Republic v Mweea [2004] KIHC 141; Criminal Case 07 of 2004 (15 June 2004)

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

High Court Criminal Case No. 7 of 2004

THE REPUBLIC

vs

TAKANOI MWEEA

For the Republic: Ms Tetiro Semilota
For the Accused: Ms Jennifer Troup

Date of Hearing: 15 June 2004

JUDGMENT

The accused, Takanoi Mweea, is charged with rape:

Takanoi Mweea on or about 11 January 2002, at Buota village, North Tarawa had unlawful sexual intercourse with Nei Tamarawa Bakanebo.

The defence is consent.

The incident occurred over two years ago. The most regrettable delay in laying the charge – the indictment was originally filed on 18 March 2004 and an amended indictment on 7 June – is unexplained.

Nei Tamarawa and her son Tabwebweiti, lived at Buota. In the early evening they went for water to the well with buckets slung on the handle bars of a bike. The victim:-

Surprised when accused chased after us: not sure where he came from: came: pulled me away to side of road: started kissing me. I struggled and was getting cross. Called to my son but he didn't come. After I was released I went back to my son. Son fetching water. This man came along again. Hung water on bike: he came after us. Takanoi. Pulled my hair: pulled me to side of road. Didn't know him. Son went and called relatives as this man dragged me to beach. I was struggling: dragged me to a house Kabuti's. Pushed me: hit me on chest: lifted dress: sucking breasts. In through door. No one there. I struggled: pulled underpants off: I struggling. Lifted legs – inserted penis inside vagina: thrusting. Got off. He blocked door. Got on me again. Told me to stay: threatened if I didn't. Got off buia – outside – went. Put on underpants: cousin
N. Miriam. Clothes torn. I started crying to her. Buren back at house.

(Cross examination)

Struggled. He threatened: said he'd hit me – (why I didn't run away). Miriam and others angry with me. Dragged me home. Skirt not ripped by being dragged home. Family thought it was (consensual). It was not consensual. I didn't initiate second time. Didn't know him before. No sexual intercourse with him before.

Nei Tamarawa gave her evidence in a straight forward way: the story of being attacked, taken away and forced to have intercourse against her will by an unknown man. It did strike me as peculiar that she said Tabwebweiti, a lad now, I judge, in his early teens, when she called him, did not come to her. His explanation – he was the second witness – was "I didn't help Mother. I was busy carrying water".

Tabwebweiti described the accused forcing his mother away. He went home to raise the alarm. The family began searching for her.

Nei Tamarawa's sister Nei Miriam, was one of the searchers. Nei Miriam said she saw drag marks on the beach but lost them. She saw her sister walking back:-

Started crying. "He forced me kicked me on chest tore my shirt and shorts".....We took her to house, she started crying: my brother asked her what had happened. I was not angry but asked her why crying. She had been crying when I met her. We did not beat her. I asked her what happened: she said she'd been forced by that man.

The last prosecution witness was Nei Tamarawa's brother Buren Bwerei: in cross examination:-

I was at house when she came back. I dragged her back into house: I only slapped her: I was cross. She said she'd been raped before I slapped her. May be I was very cross - didn't know what doing.

It was curious that being "very cross" made him "not know" what he was doing.

I conclude that the family, until Nei Tamarawa claimed she had been forced, believed she had had consensual intercourse with Takanoi.

The accused gave evidence and called two witnesses in his defence. Takanoi made a good impression: he gave the appearance of telling the truth. His story was quite different from Nei Tamarawa. Takanoi said Nei Tamarawa was "a long time girl friend". He had visited her four times and they had had intercourse twice before. On those occasions they had been alone except for her small child. In contrast, this time he approached her openly when she was with an older child who was likely to raise the alarm. Ms Troup explained this by saying Takanoi was only 15 or 16 at the time and incautious. Nevertheless it is curious.

Takanoi saw Nei Tamarawa and Tabwebweiti fetching water:-

I went to talk to her and ask her to come with me. She came with me. Her son went and told members of the house. Her family came. (Victim) didn't call out to son. After we'd left well – not long family came – we went to hide amongst nnen plants. Didn't force her. We hid close to road near a coconut tree. Could hear family looking. We ran away and hid somewhere else squatting. To Kabuiti's house – I opened door: she got on to buia. Told her to take clothes off: she lay down. I had sex. She did not struggle or scratch. I climaxed. I lay down: she got on top of me – penis into vagina: she came to climax. She dressed: went away. I went to well: had bath. She captured by her family. They hit her: she cried saying she was in pain. "A bitch. Shame on family". She said I forced her. I was quite close: they couldn't see me: I was having my bath in well.

Each of the two defence witnesses saw the victim after intercourse. Nei Karainan Bauro saw her "being dragged or pulled --- to her house near my house". She recognised two of the ladies:-

One of the ladies said if not with her consent, should make a complaint. They were angry.

Tebwe Kaauea saw Nei Tamarawa with the accused:-

Saw accused with victim ....didn't notice anything about them ....walked past the social night. Quite a few people about.

Tebwe later saw Nei Tamarawa with her family:-

Members of family I'd seen pulling her close N. Miriam. A boy pulled her arm and slapped her. They said "you bring shame to the family". When they arrived at house – pulled her down, kicked her. "He forced me". "Is it true?"

The onus of proof is on the prosecution throughout the trial. If I have any reasonable doubt about proof of any element of the offence I must give the accused the benefit of it; acquit him.

The cry of rape is a common response of a woman who has been caught having sexual intercourse when she should not have been. Perhaps that is the situation here. Intercourse may have been consensual.

If I feel uneasy convicting the accused, it is because I have a reasonable doubt about his guilt.

There are imponderables in this trial. Some examples. The time Nei Tamarawa spent with Takanoi: one would have thought she had opportunities to escape or at least to call out for help: she could have when Tebwe saw them walking past. The cry of rape only after the family shewed anger. The boy's apparent lack of concern when Takanoi first approached his mother. Conversely the good impression Takanoi made: although some curious features, his story had the ring of truth.

So many imponderables, I have a reasonable doubt about his guilt. I would feel uneasy convicting.

The accused is not guilty of rape.

Dated the day of June 2004

THE HON ROBIN MILLHOUSE QC
Chief Justice