Republic v Iaokiri [2004] KIHC 142; Criminal Case 25 of 2004 (16 June 2004)

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

High Court Criminal Case No. 25 of 2004

THE REPUBLIC

vs

ATANTAAKE IAOKIRI

For the Republic: Ms Eveata Maata
For the Accused: Ms Botika Maitinnara

Date of Hearing: 7, 8 & 9 June 2004

JUDGMENT

The accused had pleaded not guilty to the charge of indecent assault contrary to section 131(1) of the Penal Code (Cap. 67) in that on or about 17 April 2003 at Bikenibeu, South Tarawa at about between midnight and 1am he did unlawfully and indecently assaulted a girl named Nei Ketia Rekenibai.

In order to prove its case the Prosecution called two witnesses. The first witness is:

Nei Keita Rekenibai (the complainant) is the principal witness of the prosecution. She is more than fifteen years old. She testified that she now lives at Takoronga, Betio with one of her aunts called Nei Roreti.

However at the beginning of 2003 she said that she used to live at Bikenibeu with Atantaake Iaokiri (the accused) and his wife Nei Manuia who is another aunt of hers. She also said that the accused and Nei Manuia had raised her up since she was between about four or five years old when her parents were separated.

The complainant recalled that on the evening of 17 April 2003 she was sleeping inside one mosquito net inside their house at Bikenibeu together with Nei Merita (her cousin), her aunt, Nei Manuia and Manuia's husband (the accused). Then whilst sleeping she suffered an acute pain on her right shoulder and she told her parents about it. On hearing this the accused then suggested to the complainant to move closer to him so that he would massage it for her. The complainant therefore moved closer to the accused and laid between the accused and his wife Manuia. The accused in the meantime massaged the complainant's shoulder. And whilst being massaged thus by the accused she shortly afterwards fell asleep. Then as she was sleeping she woke up because she had a feeling of soreness on the nipples of her breast. Then she knew that the accused had sucked her breast so she turned away from him and faced Manuia's side but then the accused immediately pulled her by the arm and shoulder back to his side in order that she would face him.

She also said that after the accused assaulted her she did not wake up Manuia (her aunt and wife of accused) as she thought it would have been a waste of time if she told her again this time as she wouldn't be bothered about it as she had done several times before when she told her about similar instances of indecencies which the accused had done to her before.

She also testified that next day on 18 April 2003 which was Easter day following the incident in question, she left the accused and his wife Manuia (her aunt) and went to stay with her natural mother Nei Taua at Betio. And whilst with her mother Nei Taua, she told her what the accused had done to her on the night before which was 17 April 2003 in that the accused had sucked her breast when she was sleeping.

The complainant further testified that before the incident in question occurred on 17 April 2003 she recalled the accused having smacked her for having stayed too long in a shop and the accused had to hasten her to return home.

She also testified that after the accused had smacked her as described above she was then very cross with him and so she then told her aunt Manuia and members of the household who were there in the house that time in the presence of the accused about the indecent acts which the accused had done to her before the incident in question of 17 April 2003.

The complainant gave evidence of what she told her aunt and members of the household about previous occasions. As the accused is charged only in relation to 17 April 2003, I ignore the evidence of previous indecencies as they are irrelevant to my decision.

The second and last prosecution witness is Rameteti Tawati (PW2). He is a detective constable and has been with the Kiribati police station but was at Betio Police station in 2002 when the incident in question of 17 April 2003 occurred and was selected to carry out the investigation in the instant case. He was accompanied by Officer Commanding Officer of Crime branch Betio police station named Tauia.

The witness and Tauia visited the accused whilst in custody at Bairiki Police Station and took his caution statement. After taking his caution statement the witness and Tauia set the accused free. This was carried out on 28 June 2003 at 1940 hours.

On 16 September 2003 at 1014 hours the accused's answers to questions which were put to him by the witness were also recorded and put into writing at Bikenibeu Police Station. The caution statement of the accused is admitted into evidence and marked as Exhibit P1. The answers and questions which were put to him by the witness were admitted into evidence and marked as Exhibit P2.

In the accused's answers to question 18 in which he was asked whether or not it was true that on the night of 17 April 2003 he had sucked Nei Ketia's breast and he said he had nothing to say to that question. Further he was asked under Question 19 whether or not it was true that apart from 17 April 2003 incident there were other incidents also in which he has indecently assaulted Nei Ketia – the complainant. In his answer the accused admitted it but that all these things meant nothing to him.

That concluded the case for the prosecution.

Then the accused himself elected to give evidence but didn't call any witness to give evidence.

Atantaake Iaokiri (Accused)

He is aged 42 and married to Nei Manuia the aunt of the complainant and have no children of their own. He testified he knew the complainant very well as he and his wife had brought her up since she was about between four or five years old. As a small girl she is more or less like a daughter to him: he has to look after her by washing her, putting on her clothes, putting her to bed, sleeping with her and cuddle her in bed together with his wife Nei Manuia. He also testified that on 17 April 2003 the complainant told them that she wanted to spend Easter in the maneaba. So she went but by night time she was still away and had not returned home yet. The accused then approached his wife Manuia about Ketia's disappearance and Manuia told him that Ketia had already rang up and said she had left them and went to Betio to stay with Nei Taua her natural mother. Ketia also told her that he (accused) had sucked her breast last night (i.e. the night of 17 April 2003) when she fell asleep at Teroreti's house when he massaged her shoulder (Ketia – the complainant).

The accused further testified and confirmed what Nei Ketia (complainant) had stated about the night in question of 17 April 2003 in that the accused and his wife Manuia and the complainant and her cousin sister Nei Ketia were all sleeping inside one mosquito net at their house at Bikenibeu.

The accused also stated that he had denied to his wife the complainant's allegation that when she was sleeping on the night of 17 April 2003 he had sucked her breast. And he also said that even if he did so he (accused) must have mistaken the complainant for her (Manuia).

The accused also said that the complainant, after staying with her mother, Nei Taua for a week or so, paid them a visit from time to time (accused and wife).

In cross examination the accused admitted that during the night in question when the complainant alleged that he sucked her breast, the possibility of him mistakenly taking the complainant to be his wife Manuia hence sucking her breast, is rather remote if not impossible as his wife is physically much more developed, bigger and older lady and thus physically different in feature from that of the complainant who is just a young girl of 15 year of age. He also admitted that even though it is dark he could still distinguish his wife from the complainant by touching or feeling her body.

The accused further stated in cross examination that he never sucked the complainant's breast during the night in question as alleged by the complainant.

The accused however admitted in his answer to question 19 which was put to him by the police that there were other instances in which he had indecently assaulted the complainant. However in his testimony he denied that he understood or heard question 19 properly when the police asked him.

That concluded the case for the defence.

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

Ms Eveata Maata counsel for the prosecution submits that the prosecution has proved its case that the accused had indecently assaulted the complainant beyond reasonable doubt.

Ms Botika Maitinnara on the other submits that the prosecution has failed to prove its case that the accused had indecently assaulted the complainant beyond reasonable doubt. Before I consider the evidence I direct myself that the burden of proof beyond reasonable doubt remains on the prosecution from the beginning of the trial to the end. The prosecution 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. The accused on the other hand needs not prove its innocence as "he is presumed to be innocent until . . . he is proved guilty" (s. 10(2)) of the Constitution.

In the present case, to discharge that burden of proof in respect of the charge of indecent assault under section 131(1) of the Penal Code (Cap 67) the prosecution must prove beyond reasonable doubt that:

(i) the accused intentionally assaulted the complainant;

(ii) that the assault or circumstances accompanying it are capable of being considered by right-minded people as indecent; and

(iii) that the accused intended to commit such assault as is referred to in (ii) above (see R v Court (1988) 87 Cr App R 144 and Archbold 2004 para 20-149(i).

I further 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.

Counsel for the prosecution has referred me to section 11(1) of the Evidence Act 2003 (No. 5 of 2003). That section sought to have abolished what is usually looked for in practice by the court of a need for the evidence of the complainant in sexual cases to be corroborated. Ms Maata submits that section 11(1) of the Evidence Act 2003 applies to the instant case and thus it is not necessary that the evidence of the complainant on which the prosecution relies be corroborated.

As I have already mentioned above "if I have no doubt that the complainant is telling the truth, then I may convict on her evidence even though uncorroborated". So the court can still convict without corroboration. Further the alleged offence of indecent assault in the instant case took place on 17 April 2003. The Evidence Act 2003 (No. 5 of 2003) came into operation on December 2003.

I am of the view therefore that section 11(1) of the Evidence Act 2003 does not apply to the instant case.

With regard to the Convention on the Rights of the Child in order that it forms a part of the Laws of Kiribati, that Convention (Articles) must first of all be given the force of law in Kiribati by means of an Act of the Maneaba ni Maungatabu. I am not aware that necessary legal process has yet been carried out by the Maneaba ni Maungatabu.

Having said the above, I found the complainant to be a credible and truthful witness. She had emerged from cross examination unshaken and I believe and accept her evidence. Giving evidence against the accused whom she must have loved and trusted throughout those many years when he brought her up like his own daughter must be hard, painful and most embarrassing for her and also for her aunt Manuia, who is the wife of the accused.

The accused has denied that he had indecently assaulted the complainant. Yet on the night in question of 17 April 2003 Nei Ketia was sleeping between the accused and his wife Nei Manuia. The only other person who was also sleeping inside the same one mosquito net, apart from the accused and Manuia and complainant, was Nei Merita. Nei Merita is a little girl and cousin of Ketia. Under the circumstances during that night in question and given the fact that the complainant was sleeping between the accused and his wife Manuia, and also the fact the accused was the only man who was sleeping inside one mosquito net amongst three females one of whom was his wife and the other two were little girls.

Further the complainant was sleeping next to the accused and she didn't see anybody or heard footsteps of someone getting out of the mosquito net. Instead the complainant testified that the accused pulled her by the arm and shoulder back to his side when she turned away from him to Manuia's side.

I am therefore satisfied beyond doubt the accused did indecently assaulted the complainant on the night of 17 April 2001. It has been argued for the accused that he has mistaken the complainant for his wife during that night in question. However the margin for error on his part as whether he sucked the breast of his wife or the breast of that of the complainant during that night in question hardly exist as his wife and the complainant are physically totally different as to features, age, and body developments and build.

I am therefore satisfied beyond doubt that the possibility of accused mistakenly taking the complainant to be his wife Manuia during that night in question and hence sucking her breast (complainant) was remote, if not impossible. I therefore agree with the prosecution that identification of the accused is not an issue at all in the instant case and even if it is an issue the accused is not at all a stranger to the complainant as she knows him or she had known him since she was four or five years old when the accused and wife first took care of her when her parents were separated.

So taking therefore the whole of the evidence into account I am satisfied that the prosecution has proved the charge of indecent assault against the accused beyond reasonable doubt.

I therefore found the accused guilty of indecent assault and convict him accordingly.

Dated the 16^th day of June 2004

THE HON MR JUSTICE MICHAEL TAKABABWE
Judge