Republic v Kobaua - judgment [2002] KIHC 63; Criminal Case 43 of 2001 (23 May 2002)

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

High Court Criminal Case 43 of 2001

THE REPUBLIC

vs

TABERAUA KOBAUA

For the Republic: Mr Tion Nabau
For the Accused: Ms Taoing Taoaba

Date of Hearing: 21 May 2002

JUDGMENT

The accused, Taberaua Kobaua, pleaded Not Guilty to raping Nei Ioanna Anterea early in the morning of 13 July 2001. Nei Ioanna was on her way home after finishing her shift as a cleaner. She was walking down the road towards the Marakei maneaba, here on Betio. The accused, whom she knew, assaulted her behind the then Paradise Bar. Nei Ioanna is a lady of about 40: the accused is 21.

As I was approaching home heard feet running on ground, recognized runner to be accused. Very light – bright moonlight. I knew accused a long time because he’s from our area at Temakin..... When I recognized the accused I spoke to him. He said he was going to his house. ....... When we began talking he was some distance away; as we talked he got closer. He came right next to me. He pulled me and threw me to the ground. He fell on top of me: I struggled and called for people at my house: calling out “Maatu”. He was forcing me to remain on ground: called “Maatu” twice: he blocked my mouth and bit me on left cheek. He held me tightly and told me to remove my pants. “OK. Get off me so I can remove my pants” but I was planning to deceive him. When I hadn’t removed my pants he punched me on the stomach three times. I belched. I struggled to remove pants as I didn’t want him to do anything else. As soon as pants off he got on top of me and started to have sex with me. His penis was inserted into my vagina. He was inside me. .... I thought I was going to die. His full weight was on me and I couldn’t breath. ...... After he raped me the first time, he pulled me up and dragged me near the watchman’s house, right behind Paradise Bar. He threw me to the ground again. I fell on aluminium roofing. Watchman came out. Before he got on top of me I didn’t do anything. I was very frightened. He attempted to insert his penis into my vagina again. As soon as he entered watchman came out. Watchman “You people, why have you come to do that here? Don’t you know it’s forbidden to be here”. He came with lighted torch in one hand and iron bar in other. Accused got off me. I got up and went close to watchman.

The lady was taken to the Central Hospital and examined. The report of examination was tendered: the doctor wrote, “teeth mark noted on ® cheek”.

Ms Taoaba’s cross examination of Nei Ioanna was directed to whether there had been penetration or not. Nei Ioanna continued to assert that there had been.

The watchman at the Paradise Bar, Beiaaruru Kauabanga, came out of his house to see what was causing the aluminium to make a noise.

When I shone torch I saw man thrusting at woman. I said to the man, “Why have you come to have sex near my work place?” From there man got off the woman, apologized to me, pulled up his pants. “Please forgive me”. He ran away. The woman got up and grabbed me and said, “Please help me those people raped me. They took me by force”. .... I called police. She was crying.

[I should explain that other young men were about: there is no evidence of anyone else but the accused touching Nei Ioanna.]

The accused gave evidence. When he began it appeared that he was claiming an alibi.

On 12 July I was working: we were loading Nei Matangare early in evening: finished at 0700 the next day.

Mr Nabau protested that the defence had given no notice of alibi as is the practice. He pointed out that Ms Taoaba had not complied with the Rule in Brown v Dunn: she had not put, as she should have, to Nei Ioanna that she was mistaken in identifying the accused as her attacker.

I allowed an adjournment so that Mr Nabau could consider whether it is an obligation by law to give the Republic notice of an alibi and whether he would apply to reopen the prosecution case. After lunch Mr Nabau conceded that to give notice of alibi is only a matter of practice: a good practice if I may say so. I did not allow the Republic to reopen its case. [If necessary I would have allowed the Republic to put a case in rebuttal.]

The rest of the accused’s examination in chief was short.

When I finished working the police came to pick me up at my house. I was a stevedore.

I was left with the impression that the accused had a complete alibi: that he had been at the port all night working. In cross examination it came out that he, along with the rest of the stevedoring gang, had a break from midnight to half past one. In that time he admitted that he did meet Nei Ioanna.

I saw her on her way back – on the curve going to the Marakei maneaba. I threw her to the ground and as I was going to rape her the watchman came along and I ran away. ..... I was just about to rape her when the watchman came along. I think I only bit her cheek. Not yet have penis out – told her to remove her pants. Before I ran away I didn’t try to pull up my pants. What Beiaaruru said this morning, that I was thrusting at the woman, is false.

No question at all of an alibi.

The accused admitted an attempt to rape but not rape itself. He did not have to prove anything. The burden of proof beyond reasonable doubt is on the Republic from beginning to end. It was discharged. The evidence of Nei Ioanna was entirely credible. I thought her a good, reliable witness. Her evidence was confirmed by Beiaaruru, another credible, reliable witness. I accept their evidence beyond reasonable doubt.

The accused has been charged only with one count of rape. He could have been charged with two. He admits one attempt. I have no doubt that he had sexual intercourse twice with the victim without her consent.

I find the accused guilty of raping Nei Ioanna early in the morning of 13 July 2001.

Dated the 23^rd day of May 2002

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE