Tetaua v Republic [2002] KICA 7; Criminal Appeal 02 of 2002 (12 August 2002)

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

Criminal Appeal No. 2 of 2002

BETWEEN:

RITATE TETAUA
Appellant

AND:

THE REPUBLIC
Respondent

Coram: Casey JA
Hardie Boys JA
Tompkins JA

Counsel: Aonoro Amten for appellant
Polo Tebao for respondent

Date of hearing: 6 August 2002
Date of judgment: 12 August 2002

JUDGMENT OF THE COURT

[1] The appellant was charged with defilement of a girl under 13 years of age, abduction of the same girl and causing grievous harm with intent to the same girl. Following a defended hearing, he was found guilty on all three counts. He was sentenced to life imprisonment for defilement, 2 years imprisonment for abduction and 5 years imprisonment for causing grievous harm.

[2] He has applied for leave to appeal out of time against conviction and sentence. The respondent not objecting, leave to appeal out of time is granted.

The Chief Justice's findings

[3] Since the appeal against conviction is on one ground only, and, save in that respect, the Chief Justice's findings are not challenged, we can summarise his findings briefly.

[4] On 24 August 2000 the appellant went to the house occupied by the parents of Teinabure, the three year old girl referred to in the charges. The accused was hoping for some help from the owner of the house in locating his wife who had left him a few days before. He had with him a backpack that had a bible and a photo of him inside and was wearing brown shorts. After having some food and being given 40 cents he left.

[5] After he had gone, the mother found that the child was missing. Later that evening the child was found on either Girl Guide Island or Abaokoro Island. She was naked and injured with injuries and bruising on her face and throat and injuries to her vagina. Those who found her also found at the place where she was, the backpack and brown shorts, which the appellant has acknowledged were his. She was taken to the hospital where she was examined by Dr Matikora Itonga. We return to her findings later.

[6] The Chief Justice found established beyond reasonable doubt that the appellant was the person responsible for taking the child to the island, that he was therefore guilty of abduction within s 241(b) of the Penal Code, that he was the perpetrator of the acts that resulted in the girl being in the condition in which she was found and that he was guilty of all three counts.

The grounds of appeal

[7] The appellant challenged only the finding of guilty of the charge of defilement. It was submitted on his behalf that the Chief Justice was wrong to rely on the evidence of Dr Matikora's notes as evidence of penile penetration, on the grounds that the notes were hearsay and inadmissible.

[8] Section 134 (1) provides that any person who has sexual intercourse with any girl under the age of 13 years is guilty of a felony. Section 161 provides:

Whenever upon the trial for any offence under this Code, it may be necessary to prove sexual intercourse, it shall not be necessary to prove the completion of the intercourse by the actual emission of seed but the intercourse shall be deemed to be complete upon proof of penetration only.

[9] Although the section refers only to penetration, we are satisfied, on a reading of the section as a whole, that it intends to refer to penile penetration. So the issue on the appeal becomes whether there was sufficient evidence to justify the conclusion that penile penetration was proved beyond reasonable doubt. The sole evidence relied on by the prosecution to prove such penetration was that of Dr Matikora.

Dr Matikora's evidence

[10] The doctor produced the notes that she made shortly after she had examined the girl at the hospital. The relevant parts read:

"Complaints and Duration

Admitting this 4 yr old child – Raped – tonight

-----

O/E

A young girl scared, quiet

Covered with sand and blood all over face

-----

Laceration of vaginal wall

2 cm long 2 cm deep

fresh bleeding

Signs of recent penetration

A Rape"

[11] In her evidence she described the injuries the girl had to her face, head and neck. When she came to her examination of the genital area, she said:

"MATIKORA: That's perineum, that's the area around the genitals.

TEBAO: What were your findings on that?

MATIKORA: There was laceration around the vagina walls about 2cm long by 2cm deep with fresh bleeding and consistent with signs of recent penetration.

TEBAO: You say signs of recent penetration. Penetration by what, are you able to say?

COURT: I don't think you need go into that. I understand perfectly what she means. The lacerations, could they have been caused by the penetration?

MATIKORA: It would have been caused by the penetration."

[12] Later, still in evidence in chief, is the following passage:

"TEBAO: After examining this child, how would you classify her injuries? Or what do you think of her injuries?

ALLEN: Your Honour that would be speculation –

COURT: I think you've got probably as much as you can. We've got the examination and the opinion of, and this is the important part of course, that the lacerations of the vagina wall could have been caused by penetration and that's really the crux of it and you've got that."

[13] She also said that a vaginal specimen was taken and sent for analysis. No evidence was given of the result of the analysis.

The Chief Justice's findings

[14] At the conclusion of the case for the prosecution, counsel for the appellant applied for this charge to be dismissed on the grounds that there was no evidence of sexual intercourse. His application and the Chief Justice's ruling was:

"ALLEN: ...Your Honour it's simply this that there is no evidence of sexual intercourse.

COURT: There's evidence of penetration.

ALLEN: There's evidence of penetration Your Honour but not evidence of what caused that penetration.

COURT: I'm against you on that unless you've got some very good arguments to put up. The doctor in her notes used the word rape.

ALLEN: Well Your Honour that was based on what was told to her.

COURT: It looks from the notes as it was based on what she saw. After all she says signs of recent penetration, a rape.

ALLEN: Your Honour it wasn't her evidence in court.

COURT: That's her evidence here in the notes.

ALLEN: That wasn't verbal evidence. It was simply in the notes.

COURT: Well the notes came in didn't it? At least a prima facie case. You may well be able to rebut it by your evidence but I can't accept it's no evidence of penetration when the notes say that."

[15] In his judgment the Chief Justice set out the passage from Dr Matikora's notes to which we have referred at paragraph [10]. He found that the injuries she described were grievous bodily harm. He did not otherwise refer to the issue of whether the prosecution had proved penile penetration, apparently considering that he had already given his finding on that when ruling on counsel's no case application in the passage we have set out in paragraph [14].

Conclusion

[16] We are satisfied that the verdict of guilty on the charge of defilement must be set aside on the ground that it cannot be supported having regard to the evidence. The onus was on the prosecution to prove penile penetration beyond reasonable doubt. There can be no doubt that the evidence of the doctor proved that there had been penetration. But her evidence does not prove penile penetration, for does it not exclude penetration by other means such as digital penetration.

[17] Counsel for the Republic was well aware of the need to prove penile penetration when she asked the doctor, in the passage we have set out in paragraph [11], "Penetration by what, are you able to say?" Unfortunately, the Chief Justice stopped the doctor from answering that question, so we do not know whether the doctor would have been able to say affirmatively that her examination satisfied her that the penetration must have been by a penis, or whether she was unable to say by what the penetration was caused.

[18] The Chief Justice was correct in holding that what the doctor had written in her notes was evidence in the case, as she had in her evidence expressly referred to her notes, and thereby adopted them as part of her evidence. But we do not consider that her writing "Rape" at the latter part of her notes, without more, was evidence that she was satisfied that the penetration was caused by a penis and not in some other way. This is particularly so when, as the notes record, she was told that the girl had been raped. It may well be that, at the end of the notes of her examination, she was simply recording that the cause of what she found was what she had been told.

[19] Ms Tabao submitted that the evidence of the finding of the appellant's shorts where the girl was found is circumstantial evidence that the penetration had been penile. We are not able to conclude that this evidence on its own is sufficient to establish an essential element of the charge, in the absence of other evidence establishing penile, and not some other form of, penetration.

[20] The conviction on the charge of defilement is quashed. In lieu thereof, pursuant to s 166 of the Criminal Procedure Code (Cap 17), the appellant is convicted of an indecent assault.

Sentence

[21] This conclusion makes it unnecessary for us to determine the appellant's appeal against the life sentence imposed on his conviction for defilement.

[22] The maximum sentence for indecent assault under s 133 (1) is imprisonment for 5 years. We are satisfied that this is a case where the maximum sentence is appropriate for these reasons.

• This was an assault of extraordinary indecency on a 4 year old girl. The vaginal injuries she suffered were severe, requiring extensive repair. We agree with the submission by counsel for the Republic that this was the worst kind of case.
• Regard must be had to the totality of the offending, including the abduction and the other injuries inflicted.
• The effects of this assault are likely to be with her for many years, if not her whole life.
• It is a crime that calls to a punishment that shows society's total condemnation of such treatment, particularly to a girl of such tender age.
• The mitigating features of remorse or an early guilty plea are not present.
• The appellant has a long list of previous convictions. They include two convictions for child stealing and one of defilement of a girl under 13 years, all some 19 years ago. On 6 October 1998 he was convicted of murder. He was released on parole from that sentence about a year before this offence. He is not to be punished again for those offences, but they show that he is a person from whom the community needs to be protected.
  

The result

[23] Leave to appeal against the conviction on the charge of defilement is granted. That conviction is quashed. In lieu thereof the appellant is convicted of an indecent assault. For that offence he is sentenced to imprisonment for 5 years. The convictions for abduction and causing grievous harm with intent are confirmed as are the sentences of two years imprisonment for the former and five years imprisonment for the latter. As all the offences arose out of the one series of events, all the sentences are concurrent.

Casey JA
Hardie Boys JA
Tompkins JA