Republic v Rakubo [2004] KIHC 16; Criminal Case 45 of 2003 (26 January 2004)

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

Criminal Case No. 45 of 2003

THE REPUBLIC

vs

TOAKARE RAKUBO

For the Republic: Mr Tion Nabau
For the Accused: Ms Taoing Taoaba

Date of Hearing: 26 January 2004

JUDGMENT

Toakare Rakubo is charged with abduction of a girl. Particulars:-

On 19 February 2002 at Teaoraereke in the Republic of Kiribati, TOAKARE RAKUBO unlawfully took or caused to be taken Nei Tearibwa Tiirobwa, an unmarried girl under the age of eighteen, out of the possession and against the will of her father with an intent unlawfully to have sexual intercourse with her.

The essential facts are not in dispute. On 19^th February 2002 (a Tuesday) the accused went to St Louis High School. He asked to see a student, Nei Tearibwa, giving the message that her father needed her urgently because he was sick. The girl went with the accused. They caught the bus from Teaoraereke to Abarao or to Tanaea and went to the house of a relative of Toakare. They had sexual intercourse and stayed together till the next day when the girl's father and stepmother (she has brought up Nei Tearibwa from the age of three) found her and took her home. The parents had become concerned when their daughter did not come home as usual from school on the 19^th. The father had given no permission for her to be taken away.

Mr Nabau prosecuting wanted to tender a copy of Nei Tearibwa's birth certificate but Ms Taoaba, defending, objected. Mr Nabau could not shew me any authority (I should be surprised if there is none) which would allow him to tender the certificate without proof and did not make a formal application. He was fortunate that there was oral evidence of Tearibwa's age. She said she was born on 1 December 1987 and her father confirmed that date. Nei Aruua Karere settled with Tearibwa's father in 1989 when Tearibwa was three. I have no reasonable doubt about age and find that Tearibwa was born on 1 December 1987. That made her not much over 14 on 19^th February 2002. Tearibwa was not married on that day.

Tearibwa said she left the school with Toakare only because she was afraid and he forced her to go with him. Ms Taoaba spent her time in examination-in-chief and cross-examination shewing that the two were lovers and that the girl went willingly with the man. Her client said that Tearibwa was his girl friend and they had been meeting twice a week for some weeks. Her behaviour after she left school with Toakare shews willingness to be with him. I doubt if she went with him unwillingly.

That she was willing does not help the accused. Consent of the girl or otherwise is not relevant to the offence. The consent required is that of a parent: the father did not give his consent: the tenor of his evidence is that he was not willing for his daughter to go with this man.

One point which did concern me was the phrase "unlawful sexual intercourse" in section 132 of the Penal Code. The section:-

Any person who with intent that any unmarried girl under the age of 18 years shall have unlawful sexual intercourse with any man, whether such sexual intercourse is intended to be with any particular man, or generally, takes or causes to be taken such girl out of the possession and against the will of her father or mother, guardian or any other person having the lawful care or charge of her, shall be guilty of a misdemeanour.

What does the word "unlawful" add to "sexual intercourse"? At first I thought perhaps the intercourse must be with a girl below the age of consent. What is the age of consent in Kiribati? It is not explicitly set out in the Penal Code but it is implicit from section 135(1):-

Any person who –

(a) has or attempts to have unlawful sexual intercourse with any girl being of or above the age of 13 years and under the age of 15 years; .....

From section 135 one can conclude that the age of consent here is 15 years.

This girl was not much over 14 so perhaps that made the sexual intercourse "unlawful"?

Then, as counsel and I were looking in Archbold, we came across a reference to Frank Chapman ((1958) 42 Cr App R 257). Donovan J read the judgment of the Court of Criminal Appeal. The judgment contains the interesting history of how the word "unlawful" came to be coupled with "sexual intercourse". The conclusion reached (at 261) is that "the word simply means 'illicit' i.e. outside the bond of marriage". Sexual intercourse in the present case was "outside the bond of marriage".

The facts having been established beyond reasonable doubt to find the accused guilty, his only hope lay in the proviso to section 132:-

Provided that it shall be a defence to any charge under this section if it shall be made to appear to the court that the person so charged had reasonable cause to believe and did in fact believe that the girl was of or above the age of 18 years.

He did not succeed. His evidence:-

Did not realize how old she was or form she was in. Never discussed her age. I estimated she was mature enough.

The accused did not turn his mind to the girl's age and does not get the benefit of the proviso.

I find the accused guilty.

Dated the day of January 2004

THE HON ROBIN MILLHOUSE QC
Chief Justice