Tokiau v Republic [2006] KICA 26; Criminal Appeal 08 of 2006 (26 July 2006)

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

Criminal Appeal 8 of 2006

BETWEEN:

KAUABANGA TOKIAU
Appellant

AND:

THE REPUBLIC
Respondent

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel for Appellant: Taoing Taoaba
Counsel for Respondent: Ruria Iteraera

Date of Hearing: 21 July 2006
Date of Judgment: 26 July 2006

JUDGMENT OF THE COURT

Introduction

1. Kauabanga Tokiau appeals against his conviction and sentence of two years three months imprisonment for indecent assault following a trial in the High Court of Kiribati on 7 June 2006 and sentence on 20 June 2006.

Background

2. The complainant and her husband were asleep in their buia under a mosquito net at night. In the early hours of the morning the complainant felt a man on top of her massaging her clitoris. The man’s penis was between her legs touching her clitoris. She initially co-operated in the belief that it was her husband. When she saw her husband beside her she realised it that the man on top of her was an intruder. She did not know the man but had time to note that he was naked from the waist down, was wearing a T-shirt, and had a beard.

3. The wife’s screams awoke her husband. He punched the intruder who said "Nao Nao". The husband grabbed the man’s yellow lavalava but the man himself got away.

4. Another occupant of the house, Tengkai Teikake, gave chase. Although the intruder was not continuously in Tengkai’s sight during the chase, Tengkai caught the man whom he considered to be the intruder. The man caught was the appellant. Tengkai took him to a nearby toddy house.

5. The complainant and the husband arrived at the toddy house ten to twenty minutes later. They both punched the appellant. When they did so he cried out "Nao Nao". The complainant said that she recognised his voice from the earlier incident.

6. Another Crown witness, Samuelu Johnny, ran a sour toddy business. He said that the appellant had been drinking with two young men there for three or more hours earlier on the same night. At that stage the appellant had been carrying a yellow lavalava. When he saw the appellant next morning at about 6.00 am he no longer had the yellow lavalava.

7. When the appellant gave evidence he said at first that he could not recall what he had done after he had been to Mass at 5 pm on the preceding evening. Later in his evidence he recalled drinking sour toddy and going from place to place. He denied entering the house of the complainant and her husband but admitted that he had been wearing a yellow/orange lavalava. He agreed that he had been wearing a t-shirt.

8. The learned Chief Justice accepted the evidence of the prosecution witnesses and rejected that of the appellant. The Chief Justice pointed in particular to the complainant’s recognition of the appellant’s voice; Tengkai’s evidence that he had followed the intruder from their house to the place where he caught the appellant; and the fact that before the incident the appellant had had a lavalava similar to that left at the scene.

Sentencing in the High Court

9. On sentence the Chief Justice noted that the indecent assault was a serious one: if the complainant had not realised in time that she was dealing with an intruder, full rape would probably have occurred.

10. The Chief Justice noted that the appellant blamed the drink, that he was a practising Catholic who had confessed and repented and that it was a first offence. However he noted that in view of the seriousness of the conduct a substantial term of imprisonment was required.

The Appeal

11. In this court Mrs Taoaba emphasised the dangers surrounding identification evidence. She referred to R v Turnbull (1976) 63 Cr App 132 and rightly pointed to the caution needed where the prosecution case rests wholly or substantially upon a contested visual identification of the accused.

12. We accept that the same principles apply to a voice identification. If the Republic’s case had rested wholly or substantially upon the complainant’s identification of the appellant’s voice there would have been a real need for caution before deciding against the appellant.

13. The real question, however, is whether the Republic’s case rested wholly or substantially upon the wife’s voice identification. The Republic’s case was that voice identification was only one of a number of independent circumstances pointing to the appellant’s involvement.

14. A second circumstance was Tengkai’s evidence that he had followed the intruder from their house to the place where he caught the appellant. We accept Mrs Taoaba’s point that this evidence alone could not be conclusive either. The man Tengkai was chasing was not always in his sight and when he did come upon the appellant, the appellant was facing towards Tengkai. But the appellant’s presence in the very place where Tengkai expected to catch the intruder makes his evidence significant.

15. A third circumstance was that the yellow lavalava which the intruder left at the scene resembled the one which the appellant lost in the course of the night. To accept the appellant’s version is to accept a remarkable coincidence.

16. A fourth circumstance was that both the intruder and the appellant had beards. Again this could be dismissed only if one accepted another coincidence.

17. Mrs Taoaba criticised the consistency and reliability of the witnesses from whose evidence these circumstances were drawn. In our view the criticisms do not go to the substance of their evidence. Few witnesses have perfect recall. The Republic’s evidence was consistent and believable in those respects which mattered.

18. Ms Iteraera did not suggest that any of the four circumstances we have identified would have justified a conviction in isolation but they are to be viewed in the aggregate. We accept that taken together, they more than justified the Chief Justice’s conclusion that the appellant was the intruder.

19. The facts surrounding the conduct of the intruder are not in contention. That they amounted to indecent assault was undisputed.

Appeal against sentence

20. Mrs Taoaba submitted that the sentence was manifestly excessive. We accept her submission that most cases of indecent assault attract sentences less than the two years three months imposed here.

21. However the complainant’s evidence was that by the time she realised that the appellant was not her husband, his penis was already touching her clitoris. If, to the knowledge of a stranger, a woman has intercourse with him solely because she thinks she is dealing with her husband, it is rape. That did not occur in this case but the circumstances came very close to it. The appellant stopped only because of the woman’s scream. We agree with the Chief Justice that if, at the last minute, the complainant had not realised who she was dealing with full rape would probably have occurred.

22. The appellant was not charged with attempted rape and therefore could not be sentenced for that crime. However the Chief Justice was well entitled to take the facts into account in approaching sentence. This was a particularly serious case of indecent assault. Nor could there be any discount for a guilty plea. In our view the sentence was justified.

Conclusion

23. The appeals against conviction and sentence are both dismissed.

Hardie Boys JA
Tompkins JA
Fisher JA