Republic v Tetaua [2003] KIHC 21; Criminal Case 14 of 2002 (21 January 2003)

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

Criminal Case No. 14 of 2002

THE REPUBLIC

vs

RITATE TETAUA

For the Republic: Ms Pole Tebao, A/Director of Public Prosecutions
For the Accused: Mr Aomoro Amten

Date of Hearing: 20, 21 January 2003

JUDGMENT

The accused, Ritate Tetaua, is charged with defilement of a girl under 13. The particulars:-

Ritate Tetaua on the 7^th (sic) of July 2000, at Temakin Village on the island of Betio, South Tarawa, had unlawfully sexual intercourse with Nei Taatara Taaito, a girl aged 5 years old.

[The evidence shewed that the incident was in fact either late on 1^st July or early on 2^nd July.]

The prosecution did not call the little girl. I readily accept that she is too young to give evidence.

On the evening of Saturday 1^st July 2000 the victim, a little girl of about 4 years, her mother, grandmother, brothers and sisters and another couple was living in the area known as Temanoku on the lagoon side of the main road as it runs past the BTC offices. It was a brick house of four rooms and a living room: two doors and four windows. The doors and windows were secured. Her mother, Nei Raitiria Bwebwerai, woke up between two and three in the morning (Raitiria's mother, Nei Teeitu Buautoa, said her daughter was breast feeding) and found her daughter Taatara, gone. Taatara had been sleeping under a window on a mattress next to her grandmother. Checking the doors and windows it was discovered that the window under which the little girl had been sleeping had been forced: the security wire and three louvres had been pulled out.

A search was made. About 30 minutes later the victim came back wearing nothing on the lower part of her body. She was bleeding from the vagina. When Taatara had gone to sleep she had been wearing a top, underpants and shorts. Nei Raitiria identified her shorts (Exhibit P1) and Nei Teeitu her underpants (Exhibit P2).

The child was taken to the hospital. Dr Kautu Tenaua examined her. He gave evidence. His report:

A young girl still very scared. Both upper and lower lips swollen and bruised with multiple lacerations on the under surface. Bruising around the vaginal opening noted. Laceration also noted right through the posterior vaginal wall, perineum, rectal wall and anal sphincters. The injuries of the lips are consistent with gagging. The vulval, perineal and rectal injuries are consistent with "forceful" blunt vaginal penetration.

Dr Kautu said that his use of the word "blunt" indicated consistency with penetration by something smooth. What he saw was consistent with penile penetration: penetration could, though, have been by something other than a penis.

There is no reasonable doubt that the victim was taken by stealth from the house where she was sleeping and sexually assaulted.

By whom? That is the issue in the case.

Tetabo Tetaua and Kabiaba Aaran had been to a birthday party in Betio. They went back to an area between two houses next to the easterly edge of the BTC field (Prince Philip Park) and facing the main road on the ocean side. Tetabo and Kabiaba were drinking there with another man. Both had known the accused before. It was some time after midnight.

Tetabo:-

Person ran beside us and hid beside a kitchen: a man wearing – naked carrying pants. I pulled him out to a light. Identifies accused. I asked him why running naked? He said running away from woman who pulled his clothes off. I sent him away. I knew him before. Carrying his long pants. Long hair very dirty, naked. After midnight.

In cross-examination: Knew him because we lived opposite each other. Running up main road.

Kakiaba:-

Saw person running naked – six steps away – hid beside a heap of rubbish starting to get his long pants on. Tetabo asked him? Said a woman had pulled his clothes off: I could hear. [Identifies accused.]

I accept without hesitation the evidence of these two men that they saw the accused on this night in the circumstances they described.

During the early morning the police searched the BTC ground. The investigating officer Detective Corporal Bamaere Tiira made helpful sketches of the area (Exhibit P4). The police found P1 close to a spot where the grass had been flattened and where they saw traces of blood. Exhibit P3, the orange coloured underpants, was nearby. According to the sketch the spot was 197 metres from where Tetabo and Kakiaba were drinking. Tetabo said he had seen the accused "running up the main road". Mr Amten for the accused argued that the two places were so far apart they could not be linked. The person Tetabo and Kakiaba saw running could have come from anywhere. I reject the argument. The two areas are close: a man could run easily the distance in less than a minute and would have to come out on to the main road to do so.

The police found P1 and P3 near flattened grass. Nei Raitiria, the little girl's mother, identified P1 (the shorts). Nei Tikoua Tebeau identified P3 (the orange coloured underpants). Nei Tikoua had been living with the accused for some time by 1 July 2000. She did his washing for him. By seeing traces of white paint on the jocks, P3, she identified them as belonging to the accused.

Nei Tikoua said that during the afternoon of 1 July she and the accused had had a fight. This caused her to leave the house of the accused's mother, Nei Emirate Teaitoa, where she and the accused had been living. She went to relatives at Antenon. The accused followed her to Antenon about 10 o'clock the next morning. She did not see the orange jocks after that.

The accused's mother, Nei Emirate, confirmed that the accused and Nei Tikoua had the fight. Her son later, at a time she could not remember, left the house to find his wife: he was wearing long pants. She saw him again about 8 o'clock the next morning. Nei Emirate confirmed that he had a pair of jocks like P3.

I accept beyond reasonable doubt the accuracy of the evidence of the witnesses whom I have mentioned. It follows that I accept beyond reasonable doubt that the little girl's shorts were found near the area of flattened grass on the BTC ground: there were bloodstains. Nearby were the accused's jocks. The accused was seen running naked, carrying long trousers, along the main road in the vicinity. This makes a very strong circumstantial case linking the accused with the taking and misusing of the victim.

The case for the Republic rested in part on circumstantial evidence.

I remarked to Mr Amten during his final address that one piece of circumstantial evidence on its own may prove nothing. It is the accumulation of pieces of circumstantial evidence which is significant. Here there were two pieces – the finding of the shorts and the jocks in proximity: the accused running up the main road naked and carrying his trousers.

At the close of the prosecution Mr Amten submitted his client had no case to answer. When I rejected the submission his client gave evidence. He was the only witness for the defence.

He explained that Tikoua, with whom he had had the fight, told him to go to sleep. He did so: he slept at home all night: he did not leave the house. The witnesses for the prosecution are either lying or are mistaken.

The accused did not have to prove anything. The burden of proof throughout the trial rests on the prosecution. The burden has been discharged: the finding of P1, P3 in the same area is strong circumstantial evidence: the identification by the two men of the accused running up the road is direct evidence of identity. I have no doubt that it was the accused who took the little girl from her house and misused her.

Does that make him guilty as charged? I think not. I must have a reasonable doubt about penile penetration. Dr Kautu found injuries consistent with penile penetration but went no further. I cannot exclude the possibility that there was penetration by something else. The accused undoubtedly caused whatever penetration there was.

Of what then is he guilty? It is not abduction (section 131 of the Penal Code) as there is no proof of his intent to have sexual intercourse. Indecent assault (section 133) is a lesser crime than that charged. The evidence is amply sufficient to prove it beyond reasonable doubt. The victim had undoubtedly been indecently assaulted by the accused.

I find the accused guilty of indecent assault.

Dated the day of January 2003

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE