Republic v Tara [2004] KIHC 30; Criminal Case 51 of 2003 (16 February 2004)

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

Criminal Case No. 51 of 2003

THE REPUBLIC

vs

TIOTI TARA

For the Republic: The Solicitor General & Ms Tetiro Semilota
For the Accused: Ms Jacqueline Huston

Date of Hearing: 11 February 2004

JUDGMENT

The charge is indecent assault. Particulars:-

On the 18^th December 2002 TIOTI TARA at Temakin, Betio indecently assaulted Nei Tara Airan.

The Republic's case is that this man came to the house where the complainant, a young woman now 23, lived with her husband and other family members. It was early in the morning. The husband was not there. The accused gained entry to the house although the door was or should have been locked: he probably came in through a window. The complainant was asleep. She woke up to find the accused sucking her left breast. She was angry. Eventually the accused was persuaded to leave.

The accused admits the sucking but contends that he had Nei Tara's consent. They had earlier made an arrangement.

Ms Huston in her final address pointed out the confusion between the prosecution witnesses as to when the accused had earlier been to the house to buy sour toddy: the complainant at first denied that she had seen the accused earlier in the evening but agreed he had come two days before. Nei Ebi Taomia, the other prosecution witness, said it was some time earlier the same night. It is impossible to work out just when the accused had been to the house. Whenever it was he had made the suggestion that the complainant meet another man for sex. The complainant took it all as a joke and jokingly accepted.

The confusion as to when the accused was earlier at the house does not affect the central point, whether the complainant consented to the sucking of her breast or not. One expects some differences between witnesses in accounts of the same events. If witnesses agree down to the final detail, one becomes suspicious of collusion.

The two witnesses for the prosecution were Nei Tara and Nei Ebi. Nei Tara:-

18 December 2002 early that morning asleep Tioti came and sucked left breast. Knew him before. His wife is my aunt. Lives quite close. Woke, sucking left breast. I shouted, told him to leave but he continued sitting there – sucked breast, hugged me. When my elder sister got angry and told him to leave, he did. Smelt strongly of alcohol. I didn't consent.

Nei Ebi, now aged 41, is related to Nei Tara's husband. In his absence Nei Ebi was sleeping in the house as a chaperon:-

First time he came around 0500. N. Tara asleep on buia: I sleeping 2-3m away in the house all sleeping close together. Surprised he was standing over me. Don't know how he got in, he hadn't called out. He came back – day time – inside house again in 0600 – wanted more sour toddy. I got angry – gave him cup of sour toddy – told him to go out but he went to sit by N. Tara. I went back to where sleeping: got a shock when I heard arguing. Just in time, facing her, letting go of her. I saw N. Tara's breast exposed. "Look at this man". I berated him.

Despite the confusion which Ms Huston emphasized, I considered both witnesses to be honest and, on the essential point, giving reliable accounts which shewed that Nei Tara did not consent to the indecent touching.

The accused gave evidence. The Solicitor General, Mr Lambourne, in his final address aptly described the accused's evidence as "the ramblings of a deluded soul". The accused acknowledged the sucking but asserted it was with Nei Tara's consent. They had made an arrangement, sealed by giving her ice cream, that she would keep an appointment to see the other man and then have sex with the accused. At the time of the sucking he "was drunk but not fully drunk or lost my head". I noticed that a great deal of his evidence - as for example, that Nei Tarawa was having her period – had not been put to the prosecution witnesses in cross-examination. I concluded that the accused had not instructed Ms Huston in accordance with the evidence he was giving. He was putting the story together in the witness box as he went along.

That the accused gave evidence is in his favour. He did not have to prove anything: the burden of proof beyond reasonable doubt was on the prosecution. Yet, having heard the three witnesses and the addresses of counsel I have no reasonable doubt about the guilt of the accused.

The accused is guilty of indecent assault.

Dated the 16^th day of February 2004

THE HON ROBIN MILLHOUSE QC
Chief Justice