Republic v Raoboia [2001] KIHC 68; Criminal Case 07 of 2001 (17 December 2001)

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

High Court Criminal Case 7 of 2001

THE REPUBLIC

vs

TEMBETI RAOBOIA

For the Republic: Mr Kirata Komwenga
For the Accused: Mr Aomoro Amten

Date of Hearing: 11 December 2001

JUDGMENT

The accused is charged one, with rape and two, with house breaking and committing a felony therein.

It was about 5 o'clock in the afternoon of Sunday 26 March 2000. The complainant, Nei Karetati Tebwebwe, was asleep in the house of her cousin Kararaua Teairo, part of a double storey block at Temakin. She was alone in the house and upstairs. Before she went to sleep she had locked all the doors. She felt someone next to her. She recognized the accused whom she knew. He forced her to have sex with her: she felt his penis well into her vagina. While he was forcing her to have sex she shouted out. After the act was finished they went downstairs and he left. She went outside on to the verandah and told in turn two ladies with whom she was talking, that she had been raped. While she was sitting there she saw a wire grill had been pulled out and the door pushed in.

That is her account in evidence. Her statement to the police, exhibit P1, is to the same effect except that she told the police she "notice the security wire of the downstairs room window which broken off".

The two ladies gave evidence. First, Nei Kianako Tian, said the complainant called her over and told her the accused had raped her: the second, Nei Tokabwebwere Ruutia, said the complainant told her the accused had had sexual intercourse with her. One lady said the complainant looked distressed, the other that she looked afraid. Both said that after they had been talking for some time the accused came out of the house and left. This contradicted the evidence of the complainant that the accused had left straight away after they went downstairs. The accused himself when he gave evidence said he left straight away.

During the evidence, the Interpreter, Mr Tong, told me that the word "taua" which was being used to describe what had happened or what was being recounted, may mean either rape or consensual intercourse. Both counsel, I-Kiribati gentlemen, assented to this. Neither lady to whom the complainant spoke said they were told the intercourse was forced. Mr Komwenga, prosecuting, in his address submitted that, if the intercourse had been consensual, the complainant would not have mentioned it at all: intercourse had been forced on her. Maybe, but that the word "taua" is ambiguous much weakens the force of the complaint. Besides, the two ladies differ from the complainant as to when the accused left the house: it further weakens evidence of complaint.

Nei Tokabwebwere is a nextdoor neighbour to Karakaua. She said she saw the accused arrive on a bicycle, saw him go into the house but did not see how. There is no direct prosecution evidence as to how the accused got into the house.

Nei Tokabwebwere also said she heard nothing, no sound of breaking nor any noise from Karakaua's house: from her house she can hear a really loud noise from inside Karakaua's house.

The accused gave a bizarre account of the affair. He had been at home drinking: his wife had not prepared his food and was not there. He went looking for her at Karakaua's house. When he could not get in he saw a window:

The grille taken out – where children came in and out as grille not nailed into place.

He went in through that window, went upstairs, saw the complainant lying there and a young man who escaped through a window upstairs. He upbraided the complainant, took her downstairs by the hand. Nothing happened between them, no sex. He left: he did not see either of the ladies.

During the addresses, as the point had not been sufficiently canvassed during the accused's evidence, I suggested he be further examined and cross examined as to how he entered. Counsel agreed:

The wire was only hanging there: it was not nailed to the frame so by lifting it up I could reach window. Pulled wire aside and stepped through window as it was not nailed. (Examination in chief).

When I said "pulled" I meant lifted it up. I did not pull it to become unfixed. I didn't damage that window. (Cross examination).

As the decider of facts instead of a jury, I have come to the conclusion that I cannot be satisfied beyond reasonable doubt the accused had forced sexual intercourse on the complainant. There are too many inconsistencies in the prosecution evidence: the ambiguity of the word "taua", and so the weakness of evidence of corroboration, when the accused left the house, the lack of any noise being heard. The accused denies sexual intercourse.

That really is the end of the matter. I must find the accused not guilty of rape and the second count falls with the first because there is no proof that the accused committed a felony once he got in.

For the sake of completeness I should say that I cannot find either, beyond reasonable doubt, that there was a breaking. 9 Halsbury's Laws of Australia (para 130-5280):

To enter or depart through an open door or window is not a breaking. To open a closed through unlocked door or window is a breaking. It is not a breaking to widen an opening for purposes of entry; however, it is a breaking if to do so involves tampering with some fastening device. It is not a breaking to knock on a door with the unintended result that the door partly opens.

Unfortunately none of the authorities cited in support of these propositions is available but I have no reason to doubt the accuracy of the propositions.

There is no direct evidence of how the accused got into the house. From the complainant's statement to the police someone saw him breaking in but that person was not called or if she were, did not come up to proof. What the complainant said about that in her statement is hearsay which I disregard. The accused denies any false entry.

The accused is guilty neither of rape nor of house breaking and committing a felony.

Dated the 17th day of December 2001.

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE