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High Court of Kiribati |
IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI
Criminal Case No. 1 of 2002
THE REPUBLIC
vs
TAKARIA UBAITOI
TEUATABO TEWEIA
For the Republic: Ms Pole Tebao
For the 1st Accused: Mr Banuera Berina
For the 2nd Accused: Ms Emma Hibling
Date of Hearing: 14, 15, 16, 19 August 2002
JUDGMENT
Originally in January 2002 the accused were charged with a number of different offences but on 14 August 2002 the charges were amended as follows:
Takaria Ubaitoi and Teuatabo Teweia are charged with the following offence:
Count 1
Statement of Offence
Rape contrary to section 128 of the Penal Code (Cap. 67)
Particulars of Offence
Takaria Ubaitoi on 14th April 2001 at Nawerewere, Bikenibeu had unlawful sexual intercourse with Nei Moata Bwebwenteata without her consent.
Count 2
Statement of Offence
Indecent assault contrary to section 133(1) of the Penal Code (Cap. 67)
Particulars of Offence
Teuatabo Teweia on 14th April 2001 between 0300-0500 hrs at Nawerewere, Bikenibeu unlawfully and indecently assaulted Nei Moata Bwebwenteata.
Count 3
Statement of Offence
Assault causing bodily harm contrary to section 238 of the Penal Code (Cap. 67)
Particulars of Offence
Teuatabo Teweia on 14 April 2001 between 0300-0500 hrs at Nawerewere, Bikenibeu assaulted Nei Moata Bwebwenteata occasioning bodily harm on her face and teeth.
The accused pleaded not guilty to each count.
The prosecution called five (5) witnesses to prove its case.
The first witness was the complainant herself (Moata). She testified that she is married to one Tebeio. And on the evening of 13 April 2001 whilst at Betio she and her husband had a rather heated family quarrel because her husband has had an affair with another woman. She was still very cross with him about it when they returned from Betio to Nawerewere where they lived with her father. So she went to her cousin brother's house and took about five cups of local alcoholic beverage of sour toddy. It was about 9 pm then. As she was drinking toddy her husband came and joined her and she drank more with him. Then they quarrelled again and as the result she left him and walked towards Nawerewere hospital where on the way she met a man she didn't know and asked him to go with her to Temaiku. He agreed. So they started walking to Temaiku. Shortly afterwards she met her husband on the way and he got angry with the man and her and started to beat her up but none of his blows landed on her. So she ran away and hid herself behind her cousin's house.
And as she was hiding herself away she saw two (2) men near the store. There was light from the streetlight. They beckoned her over to go to them with a wave. She didn't know them but found out later as who they are and what their names are. She ran to them to hide herself from her husband. One of them is Teuatabo, and he is in court sitting at the dock.
When she went to those men she asked them who they were but didn't tell her and instead urged her to go with them to their house. So she went with them as she wanted them to become a sanctuary for her against her angry husband.
She entered the house which has masonite walls and security wires fixed on top of the masonite all around and a lockable door.
The house was completely dark inside as there were no lights being lit inside except for the moonlight shining outside.
After she entered the house she sat on the floor and Teuatabo who was on her left hand side gave her a can of beer after he opened it. She didn't drink it and left it on the floor. Then he warned her she must accept his request namely that he wanted to have sexual intercourse with her. She refused and begged him not to do it as she has a husband. He then told her he would punch her five (5) times on the eyes. So he punched her twice in the eyes and also in the mouth. She cried and begged him to let her go but he said nothing. She couldn't escape from Teuatabo so she braced herself small in case he punched her again. As she was in such position he touched her vagina and breasts.
When Teuatabo did this to her she was shocked and afraid of him and told him she has a husband and asked him why was he doing that to her. She also told him that if her husband knew what he had just did to her now her husband would certainly beat her up for it. On her part she felt nothing when Teuatabo so touched her.
After she spoke to him thus Teuatabo again punched her twice in each of her eyes and mouth.
After Teuatabo punched her she was crying and making a lot of noises that the man, who apparently up to now had been sleeping inside the house in the mosquito net, woke up and got angry because of the loud noises. Then the two men (second accused and another) blamed her and stirred him up: "This woman here has been making all the noises". She then responded: "These men took me here to protect me from my angry husband and instead they are hurting me now".
Then the other two men (Teuatabo and another) urged the man in the mosquito net (Takaria) to have a go at her (i.e. to have sexual intercourse with her). Teuatabo in particular urged Takaria to have a go at her and also said if she refused they will then beat her up.
She also testified that Takaria then invited her to get inside the mosquito net which she did. Then Takaria asked her to have sexual intercourse with him and she allowed him.
And the complainant further testified that she had consented because she was frightened of Teuatabo and another man who had threatened to bash her up if she refused to have sexual intercourse with Takaria. And they were still lurking inside the house around them after they told Takaria this. Takaria then kissed her and sucked her breasts and held his penis and inserted it in her vagina and thus he had sexual intercourse with her. When they finished she saw the face of Takaria with whom she just had sexual intercourse and he wore a yellow shirt. She however did not know his name at the night they had sexual intercourse but she found out his name afterwards that his name was Takaria. Immediately after this incident she ran away from the house and Takaria where she alleged to have been raped and went directly to Nawerewere hospital to ring the police in order to lodge her complaint with them that Takaria had raped her and also that Teuatabo (2nd accused) and another man had beaten her up in the eyes and mouth and as the result her eyes and mouth were injured and had a broken tooth. At the Nawerewere hospital the first person she saw immediately after she left Takaria was a nurse.
Then in the middle of the cross-examination of the complainant, by Mr Berina, counsel for the first accused, the complainant asked the court to withdraw her complaint against Takaria namely the rape charge because Takaria had apologised to her. The complainant and the prosecution consulted with each other on the matter and the prosecution declined to withdraw the rape charge against Takaria.
Under cross-examination by Mr Berina the complainant was quite firm and unshaken in her evidence that she had consented to have sexual intercourse with Takaria (first accused) not because she wanted to but because of the imminent threat of physical violence which Teuatabo had threatened her with if she refused to have sexual intercourse with Takaria. And having threatened her thus Teuatabo was still lurking around and near them inside the house to ensure that the complainant complies otherwise Teuatabo would beat her up as already threatened.
She admitted however that she didn't tell the first accused about the existence of this imminent threat of physical violence by the second accused, nor did anything to indicate to the first accused of existence of such imminent threat by the second accused and that because of such threat she had consented to having sexual intercourse with the first accused.
Under further cross-examination by Ms Emma Hibling, counsel for the defence for the second accused, the complainant admitted that on evening of 13 April 2001 as already stated above she had been enraged by her husband because he has had an affair with another woman. She admitted also that she took some sour toddy by herself and then again took some more drink with her husband when he joined her later in the evening, and she didn't know how much sour toddy she drank with her husband but she admitted she was drunk that evening but she was still conscious of what went on around her.
She admitted also that she drank sour toddy in order to pluck up enough courage to question and argue with her husband about his affair with another woman which she did as already stated earlier on.
She also admitted in cross-examination that that evening in question she wanted to take revenge on her husband because of his affair as already mentioned earlier on. So she and her husband were trying to outdo each other as to the amount of drink that each one of them could consume. And even though she had taken about five cups already of sour toddy before her husband joined her, she still continued drinking with him again and it must have been about 9 pm or after 9 pm when they were drinking as Radio Kiribati was still on the air then.
Under further cross-examination the complainant denied that her husband's blows landed on her nose and mouth but she admitted that she was frightened of her husband after he started to beat her up near the main entrance gate to Nawerewere hospital, who appeared to have been very angry when by chance he met her at night with another man who is a stranger walking on the road with him.
The complainant also confirmed that there were some houses that she and the two men passed on the way to Takaria's house but didn't stop to seek help from the occupants because she was afraid of her husband who was still around in the neighbourhood where they were walking and it was also very late in the night.
When she was cross-examined regarding her having drunk more beer of about four (4) cans at Takaria's house she denied vigorously but confirmed that Teuatabo (second accused) gave her an opened can of beer to drink but never drank it.
She also confirmed that Takaria's house in which she was, was dark inside and no lights were lit that she could only make out the outline of the man she was talking to inside the house.
The complainant also testified in cross-examination that after she refused to have sexual intercourse with the second accused after he asked her, she told him about her fight with her husband as stated earlier as she would like him to know she had a husband and she thought if he knew she had a husband he would set her free but he did not do so.
She also admitted in cross-examination however that the second accused was cross with her when she told him she was a married woman and had a husband but denied that the man shouted to her and sent her away from the house after she told him about her marital status. The man didn't believe her and told her she was lying and has no husband.
The complainant also confirmed in cross-examination that she is really telling the truth that Teuatabo (second accused) really touched her vagina and breasts and punched her on the face and mouth several times with the result that she lost a tooth.
Under further cross-examination the complainant also confirmed that when she went inside the mosquito net to join the first accused the second accused (Teuatabo) and the other man were still lurking inside the house near the first accused and the complainant in order to ensure compliance on the part of the complainant to have sexual intercourse with the first accused (Takaria) otherwise the second accused and the other man would beat her up again.
The complainant also confirmed under cross-examination that she told the first accused that she came to him to his house to get help (i.e. she came to him to protect her from her infuriated husband) and instead he has not helped her as he has had sexual intercourse with her. This remark of hers made Takaria angry but she denied that he punched her on the face as the result. Instead he slapped her on the right hand side of her face with the back of his hand.
On further cross-examination the complainant admitted that she was drunk that night in question and thus her memory was affected by alcohol but she could still remember something but she could not recall other things.
She however denied that she had invented her story that she was coerced by the second accused, Teuatabo into having sexual intercourse with the first accused, because after she regained her sobriety she realised then that her husband would have been very furious if he knew that she had consented to having sex with the first accused.
The complainant also admitted under cross-examination that when she escaped from the first accused, Takaria, after having sexual intercourse with him she was no longer drunk.
The second prosecution witness was Tiantaake Teaiwa Taoaba (PW2). She testified that she is a nurse and she had been employed as a nurse for 11 years. On 14 April 2001 she was a nurse on duty at Nawerewere hospital. She was on an afternoon shift of 4 pm-12 midnight. Then during the course of her shift a woman came and asked her to use the telephone to ring the police. At first she didn't know her name but found out later that she was Moata. She came at about between 8-9 pm but in cross-examination she said she had forgotten the time when she came. The complainant told her that she had ran away from men who had raped her and she looked frightened and was in disarray and looked untidy. Few hours later she called Dr Kautu to examine her.
When she was asked in cross-examination by counsel for second accused Ms Hibling, about the condition and appearance of the complainant the witness confirmed that the complainant was in disarray, frightened and looked untidy. She did not however know whether or not the complainant was drunk and she can't remember whether or not the complainant smelt of alcohol.
The third prosecution witness (PW3) was Karea Tio, a regular policeman who had been with the Kiribati Police Force for more than a year. On the 14th April 2001, when he was a recruit policeman, he was on duty at Bikenibeu Police Station on a midnight shift which runs between 12 midnight to 8.00 am. At about 7 am he recalled having reported to Sergeant Taubuki who was the investigation officer in charge of this case about an alleged rape, indecent assault and assault cases. After he reported these alleged cases to Sergeant Taubuki, Taubuki including Karea and five (5) other policemen set out by car to the scene of the crime to investigate these alleged criminal cases which was near but on the opposite side of the main road on the lagoon side to the Temaiku direction of the main entrance gate of Nawerewere Hospital.
On arriving at the scene of the crime Sergeant Taubuki explained to the people there the reason for their being there that they came to investigate the alleged rape which has just been reported to them. Then Karea arrested Takaria who was wearing a yellow shirt whilst other police officers arrested two other suspects and put them in the back of car and took them to Bikenibeu Police Station and put them in a lock up. Karea also said that the police investigation party didn't visit the house where the alleged rape took place but went to the house next to it and he saw a number of opened beer cans scattered about on the ground.
The fourth prosecution witness was Taubuki Tebau (PW4). He testified he is a sergeant in the Kiribati Police Force and has been in the force for more than 16 years. He testified that in March 2001 he was posted at Bikenibeu Police Station and he was the investigation officer in this case. He recalled that on 14 April 2001 at about 6 am. Karea with some police officers with the complainant visited him at his house and briefed him about certain alleged sexual and assault cases.
Having been briefed thus he directed some police officers to accompany him and the complainant to visit the scene of the crime which is the first accused's house at Nawerewere near the Central Hospital.
When the witness, the complainant and other police officers reached Takaria's house, Takaria, Teuatabo and Teuea were not inside what may be called the main house but were sitting inside a local raised floor house of the first accused situated near the main house on the lagoon side. Taubuki then explained to the accused the reason for their being there in their place that day that they had come to investigate certain alleged criminal offences. The complainant also confirmed to the witness and police officers that the accused were the ones who had raped, indecently assaulted and assaulted her as she had already reported to the witness and other police officers. The witness then ordered the police officers to arrest the accused and that they be taken to Bikenibeu police station to the lock up which they did so.
Then the witness drew a sketch of the scene of the crime and placed it on the file. Apparently the original copy of such sketch of the scene of the crime was misplaced and another copy of it was made and put in evidence by the witness.
The witness also testified that he inspected the first accused's house and described it as one that was built with local materials with walls of masonite half way all around the house and security wires fixed on top of the masonite walls. It has also a door facing the direction of Temaiku. Inside the house he saw a mosquito net with a mat and pillow and an underwear inside.
He also testified that all the accused were released from custody after spending about two or three days in custody.
He also further testified that about three or four months after he released all the accused from custody, the first accused Takaria paid a visit to the witness at Bikenibeu Police Station and asked the witness whether or not there were some exhibits which he could see. In response the witness told him that they are not allowed to show exhibits for any cases to anybody. Then the accused was going to leave the witness but as he was just about to leave he pulled out a twenty dollar note and gave it to the witness. The witness on receipt of the note told the accused that he was forbidden under police regulation to accept any money. On hearing this the accused told the witness to keep the money and left.
The fifth prosecution witness (PW 5) was Dr Kautu Tenaua.
He testified that he had been practising medicine as a doctor for more than 19 years. He has a diploma in surgery and general medicine and he is a specialist in gynaecology for the last 10 years after he undertook specialist training for gynaecology at Malaysia and Auckland New Zealand School of Medicine. Presently he is being employed by the Kiribati Government at Tungaru Central Hospital, Nawerewere.
On 14 April 2001 he recalled having examined a woman and following which, he prepared and wrote a report. He recalled he signed the report. And the report and the signature on the report were shown to him and he recognised the Report and the signature on the Report as his Report and signature.
In the Report Dr Kautu Tenaua stated he examined the complainant, Moata on 14 April 2001 at about 0810 hours and wrote his report shortly after he finished examining Moata. In his report Dr Kautu Tenaua stated and described the injuries and complaint of Moata as follows:
(It was an): alleged rape case
(There were): swellings and bruising over both cheeks and skin below lower eye lids;
(There were): lacerations and swellings of the left side of the upper lip;
(There was): swelling and bruising of the lower lip;
(There was): broken left upper canine.
No injury noted around the genital area.
All consistent with blunt force injuries.
Bruising on both sides of cheek consistent with "Love Bites".
Signed
Dr K Tenaua
The report was put into evidence without objection.
Dr K Tenaua was asked in cross-examination by Mr B Berina, counsel for the first accused as what a love bite is and he explained that it is a mark or bruise made on the skin of a person after the kissing and sucking of a particular part or section of the skin of a person for more than a minute.
Dr K Tenaua was also asked during cross-examination by Ms Hibling counsel for the second accused as when the complainant's wounds were inflicted on her and stated that because the wounds were still bleeding when he examined her, in his opinion, the wounds would probably have been inflicted on her not longer than 12 hours ago before he examined her.
Dr Tenaua was also asked during cross-examination whether the wounds including the broken tooth which the complainant had suffered could have been caused by an open palm or a back hand hit and he said that they could not be caused so as the wounds suffered by the complainant are far more severe in nature and thus they are consistent with the kind of wound that one could suffer only if a blunt object with a strong force like a strong punch is applied.
That concluded the case for the prosecution. Then Mr B Berina, counsel for the first accused made a submission of no case to answer on behalf of the first accused Takaria. I however found that there was a case to answer and both accused elected to give evidence.
The first witness of the defence was Takaria Ubaitoi, the first accused (the accused). He testified that he is aged 31, a teacher at Tarawa Technical Institute for about three years. He recalled that on 14 April 2001 he was asleep inside a mosquito net at his house and early in the morning he was woken up from his sleep by loud noises. When he woke up the second accused and another man told the accused loud noises were made by the complainant, Moata. Then he saw a woman inside the house and he called her to join him inside his mosquito net where he was. After she joined him inside the mosquito net he was aroused by her being very close to him and so he asked her to have sexual intercourse with her. She consented and so they went through some intimate foreplay by embracing and kissing each other on the mouth and neck and he kissed her breasts and then he inserted his penis in the complainant's vagina and thus had sexual intercourse with her. When they finished sexual intercourse the complainant ask the accused to stay with him to become his wife. The accused refused and told her he already had his own wife.
He also said that when they were inside the mosquito net (i.e. the accused Takaria and the complainant) it was dead silent inside the house. He also wasn't aware that there were other people inside his house as when he first went to sleep earlier in the evening he was by himself and was drunk.
He also said that when he woke up from his sleep the complainant was already inside the house with the two men (the second accused Teuatabo and Teuea). And he did not hear the second accused and another man telling him (accused) to have a go at the complainant and if she refused then that the two men were going to beat her up.
He repeated that the complainant in his opinion had consented to have sex with him as she appears to have enjoyed the foreplay of embracing, hugging and kissing each other and the sexual act itself inside his own house without resisting or indicating that she in one way or other did not consent.
Under cross-examination the accused was asked whether he had apologised to the complainant and he admitted that he did. He was further questioned as why he had felt obliged to apologise to the complainant as after all she had consented to have sex with him, and thus there was no need at all to apologise to her. In his response the accused said that he had apologised to the complainant even though she had consented to have sex with him as already stated before because the accused's brother Ateriano and the complainant's father Bwebwenteata who was once the prison warder at Tabiteuea North and whilst there had bound themselves together to treat each other like flesh and blood brothers under a Kiribati brotherhood pact custom called in Kiribati language as "teitaritari" and because Bwebwenteata the father of the complainant had learned that the accused is the brother of Atiriano had approached the accused and expressed his displeasure about the fact that he has had sexual intercourse with his daughter the complainant Moata, hence the reason for having offered his apology to the complainant Moata.
Further he told the court, he had been forced to apologise to the complainant Moata by Sergeant Taubuki who is the investigation officer in this case. When he advised him to apologise to the complainant he refused and told him when they met at Tarawa Technical Institute, that it was improper for him to apologise to the complainant Moata.
The accused was also questioned during cross-examination as when Taubuki had visited him and forced him to apologise to the complainant:
"Q. When did Taubuki visited you?
The accused was also asked during cross-examination whether he could recall the evidence of Taubuki (PW4) that he (the accused) had visited Taubuki in his office at Bikenibeu Police Station about three or four months after he released the accused from custody and during the course of that visit the accused asked Taubuki about the exhibits for this case and gave him a $20 note which he gave Taubuki as already stated earlier on.
The accused in reply said that he didn't remember Taubuki's evidence on the exhibit but he clearly remembered about $20 note he gave to Taubuki.
He was also asked under cross-examination to explain his relationship to Taubuki and he told the court that he (accused) doesn't know Taubuki but had seen him before; he is not his relative nor a friend but has been his student at Tarawa Technical Institute (TTI); he had met Taubuki at TTI and had shared his smoke with him when they met. Taubuki never visited the accused at his house.
The accused was then questioned under cross-examination why he gave $20 to Taubuki. In his answer he said that is the way he normally behaved when he is drinking and he is with his friend. He gets very generous. He said that he probably was drunk that time. He often gave away his stereo equipment and other things when he is drinking.
The accused under cross-examination admitted that after he had sex with the complainant, the complainant begged him to allow her to stay with him as his wife but he didn't relish the idea at all because he has his own wife and so he forced her to leave him by hitting her on cheek with the back of his hand.
The accused Takaria was also questioned under cross-examination about his caution statement to the police as why he had stated in that statement that no woman ever came to his house at that time in question whereas in fact the complainant was in his house as already stated above, the accused then apologised and admitted that he had lied in his caution statement. And he had lied to the police because Taubuki, the investigating officer for this case had advised him to do so as he had instructed him to make up his own story about the incident in question in order to save himself from being prosecuted.
The accused further stated that when his statement was taken Taubuki alone took his statement without any other police officers being present and witnessing it with Taubuki in the normal way. After he said that to the court, counsel for the prosecution reminded him then that he had just told the court that there was another police officer who was assisting Taubuki and where was that police officer? In his answer he said that that police officer was not around when his statement was taken by Taubuki.
Ms Pole Tebao put to the accused Takaria that he had lied to the court about Taubuki having advised him to invent a story that could save him from being prosecuted he was quite firm and unshaken in his evidence that Taubuki had advised him to lie as already stated above.
When the accused was asked in cross-examination by counsel for the prosecution that he had lied in having told the court that the complainant had consented to have sexual intercourse with him the accused was quite firm and unshaken in his answer that the complainant consented to have sex with him.
The accused was also asked during cross-examination by Ms E Hibling whether or not he noticed any blood coming out of the lips of the complainant when he kissed her lips and he said that he didn't notice any.
The accused was also questioned during cross-examination as how he forced the complainant out of his house and said that he hit her on the right hand cheek with the back of his hand. When Ms Hibling suggested to the accused that he hit her on the face rather than on the cheek, the accused denied it.
The second witness for the defence was the second accused Teuatabo Teweia (DW2). He testified he is aged 39 and unemployed. In April 2001 he lived at Nawerewere. He further testified that on 14 April 2001 at about 3 am in the morning he was with Teuea at Nawerewere standing on the edge of the main road on the lagoon side about 20 yards from Nawerewere hospital's main entrance gate on Temaiku side. Teuatabo said that at that time in question there was a fight there and he went there with his companion Teuea to see that fight. As they were watching the fight Teuatabo said he saw a woman with a man on the main road. He didn't recognise neither the woman nor the man when he saw them. He learned later that the woman was the complainant Moata. Teuatabo said also that he saw that woman (complainant) being beaten up by another man. And as the complainant Moata has already testified in her evidence that that man was her own husband, Tebeio.
Teuatabo testified also that he saw the man punching the complainant on the nose about three times and also at the back of the top of her head. During the fight some people came to watch. In the meantime the woman shouted and screamed and ran around and behind the man she was walking with obviously to avoid her attacker's blows. The woman (the complainant) eventually managed to escape from her attacker and started to walk on the main road heading to Temaiku direction.
Teuatabo was able to see the complainant walking on the main road as such main road was illuminated by the streetlights of Nawerewere hospital which are mounted on tall iron posts inside the hospital area or compound behind the brick walls near the main entrance gate of Nawerewere hospital and along but behind the brick wall on the side of main road on the ocean side to the Temaiku direction.
When the complainant was about 10 yards from where they were standing Teuatabo noticed that the complainant appeared to be unsteady on her feet when she walked and she staggered as if she was drunk.
When she saw Teuatabo and Teuea she approached them and asked them for beer. In response Teuatabo told her that he could get some. Teuatabo and his companion could clearly see the complainant approaching them as there were some lights from the nearby houses near which Takaria and Teuea stood, illuminating the particular spot where they stood to which the complainant was approaching.
After they told the complainant that they would get some beer Teuatabo and Teuea started walking towards Takaria's house which situated near the lagoon side. It took some five minutes or so away from where Takaria and Teuea stood on the edge of the main road as stated before already. Takaria's house is about 45 metres long according to the evidence of this witness (DW2).
On reaching Takaria's house after five minutes' walk from the edge of the main road Teuatabo first entered the house through the door, then Teuea followed and shortly afterwards the complainant entered too.
When she entered the complainant stood in the doorway and Teuatabo asked her to sit down near the door. Because she had asked them for beer when the complainant first met them on the edge of the main road as stated before already, Teuatabo suggested to Teuea to look for any left over beer of Takaria (first accused). Teuea found four (4) small cans of beer still held together by the plastic string and brought them over to the table inside the house and left them there.
As the four cans of beer were left on the table the complainant helped herself with one and when she finished she threw the empty can away and took another one. As she was drinking she asked for a smoke. She was given a smoke, she lit it and from the light of the match with which she lit her smoke Teuatabo was able to see her swollen face and untidy hair.
She again took another can of beer and as she was drinking Teuatabo made a request of her that he want to have sexual intercourse with her. The complainant responded and told him: "There is no problem, it is perfectly OK".
Then she grabbed another can of beer from the table and drank it up also. She asked for another can of beer after she finished her fourth can of beer but by then Teuatabo and his companion had ran out of beer. However Teuatabo assured her that they could get some more in the morning either from Tetaua or Nauan's store but not immediately then as it was still dark as the dawn was just breaking. Then as they were talking with the complainant thus the complainant suddenly burst out crying and in the midst of such outburst she told Teuatabo and his companion that she had a problem with her husband as they had been fighting. Then Teuatabo asked the complainant whether she was the woman that a man was seen to have beaten her up on the main road near the hospital before she came to Takaria's house and the complainant admitted that she was. The complainant told them also she is a married woman and she has a husband.
On hearing the complainant's story Teuatabo was infuriated and told her that what she had done (i.e. running away from her husband and then following them to protect her from her husband in Takaria's house) was very dangerous and he could get killed for it by her husband. The complainant in the meantime said nothing.
On his part Teuatabo became very concerned and his sense of joke and derision which he had when he asked the complainant to have sexual intercourse with her disappeared altogether into one of fear of what the husband of the complainant was likely to do to him. In anger and fear as he pondered thus Teuatabo hit the table with his fists and shouted and ordered the complainant to leave straight away before her husband started to look for her. He also chased her away from the house. The complainant then stood up from her chair and as she moved she staggered and fell on the ground and she apologised to Teuatabo.
Following the argument, the shout and noise Takaria the first accused must have been disturbed as he then woke up from his deep sleep.
Under cross-examination Teuatabo (the second accused) confirmed that he saw a person on the main road near the entrance to the Nawerewere hospital early in the morning at about 3 am on 14 April 2001.
Teuatabo also confirmed that in relation to the person he saw and where he was, in his estimate, he was about 24 yards or more from that person when he first saw that person near the Nawerewere entrance gate which was well lit by streetlights. He also stated that he didn't know nor recognise that person whether that person was a man or woman nor was he able to identify the colour of the clothes the person wore that night except the outline of the clothes.
Teuatabo also stated that after he clearly saw that person who was on the road that that person has a long hair he then concluded that that person must have been a woman. And when he spoke with that person, and that person spoke with a voice like a woman and then he knew without any doubt that person was a woman. And as the complainant has stated already, that person was indeed the complainant Moata. When they entered the house the house was dark inside.
Teuatabo also confirmed under cross-examination that he and Teuea walked back to Takaria's house for about five minutes and met no one on the way. They then entered the house and shortly afterwards a woman followed and entered the house and heard a female voice asking for beer. When they heard that female voice they recognised it as the one that also had asked them for beer when they were standing near the main road, watching the fight. As already stated already before that woman was the complainant Moata.
Teuatabo also confirmed in cross-examination that the complainant was not given beer but she simply took them as they were left on the table where she was sitting.
Teuatabo also confirmed in cross-examination that after the complainant finished drinking the third can of beer he then asked her to sleep with him.
Teuatabo further confirmed that after the complainant finished drinking her fourth can of beer she asked for more beer but she was given none as there was none left and so Teuatabo told her that he would get some at the first daylight in the morning at Tetaua or Nauan's store.
Teuatabo also confirmed that he asked the complainant to have sexual intercourse with her because it was a kind of joke for the complainant and a way of expressing his contempt, disapproval and disgust of the complainant as a married woman because of what she did that night and morning in question of drinking beer in the company of strange men in the middle of the night in a stranger's house away from her husband.
Teuatabo also confirmed in cross-examination that the complainant told him that she is a married woman and has a husband but he denied that he touched her vagina and breasts and also that she wanted to escape from him (Teuatabo).
The third witness of the defence was Taurerei Tokintekai (DW3). He testified that he is 34 years, a watchman at Tungaru Central Hospital, Nawerewere, and has been a watchman for about two years. In April 2001 he was still a watchman at Nawerewere.
On 14 April 2001 early in the morning the witness was on duty at the main entrance gate of Nawerewere hospital and whilst there he heard a voice saying: "Go away I don't want to be your wife any more". On hearing that voice the witness looked around and about to find out where the voice came from.
He then saw a woman in the middle of the road and recognised her as the complainant Moata because he has seen her before, as she often came to Nawerewere hospital to collect some medicine like tablets and other medication. When he saw her Moata was walking with a man whom he didn't know nor recognised.
Then he saw Moata's husband who was following her may be because he was cross with her when he saw her walking with a strange man. Then her husband approached her and picked a piece of stick to hit her with but threw it away and instead he threw punches at her with his fists about two or three times on her face.
The witness said he was about 15 metres away from Moata and her husband when he threw punches at her and he didn't see the blows actually landing on the complainant's face but he saw the complainant moving backward and staggered when her husband threw punches at her while she shouted and ran around the other man to shield her from the blows of her husband and told him that she did not want to be his wife any more.
He said also that he saw Moata running away from the husband.
He said also that after Moata ran away he never saw her again.
He further testified that when he saw Moata walking she was unsteady on her feet and staggered and her hair was untidy.
That concluded the case for the defence.
I then heard addresses from counsel for the Republic and counsels for the defence.
Counsel for the Republic Ms Pole Tebao submits that the Court "treat the complainant as a credible witness especially since her evidence remains unshaken in cross examination." She further submits that as far as Takaria is concerned the court attach little weight to his testimony in view of the fact that he gave Taubuki $20 for no apparent good reason whatsoever especially as Taubuki was neither a relative nor a good friend. As regards to Teuatabo's testimony she submits that the Court accepts the testimony of the complainant and reject the testimony of that of the second accused Teuatabo.
Mr. Banuera Berina counsel for the first accused Takaria submits that "there was no evidence at all as to the state of mind of the accused", because the prosecution had never put to Takaria in cross examination that he was aware of the threats made by Teuatabo before he proposed to the complainant to have sexual intercourse with her. And because of this failure of the prosecution to challenge the accused about the consent of the complainant counsel submits that it is improper on the part of the prosecution to ask the Court to reject the evidence of the accused relevant to this part of the case.
Mr. Banuera Berina further submits that because the accused's belief that he was not aware of the threat (if any) allegedly made by Teuatabo to the complainant and therefore mens rea has not been proved at all beyond a reasonable doubt. He further submits that because the accused's belief that he was not aware of the alleged threat made by Teuatabo to the complainant had never been challenged by the prosecutor that it was not honest and it was unreasonable, made the defence of the accused a good defence.
Miss Emma Hibbling counsel for the second accused Teuatabo Teweia submits that:
Assault causing Actual Bodily Harm
"he then beat me up...he punched me in the eye. He punched me twice in each eye and one punch landed on my mouth". She does not in her evidence attribute any cut, broken tooth, bleeding, swelling or pain to this alleged assault.
Before I consider the evidence I must direct myself that the burden of proof beyond reasonable doubt remains upon the prosecution all throughout the proceedings of the trial in this case from the beginning to the end. The prosecution must prove each count of the charge and each element of the charges beyond reasonable doubt and if it fails to do so then the accused are entitled to be acquitted.
There is no onus on the accused to prove their innocence. In the instant case, the prosecution must prove beyond reasonable doubt that:
I must also direct myself that in cases of this nature it is dangerous to convict on the uncorroborated evidence of the complainant. However bearing that warning in mind if I have no doubt that the complainant is speaking the truth then I may convict on her evidence, even though uncorroborated.
There are two accused involved in this case.
The first accused Takaria Ubaitoi has been charged with rape under count 1 contrary to section 128 of the Penal code (Cap. 67).
The second accused Teuatabo Teweia has been charged under count 2 with indecent assault contrary to section 133(1) of the Penal Code (Cap. 67) and under count 3 with assault causing bodily harm contrary to section 238 of the Penal Code (Cap. 67).
As regards to the charge of rape against Takaria Ubaitoi the issue is consent. And the main source of the evidence of the prosecution comes from sole evidence of the complainant Nei Moata herself. She stated in her evidence that she had consented to having sexual intercourse with Takaria because she was afraid of the second accused and his companion Teue who had threatened her of physical violence if she refused to have sex with Takaria.
In reviewing the complainant's evidence I am not satisfied that the complainant is a reliable and truthful witness. And the reason for my saying so are based on the complainant's own version of what she did and happened to her on the night of 13th April 2001 and morning in question of 14th April 2001.
From her evidence in chief and cross examination the complainant admitted that on the night in question she had made herself drunk by consuming at least ten (10) cups of the local brew called sour toddy. And she did this because she had learned that her husband has had an affair with another woman or girl so she was quite irate and vindictive towards her husband. However because the complainant was in such drunken stupor on that night in question her mental power or ability to think rationally and sensibly as a normal married person or woman and to recall precisely and truthfully what she did and happened to her and on that evening is highly suspect and unreliable.
For example to show that the complainant was in such a drunken stupor on that night in question, when she was with her husband in her cousin's house enjoying some sour toddy together as well as arguing between themselves, obviously about the husband's affair she immediately left her husband and started walking towards the main gate to Nawerewere hospital and as she was walking she met on the way by chance a man (a stranger) whom she didn't know at all and without any hesitation she asked him to accompany her to go to Temaiku area which is far away from the Nawerewere hospital's main entrance gate. Besides it was very late at night as it was well past midnight by then. The man the complainant asked to accompany her to go to Temaiku agreed to accompany the complainant. As the complainant and the stranger started walking towards Temaiku area, the husband of the complainant saw and recognised his wife the complainant and got angry with her. So the husband approached her and started to beat her up. And according to the evidence of the complainant none of her husband's blows ever landed on any part of her body including her face.
She then managed to escape from her husband and went and hid herself behind her cousin's house. I shall come back later to this part of the complainant's evidence when I consider the evidence adduced by the defence relating to injuries suffered by the complainant and observed by the defence witnesses.
As the complainant was hiding herself away behind her cousin's house she saw from the streetlight two (2) men near a certain store. They beckoned her over with a wave to go to them. It was 3 am of the next day by then of 14th April 2001. She went over to them but said in cross examination she went to those men because she wanted them to protect her against her angry and violent husband. These men invited her then to go with them to their house. She agreed and went with them. When she was cross examined that she had willingly gone with these two men to their house she denied it and said that she went with them simply to protect her against her husband who was very angry and violent at that night in question. I find this explanation of the complainant's reason to wanting to go with the two strange men curious. After all the two men were totally and absolutely strangers to her; she doesn't know them at all. They were not even related to her or close relatives at all. She just met them for the first time that early morning at about 3 am on Saturday of 14th April 2001 on the side of a public road near Nawerewere hospital. Yet the complainant in her evidence said that these two strangers would protect her against her angry and violent husband and hence the reason why she went with them.
The complainant's belief and trust on these two men who are total strangers to her to protect her against her very angry and violent husband is nonsensical given the circumstances that she was entirely alone with these two men during the early part of the morning at around 3 am when everybody is normally in bed fast asleep and thus the whole neighbourhood was deserted and quiet.
The complainant's story that she believed these two strangers (the two men) would afford her protection against her furious and violent husband's further attack on her would have been plausible had she decided to remain hiding herself where she first did at the backyard of her cousin's house before she joined the two men. She certainly would have been afforded a better protection against her furious and violent husband had she remained at the backyard of her cousin's house as her cousin being her close relative would have come to her assistance should her furious and violent husband assail her again. But there is no guarantee whatsoever on the part of the two strangers that they would protect her against any further harm that her husband may wish to inflict on her should he decide to. In fact her allegation that one of the men (second accused) had indecently assaulted and also assaulted her and asked her to sleep with him are some of the possible things that are foreseeable and inevitable under the circumstances which those two strangers could do to the complainant.
Yet the complainant in her evidence believed and trusted these two men that they would protect her so and thus she followed them to their house. In fact the house they called their house to which they invited the complainant to go to with them is not their house but it belongs to the first accused – Takaria Ubaitoi. I therefore do not believe and appreciate the complainant's story that she didn't want to join and go with the two men to their house except that she simply wanted the two men to give her protection against further assault on her by her husband who about an hour or so ago had also assaulted her. After all she in fact had followed them to the house and the two men used no force or violence at all in order for her to follow them to their house. Further she had ample opportunity to escape from the two men should she decide to but she didn't or seek help from the occupants of various houses they passed on their way as they walked to Takaria's house because according to the evidence of the second accused the complainant walked behind them and followed them to the house and she was the last person to enter the house. As the complainant herself had admitted in her evidence that night and early morning in question she was under the influence or in a drunken stupor. I am therefore satisfied beyond doubt that her mind and memory had been badly affected by alcohol and as the result she could not properly recall what she did and has happened to her that night.
When the complainant was questioned in cross examination that she was still drunk when she ran away from the first accused Takaria after she had had sexual intercourse with him she denied and said that she was no longer drunk. I am satisfied beyond doubt therefore that the complainant was drunk or under the influence during the night and early morning in question when she was with the accused.
The evidence of Teuatabo the second accused and the third witness of the defence Taurerei Tokintekai also lend support to the fact that the complainant was drunk that night and morning in question.
Now going back to the evidence of the complainant relating to her husband's assault on her when he saw her walking with a strange man on the main road near the main entrance gate of Nawerewere hospital she testified in cross examination that none of the blows of her very angry and jealous husband ever landed on any part of her body including her face because she dodged them all.
However the evidence of the complainant is inconsistent with the evidence of Teuatabo the second witness of the defence and the second accused who testified that "he saw the man (i.e. the complainant's husband) punching the complainant on the nose about three times and also at the back of the top of her head. During the fight some people came and watch. In the meantime the woman (i.e. the complainant) shouted and screamed and ran around and behind the man she was walking with obviously to avoid her attacker's blows. The woman (the complainant) eventually managed to escape from her attacker and started to walk on the main road heading to Temwaiku direction".
This evidence clearly contradicts the evidence of the complainant as the husband's blows did actually land on the complainant's nose and at back of head.
Teuatabo also testified that when the complainant lighted her smoke with a match inside the house he observed from the match light that her face was swollen. Taurerei Tokintekai (DW3) testified also that whilst he was on duty as a watchman at the main entrance gate to Nawerewere hospital he recalled seeing Moata the complainant walking with a strange man on the main road. Then he saw Moata's husband following her and as he came near her he punched her with his closed fists about two or three times on her face. The witness said he didn't see the blows of husband actually landed on the complainant's body or face but he saw the complainant moving backward and staggered whenever the husband punched her. She also heard her telling her husband that she did not want to be his wife any more.
Again this evidence supports some of the account of event as testified by Teuatabo Teweia (DW2).
I will now turn next to the evidence of complainant when she eventually reached the first accused's house. She testified that when she entered the house it was completely dark inside and there was moonlight only outside the house.
However despite her having seen and known that the house was completely dark inside and that she was the only woman who is also a married woman amongst the two strange men whom she just met about an hour or so ago she was still prepared to take the risk of the possibility of being raped and indecently assaulted by these strange men and willingly went inside the house with these two strangers.
According to the evidence of Teuatabo Teweia he saw the complainant being beaten up by her husband at about 3 am. And given the fact that the complainant managed to escape from the husband during the attack and went away and hid herself at backyard of her cousin's house and then went to Teuatabo and his companion and then walked to Takaria Ubaitoi's house for about five minutes it could be estimated that Teuatabo and his companion and the complainant could have reached Takaria Ubaitoi's house (first accused) between 3 to 3.30 am on Saturday morning of 14 April 2001. According to Sergeant Taubuki Titau (PW4) and Policeman Karea Tio (PW3) they testified that they had received the complainant's complaint about her having been raped and indecently assaulted by telephone at about between 6 to 6.30 am.
So it would appear that the complainant had stayed with the accused in Takaria's house for about between two to three hours having been with them about between 3.30-6.00 am. And when the period before she met the accused is included namely between 10 pm of 13 April 2001 to 2 am of 14 April 2001 it appears that the complainant had ran away from her husband for about nine hours in favour of and in total trust of strange men during the late night of Friday 13 April 2001 and early morning of 14 April 2001.
This is not expected of or considered proper for a married I-Kiribati woman like the complainant or for any married woman for that matter to do.
The complainant in her evidence is quite firm and unshaken that Takaria Ubaitoi had raped her without her consent. However she had consented to having sex with him because of the physical threat that the second accused and his companion had set out to inflict on her if she refused to have sex with the first accused.
The first accused Takaria Ubaitoi on the other hand denied strongly he was aware of such threat having been communicated to him either by the complainant herself or by Teuatabo and his companion. While the explanation given by the first accused in his evidence is curious I do not think that the evidence of the prosecution goes so far as to eliminate any possibility that it could be true. In any event, the question is not simply one of making a choice between the complainant's evidence and that of the first accused's evidence. The burden of proof remains on the prosecution, which must establish that the evidence of the complainant is true beyond a reasonable doubt.
I have considered the complainant's evidence not in isolation, but in light of all other evidence, and I find that I am left with some doubt as its truth. The accused is entitled to the benefit of the doubt. He is found not guilty of the charge of rape and is acquitted accordingly.
As regards to count 2 and count 3 under which Teuatabo Teweia (the second accused) is charged with indecent assault and assault causing bodily harm respectively the complainant is quite firm and unshaken in her evidence that with regard to indecent assault Teuatabo Teweia (the accused) had indecently assaulted her without her consent and with regard to assault causing bodily harm the complainant is also very firm and unshaken in her evidence that Teuatabo Teweia has assaulted her occasioning bodily harm on her face and tooth.
The second accused as already stated before strongly denied both of these charges. While the explanation given by Teuatabo Teweia is also curious I do not think that the evidence of the prosecution goes so far as to eliminate any possibility that it could be true. In any event again the question is not simply one of making a choice between the evidence of the complainant and that of the second accused's evidence. The burden of proof remains on the prosecution to establish that the evidence of the complainant is true beyond a reasonable doubt.
I have considered the complainant's evidence not in isolation, but in the light of all the other evidence and I find that I am left with some doubt as to its truth. The second accused is entitled to the benefit of the doubt. He is therefore found not guilty of both charges of indecent assault and assault causing bodily harm.
Dated the day of May 2003
THE HON JUSTICE MICHAEL N TAKABWEBWE
JUDGE
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