Republic v Tetara [1998] KIHC 76; HCCrC 44 of 1997 (29 April 1998)

THE HIGH COURT OF KIRIBATI

HCCrC 44/97

THE REPUBLIC

v.

ATANIMOA TETARA

(BEFORE THE HON R LUSSICK C.J.)

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

Date of Hearing: 27 & 28 April 1998

JUDGMENT

The accused has been indicted on the following two counts:

Count 1

Statement of Offence

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

Particulars of Offence

ATANIMOA TETARA on the 12^th March 1997 indecently assaulted a four year old girl - Karanga Matauea at Morikab village, Abaiang island.

Count 2

Statement of Offence

ATTEMPTED DEFILEMENT of a girl under 13 years of age contrary to section 134(2) of the Penal Code, Cap. 67

Particulars of Offence

ATANIMOA TETARA on the 12^th March 1997 attempted to have unlawful sexual intercourse with a four year old girl - Karanga Matauea at Morikao village - Abaiang island.

He has pleaded guilty to the more serious offence of indecent assault (liable to imprisonment for 5 years) taut not guilty to the lesser offence of attempted defilement (liable to imprisonment for 2 years).

The principal witness for the prosecution was the victim's mother, Nei Tiri Tekaei. She was the only one who allegedly witnessed the incident. The victim was aged 4 at the time of the alleged offence and did not give evidence.

Nei Tiri testified that on the day in question she was returning home from work when, about 4 paces away from her house, she heard her daughter crying. She stood in the doorway and saw the accused with his pants down lying on top of the girl, who also had her pants down. She said that she shouted at the accused and he jumped up. According to her evidence, she had seen the accused with his penis in his hand trying to direct it into her daughter's vagina. I have some doubt about the accuracy of that evidence. It is unlikely that the accused could have done that in full view of the witness, and equally unlikely that she would have had time to see him doing it before she interrupted him. Furthermore, she did not report the matter to the police until 3 days later, and it was only upon the advice of the police that she had her daughter examined by a medical assistant. One would have expected a mother who had witnessed the scene she described to react with more urgency. She agreed that the accused had told her that it had not been his intention to have sexual intercourse with her daughter.

About 6 or 7 paces away from the alleged incident, several adults were gathered in a kitchen. One of them, Tekinoa Tekaei, gave evidence that he heard the mother shout from the house, "What are you going to do with the child?" He had not heard the child crying but he said that when he saw her come out of the house "she looked as though something had happened".

Police constable Kaitangare Nantoka testified that he obtained a cautioned statement from the accused. In the statement, the accused denied any intention to have sexual intercourse with the girl. He told the police that he and the girl were still clothed when the mother arrived. He admitted, however, that if the mother had not come when she did he had intended to have "bwanna" or simulated intercourse with the girl by rubbing his penis between her thighs.

A medical assistant gave evidence that he examined the girl 3 days after the alleged incident and found that her breasts were slightly swollen, that there was a bluish discolouration to the labia majora and that there was a superficial laceration to the labia minora. In the accused's cautioned statement he had described how the girl was "acting like a sexy girl" and "crashed her vagina" against his erect penis. The medical assistant was of the view that the discolouration could have been caused by either a finger or a penis, but that the superficial laceration could only have been caused by a finger. He changed this evidence later in re-examination by saying that the laceration was caused by a penis but, in my view, his earlier testimony was more probable.

That concluded the evidence for the prosecution. I found that there was a case to answer and the accused elected to say nothing and not to call any witnesses.

It was submitted for the accused that the evidence does not establish beyond reasonable doubt that the accused intended to have sexual intercourse with the girl.

I remind myself that the prosecution bear the onus of proof beyond reasonable doubt from first to last. The prosecution must prove the charge, and each element of the charge, beyond a reasonable doubt, and if it fails to do so then the accused is entitled to be acquitted. There is no onus on the accused at any stage to prove his innocence.

The law of attempt is governed by section 371 of the Penal Code Cap. 67. It is clear from that provision that a person cannot be convicted of attempting to commit an offence unless it is proved to the required standard that he had an intention to commit the offence.

I find that the evidence given by Tekinoa Tekaei and by the medical assistant was not inconsistent with the explanation given by the accused in his cautioned statement. Certainly, the evidence of the medical assistant allows the inference that the accused did more to the girl than he admitted to, but it did not necessarily point to attempted defilement as against indecent assault.

What it comes down to is that the case for the Republic depends upon my acceptance that the evidence of its principal witness, the victim's mother, was true beyond a reasonable doubt, notwithstanding the unsworn denial by the accused. As already mentioned, I had a doubt about that evidence. Considering such evidence in the light of the rest of the evidence, I find that I still have a doubt. It follows that I cannot be satisfied that the prosecution have proved beyond reasonable doubt that the accused intended to have sexual intercourse with the victim.

I therefore find the accused not guilty of the offence of attempted defilement contrary to section 134(2) of the Penal Code and he is acquitted accordingly.

THE HON RB LUSSICK
Chief Justice
(29/04/98)

SENTENCE

As already mentioned, the accused has pleaded guilty to the charge of indecent assault contrary to section 133(1) of the Penal Code Cap. 67 in that on the 12th March 1997 he indecently assaulted Karanga Matauea, a 4 year old girl, at Morikao village, Abaiang island.

The girl was found to have some discolouration and a laceration to her vagina. The Accused claims he cannot explain these injuries since he was only lying on top of the girl. In my view, there is no other logical explanation but that the accused caused such injuries, probably by interfering with the victim's vagina, either by using; his finger, or by pressing his penis against her or a combination of both.

I am told that the accuser is aged 19, is single, and comes from the island of Abaiang, where he leads a subsistence lifestyle. This is his first criminal offence.

A very serious aggravating feature is the very young age of the victim. The injuries suffered were minor. Indeed, there is no evidence that they required treatment and the victim's mother did not even have her examined until 3 days after the incident. Nevertheless, the injuries show that some degree of force was used. There was no medical evidence or other evidence which would enable me to say that the victim is suffering from continuing ill-effects from what must have been a distressing experience.

In favour of the accused, he has pleaded guilty and is a person of good character.

I think the circumstances of the offence are such that the appropriate penalty ought to be a term of imprisonment. Taking everything into account, the accused is convicted and sentenced to imprisonment for a term of twelve (12) months.

THE HON RB LUSSICK
Chief Justice
(29/04/98)