Terara v The Republic [2005] KICA 4; Criminal Appeal 04 of 2005 (8 August 2005)

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

Criminal Appeal No. 4 of 2005

BETWEEN:

NENEBATI TERARA
Appellant

AND:

THE REPUBLIC
Respondent

Coram: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel: Glenn Boswell for appellant
Birimaaka Tekanene for respondent

Date of hearing: 2 August 2005
Date of judgment: 8 August 2005

JUDGMENT OF THE COURT

Introduction

[1] The appellant was charged with three counts of defilement of a girl under the age of 13. The particulars of the counts are:

Count 1

Particulars of Offence

Nenebati Terara between the 1^st of October and the 31^st of October 2003 at his house at Banana village on Kiritimati Island had unlawful sexual intercourse with Nei Kaukeata Teribwa who was under the age of 13 years old.

Count 2

Particulars of Offence

Nenebati Terara on the 2^nd March 2004 in the bush at Banana village on Kiritimati Island had unlawful sexual intercourse with Nei Kaukeata Teribwa who was under the age of 13 years old.

Count 3

Particulars of Offence

Nenebati Terara on the 6^th March 2004 at Tabwi’s house at Banana village on Kiritimati Island had unlawful sexual intercourse with Nei Kaukeata Teribwa who was under the age of 13 years old.

[2] Following a trial on 12 May 2005 before the Chief Justice, the appellant was found guilty on all three counts. He was sentenced to two years imprisonment on each count to be served concurrently. He has appealed against conviction. He has not appealed against sentence.

Background

[3] At the time the offending was alleged to have taken place, the complainant was 12, the appellant was 32. In July 2003 the appellant’s wife gave birth to their child. Soon afterwards the complainant came to stay at their house to look after the baby. The following is a summary of the evidence of the complainant and the appellant.

[4] Concerning the October 2003 allegation, the complainant said that the appellant came into the house, grabbed her by the hair, dragged her to another room, told her to take off her panties and inserted his penis into her vagina. He said that if she said anything about it he would kill her.

[5] Concerning the March 2004 allegation, the complainant said that when she was outside under a breadfruit tree the appellant told her to go to Taabwi’s house. When there he again forced her to have sex with him. Some two weeks later she said that they went into the bush and again had sex again. It was after that incident that her grandmother took her to the police.

[6] The appellant gave evidence. He denied that he had ever had sexual intercourse with the complainant. Concerning the 2 March 2004 allegation, he said that he was drinking sour toddy during that evening, that he went blank, and that he woke up at 2 am when he walked back to Tabwakea. He did not have sexual intercourse with the complainant that evening.

[7] Concerning the 6 March allegation, he said he had some discussions with the complainant about the child's clothes. At her request, he and she went to a kiakia near Taabwis’ house. They had a conversation for about twenty minutes. After he said he wanted some food, the complainant led him to Inga’s house where he had some food. He then dropped her at the Catholic maneaba. No sexual intercourse took place.

[8] In cross-examination he said that on the second occasion he had asked the complainant if she really loved him. They talked about what he described as the previous incident. She said she really loved him. He did not say anything about loving her. She was the one who showed her love for him. She did nothing to him.

[9] In his statement to the police he said that the complainant took him by the hand and led him to Taabwi’s house when he asked her “do you really love me”, He went on to describe the complainant getting him food at Inga’s house. He made no admission of intercourse.

[10] Dr Atuna Mareko was called by the defence. She examined the complainant on the 3^rd March. Her examination showed that the complainant was not a virgin and she could not say how long it had been since she had intercourse. She was menstruating.

Grounds of appeal

[11] The notice of appeal sets out the following grounds:

• [a] The conviction is unsafe and unsatisfactory in light of the evidence at the trial.
  
• [b] The learned Judge erred in law in applying the presumption that if a woman and a man have the opportunity to have sexual intercourse, they will do so, rather than deciding whether there was evidence beyond reasonable doubt that the appellant and the complainant had sexual intercourse.
  

[12] At the hearing of the appeal, Mr Boswell accepted that the only basis for the first ground was the second ground, so that the second ground, in effect, is the only ground relied on.

The judgment in the High Court

[13] In his judgment the Chief Justice summarised the evidence for the prosecution and for the defence. He observed that the verdicts depended on his assessment of the complainant and the appellant. It was not a matter of which one he believed but whether he can find proved beyond reasonable doubt on all the evidence that the appellant was guilty of some or all of the changes against him.

[14] He commented that the complainant gave her evidence willingly and in some detail. She showed no hostility to the appellant. He accepted that there were some contradictions in her evidence but he concluded that "she was quite definite and believable that intercourse had taken place on three occasions." On significant matters, those necessary to prove the charges, he accepted beyond reasonable doubt the complainant's evidence. On the other hand he found it difficult to accept the appellant's denials. He went on to say:

“Eventually it is a matter of human nature. There can be no doubt that Nenebati and Kaukeata spent times together. Why should a man of 30 and a girl of 12 spend time together? What could they have in common but sex? Nothing was suggested. No wonder the grandmother was suspicious and angry. I reminded Ms Troup of the presumption, rebuttable though it was, often used in divorce cases in days gone by when adultery was to be proved: a presumption that if a man and a woman had the opportunity they would take it. Human nature has not changed. These two had one opportunity for certain – Nenebati admits it – on 6 March at night, after there had been talk of love (as I find despite Nenebati’s contradictions in his cross-examination). They spent time alone together on the kiakia or in Taabwi’s house. In the end common experience of human nature lends great weight to Kaukeata’s evidence and leaves me in no reasonable doubt about the guilt of the accused on all counts.”

Findings of fact

[15] The Chief Justice accepted the evidence of the complainant and rejected the evidence of the appellant when he denied that any sexual intercourse had taken place. If the complainant’s evidence is accepted, there was ample evidence that sexual intercourse took place on the three occasions to which she referred. Whether that evidence should be accepted is an issue of credibility that is itself a question of fact. It has long been accepted that an appellate court should not reverse a trial judge’s finding of fact in the absence of compelling reasons for doing so. The principle has been clearly stated in two decisions of the Court of Appeal in New Zealand.

[16] In Hutton v Palmer [1990] 2 NZLR 260, Somers J said at 268:

“The principles are not in doubt. An appeal such as the present is by way of rehearing and the Court has an obligation to come to its own conclusion. Running across that principle is another, namely, that an appellate Court is under the disadvantage that it has not seen or heard the witnesses. In a case which depends on an opinion as to conflicting testimony an appellate Court will not interfere unless it can be shown that the trial Judge has failed to use or has palpably misused his advantage; it ought not to reverse the conclusions at which he has arrived merely from its own comparison and criticisms of the witnesses and its own view of the probabilities of the case; SS Hontestroom v SS Sagaporack [1927] AC 37, 47. Thus an appellate Court will interfere where the evidence accepted by the trial Judge is inconsistent with facts incontrovertibly established by other evidence or is patently improbable; Edwards (Inspector of Taxes) v Bairstow [1955] UKHL 3; [1956] AC 14, 39; Brunskill v Sovereign Marine & General Insurance Co Ltd [1985] HCA 61; (1985) 62 ALR 53.”

[17] In Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190, Thomas J said at 199:

“It may not be fully appreciated that the deference of an appellate Court to the findings of fact of the Court at first instance is founded on a number of pragmatic considerations which make it inappropriate for the appellate Court to intervene. The advantages possessed by the trial Judge in determining questions of fact are manifest. Of paramount importance, of course, is the fact the trial Judge hears and sees the witnesses first hand over a matter of days, or even weeks, of taking evidence. He or she can form an impression of the reliability of witnesses and, where necessary, their credibility – although in deference to the witness’s feelings the Judge may not always express an adverse conclusion in that regard. As the evidence unfolds the trial Judge gains an impression from the evidence which is not necessarily or usually apparent from the cold typeface of the transcript of that evidence on appeal. The Judge forms a perception of the facts in issue from which he or she adds or subtracts further facts as witnesses give their evidence, and so obtains as complete a picture as is possible of the events in issue. The Judge perceives first hand the probabilities inherent in the circumstances traversed in the evidence and can obtain a superior impression of those probabilities as a result.

An appellate Court has none of these advantages and must acknowledge that the Court at first instance is far better placed to determine the facts. Indeed, it would be an arrogance for an appellate Court to assert the capacity to be able to “second-guess” a trial Judge’s findings of facts when it does not share those advantages. Exceptional caution in departing from the trial Judge’s findings of fact [is] therefore regarded as imperative.”

Conclusion

[18] The central issue on the appeal is whether the comments the Chief Justice made set out in [14] affects the finding of credibility he made. We have reached the conclusion that it does not for these reasons.

[19] The comment follows the conclusion he had already reached that he accepted beyond reasonable doubt the complainant’s evidence but finds it difficult to accept the appellant’s denials. This finding of credibility was made without any apparent reliance on the passage that follows.

[20] The passage does not, as counsel for the appellant submitted, amount to a presumption that if a woman and a man have the opportunity to have sexual intercourse, they will do so. Having referred to the presumption in a divorce case (where the burden of proof was on the balance of probabilities) that if a man and a woman had the opportunity they would take it, he goes on to say that “These two had one opportunity for certain . . . on 6 March, after there had been talk of love . . . They spent time together on the kiakia or in Taabwi’s house.” So all he was finding was that – as the appellant admitted in evidence – they were together and had the opportunity for sexual intercourse. He does not say that the opportunity gave rise to any presumption that sexual intercourse occurred. That opportunity, the Chief Justice found, provides some support for the evidence the complainant had given. We do not find there to be any error in the approach the Chief Justice adopted.

[21] We find no grounds for interfering in the finding of fact the Chief Justice made when he concluded that the evidence of the complainant should be accepted and that if the appellant rejected. It followed from that finding that the appellant was rightly convicted of the three counts.

Result

[22] The appeal against conviction is dismissed.

Hardie Boys JA
Tompkins JA
Fisher JA