Republic v Teitikai [2005] KIHC 105; 07-05 (18 July 2005)

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

High Court Criminal Case No. 7 of 2005

THE REPUBLIC

vs

IAONI TEITIKAI

For the Republic: Mr Birimaka Tekanene
For the Accused: Mr Banuera Berina

Dates of Hearing: 7 July 2005

JUDGMENT

The charge is rape.

Particulars of Offence

Iaoni Teitikai on the 24 October 2004 at Tanaea village on the island of South Tarawa in the Republic of Kiribati had unlawful sexual intercourse with Nei Meere Toauriri without her consent.

The accused says the intercourse was consensual. It is word against word. Apart from the complainant and accused the only witness (she was for the prosecution) had all her information from the complainant.

The complainant, Nei Meere Toauriri and the accused, Iaoni Teitikai, were paired on a bus: he the driver, she the fare collector. The owner of the bus was Nei Taam Kaiteie, the second prosecution witness.

Some weeks before the day of the incident complained of and while they were working, they had had sex for the first time. Later, although they had no intercourse, one night they had kissed and cuddled in a bus. Whether what happened on the 24^th October was only the second time for intercourse or whether there had been other occasions, is not clear. What is clear is that on the two occasions I have mentioned, the relationship was consensual. On the 24^th October she says he forced himself on her: he says she consented to intercourse, made no sign of not wanting it.

Between 8 o’clock and 9 o’clock in the morning they were crewing a bus. The last of their passengers got off at Bonriki. Iaoni drove the bus on to Tanaea. Intercourse occurred there. Her evidence was of not wanting it this time because she had a new boy friend but it did not occur to her to tell Iaoni that. After intercourse finished she went to the sea to wash herself. He went back to the bus and waited. She did not come. He waited. He went looking for her. He did not find her and drove off. Her cash box was still in the bus. He drove back to the depot in Ambo and reported to the manager (not Nei Taam) that he had not been able to find his collector and had come back without her. Later Meeri came back and angrily asked him why he had not waited.

Meere said that when she came back to where the bus had been, it had gone. She caught another bus (another owned by Nei Taam) back to the depot. She spoke to Nei Taam about what had happened.

How long Iaoni waited, how long Meere took to wash herself, is not agreed between them. As to be expected Iaoni put it (in his caution statement Exhibit P1) at longer (5 something minutes) than she (3 minutes).

Relationships such as they were having were forbidden by their employer.

Nei Taam, having heard from Meere her side of the story, spoke to Iaoni. He admitted the intercourse. She said, “You are dismissed for doing this during the time of business” (not I notice for having raped Meere).

The temptation is to ask who to believe? That is not the test. The test is whether the prosecution has proved each element of the offence beyond reasonable doubt. The prosecution must rely on the evidence of Meere, supported by Nei Taam. Nei Taam’s evidence is only an echo of Nei Meere’s. What Meere said to N. Taam could not have been admitted (and Mr Tekanene did not try to lead it) as part of the res gestae: too long after the event. There is no corroboration of Meere’s complaints.

There are several things which cause me reasonable doubt about whether the accused forced the victim to have intercourse with him.

They had had consensual intercourse before. Why should it not be consensual this time? Meere gives a reason – a new boy friend. Why did she not tell Iaoni that? Telling him may have been enough to persuade him not to go on.

Meere would be in trouble for leaving the bus and the more so for leaving her cash box on the bus. Iaoni had reported this to the manager. There was a good chance Meere would be dismissed. By crying rape she was able to deflect the blame on to Iaoni who then was dismissed.

Mr Berina, in his final address, made the good point that if she had been raped one would not have expected her to want to go back to the rapist. Yet she was angry when Iaoni did not wait for her.

Finally Iaoni seemed a believable witness.

I have doubts which I regard as reasonable whether Iaoni raped Meere. I find him not guilty.

Dated the 18^th day of July 2005

THE HON ROBIN MILLHOUSE QC
Chief Justice