Republic v Bengo [1997] KIHC 75; CRC 08 of 1997 (27 June 1997)

HIGH COURT OF KIRIBATI
(BEFORE THE HON R LUSSICK C.J.)

HCCrC 8/97

THE REPUBLIC

v.

NAMOUA BENGO

Ms P Tebao for the Republic
Mr D Lambourne for the Accused

Date of Hearing: 23 June 1997

JUDGMENT

The accused Namoua Bengo is charged with the crime of rape contrary to section 128 of the Penal Code (Cap. 67) in that on the 5^th December 1994, at Temaiku, Tarawa, he had unlawful sexual intercourse with a woman named Otana Betero without her consent.

The prosecution called as witnesses the complainant, her grandmother to whom the complainant made a complaint after the incident, the complainant's aunty, who took the complainant to the police station, a Police Corporal who saw the complainant and took a cautioned statement from the accused, and a doctor who examined the complainant and prepared a report. The defence did not call the accused nor any other witness.

The complainant, Otana Betero, gave her age as 22, which means that she would have been around 19 years of age at the time of the incident. She testified that that [sic] on the morning of the 5^th December 1994 she called at the house of the accused and his wife on Betio wanting to borrow her bus fare to the Tungaru Central Hospital, Nawerewere, to visit her sick grandmother. The accused offered to take her there on his motor cycle. Otana readily accepted the offer because she believed that the accused was her relative. She said that about a week before, the accused had come to her father and held a feast to greet her, saying he was a relative of hers on her mother's side.

When the motor cycle reached Nawerewere Otana told the accused to drop her there, but he kept going at a fast speed, saying that he wanted to go to a house to collect some fishing gear and to drink some sour toddy. The accused drove to a house at Temaiku where some other people were present and commenced to drink sour toddy. Otana was frightened by the accused drinking sour toddy and she asked him to take her back to Nawerewere.

On the way back the accused stopped the motor cycle in a bush area where there were no houses and told Otana that he was going to the toilet. Instead, when Otana got off the motor cycle he grabbed her by the hair and pulled her to the beach. He then threw her down and told her to take off her clothes as he was going to have sex with her. When she resisted, the accused grabbed a rock and commenced hitting her about the head with it. He hit her twice on the right side of the head and once on the back of the head. It came out in cross-examination that while the accused was hitting her with the rock he told her he was going to make her unconscious and rape her, after which he was going to kill her and bury her on the beach. After being hit with the rock Otana told the accused that if he let her go she would take off her clothes. She explained in cross-examination that she was afraid, that the accused was lying on top of her with a rock and that she would rather take off her clothes than die like a dog. The accused then inserted his penis into her vagina and completed an act of sexual intercourse. Otana said she was not happy with what the accused did to her as he was her relative.

According to Otana, the accused then drove her to his daughter's place which was not far from the hospital and from there Otana went to see her grandmother. She first went to the bathroom at the hospital where she washed her private parts because she was "disgusted with his sperm".

She told her grandmother what had happened and her grandmother took her to see a doctor. After that Otana went by bus to her aunty's place and her aunty took her to the police station.

The Police took Otana back to the scene where they carried out search for evidence. On their way back, the police saw the accused riding his motor cycle and arrested him.

Otana was later examined by a doctor on the same day.

That was the complainant's evidence.

Her grandmother Tewaa Tebakuta gave evidence that Otana came to see her in the hospital on the morning of the incident and told her that the accused had hit her with a stone and rape her. The grandmother said that Otana was crying and she could see a swollen injury to the back of her head. She could also see that Otana's hair was messy and full of sand.

The complainant's aunty, Tiita Tiikare, testified that Otana came to her house on the morning of the incident. She could see that Otana's hair was untidy and that the right side and back of her head were swollen. She went with Otana to the police station.

Police Corporal Euroba Tito gave evidence that on the day of the incident he took a statement from Otana, after which he took her to the hospital to be examined. In answer to a question asked in cross-examination he said that "she looked a bit distressed, just a little". He then took her to the scene of the incident where he prepared a sketch. The next morning he took a cautioned statement from the accused which was admitted into evidence without objection.

The last witness to give evidence in the case was Dr Taketiau Beriki. He testified that late in the afternoon of 5^th December 1994 he carried out a medical examination of Otana and prepared a report. He found no injury to the genitals and no evidence of spermatazoa [sic]. He said there could have been a number of explanations for the latter finding, including washing of the vagina. The doctor also found a bump or swelling the size of a tennis ball at the back of Otana's head.

The complainant's evidence clearly amounts to evidence of rape as defined in section 128 of the Penal Code Cap. 67. Section 128 provides:

"128. Any person who has unlawful sexual intercourse with a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by personating her husband, is guilty of the felony termed rape".

The fact of sexual intercourse is not in issue in this case. The accused freely admitted to the police that he had had sexual intercourse with the complainant, but he claimed it was with her consent.

In fact, apart from the central issue of consent, there is very little disparity between what the accused told the police in his cautioned statement and what the complainant has told the court.

The accused acknowledged in his statement that he was going to drop Otana at Nawerewere but did not stop and instead went to look for sour toddy to drink. He admitted that Otana was not agreeable to that and said she was afraid. He stated that he drank 2 litres of sour toddy but then left because Otana was in a hurry to get to the hospital. During the trip back he became sexually aroused and turned towards the ocean side where it was bushy. He claimed that when he told Otana what he wanted she became upset because they were related. She struck herself on the head with a stone because she was ashamed of what he was going to do to her. However, according to the statement, the accused managed to calm her down and they had sex.

In answer to questions by the police in the record of interview, the accused admitted that when he turned his motor cycle towards the ocean side he had told Otana that he was going to defecate, but that he did not defecate as Otana was crying. The accused also conceded that the reason she was crying was because she did not agree to have sexual intercourse because they were related.

As already mentioned, the accused did not give evidence or call evidence. There is, of course, no onus on the accused at any stage to prove his innocence. The onus of proof, beyond reasonable doubt remains upon the prosecution from first to last. The prosecution must prove the charge and each element of the charge beyond reasonable doubt and if it fails to do so then the accused is entitled to be acquitted.

I also direct myself that, in sexual cases, it is dangerous to convict on the evidence of the complainant alone. However, bearing that warning in mind, if I have no doubt that the complainant is speaking the truth then I may convict on her uncorroborated evidence.

Counsel for the accused has submitted that there is a complete absence of corroboration going to the issue of consent. For the reasons which follow, I reject that submission.

In Baskerville (1916) 2 KB 658 Lord Reading C. J. expressed the requirements of corroboration in the following terms (at p. 667):

".... evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it".

As to the extent to which evidence needs to be corroborated, the test enunciated in Blackstone's Criminal Practice (1991 F5.6) is that corroborating evidence must confirm the evidence requiring corroboration in at least one particular which is directly relevant to the issues in the case, in that it tends to suggest not only that the offence charged has been committed, but also that it has been committed by the accused. It does not matter that the evidence may be circumstantial rather than direct, as long as the jury would be entitled to draw from it an inference, which, if drawn, would have the effect of implicating the accused in the offence charged.

I find that there is evidence capable of corroborating Otana's evidence that the accused used force on her to get her to agree to have sexual intercourse with him. Three witnesses - the grandmother, the aunty and the doctor - gave evidence, which I accept, that they saw signs of physical injury to Otana's head. In my view, the evidence of these three witnesses corroborates Otana's evidence in a material particular which goes to the issue of consent, that is, that force was used upon her.

There is also the evidence of the grandmother and the policeman that they saw the complainant in a distressed state. I am aware of the importance of exercising extreme caution so far as this class of evidence is concerned, as was emphasised by the Court of Criminal Appeal in Redpath 46 Cr. App. R 319 and Knight 50 Cr. App. R 122. Except in special circumstances, little weight will be given to such evidence if it is the only evidence capable of amounting to corroboration. But that is not so in the present case. The fact that the complainant's distress was accompanied by physical injury renders more readily acceptable the belief that the distress was not feigned but genuine. I therefore find that the evidence of the complainant's distressed state is also capable of supporting the complainant's assertion that she had not consented to intercourse.

It has been submitted for the accused that the grandmother's evidence should not be accepted because she lives with the complainant and they have discussed the case. The grandmother did not deny this. Had she done so, I may have had some doubts about her evidence. As it was, I found her to be a truthful witness. In fact, I had no reason to doubt the credibility of any of the witnesses I have mentioned, and I accepted their evidence.

It is also submitted for the accused that the injury to the back of Otana's head is equally consistent with the version given by the accused. I reject that submission. I find the accused's explanation of Otana's injury, that she struck herself on the back of the head with a rock, to be quite preposterous and beyond belief.

Counsel for the accused further submits that I would have doubts about the complainant's evidence of her injury because, although she claimed to have been struck twice on the side of the head as well as the back, the doctor found only one injury at the back of the head. There might be several explanations as to why the doctor only detected one head injury. One explanation given by the doctor was that in the case of some injuries a bump only emerges some days later because of slowly bleeding blood vessels. In any event, it does not follow that because the doctor only detected one head injury the complainant must be lying about how she received it.

Counsel for the accused called into question the fact that no injuries were found to the complainant's genital area. This is not remarkable in view of the complainant's evidence that she was forced to agree to intercourse.

Another submission for the accused is that the complainant did not complain at the earliest opportunity. There was evidence that when the accused drove her back from the beach he let her off at his daughter's house where she spent about 5 minutes before going to her grandmother. It is argued that she should have made some complaint to the accused's daughter. I think it is quite understandable that a young girl of 19 would be reluctant to complain in the presence of the accused and in the midst of the accused's own family. I am satisfied that the complaints which Otana did make were made at the first opportunity and were consistent with the story she has told this court. This is not to say, of course, that the evidence of recent complaint constitutes corroboration.

It was clear from the complainant's cross-examination that her memory of some of the peripheral details of the incident was not clear. For instance, she appeared to have no definite recollection of what time of day certain events occurred. This is not unusual bearing in mind that the offence occurred well over 2 years ago. However, she remembered with certainty what the accused did to her and her evidence in that regard could not be shaken despite a lengthy and capable cross-examination. I had no doubt whatsoever that she was telling the truth.

I made reference earlier to certain evidence which was capable in law of amounting to corroboration of the complainant's evidence and I find that such evidence does in fact amount to corroboration.

It follows that I am satisfied that the prosecution have proved beyond reasonable doubt that the accused had unlawful sexual intercourse with the complainant after obtaining her consent by force, threats and fear of bodily harm. I therefore find the accused Namoua Bengo guilty of the offence of rape contrary to section 128 of the Penal Code and he is convicted accordingly.

THE HON R B LUSSICK
Chief Justice

(27/06/97)

SENTENCE

I am told that the accused is aged 44 and originally comes from Butaritari and Tabiteuea North but has lived on South Tarawa for more than 20 years. Many years ago, prior to Independence, he worked as a carpenter for the Development Authority. Since then he has relied on a subsistence lifestyle, mainly fishing. His first wife died in the 1980's and he married again 6 years ago. From that union there are 3 children with ages ranging from 5 months to 5 years. The accused has no previous criminal convictions.

This offence has some aggravating factors. The accused used a stone as a weapon to not only frighten the victim but actually wound her as well. Prior to that happening, the accused had expressed her abhorrence at the thought of having sexual intercourse with a relative, whom she thought the accused to be. What happened to her must have been a frightening, humiliating and altogether traumatic experience. I was able to observe that even today the memory of it still tends to upset the victim. Thankfully there does not seem to be any evidence of a lasting injury but I have no way of saying what, if any, was the emotional damage suffered.

The accused has demonstrated no remorse at all for what he has done. The only thing that can be said in his favour is that he does not have any previous criminal convictions.

In the case of Roberts v. Roberts 1982 Cr. App. R. (S) 8 the Lord Justice said that in cases of rape a custodial sentence is necessary for a variety of reasons. First of all to mark the gravity of the offence. Secondly to emphasise public disapproval. Thirdly to serve as a warning to others. Fourthly to punish the offender, and last, but by no means least, to protect women.

I think in this case an appropriate sentence is a term of imprisonment for 6 years and the accused is accordingly convicted as sentenced to 6 years' imprisonment.

THE HON R B LUSSICK
Chief Justice

(27/06/97)