Republic v Aroito [1999] KIHC 15; HCCrC 20.98 (3 March 1999)

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

HCCrC 20/98

THE REPUBLIC

versus

KAIETARO AROITO

Mr T Tabane for the Republic
Ms J Fleer for the Accused

Date of Hearing: 1 March 1999

JUDGMENT

The accused has pleaded not guilty to a charge of indecent assault on a female contrary to section 133(1) of the Penal Code Cap. 67. The particulars are that on 16 September 1997 at Utiroa, Tabiteuea North, in the Island Council Rest House he unlawfully and indecently assaulted a female named Tura Boubou.

At the time of the alleged offence the complainant was an assistant clerk with the Council and the accused was the Chief Councillor.

The complainant, a woman aged 36, gave evidence that on the day in question she had been recording the minutes at a council meeting. She wanted to go to the toilet. To get there she had to leave the lounge where the meeting was being held and pass through an open doorway into the dining hall. She said that when she reached the doorway she found it blocked by the accused, who was apparently not at the meeting at that stage. He told her to go back to the meeting. She refused and tried to push past him. A struggle ensued with the accused pushing her with both hands and she responding in the same way. While this was going on the complainant said that the accused held her right breast in his left hand and squeezed it. It was at that stage that she smelled liquor on his breath and realised he was drunk.

She then went out another exit and told her husband. She was crying at this stage. She also went back to the meeting and told the councillors and then reported the matter to the police. In the course of cross-examination, she was asked this question:

"Is it possible that he merely grabbed you on the breast in the course of trying to push you away?"

Her answer was: "If his hand had slipped I would not have minded but his hand went onto my breast and squeezed it".

The next prosecution witness was Kureiti Tabaeko, a woman aged in her 30s. She testified that she was sitting at a table in the dining hall. She said that the accused was there. He was drunk and was drinking from a bottle of alcohol. The witness gave evidence that she saw Tura attempt to come into the dining hall from the lounge but the accused blocked her way. The witness gave evidence of the struggle which followed, during which she saw the accused reach out a hand and hold Tura's breast. She said that Tura then went outside crying.

The third and last witness for the prosecution was Teorabuti Teekea, aged 56, who was a councillor at the time and had been at the meeting. He testified that he and the other councillors were surprised to see Tura crying and when they asked her what had happened she told them that the accused had done something very indecent; he had touched her breast. The witness said that when the police came to arrest the accused his speech was slurred and he was drunk.

That completed the case for the prosecution.

I found that there was a case to answer, and the accused elected to remain silent. He did not call any witnesses.

I then heard addresses from counsel for the Republic and counsel for the accused in that order.

Before considering the evidence I must direct myself that the burden 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 a reasonable doubt and if it fails to do so then the accused is entitled to be acquitted. There is never any onus on the accused to prove his innocence.

To discharge that onus in the present case the prosecution must prove beyond a doubt:

(i) that the accused intentionally assaulted the victim;

(ii) that the assault, or the circumstances accompanying it, are capable of being considered by right-minded persons as indecent; and

(iii) that the accused intended to commit such assault as is referred to in (ii) above (see R. v. Court (1988) 87 Cr.App. R.144 and Archbold 1992 Vol. 2 para 20-74).

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

Having said that, I found the complainant to be a credible witness who emerged from cross-examination unshaken. Her evidence was corroborated by the second prosecution witness. She obviously could tell the difference between having her breast accidentally pushed and having it deliberately held and squeezed, as, I imagine, could any woman. Her description of the incident eliminates any possibility that what the accused did was accidental.

I am satisfied beyond a doubt that force was applied to the complainant by the accused without her consent, that the assault was indecent, and that the accused intended to commit it.

The charge against the accused of indecent assault has thus been proved beyond a reasonable doubt. Accordingly, he is found guilty and convicted.

THE HON R LUSSICK
CHIEF JUSTICE
(03/03/99)

SENTENCE

I am told that the accused is a 33 year old married man with 5 children. He was Chief Councillor at the time of this offence but has voluntarily resigned from that position. He still holds the position of councillor. He has also worked as a catechist for a period of 2 years.

This type of offence must be regarded as serious. However, the circumstances of this particular case, in my view, places it towards the bottom of the scale of gravity. By saying that I, by no means, intend to make light of what the accused did. He and the complainant had been engaged in a push-and-shove struggle and the accused obviously gave way to a moment's temptation and committed the offence. No doubt his judgment was impaired by his consumption of alcohol.

He has a previous criminal record. There are 4 offences on that record and the first 3 are obviously alcohol-related. I am told that the first 3 offences occurred when the accused was only 15. However, when that record is considered in the light of the facts of the present case, it appears that the accused has an alcohol problem and has had one for many years. That is something that the accused is going to have to exercise some self discipline about in order to cure it. He has got into serious trouble on this occasion and may do so again if he does not do something about it.

It does not appear to me that the accused has shown any remorse at all for what he has done, although I am told by his counsel that he has made several attempts to apologise to the complainant.

This type of offence normally attracts a penalty of imprisonment. However, having regard to the circumstances, it is appropriate in this case to deal with the matter by way of a fine. He is convicted and fined $250. That must be paid on or before 6 April 1999, in default 2 months' imprisonment.

THE HON R B LUSSICK
CHIEF JUSTICE
(03/03/99)