Republic v Tabaki - judgment [2001] KIHC 47; Criminal Case 27 of 2000 (22 May 2001)

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

Criminal Case No. 27 of 2000

THE REPUBLIC

v.

BAURO TABAKI

FOR THE REPUBLIC: Mr Tion Nabau
FOR THE ACCUSED: Mr Neil Allen

Date of Hearing: 21 & 22 May 2001

JUDGMENT

The accused was charged with three offences, attempted rape, indecent assault and child stealing. At the close of the prosecution, on the application of Mr Neil Allen for the accused, I ruled that there was no case to answer on the first count, attempted rape. I therefore now have to consider only counts 2 and 3, indecent assault and child stealing.

The prosecution case was that between 4 and 5 o'clock in the afternoon on Saturday 22 July last year the accused, at Bikenibeu, took Tekua, a little girl aged 1 year into some bushes near a pigsty. He put his finger up her vagina. He was disturbed by the child's aunt and he ran away.

Three witnesses as to the facts gave evidence for the prosecution.

The first was Kantaake Abuita, a girl of 13. She was doing her washing. She saw the accused watching her, sitting on or near the family canoe. She was frightened because he looked drunk. She went to her aunt's house, Nei Ruuti, for support. When they looked he had gone and she went back to the washing. Then:-

I saw him going into the bushes with a child in his arms. He carried her under his arms as if to hide her 20m away about. Didn't recognise child. Told Ruuti and others he'd taken child away. Ruuti ran after him. I followed her I saw the accused when he ran away. He had left the child, Tekua. He ran facing the other way as fast as he could. The child stayed where she was. The place was next to a pig pen. She did not have any pants on. Pig pen surrounded by bushes. When I saw Tekua she was crying. I carried her. (My notes).

In cross examination she denied that a truck had come along the unsealed road which ran past the pig pen. She recognised the man who took the child as the man who had been sitting next to the canoe.

Nei Ruuti Oteata is the aunt both of Tekua and of Kantaake. She was playing bingo when Kantaake came running to say that a young child had been taken away:-

I ran to place he'd taken child close to our house next to a pig pen. I saw him fondling child's genitals. Right next to pig pen and I was some distance away – within a few metres. And I saw Tekua. He was poking the child's vagina. I started swearing at him – picked up a large rock and threw it at him. Poking with his finger. The child was in front and he was putting his finger up (demonstrates) the child's vagina. He was squatting in front of child. I took a large rock: swore at him first. Threw the rock. Accused ran away. Whilst running away held on to his pants, pulling them up.

Mr Allen objected to Nei Ruuti identifying the accused in the dock. He based his objection to dock identification on a passage in Archbold (paragraph 14-69 in the 1992 edition). The dangers of dock identification are well accepted. In the first place, for an intelligent witness who knows the layout of the court room the accused can hardly be anyone else from the person in the dock. However the main ground upon which Mr Allen took his objection was there had been no attempt, before trial, to give Nei Ruuti an opportunity to identify the accused as the man she had seen, no identification parade or anything like that. Such objection may be taken well in a sophisticated setting such as New Zealand or the United Kingdom where it is practicable to organise, say, an identification parade. Here in Kiribati it is not well taken because it is quite impracticable. For example, there are hardly enough people who would not be known to each other and the person asked to make the identification for it to be possible to have a parade. At present and, I imagine for some time to come, dock identifications are unavoidable.

I therefore overruled Mr Allen's objection and allowed Nei Ruuti to be asked if she could identify the accused. She could and did. Of course, the weight of a dock identification is not much, the less so if there has been no previous identification. That is as t rue in Kiribati as anywhere else.

In cross examination Nei Ruuti said she had a clear view of the accused with the child: she saw him touching the child's vagina and threw a stone at him: he ran away and was having to pull up his pants as he ran: she did not remember seeing a truck.

Later, at Mr Allen's request Nei Ruuti was recalled for further cross examination. Mr Allen put to her that after the accused had been taken to the police station she had gone into his cell and attacked him. She indignantly and I thought genuinely, denied either going into the cell or attacking the accused.

Mr Allen criticised the evidence both of Kantaake and Nei Ruuti because in the statement to the police of neither had she said anything about the man pulling up his pants as he ran away. Mr Allen said that each had admitted adding that to strengthen the case against the accused: I should treat their evidence with caution. I bear Mr Allen's hortation in mind but my impression of both was that they were telling the truth and that I could accept, beyond reasonable doubt, their evidence.

I remarked to Mr Allen that police officers and indeed lawyers, are not always expert in taking statements. There may be inaccuracies and omissions, not by design but by mischance. Frequently witnesses bring out things not in their statements: it is a bane of every barrister's life.

The third witness was Nei Teatema Tabokai. Tekua is her niece. She, too, was playing bingo. She followed Nei Ruuti looking for the little girl:-

When I arrived on scene I only saw him running away holding up his pants. Nothing on top half of body.

Tekua's mother is a police officer, Benerita Eririko, but she was in her house when the child left to go to Benerita's sister's house. The child was wearing shorts. Benerita did not see her again until after the incident. Then she:-

Noticed red marks, bruises, round her neck. 2 red marks on right side of neck. On her vagina abrased. Naked.

The medical officer whose report became an exhibit by consent, bore out the marks on the neck:-

Reddish mark across right neck (from nape of neck to angle of jaw, right, 2 cm wide and 7 cm long.

The last two prosecution witnesses were the police officers who took the statement from the accused. Mr Allen objected vigorously to the statement being admitted. We had a hearing on the voir dire. Despite vigorous and prolonged cross examination by Mr Allen, I could find no impropriety in the actions of the police officers which would even faintly persuade me to exclude the statement. The accused gave evidence on the voir dire. He denied having made the statement. The police officers had deposed to it having been taken at 10 o'clock on the Sunday morning, 23 July, at the Bikenibeu police station. The accused said he gave no statement on that day. All that happened on the Sunday was that he was moved from the Bikenibeu police station to prison. He denied his signature on the statement.

The accused went on to say that not only had been beaten by a crowd on the way to the police station but:-

At police station I asked officers on shift to look at injuries. They beat me up in office, took me to cell. In cell – opened and allowed Ruuti to come inside and beat me: kicked me and hit back of head. Pulled her out and closed cell: two officers –one outside, one inside he would kick me down: two people in cell attacked me. Went out: locked door. I went to sleep. I had been severely beaten, in pain: woke next morning. I was wakened and taken to prison.

This was the first time there had even the faintest suggestion of a police officer being in the cell with Nei Ruuti, attacking the accused. Such a thing had never been put to her. I concluded that it had not been part of Mr Allen's instructions: that the accused was making up his story as he went along. I did not believe him.

I allowed the statement to be tendered. When I read the translation it was rather an anti-climax:-

I Bauro wish to make a statement. I want someone to write it down for me. I've been told that I need not to say anything unless I do so. Whatever I say shall be recorded as evidence against me in Court.

I accept the charge, because I did not know anything as I was fully drunk.

I've read the above statement and told that I can alter, add, correct as I wish, and certify to be true and I made it with my own free will on 23/7/00 at 1000 hrs.

It is an admission of guilt to something, but what?

Perhaps its greatest significance is that the accused said he was "fully drunk". This confirmed Kantaake's impression.

The accused gave evidence in his defence. That is to be regarded as being in his favour. He denied he was drunk. He said that he was going to see his uncle, a police officer, who lived at the end of the unsealed road. As he was on his way he saw the little girl defecating in the middle of the road. She had one leg in and one out of her pants. He saw a truck approaching and grabbed the child, put her on the side of the road, put on her shorts and left her there. Four people were nearby and he thought the child belonged to them. Then others ran and kicked him.

Mr Allen put it, during his address, that the whole thing was a misunderstanding: his client was taking the little girl out of danger, not interfering with her sexually. I don't think so. I find beyond reasonable doubt that the accused indecently assaulted Tekua by putting his finger up her vagina and that he had carried her away to the vicinity of the pig pen making him guilty also of child stealing.

The accused is guilty on counts 2 and 3.

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE