Republic v Kaintoka - judgment [2002] KIHC 78; Criminal Case 02 of 2002 (18 July 2002)

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

High Court Criminal Case 2/02

THE REPUBLIC

vs

TEKAURIRI KAINTOKA

For the Republic: Ms Ereta Bruce
For the Accused: Ms Batitea Tekanito

Date of Hearing: 3, 4, 5 & 6 June 2002

JUDGMENT

The accused is charged with five counts:

Count 1

Statement of Offence

Attempted Rape contrary to section 130 of the Penal Code Cap. 67

Particulars of Offence

Tekauriri Kaintoka on the 24^th day of June 2001 at about 1700 hrs at Tabiteuea, North Tarawa attempted to have sexual intercourse with a woman named Nei Kaotiara Teraro without her consent.

Count 2

Statement of Offence

Unlawful Wounding contrary to section 223 of the Penal Code Cap. 67

Particulars of Offence

Tekauriri Kaintoka on the 24^th day of June 2001 at about 1700 hrs at Tabiteuea, North Tarawa unlawfully wounded Nei Kaotiara Teraro by stabbing her on the head with his toddy knife.

Count 3

Statement of Offence

Drunk and Disorderly contrary to section 167(d) of the Penal Code Cap. 67

Particulars of Offence

Tekauriri Kaintoka on the 24^th day of June 2001 at about 1700 hrs at Tabiteuea, North Tarawa was drunk and disorderly in a public place namely the public main road.

Count 4

Statement of Offence

Possession of Weapon contrary to section 74 of the Liquor Ordinance Cap. 50.

Particulars of Offence

Tekauriri Kaintoka on the 24^th day of June 2001 at about 1700 hrs at Tabiteuea, North Tarawa whilst under the influence of alcohol was found in possession of a dangerous or offence weapon namely a toddy knife.

Count 5

Statement of Offence

Throwing Objects contrary to section 83A of the Penal Code Cap. 67

Particulars of Offence

Tekauriri Kaintoka on the 24^th day of June 2001 at about 1700 hrs at Tabiteuea, North Tarawa wilfully threw an object namely a stone at Nei Wataki Betero.

After the conclusion of the preliminary voir dire hearing during which I found that the caution statement was made voluntarily and therefore admissible the trial proper finally got underway. (Copy of the Judgment on the voir dire hearing is attached as Annexure herewith).

The prosecution called six witnesses to prove its case.

The first prosecution witness was Kaotiara Teraro (PW1). She testified that she is 18 years of age, lived at Tabiteuea village, North Tarawa. She knew and recognized the accused as the one sitting in the dock. She pointed at him. On 24 June 2001 she was living at Tabiteuea village and remembered at about 5.00 pm she went together with two other girls, Nei Tematang Baakeua, and Uateki Betero to Nei Tematang’s house to collect her clothes there. Tematang’s house was situated at the southern end of Tabiteuea village on South Tarawa side, about two or three kilometers away (about from 2^nd Court house to Gateway Bar, Betio) from Tabiteuea village. On the way back from Tematang’s house the three same girls met the accused. It was then about 6.00 pm. The accused stood on the road, blocking the girls’ way. Then he forcefully grabbed the victim with both hands from the back and started dragging and pushing her towards the ocean side. The other girls saw the accused doing this so they told him to let the victim go free. When the accused heard this he appeared cross, so he tightened his grip on the victim’s back, snatched the victim’s hair and wound it up around his hand and continued dragging and pushing the victim to the ocean side. He brandished his knife and frightened the girls with it. The accused also picked up a stone, threw it at the girls and hit one of the girls on her left leg.

Accused did this because he appeared cross with the girls when they told him to let the victim go and were still standing around the place where the victim and accused were.

When the accused was dragging the victim to the ocean side he told her to remove her clothes. She refused. So he stabbed the victim with his toddy knife behind the left ear at the back of the head when she was sitting down.

The victim said the accused has been carrying the toddy knife ever since she and other girls first met him on the road and while he was dragging the victim to the ocean side. The victim also testified that she had tried to wrest the knife from the accused’s grip but she didn’t succeed in getting rid of the knife from him except that eventually the knife fell off the accused’s hand. After the accused stabbed the victim with the knife the victim felt blood coming out from the wound when she wiped it with her hand. She told the police and Nei Taruru and Keariki about it.

The victim also testified that she had bitten the accused on the left hand while the accused was dragging, pulling and pushing her towards the ocean side. Subsequently the accused hit the victim on the forehead above the left eye with his hand which made him lose his grip on the back side of the victim and thus the victim managed to escape from him then.

It was about between 7.00 pm and 8.00 pm by then when the victim escaped. She ran towards Nei Taruru’s house. When she got there Nei Taruru and her husband were still there at their house. Because her body was covered with dirt from the babai pit into which she had fallen on her way when she escaped from the accused the victim asked them (Nei Taruru and her husband) to clean herself with their well water. The victim then told them her story that she has to fight and struggle with the accused in order to escape. The victim asked Nei Taruru and her husband to take her back to her parents’ house. She also showed them the stab wound she sustained on her head which the accused had caused on her.

The next day on 28^th June 2001 at 8.00 am the victim and her father lodged her complaint with the Bikenibeu Police Authority.

The victim also said she recognized the toddy knife when it was shown to her that it is the accused’s knife which he had used to stab the victim’s head with it on the night of 20^th June 2001. The knife was admitted as Exhibit P1. The victim was also shown a singlet and skirt and she recognized them as hers and are the ones she wore on the night of 24 June 2001 when the accused forcefully dragged her to the ocean side. The clothes were admitted as Exhibit P2.

The victim also testified that the accused never attempted to rape her at all whether by getting on top of her or by taking or tearing her pants (underwear) off her or taking his own (the accused) pants off (the accused’s underpants) in order to reveal his person to the victim or in order to try to have intercourse with the victim except at the time when the accused was dragging the victim to the ocean side as he was then revealingly clad in underpants.

The victim also testified in her evidence when she was cross examined that the accused is not her boy friend and she never drank sour toddy with the accused and though she had shared sour toddy with other boys she however never shared a sour toddy with the accused. But she knew the accused as someone living and coming from Tabiteuea village.

The second prosecution witness (PW2) was Nei Taruru Taamui. She is married and has two children, and lived at Tabiteuea village, North Tarawa. She has a house which is situated at the southern end of Tabiteuea village which is about a mile away from Tabiteuea village (or about as far as from the second court house to the Betio round about near the Customs Office Building). She remembered the night of 24 June 2001 at about 8.00 or 9.00 as Nei Kaotiara visited them at their house and asked the witness’s husband, Keariki to accompany her back to her parent’s house. However before she left she also told them that she had suffered from a stab wound behind the left ear at the back of her head. She showed them the wound at the back of her head and told them the accused stabbed her with the knife; and the witness and her husband saw it with the aid of a home made kerosene bottle light: the wound was still bleeding and blood was running down on her hair. The witness couldn’t see blood on the victim’s clothes. The blood though was starting to clot and dry up. They didn’t check the depth of the wound.

The third prosecution witness (PW3) was Tematang Baakeua. She is 21 years and lived at Tabiteuea village North Tarawa. On 24 June 2001, she was at Tabiteuea village. At about 5.00 pm on the same day she with two other girls by the name of Nei Kaotiara and Uataki went for a walk to the witness’s house which is situated outside Tabiteuea village at the southern end about two or three kilometers away. After collecting the clothes the three girls returned to the village. On their way back they met the accused. He stood on the main road and tried to block the girls’ way. Then the accused grabbed Nei Kaotiara (the victim) from the back by force and started dragging her to the ocean side. When the other two girls saw what the accused was doing to their companion they told the accused to let Nei Kaotiara go and set her free. The witness was just standing close by behind the victim. Then the accused ordered the girls to leave them alone. He also brandished his toddy knife at them and told them that if they refused to go he would stab their head with his knife. So the girls left and shortly afterwards they returned as they were concerned about the victim. When the accused saw them again he picked up a stone from the ground and threw it at them. When the accused threw the stone the witness and the other girl were about 15 metres away from the accused. The stone didn’t hit the witness directly after the accused threw it but it hit the ground just near the girls and then it rolled off the ground and then hit the witness on the leg. The witness was about three or four metres away from the accused when he threw the stone at them. She saw the stone that hit the other girl’s foot. A toddy knife was shown to the witness and she recognized it as the one which the accused was brandishing at them on the night of 24^th June 2001. When the witness and other girl left the accused and the victim they went to Nei Taruru’s house and told her about the victim’s situation and also asked Nei Taruru for help for the victim. That was the last time when they saw the victim.

The fourth prosecution witness (PW4) was Nei Uataki Betero. She is 21 years of age, lived and grew up at Tabiteuea village. She also knew the accused.

On 24^th June 2001 at about 5.00 pm she went for a walk with the victim (Nei Kaotiara) and Nei Tematang to collect Tematang’s clothes from her house which is a bit far away from Tabiteuea village about two or three kilometres away on the southern part of Tabiteuea village. So Uataki’s evidence collaborates that of the victim and Tematang’s evidence.

She testified also in her evidence that she was the one who got hit by the stone which the accused threw at them (the witness and Tematang) after he ordered them to leave him and the victim because they took their time to do so.

The fifth prosecution witness (PW5) was Detective Constable Tabanea Kaurea. He was the investigating officer in charge of the case. He testified that he took the statement in his office at Bonriki Police Station on 26^th June 2001 on or about 1944 hours and after about 24 hours after the accused was arrested. Apart from the accused signing his own caution statement the witness and Constable Tikanteata Bauro also witnessed and signed the caution statement of the accused. Detective Constable Kaurea told the Court he had cautioned many accused before this case without having them been charged first of all.

The witness didn’t take the accused’s caution statement immediately after the accused was arrested at 2145 hours on 25/6/01 as he wanted to gather more information about the suspect and the alleged offence.

Before he took the statement of the accused the witness cautioned the accused by reminding him that he is suspected of having attempted to rape Nei Kaotiara Teraro, the victim and told the accused that he was not obliged to give his statement and if he did then it would be recorded in writing and may be given in evidence in court. The witness also asked the accused whether he wished to write his own statement himself or he wished him to write it down for him. The accused in reply asked the witness to write down his statement for him and he told the witness that he had nothing to say about the alleged offence.

The witness wrote down what the accused said about the alleged offence namely that he had nothing to say about it. Then before the accused signed it he was given the caution statement to read it and he was advised he could alter it or add anything to it and then he certified that he did voluntarily give the statement and signed it.

After the accused signed his caution statement as described above by the witness, the witness told the accused he wanted to ask him about the offence he was alleged to have committed. He also told the accused he was not obliged to answer the questions. However should he decide to answer any questions then the questions and answers would be recorded in writing and may be used as evidence in court. The accused then signed his statement and countersigned by the witness and Constable Bauro.

Then there followed a series of 12 questions being put to the accused by the witness which again were all signed by the accused and countersigned by the witness and Constable Bauro after the witness read them back to the accused to correct and certify the caution statement.

The sixth prosecution witness was Constable Kanteaba Bauro. He testified that he has been with the Police Force for more than a year and presently he is stationed at Bonriki Police Station.

He said he knew the investigating officer in this case namely Detective Constable Tabanea Kaurea, both of whom countersigned the accused’s caution statement.

He confirmed that the accused was cautioned on 26^th June 2001 and the accused was cautioned in the normal way by telling him he was not obliged to say anything and if he did it will be put down into writing etc. etc. He confirmed also that he was at the office throughout the period when and where the accused was interviewed and cautioned.

That concluded the case for the prosecution.

Then counsel for the defence submitted that her client has no case to answer on attempted rape and unlawful wounding.

On the charge of attempted rape counsel argued that the accused’s acts as described below are merely preparatory acts to, and remotely connected with committing rape and thus do not constitute an attempt. The acts of the accused referred to above were that he seized the victim by the back with both hands, pulled her hair and wound it up around his hand to prevent her from escaping, and then led her to the ocean side by forcefully pushing and dragging her along, and then he ordered her to take her clothes off. She refused and so he stabbed her with a toddy knife on the back of her head near the left ear.

The accused also struck the victim on the forehead above the left eye and thus she was able to escape from him because he wasn’t holding her then.

Counsel for the prosecution submitted the whole of the above acts of the accused are the overt acts which constitute an attempt on the part of the accused. The prosecution therefore has established a prima facie case against the accused.

I rejected the submissions of counsel for prosecution and I accept the submissions of counsel for the defence. The evidence before the Court seemed to have established that the accused had the intention to commit rape but what he did were merely preparatory to committing rape. (See Houghton v. Smith [1973] 3 ALL ER 1009]; and R. Tito Matakite High Court Criminal Case (Kiribati) No. 19 of 2001 where it was held that the Republic had made out a prima facie case (because of) the indecencies, the force, the taking down of the pants, the taking out of the penis. On the Republic’s case the accused had well embarked on the enterprise of rape.

In this case it seemed that the accused had not yet well embarked on the enterprise of rape.

I therefore found that the prosecution had not made out a prima facie case against the accused. The accused therefore is not guilty of attempted rape.

As to the charge of unlawful wounding I ruled that there was a prima facie case against the accused and the accused elected to give evidence and not to call any witnesses.

The accused Tekauriri Kaintoka testified that he is 18 years of age; he comes from Tabiteuea village, North Tarawa; his house is about 100 metres away from the Tabiteuea village from the second court house to the main road near the Mormon Church).

He knew the victim Nei Kaotiara Teraro. Before 24 June 2001 had a relationship with the victim and they are still friends.

On 24 June 2001 at Tabiteuea village at about 5.00 pm he went to cut toddy near her father’s house (Kaintoka) and on his way he met the victim Nei Kaotiara, Tematang and Uataki. When he saw the victim he approached her and grabbed her by the back with both hands and took her away to underneath his toddy tree. Then he ordered the other girls to leave him and victim alone and frightened them by throwing a stone near them on the ground. The stone was about the size of a tennis ball. And the girls wee quite close to him as they were about 20 metres away from the accused. The stone landed on the ground about four metres away from the girls. He didn’t see what happened with the stone after it bounced off the ground.

As he grabbed the victim on back he led her to the ocean side by pulling her hand. In the meantime he held his toddy knife with his other hand. Then when he and the victim reached a certain spot he forcefully pushed the victim down to make her sit down. He was still holding his knife in his hand. Then the victim suddenly tried to snatch the toddy knife from the accused and so they both struggled to gain possession of the knife, and in the course of the struggle the accused and victim fell on the ground and stood up again about twice and then the accused fell unconscious on the ground and never regained his consciousness again till the next morning. All this took place between 7.00 pm and 8.00 pm.

The accused said he took the victim to the ocean side because he knew her.

He admitted also that he asked the victim to take off her clothes and did nothing else to her afterward.

Under cross examination the accused insisted that the victim is his girl friend despite his behaviours which were not characteristic of a boy friend and girl friend relationship in that he grabbed the victim by the back, dragged her to the ocean side, stabbed her on the back of her head, wound her hair around his hand; then the victim trying to snatch a knife from him, while he was holding and brandishing a knife etc.

The accused explained that he struggled with the victim over the knife because she tried to snatch it from him and he didn’t let the knife go because he was scared he could have used it on him. He never realized that the victim could have been injured by the knife which he held when he and the victim struggled.

Under re examination the accused said he was drunk that day as he had been drinking sour toddy from 8.00 am to 2.00 pm with two other friends. We put our sour toddy in a big kettle from which we poured into small cups and then enjoyed it.

That concluded the case for the defence. Then I heard closing speeches from counsel for the prosecution and counsel for the defence.

Counsel for the Republic repeated the facts that the accused had been charged with five charges as set out at the beginning of this judgment and the accused had pleaded guilty to two charges of Drunk and Disorderly and Possession of Weapon. The prosecution has to prove only three charges namely attempted rape, unlawful wounding and throwing objects. However the Court has ruled that there is no case to answer with regard to attempted rape and therefore the case proceeded with unlawful wounding and throwing objects left only to be proven by the prosecution.

And as to the charge of unlawful wounding counsel for the prosecution submitted that the prosecution has proved beyond reasonable doubt that the accused has unlawfully wounded Nei Kaotiara by stabbing her on the back of head with the knife.

And as to the charge of throwing objects counsel also submitted that the prosecution has proved beyond reasonable doubt that the accused had willfully thrown an object namely a stone at Nei Uataki Betero.

Counsel for the defence on the other hand submitted that the prosecution had failed to prove beyond reasonable doubt that the accused had unlawfully wounded Nei Kaotiara and also had failed to prove beyond reasonable doubt that the accused had wilfully thrown a stone at Nei Uataki Betero.

Counsel for the defence further submit that the victim is not a reliable and truthful witness and therefore she should not be believed.

Before addressing the above issues I direct myself that the onus of proof beyond reasonable doubt remains upon the prosecution from first to last. The Republic must prove the charge and each element of the charge beyond reasonable doubt and if 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.

As I have already found that the prosecution had failed to make out a prima facie case against the accused on attempted rape and therefore the accused is not guilty of that offence and I now leave that charge as so found.

I should say something now about the evidence.

At the outset I have no hesitation in stating that I accept the prosecution witnesses as truthful and reliable. They were tested in cross examination and they were not to my mind discredited at all and thus I feel able to accept their evidence without hesitation.

On the other hand I do not believe the accused as a truthful and reliable witness. For example what he stated in his caution statement and gave in evidence are inconsistent. In his written statement he stated he drank three bottles of liquor whereas in his evidence he said he drank sour toddy which was put in a big kettle and then poured out into small cups and then shared out with two other boys and drank sour toddy for practically the whole day.

I therefore do not believe that the accused was so drunk that night of 24 June 2001 and as the result he completely lost his mind and thus did not know what he did that night.

However after considering the whole of the evidence I must be satisfied that the prosecution have proved the charge beyond reasonable doubt, notwithstanding the sworn or unsworn denials by the accused, and it is not essential that I believe that the accused was telling the truth before he is entitled to be acquitted.

The evidence on the charge of unlawful wounding, in my view, clearly established beyond any doubt that the accused did in fact unlawfully wounded the victim on the back of the head on the left hand side with his toddy knife. The accused did this to the victim because she refused to take her clothes off when the accused ordered her to do so, so the accused stabbed the victim to make his point as it were. To frighten her so that she submitted to his demand. The victim in her evidence confirmed all this. Nei Taruru (PW2) corroborated the story of the victim as she saw wound, blood oozing out from the wound, and running down her hair with the aid of home made kerosene bottle light. The accused in his evidence denied having stabbed the victim on the back of head on the left side but admitted that he and the victim had struggled very hard to gain possession of the knife. The accused also said that in the course of his struggle with the victim to gain possession of the toddy knife he just fainted and didn’t regain his consciousness till next morning. I do not accept the story of the accused and I accept the evidence of the victim and that of Nei Taruru (PW2). Counsel for the defence has submitted that the wound which the victim had suffered on the back of her head, and alleged to have been caused by the accused is not a wound within the statutory definition of wound which provides that “wound” means any incision or puncture which divides or pierces any exterior membrane of the body, and any membrane is exterior for the purposes of this definition which can be touched without dividing or piercing any other membrane.

The victim in her evidence said that she felt the wound and blood oozing out of it when she ran her fingers over it and Nei Taruru (PW2) also saw the wound and blood running down the victim’s hair at the back of her head.

The accused in his evidence corroborated the evidence of that of the victim that the accused was throughout the period of her detention by him was carrying his knife in one of his hand and therefore the knife was available to the accused should he wish to do so.

I therefore rule that the wound which the victim suffered on the back of her head was a wound within the statutory definition of the wound in the Penal Code Cap. 67. However such wound must have been a minor laceration as the victim appeared to be still able to walk around and escape from the accused. In any case in the absence of a medical report and having heard and evaluated the evidence of the victim and Nei Taruru I am satisfied that the victim did suffer a laceration in the back of her head which seemed to be a very minor laceration or injury in any case.

I am therefore satisfied on all the evidence that the prosecution have proved all the elements of the charge of unlawful wounding against the accused beyond a reasonable doubt.

The accused is therefore found guilty of unlawful wounding contrary to section 223 of the Penal Code Cap. 67 and convicted accordingly.

I now deal with the charge of throwing objects contrary to section 83A of the Penal Code the particulars of which were that on 24^th day of June 2001 at about 1700 hours in Tabiteuea village, North Tarawa the accused willfully threw an object namely a stone at Nei Uataki Betero.

So in order for the prosecution to succeed in this count the prosecution must prove that on 24^th June 2001 at about 1700 hours at Tabiteuea village the accused willfully threw an object namely a stone at Nei Uataki Betero.

The evidence of PW3 and PW4 clearly proved that the accused did in fact threw a missile (stone) at the two girls with a view to frightening them in order that they left him alone with the victim and that they were about 15 metres from the accused when the accused threw the stone at the girls. When the stone was thrown by the accused it didn’t hit Nei Uataki directly but it hit the ground first and then the stone bounced off the ground and hit her on the left ankle.

In her evidence Nei Uataki said that “she saw the accused picking up a stone, we ran away. The accused just picked up a stone and threw it at us and was hit on the left ankle on the inside of the ankle. Accused was on my right hand side. The stone bounced off the ground and then rolled to me and hit me. Had it hit me directly I would have been badly injured and felt the pain more intensely”.

The accused on the other hand admitted in his evidence that he did in fact threw the stone but not at the girls but, rather he threw it to the ground not to hurt them but to simply frighten them so that they should run away and left him and victim alone. He said he didn’t know where the stone went after he threw it away. At any rate the stone did in fact hit Nei Uataki Betero on the left ankle on the inside.

As there was no medical evidence or report to shed some light on the extent of the injury which Nei Uataki might have suffered as the result of the missile the accused threw at her and then hit her on the ankle I am satisfied that the extent of injury or damage to her ankle was insignificant in nature.

Upon consideration of the whole of the evidence in relation to the charge of throwing objects contrary to section 83A of the Penal Code Cap 67 I am satisfied that the prosecution have proved all the elements of the charge of throwing objects against the accused beyond reasonable doubt.

The accused is therefore found guilty of throwing objects contrary to section 83A of the Penal Code Cap 67 and convicted accordingly.

The accused is guilty on four counts: 3 and 4 by his own admission; and 2 and 5 by verdict of the Court; and he is not guilty on count 1 by verdict of the Court.

Dated this 18^th day of July 2002.

THE HON MR JUSTICE M N TAKABWEBWE
JUDGE