Republic v Obwaia [2003] KIHC 163; Criminal Case 48 of 2003 (4 December 2003)

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

Criminal Case No. 48 of 2003

THE REPUBLIC

vs

TEBIKAU OBWAIA

For the Republic: Ms Ruria Iteraera
For the Accused: Mr. B. Berina

Date of Hearing: 1 December 2003

JUDGMENT

The accused, Tebikau Obwaia, has pleaded not guilty to 3 counts of rape or in the alternative sexual intercourse with a Collateral. The alleged victim, Nei Atata Raitinia, is the daughter of his half sister, Nei Teruabine Teteki. Tebikau and Nei Teruabine have the same mother, Nei Tekauea Rakau.

Tebikau is 35 years old: Nei Atata 21.

The first count alleges an incident on the 3 September 2002. Nei Atata:-

"I recall Tebikau coming to me on the kiakia: woke up: asked if he could lie next to me: refused: told him to leave and he did not – he got on te buia, lifted the mosquito net: I jumped off from the other side on buia – pulled back part of singlet: held me, lay down. Told me to undress and I refused but he forced me – threatened to hit me with a torch, 6 batteries. He took off underwear. I had to because I was afraid he'd hit me with torch. He succeeded in what he wanted. Tebikau touched my breasts, sexual intercourse raped me. Didn't see his penis. I felt his penis inside my vagina: between legs wet. He left me.

Atata did not tell anyone about the incident until the 9^th of September when she reported it to her sister and brother in law. Nothing was done about it: "appears they didn't believe me".

The second and third counts allege rape on the night of 14^th September. Although Atata in evidence described three occasions during the night when Tebikau had sexual intercourse with her without her consent he has been charged only with two. After the first occasion:-

"I went in grandmother's mosquito net and lay next to her. She woke up. "What's wrong?" Tebikau came under our mosquito net feeling round for me: held me tight. I yelled loud "Tebikau is here holding me tight." "Tebikau what are you trying to do now?" Tebikau said, "keep quiet". Midnight trying to find ways of getting away from him. He went to other buia. I went to our buia and went to sleep: sister and husband were sleeping there. I lay next to my sister. Felt someone lying on top of me – Tebikau. My sister and husband had gone. Tebikau unfolded blanket: took off my pants. I cried loudly calling on my grand mother: forced legs open: thrusting his bottom. Asked him what he was trying to do. He said he'd kill me: not to cry, make a sound. My grandmother, sister, brother-in-law (did not help) I lay down – (undressed me) I was calling out for grandmother. Still raping me, on top of me when grandmother came stood next to buia. I (complained)

By the end of Atata's evidence I felt unwilling to convict on it unless it were corroborated. Atata certainly gave sufficient evidence to prove all the elements of rape on four occasions but I was not impressed by her demeanour: her narrative was a bit muddled: not sure I could rely beyond reasonable doubt on what she said.

The second witness was the grandmother, Nei Tekaua Rekau. She gave her evidence convincingly, corroborating in part her granddaughter, Atata:

"14 September 02 asleep under mosquito net: Atata came woke me up because Tebikau chasing after her. While talking about it, Tebikau came pulled her away. Shocked. I went looking for them. My son-in-law's house is next to me. I walked to buia where Tebikau and niece. Stand and looked, this man having sexual intercourse. I could see clearly. Couldn't hear it, walked away. Sexual intercourse: she was underneath Tebikau who was on top having sex. I went to next buia. I heard noise from granddaughter on other buia: my grand daughter running and holding me. He came and grabbed hold of child. I was afraid of Tebikau left my clothes with Atata and run away.

In cross examination Nei Tekaua said it didn't occur to her to run to the neighbours for help: "Grand-daughter in great danger: did nothing because I afraid Tebikau"

She admitted that she hated Tebikau for the things he had been doing and she did not approve of or like Nei Karewannang, Tebikau's wife who bore him a child in July of this year: "She forced herself on him saying she was pregnant".

The last prosecution witness was N. Teruabine Teteki, Atata's mother and Tebikau's sister. At the time of these incidents it seems that she and her husband were away from their house at Temwaiku and at Bikenibeu, at either a funeral or birthday party. During the 15^th of September her mother, Nei Tekaua, came to see her but said nothing of what had happened the night before. It was only when Atata came on the night of 15 September that Atata told her.

The accused gave evidence. It was a simple denial that he had ever had sexual intercourse with his niece.

Mr Berina submitted that for reasons not known but probably because they do not like Tebikau, the three prosecution witnesses had made up the whole thing. There certainly are some aspects which do not ring true. For 6 days Atata did not tell anyone about the incident on 3^rd September and then she was not believed: it is curious that she did nothing for so long and makes me doubt her reliability in recounting other incidents as well. The grandmother did nothing effective when she saw her granddaughter being raped by her son, didn't even tell her daughter about it the next day: the same with the sister and her husband, neither of whom gave evidence: they did nothing when they must have known, on the evidence of Atata, that something was going on.

For these reasons I cannot be confident beyond reasonable doubt of the story told by the prosecution witnesses. Mr. Berina may be correct: the story may have been made up.

The accused is NOT GUILTY on all counts.

Dated the 4^th day of December 2003

THE HON ROBIN MILLHOUSE QC
Chief Justice