Riaua v Republic [2001] KICA 14; Criminal Appeal 05 of 2000 (5 April 2001)

IN THE KIRIBATI COURT OF APPEAL
CRIMINAL JURISDICTION
HELD AT BETIO, KIRIBATI

Criminal Appeal No. 5 of 2000

BETWEEN:

AAMON RIAUA
Appellant

AND:

THE REPUBLIC
Respondent

Before: Casey JA
Bisson JA
Tompkins JA

Counsel: Mr Tion Nabau for the appellant
Mr Banuera Berina for the respondent

Date of Hearing: 28 March 2001
Date of Judgment: 5 April 2001

JUDGMENT OF THE COURT

[1] The appellant was charged with rape, sexual intercourse with a collateral, and assault occasioning actual bodily harm.

[2] He pleaded guilty to each count. Following a trial before the Chief Justice on 28 August 2000, he was found guilty of attempted rape, of attempted sexual intercourse with a collateral, and of assault causing actual bodily harm. He was sentenced to three years imprisonment for attempted rape, and convicted without penalty on the other two counts.

[3] He has applied for leave to appeal against the convictions and the sentence. At the commencement of the hearing the appeal against sentence was abandoned.

The factual background

[4] The complainant is the first cousin of the respondent. On the date in each of the three counts, 20 March 1999, at between 7:00 p.m. and 8:00 p.m. the complainant had been at the teachers' bathroom next to the playing field at Teaotaereke. She and two friends were leaving when the appellant came along on his motorbike. He called to her. She thought he was going to take her home on the motorbike. However instead they continued towards Betio, passing through Bairiki. When they were on the Dai Nippon causeway, the appellant stopped the bike, got off and over the wall on the lagoon side and called to the complainant to follow him. She did.

[5] She said that he then attacked her, pulled her to the ground, disarranged her clothing, eventually got it off, was on top of her, hit her in the face, squeezed her thighs and throat, spread out her legs, took out his penis and inserted it into her vagina.

[6] His account was that the bike ran out of petrol as they entered the causeway. He decided to go on to the beach to relieve himself. He was drunk. She followed him down, asking him to take her to the dance in Betio. He became angry and gave her a backhander. He denied altogether any sexual impropriety.

[7] The complainant ran back to the road shouting for help. A vehicle with two passengers stopped. The driver described her shouting out "Help me", she was crying, very frightened. When he asked her what had happened, she said she was about to be raped by a member of her household. A passenger took her to a nearby house. The lady in the house described the complainant as being bruised with a swollen lip and untidy hair. She was crying. She described bruises on the left eye, the eye was red, and the surrounding area swollen. The complainant said something about someone trying to rape her, but she was too upset to finish the story.

The judgment in the High Court

[8] After finding the facts which we have summarised above, the Chief Justice held that there was no doubt that the appellant had assaulted the complainant, he admitted it and there was sufficient evidence of her injuries to justify a finding of guilty of assault occasioning actual bodily harm. The more difficult question was whether there was a rape, an attempted rape, or no sexual impropriety at all. He accepted the complainant's evidence about what happened. He referred to the evidence of complaints to the car driver and to the lady in the house as being merely of an attempt. He referred to the absence of any medical evidence called by the prosecution which may have put penetration beyond doubt one way or the other.

[91 The Chief Justice went on to say:

"Mr. Berina went on to remind me that it is dangerous to convict of rape on the uncorroborated evidence of the complainant: I, representing the jury, may do so if convinced beyond reasonable doubt but it is dangerous to convict. The complaint of the victim that she was actually raped is uncorroborated. The evidence of James Schutz [the driver of the car] and of Bwebwereiti Copeland [the lady in the house] goes to support an attempted rape. I find, on reflection, that I do have a doubt, I believe a reasonable one, about whether there was actual penetration. That being so I cannot find the accused guilty of rape. However I have no doubt that [the appellant] tried to rape [the complainant]."

The submissions on the appeal

[10] Counsel for the appellant submitted that the Chief Justice failed explicitly to warn himself of the danger of convicting on the uncorroborated evidence of the complainant, this being a case involving sexual offences. He further submitted that the Chief Justice had erred in accepting the evidence of complaint as corroborating the complainant's evidence.

[11] In elaboration of these submissions, counsel submitted that there was no evidence capable of corroborating the complainant's evidence. It was his submission that when the Chief Justice referred to the evidence of James Schutz and of Bwebwereiti Copeland as going to support an attempted rape in the passage we have set out above, he was referring to the evidence of complaints by the complainant to these two witnesses. That evidence, he submitted, could not amount to corroboration.

[12] In his written submissions counsel advanced other grounds for challenging the conviction, but these were not pursued at the hearing.

Conclusion

[13] We do not accept these submissions. The Chief Justice, when he said that it was dangerous to convict of rape on the uncorroborated evidence of the complainant was, in the context of the passage as a whole, clearly referring not only to rape but also to attempted rape. We are in no doubt that when he said that the evidence of the two witnesses "goes to support an attempted rape", he was referring to their evidence of the complainant's injuries and distress. That evidence is capable of corroborating, or as he put it, of supporting, a charge of attempted rape. He was therefore correct in his conclusion that the evidence of the two witnesses does provide some corroboration of the complainant's evidence of an attempted rape.

The result

[14] None of the grounds advanced in support of the appeal have been made out. Accordingly, the application for leave to appeal must be dismissed.

Casey JA
Bisson JA
Tompkins JA