Attorney-General v Tion [2015] KICA 4; Criminal Appeal 02 of 2015 (19 August 2015)

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

Criminal Appeal No. 2 of 2015

BETWEEN

ATTORNEY-GENERAL
APPELLANT

AND

NAUTO TION
RESPONDENT

Before: Paterson JA
Blanchard JA
Handley JA

Counsel: Pauline Beiatau for appellant
Raweita Beniata for respondent

Date of Hearing: 13 August 2015
Date of Judgment: 19 August 2015

JUDGMENT OF THE COURT

[1] The Attorney-General appeals under s.19A(a) of the Court of Appeal Act 1980 against the acquittal of the respondent on charges of rape (s.129 of the Penal Code Cap 67) and criminal trespass (s.182(1)(a)). As the right of appeal is conferred by the Act on the Attorney-General, the appeal documents should have been intituled with that officer as appellant, rather than the Republic. The Court will formally correct the record.

[2] The events to which the charges relate occurred at night in a maneaba at Matang village on the island of Nonouti on 16 December 2010. The families of the respondent and the complainant had their mosquito nets placed opposite each other at one end of the maneaba. There were some 10 families sleeping in the maneaba. The complainant's net was at the lagoon side and the respondent's at the ocean side. They were about 10 paces apart. There was a small light, which seems to have been a sleeping light, above the respondent's net. He said it was very dim. There was no light near the complainant's net.

[3] Both the respondent and the complainant's husband had been away from the maneaba for some hours drinking kava at a missionary's house. Both had become drunk. At about 3 am the respondent returned to the maneaba. He went to his mosquito net where his wife and one child were sleeping. He found his dinner where it had been left for him near the light and ate it. Then he went to sleep.

[4] After about an hour, he woke up needing to urinate. He left the maneaba for this purpose. Having relieved himself, he returned to the maneaba. Unfortunately, when he gave evidence he was not asked about where he went and from which direction he re-entered the maneaba. Nor was the trial judge provided with any plan of the maneaba, its measurements and the position of the light or any other source of illumination.

[5] Instead of going back into his own mosquito net, the respondent entered the complainant's net and lay down beside her. He said he did this by accident in the darkness and in his drunken state, thinking that it was his net and his wife. Both he and the complainant agreed that it was very dark. He said he did not notice the presence in the net of the complainant's sleeping husband and two children. The net was described by the complainant as very big.

[6] The prosecution case was that there was no mistake on his part and that in what followed he was personating the complainant's husband in order to have sexual intercourse with her.

[7] The respondent said that he went to sleep again for about 45 minutes. He awoke and felt like having sex. He was lying against the complainant's back. He said he whispered the name of his own wife, lifted the woman's leg and placed it on his leg. He then had sexual intercourse with her from behind.

[8] The complainant said she was awakened when she felt a penis in her vagina. She thought the man was her husband. She told him to "get on top" of her. She said this because it would be more comfortable. He agreed in his evidence that these words were spoken but said the voice was not clear to him and he was still very drunk. He did not change his position.

[9] After intercourse was completed the complainant touched the respondent's chest and realised he was not her husband. She jumped up and shouted for her husband who then woke up. Only then, the respondent said, did he realise she was not his wife and that he was in the wrong mosquito net. Both women were of similar sizes and figures. The respondent left the net and as he did so a flash light shone on his face and he was recognised by the complainant and her husband.

[10] The Chief Justice delivered his judgment on 12 June 2014 at the end of the trial. He considered, correctly in our view, that the issue for him to determine was whether the respondent had obtained the complainant's consent to sexual intercourse by personation of her husband: see s.128 of the Penal Code which defines the offence of rape.

[11] The Chief Justice correctly said that the prosecution had to establish that the respondent had done something to assume the character or identity of the complainant's husband, with the purpose of deceiving her. There must have been some act of deception which made the victim give her consent to have sexual intercourse with him. The complainant had said that her husband used to have sex with her in the same position as the appellant had sex with her. But, the Chief Justice said there was no evidence to suggest that the respondent knew that. As it happened, the respondent testified that this was also his favourite position of having sex with his own wife.

[12] The Chief Justice said that he could not find any evidence at all of impersonation. He found that the respondent had not taken steps at all to assume the identity of the victim's husband, so as to deceiver her:

The evidence before the Court points to the fact the accused was simply being himself, went to the victim's mosquito net, got into the mosquito net, lied down behind the victim toward her legs, lifted the victim's leg and placed it over his body and penetrated her vagina from that position. The victim in her own evidence consented to the act of sexual intercourse. She actually asked the accused to "come on top" of her. This evidence is consistent with the accused's evidence that the victim asked him to get on top of her.

[13] The Chief Justice said that if the complainant's evidence on this aspect of the case was accepted, then her request to the accused (which she believed to be her husband) to get on top of her was contradictory to her evidence that her husband used to have sexual intercourse with her from behind under her leg whenever he came back from his drinking bouts.

[14] Much had been made of the respondent's drunkenness after a heavy night of kava drinking and his behaviour when he returned to the maneaba. The prosecution had relied on this to build a case against him that, although he might have been drunk, he knew what he was doing. He knew where his food was and he ate it. He rested, went to urinate outside, returned to the maneaba and went to the complainant's mosquito net.

[15] But, in the Chief Justice's view, these aspects of the respondent's behaviour did not alter the crucial position at the time the respondent had consensual intercourse with the complainant in her mosquito net:

At the time sexual intercourse took place in the mosquito net between the victim and the accused, the victim signified her consent and did give her consensus quod hancpersonam to the accused. There is no evidence of personation and so there could not be any personation by the accused of the victim's husband. Simply lying behind the victim is not proof of personation.

On the evidence before the Court, there is doubt in the Court's mind that the accused personated the victim's husband when he had consensual sexual intercourse with the victim.

[16] The Chief Justice therefore found the respondent not guilty of both charges.

[17] The Attorney-General's notice of appeal was filed some two weeks out of time but it seems that this was not appreciated until recently. An application for leave to appeal out of time has now been made. It was accepted that the respondent has not been prejudiced and we grant leave.

[18] On this appeal, the Attorney-General's counsel, Ms Beiatau, made two principal criticisms of the reasoning of the Chief Justice which she said had led to the crucial, and incorrect, conclusion that there was no evidence of personation. Counsel said that the Chief Justice was mistaken in saying that the complainant had said in evidence that her husband used to have sexual intercourse with her from behind under her leg whenever he came back from his drinking bouts. Counsel took us to the passage in the evidence of the complainant to which the Chief Justice was referring. It may be that Ms Beiatau is correct, for the complainant's words are ambiguous on the particular point. But we do not see that this matters as the evidence in question is not of significance in relation to the issue of personation. There is no doubt that, in terms of s.128 of the Penal Code, the complainant consented to intercourse. That was not in dispute. The issue was whether the respondent deliberately deceived her by the way in which he conducted himself and obtained her consent by fraud. It concerns his state of mind. The sexual practices of the complainant and her husband on other occasions, and unknown to the respondent, are not germane to that.

[19] The second criticism made by the appellant's counsel was that the Chief Justice erred in not taking account of certain matters that bear on the state of mind of the respondent and contradicted the Chief Justice's view that led him to have reasonable doubt about personation.

[20] It was submitted that the Chief Justice had failed to consider:

• the respondent's ability to locate his own mosquito net and the food when he came back from drinking kava;
  
• whether the effects of the kava continued after the respondent had eaten and slept;
  
• the location of the two mosquito nets and the light in the respondent's net;
  
• that the complainant was asleep when he entered her net;
  
• the darkness in her net; and
  
• the manner in which he initiated sexual intercourse, from behind, which he did not change when asked to "get on top".
  

[21] If the Chief Justice really meant literally that there was no evidence of personation at all, then we cannot agree with him. Ms Beiatau is right that the matters listed above do provide some evidence supporting the prosecution's case on deliberate personation. However, against that, it is clear that both the men had been drinking kava for some hours and were intoxicated. The respondent had eaten and slept but it is very possible that he remained intoxicated and as a result of that and of having woken from sleep could have been disorientated when he went back into the darkened maneaba after urinating. He was not questioned about where he went to relieve himself and from what direction he approached the maneaba afterwards. On his evidence, he entered a mosquito net and lay down for about 45 minutes to sleep beside a woman whose body shape was like his wife's. If indeed he did lie there asleep for such a period, such an action seems unlikely if he knew the woman was not his wife.

[22] The appeal turns on a question of fact. It is also an appeal against a verdict of acquittal where an appeal court must be especially cautious about overturning the trial judge's conclusion with the result that either a conviction must be entered or the acquitted respondent again placed in the peril of a criminal trial by an order for retrial.

[23] There are certainly grounds for suspicion about the respondent's belief in the identity of the woman with whom he had intercourse. But we are conscious that the Chief Justice had the great advantage of seeing and hearing the witnesses. He also has knowledge of local conditions and practices that the members of this court do not share. While, on the evidence as a whole, a trial judge might reasonably have come to a different verdict we are unable to say that it was not open to the Chief Justice to hold a reasonable doubt about the respondent's guilt.

[24] Accordingly, the appeal is dismissed.

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Paterson JA

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Blanchard JA

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Handley JA