Republic v Tabutoa [2004] KIHC 150; Criminal Case 17 of 2004 (22 June 2004)

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

High Court Criminal Case No. 17 of 2004

THE REPUBLIC

vs

MATIN TABUTOA

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

Date of Hearing: 21 June 2004

JUDGMENT

Matin Tabutoa is charged with indecent assault:-

Matin Tabutoa, on or about the 2^nd May 2003, at Buariki, North Tarawa, indecently assaulted Nei Temarin Baoro.

The incident, whatever it was, occurred in the early hours of Friday 2^nd May 2003 at Buariki, Tarawa Ieta. The previous night there had been some activity, the accused described it as a dancing rehearsal, at the Bahai Centre. The accused was there playing the guitar: the victim was dancing. They had known each other for a long time. According to Matin – this was denied by Nei Temarin – they had been boy friend and girl friend: they had given up the relationship after Nei Temarin settled with Sajo Yasuhiro. The accused had been married to Nei Teribwebwe for two or three years.

After the function Nei Temarin went home and went to sleep on a buia, under a mosquito net. Sajo Yasuhiro was away on South Tarawa. She was wearing underpants and a bra. According to her she was surprised when Matin came calling her, climbed on to the buia under the mosquito net and put his legs and arms on top of her. She complained and he left. The next day Matin and Nei Teribwebwe came to apologise.

The accused's version is quite different. It is that he and Nei Temarin talked at the Bahai Centre and arranged that he should come over. He and his wife went home and his wife went to sleep. He told his wife he was going to the beach to relieve himself: instead he went to Nei Temarin and got on to the buia with her. After having consensual sex, he went to sleep next to her. Some time later when he was climbing off the buia his wife spotted him and was annoyed.

The accused does not have to prove anything; the burden is on the prosecution to prove every element of the offence of indecent assault. I am bound to say that in this case I find the accused's version of consensual intercourse more likely than Nei Temarin's.

In her written opening statement, Ms Semilota had said the accused got on top of the victim and spread her legs apart: the victim got angry: the accused ran away when the victim threatened to scream. None of this came out in evidence. To the contrary, having told her story of the accused putting his arms and legs over her Nei Temarin said "we spent quite a long time in the mosquito net talking and discussing". She had earlier said he stayed about 30 minutes. The accused did not estimate the time he was with Nei Temarin but said it was "almost morning" when he was leaving. His wife said she went after her husband one or two hours after he'd gone from their house.

One cannot be sure of the precise length of time from the evidence but it seems the two were together on the buia under the mosquito net for quite some time. This makes intercourse with post coital sleep far more likely than an assault, anger on the part of the victim and the departure of the assailant.

There is a second consideration. Even if the victim were not consenting, on her account do the actions of the accused amount to indecent assault? Is getting on the buia, under a mosquito net, with a woman and putting one's arms and legs over her and nothing more (the victim said he didn't touch with his hands) an indecent assault? I suppose it is in some circumstances. I am undecided whether it would have been in these circumstances.

However I do not make my decision on the second consideration but because I think it far more likely that Matin's visit to Nei Temarin was by arrangement and intercourse consensual. It follows that the prosecution has not, beyond reasonable doubt, proved its case: indeed the prosecution case falls a long way short of proof beyond reasonable doubt.

The accused is not guilty of indecent assault.

Dated the 22^nd day of June 2004

THE HON ROBIN MILLHOUSE QC
Chief Justice