Republic v Baba - judgment [2002] KIHC 79; Criminal Case 35 of 2001 (22 July 2002)

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

High Court Criminal Case 35/2001

THE REPUBLIC

vs

KINATIO BABA

For the Republic: Ms Ereta Bruce
For the Accused: Mr Aomoro Amten

Date of Hearing: 17 & 18 July 2002

JUDGMENT

The accused is charged with rape:-

Particulars of Offence

Kinatio Baaba on or about the 23 September 1999 at Ukiangang village on the island of Butaritari, had unlawful sexual intercourse with Nei Tetewea Baubau without her consent, twice on the same day.

He is a man about 35 years old and is married. He has three children, the eldest two by one woman, the youngest by his present wife.

Nei Tetewea Baubau gave her age now as 19. Each lived in 1999 with his and her family: both families lived separately on Butaritari at Ukiangang village.

On Saturday 23 September 1999, early in the evening, the accused came to Nei Tetewea’s house. He said he had called to take Tetewea to a youth group meeting, he being the leader of the village youth group. Instead, the two of them went into the bush together. They moved from place to place but were alone for at least six hours. Tetewea says she got home “round 5 o’clock or 6 o’clock”.

So much is common ground, as is that intercourse occurred between them. The question is whether the intercourse was consensual or whether the accused forced Tetewea to have intercourse with him against her will. In dispute also is how many times it occurred. The accused says once: Tetewea says three times: the Particulars allege twice. It doesn’t matter: intercourse once without consent is enough to prove the charge.

On Tetewea’s evidence, confirmed in some details by her mother, the accused forced her three times to have intercourse with him against her will.

Despite Tetewea’s evidence and her mother’s, if there were no other evidence, I would have had some reasonable doubt about the accused’s guilt. First, the accused and the girl were together for a very long time and while she said she tried to escape, her account of events does not give the impression that he kept her with him by force all that time: she seems to have accompanied him mostly without resistance. May be she did so out of fear. Secondly, when Tetewea did get home she merely laid down next to her mother and went to sleep. It was some time later when her mother woke her up and asked her in anger what had happened that she cried and said Kinatio had raped her. There was no spontaneous immediate complaint of rape.

The accused was arrested some time on the morning of the 24^th September. A caution statement was taken from him just a day later: it is marked “25/9/99, 11.30 hrs”. Mr Amten objected to my receiving it, submitting that I should exclude it in the exercise of my discretion: the police had not brought the accused before a magistrates’ court as required by section 20 of the Criminal Procedure Code.

The accused was not brought before a court and the police officer then in charge of the case did not seem, when giving evidence, to understand why he should take an accused before a court. Yet the delay was only 24 hours: there was no suggestion that it was deliberately to “soften up” the suspect or that he was mistreated in any way. On the contrary, the police said it was for his own protection: he may otherwise have been beaten up by the victim’s relatives. That being so, even though it could be argued that there had been some breach of the Code the accused, who did not give evidence on the voir dire, did not seem to have been prejudiced.

Exclusion in these circumstances is usually as a mark of the displeasure of the Court at poor police procedures. I did not think exclusion warranted here. Apart from the technical breach which Mr Amten argued, the defence did not suggest the statement had been taken other than properly: the accused was cautioned: he signed his answers to questions. I admitted the statement. It turned out to be a complete confession.

The statement begins:-

I am not guilty since I let that girl away from her house to the bush. I was drunk at that time so I gave her my word and forcibly threatened her and finally got her. I roughly pulled away her clothes and also beat her up.

Although that contains a contradiction, I take it as a confession: perhaps the negative at the beginning is an error of transcription. I take it as a confession because the statement later contains these questions and answers:-

Q10. Who accompanied you from the house?

Ans. Nei Tetewea and myself.

Q11. Was there a youth gathering at that day?

Ans. No.

Q12. Where did you go afterward?

Ans. We went to the bush.

Q13. What did you do in the bush?

Ans. We had a discussion in the bush at a plot known as Uaki.

Q14. And after that?

Ans. We both headed towards the bush at a plot named Tennewe.

Q15. Where did you commit rape and sexual intercourse?

Ans. At Tennewe in the bush.

Q16. Who mentioned to take off the clothes?

Ans. Myself and not Nei Tetewea.

Q17. Tetewea did not want to remove her clothes?

Ans. She actually refused.

Q18. What happened next?

Ans. I threatened her by beating her shoulder and afterward I pulled away her lavalava and underpant.

Q19. Was her underpant, lavalava and private property torn?

Ans. They were all torn.

Q20. How did you have sexual intercourse with her?

Ans. I laid her down first and went on top of her.

Q21. Was her vagina penetrated?

Ans. Yes.

The accused gave evidence. It was to the effect that he and Tetewea had made an arrangement earlier on the Saturday to go off together in the evening: they had gone into the bush and had sex once. It was consensual: he denied he had forced Tetewea into having it with him

He was taxed about the statement. He said that when he made the first one he was frightened and in strange circumstances: that’s why he had confessed. Mr Amten had not put to the two police officers called to prove the statement that his client appeared frightened or ill at ease: from that I conclude that those had not been his instructions: the accused came out with those excuses in answer to Ms Bruce’s and my questions.

That caution statement of 25^th September is not the only statement the accused made. A month later, when the accused admitted he was not afraid; he gave another, to Detective Corporal Tewatana Merang, by then the officer in charge of the investigation. Mr Amten did not object to my receiving the statement. Although the confession is perhaps not as strong, it is still a confession. Here is an example:-

Q.32 Do you accept that you beated her shoulders and thighs prior to having sexual intercourse with her?

Ans. That’s incorrect since I fought her only once and that was when she bit my arm and so I squeezed her throat.

The inference from that question and answer (even if there were no more in the statement and there is more) is of a victim’s will being overborne by force.

The doubts about the victim’s story which I had earlier in the trial disappeared after reading the two confessions and hearing the accused. Beyond reasonable doubt he had intercourse with Nei Tetewea at least once (the incident he admits at Tennewe), maybe as many as three times, without her consent and against her will during the night of the 23^rd/24^th September 1999.

The accused is guilty of rape.

Dated the 22^nd day of July 2002

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE