Republic v Baraiti [1998] KIHC 72; CRC 19 of 1997 (10 February 1998)

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

HCCrC 19/97

THE REPUBLIC

v.

TEMAKE BARAITI

Ms T Beero for the Republic
Mr D Lambourne for the Accused

Date of Hearing: 3, 4 February 1998

JUDGMENT

The accused has pleaded not guilty to the following two counts:

Count 1

Statement of Offence

RAPE contrary to Section 128 of the Penal Code, Cap. 67.

Particulars of Offence

TEMAKE BARAITI on or about 21^st May 1995 at Utiroa village, Tabiteuea North had unlawful sexual intercourse with a girl named Teewa Kourabi without her consent.

Count 2

Statement of Offence

INDECENT ASSAULT contrary to Section 133(1) of the Penal Code, Cap. 67

Particulars of Offence

TEMAKE BARAITI on or about 21^st May 1995 at Utiroa village, Tabiteuea North unlawfully and indecently assaulted a girl named Teewa Kourabi.

The complainant, Teewa Kourabi, gave her present age as 18, so that she would have been 15 or 16 at the time of the alleged offence.

Her evidence was that on Sunday night the 21^st May 1995 at around midnight she was sleeping in her parents' raised floor hut (buia) with a small child when she felt someone lifting her up. She thought it was her father carrying her back to the buia where she normally slept.
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The person carrying her tripped on a root of a breadfruit tree and they fell down.

It was then that she became fully awake. There was a hand over her mouth and a knife at her throat.

The person whom she identified in court as the accused dragged her away to a place some distance from her house. He did this by placing one hand over her mouth and twisting his other hand in her hair. He evidence did not make it clear what had happened to the knife but she did not mention it again during her evidence in chief.

He took off her clothes against her will, forced her to lie down and had sexual intercourse with her, after threatening that he was going to kill her. He later had sexual intercourse with her again; in fact she said that they had sexual intercourse "lots of times" and that her vagina was painful. He also performed oral intercourse on her. She said that she did not resist this as she was afraid.

She went on to say that when the accused told her to put her clothes on so that they could leave, she refused. She explained this peculiar reaction by saying that the accused told her that they were going to his house which was a long way away, and she did not want to go there.

They walked into the village and she squatted under a tree while he went to get his bicycle, which he had left near her house. This would seem to have been a good opportunity to escape. Her explanation for failing to do so was that she was afraid that if she ran away and he caught her he would kill her.

She said that the accused returned without the bicycle, which had not been where he had left it. They then walked towards the house of his cousin. Near the house he again had sexual intercourse with her despite her protests. After he had done that, he told her to remain where she was while he went to ask Nei Anna about some drinks. She stayed there until she heard him calling out to Nei Anna's husband Itaaka.

She then ran to the house of Boubou and told him she had run away from Temake. Boubou invited her into his buia. She said she was crying at that stage. She went to sleep beside Boubou's wife but woke up later when a police car arrived with her mother. The police went from there to look for the accused while she and her mother returned home on a bicycle.

That completed her evidence in chief.

It should be mentioned here that although the complainant's evidence recounts several instances of rape, the offence for what the accused has been charged is the first incident referred to in the complainant's evidence.

It emerged from cross-examination that three days after the incident she had given a statement to the police which was inconsistent with her sworn evidence in several respects.

The most important of these was that she made no mention to the police that the accused had been in possession of a knife on the night in question. I must say that it is difficult to understand how she could have forgotten such an important detail. She also conceded that when she went to Boubou's house she did not complain that the accused had raped her, but only that she had been carried away by the accused.

The next witness to give evidence was complainant's mother, Katoataake Kaoma.

On that night, she had been in another house with some friends. Going on to midnight she heard the sound of barking dogs coming from the direction of her house, so she went to investigate. She saw that the mosquito net was loose and that her daughter had gone. She called her husband and some other people, and a search was made.

Her husband found a bicycle beside his house and took it inside. The bicycle was readily identified by some neighbours as belonging to the accused.

About an hour later she saw the accused and Itaaka near her house. They were looking for the bicycle. According to the witness, both she and her husband asked the accused if he had taken their daughter away. He denied it and blamed another man named Roobu.

She and her husband eventually found out that the complainant was at Boubou's place and they went there. When the witness arrived the complainant was awake and lying inside a mosquito net with Boubou's wife. The complainant told her that the accused had taken her away and raped her. She noticed that the complainant's hair was untidy and her dress was dirty all over.

She met the accused two days after this incident and asked him whether he had made any advances towards her daughter after he had led her away. He replied that he was not the first man to have had sex with her daughter.

She agreed when cross-examined that the day after that conversation with the accused in which he admitted having had sex with her daughter, she went to the police and gave them a statement. She admitted that she did not mention the conversation with the accused in her statement. She also admitted that her statement made no mention of the complainant telling her she had been raped when she saw the complainant at Boubou's house. All the statement says is that the complainant told her that it was the accused who took her away while she was sleeping.

The third witness for the prosecution was Boubou Kitei, a man aged 69 and a member of the unimane of the village Utiroa.

He said that on that Sunday night he heard the complainant calling his name in a sorrowful voice. He saw that her dress was dirty and her hair untidy. She told him that the accused had led her away and done something bad to her. He asked her, "Did he get you?" and she replied, "He did". She sounded very frightened.

Boubou said that he left her inside the mosquito net beside his wife and went to inform her relatives.

He added, when cross-examined, that it is forbidden by custom for a girl to have sexual intercourse before marriage and that if she does so her father would be entitled to punish her severely.

The next and last witness was called at the request of counsel for the accused. He was Detective Constable Bamaere Tiira who was the investigating officer on the case.

He testified that he took statements from the complainant, her mother and the accused.

He agreed that he took the complainant to see the nursing officer on Tab North within a few hours of her being found. He also agreed that he had spent more than three hours in the company of the complainant and had not seen any bruises or injuries on her.

He said that the accused gave him a cautioned statement in which he admitted having sexual intercourse with the complainant but that it had been with her consent.

That evidence concluded the case for the prosecution. No medical evidence was called and the accused's cautioned statement was not put into evidence.

I found that the prosecution had established a prima facie case. The accused elected not to give or call any evidence.

In argument, counsel for the Republic submits that the court should accept the complainant's evidence as corroborated by the evidence of her appearance - she was frightened, her hair was untidy and her dress was dirty – and also by the evidence of the lie told by the accused to the complainant's parents that it had been Roobu who had taken the complainant away.

Counsel for the accused contends that the complainant's evidence was not corroborated and was not capable of satisfying the court beyond reasonable doubt.

Before considering the evidence, I must direct myself that the burden of proof beyond a reasonable doubt remains with the prosecution from first to last. There is no onus on the accused at any stage to prove his innocence. In order to satisfy that burden in the present case the prosecution must prove beyond a reasonable doubt that the accused had either sexual intercourse with the complainant without her consent, or with her consent if the consent was obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm.

It is not contested by the accused that he had sexual intercourse with the complainant. What is contested is that such sexual intercourse took place without the complainant's consent.

As pointed out by counsel for the accused, there were several incongruities in the complainant's evidence. In her statement to the police she made no mention of the accused and herself tripping over the root of a breadfruit tree or, more importantly, that the accused was menacing her with a knife. She said in one part of her evidence that after having been raped, she told the accused that she did not know him, whereupon the accused told her his correct name. That is hardly something that a person who had just committed a serious crime would do. Similarly the evidence that the accused left his bicycle right outside her house is more consistent with a pre-arranged meeting rather than a planned abduction. In a small place like Utiroa it was not surprising that it did not take long to identify the owner of the bicycle. There was also the evidence that at least on two occasions she had an opportunity to escape but did not take it.

As to the question of corroboration I think that in the circumstances of the present case it is going too far to suggest that the lie told to the complainant's parents by the accused that Roobu had taken their daughter away amounts to corroboration of the complainant's evidence that she was raped by the accused.

On the other hand, the evidence of Bubou Kitei was, in my view, capable in law of amounting to corroboration. He testified that the victim came to him with her dress dirty, her hair untidy and that she sounded frightened. However, the dress was only dirty, not torn. The dress was not produced in evidence so I am unable to come to any conclusions in respect of whatever dirt marks may have been on it. Needless to say, there is more than one way a dress can become dirty. Also, more than one inference can be drawn from the complainant's untidy hair, and the same may be said of her frightened voice. In the circumstances, such evidence has very little value as corroboration.

I had doubts about the complainant's evidence. After having considered that evidence in the light of all the other evidence, I find that I still have doubts. It must follow that the prosecution has not discharged its onus of proving beyond a reasonable doubt that what the accused did was without the consent of the complainant.

The accused is therefore found not guilty of the charge of rape and not guilty of the charge of indecent assault and he is acquitted accordingly.

THE HON R B LUSSICK
Chief Justice

(10/02/98)