Republic v Toani - judgment [2002] KIHC 68; Criminal Case 34 of 2001 (6 June 2002)

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

High Court Criminal Case 34\01

THE REPUBLIC

vs

BETERO TOANI

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

Date of Hearing: 4 & 5 June 2002

JUDGMENT

The incidents giving rise to these charges occurred on Nikunau on the evening of Saturday 14 October 2000 and early on the morning of Sunday 15. As the trial had originally been listed for hearing at the High Court on Betio on Monday 3 June and as I was to be on Nikunau on that day, it was decided to transfer the hearing to Nikunau. The hearing began on Nikunau on 3 June and the evidence completed by lunch time on 5 June.

The accused was charged with five counts:-

Count 1

Statement of Offence

ATTEMPTED MURDER contrary to section 208(a) of the Penal Code Cap. 69.

Particulars of Offence

Betero Toani on or about the 14 October 2000, between 11 and 12 in the night at Rungata village on the island of Nikunau, attempted to murder Nei Maria Beetero.

Count 2

Statement of Offence

ATTEMPTED MURDER contrary to section 208 of the Penal Code Cap. 69

Particulars of Offence

Betero Toani on or about the 15 October 2000 between 6 am and 8 am, at Rungata villge on the island of Nikunau attempted to murder Nei Maria.

Count 3

Statement of Offence

DEFILEMENT OF A GIRL UNDER 13 YEARS contrary to section 134(1) of the Penal Code Cap. 69.

Particulars of Offence

Betero Toani on or about the 15 October 2000, in the early morning, at the village of Rungata, Nikunau island had unlawful sexual intercourse with Teaoruru Kautu who was 11 years old on five occasions on that same day.

Count 4

Statement of Offence

ASSAULT CAUSING ACTUAL BODILY HARM contrary to section 238 of the Penal Code Cap. 69.

Particulars of Offence

Betero Toani on or about the 15 October 2000 assaulted Nei Maria by punching her on the face and as a result Maria suffered injuries.

Count 5

Statement of Offence

INDECENT ASSAULT contrary to section 133(3) of the Penal Code Cap. 69.

Particulars of Offence

Betero Toani on or about the 12 October 2000 at Rungata village on the island of Nikunau intended to insult the modesty of Nei Teaoruru Kautu by telling her that he will rape her.

Before arraignment Mr Tion Nabau prosecuting, applied to amend Count 3 from Defilement to Rape. Ms Emma Hibling defending, opposed. I did not allow the amendment. It was far too late to make one so significant. [I had allowed, on my own suggestion, a minor amendment to a date but that was quite a different matter.] The Republic must have its house in order well before trial so that an accused knows in good time precisely the case he has to meet. I suspected, when Mr Nabau made his application, and the suspicion turned out later to be justified, that the Republic could not prove Teaoruru’s date of birth. That difficulty could easily have been discovered in an application for amendment made long before trial.

I did, however, miss another point in relation to Count 3. The particulars alleged, “unlawful sexual intercourse with Teaoruru Kautu on five occasions on that same day.” If the point had been taken or if I had been alert enough to spot it myself, I would have obliged Mr Nabau to elect to which of one of the five occasions the charge related. As the prosecution evidence came out, the prosecution could have succeeded on four, if not five, separate counts of rape. I told Mr Nabau late in the hearing, when I realized my omission, that I was assuming count 3 to relate to the first occasion.

The accused pleaded not guilty to all counts.

Before calling his first witness, the victim, a young girl, Mr Nabau applied to close the Court. While deciding whether to grant the application I satisfied myself that Teaoruru sufficiently understood the nature and seriousness of an oath. I did grant it. The Court had been sitting in the maneaba, next to impossible to close, so we adjourned to the Magistrates’ Court nearby.

I made the order to close the Court with some hesitation. I dislike closed courts. A court is a public place and people should be allowed to see and hear everything which goes on in it. On the other hand the interests and feelings of a witness, tender through youth or for some other reason, must be considered. On balance I decided to close the Court but only for Teaoruru’s evidence. After Teaoruru had finished the hearing continued in the maneaba.

The accused, a married man with eight children, had been for some time the boy friend of Maria, a widow. He did not live with her but used to spend several days at a time at her house. On the early evening of Saturday 14 October, the accused turned up. He brought with him some alcoholic drink. He drank it. He said Maria had some but she denied that. The accused may have been drunk but drunkenness was not put as a defence. I need not mention it again.

Counts 1, 2 and 4 concern what happened between the accused and Maria. The accused and Maria had a domestic quarrel. The accused said it was over Maria’s abortion: Maria said it arose out of the accused asking whether Teaoruru had begun menstruating yet. The quarrel became a fight which ended with Maria running away and not coming home until the morning.

That left the accused alone in the house with Maria’s two young daughters. Counts 3 and 5 concern his treatment of the elder, that in her mother’s absence he had sexual intercourse with Teaoruru against her will.

I refer now to the various witnesses. The first was Teaoruru. Having heard and seen her, my impression is of a simple, not over intelligent young village girl but one who was telling the truth. When I was considering whether Teaoruru should take an oath and whether the court should be closed Teaoruru told me she did not know her age. She was not asked it in evidence. Her mother said she was now 14 but was no more precise. That left open whether she was under 13 on 14 October 2000. She was either 12 or 13 but I could not be sure beyond reasonable doubt. If her birthday be between 5 June and 14 October then she was more than 13 on 14 October. The Republic was not able to prove beyond reasonable doubt Teaoruru’s age as being “under 13 years” on 14 October 2000.

Teaoruru, giving evidence of events on Saturday 14 October:-

Maria and Betero ..... having argument while we (Teaoruru and her little sister Tebikeiti) were sleeping. Maria collapsed on ground facing upwards. I saw what was happening. Betero punched Maria in face. Tebikeiti and I got up. We begged this man. “Betero please that’s enough”. Because he was going to kill our mother. “You have to beg like that. Because right now I am going to kill your mother”. Carrying his drink with his knife. Holding the knife to Maria – looked like he was going to stab her with it. Nothing else. Maria begged to him as well: “Betero stop fight. I beg you”. She was right beside him. He was holding Maria’s hair. The knife was on the ground right beside them. Maria escaped.

When they were alone in the house the accused called Teaoruru to come and sleep beside him. She resisted but had to comply.

“Raise your hands”. “Why?” “If you refuse to raise your hands I’ll stab you with the knife”. He was carrying a torch and knife. I raised my hands. I was scared. Betero pulled all my clothes away, got rid of my skirt. Left with my underwear. He started to pull down his pants. He told me to lie down. “No”. “If you refuse to do this I will stab you with the knife”. I was getting very scared. I was there lying. He got on top of me. He inserted his penis inside my vagina. I could feel it inside my vagina. I started to cry and begging him. “Betero. That’s enough. I’m hurt”. He kept on. “If you’re going to say anything else I’ll stab your head with a knife”. I stopped.

Teaoruru told of four other incidents of intercourse against her will in the next few hours. The accused, she said, had intercourse with her “five times in all”. I need not recount each incident. I have taken the first as relating to count 3. Each, except possibly the last incident (I am not sure if Teaoruru gave evidence of penetration on that occasion) would have been sufficient to make out a prima facie case of unlawful sexual intercourse or (if it had been charged) of rape.

The next morning Teaoruru went to the clinic and had a medical check.

In cross examination Teaoruru maintained that she had seen the accused punch her mother in the face and that the accused had penetrated her.

Maria Betero is 41, widowed with six children. On 14 October 2000 in the evening she was at home. Referring to the accused:-

He punched me on face. Dragged me towards his batika: got a knife, placed next to neck. I tried to stop him. Knife fell. Said he was going to kill me. I was trying with all strength for knife. He grabbed me by the hair: tried to pin me down on ground. I managed to get hands away from hair. Then I ran away.

Maria did not return until the next morning:

Teaoruru sitting there naked: appearance – very exhausted, crying. “What did Betero do?” “He raped me”.

In cross examination:-

Fight on 14^th. He was drunk. I did not drink with him. He punched me with his hand. Betero got very mad: of course he did threaten to kill me: he had a knife with him. I was opposing knife with palms and it didn’t touch me. Blade of knife to throat.

The last witness for the prosecution was Nei Tekatao Rimon, the nursing officer, who examined Teaoruru on the morning of 15 October. Her report:-

On our vaginal examination we found out that the right side of vaginal orifice is not smooth (ragged) and the hymen has been broken. When inserting our finger she felt little pain as the tear is fresh otherwise 2 fingers can be inserted through.

In examination in chief Nei Tekatao said “tear” was only “a matter of hours before” the examination. “Caused by something penetrating”. In cross examination:

“Could have been caused by a penis. Hymen broken at same time as having intercourse.......Tear caused only hours before. Both tear in hymen and injury to vagina recent.”

I accept Nei Tekatau’s evidence. It corroborates Teaoruru’s complaints of the accused’s treatment of her.

At the end of the prosecution case and the first day of the hearing, Ms Hibling submitted No Case to Answer on any count. I was too hasty in coming to a conclusion on the submission and without even giving Mr Nabau a chance to be heard I ruled no case on counts 2 (on which there was no evidence at all), 3 and 4.

Overnight I realized I had been wrong on count 4. There certainly was no evidence of actual bodily harm: nothing to shew any breaking of the skin or other injury. Yet there was a prima facie case of common assault. I was slow to remember that common assault is a lesser alternative comprehended in assault causing actual bodily harm.

On the morning of 5 June, after hearing counsel and before Ms Hibling opened her case, I ruled that the accused had a case of common assault to answer on count 4.

Mr Nabau then referred to section 167 of the Criminal Procedure Code:-

When a person is charged with the defilement of a girl under the age of 13 years and the court is of opinion that he is not guilty of that offence but that he is guilty of an offence under one of the sections 133(1), 135 and 137 of the Penal Code, he may be convicted of that offence although he was not charged with it.

The same principle as applicable to count 4.

I obliged Mr Nabau to elect which one of the offences in sections 133(1), 134 and 137 he relied on. He nominated section 133(1) (unlawful and indecent assault). I then ruled that the accused had a case of unlawful and indecent assault to answer on count 3.

Ms Hibling took instructions from her client. As a result the accused was re-arraigned on counts 4 and 5 and pleaded guilty to them. [I assume he pleaded guilty to count 5 because he said later, in his evidence, that he had grabbed at Teaoruru’s vagina, when she was importuning him to have sex with her, in an attempt to dampen her ardour.]

The accused was his only witness.

He admitted the fight with Maria but denied he had said he was going to kill her or that he had that intention. He denied getting the knife to her throat. He made the good point that if Maria had pushed the knife away from her throat one would have expected her to have some injury to her hands. I doubt if the knife got as close to Nei Maria’s throat as she described.

Having heard all the evidence I am left with a reasonable doubt that the accused really did have the intention of killing Maria, of causing her bodily harm. “I’ll kill you” is the sort of thing which may be said during a domestic argument, as this was, without the intention actually to carry it out. I think the accused probably did say it or something like it but I cannot be satisfied beyond reasonable doubt that he meant it. As Ms Hibling pointed out in her final address an intention to kill, not only to do bodily harm, must be proved on a charge of attempted murder.

I find the accused not guilty on count 1, attempted murder.

As for count 3 I am satisfied on Teaoruru’s evidence, corroborated as it is by her mother’s evidence of Teaoruru’s complaint and of Nei Tekatao’s evidence, that the accused did have sexual intercourse with Teaoruru about 8 o’clock on the evening of Saturday 14 October, without Teaoruru’s consent. The accused is guilty of unlawful and indecent assault.

In summary I am not satisfied even if the accused intended to do Maria bodily harm, let alone to kill her but I am satisfied beyond reasonable doubt that the accused had sexual intercourse with Teaoruru without her consent.

The accused is guilty, by verdict of the court of count 3, unlawful and indecent assault and on his own confession on count 4, common assault and on count 5, indecent assault.

Dated the 6^th day of June 2002

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE