At first he did not stop but upon hearing a shouting he stopped, looked back and saw a woman waving for him to stop.  He drove back to the woman and picked her.  They continued on to Betio.

3.	On the way, the accused asked the victim if he could have time with her.  She replied, saying that she had a husband, to which the accused replied and said to her that she was lying, otherwise she would not be out there at that hour of the morning.  The accused then repeated his request to her asking her if he could have a good time with her.  She replied and asked the accused if they could buy some beer.  The accused replied that they would get some beer later.

4.	The two continued on and on the way, opposite Betio Town Council they saw the victim’s friend walking on the road.  They did not pick her.  They drove on and turned down to Kiribati Institute of Technology area.  They stopped at the back of KIT and the victim first got out from the vehicle.  She ran and fell into a pit.  The accused followed her and also went into the pit.

5.	While they were in the pit, the accused pulled down her shorts and panties, laid on top of her and inserted his penis into her vagina.  He then withdrew his penis and told the victim to perform oral sex by sucking his penis so as to get his penis erected.  She did and as soon as his penis got erected, he told her to get on top of him.  The victim got on top of the accused and inserted his penis into her vagina.  While she was on top of him, he also sucked her breasts.

6.	They then changed positions.  The accused came on top of the victim.  He licked her vagina and then inserted his penis into her vagina.  The victim did not shout while they were having sex.  The victim saw someone flashing a light nearby, so she decided that she would get on top of the accused again.  She got on top of the accused, placed the accused’s penis again into her vagina.  She allowed the accused to penetrate her while she was on top of him.  This was her idea, so that she could shout for help, since the person with the flash light was coming closer to them.

7.	While the victim was on top of the accused, the victim then took a stone and tried to hit the accused on the head with it.  The accused saw what she tried to do, got hold of her hand, punched her.  It was then the victim shouted and security man with a torch came and flashed the torch on them.  It was the security man who went into the pit and pulled the victim out from on top of the accused.  Then the security man, the victim and the accused all went to the Betio Police Station where the victim reported the matter to the police.

Issue

8.	There is no dispute that the accused and the victim had sexual intercourse in this case.  The only question is whether that sexual intercourse was consensual or not.

9.	The accused’s story is that the victim consented to the sexual encounter between them.  The victim, on the other hand, vehemently denied consenting to the accused to have sexual intercourse with her.  It really comes down as to whose story the Court believes in this case.

The Law

10.	Before I proceed to consider the issues and evidence in this case, let me state what the law is in a case such as this.  The accused is charged with rape and the only issue in dispute is that of consent or the lack of it.

11.	Rape is defined in section 128 of the Penal Code and the offence of rape itself is created in section 129.  Rape is defined as follows:

“128.	Any person who has unlawful sexual intercourse with a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by personating her husband, is guilty of the felony termed rape”.

12.	This section incorporates the common law elements of the offence of rape, the essence of which is the absence of consent.  In this case, sexual intercourse is admitted and that it was the accused who had intercourse with the victim.  The only controversy is whether the accused had sexual intercourse with the victim without her consent.

13.	The lack of or absence of consent is an essential element that must be established on the evidence by the prosecution in a rape case.  See 
Republic –v- Namakin [1986] KIHC 4; Crim. Case 23 of 1985 (11 April 1986); Republic –v- Iangaibo [2011] KIHC 31; Crim. Case 57 of 2010 (22 July 2011).  In this regard there must be evidence, sufficiently established to justify the Court in concluding that the victim did not consent to having sexual intercourse with the accused.

Evidence and Consideration

14.	The evidence for the prosecution came from the victim (PW2) and the security man, Tekaibiti Toaiti (PW1).   By her own evidence, the victim was by herself on the road near the Tenimanraoi Maneaba, Takoronga, at about 2.00 am in the morning following a drinking bout with her friends.  Her friends left her.  She was by herself when she hitched a ride with the accused who was driving a truck, returning to Betio.  The victim got into the vehicle and asked the driver (accused) to drop her at her home in Betio.

15.	While in the vehicle, the accused asked the victim if he could ‘have a time with her’, to which she replied that she had a husband with whom she had an argument.  The accused did not drive her home.  Instead the accused turned the vehicle and drove down the road towards the Kiribati Institute of Technology.  The victim realized that the accused was not going to drop her home, suggested that they should go to ‘Gateway Bar’ and get some more beers.  That did not happen.  Instead the accused drove down to the back of KIT area, a secluded place.

16.	There is no dispute at all as to the evidence of the victim (PW2) and the accused of what had happened between them from the time the accused picked the victim until they reached the secluded place behind KIT.  The next scenario is at the place of the alleged commission of the offence, behind KIT.

17.	At a dark, secluded place behind KIT, the accused stopped the vehicle.  The victim got out of the vehicle and ran and fell into a pit.  The accused got out of the vehicle and followed her into the pit.  So far, the evidence of the accused and victim are not in dispute.

18.	Then there is some dispute as to what happened next.  The victim’s evidence is that after she fell into the pit and the accused came to her, the accused got angry with her, punched her on the face and mouth, forced her to have sex with him by pulling down her panties, got on top of her and inserting his penis into her vagina by about one (1) inch.  The victim then said that the accused withdrew his penis from her vagina and forced her to suck his penis.  The victim did as the accused ordered her to do because she was afraid of him.  This was the first set of sexual acts which the prosecution relied on to show that the accused had sexual intercourse with the victim without her consent.

19.	The accused’s evidence on this first set of sexual activities between himself and the victim is that he followed the victim into the pit.  While in the pit, they talked.  He asked her why she ran away and that if she did not want to have time with him, she should have told him.  The victim apologised.  The victim took off her clothes and the accused also took off his, following which they had oral sex.  
He sucked her breasts and touched her vagina with his fingers.  Then he sucked her vagina.  When his penis was erected, the victim got on top of the accused.  The accused said that the victim was a bit heavy on him, so he told her to lay down so that he could get on top of her.  They then found a better flat surface where the victim laid down.  The accused got on top of her and inserted his penis into her vagina.  According to the accused’s evidence the victim was groaning and moaning with pleasure.  That was the first set of sexual acts between the accused and the victim.

20.	On this aspect of the case, it is a contest of evidence between the accused and victim.  The burden is always on the prosecution to establish the case against the accused to the required standard.  There is clearly established on the evidence of both the victim and the accused that they engaged in oral sexual activities before the actual sexual intercourse.

21.	Next, the victim’s evidence is that while she lied down the accused sucked her vagina and then “he was on top of me, his penis was not erect.  I allowed him to perform oral sex on me ……  After the oral sex he put his penis into my vagina”.  Then she saw the torch light approaching.  That is evidence of the second time sexual intercourse between them took place.

22.	Upon seeing the torch light approaching, on her own evidence, the victim stated that she had an idea.  Her idea was that she should be on top of the accused so that she could cry for help.   They changed positions in accordance with the victim’s idea.  The victim came on top of the accused.  The accused’s penis was inserted into her vagina.  That was the third successive time the victim and accused had sexual intercourse that night in the pit behind the Kiribati Institute of Technology before the security man (PW1) came to where they were.

23.	It was then that the victim, while she was on top of the accused whose penis was still inside her, took a stone and tried to hit the accused’s head.  The accused managed to grab the victim’s hands, got out from under the victim, pulled the victim down, got on the victim and punched her.  The victim shouted for help.  By then the security man was there and saw them.

24.	The security man’s evidence that when he came he saw the accused on top of the victim.  That is correct because he accused got on top of the victim, not while they were having sex, but after the victim tried to hit him with the stone.

25.	The evidence of PW1, the security man, was that he was on duty that night.  He saw the truck driving down the back road behind KIT.  He did not immediately follow the truck.  He was at his guard place.  He was having his coffee.  It was after a while that he heard a voice of a girl calling for help.  He went down to the pile of sand and found the accused and victim in the pit.

26.	As I have stated earlier, the details of what the victim and accused did throughout their sexual activities that night do not differ.  Their versions of their foreplays, oral sex, the changing of positions and sexual intercourses match each other’s story.  The only difference is that the victim said she allowed the accused to perform all those sexual acts on her because she was afraid.

27.	Accepting that their evidence match each other’s version of the details of their sexual activities that night, the prosecution, in my view, would have to establish that the victim never wanted all the sexual touching and oral sex plays they had before the sexual intercourse.  Secondly, the prosecution must establish that the victim never agreed to any of the sexual activities with the accused.  In the absence of any cogent evidence establishing the absence of consent on the part of the victim, there would be very little to justify a conclusion that the victim did not consent to having sexual intercourse with the accused in the present case.

28.	There is also a further aspect of the victim’s evidence that must be considered.  She did not shout or call for help from the time the truck stopped and ran out of the truck.  They drove past the security guard place which was only a short distance away from the pile of sand and the pit where the victim and accused had their sexual activities.  She was the first to get out of the truck.  She ran to the pile of sand and fell into the pit instead of running to the security guard place.  It was when the security man came with a flash light toward them that she had the idea to change position and get on top of the accused and then to shout for help.

29.	What if the security man did not come with his flash light to where they were, would she still have shouted?  I do not think we can speculate the answer to that question.  But it does leave some explanation to be done in order to support the prosecution case.

30.	In the Court’s view, the evidence of the victim put with that of the accused, together with the whole circumstances of the case, leave a strong lurking doubt as to the truth of the complaint of rape in this case.  In the Court’s view, on the evidence there is an air of reality in the accused’s version that this was a consensual sexual encounter between the victim and himself.

Conclusion

31.	Viewing and considering the evidence and the circumstances of the case as a whole, I cannot be sure that it would be safe to conclude that the accused had sexual intercourse with the victim without her consent.  Consequently, I must conclude and find that the prosecution has not proved the guilt of the accused beyond a reasonable doubt.  The charge against the accused is dismissed and the accused is acquitted.

VERDICT:	Not guilty.
		Accused acquitted.

Dated the 27th day of March 2019

SIR JOHN MURIA
Chief Justice