Republic v Tatoa - judgment [2002] KIHC 54; Criminal Case 32 of 2001 (24 April 2002)

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

High Court Criminal Case 32/01

THE REPUBLIC

vs

TAUORA TATOA

For the Republic: Ms Pole Tebao
For the Accused: Mr Aomoro Amten

Date of Hearing: 20, 22 & 25 March 2002

JUDGMENT

The accused is charged with two counts:-

Count 1

Statement of Offence

Abduction contrary to section 131 of the Penal Code Cap. 67

Particulars of Offence

Tauora Tatoa on 22^nd January 2001 took away Baretina Riibu against her will and by force with intention that she should have unlawful sexual intercourse with him.

Count 2

Statement of Offence

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

Particulars of Offence

Tauora Tatoa on 22^nd January 2001, indecently assaulted Baretina Riibu at Tekabiniwa, Makauro village on the island of Nonouti.

The accused pleaded not guilty to each count.

The prosecution called six witnesses to prove the charges.

The first witness of the prosecution was Nei Baretina Riibu the victim herself. She is about 13 years of age, she attends school and she is in Class 6.

In January 2001 Nei Baretina lived with her parents and relatives at Tebaatabuki village, Nonouti Island.

Nei Baretina certified that on 22^nd January last year (2001) at about 6 o’clock pm she was sent by Nei Kateia to do some shopping at a nearby village called Makauro to buy rice and tin fish at Tebaeka’s store. So she went shopping on a bicycle. On her way to the store she saw the accused at Tekabiniwa – an uninhabited stretch of land between Tebatabuki village and Makauro village. The accused was cutting toddy. He said nothing to Nei Baretina. She continued riding her bicycle heading towards Makauro where Tebaeka’s store is. On reaching the store Nei Baretina bought rice and tin fish (2 lbs of rice and 1 tinfish; see PW3).

Having bought her rice and fish she rode her bicycle back home to her village, Tebatabuki. By then it was about to get dark but there were still ample light about. And as she continued riding her bicycle homeward to Tebatabuki village, and upon reaching Tekabiniwa Nei Baretina saw the accused standing near his toddy tree. The accused saw Nei Baretina and then called her to go to him to buy his smoke. Nei Baretina then stopped her bicycle but did not get off the bicycle nor went to the accused but sat on her bicycle. So the accused walked towards Nei Baretina supposedly to give Nei Baretina some money to buy his smoke with but instead he lied to her and when the accused was near Nei Baretina, still sitting on her bicycle, the accused grabbed Nei Baretina, lifted her off her bicycle and then carried her eastward towards the ocean side. Whilst carrying Nei Baretina the accused told her not to make any noise. In the meantime Nei Baretina said nothing. Then the accused dropped Nei Baretina on the ground near the soccer field at the ocean side and told her to take her singlet off but she refused. When the accused was carrying her he told her he was going to rape her and afterwards he was going to bury her alive i.e. to kill her.

Then the accused was just about to carry Nei Baretina off again further eastward to the ocean side when she managed to escape from him. The accused however chased her and caught her. Then he led her walking instead of carrying her eastward to the ocean side. And as they walked nothing was said or exchanged between them except that Nei Baretina managed to escape from the accused gain and in the course of her escape she threw away her rice and tin fish which she was still carrying with her, into the bushes but managed to run back and took them to a clear spot.

The accused chased Nei Baretina and caught her. Then he took her further east of the soccer field. Then again silence followed without anything being said or exchanged between the accused and Nei Baretina except that the accused in the meantime was squeezing Nei Baretina’s neck with both hands.

Then the accused dropped Nei Baretina on the ground and took off her singlet and as the result Nei Baretina was completely naked. The accused was also naked and so they were both naked, then told Nei Baretina that he was going to rape her and afterwards he was going to bury her alive meaning he was going to kill her.

As the accused was talking thus to Nei Baretina he suddenly saw a light shining directly to where the accused and Nei Baretina were and so the accused carried Nei Baretina further into bushes and told her to suck his penis.

And while hiding inside the bushes thus the accused and Nei Baretina saw a torch light coming towards them. The accused then asked Nei Baretina about the light and Nei Baretina deceived him and told him that it was a light from the motorcar. She did this to the accused because she was afraid of him as the accused appeared to have taken some drink.

By then the torch light was coming very close to them to where they were. The accused however could not see the light as he closed his eyes and she did not want to tell him because she wanted to escape from him.

So Nei Baretina ran away from the accused and headed westward to where the torch light came from and as she did she saw Tabutoatau, Riibu, and Taeia (Nei Baretina’s parents) Wateti, and Iotua. When Nei Baretina escaped from the accused she was naked.

Then having found Nei Baretina, Nei Taeia (the mother of Nei Baretina) and Iotua took Nei Baretina on the motorcycle northward to the clinic at Tebobonga village to be examined. On their way to the clinic Taeia asked Nei Baretina as how she was caught by the accused.

Nei Baretina explained to her mother that the accused had asked her to buy his smoke and as he came near her to give her the money to buy the smoke with he lifted her off the bicycle and then carried her away eastward to the ocean side.

When the accused took Nei Baretina he inserted his finger into her vagina.

Nei Baretina knew the accused well before the alleged offence took place.

The cross examination of Nei Baretina clearly reinforced the fact that she had been forcefully taken by the accused against her will, and that she recognized the accused well as she actually saw the accused with her own eyes, spoke with him and there was still ample sunlight when the accused took Nei Baretina to near the soccer field to the ocean side where he detained her.

The second witness for the prosecution was Nei Taeia Tetabea. She certified she is married and has seven children some of whom are boys and some are girls. Nei Baretina, the victim is one of her daughters; she gave birth to Nei Baretina on 15 July 1989, and thus she is about 13 years of age and at the time of the alleged offence Nei Baretina is about 12 years of age.

She used to live at Nonouti but now she lives at Teaoraereke, Tarawa.

In January last year she lived at Nonouti, at Tebatabuki village where they have a house where her husband, young children including Nei Baretina and Nei Taeia’s mother lived.

On 22^nd January 2001 at about 5 o’clock pm they (Nei Baretina and her husband) sent their daughter Nei Baretina to Makauro to do some shopping for them namely buying rice and tinfish. Makauro is about an hour’s walk from Tebatabuki. Between Makauro and Tebatabuki village there are two houses – one belongs to the accused and the other one belongs to Tetau. Both of these houses are situated closer to Tebatabuki and the stretch of land between the two houses and Makauro village is further than the stretch of land between Tebatabuki village and the two houses.

On the stretch of land situated between Makauro and Tebatabuki there are many coconut trees and shrubs. Because Nei Baretina was delayed in returning from shopping Nei Taeia asked some people who have a motorcycle to look for Nei Baretina at the store where she went. She found Iotua and his wife and asked them to go to the store and look for Nei Baretina. They agreed and went but did not find Nei Baretina.

Then Nei Taeia and her husband were informed by Iotua that her daughter’s bicycle has been found, went to the place where her daughter’s bicycle was. It was very dark by then. They went eastward. Then someone called out that the shopping bag of her daughter has been found. So they went eastward to look for a plastic bag of rice and tinfish. And as they headed eastwardly Nei Baretina ran out of the bushes towards them naked and shouted that Tauora was trying to attack her.

Nei Taeia identified the two bicycles. One belonged to her daughter Nei Baretina and the other one belonged to the accused, Tauora and she pointed to accused and certified that he is the one at the dock.

Nei Taeia further certified that the accused is their relative, in fact he is their nephew. The accused and his wife had lived with them for about a year and the accused and wife often visited them; they had also helped the accused and wife build their house.

And Nei Baretina was living with Nei Taeia and her husband all throughout the period when the accused and wife, stayed with or visited the parents.

Nei Taeia further certified that Tebatabuki is a small village consisting of about 10 household, and so everybody knows everybody there. The accused was raised up by his mother at Tebatabuki and thus he grew up at Tebatabuki village.

The third prosecution witness was Tabeka Bureti. She now lives at Betio but in January of last year she was at Nonouti living with her parents at Makauro village. She knows Nei Baretina. On 22^nd January 2001 she remembered Baretina coming to their shop between 5 o’clock and 6 o’clock pm by herself on a bicycle and bought 2 lbs of rice and 1 tin fish. She stayed for about five minutes and then left.

The fourth prosecution witness was Iotua Beniati. The witness testified he lives at Tebatabuki, Nonouti.

On 22^nd January 2001 he was at his house.

The mother of Nei Baretina asked him to look for Nei Baretina. The mother’s name is Taeia. So he went to Makauro to look for the child. He went on a motorcycle. It took about 15-20 minutes riding from Tebatabuki to Makauro.

On the way to Makauro village there is an uninhabited stretch of land between Tebatabuki village and Makauro village. When first went to Makauro village he saw nothing on the way but when he came back his eyes were dazzled by the bright light of his motorcycle’s light which reflected back to him from something which shines brightly when hit by his motorcycle headlight. Then he saw two bicycles one of which belongs to Nei Baretina and the other to Tauora because his name was written on it.

After this he went back to Tebatabuki to Nei Baretina’s mother. After, he went back with another man to bring the bicycles to Tebatabuki.

Then they started searching for Nei Baretina and the accused. Nei Taeia and her husband went to accused’s house and he with another man went to where the bicycles were found and went eastward to the playing field searching when suddenly they found a white plastic bag which contains rice and tinfish and while inspecting this bag Tabutoatau shone his torch over the clear and sandy place and there they saw on the ground footprints of a child and an adult person, and as they followed these footprints eastward they heard a shout from amongst the bushes. The place was covered with thick bushes and trees and thus their torch could not sufficiently illuminate the whole place where the shout came from.

Then someone emerged from amongst the bushes and shrubs and ran towards them shouting “Tauora raped me”. The name of the child is Nei Baretina.

When she ran towards them she was naked, her hair was untidy and disarrayed. She only said Tauora raped her.

After this Nei Taeia the mother of Nei Baretina suggested to him to take Nei Baretina to the police station.

The fifth prosecution witness was Tabutoatau Maio. He lived at Tebatabuki village Nonouti.

He certified that on 22^nd January 2001 he was told about Nei Baretina’s abduction by her parents.

So when he heard this he went with the parents to the accused’s house to find out whether or not the accused and Nei Baretina were at the accused’s house. The accused and Nei Baretina were not at the accused’s house when he and Nei Baretina’s parents came to the accused’s house. The accused’s wife was in the house when they came.

As the accused and Nei Baretina were not in the accused’s house, he, the parents of Nei Baretina, and two other men went searching for Nei Baretina and the accused at Tekabiniwa, an abandoned old school site which is covered with bushes and shrubs and coconut trees which are used for toddy trees. The accused has toddy trees there as well as himself.

While we were searching for the child and the accused they found a plastic bag of rice and Nei Baretina’s clothes which they handed over to the parents.

As they went further eastwardly they found the child Nei Baretina emerging from amongst the bushes and shouting: Help me I am dying. Tauora raped me.

Then he ran towards her and she also ran towards him and as she was just about to hold him he sent her to her parents.

The sixth prosecution witness was Temariti Tebwe. He is a medical assistant qualified in 1989. He also held a midwifery certificate from Suva, Fiji in 1997. He was a nursing officer qualified in 1982. He now works as a medical assistant in Arorae Island.

On the 22^nd January 2001 he examined Nei Baretina who in his estimation she was about seven to eight years of age.

After examining her he made a report which he signed.

He read his report out to the Court and he produced the report without any objection from the defence.

That concluded the case for the prosecution. I found that there was a case to answer and the accused elected to remain silent and not to call any witnesses.

I then heard addresses from Counsel for the Republic and Counsel for the accused.

Counsel for the Republic argued that the prosecution has proved –

(a) the charge of abduction and each element of such charge; and

(b) the charge of indecent assault and each element of such charge

beyond a reasonable doubt.

Whereas counsel for the accused on the other hand contended that the prosecution has failed to prove –

(a) the charge of abduction and each element of such charge; and

(b) the charge of indecent assault and each element of such charge

beyond a reasonable doubt.

Before considering the evidence I must direct myself that the burden of proof beyond a reasonable doubt remains upon the prosecution at all times from the beginning to the end of the trial. 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 no onus on the accused at any stage to prove his innocence.

In the present case the prosecution must prove its case against the accused on each separate count beyond a reasonable doubt that –

(a) the accused had an intention of having sexual intercourse with the victim, and that the accused took away or detained the victim against the victim’s will;

(b) the accused had unlawfully and indecently assaulted the victim.

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

The question in this case is whether there was abduction and indecent assault or no abduction and indecent assault at all. But having heard and seen the witnesses and thought over their evidence I am satisfied beyond a reasonable doubt that the accused was guilty of sexual impropriety and taking or detaining the victim against her will. I accept the victim’s evidence about what happened.

That the accused at Tekabiniwa took the victim off her bicycle by force, carried her eastward to the ocean side, dropped her near the soccer field, then he told her to keep quiet, to take off her singlet, he was going to rape her and after he would bury her alive meaning he will kill her. There and then he detained her for several hours from about 1800 hours–2000 hours.

During her detention the victim attempted to escape from the accused on two occasions but the accused chased her and caught her on each of these occasions and thus continued to detain her throughout that evening until she was found by the search party. Whilst detaining the victim the accused squeezed the victim’s neck using both of his hands, ripped off the victim’s singlet from her body and thus leaving her completely naked, the accused was also naked when he ripped off the victim’s singlet; the accused told the victim again he was going to rape her and afterwards he would kill her, the victim also certified that the accused carried her further into the bushes when the accused and victim saw some light perhaps being shone directly to them; the accused also told the victim to suck his penis; and in the course of her being carried to the bushes and her detention by the accused the accused indecently assaulted the victim by inserting his finger into her vagina.

Clearly the events described above by the victim of what the accused did to the victim in taking or detaining the victim against her will are proved beyond a reasonable doubt within the meaning of section 131 of the Penal Code.

Whether the accused had the intention of having sexual intercourse with the victim one can say that the accused did have that intention within the meaning of section 131 of the Penal Code.

The victim’s version that the accused squeezed her neck using both hands, and also inserted his finger into her vagina are corroborated by the medical report of Temariti Tebwe on the victim – a medical assistant who stated in his report that the victim suffered and sustained the following injuries – on the face and neck there were red marks with finger marks on her left side; she also has scratch marks on the right side; then there is in vaginal canal bloodstains with vaginal fluid and sand and dirt. There is also bloodstain, sand and dirt in the thigh.

In the abdomen there is a fine scratch on the left side of mid axillary site – i.e. the left middle part of the abdomen. The arm of victim was swollen and the victim felt a painful sensation on the right hand side.

It was further stated in the report that the victim is physically well but complained of pain in the vagina area.

The intention of the accused to have sexual intercourse with the victim is further corroborated by the evidence of the second, fourth and fifth prosecution witnesses who, during the search for the victim, found the victim naked and her hair untidy and disarrayed (according to the fourth prosecution witness) and she shouted “Help me I am dying. Tauora raped me”.

There was a suggestion by counsel for the defence that identification of the accused was going to be an issue in this case but never took the matter further after the prosecution objected against his line of questioning suggesting to the second, fourth and fifth prosecution witnesses that the name which the victim named and shouted out as she escaped from the accused was not “Tauora” the name of the accused but “Taukora”. I asked counsel for the defence whether or not he was going to call any evidence relating to identity of the accused and he said yes but never did eventually. That was the end of the matter.

In any case the second, fourth and fifth prosecution witnesses when cross-examined were firm and convincing in their evidence that the name which the victim named and shouted out when she escaped from the accused was “Tauora” the name of the accused in this case and not “Taukora”.

Further the defence when cross-examining the victim never put the identification of the accused as an issue. And in any case the victim in her testimony never had the slightest doubt that Tauora is not the accused but someone else unknown to her.

I am therefore satisfied on all the evidence that the prosecution have proved beyond a reasonable doubt –

(a) that the accused had taken away Nei Baretina Riibu against her will by force with the intention that she should have sexual intercourse with him; and

(b) that the accused had indecently assaulted Nei Baretina Riibu, at Tekabiniwa, Makauro village on the island of Nonouti.

The accused is therefore found guilty of

(a) the offence of abduction contrary to section 131 of the Penal Code (Cap. 67) and

(b) the offence of indecent assault contrary to section 133(1) of the Penal Code

and is convicted accordingly.

Dated the 24^th day of April 2002

THE HON MR JUSTICE M N TAKABWEBWE
JUDGE