Republic v Teangabure [2000] KIHC 2; CRC 07 of 1999 (9 June 2000)

IN THE HIGH COURT OF KIRIBATI

CRIMINAL CASE N0. 7 of 1999

THE REPUBLIC

v.

BUREUA TEANGABURE

FOR THE REPUBLIC: MR TION NABAU
FOR THE ACCUSED: MS JOANNE FLEER

DATE OF HEARING: 5 & 6 JUNE 2000

JUDGMENT

The accused, Bureua Teangabure, a man of 30 from Eita village on Tabiteuea North, married with 5 children, is charged with attempted rape and indecent assault. These are the particulars:-

Count 1 ...... Bureua Teangabure on the 8th December 1998, at Eita village, on the island of Tabiteuea North, attempted to have unlawfully (sic) sexual intercourse with Nei Tara Bwebwe without her consent

Count 2 ..... Bureua Teangabure on the 8th December 1988, at Eita village, on the island of Tabiteuea North indecently assaulted Nei Tara Bwebwe.

Nei Tara Bwebwe was born on the 20th March 1987 so she was 11 years old at the time and is now 13.

There was no question of her fitness to take an oath and to give evidence. I am satisfied she was trying to tell the truth and that her evidence was accurate. I therefore accept her account of what happened.

Likewise with her grandmother Nei Maiango Etekiera, a woman in her 50's, with whom Tara was living. I accept Nei Maiango's evidence as being truthful and accurate.

On the evening of the 7th December (in my notes I have, for both Tara and Maiango "November" and not "December" - I think this must be my error of transcription: in any case it would make no difference) Tara had been to watch a film. She came home and went to sleep. After some time, may be about 2 o'clock on the morning of the 8th December her grandmother woke her up telling her to go with the accused, who was there, to sleep beside a relative, Nei Tutara, with whom she had slept before. This woman lived a little way away. Maiango told Tara to get on the accused's bicycle: he would take her there. Tara did so but, she said, the accused took her not to Tutara's house but to a deserted house belonging to Temata. This is my note of her account in her examination in chief of what happened:-

While I was asleep I was woken up by Maiango: she woke me and told me to sleep beside Tutara - she's our relative. Told me to get on to bicycle belonging to Bureua. I know him. I saw him. The condition of light - it was a bright night, full moon .... The accused pulled me up on to raised floor house - he took off my pants: he took off his pants. He got on top of me: he started thrusting his hips. I was not happy when he did that to me. He tried to insert his penis in my vagina. I cried: he blocked my mouth. I struggled. I was trying to run away: I didn't manage: there was nowhere I could escape. Bureua was on top of me while he blocked my mouth...... He released me. He told me to go and sleep beside Tutara and the others but I went back to Maiango, my grandmother. I told her that the accused had not taken me to Tutara's but had taken me instead to Temata's house. She took me to clinic.

In cross examination by Ms Joanne Fleer for the accused Tara said it happened on the buia. "I closed my legs: they weren't closed the whole time. I did not at any time open my legs. A time when my legs were open I kept my legs closed." I am not concerned about this ambivalence. Here was a young girl of 11: she was being attacked by a man, obviously powerful: that she says both that her legs were open and that they were closed is not surprising. The picture I have is of Tara struggling to keep her legs closed and sometimes succeeding and of the accused trying to press them open and sometimes succeeding.

After the clinic Tara went with the Police to where she said it had happened. She saw sperm there. This piece of evidence came out in cross examination. Ms Fleer took it no further: in the absence of anything more about it or of any cross examination about how an 11 year old girl would know what sperm was I accept that there was sperm still on the floor of the buia some few hours after the events Tara recounted. The explanation may be that the accused prematurely ejaculated when attempting to have intercourse, lost interest and that is when he allowed Tara to leave.

My note of the evidence-in-chief of Nei Maiango Etekiera:-

Around 2 o'clock in the morning we were asleep. Accused came to take her, Tara. I recognised him, full moon. He told me he'd come to take Tara to sleep with Tutara, his niece. Identifies accused. I woke her up to accompany him. Over an hour later I decided to go and see my granddaughter and was surprised to find her coming home ....... Tell me what happened, Where did you go?" "He took me to Temata's house". "The house is deserted. That's why he took you there. Tell me exactly what happened"....... She said she'd been taken to the house and sexually assaulted against her will. "How did you escape?" "Whilst he was on top of me and blocking my mouth I was struggling. Perhaps he had climaxed so he lay down beside me and that's how I managed to escape"....... She was in great distress, coughing and acting unusually.

In cross examination Nei Maiango said she wasn't sure when the accused arrived whether or not he'd been drinking. He is her nephew. She did not think he would do what Tara said he had done because he and Tara were related. Later Tara approached Nei Maiango saying, "it was my fault for having sent her along". She denied that there was bad blood over land between her and her family and the accused. She "never hated him, our nephew: used to visit us."

The last prosecution witness was the medical assistant, Nei Tikua Tekitanga who examined the girl very early that morning. Her report is an exhibit. These are her notes:-

Brought to me at Utiroa Health Centre by her grandmother round about 2.30 am Tuesday 8.12.98 with history of Sexual abuse (rape). On arrival, patient was fully conscious, well orientated (pt answering questions very well). On examination: Inferior view - Mons pubis, prepuce of clitoris labia major and minora, external urethral orifice all normal, no foreign body, no foreign pubic hair, no semen found. Clitoris - few abrasion marks seen, very slight bloodstained on abrasion marks seen, no severe bleeding. Hymen - intact, smooth and clean, fourchette - slight tear (nick), no bleeding seen, no foreign body found. Treatment - nothing given.

Nei Tikua told me that the injuries were "quite fresh as there was blood on them." She was adamant that the injuries had been caused by a "blunt instrument". She did not think they would have been caused by a fingernail. "Injuries in women in this area more likely to be caused by sex".

That is the lady's opinion. I do not accept it. As a matter of common sense I think it likely that the accused caused the injuries in trying to open the girl's legs to insert his penis.

I accept that Tara did have the injuries the medical assistant described.

The accused gave evidence in his defence. He absolutely denied having any part in the events at all. If it happened then the perpetrator was someone else. There had been tension with Maiango.

They are making the story up so I can be taken away and the land will be left to them.

Ms Fleer had three arguments for her client:-

1. It didn't happen at all: the prosecution witnesses have made it up to get rid of the accused,

2. If it did happen, then it was someone else, not the accused: the prosecution witnesses have put it on the accused to get rid of him, or

3. If it were the accused then there was no attempted rape because the girl kept her legs together. [Ms Fleer did concede, I think, that the facts amounted to an indecent assault.]

I reject all three arguments. I believe Tara and her grandmother when they say they recognised the accused as the man. I believe Tara's account of what happened. I have no reasonable doubt about it. I do not believe the accused in his denial that he was the man.

It was an attempt at rape. As I remarked to Ms Fleer one cannot enter a man's mind to find out his intention: one must deduce it from his actions. The actions of the accused were those of a man attempting to have sexual intercourse with a girl. Whether she kept her legs closed or he was able to open them doesn't matter: he was already engaged in the attempt to insert his penis into her vagina.

In making these findings I have kept in mind that the onus of proof beyond reasonable doubt is and always remains on the prosecution. That onus has been discharged. All elements of the crime of attempted rape have been proved to me beyond reasonable doubt.

The charge of indecent assault is an alternative to attempted rape. The accused cannot be guilty of both: the less serious charge is swallowed up in the more serious.

I find the accused guilty of attempted rape.

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE
(9 JUNE 2000)

SENTENCE

Bureua Teangabure: I have found you guilty of attempted rape, the maximum penalty for which is 7 years' imprisonment.

The facts are in my Reasons for convicting you and I shan't repeat them.

Ms Fleer told me yesterday that you have in the last few months become a member of the Church of God, due to the influence of a lady with whom you would like now to settle down. The Church is aware of your criminal record. Ms Fleer also told me that you have not been drinking alcohol since last October.

Both lawyers referred me to other cases of rape or attempted rape and the penalties imposed. Each case must be decided on its own facts: these other cases have been a helpful guide but no more. In some of them the defendant had pleaded guilty and that was taken into account in his favour. I cannot do that for you as you chose to deny altogether that you were concerned in this incident and went to trial.

There are 2 things which increase the seriousness of what you did. The first is that the victim was a girl of 11. The second is that her grand-mother trusted you and gave her into your care in the middle of the night. You abused the trust.

On the other hand although she struggled against you she did not suffer any significant physical injury. She was, however, distressed by what you did.

You have quite a long record of offending, beginning in 1990. You have been to prison many times.

This time you will be imprisoned for 3½ years to run from last Monday 5th June when I revoked your bail.

THE HON ROBIN MILLHOUSE QC
Chief Justice

(9 June 2000)