Republic v Tengke - judgment [2004] KIHC 45; Criminal Case 03 of 2004 (8 March 2004)

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

Criminal Case No. 3 of 2004

THE REPUBLIC

vs

TANRE TENGKE

For the Republic: Ms Pole Tebao
For the Accused: Mr Aomoro Amten

Date of Hearing: 5 & 6 March 2004

JUDGMENT

The accused is charged with raping Nei Marewe Tauraba at Eten village on Fanning Island on 9^th July 2003. He and his wife and three children had been for a month or more sharing their house with Nei Marewe, her husband and their five children. Adults and their children slept on the same buia about four to five metres square and under separate mosquito nets. The accused had built the buia. The mosquito nets remained hung in the same position all the time.

Some time about the middle of the night intercourse took place between Nei Marewe and Tanre. Nei Marewe had been sleeping under her mosquito net with four children aged from seven to three. Her husband was not with her:-

Tanre came and ate my vagina: while he was doing that I exposed myself as I assumed it was my husband. He penetrated with his penis into my vagina: thrusting. I sat up and pushed him away. It was when he was thrusting up and down with his bottom I saw his face and pushed him away. I told him to get out of my mosquito net. He said "This is an agreement made between myself Narurutake (my husband). "I don't care but you just get out of my mosquito net". I did not consent to Tanre having sexual intercourse with me.

Tanre had already penetrated her before she recognised him.

Nei Marewe was the only witness for the prosecution. Her evidence is uncorroborated. For that reason I should consider it with particular care, before accepting her account.

The accused, Tanre, gave evidence. He gave quite a different account. It was that during the preceding day he had been at a Council meeting and had been drinking beer. He came home about 5 o'clock and brought with him a carton of beer. He became very drunk. His children helped him to have a bath. He went to sleep beside his house on a coconut leaf mat. When it started to rain he woke up:-

I went into mosquito net thinking it was my wife's. Only one person inside – that my wife. Lay on her feet. Lifted up her front – started feeling for vagina with my hands. No movement. I started eating her vagina. No movement. I got on top: had sex: put penis into vagina. Thought it my wife. Married may be 10+ years. Didn't recognise her as Marewe. She held me tight. After sex I got off and lay behind her feet. She was still inside sleeping not: said nothing. May be she got awake but I lying by her feet. The next day when daylight I found out not my wife.

When he woke up and it was raining he had felt dizziness: the world was spinning. He wanted to lie down: he was desperate for sleep. He felt sick. He got under the wrong net by mistake and had intercourse with the lady under it. He thought it was his wife. Having said in both examination in chief and cross examination that his wife was sleeping alone, he thought the children sleeping under the net were his own. He denied that Nei Marewe pushed him away or that he had an agreement with Rurutake, Nei Marewe's husband. Nei Marewe did hold him tight.

The accused's story strains credibility beyond the point of reason. That he could mistake the mosquito nets and get into the wrong one: not recognizing the lady as Marewe, not his wife: did not notice that they were not his children: feel dizziness, sick, desperate for sleep but yet have intercourse.

The accused did not have to prove anything. The Republic had to prove its case beyond reasonable doubt. Even though the evidence of the victim, Nei Marewe is uncorroborated, having considered all the evidence I accept her account beyond reasonable doubt.

Mr Amten referred me to paragraph 4.37C of "Criminal Law" by Waller and Williams. The learned authors canvassed the decision of the Privy Council in a New Zealand case, Kaitamaki v R. The case does not help him: its ratio is that sexual intercourse is a continuing act which only ends with withdrawal.

The principle in the present case is that when a woman submits to intercourse under the mistaken belief that the man is her husband or lover when it is in fact another man altogether, she has not given consent to that man. Accordingly the man is guilty of rape, if he has penetrated her, because the woman has not consented.

The accused is guilty of rape.

Dated the 8^th day of March 2004

THE HON ROBIN MILLHOUSE QC
Chief Justice