Republic v Kimaere [2004] KIHC 14; Criminal Case 29 of 2003 (22 January 2004)

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

Criminal Case 29 of 2003

THE REPUBLIC

vs

TEKARIBA KIMAERE

For the Republic: Ms Pole Tebao
For the 1st Accused: Ms Jacqueline Huston

Date of Hearing: 7, 8 and 9 January 2004

JUDGMENT

The accused – Tekariba was charged as follows:

Count 1

Statement of Offence

Defilement of a girl under 13 years of age contrary to Section 134 (1) of the Penal Code (Cap 67.)

Particulars of Offence

Tekariba Kimaere on or about 28 May 2001 at Tebunia, South Tarawa in the Republic of Kiribati, unlawfully had carnal knowledge of one Mareweata Kabiri, a girl under the age of 13 years.

Count 2

Statement of Offence

Defilement of a girl under the age of 13 contrary to Section 134(1) of the Penal Code (Cap 67).

Particulars of Offence

On or about 5 November 2001, at Tebunia, South Tarawa in the Republic of Kiribati, Tekariba Kimaere unlawfully had carnal knowledge of one Mareweata Kabiri, a girl under the age of 13 years.

Count 3

Statement of Offence

Assault causing actual bodily harm contrary to section 238 of the Penal Code (Cap. 67).

Particulars of Offence

On or about 5 November 2001, at Tebunia, South Tarawa in the Republic of Kiribati Tekariba Kimaere unlawfully assaulted one Mareweata Kabiri and thereby did her bodily harm.

On arraignment the accused pleaded not guilty to all the above three counts of the two charges of defilement on 28 May 2001 and on 5 November 2001, and assault causing actual bodily harm arising out of events of 5 November 2001.

It appears that there are two issues to be decided in this case. The first one is whether the allegation of the prosecution against the accused that on 28 May 2001 he unlawfully had sexual intercourse with Mareweata – the complainant who, at the date of commission of the alleged offence, is allegedly under 13 years of age is well founded or not.

The second issue on the other hand is whether sexual intercourse which took place on 5 November 2001 between the accused and the complainant who, at the date of that said sexual intercourse is allegedly under the age of 13 years, is unlawful.

There are two separate occasions when the alleged offences of defilement took place which gave rise to the charge of Tekariba Kimaere with defilement of a girl under 13 years of age under Section 134(1) of the Penal Code (Cap. 67).

The first occasion was on the night of 28 May 2001 at Tebunia, South Tarawa.

That night Mareweata (the complainant) was sleeping by herself on a raised floor house (buia) inside her mosquito net.

She is a member of the accused's household and has been raised and cared for by the accused and his wife – Nei Karoa since she was two years old after her mother, Nei Raua died in 1992. Nei Karoa is the mother of Nei Raua and the grandmother of the complainant.

The first occasion when the alleged offence of defilement occurred is on the night of 28 May 2001.

On that night the complainant and the two daughters of the accused's who are members of the accused's household were all sleeping away on a raised floor house (buia). The two daughters' of the accused were sleeping inside one separate mosquito net whilst the complainant was sleeping by herself inside another separate mosquito net. The accused on the other hand sleep by himself in another separate mosquito net.

As she was sleeping inside her mosquito net the complainant felt the accused lying next to her inside the mosquito net. He then undressed her. The complainant said she wore a blouse (tibuta), short and underpants. The accused took her short and underpants off her. Then he removed his own lavalava which he wore that night and then got on top of her and had sexual intercourse with her. When the accused finished sexual intercourse with the complainant, the complainant was bleeding in the vagina. Then the accused left the complainant and warned her not to tell anybody about what he had just done to her otherwise he would kill her.

She saw him too and recognised him as the accused as he got out of the mosquito net and started to walk to the beach on the ocean side.

The second occasion when the alleged offence of defilement also occurred was on 5 November 2001 also at Tebunia, South Tarawa.
The complainant herself alleged that the accused did the same thing again to her for the second time many months after the first alleged offence of defilement on 28 May 2001 took place.

The accused however admitted having had sexual intercourse with the complainant on 5 November 2001, but that was perfectly proper and lawful as far as he was concerned as the complainant herself was entirely responsible for it and also she is a consenting party.

In order to prove its case the prosecution called four witnesses:
The first witness is Dr Kautu Tenanaua (PW1).

Dr. Kautu Tenaua (PW1)

He is a senior and experienced doctor of gynaecology and obstetrics for some years and he is presently practising at Government Tungaru Central Hospital at Nawerewere, South Tarawa.

He had during his practice as a gynaecologist and obstetrician examined many female patients, both young and old who had been the victims of sexual offences. And following such examinations he normally prepared a report of his findings. Dr. Tenaua had prepared a number of such reports.

On 12 November 2001 Dr. Tenanaua examined the complainant following a "Request for Medical Examination" by the Commissioner of Police as per Bikenibeu Police Station request dated
11 November 2001.

After he examined Nei Mareweata Kabiri on 12 November 2001 at 0015 hours his findings are as follows:

"Patients name: Mareweata Kabiri

Date: 12/11/01 – 0015 hrs

A young girl between 10-12 years of age. Short stature, swollen and bruised upper lip. Hymen torn at 3 o'clock and 6 o'clock. No signs of recent vulval injury. Lip injury consistent with blunt force injury.

Dr. Kautu Tenaua"

Dr. Tenaua's report was given in evidence and marked as Exhibit "P1".

In his testimony Dr. Tenaua testified that 'hymen torn at 3 o'clock and 6 o'clock means that the virginal membrane of vagina of complainant called the hymen was torn inside the vagina at the area on the centre right hand side of the vagina and at the bottom of the vagina which is similar to the position of 3 o'clock and 6 o'clock in a clock.

This means that the complainant was no longer a virgin.

Dr. Tenaua further testified that these tears in the hymen of the complainant could have been caused by something smooth and bigger than the size of the hymen for example a penis, could have been pushed or inserted in the vagina of the complainant.

He also said that the upper lip injury was caused by a blunt slap and was not fresh as the injury has no reddish or bluish mark on it when he examined it on 12 November 2001.

In cross-examination Dr Tenaua agreed that the tears or injuries to the vagina which he described could have been caused by any object like the complainant's fingers. Dr Tenaua also confirmed that he saw no broken or torn skin on the upper lip except swollen and bluish and such swollen and bluish lip could have been caused by a light force. He also testified that it takes about five days after the injury was infected to heal up.

Mareweata Kabiri (PW2) is the next prosecution witness. She is the complainant and testified that she is now aged 14 and presently lives with her grandmother Taoiti at Eita village, South Tarawa. Her father is Kabiri Kareo and her mother Nei Raua had already passed away. She knows very well Tekariba Kimaere – the accused as she had been living with him and his wife – Nei Karoa for a long time. Nei Karoa is her grandmother as she is the mother of her mother – Nei Raua. In 2001 Nei Terere – the daughter of the accused and Tekuata and a small child were all living there also with the accused and wife and complainant.

In the year 2001 the complainant's grandmother – Nei Karoa died. The victim couldn't recall the date and month when the grandmother – Nei Karoa died, but the accused – the husband of Nei Karoa in his evidence said that she died on 18 May 2001.

At Tebunia, South Tarawa all the family of accused including the complainant used to live in two local houses with raised floors (buia) of which one (the bigger one) is about 10 x 5 meters and the other (the smaller one) is about 6 x 5 meters.

At night the family used the bigger "buia" for sleeping. The complainant usually sleep by herself in a separate mosquito net whilst Terere and Tekuata usually sleep in another separate mosquito net. The accused on the other hand usually sleeps by himself in another separate mosquito net.

On the night of 28 May 2001 the complainant as usual was sleeping by herself inside her mosquito net on the bigger 'buia'. Terere and Tekuata were also sleeping inside their mosquito net on the same buia.

By this time the complainant's grandmother and also wife of the accused had died about 10 days before the incident in question.
While the complainant was asleep she testified that the accused entered her mosquito net and disturbed her. She said he was going to have sexual intercourse with her:

"He (accused) entered my mosquito net. I felt him beside me. He undressed me I was wearing short and blouse (tibuta) and underpants. The accused took my short and underpants off me. He got on top of me. The accused was wearing a lavalava. He took it off. Then I was bleeding from my bottom: vagina. I already had my first menstrual period. Blood came out from my vagina when the accused did that dirty thing to me. Accused had sexual intercourse with me. Accused's head was on top of my head. I laid on my back and the accused was lying on top of me with his legs on top of me and leg on my body. His bottom was on my hip and while on top of me he has sexual intercourse with me. When he was on top of me he was naked and I couldn't see any part of his body".

The complainant was asked during examination in chief as what was inside her vagina and she said "his penis" (the accused). She continue her evidence and said "I did not have my period that night. I bled after the accused had sexual intercourse with me and the accused's penis caused my vagina to bleed. The accused's penis was inside my vagina that is why my vagina bled".

After he had sexual intercourse with her the accused warned her not to tell anybody about what he had done to her that night otherwise he would kill her.

As the accused was leaving her, the complainant could see him walking to the beach on the ocean side to relieve himself.

The complainant clearly recognised the accused as he got out of her mosquito net and walked towards the beach on the ocean side.

After the alleged incident of 28 May 2001 the complainant continued living with the accused and his daughters Terere and Tekuata at Tebunia, South Tarawa perhaps because she did not know any other person to go to apart from the accused and his daughters. Then some months later after the incident of 28 May 2001 the complainant alleged that the accused "did the same thing to her again" meaning the accused had sexual intercourse with her again the second time.

Following this 5 November 2001 incident the complainant ran away and left the accused and his family altogether. The complainant also stated that her aunt (mother's sister) took her to the hospital for medical examination. When she was examined by the doctor on 21 November 2001 she had by then already left the accused's household.

The complainant also stated that the accused punched her on the mouth and as the result her upper lip was injured with a tear. She also testified that she had lived with the accused for a long time and thus she knows him very well. Consequently she had regarded him as her grandfather but ceased to regard him as such after he had sexual intercourse with her.

In cross-examination Mareweata – the complainant confirmed that her grandmother – Kamoa who was also the wife of the accused had died before the incidents in question. She also confirmed that she never told any body about the incidents in question for a long time, in fact, for some months. She however denied that the accused had hit her with his palm. Instead she confirmed that he punched her on the mouth.

The complainant also confirmed that the accused has had sexual intercourse with her but denied that she had learned about sexual intercourse at school but that she had learned about it from the accused himself as the accused has had sexual intercourse with her. She also denied that in November 2001 because the accused has scolded and hit her because she had lost the accused's ring, she then set out to get the accused into trouble who was also drunk that night and that is when she made up her story about the accused.

She also strongly denied that she had touched the accused's penis and branded him as a liar when he said she touched him so.

Kabiri Kareo (PW3). He is the third prosecution witness and testified he is a married man and natural father of Nei Mareaweata – the complainant. He has three other children.

His first wife – Nei Kamoa and mother of Nei Mareweata – the complainant died in 1992 when Mareweata was a child of two years old. He testified that Mareweata was born at Taborio, South Tarawa on 5^th April 1989 and had registered her birth at the office of the Registrar General, Bairiki, South Tarawa on 10 April 1989. When the complainant's mother – Nei Raua died in 1992 then her grandmother – Nei Kamoa and the accused adopted the complainant as their daughter according to Kiribati custom. The witness also testified that he knew the accused and he is in court.

Tawita Kairoronga (PW4)

He is the fourth prosecution witness and testified he is a detective corporal in the Kiribati Police Force and has been as such for more than three years. He however has been a policeman with Kiribati Police Force for about 10 years.

He recalled he was at the Crime Branch office at Bikenibeu Police Station in an office room of about 4 x 2 meters as a witnessing officer with the investigating police officer Teuatana Merang in this case. The witness testified that he was with the investigating officer – Teuatana and the accused throughout the whole time when the statement of the accused was taken and questioned. He testified also that when the accused's statement was taken and questioned he was sitting between the investigating officer and the witness inside the office. And the accused was not in any way forced nor intimidated by Teuatana or the witness. The accused did give his statement and answered voluntarily.

The witness testified also that Teuatana cautioned the accused before he took his statement and told him that he isn't obliged to give his statement but should he decide to do so such statement could be used as evidence. The accused said nothing after he was cautioned. The witness further testified that the accused himself didn't write his own statement but asked Teuatana to write it down for him. After his statement was written down by Teuatana the accused himself voluntarily signed his own statement followed by the witness and Tewatana who also signed the statement.

The witness also testified that after the accused gave his statement he was asked few questions to clarify some matters which he had not clarified in his statement. So the accused was cautioned again in the normal manner according to the Judges' Rules which in the witness's own words they are guidelines that must be fallowed before the accused's statement is taken.

According to the witness these guidelines of the Judges' Rules were followed and applied by the investigating officer before he took the accused's statement and questioned him. Thus the accused had voluntarily given his statement and answered questions when questioned by the investigating officer.

Although counsel for the defence – Ms Huston had objected against the caution statement of the accused to be given in evidence by the witness because the investigating police office – Teuatana Merang was not available at the trial to produce the document I overruled the objection and allowed the witness to put the document in evidence as the witness is an eye witness, who had been present throughout the interview of the accused by Teuatana – the investigating officer and he is also the signatory police officer to the caution statement and answers to the questions which were put to the accused.

The witness's signature is the second signature below the first signature which is the accused's signature. These signatures appear on pages 22, 22, 23 and 24 of the caution statement and questions and answers. The third signature also appearing on pages 22, 22, 23 and 24 below the witness's signature is signature of the investigation officer.

Consequently the witness produced the caution statement and questions and answers of the accused in evidence and was marked as Exhibit "P2": This statement and answers to questions put to the accused were taken down by the investigation officer at the Crime Branch of the Bikenibeu Police Station on 12 November 2001 at 0820 hours in the presence of the witness and the accused.

The statement was originally written down in the Kiribati language. The following is the English language translation:

"I Tekaribwa would like to give my statement and I would like Teuatana (policeman) to write down my statements as I narrate it to him. I was advised that I was not obliged to say anything unless I want to but if I did say anything that would be recorded in writing and may be given in evidence.

Signed: Kimaere

" - Police Officer

" - Police Officer

I denied that I raped Nei Mareweata and had sexual intercourse with her without her consent. What had actually happened was that on a Monday 5/11/01 at about (9pm) in the evening I was sleeping on my raised floor house (buia) as I have had some alcoholic drink. But just before I went to sleep I hit Nei Mareweata as she had lost my ring. While sleeping I was shocked when Nei Mareweata came to me and started rubbing her breast against my face and told me that she would breast feed me like a baby. She also said that we should enjoy ourselves and then she got on top of me and she was naked. I, on the other hand was wearing a lavalava but it appeared to have slipped free of my body as I felt her holding on to my penis and inserted it into her vagina. She then started thrusting her bottom up and down as if we were having sexual intercourse. I then got an erection myself and she appeared not to have problem herself as she was no longer a virgin and Nei Mareweata was still thrusting her bottom up and down and I could feel my penis inside her vagina, and perhaps, because she was exhausted (I am not sure whether she herself had her orgasm or not) she got off me. When she got off me she lied next to me and I myself fell asleep again as I was drunk that time. When I woke up the next day she was not beside me (that was on Tuesday 6/11/01).

Signed: Kimaere

" Police Officer

" Police Officer

The statement above has been read back to me and I have been advised also that I could change, correct and add anything to it that I want to.

This statement is true and I made it voluntarily.

Signed: Kimaere

" Police Officer

" Police Officer

I would like to ask you few questions relating to the alleged offence which you are suspected to have committed. I would like to remind you that you are not obliged to answer these questions but if you did then these answers will be recorded in writing and maybe used as evidence!

Signed: Kimaere

" Police Officer

" Police Officer

Q1: Do you understand what I have stated to you above.

Ans Yes

Signed: Kimaere

" Police Officer

" Police Officer

Q2: Nei Mareweata stated that you first have sexual intercourse against her will on 28/5/01 when she was asleep on the buia. Is that true?

Ans: Not true.

Signed: Kimaere

" Police Officer

" Police Officer

Q3: Was there a time ever prior to Monday 5/11/01 when you had sexual intercourse with Nei Mareweata?

Ans: None but only that as I have stated above.

Signed: Kimaere

" Police Officer

" Police Officer

Q4: According to your knowledge how old is Nei Mareweata?

Ans: Maybe almost thirteen (13) or she may have been 13 years now.

Q5: Is there anything else that you would like to mention?

Ans None.

Signed: Kimaere

" Police Officer

" Police Officer

Discussion concluded at 0915 hrs.

Continuation of discussion

Mr. Tekaribwa Kimaere

16/11/01, 1800 hrs.

I would like to ask you few more questions relating to the alleged offence which you are suspected to have committed. I would like to remind you that you are still not obliged to answer these questions but if you did the answers shall be recorded in writing and may be given in evidence.

Signed: Kimaere

"

"

Q1 What is the purpose of us recording your statement again?

Ans Maybe there is nothing that I would like to state.

Signed: Kimaere

"

"

Discussions concluded at 1815 hours, 16-/11/01

Signed: Kimaere

"

"

That concluded the case for the prosecution.

Then the accused himself elected to give evidence but did not call any other evidence.

Tekariba Kimaere (Accused)

The accused himself gave evidence but didn't call any witness. He testified that he is 53 years old. In 2001 he lived at Tebunia, South Tarawa. And at the beginning of May 2001 he lived with his children Nei Terere (17 years old), Tekuata, Raua (the little girl) and Mareweata Kabiri the complainant.

His wife – Nei Kamoa died of lung cancer on 18 May 2001. His daughter Terere had also passed away at the end of 2001.

He was reminded in examination in chief that he had been suspected of defilement of Mareweata – the complainant on 28 May 2001 and said he knew nothing about that incident.

He then testified that on 5 November 2001 he scolded and punished the complainant by slapping her on the temple because she has lost his ring. Then he went to sleep and whilst asleep he was disturbed by the complainant who came to him and woke him up:

"I woke up, the complainant woke me up as she was rubbing her breast against my face and told me she wanted to breast feed me like a baby and that we should enjoy ourselves together that night. Then she got on top of me; held my penis and inserted it inside her vagina. She moved up and down. I was amazed and did not say anything. I didn't stop her as I wanted to laugh at her. It was a joke. Nei Mareweata did this for about three minutes. I didn't encourage her but I was amazed".

The accused further testified that prior to this incident of 5 November 2001 he never had sex with the complainant. The accused said also that he was quite awake when the complainant did all these things to him.

When his counsel – Ms Huston asked him whether he felt that what he did was criminally wrong and he said that he didn't feel so.

In cross examination the accused confirmed that: he and his wife took Mareweata – the complainant when she was only two years old then: and his wife is the grandmother of the complainant; and he agreed the upper part of the complainant's body was not yet fully developed.

The accused further testified that he considered the complainant as his granddaughter and he didn't send her away or slap her when she took his penis and inserted it in her vagina because he wanted her to do what she wanted. When she did this to him, he wasn't sexually aroused or felt good and happy at all except that he had a weird feeling (i.e. maninga).

He didn't expect a young girl of that age like the complainant to wanting to do what she had done to him that night.

The accused also testified that the complainant didn't leave his household immediately after he hit her that night but left after he went to sleep again as she was not around and about the house the next day when he woke up.

He stated also that the complainant cried when he hit her.

That concluded the case for the defence.

I then heard addresses by counsel for the prosecution and counsel for the defence.

Counsel for the prosecution submitted that in order to prove its case the prosecution must prove beyond reasonable doubt that sexual intercourse did take place between the accused and the complainant when the complainant was under 13 years of age.

So taking into account all the evidence including that of the complainant especially the injuries suffered by the complainant counsel for the prosecution submits that the prosecution has proved its case beyond reasonable doubt.

Counsel for prosecution Ms Tebao also submits there is a huge flaw in the evidence and arguments of the accused and also in his story as it seems to be far fetched.

Counsel for the defence Ms Huston, on the other hand, submits that the evidence of the complainant relating to 28 May 2001 incident is a fabrication as it is unclear, and confusing as she did not answer the question properly and she hesitated a lot and appeared not to know what she was talking about.

Further there was no evidence that the complainant had never ever complained to anybody about the incident in question, neither was there any medical evidence relating to 28 May 2001 incident. And as to 5 November 2001 incident, there was no detail given by the complainant nor any medical evidence either.

And as far as mens rea is concerned there is total lack of intention on the part of the accused as accused was asleep and drunk and the complainant herself had initiated the whole affair and thus she is entirely responsible for it. She is also a consenting party.

And as regards to the alleged assault causing actual bodily harm Ms Huston also submits that no offence has been committed under the circumstances as what accused did was a necessary domestic chastisement.

Counsel for the defence further submits that 28 May 2001 incident should not be believed at all.

Before addressing the above issues I direct myself that the onus of proof beyond reasonable doubt remains always upon the prosecution from the beginning to the end of the trial. The Republic must prove the charge and each element of charge beyond reasonable doubt and if it fails to do so then the accused is entitled to be acquitted. There is no onus on the accused to prove his innocence. In the present case the prosecution must prove beyond reasonable doubt that the accused has had unlawfully sexual intercourse with the complainant when she was under 13 years of age.

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.

At the outset I have no hesitation in stating that I accept the prosecution witnesses as being truthful and reliable. They were tested in cross-examination and to my mind they were not discredited at all. In particular the principal and only eye witness of the prosecution Nei Mareweata herself, the complainant was firm convincing and unshaken in her evidence throughout the cross examination.

As already mentioned at the outset the first issue to be decided being whether on 28 May 2001 sexual intercourse did in fact take place between the accused and the complainant when she was under the age of 13 years.

And the second issue to be decided being whether the sexual intercourse which took place between the accused and the complainant on 5 November was unlawful.

As to the 5^th November 2001 incident the accused himself admitted it both in his evidence and caution statement of 12 November 2001 that sexual intercourse did take place between the complainant and himself. However, the accused blamed the complainant as being entirely responsible for it as she was the one who had initiated it and forced it upon him.

I cannot accept this story of the accused about what the complainant did to him that evening given the age differences between the complainant who is about between 10-12 years of age according to the medical report of Dr K Tenaua and that of the accused who is about 52 years old at the time when the alleged sexual intercourse took place. The bold daring eager prostitute like behaviour of the complainant that evening in question towards the accused which the accused had painted in his oral and written evidence are completely out of character with the complainant herself who, when at the witness box, appears to be a skinny, timid, softly spoken small helpless girl. I reject that a girl like the complainant who is between 10-12 years could force a man like the accused who is about 52 years old to do what the accused alleged the complainant to have done to him on the night of 5 November 2001.

In any case where the accused is charged with the offence of defilement of a girl under 13 years of age consent is immaterial. And whether the girl had aided or abetted or solicited or incited the commission of the offence as the accused had alleged the complainant to have done so to him on the night of 5 November 2001 it is still immaterial. R v Tyrel [1893] UKLawRpKQB 220; [1894] 1 QB 710; see also R v Whitehouse [1977] 3 all ER 737; [1977] EWCA Crim 2; [1977] 65 Cr App R 33.

As regards to the age of the complainant her father Kabiri Kareo in his evidence said that Nei Mareweata – the complainant was born at Taborio, South Tarawa on 5 April 1989. He also stated that on 10 April 1989 he registered the birth of her daughter Nei Mareweata in the Registrar General's Office at Bairiki, South Tarawa.

I am therefore satisfied beyond reasonable doubt that Nei Mareweata – the complainant is under 13 years of age when sexual intercourse took place between the accused and complainant on the night of 5 November 2001 at Tebunia, South Tarawa.

So taking all the evidence into account I am satisfied that the prosecution had proved beyond reasonable doubt that the accused has had unlawful sexual intercourse with Nei Mareweata on 5 November 2001 when she was under 13 years of age.

The accused is therefore found guilty of the offence of defilement of a girl under 13 years of age (Count 2) under section 134(1) of the Penal Code (Cap. 67) and is convicted accordingly.

I now deal with Count 1 of the charge under which the accused is again charged with defilement of a girl under 13 years of age on 28 May 2001. In her evidence the complainant clearly explained that on the night of 28 May 2001 whilst she was sleeping by herself inside her mosquito net on the bigger buia (raised floor house), the accused entered her mosquito net and forced her to have sexual intercourse with him.

She also said that she really felt the accused's penis inside her vagina when he forced her to have sexual intercourse with him and as the result her vagina was bleeding.

I am therefore satisfied beyond doubt that the accused had sexual intercourse with the complainant on 28 May 2001.

In cross-examination the complainant confirmed that she did not tell anybody for a long time that the accused had forced her into having sexual intercourse with him on the night of 28 May 2001 until about 5 November 2001 after the accused "did the same thing to her again" that is to say the accused had sexual intercourse with her again for the second time on 5 November 2001.

As already mentioned before counsel for the defence Ms Huston submits that 28 May 2001 incident is fabrication on the part of the complainant and therefore it should not be believed at all. Ms Huston further submits that in giving her evidence the complainant was unclear, did not answer questions properly and hesitated a lot.

She also submits that the complainant did not complain to anybody for a long time about 28 May 2001 incident until November 2001 nor was there any medical evidence about such incident.

I do not agree with Ms Huston as having myself observed and listened to the complainant when she testified I am satisfied on her evidence that she is a reliable and truthful witness – was firm, convincing and unshaken in any way at all in her evidence that the accused had forced her into having sexual intercourse with him on night of 28 May 2001.

I agree with Ms Huston that when the complainant gave evidence she was a little bit hesitant and slow in answering questions being put to her but I do not find such hesitancy demeaning the veracity, consistency and cogency in any of her evidence that the accused on the night of 28 May 2001 had invaded her privacy while she was asleep and forced her to have sexual intercourse with him. In any case giving evidence in a court of law environment for the first time in one's life is certainly nerve-wracking for any normal grown up person let alone a shy and timid little girl of about between 10-12 years old like the complainant in this case.

The fact that the complainant has been shy, was hesitant and appearing unsure about her evidence was natural and expected under the circumstances.

Another point upon which Ms Huston has also commented relates to the silence of the complainant for about six months about 28 May 2001 incident. In cross-examination the complainant confirmed that she had remained tight-lipped for some time about the 28 May 2001 incident until early November 2001 when she broke the news to her aunt.

I think this wall of silence of the complainant could be explained by the fact that when the incident in question took place on 28 May 2001, the complainant was in a very sad and unfortunate situation as she had been left alone in the household of the accused who is not a blood relative of hers without any other close blood relative such as her grandmother Nei Karoa in whom she could trust and confide her secrets. Unfortunately just about 10 days before the incident in question took place on 28 May 2001, the complainant's grandmother Nei Karoa passed away and thus leaving the complainant entirely in the hands of the accused and his daughters. So after her grandmother passed away she then did not really have anybody in the accused's household to confide in her secrets like the incident in question for example. The complainant knows that her father Kabiri Kareo is still alive and about but she did not really know him as she had left him since she was two years old and has married another woman whom she did now know when her mother passed away in 1992 and that is why she had been adopted by the accused and her grandmother since she was a mere two-year old baby. So she did not have any close relatives whom she really know well apart from her grandmother who had just passed away too on 18 May 2001.

So given her situation the complainant remained silent about 28 May 2001 incident and continued living and staying with the accused and his daughters as they were the only people she really knew well and had been living with since she was two years old.

And it was only after the second incident in question on 5 November 2001 that the complainant finally plucked up the courage to run away from the accused and his family. And it was almost immediately after she left the accused and felt free that she reported and complained to her aunt (her mother's sister) about not only the 28 May incident but also 5 November 2001 incident.

The report of Dr K Tenaua who had examined the complainant on 12 November 2001 which is some five days after the second incident in question which took place on 5 November 2001, had elapsed establishes that the complainant being a girl of between 10-12 years is no longer a virgin. The complainant's hymen is already torn in two areas inside the vagina at the centre, right hand side and at the bottom of the vagina being areas similar to position of 3 o'clock and 6 o'clock in a clock.

Taking into account the whole of the evidence in this case I am satisfied that the prosecution has proved beyond a reasonable doubt that the accused on 28 May 2001 had unlawful sexual intercourse with the complainant when she was under the age of 13 years.

The accused is therefore found guilty of the offence of defilement of a girl under the age of 13 years contrary to section 134(1) of the Penal Code (Cap. 67) and is convicted accordingly.

As to Count 3 and having taken into account all of the evidence in this case I am satisfied that the prosecution had proved beyond reasonable doubt that the accused on 5 November 2001 had unlawfully assaulted the complainant and thus did her bodily harm. The accused is therefore found guilty of the offence of assault causing actual bodily harm contrary to section 238 of the Penal Code (Cap. 67) and is convicted accordingly.

Dated the 22^nd day of January 2004

THE HON MR JUSTICE MICHAEL N TAKABWEBWE
Judge