Republic v Ioane [2003] KIHC 98; Criminal Case 05 of 2003 (16 September 2003)

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

Criminal Case No. 5 of 2003

THE REPUBLIC

vs

TEBUTEI IOANE

For the Republic: Ms Melissa Kent
For the Accused: Ms Jacqueline Huston

Date of Hearing: 16 September 2003

JUDGMENT

Tebutei Ioane is charged with indecent assault. The charge arises out of an incident on a bus coming to Betio some time in the morning on the 27^th January 2002. The accused got on the bus at Bikenibeu: he sat in the back seat on the driver's side, by the window. The complainant, Nei Riarerei Harry, got on at Eita: she sat in the second to last seat immediately in front of the accused. An older woman, Nei Tieri Tekiba, sat next to her.

As the bus was passing through Bairiki in the vicinity of the BPA and KPF, the incident occurred. Tebutei grabbed Nei Riarerei's right breast: it didn't hurt but was a shock: she brushed his hand away: got up and told the driver to stop at the Bairiki Police Station. Tebutei said nothing. The driver stopped at the Police Station. Nei Riarerei complained: Tebutei was detained. Nei Riarerei described (and demonstrated) a deliberate action by Tebutei in grabbing her breast.

In May or June this year Tebutei, her nephew, went to Nei Matirita Burete-Langley. Nei Matirita is the grandmother of Nei Riarerei's husband, Harry. Tebutei said he had come to make an apology: he had made a joke with Harry's wife by grabbing her breast. Nei Matirita told him the apology should be to Nei Riarerei not to her. They set out for Harry's and Nei Riarerei's house but Harry would not allow Tebutei to come there and he went away.

The prosecution case was of a deliberate touching, without justification or consent, of the complainant's right breast.

The accused on the other hand, admitted a touching of the breast: he had been holding on to the side of the seat in front of him: the bus lurched forward: his hand slipped forward and touched Nei Riarerei's breast: he immediately withdrew his hand: he had no idea how it came he touched her breast: it had not been his intention.

Tebutei admitted going to see Nei Matirita earlier this year: he told her he had only made a joke by touching Nei Riarerei on the breast.

The three prosecution witnesses were credible. I accept their evidence beyond reasonable doubt. Nei Riarerei and Nei Tieri described a deliberate touching of Nei Riarerei's breast. They denied any lurching of the bus. Tebutei made an admission to Nei Matirita: that it was a joke: he did not suggest to her that it was unintentional.

The accused did not have to prove anything. The prosecution had the onus of proving the case beyond reasonable doubt and it has discharged the onus. Having heard the four witnesses I have no doubt that the incident occurred as described by Nei Riarerei and Nei Tieri. The accused deliberately and indecently touched the victim by grabbing her right breast as she sat in front of him on the bus. That was an indecent assault.

The accused is guilty.

Dated the day of September 2003

THE HON ROBIN MILLHOUSE QC
Chief Justice