Kabeia v Republic [2003] KICA 2; Criminal Appeal 02 of 2003 (16 August 2003)

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

Criminal Appeal No. 2 of 2003

BETWEEN:

AARON KABEIA
Appellant

AND:

THE REPUBLIC
Respondent

Coram: Hardie Boys JA
Tompkins JA
Penlington JA

Counsel: Banuera Berina for Appellant
Pauline Beiatau for Respondent

Date of hearing: 12 August 2003
Date of judgment: 16 August 2003

JUDGMENT OF THE COURT

Introduction

This is an appeal against conviction.

In the High Court the appellant faced one charge of indecent assault. He pleaded not guilty. After a three day trial he was convicted. He was given a sentence of six months' imprisonment suspended for two years. He now appeals the conviction only.

In 2001 the appellant was the assistant secretary in the Ministry of Works and Energy. He was responsible for personnel matters in relation to employment in the ministry.

The complainant was a woman aged 24 years. In July 2001 she joined the staff of the ministry as an unpaid employee to gain some work experience.

The charge arose out of an incident in the appellant's office at the ministry. The prosecution alleged that during the luncheon break on 20 August 2001 the appellant and the complainant were alone in the appellant's office and that the appellant kissed the complainant on the top front part of her body including her neck and breasts without her consent.

The Trial

There was a marked conflict between the prosecution evidence and the defence evidence.

The complainant said that she went to the appellant's office to pick up a work reference. She entered his office. He was not there. She waited a short time and he then arrived closing the door as he did so. She said that he then headed towards her, took hold of her and pulled her to the floor. She struggled and tried to get up but she was pushed back. During the struggle the unwanted kissing took place. She said that she was afraid and shocked. After a short time, approximately two minutes, the complainant told the appellant she was feeling sick and that her heart had almost stopped. The appellant released her but still held on to her hands when she tried to stand up.

The complainant said that she again told the appellant that she had a weak heart and that it was about to stop. The appellant thereupon released her and she immediately left the room.

Under cross-examination the complainant admitted that on the day of the incident she had told an investigating police officer that she had bitten the shoulder of the appellant. She conceded that she had not mentioned the matter in either of her two written statements to the police or in her evidence in chief.

Under further cross-examination she said "perhaps I forgot". She rejected the suggestion that the biting did not take place. Later it was again put to her that she did not bite the appellant to which she replied:

"I did bite Aaron but I was not sure if there was a mark. That is why it was not included in the statement".

It was suggested to the appellant that she had fabricated her story. She denied that suggestion. She admitted however that she had had some problems with her recollection.

On leaving the appellant's office she met Nei Mereta. The complainant said that she told Mereta that the appellant (whom she could see exiting his office) appeared to be following her. The complainant and Mereta decided to hide so they ran into the office of one Mautaake who was there with another person Terubentau.

The complainant said that she started to cry and told them what had happened in the appellant's office. She then went to see the Minister and after telling him what had happened she laid a complaint with the police.

Mereta gave evidence. She said that when she first saw the complainant she looked frightened and that she grabbed hold of her hand. They then ran into Mautaake's room. She then described what happened in Mautaake's room in the following evidence:

MERETA: When we got to Mautaake's room she cried out loud and said she was afraid.

TEBAO: Go on.

MERETA: When she cried Mautaake asked her 'don't cry, what happened?' She said I'm afraid'. 'Who are you afraid of?' She said I'm afraid of Aaron'.

TEBAO: Anything else?

MERETA: Then she told the story of what happened when she went to see Aaron.

TEBAO: To whom did she speak to?

MERETA: To us.

TEBAO: What did she say?

MERETA: She said that when she had entered Aaron's room he followed, closed the door and pulled the curtains.

TEBAO: Anything else?

MERETA: When she was in the room Aaron grabbed hold of her and tried to make her lie down. Perhaps he was joking but I wouldn't know and then whilst they were struggling she bit Aaron.

TEBAO: Anything else?

MERETA: That's how she came to run away because he let go of her hand and she got up, opened the door and ran away.

TEBAO: What was Taomarie's appearance whilst talking at this time?

MERETA: She seemed to be frightened and she was crying whilst telling the story.

Under cross-examination Mereta agreed that the complainant had mentioned the biting and telling the appellant that she had a heart problem.

Mautaake also gave evidence. He described the distressed condition of the complainant when she and Mereta unexpectedly entered his room while he was with Terubentau. He said that the complainant appeared afraid and was shaking. According to his version he asked her what had happened but she was too distraught to describe it and that it was Mereta who said that the complainant had been forcibly detained in the appellant's room.

The appellant gave a different version. He made two statements to the police which were produced in evidence by the police officers who took them. As well he gave evidence and was cross-examined.

In his first statement on 21 August the appellant denied indecently assaulting the complainant. He claimed that what he did to the complainant was a joke. He said that if he had known the complainant was cross with him he would have apologised to her.

In the second police interview on 22 October the appellant said that the complainant had an appointment with him to discuss a proposed transfer to another section but she did not keep the appointment. Instead she came during the luncheon break. The appellant denied that he had ever held the complainant's hand or that their bodies ever rubbed or touched together. He said that he had suggested as a joke to the complainant that they should go and sleep on a mat in his room as it was lunch time and there was practically nothing that they could then do.

The appellant in his evidence adopted the contents of his two statements to the police. He denied the allegation of unwanted kissing. He accepted that the curtains were drawn in his office at the time of the complainant's visit and that he had already spread out a sleeping mat on the floor along with a cushion so that he could have a sleep during the luncheon break. He said he had not been able to do so because of the noise coming from some card players nearby.

While earlier stating that he had not held the complainant's hand, later in his evidence he said that when he had invited her to sleep he pulled her by the hands, took her into his office, released her, closed the door and that no struggle took place.

The appellant referred to the complainant's condition. He said that when he first met her on the day in question she was perfectly normal, that her hands were not cold, that her face was not pale and that she was not trembling.

The Judgment under Appeal

In the judgment under appeal the Judge comprehensively reviewed all the evidence. He reminded himself of the onus of proof and that it was dangerous to convict on the uncorroborated evidence of the complainant but that it was nevertheless competent for him to do so if he had no doubt that the complainant was telling the truth.

The Judge subjected the evidence of both the complainant and the appellant to close scrutiny as well as that of the other witnesses. We here note, in view of the argument which was addressed to us, that he referred to the omissions of the complainant in respect of the biting and her two explanations for those omissions.

The Judge made a number of significant findings.

First he preferred the evidence of the complainant to that of the appellant. He found that the appellant was not telling the truth when he denied the indecent assault. In contrast the Judge found that the complainant was a reliable and truthful witness. He accepted that it had been proved beyond reasonable doubt that she had been indecently assaulted by the appellant as alleged.

Secondly the Judge found that Mereta's evidence of the complainant's complaint and her distress were consistent with the complainant's evidence.

Thirdly the Judge found Mautaake to be a truthful and honest witness in spite of some lapses of recollection. He accepted his evidence as to the complainant's distressed condition and found that it was consistent with the complainant's evidence.

And fourthly the Judge found that the appellant's evidence that when he first met the complainant she was 'perfectly normal', as compared with her distraught condition a very short time later as observed by both Mereta and Mautaake, tend to confirm that the appellant had done something unusual to her inside his office.

The Appeal

On appeal the appellant attacked the Judge's finding that the complainant was a reliable and truthful witness. Mr Berina for the appellant contended that the Judge had failed to properly take into account first the inconsistencies in the complainant's evidence as to the biting and her escape from the appellant and secondly the conflict between the complainant's evidence that she had narrated the indecent assault to Mautaake and his evidence to the contrary. As well Mr Berina contended that the Judge had treated the case as one of attempted rape without any foundation in the evidence. And finally he contended that the Judge had given undue weight to the evidence of the complainant's distress.

The Relevant Principles

The onus is on the appellant to show that the decision of the Judge was wrong and that in all the circumstances he was not warranted in entering a conviction or at least that his mind should have been left in a state of reasonable doubt. This court is entitled to take into account the advantage given to the trial judge, which we have not had, of having seen and heard the witnesses.

The finding in the High Court depended to a substantial degree on the credibility of the complainant and the other prosecution witnesses. The Judge's finding must stand unless it can be shown by the appellant that the Judge failed to use or palpably misused his advantage or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable. See Devries v Australian National Railways Commission [1993] 177 CLR 472.

Our Examination of Appellant's Arguments

We now deal in turn with the arguments advanced by Mr Berina in support of the appeal.

A. Biting and Escape

Mr Berina relied on the omission by the appellant to mention the biting of the appellant before she made her escape in her two statements to the police and in her evidence in chief. He also relied on the complainant's differing explanations for those omissions, first that she had forgotten and secondly that she did not mention biting because she did not know whether the biting had left a mark on the appellant. Counsel emphasised the complainant's admission of forgetfulness. He contended that this evidence significantly eroded the reliability of the complainant's evidence and cast doubt on its truthfulness. He further contended that the Judge had failed to address these deficiencies and bring them into account.

We are unable to accept Mr Berina's submissions on this point. The Judge was conscious of these matters. He specifically referred to the complainant's omission to mention the matter in her statements and in her evidence. While the Judge did not specifically refer to the differing reasons the complainant gave for the omissions, we do not consider that he was required to do so. See R v Connell [1985] NZCA 34; 1985 2 NZLR 233 (CA) at 237 per Cooke J:

"Further, what the Judge sitting alone delivers is intended to be a verdict. It need not be supported by elaborate reasons. To require the Judge to set out in writing all the matters that he has taken into account and to deal with every factual argument would be to prolong and complicate the criminal process to a degree which Parliament cannot have contemplated. There are cases where a point or argument is of such importance that a Judge's failure to deal expressly with it in his reasons will lead this Court to hold that there has been a miscarriage of justice. A demonstrably faulty chain of reasoning may be put in the same category. But it is important that the decision to convict or acquit should be made without much delay. Careful consideration is an elementary need, but not long exposition".

We do not think that the Judge's failure to consider expressly the differing reasons proffered by the complainant for omitting to narrate this matter of detail undermined his overall conclusions. We therefore reject this ground.

B. The Conflict between the Complainant's Evidence and Mautaake's Evidence

Mr Berina contended that the complainant's credibility ought to have been called into question by the Judge because of the conflict between her evidence and Mautaake's evidence. On the one hand the complainant said that she told Mautaake, Terubentau and Mereta in Mautaake's office what the appellant had done to her but on the other hand Mautaake said that she did not do so and that it was Mereta who described the forceful detention of the complainant. We cannot accept this submission. First the Judge in accepting Mautaake as a further witness he noted that Mautaake appeared to be forgetful of some of the details of what happened in his room. In spite of this forgetfulness the Judge specifically said:

"......but I still accept his evidence as to the condition and appearance of the complainant when she was in his office".

On Mautaake's own evidence he was made aware of the complaint of the complainant by Mereta and in any event the Judge had before him the evidence of both the complainant and Mereta that the complainant outlined to Mautaake and Terubentau the events which had occurred in the appellant's room.

We are not persuaded that there was an undermining of the complainant's credibility under this head. We therefore reject the appellant's second complaint.

c. The Attempted Rape Point

The appellant's attack under this head stems from the Judge's summation of part of Mautaake's evidence as to the sequence of events in his room when he Mautaake asked the complainant what had happened to her. The relevant passage in the Judsgment is as follows:

" he (that is Mautaake) thought, he heard it from Mereta who said that the accused had tried to rape her in his office. He then told her if what Mereta had said was true she could lodge her complaint with the police".

(The Emphasis is ours).

Mr Berina submitted that the Judge was incorrect when he stated that according to Mereta ttthe accused had tried to rape" the complainant. He pointed out that there was no evidence to support that statement and that indeed rape had not been mentioned at all at any time during the trial. Mr Berina contended that the use of the words "tried to rape her" reflected the Judge's thinking and made his judgment suspect.

Mr Berina was quite correct when he submitted that the words "tried to rape her" were not spoken during the trial. Neither the complainant nor Mereta used them. We have set out earlier in this judgment Mereta's evidence about what occurred in Mautaake's room.

We accept that the Judge made an error in summarising Mereta's evidence. Nevertheless reading the judgment as a whole we cannot accept Mr Berina's submission that this error reflected an approach by the Judge which was not based on the evidence and his evaluation of it. At all times he dealt with the charge of indecent assault as preferred. We do not consider that the Judge wrongly approached the case and accordingly reject this complaint.

D. Distress

In Mr Berina's written submissions he submitted that the Judge had put too much weight on the evidence of distress. He emphasised the importance of a trier of fact exercising extreme caution in so far as this class of evidence is concerned. See for example R v Knight 1966 50 CR App R 122 CA. Mr Berina referred us to the finding by the Judge that the sudden change in the complainant's demeanour from that described by the appellant himself of 'perfectly normal' to the distraught condition observed by Mereta and Mautaake tended to confirm that the appellant had done something unusual to her inside his office. Mr Berina contended in his written submissions that that finding was far fetched and could not be supported by the evidence of the appellant. During his oral argument however Mr Berina acknowledged after discussion with the Bench that the complainant's sudden change in demeanour from normality to a distraught condition was capable of tending to confirm that the appellant had done something unusual to her in his office as found by the Judge. Mr Berina did not therefore press this last point and so we can put it to one side.

Conclusion and Decision

In our view the appellant has not demonstrated that the Judge was wrong in finding the appellant guilty of the indecent assault. We are not persuaded that his mind should have been left in a state of reasonable doubt. The appellant has not demonstrated that the Judge failed to use or palpably misused the advantage of seeing and hearing the witnesses or has acted on evidence which was inconsistent with facts incontrovertibly established by other evidence. The conviction must stand. The appeal is accordingly dismissed.

Hardie Boys JA
Tompkins JA
Penlington JA