Republic v Namakin [1986] KIHC 4; Criminal Case 23 of 1985 (11 April 1986)

IN THE HIGH COURT OF KIRIBATI
BETIO

High Court Criminal Case No 23/85

REPUBLIC

v.

THOMAS NAMAKIN

11 April 1986

JUDGMENT

The accused is charged with rape said to have committed on Nei Ritie on 12 June 1985 at Takoronga. Rape is an offence contrary to section 128 of the Penal Code.

As in every criminal case the onus of proof rests upon the prosecution as a matter of law to prove the guilt of the accused beyond a reasonable doubt. In addition as a matter of practice but not of law I have to warn myself that it is dangerous to convict on this charge without any corroboration as it is a sexual case. If, despite the warning it appears that the evidence of the complainant is so convincing that I am left in no reasonable doubt as to the guilt of the accused then he may be convicted as charged without any corroboration.

The facts are straight forward. The complainant Nei Ritie is employed as a barmaid at the Kiribati hotel. She is an attractive young lady and was at the date of the incident a virgin. On the night of these events she was working at the hotel but left with the accused on his motorcycle late at night and travelled with him to Takoronga where the events complained of took place. Later that evening she was seen by her mother who took her to the police. From there she and the accused went to the hospital where they were both examined by the doctor. She was found to be no longer a virgin but to have no other injury. The accused was found to have no injury at all.

There is no dispute about the facts as outlined above, nor is there any dispute as to the fact that Nei Ritie and the accused had sexual intercourse. It is admitted by the accused.

The only dispute is as to the circumstances leading up to that act of intercourse and whether Nei Ritie consented to the intercourse taking place.

The complainant Nei Ritie gave her evidence well and in a perfectly straightforward manner and in general without hesitation or contradiction.

She told the court that she was on duty on the night in question and when Thomas the accused came to the Kiribati Hotel at about 11.00 p.m. He was buying drinks. He left at about 1.0 p.m and she herself left not very long afterwards.

When she got outside she found the accused person when she went looking for her brother to take her home. She went back into the hotel but the accused called her and said she should not wait for her brother and he would take her home. She says he took her hand and pulled her to the motorcycle and off they went. However the accused did not take her home but instead he took her to Takoronga at high speed. There he pulled her off the motorcycle when she refused to get off and dropped her on the ground. He pulled off her pants. She told him she was not happy with what he was doing and tried to escape but as Thomas was stronger she could not cope. She says that she shouted and told him many times to stop but he succeeded in raping her. After he did so he apologised and took her home. She was crying and reported the matter.

In cross examination she said that Thomas did not return a cassette to her and that she did not drink anything that night. She denied joining Thomas and his friends for drinks. She denied that Thomas had sought her company and agreed to meet her after she finished work. She denied telling him to wait near Kake's store. She denied Thomas giving her a can of beer but then said that he put it between them on the motorcycle. She said that Thomas forced her to get on the motorcycle and dragged her by the hand. She agreed to get on the motorcycle on the basis that she was to be taken home.

She agreed that when she saw that she was not being taken home she did not shout for assistance. She said that the pants got lost during the struggle and that her dress was not torn or damaged.

PW2 her mother saw her daughter crying with red marks on her neck at about 0200. In reply to her inquiry Nei Ritie complained that Thomas tried to rape her. Her hair was untidy and she had grass on it. Her dress was dirty at the back. She had red marks on her back.

When the police interview the accused immediately after the incident Thomas said that he did not wish to say anything. However later on he made a statement to the police in which he answered a number of questions. He admitted having sexual intercourse with the girl and claimed that she consented and was a willing party. He admitted that she struggled at some stage so that he would not be able to penetrate her. He also admitted that she cried when she found she was no longer a virgin.

Thomas himself gave evidence on oath. He told the court that on the night in question he went to the Kiribati Hotel with some Japanese people and a friend Ruia who gave evidence as DW2. They went to give Nei Ritie a cassette. Agnes the other girl who worked at the hotel was with them and the complainant joined them. Ritie was drinking alcoholic drinks. She drunk whisky mixed with Fanta. She was mentioning sexual things to Thomas and he suggested that after she had finished her work they should go off together. He says that she agreed to this but said that even if he went with her he would be unable to have sexual intercourse with her as his belly was too big. They continued drinking and after work was finished and the others had left she counted the money while Thomas waited for her. She got onto his motorcycle and they drove to Takoronga. There she got off and he put the motorcycle on its stand. They sat down and she asked Thomas what he was thinking of. He said that he supposed she had realised why they had come to Takoronga and asked her to lie down, as they were going to have intercourse. She did so and when he tried to take off her pants she said that she wanted to do this herself. She then began crying because she was sad and told him that this was because he was a married man and she was a virgin girl. He climbed on top of her and was sliding about and she moved up and down under him. He said that he thought she was in pain as she was a virgin. However eventually he managed to get his penis in and had intercourse with her. They then both stood up and she was crying and showing him blood so he apologised for taking her virginity. He then took her home on the motorcycle and at her request dropped her in the road near her house.

He was cross examined and denied that he raped her claiming that she consented from the very beginning. It seems from the cross examination that she did not consent at first but then changed her mind.

Thomas was not a particularly convincing witness. His demeanour was poor.

One defence witness was called who was at the Hotel and he confirmed that the two girls Nei Ritie and Agnes were at the table where Thomas and the witness were. He described them as "telling stories with Thomas."

As a witness I am satisfied that Nei Ritie was more truthful than Thomas. However there are some aspects of her evidence which gave cause for concern. The situation was that of a young girl previously a virgin and a barmaid suddenly for no apparent reason agreeing to get on to the motorcycle of a married man in the middle of the night.

I find her explanation for this unconvincing. Firstly she said he dragged her onto the motorcycle by the hand and then that she consented to get on because she wanted a lift home.

There is no way that Thomas could have forced her to get on to the motorcycle. She was at the hotel and could have shouted for George or any of the other hotel staff to assist her, or she could simply have stayed there.

I reject the idea that any force was used to get the complainant on to the back of Thomas's motorcycle and I find that she got onto the motorcycle voluntarily and that she held the accused's can of beer for him. I have to consider whether the complainant was tricked into getting onto the motorcycle for a lift home. I do not think that could be the case. From the Hotel to where the complainant wanted to go is a short distance. She could easily have walked or asked George to provide her with transport. Instead she decided to go on the motorcycle of a married man late at night. Even assuming that the version she advances is true and that she thought she was being taken home it is surprising that when she discovered this was not so she did not shout or scream, the more so as they were passing police Headquarters. These points give cause for concern in relation to the complete acceptance of the complainant's evidence. In addition it is relevant to notice that her dress was undamaged and that her pants which one might have expected to be torn after a struggle cannot now be located. She herself (apart from the loss of her virginity) was undamaged.

It is open to the court to convict on the evidence of the complainant alone if it properly warns itself of the dangers of so doing. I do so warn myself that it would be dangerous to convict on the uncorroborated evidence of the complainant and I find that her evidence is not so strong that I can convict upon it without corroboration.

An historical view of the law of rape is given in the speech of Dunn LJ in R. v. Stephen Oluburad Olugboja 1981 73 Cr. App. R. p. 348. He sets out the common law position and contrasts it with the position under the Sexual Offences Act 1956, s. 128 of the Penal Code seems to contain many elements of the Common law offence. The essence of rape is not the use of force but lack of consent.

Corroboration is required in respect of each of the three elements of the crime of rape.

In James v R 1971 55 Cr App R the privy Council said at p. 299

"Where the charge is of rape, the corroborative evidence must confirm in some material particular that intercourse has taken place, and that it has taken place without the woman's consent, and also that it the accused was the man who committed the crime."

As the intercourse is admitted and as it was the accused who had intercourse with the woman no corroboration of these two elements is required simply corroboration that the intercourse was without her consent.

There were no witnesses of the alleged rape, there rarely are eye witnesses to events such as these and the corroboration if there is any must necessarily come from the circumstances of the case.

Corroboration is some independent evidence tending to show that the crime has been committed and that the accused committed it. It is a rule of law that a witness cannot corroborate himself. Therefore on the face of it there is no evidence in this case which is strictly independent and which corroborates the evidence of the complainant.

However while a witness cannot corroborate herself there is law which suggests that the conduct of the complainant after the event can in some circumstances amount to something which while not exactly corroboration in the strictest sense, is near enough in nature to it to allow a conviction. This would only seem to be the case where it would be impossible for the witness to invent the evidence or to falsify it in some way.

In the instant case there is no doubt that the complainant was most distressed after the act of intercourse between herself and the accused.

There might even be evidence that she was distressed before it but that evidence is too tenuous to act upon. Certainly she arrived home in a distressed condition and Thomas himself admits that she was distressed. Could that evidence amount to sufficient to achieve corroboration of the complainant's evidence for there does not seem to be any other evidence capable in law of amounting to corroboration.

The leading case seem to be Redpath v R 1962 46 Cr. App R p. 319.

In that case counsel for the appellant argued that the distressed condition of the girl could not amount to corroboration any more than the complaint of her mother could, but they were to be treated as going to consistency and not capable of amounting to corroboration.

The Court of Criminal Appeal held it was unable to accept that argument and held that the distressed condition of the complainant was quite clearly capable of amounting to corroboration. The court stated at p 321.

"Of course the circumstances will vary enormously and in some circumstances quite clearly no weight or little weight could be attached to such evidence as corroboration".

In R v James Henry Knight 1950 Cr App R p 122 Redpath was followed and explained. The Court of Criminal Appeal said of Redpath.

"Despite what was said in that judgment, there has been a tendency since then for Judges to leave to the jury almost every case where a complainant is seen to be in a distressed condition, and in several cases since Redpath and in particular two cases which we have been referred to ...... I endeavour to stress that the distress shown by a complainant must not be over emphasised in the sense that juries should be warned that except in special circumstances little weight ought to be given to that evidence."

The Law in relation to the distressed condition of the complainant including the decision in Redpath was again considered in R v Kilson 1973 58 Cr App R p 304 where the court said of the previous cases.

"In each case the Lord Chief Justice took the opportunity of stressing the need for the utmost care in warning the jury they must guard against attacking undue weight to the appearance of distress, for it might arise from a multiplicity of causes and of course ..... might not spring despite the girls assertion, from anything the accused man did or said but from other and dissociated causes. This is a roundabout way of saying that unless there are very special circumstances, the distressed condition of the complainant may simply fail to implicate the accused in the offence charged."

In R v Rajesh Chauhan 1981 73 Cr App Rep p 232 the matter came before the Court again and the court drew attention to this warning in Knight

"We regard it as considerable importance that the type of warning adverted to ...... is constantly borne in mind when such cases as the present case are before the Courts, and that the trial judge cannot be too zealous in heeding that warning."

Now bearing in mind those dicta above referred to I have to note that Nei Ritie was a virgin before these events. I also have to bear in mind that in Kiribati custom for an unmarried girl to lose her virginity renders her chances of marriage significantly lower. It is a disgraceful thing for a young virgin to have sexual intercourse with a married man and it is clearly a thing which would bring upon such a girl disapproval and possibly some unpleasant form of retribution.

While it is possible for the distress of the complainant to be viewed as stemming from rape, it is by no means impossible for her distress to stem from the fact that she had lost her virginity, from the fact that such intercourse may have been more painful than she expected, and from the fact that she knew that her mother was waiting for her at home and that she would have some explaining to do. This is the way the defence has put its case and it is impossible to say that it could not be so.

For these reasons it has to be that very little if any weight can be placed upon the distressed condition of Nei Ritie after the act of intercourse. It cannot operate as corroboration in my view because it is equivocal. Even if I am wrong in so holding if the dicta above referred to are considered then very slight weight only should be put on such evidence. The point to be decided is did Nei Ritie consent or did she merely submit through fear or some other reason. Was any pressure used to cause her to consent and if she did consent was that consent real or did she merely submit without consent.

Against the evidence of Nei Ritie which stands alone there is the evidence of the accused and his witnesses. The accused was not an impressive witness. In answer to the questions by the police he agreed that Nei Ritie struggled but there again the admission is equivocal for he never admitted expressly that she struggled because she did not agree with what he was doing. Possibility as she was a virgin she was in pain. There is the evidence of the accused's witness that she and the accused were on speaking terms at the hotel and there is the evidence of the doctor that she had no physical injury. Her clothing so far as we can see was undamaged. Her pants cannot be found. This is an important piece of evidence and their absence was unexplained. She was not asked if the force used to remove her pants was such as to damage them. She was not asked if she looked for them. The police did not give evidence that the locus in quo was inspected and the pants could not be found. There is no evidence that on the beach at Takoronga any threat was offered to Nei Ritie and no real force or violence was used, or any struggle took place.

While the absence of any injury and physical resistance do not of themselves constitute consent they are in my view important indicators which cannot be ignored for the crux of the matter is consent. The accused said she consented but she said she did not. The position is not free from doubt.

She herself gave two explanations as to why she got on the motorcycle. The first was that she had been forced to do so by the accused who dragged her. I am satisfied that this is not true. The second explanation was that she thought she was getting a lift home. It is strange that a young virgin who was supposed to be waiting for her brother should accept a lift from a married man at 1.0 a.m. Having accepted the lift and having discovered that they were not going to her house she took no step to attract attention such as shouting for help, but allowed herself to be taken to Takoronga.

I have considered whether the reply of the accused person to the police when asked about the matter at an early stage could assist the prosecution. He did not, as one might have expected, hotly deny having raped the girl, but said that he had nothing to say. This seems a quite unreasonable reaction until it is realised that the accused had been cautioned at that time and the principle to be applied is that any statement or accusation made in the accused's presence is evidence against him only in so far as he by words or conduct accepts it as true. The accused is this case did nothing to show that the accusation was true R v Chandlar 1976 3 All E.R. 106.

The question of consent is one of fact to be decided in a common sense way. It is for the prosecution to prove beyond a reasonable doubt that Nei Ritie did not consent. There is a direct conflict of evidence between Nei Ritie and the accused. On a common sense view it seems to me that where a young virgin girl agrees to get on to the back of the motorcycle of a married man at 0100 and travels with him to Takoronga without doing anything to attract attention it must be concluded that she went there for only one reason and that reason must be a romantic one. This must cast doubts on her evidence that she did not consent to intercourse at Takoronga and when this is considered with the evidence of lack of any physical injury to her person or damage to her clothing and the missing of her pants a vital piece of evidence – this all adds up to uncertainty on the part of the prosecution evidence on the question of consent. I have therefore a doubt as to whether or not she consented. It is I think a reasonable doubt not a fanciful one. The accused must have the benefit of it and he is acquitted.

R.G. Topping
Judge