Republic v Matakite - judgment [2002] KIHC 60; Criminal Case 19 of 2000 (16 May 2002)

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

High Court Criminal Case No. 19 of 2000

THE REPUBLIC

vs

TIITO MATAKITE

For the Republic: Mr Tion Nabau
For the Accused: Ms Emma Hibling

Date of Hearing: 13 May 2002

JUDGMENT

The amended charge has four counts:-

Count 1

Statement of Offence

Attempted Murder

Particulars

Tiito Matakite on the 13^th January 2000, at Bairiki, on the island of South Tarawa, attempted unlawfully to cause the death of Nei Rengana Tataua.

Count 2

Statement of Offence

Disabling in order to commit felony

Particulars

Tiito Matakite on or about the 13 January 2000 at Bairiki, Tarawa, with intent to commit a felony of rape upon Nei Rengana Tataua, attempted to render Nei Rengana Tataua incapable of resistance by strangling her with his hands.

Count 3

Statement of Offence

Causing Grievous Harm

Particulars

Tiito Matakite on the 13^th January 2000 at Bairiki, on the island of South Tarawa unlawfully caused grievous harm to Nei Rengana Tataua.

Count 4

Statement of Offence

Attempted Rape

Particulars

Tiito Matakite on the 13^th January 2000, at Bairiki, on the island of South Tarawa, attempted to have unlawfully sexual intercourse with Nei Rengana Tataua without her consent.

The accused pleaded Not Guilty to counts 1 and 4, Guilty to counts 2 and 3.

It happened during the evening of Thursday 13 January 2000, before 10 o’clock. Sergeant Tekiau Kiareti saw the accused about 10 o’clock when it was over.

The accused, Tiito Matakite (now 22 years old) and the victim, Nei Rengana Tataua (now nearly 21), had been boyfriend and girl friend in 1996 to 1997 when they were students at Moroni High School. By 2000 they had separated.

During the afternoon of 13 January Tiito had been drinking with friends, a mixture of yeast, sugar and water. How much the drink affected him is not clear. He said he was “drunk”. Sgt Tekiau, “It seems that he was not drunk ---- not sure if he smelt of alcohol”. Nei Aaro Biita (now aged 20) “appeared to be drunk, a little bit smelt of liquor”. Rengana, “his appearance – he smelt of alcohol”. There was no question of the accused being so drunk as not to know what he was doing. The defence of drunkenness was not raised nor could it have succeeded.

Between 7 and 8 o’clock Tiito asked Aaro to call Rengana to see him. Aaro did so. Rengana met Tiito at a shop in Bairiki. They walked together from place to place and amongst the buildings on the lagoon side of Bairiki Square.

Tiito, when they were in the roadway between the back of the Post Office and the Attorney General’s office, began to force his attentions on Rengana. Despite her resistance he sucked her breasts. He stumbled. Rengana felt sorry for him, gave him her hand to pull him up. Instead he pulled her down.

He got my hand and pulled me down. On the ground he was trying to pull my skirt, tried to pin my legs and arms locked. I couldn’t struggle or make a move. When I fell down he tried to pin my legs and pull up my skirt: hands locked behind back. He was trying to unzip his pants. When I lying down he was on top of me, on my legs. When he rolled up my shirt he tried to pull down my pants: heard them tear. He managed to pull them down below my knees. Saw his penis already out from his pants and I tried to turn on my stomach to avoid him. I managed to turn on stomach. He tried to turn me over again, very strongly. “Now. Here comes your time. I will kill you”. He stepped on my back: then he kicked me right below my bum. Then he tried to kick me on the face but I avoided him. He kicked on the side of head. Then he tried to pluck out my eyes. Then he tried to twist my head. Then he hit me on the head with a stone. He hit me behind the neck with his fist. I started to shout “Help me”. He tried to block my mouth with his hand but I managed to bite. Then he squeezed my neck. I was beneath him on my stomach. I was struggling for breath. I know nothing after that. The next thing I know – I started to recover. One of my eyes was hurting. I found I was facing the Labour Office. I was lying on my stomach. Saw a person appear quickly: Tiito – he got on my back. Light from Labour Office but I was in the shade. He pulled my head back by the hair. “Tiito what are you going to do with me?” He said nothing. Then he cut my throat. I could feel the blade of the knife sliding across my throat. “Tiito you mustn’t do that”. He said nothing. Slid it across twice. The second time I lost my voice. He went away and my eyes were getting blurred.

Rengana walked to the road and was taken to the Central Hospital at Nawerewere. Dr Kautu Tenaua was on call. If Rengana had not coughed, Dr Kautu would have thought her dead. Only when she coughed did he begin treatment. His report:-

The injury at the anterior part of the neck was oozing and at the level just above the thyroid bone. All the muscles above the thyroid bone are cut through to the pharynx. There is also a cut on the posterior part of the left forearm close to the elbow joint. All injuries are consistent with that caused by a sharp instrument.

Dr Kautu said Rengana was lucky to have survived. She had two cuts to the throat: a long cut from right to left below the thyroid bone (Adams apple) and another, shorter cut, more slanting, above the thyroid bone. The cuts were made by “something that can make a nice clean cut”.

Rengana was in the Central Hospital for three to four months and in New Zealand for treatment and counseling for another one year and eight months. She is now back at Moroni High School in Form VI.

Rengana gave a coherent account. I accept beyond reasonable doubt the accuracy of what she told me. My impression is of a gallant young woman. Apart from a rather deeper voice than one would expect, and a coloured throat band, no doubt to hide scars, Rengana appears to have recovered from what she suffered.

Likewise I accept beyond reasonable doubt Dr Kautu, his report and oral evidence.

The accused gave evidence. That he did give evidence, I take into account in his favour. He obliged Rengana to pull her pants down by hitting her first. He told her to pull them down as he wanted to have intercourse. He penetrated between her thighs: he did that because he loved her and did not want to be charged with rape.

I squeezed her neck: I blocked her mouth with my hand. She bit my hand. I moved my hand down to her throat to avoid her from screaming. Otherwise we’d be seen. I saw this piece of iron, took it. Wasn’t aware it sharp, intending to hit her with it. Because I was very upset with her: she bit my hand. Piece of iron – 30-40 cm long, a little bent: seen them in construction. I got it by the corner of Post Office – only a few steps. First noticed it when had it in hand. I was right beside Rengana when I saw piece of metal: hadn’t seen it before. 3-4m from me. I went to get it because I was going to hit her with it on the side of the face. Because I was upset with her. ---- Then I ran away. I was going to scare her so that she may accept the fact that I wanted to have intercourse with her. I pulled her by the hair: I aimed for the side of her face: all of a sudden she moved and blocked me with her arm. After I had hit her on the neck I ran away. After I hit her arm, I think I ran away. Her neck got hit by one blow. Hit her neck once. I ran away because I was scared. I threw the piece of metal into the fence of the AG’s office.

The weapon was not found. Rengana described it as “a knife”, Tiito as “a piece of iron”. Dr Kautu said the wounds were caused by “something that can make a nice clean cut”: that sounds like a knife.

Having heard Tiito’s version, nevertheless I have no doubt about the evidence of Rengana and of Dr Kautu. Tiito tried violently to force the victim to have intercourse with him against her will. He cut her throat twice and she nearly died. He inflicted other injuries as well. He has admitted disabling to commit rape and causing grievous harm.

At the close of the Republic case Ms Hibling submitted her client had no case to answer on attempted rape. She argued that there must be “almost rape” to make out the offence and on the prosecution case it was not almost rape. I rejected Ms Hibling’s submissions. It seemed to me that the Republic had made out a prima facie case – the indecencies, the force, the taking down of the pants, the taking out of the penis. On the Republic case the accused had well embarked on the enterprise of rape.

In her final address Ms Hibling repeated her submissions. Tiito admitted in his evidence his intention to have intercourse, by his plea of guilty to Disabling he admitted the intent to commit rape. Mere intention is no crime but here there is much more than intention. His acts were more than preparatory to committing rape: he had, to repeat what I have already said, well embarked on the enterprise. Beyond reasonable doubt the accused is guilty of attempted rape.

In her submissions on attempted murder, Ms Hibling referred me to the R v Whybrow (35 CAR 141 especially at 147) and to Archbold, to the effect that stricter proof of mens rea is required when the crime charged is an attempt rather than the crime itself. When the crime charged is attempted murder the Prosecution must prove an intent to kill whereas if the crime charged is murder, the Prosecution may prove either an intent to kill or to cause grievous bodily harm.

Mr Nabau, prosecuting, replied that intent can be inferred from actions. He referred to section 371 of the Penal Code.

Actions speak louder than words. Here there are both words and actions. Tiito said he was going to kill Rengana: he pulled her head back and cut her throat twice. Cutting the throat is known as an effective method of killing. Beyond reasonable doubt the accused intended to kill the victim. I find the accused guilty of attempted murder.

The accused is guilty on all four counts: on counts 2 and 3 by his own admission; on counts 1 and 4 by verdict of the Court.

Dated the 16th day of May 2002

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE