Republic v Riaben [2003] KIHC 121; Criminal Case 38 of 2003 (22 October 2003)

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

Criminal Case No. 38 of 2003

THE REPUBLIC

vs

ARAWATAU RIABEN

For the Republic: Mr David Lambourne, Solicitor General
For the Accused: Ms Jacqueline Huston, People's Lawyer

Date of Hearing: 20 October 2003

JUDGMENT

The accused, Arawatau Riaben, is charged with rape. Particulars:-

Arawatau Riaben on the 15^th April 2003, at Buota village on South Tarawa, had unlawful sexual intercourse with Nei Ruube Rataro without her consent.

Arawatau is a man of uncertain age, probably in his 50's. On 15^th April this year he was a bus driver. The alleged victim, Nei Ruube Rataro, is a young woman of 18. She was the fare collector on the bus. They started work in the morning, got as far as Buota. Arawatau turned into the last side road, drove quite a distance to a lonely area. According to Ruube, by a combination of force and threats, Arawatau overbore her will and had intercourse with her.

The bus having been parked, she stood near the door. This is her account:-

Driver went to collect medicine: he called me. Uri leaves. Told me to pick flowers, chew them up: gave them to him. Told me to drink contents of bottle small – salty water. To make people like the driver. "I've got you". I was afraid. He was holding on to my hand. Pulled me down: told me to pull down pants. Shorts, T-shirt, panties, bra. He said he'd beat me up. Took off shorts – pulled me on to lap. T-shirt – told me take them off so he could put leaves I'd chewed up on my chest. I took off t-shirt because I was afraid. Shouted out when he laid me on ground. Then told me to take off shorts: said he wanted to put some on groin – uri leaves and flowers I'd given him. I refused: he pulled pants down. Laid me on his legs – only had bra and panties on. Anointed me again with leaves: chest to groin. Laid me on ground: fingers in vagina: had taken off underwear: two fingers in: in pain. Didn't consent but afraid. I begged him ..... don't do that. "You don't stand a chance: only two of us here now". My request inflamed him further. Took his shirt off: got on top of me. Pair of shorts, not very short, on: pulled them down. Next to me. Got on top. Put penis inside: after a long time got off. In my vagina: He started thrusting, a long time. I begging him (not to). Not saying anything. I didn't consent but then I did because I was afraid: said he'd hit me on head. Got off: cleaned me with his mouth, licked me.

They went back to the bus, drove to Tarawa Motors, stopping on the way at AMMS at Antebuka where Arawatau bought Ruube a soft drink. At Tarawa Motors Ruube left the bus, went across the road and caught one going towards Nawerewere. She was bleeding badly: she went to a relative's house, changed, put on a sanitary napkin, washed her clothes and eventually got to the Central Hospital. She had stitches and stayed a day in hospital.

At Emergency she had been examined by Dr Brady Cameron Tassicher. Dr Tassicher made no notes but remembered soft tissue injuries in the vaginal area. Ruube needed an operation for repair and he sent her on to gynecology. He expressed the opinion that force must have been used to create the amount of bleeding. In cross-examination he described the vaginal injuries as "remarkable". In re-examination he said they were unlikely to be consistent with first time sex.

The accused swore that the intercourse was consensual. The day before, they had discussed it and agreed to have it on the morning of the 15^th. There was no gathering of plants or flowers, no administering of liquid from a bottle.

We got off bus: I got off, she followed. She took off her own clothes. Surprised to find she was a virgin. After having sex once, she refused a second time. Penetrated her with fingers to widen vagina to insert penis. Then intercourse. She didn't tell me to stop while we were having sex. I took her to my uncle at Buota. Offered to leave her with uncle at Buota: was going to settle down with her. She refused.

In his address the Solicitor General poured scorn on the accused's version: here was a man, married for 30 years, had six children, intending to settle down with a young woman whom he knew from not much more than having driven on the bus with her three or four times.

Ms Huston to the contrary, argued that Ruube, having regretted what she had done and fearful of her family finding out, cried, "Rape!"

Ruube was a credible witness. Her account is corroborated by Dr Tassicher. No doubt she bled a lot and needed to have repair in the vaginal area: the amount of bleeding was unlikely to be consistent merely with first time sex: force must have been used.

On the other hand the accused's story really is incredible – a married man in later middle age deciding to set up with a young woman after so scanty an acquaintance.

Of course, it is not a matter of whom of Nei Ruube and Arawatau I believe. The burden on the prosecution is much heavier than that, to prove its case beyond reasonable doubt.

Having seen and heard the witnesses and thought over the evidence I find that the prosecution has proved its case beyond reasonable doubt.

The accused is guilty of rape.

Dated the 22^nd day of October 2003

THE HON ROBIN MILLHOUSE QC
Chief Justice