Republic v Tetaua [2001] KIHC 10; Criminal Case 29 of 2000 (23 March 2001)

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

Criminal Case No. 29 of 2000

THE REPUBLIC

v.

RITATE TETAUA

FOR THE REPUBLIC: Ms Pole Tebao
FOR THE ACCUSED: Mr Neil Allen

JUDGMENT

Before the accused was arraigned, Ms Pole Tebao, prosecuting, applied to amend the Charge. I allowed her to substitute an Amended Charge:-

Count 1

Statement of Offence

Defilement of girl under 13 years of age contrary to section 134(1) of the Penal Code Cap. 67

Particulars of Offence

Ritate Tetaua on or about the 24th August 2000, at Ambo village, on the island of South Tarawa, had unlawfully sexual intercourse with Nei Teinabure Kareinako, a girl aged 3 years old.

Or in the alternative

Statement of Offence

Indecent Assault contrary to section 133(1) of the Penal Code Cap. 67

Particulars of Offence

Ritate Tetaua on or about the 24th August 2000, at Ambo village, on the island of South Tarawa indecently assaulted Nei Teinabure Kareinako; a girl aged 3 years old.

Count 2

Statement of Offence

Kidnapping or abduction in order to subject person to grievous harm contrary to section 244 of the Penal Code Cap. 67.

Particulars of Offence

Ritate Tetaua on or about the 24th day of August 2000 kidnapped or abducted Nei Teinabure Kareinako in order that Nei Teinabure Kareinako may be subjected to grievous harm.

Count 3

Statement of Offence

Causing grievous harm with intent contrary to section 218(a) of the Penal Code Cap. 67

Particulars of Offence

Ritate Tetaua on or about the 24th day of August 2000 with intent to cause grievous harm to Nei Teinabure Kareinako unlawfully wounded or did grievous harm to Nei Teinabure Kareinako.

The accused pleaded not guilty on all 3 counts.

On 24 August, a Thursday, in the latter part of the day the accused – who admitted earlier he had had 2 cups of sour toddy – visited the house at Ambo where Nei Akatia Awiata and her husband Kareinako Tiimau were living. They are the parents of the little girl, Teinabure, the victim named in the charge. The house was owned by Tewareka Tentoa, the late Vice President: the accused was hoping for Tanentoa’s help to find his wife who had left him a few days earlier. Akatia, to whom he first spoke, did not know Ritate but saw his name written on his bike. He had with him a black bag – Akatia called it a hand bag but it is a backpack - and was wearing a pair of brown shorts. All were later exhibited. Inside the bag was a bible with the accused’s name on it and his photo. The accused, when giving evidence, acknowledged the items as his.

Nei Akatia (evidence in chief):-

He asked if we had any fish to eat. I asked if he could wait as he appeared drunk: I was afraid of him and I called my husband watching a video at the motel, quite close. When husband arrived they talked. My daughter went to my husband and the man ...... After they talked I got some food: he asked for money: I gave him 40¢. He left. It was dark. (My notes)

Akatia missed the child and went looking for her, without result. She was found later in the evening. When her mother saw her:-

Child naked, took her to hospital at Nawerewere: there was discharge on her leg. She couldn’t walk after she was found. Unable to talk at hospital – saw bruises to throat and vagina torn to anus. Discharge from her genital area: a little blood. Admitted to hospital ....

Kareinako had been watching a video in the maneaba when, after 5 pm, his wife fetched him to see Ritate:-

The young man said lots of things and he wanted food. He was seated on table: could see him clearly. I didn’t (see) his shirt, only his shorts – brown: daylight – bright .....Accused left 7 o’clock or after.

His wife noticed the little girl was missing and made him search for her. He searched in company with an I-Matang man who had since left the country, and Tawita Kaotia. They went out to the Girl Guide Island (later Tawita said it was Abaokoro Island – which island it was doesn’t matter). The tide was out and they walked on the sand bar:-

I saw the child and blood on her vagina: my daughter. Torches. Naked. The child was just about to get up. I lifted her: she did not speak. Blood on her body, on her throat. Went home quickly. I saw hand-bag and shorts, brown: looked discarded. They were very close to the child. Took them home with the bag: and to the hospital.

Tawita said they found Teinabure about 9 o’clock.

The Republic called Dr Matikora Itonga, a medical officer at the Central Hospital. I received her report:-

Complaints and Duration

Admitting this 4 yr old child – Raped – tonight

---------

O/E

A young girl scared, quiet

Covered with sand and blood all over face

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Laceration of vaginal wall

2 cm long 2 cm deep

fresh bleeding

Signs of recent penetration

A Rape

Dr Matikora in evidence:-

Punch or something to cause swelling to eye. Bruises round neck quite big. Lacerations could have been caused by the penetration.

Needed stitches

The injuries described were grievous bodily harm.

Tebaau Tekabwe lives at Eita. In August last year the accused, married to his daughter, was living there, as well as the accused’s mother and his sister who is married to Tebaau’s son. Tebaau said that on the night of 24 August the accused had not slept at the house: he came home the next morning about 8 o’clock, with two other men. They said they were going to look for the accused’s wife at Buota. Despite vigorous cross examination by Mr Neil Allen for the accused, and evidence to the contrary by defence witnesses, I accept beyond reasonable doubt that the accused did not sleep at Tebaau’s house on the night of 24/25 August.

I have no reason to doubt the accuracy of the narrative of events I have given so far.

Detective Constable Onorio Kabaneiti arrested the accused at a house at Eita about mid day on 25 August. He did not know the accused and asked the accused if Ritate were there. The accused replied that Ritate had gone to Bonriki looking for his wife. Onorio left to speak to his partner. When he came back the accused had run away. Onorio caught him. In evidence the accused explained his flight by saying he thought the police were after him on another matter.

The accused was arrested and cautioned.

Onorio was present about 10 o’clock on the morning of Friday 1 September when Detective Corporal Tekiau Kiareti took a statement from the accused.

Soon after Mr Allen began cross examining Onorio I realised that we were sliding into an examination on the voir dire. Accordingly I said that I would regard the proceedings at that point as being a voir dire hearing.

Onorio denied that the accused did not want to give a statement: Tekiau did not have trouble getting answers.

Tekiau Kiareti gave evidence on the voir dire. Two matters concern me. The first is that after his arrest on Friday 25 August, in the afternoon police obtained a remand warrant from a magistrate. Having the warrant, the police took Ritate back to the Bairiki police station. Tekiau instructed that he was to be taken to the Bairiki gaol:-

Next saw accused, next day, still in cell at police station. I’d instructed officers – ignored. I told officers to drop him off that day at gaol: that pm – still in cell – I saw officer on shift take him. They said they kept on forgetting every time car arrived.

If that is accurate then it shews very bad slackness on the part of the police at the station at Bairiki. Detention at the police station should not have occurred. That it did, despite Tekiau’s explanation, makes me wonder whether it was not part of a “softening up” process before an interview.

Fortunately it was only about a day and the interview was conducted on the following Friday which in the circumstances was not an unreasonable delay. I say no more about the first matter.

The second is much more serious.

Before the interview began Onorio and Tekiau said that the accused was properly cautioned. Yet Mr Allen challenged the admissibility of the statement.

One of the difficulties which a judge sitting without a jury has, is that he should avoid, if possible, seeing material the admissibility of which is challenged. Sometimes one cannot avoid it but it is better if one can avoid it. Sitting with a jury the judge sees all the statements and it doesn’t matter because he is not the decider of facts. Having seen the impugned material it is far easier to rule on questions of inadmissibility.

I was anxious not to see the statement as, if I had, and had excluded the whole or part, it would be difficult to put out of my mind what I had read. I therefore directed Tekiau to read out only the first four questions of the interview [the words in brackets after questions and answers 1 and 3 are, it was suggested in court, more accurate translations into English.]:-

Q1. How do you feel about being interviewed regarding this issue (better translation allegation)?

1. I have no statement at all (better translation – “My statement is not ready at this time”)
   

Q2. Why would a person commit this crime?

1. Which one?

Raping of children.

I am not sure.

Q3. How does a person who did this feel right now? (How would a person feel after doing this act nowadays?)

1. I have no knowledge of it. (I am not sure what the answer is.)
   

Q4. Have you ever thought about committing this offence?

1. Never.
   

I must bear in mind that these questions followed immediately after a caution in which the accused had been told he need not say anything. Yet when the accused said he did not want to say anything Tekiau persisted and eventually wore him down until he began answering freely. That is not fair and should not have been done. The right to silence should be respected: a caution is not just a form of words to be recited and then ignored.

The onus of proving a statement has been made voluntarily is on the party seeking to adduce evidence of its contents. The standard of proof is beyond reasonable doubt. [The standard in Australia is on the balance of probabilities but in England it is beyond reasonable doubt and that then is also the standard in Kiribati.] I could not be satisfied beyond reasonable doubt that the accused gave the statement voluntarily. I excluded it. Otherwise I would have excluded it in the exercise of my discretion as having been unfairly obtained.

During discussion I asked if ever a lawyer were present during interviews. It is rare. In a community where there are so few lawyers it would always be difficult: in South Tarawa it may be possible: on outer islands hardly ever, may be never. The accused had asked for a lawyer before he was remanded on the Friday. It certainly would have been desirable and may have been possible for a lawyer to have been present with him during interview on the following Friday.

That was the end of the prosecution case.

Mr Allen submitted that his client had no case to answer on the principal charge in count 1, there being no evidence of penile penetration. I pointed to the doctor’s notes, admitted in evidence, using the word “rape”: rape implies penetration. I rejected the submission.

The accused gave evidence.

He said that on the night of 24/25 August he slept at Tebaau’s house:-

Slept in his other house with my brother in law, sister, sister’s child. Night before arrested slept with me, my sister, husband and their child.

From his evidence in chief as to the preceding day (24 August):-

Remember evidence of Akatia and Kareinako: I went to their house to visit my MP to ask him for fare to go to Nonouti (as I thought my wife had gone there). I sat down with them at the table. Told them I was looking for Tewareka. Told them problem. MP at house in Bairiki. They gave me food and drink and 50¢. Went to beach on lagoon side to relieve myself. Left my bag and brown shorts on land and went down to beach to relieve myself. When I came back I intended to catch a bus but bag and shorts gone. ------- When I went to the beach I was wearing brown shorts: underneath them white shorts.

He said that he then took three bus rides, although all his money had been in the black bag and stolen: he did not pay a fare on any bus.

I have to say that I found the accused’s account of his movements quite unbelievable. At every point at which he may be tested against the evidence of other witnesses his account fails: an example - he said he went to visit Kameamea Tuuro: Kameamea had given evidence for the prosecution that Ritate had never visited him.

I believe the accused’s account is invention to explain away the most damning evidence – strong circumstantial evidence -against him, of his shorts and his bag being found near the little girl.

The accused did nothing to shake my belief beyond reasonable doubt in the accuracy of the evidence for the prosecution. Nor did the evidence which Mr Allen called on behalf of his client: two witnesses and a statement tendered by consent.

The first defence witness was Nei Tebwea Tebao, the accused’s sister and formerly married to Tebaau’s son. At the time of these events she was living at Tebaau’s house. In examination- in-chief Tebwea said that Ritate had slept there the night before his arrest:-

I know that because he was with us. I slept there.

In cross examination:-

He slept on the night before arrest -------- We ate, talked, went to sleep. Radio still on. We ate about 8 – he was talking before they ate: quite some time. He was there: since early evening – since before it got dark. He went out during the day – came back in the afternoon and was then home all the time until the morning.

In re-examination Mr Allen made a valiant attempt to retrieve the situation as to timing but my note is:-

He went looking for his wife on the day he was arrested. He came back during the afternoon and stayed until the next morning when he went to look for his wife: when he came back he was arrested.

This lady’s evidence contradicted that of other witnesses. Tebwea said the accused came home and stayed home “during the afternoon”.

In contrast:

Her (former) father-in-law had said Ritate did not sleep at home that night but had turned up about 8 o’clock the next morning.

The accused said he was on the beach at Ambo relieving himself when it was dark.

Akatia said the accused had left their house when it was dark: Kareinako said he left at “7 pm or after” by when it would have been dark. In contrast Tebwea had him returning home “during the afternoon”.

I concluded that Nei Tebwea was doing her best to give her brother an alibi. She went too far in doing so and this threw doubt on the accuracy of the whole of her evidence.

Tiikaia Tebaau is Tebwea’s husband. In examination in chief:-

Night before arrest. – he was with us just after 2000. After he came back he was asleep: woke in the morning. I also slept at the house.

Cross examination:-

Day before Ritate arrested – I can’t be sure, I was out that day –fishing. I came home from fishing after 1000 – the day he was arrested – I was out all night.

The cross examination quite negated Tiikaia’s evidence-in-chief.

Finally there was the statement, taken by the police of Raete Tekaabure. It was the effect that one night during the year 2000 the accused had been to the house at Antenon where she lived, looking for his wife. Raete was not more precise. Ritate’s wife had left him some days before 24 August. He could have gone to Raete’s house on any of several nights.

The defence case as a whole, the accused’s evidence and that of his witnesses, did not shake my conclusion that the prosecution proved its case beyond reasonable doubt.

After Mr Allen closed the defence case Ms Tebao applied to call evidence in rebuttal. I enquired the nature of the evidence: it was to shew that the accused had not slept at home on the night of 24/25 August. The prosecution had called some evidence to that effect (the evidence of Tebaau): to call further evidence on the point would be to split the prosecution case. I refused the application. More thorough preparation beforehand should mean that the Republic has ready all the evidence available to present at the proper time, during the prosecution case.

Ms Tebao in her address relied, very properly, on circumstantial evidence – the accused’s bag and shorts found near the little girl on the island.

Mr Allen said all he could for his client. Should I be against him on the facts, he made submissions on points of law. The first was a point he had argued on his application of no case to answer, that there was no evidence of penile penetration. There is: Dr Itonga’s evidence, for the reasons I have given, is sufficient to prove penile penetration.

Mr Allen argued that there was a possibility Teinabure had consented to going with the accused to the island. The accused is an adult male: Teinabure a child of 3. To suggest that she, a child of that age, was capable of consenting is, with respect to Mr Allen, absurd. Section 241(b) of the Penal Code:-

Any person who by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.

The overwhelming inference is that the accused used force or deceitful means to get the victim to the island.

Finally, in relation to count 3 Mr Allen argued that intent had not been proven. He cited Archbold and referred to the Queen v Woollin [2009] EWCA Crim 1697; (1997) 1 Cr App R 97). Woollin was the case of a 3 month old boy whose father threw him about causing a severe head injury: the boy died: the father was convicted of murder. The Court of Appeal dismissed the appeal. The decision is helpful: when it is a “virtual certainty” that consequences will follow from the accused’s actions, then that may be proof of the intention. When a grown man inserts his penis into the vagina of a 3 year old girl it is a “virtual certainty” that he will cause grievous bodily harm to the girl. I find intention proved beyond reasonable doubt.

I have no doubt at all that the accused was the perpetrator of the terrible acts which led to Teinabure being on the island in the state described. I find him guilty of the principal offence alleged in count 1 and of the offences alleged in counts 2 and 3.

THE HON ROBIN MILLHOUSE
CHIEF JUSTICE
(23/03/01)