Bengo v Republic [1998] KICA 1; Criminal Appeal 03 of 1997 (1 March 1998)

IN THE COURT OF APPEAL OF KIRIBATI
CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. 3 OF 1997

BETWEEN

NAMOUA BENGO
Appellant

AND

THE REPUBLIC
Respondent

Date of Hearing: 4 March 1998
Delivery of judgment:

Mr B Berina for the Appellant
Ms P Tebao for the Respondent

JUDGMENT OF THE COURT
(Gibbs V.P., Connolly and Ryan JJ.A)

On 27 June 1997 the applicant was convicted before Lussick C.J. of the rape at Temaiku, Tarawa of Otana Betero, a young woman of approximately 19 years and was subsequently sentenced to 6 years' imprisonment. He seeks leave to appeal against his conviction on the ground that the evidence of physical injury and of the complainant's distress at the time of making her complaint were insufficient to amount to corroboration of the absence of consent.

On 5 December 1994 at an early hour the complainant went to the house of the applicant and his wife at Betio seeking to borrow her bus fare to Tungaru Central Hospital, Nawerewere, to visit her grandmother. The applicant offered to drive her there on his motor cycle, an offer which she readily accepted, the applicant claiming to be a relative on her mother's side. In fact he had recently held a feast in her honour, on the footing of the alleged relationship. As will appear, it is not certain whether any, and if so, what relationship in fact exists.

On reaching Nawerewere, she asked to be dropped but the applicant insisted on her going with him to visit friends of his at Temaiku, where sour toddy was being consumed. On the way back to Nawerewere the applicant stopped on the pretext that he wanted to go to the toilet. The area was bush land adjoining the beach and with. no houses. When she got off the motor cycle, according to her evidence, he grabbed her hair and pulled her to the beach, telling her to take off her clothes as he was going to have sex with her. When she resisted, she says that he seized a rock and commenced hitting her about the head with it, twice on the right side and once at the back of the head. She says that at the same time he threatened to make her unconscious, rape her, kill her and bury her on the beach. She took off her clothes and allowed him to penetrate her, explaining that she would rather do so than die like a dog. Eventually he drove her to his daughter's place near the hospital and she went on to visit her grandmother. She told her grandmother what had occurred, washed her vagina at the hospital and was examined by her grandmother Teewa Tikare. Later she was taken by her aunt, Tiita Tikare to visit Dr Taketiau who also examined her. Her grandmother gave evidence of swelling at the back of her head saying that she complained of rape and that her hair was messy and full of sand and Tiita gave evidence of swelling to Otana's head and of her hair being untidy. The case was investigated by P.C. Euroba Tito who took a cautioned statement from the applicant on 6 December 1994 at 0915 hrs.

Sexual intercourse is not denied by the applicant who says that the complainant consented, explaining the swelling to her head as self-inflicted, saying as recorded in the cautioned statement as translated that she "struck her head with a stone prior to having sexual intercourse with her because of the fact she was ashamed of that act which I was going to do to herself as she is known we are relatives". The following question and answer from the cautioned statement make it clear that the complainant at first refused to have intercourse with the applicant.

"Q.5 Can you explain why OTANA was crying?

A. She did not agree when I told her to have sexual intercourse with as she stated that we are relatives.

The applicant said that the complainant ceased to be upset before she removed her clothes. When asked how Otana's head was bruised, he replied: "She struck it herself with a stone as she was upset and embarrassed of myself when I told her to have sexual intercourse with herself claiming that she was my relative".

Dr. Taketiau found on examination that the swelling to the back of her head was the size of a tennis ball.

The notion that Otana inflicted a massive swelling on herself by way of anticipatory remorse for unwanted sexual contact with a relative is obviously fanciful. It was roundly rejected by Lussick C.J.

Notwithstanding some inconsistencies in the complainant's evidence, the learned Chief Justice was clearly entitled to find that the consent of the complainant was obtained by force and threats. Her evidence was corroborated by her injury and her upset state.

The application for leave to appeal should be refused.

Vice President: Gibbs
Judge of Appeal: Connolly
Judge of Appeal: Ryan JJ.A