Republic v Atauea [1998] KIHC 8; HCCrC 26.96 (2 February 1998)

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

Criminal Case No. 26 of 1996

THE REPUBLIC

vs

ATATA ATAUEA

For the Republic: Ms Pole Tebao
For the Accused: Mr Banuera Berina

Date of Hearing: 26, 27, 28 & 28 January 1998

JUDGMENT

The accused is charged with indecent assault on a female contrary to section 133(1) of the Penal code Cap. 67 in that on the 3^rd August 1996, at Nawerewere, South Tarawa, he did unlawfully and indecently assault a woman named Marina Antonio (the complainant).

The complainant is a trainee nurse aged 21. Her evidence was that on Friday night the 2^nd August 1996 she went to a dance at the National Bar with some other trainee nurses. At around 5.00 am they got on a pick-up to return to the hospital at Nawerewere. Also on the pick-up were some others who had been to the dance, including the accused, who was not known to the complainant, and a man named Taia, who was a friend of the nurses.

They alighted from the pick-up outside the hospital and she and Taia were walking towards the hospital gate when they were joined by the accused. The accused said to her: "So you are the sister of Koura". He then tried to touch her but she slapped his hand away. At that stage, Taia walked off to have a cigarette, so she went to sit on a log beneath a breadfruit tree. The accused began to bother her. Then he put his arms around her and carried her away to his raised-floor house (kiakia). She called out to Taia and struggled to free herself, without success.

The accused managed to get her to his kiakia and he kept her there until very late in the morning. During the time she was there, despite her resistance, the accused touched her breasts, kissed her on the mouth, kissed her breasts and attempted to remove her panties.

At one point, she told the accused she was thirsty, so he called out to a small child to get her a drink. Later in the day, his sister called to him and he went to see her. While he was gone she looked for her shoes and also her hairpin, as her hair was untidy. She then left the kiakia with the accused and went to an eating area where she was given food by members of his family. She greed to eat only after the accused had assured her that she could leave once she had eaten. Finally, she was allowed to leave after she had asked the accused to walk her to the road and promised to meet him again that night. She said this only to get away from him.

When she returned to the nurses' dormitory she went to a room where there were three other trainee nurses named Turaang, Teena (who both gave evidence) and Tiroia. She told them what had happened to her. She was called to see the warden, who was responsible for the discipline of the nurses, and the warden took her to the police after hearing her story.

The cross-examination of the complainant highlighted several curious aspects of her evidence. According to her, the accused had become objectionable even while Taia was still present. Yet when Taia left, she did not go with him, did not walk to the hospital gate by herself, and did not try to join any of the other nurses or attract their attention. Instead, she chose to sit under a breadfruit tree where the accused was able to join her. When, as she claims, she was being carried away by the accused she called out to Taia, but what she called out was: "Taia, you are showing off. I feel like stabbing you in the head". She also shouted several other curses at Taia. But she did not ask him for help and she did not call to Taia that she was being abducted. On their way to the accused's kiakia they passed within a few paces of several houses, yet she did not call to the occupants for help. After arriving at the kiakia she again failed to call out for help, even though there were other houses very closeby. Nor did she make any complaint to the person who brought the drinks. Later on, a man named Konene called at the kiakia and spoke to the accused. Konene owns a store almost opposite the hospital gate and is known to the complainant, yet she did not give any indication to him that she was distressed or that she was there against her will. She agreed that when she stepped down from the kiakia to have a meal she smiled at the people who were waiting for her, although she claimed she just pretended to smile. She also agreed that she knew when she was the accused's home that the warden would be angry with her for coming back late.

It also emerged from cross-examination that, before taking her to the police, the warden took her to see a social worker named Tourakai. The complainant said that Tourakai was able to see a bruise on her arm. She went to see a doctor after giving a statement to the police. In fact, she gave three statements to the police but failed to mention in any of them that she had suffered an injury. Also, no evidence of a medical examination was produced.

Teena Kum Kee, a trainee nurse, gave evidence that she travelled back from the dance in the same pick-up as the complainant. As she was walking to the hospital gate she turned and saw the complainant and the accused under the breadfruit tree. They were pulling each other's hands and witness had the impression that they were playing a game. There was nothing in the evidence of this witness to show that the complainant was in any distress. Certainly the complainant did not call out to the witness or try to signal her. The witness said that the next time she saw the complainant was in the afternoon in the nurses' dormitory. Also present were Turaang and Tiroia. The only thing the witness noticed about the complainant was that her hair was untidy. The witness made no mention of hearing any story from the complainant.

Another trainee nurse, Turaang Amitong, testified that when the complainant came to the nurses' dormitory that afternoon she had tears in her eyes. Her hair seemed to have been tied up anyhow. She had a love bite on her neck and a scrape on her arm. The seat of her white shorts was dirty. The witness said that the complainant told her what had happened to her.

The next prosecution witness was the warden, Teneke Tira, a woman aged 40. She gave evidence that when the complainant came to see her that afternoon she had tears in her eyes. The witness saw that she had a mark on her neck and a scrape on her arm, or it might have been her leg. Her hair was in a mess.

The witness was cross-examined on a statement she had given to the police on 27 January 1998, i.e. the day before she gave her testimony in court. In that statement, she had not expressed any doubt that the injury she had seen on the complainant had been to her knee.

The last prosecution witness was the social worker Tourakai Ukenio. He recalled that the complainant had visited him at his home in Betio accompanied by the warden and another person. They were seeking some advice about an indecent act done to the complainant. He remembered that she had a mark on her neck and a scrape on her knee (not her arm). He advised them that if they wished to file a complaint it would first be necessary to obtain a report from a doctor.

That completed the case for the prosecution. The accused elected to give evidence. He also called three witnesses.

The accused is a man aged 30. He is a navigator on a merchant ship. He did his training in England and had only been back in Kiribati about a week when the alleged incident occurred.

His evidence was that when the pick-up arrived at the hospital the complainant and Taia got off before him. He knew Taia but had only met the complainant at the dance. He called to them and they stopped. Taia told him that the complainant's brother was married to his (i.e. The accused's) sister. In Kiribati custom that means that the counterparts, i.e. the complainant and the accused, may also marry.

He asked Taia to leave them alone and they then had a discussion. He did not try to touch her and she did not slap his hand. At the end of the discussion she agreed to come home with him. They walked side by side to his kiakia. After they arrived they did engage in intimacies but everything was done with her consent and she enjoyed what they did. At no time did she struggle or shout out.

There were occasions when he left the kiakia. When somebody brought food, the complainant left the kiakia to go to the eating place. After eating she left for the nursing home. She asked him to go with her as far as the store and then she went on alone.

Before parting, they made an appointment to see each other at the store that evening at 7.00 pm. However, he was late for the appointment, arriving at the store between 7.30 and 8 pm. The complainant was not there. He then went back home to prepare for the dance that evening in the hope he would see her there. While he was doing that, he received a telephone call from the police informing him that a complaint had been made against him. He was shocked. The next morning he went to the police station and gave them a statement and later an additional statement (these statements were not put into evidence by the prosecution).

The next witness called by the defence was Taia Tiaoti, aged 23. He was the person referred to in the complainant's evidence as a friend of the nurses. He testified that when he got off the pick-up the accused and the complaint had already alighted and were walking ahead of him holding hands. When he left them, they were sitting down. He said "goodbye" to the complainant and she replied, "Goodbye, see you tomorrow". He did not see that the complainant had any problems.

He was cross-examined on a statement he had given to the police which was at variance with his evidence. In that statement he had stated that he and the complainant were walking ahead with the accused following. That does not seem to be a disparity of any significance. Apart from that, what he told the police was consistent with his sworn evidence. He said in his statement that the accused and the complainant were holding hands and when he left them they were sitting under a breadfruit tree. There was no mention of the complainant being in any difficulty.

Next to give evidence was the elder sister of the accused, Kamwea Atauea, aged 40, who is an executive officer with the Public Service Office.

She told the court that on the morning in question she was awoken at about 6 o'clock by the sound of footsteps. Her house is quite close to the kiakia of the accused; she estimated a distance of about 15 feet. A path which runs from the main road to the accused's house passes within 6 feet of her house. She looked out and saw the accused and a girl walking towards his kiakia, although she admitted when cross-examined that she was unable to see how they were walking. She woke her husband Konene to tell him that there was a girl with her brother. She arranged for her younger sister to take some clothes to the complainant so she could bathe and change. Later, the witness went to the kiakia and stood above the couple. She wanted to see the complainant's face. She noted that the complainant looked happy. She asked the complainant if she had changed her clothes and the complainant replied that she had not. A meal was also provided.

The younger sister of the accused was the next and last to give evidence. She was Tetino Atauea, aged 26.

She testified that as she was going out to cook that morning the accused called to her from his kiakia and asked, "Mix us some cold toddy". She did so and took it to him. She was surprised to see he was with a girl. The girl was looking down and combing her hair. The witness said to her, "Miss, here is your drink" but the girl kept combing her hair and just said "OK". The witness later returned with some new clothes and said to the complainant, "Miss, I've got your clothes. Let's go for you to bath". However, the complainant just said "yes" and bent over again. The witness thought that she must have been shy. The witness then cut up bread for their breakfast and told them to go and eat. The witness then went to the family's other house and when she returned the complainant had gone.

That was the conclusion of the case for the defence.

There is no onus on the accused at any stage to prove his innocence. The burden of proof beyond reasonable doubt remains upon the prosecution from first to last.

One thing which is essential for the prosecution to prove beyond reasonable doubt is that what the accused did to the complainant was without her consent, for if she consented then the accused's actions were not unlawful and no offence was committed.

The evidence called by the defence was consistent with the complainant having consented to what took place. I am aware that two of the witnesses were sisters of the accused, but nevertheless they impressed me as truthful. However, there could be no question that the witness Taia Tiaoti was impartial. If anything, he was a friend of the complainant, or at least that is what she told the police in her statement dated 8 October 1996 (exhibit 2). As I have already indicated, there are parts of the complainant's own evidence that can be regarded as not consistent with a lack of consent.

Looking at the whole of the evidence, I find that I am unable to say that I am satisfied beyond reasonable doubt that an offence was committed.

The accused is therefore found not guilty and acquitted accordingly.

Dated the 2^nd day of February 1998

THE HON R B LUSSICK
CHIEF JUSTICE