Taoaba v Republic [2002] KICA 6; Criminal Appeal 03 of 2002 (12 August 2002)

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

Criminal Appeal No. 3 of 2002

BETWEEN:

TIMOTI TAOABA
Appellant

AND:

THE REPUBLIC
Respondent

Before: Casey JA
Hardie Boys JA
Tompkins JA

Counsel: Ms Batitea Tekanito for appellant
Mr David Lambourne for respondent

Date of Hearing: 7 August 2002
Date of Judgment: 12 August 2002

JUDGMENT OF THE COURT

[1] On 24 January 2002 Timoti Taoaba was found guilty by the Chief Justice of the rape of his aunt. He now seeks leave to appeal against his conviction, on the grounds that it cannot be supported having regard to the evidence: s.22(1) of the Court of Appeal Act 1980.

[2] The argument presented by Ms Tekanito on behalf of the appellant was twofold. First, counsel submitted that there was a direct conflict, in an important respect, between the evidence of the complainant and that of a doctor who examined her some hours after the incident. This conflict, it was contended, was such as to destroy the complainant's credibility on the crucial issue, whether there was non-consensual intercourse; or, to put it another way, whether there was a reasonable possibility that the appellant's version of events might have been the truthful one. Secondly, counsel argued that there was no evidence of penile penetration of the complainant's vagina. For of course that is a necessary ingredient of the crime of rape.

[3] As to the first point, the complainant's version was that she was awakened by the appellant knocking on the door of her house; that when she let him in he took her by the neck and threw her onto the bed and then onto the floor, squeezing her neck so as to leave bruising that lasted for two days; that he pushed her garment up above her breasts, forced her legs apart and began to penetrate her with his penis. In doing that, he took his weight on his elbows, which were on her chest. Then, when a young relative, Uatati, called to her, and she attempted to answer, the appellant, she said, stabbed her on the neck with his elbow, before attempting to continue intercourse. She then persuaded him to desist.

[4] The appellant gave evidence to the effect that he knocked on the door to ask the complainant if he could sleep in her house that night; that she refused his request, and came outside whereupon, being angry with her, he grasped her by the neck and pushed her to the ground. She then ran away, while he went into the house. He acknowledged that he was drunk, but said he could remember what he did.

[5] The doctor's evidence was called by the defence. The doctor saw the complainant at 6.30 am, perhaps four hours or so after the incident. He noted no redness in the vaginal area, and a vaginal swab showed no trace of semen. There were no bruises or marks anywhere else on the complainant's body. When the latter's account of what the appellant did to her was put to him, he said that whether or not there would have been bruising or other marks visible to him depended on the degree of force that had been applied. He said he could not tell one way or the other whether there had been penetration.

[6] In his decision, the Chief Justice described the doctor's evidence as equivocal. It certainly was, in the sense that it neither supported nor negated the allegation of rape. And while Ms Tekanito submitted to us that the degree of force which the appellant described would have caused bruising, the doctor explained that that was not necessarily so. Further, even if the complainant's evidence of bruising around her neck is not accepted, that does not mean that her evidence generally should have been doubted. It was necessary to look at the evidence in its totality.

[7] On either version of events, the appellant assaulted the complainant. The essential issue was whether the assault was outside the house or inside, and if the latter whether it amounted to rape. There was no issue as to consent.

[8] The prosecution called several witnesses in addition to the complainant. One was the complainant's 11 year old son who had been asleep on the bed alongside her. He said that he was woken by the appellant's knocking on the door, and saw him come into the room, grab his mother by the neck and push her onto the ground. He then left the house and went across to the nearby buia to inform Uatati and another of his young relations who were there.

[9] These two also gave evidence. They both said that prior to the incident the appellant was speaking to them, asking for food and then wanting to know who lived in the complainant's house. The appellant then left them, and one of them saw him go into that house. Then, when the complainant's son came outside to speak to them, they went over to the house, Uatati called out to the complainant and they both looked in the window. They saw the appellant on top of the complainant.

[10] The defence responded to this evidence with the allegation that the complainant and the other witnesses had together fabricated this account, out of ill-will towards the appellant. But under quite vigorous cross-examination, they did not budge. Whether or not their evidence was to be accepted in the face of the very different account given by the appellant was entirely a question of fact for the trial Judge. He believed them, as he was entitled to do.

[11] The first of Ms Tekanito's submissions therefore fails.

[12] The second submission, that there was no evidence of penile penetration, may be dealt with more briefly. In the absence of medical or scientific evidence, there was simply the evidence of the complainant herself. The crux of it is in these passages from the transcript which must be read having regard to the law that the slightest degree of penetration of the vagina is sufficient:

BAIKI: Then he came back to me and get on top of me and he's ready to have intercourse with me.

TEBAO: Go on.

BAIKI: Actually one of his arm still on my neck and the other one try to pull out his penis from his pants. At the time he's trying to pull out his penis his penis already erected or already stiff and he just put it inside me. Once his penis actually inside me then he started to penetrate me.

TEBAO: When you say that he puts his penis inside you, where exactly did he place his penis?

BAIKI: He's putting his two legs in between my two thighs and then he's trying to put his penis inside my vagina.

TEBAO: Did he succeed?

BAIKI: Yes, yes and he started to penetrate me.

Then, when Uatati called her name:

BAIKI: Then he tried to put his penis again. At the time when Uatati call out for my name this man just trying to pull back a little bit.

COURT: Pull out a little bit?

BAIKI: Yes ........

[13] In cross-examination:

ALLEN: When Uatati called out did you manage to get his penis out of your body?

BAIKI: No he's doing that by himself.

.............

ALLEN: And after that did he try and penetrate you again?

BAIKI: Yes he tried to penetrate me again ............

[14] This is obviously far from a clinical description, but it amply justifies the Chief Justice's conclusion that there had been penetration to the degree required to constitute the crime of rape.

[15] For completeness, we note that no issue was made about corroboration, doubtless for the reason that it was clearly provided by the two witnesses who looked in the window.

RESULT

[16] For these reasons, leave to appeal is granted but the appeal is dismissed.

Casey JA
Hardie Boys JA
Tompkins JA