Republic v Tewaiti [2005] KIHC 13; Criminal Case 05 of 2005 (15 February 2005)

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

High Court Criminal Case No. 5 of 2005

THE REPUBLIC

vs

TENTE TEWAITI

For the Republic: Ms Ruria Iteraera
For the Accused: Mr Aomoro Amten

Date of Hearing: 26, 27 & 28 January 2005

JUDGMENT

The accused Tente Tewaiti was charged with rape contrary to section 129 of the Penal Code (Cap 67) in that on 3rd of September 2004 at Tebanimaneka Primary School, Banraeaba, South Tarawa he had unlawfully sexual intercourse with Nei Arinteiti Nabubura without her consent.

On arraignment the accused pleaded not guilty.

To prove the charge of rape the prosecution called four witnesses.

Arinteiti Nabubura (PW1): She is 19 years of age, comes from Aonibuaka village of Abaiang Island. In September 2004 she lived at Banraeaba village South Tarawa near Mataburo maneaba on the ocean side and at that time she was employed by the Red House Restaurant at Tabaonga Bikenibeu.

On the evening of 3rd September 2004 after she finished work at the Red House Restaurant she got on a bus and headed back to Banraeaba. At near Mataburo maneaba she alighted from the bus and started walking back to her house. On her way she saw three boys near a store. She recognised one of them as the accused. And as she passed by the accused called out to her. She however did not take notice of him and continued walking away from them. The accused however kept on calling her out and followed her. And as he approached her he told her that he loved her. On hearing this Nei Arinteiti then asked him, “Are you making fun of me?” Look at you, you are drunk. How dare you spoke to me like that? I don’t believe you”. Anyway let us discuss this tomorrow. Nei Arinteiti also said that when the accused spoke to her the accused spoke normally and the tone of his voice was also quite normal and non-threatening to her in any manner.

Then the accused asked her to accompany him to Tebanimaneka Primary School maneaba. So she followed him to the maneaba. However when they reached the maneaba the accused did not want to stay there and told her to go with him to the back of the classroom on the ocean side. She refused and to her surprise the accused started to force her by grabbing hold of her with his two hands whilst facing each other, lifted her up and then started to carry her out of the maneaba.

When the accused did this she struggled and as the result she slipped out of his hand and fell on the ground. She said that she managed to slip out of his hand and fell on the ground twice but the accused on each occasion managed to grab her again and continued to carry her to the back of the classroom.

But when they approached a certain pandanus tree she slipped out of his grip and fell again on the ground near such pandanus tree.

And as she fell on the ground the accused was on top of her and tried to take her underpant off in order that he would rape her. She then begged him not to rape her but the accused in the meantime blocked her mouth with his hand. Because she resisted him by pushing him away from her and covered her vagina with her hands he did not succeed to rape her then. And whilst struggling thus the accused then warned Nei Arinteiti and asked her: “Why are you refusing (i.e. to have six with him). If you keep on refusing me, but you must remove your hands off first (i.e. from her vagina) and if you don’t listen, I am going to hurt you really badly. The complainant then got very afraid of the accused. And so in order to take the heat out of the situation she then lied to the accused and suggested to him that they moved to the maneaba. So they walked back to the maneaba but the accused in the meantime kept a securely tight grip on her hand. On reaching the maneaba he then dropped her on the ground and wanted to have sex with her but she refused. In the meantime he was on top of her whilst she was underneath him lying on her back. The accused also squeezed her neck when she refused him and so she accepted the inevitable and thus submitted herself and had sex with him. The complainant also said that the accused told her: “You cannot escape as I had captured you now”.

She also said that after he forced her to lie down she then allowed him to have sex with him as he was squeezing her neck and at that time she thought he would perform what is called a “one inch” sexual intercourse style and as he penetrated her felt pain and so she pushed him away from her body. After having sex with him for the first time he again tried to force her to have sex with him for the second time but she refused.

The complainant also said that the accused penetrated her vagina with his penis but when she testified she was quite hesitant and too shy to describe it as how the accused had sexual intercourse with her.

Ques: Where did he place his penis when you had sex?

Ans: It penetrated (she pause) ......... It penetrated (she paused again) ...... I felt it that it penetrated .......... (to your front?) (she paused again) into my front.

Ques: Please describe the word “my front”.

Ans: It (penis) really penetrated (she paused for about 10 seconds) ...... It penetrated (she paused again for about 10 seconds) ..... right inside my vagina”.

The complainant also stated that when the accused forced her to have sex with him she did not shout or scream to seek help as she was very afraid of him as she thought he would have reacted violently against her and physically injured her if she had shouted and woken up the people next door as he was on top of her and she was lying helplessly underneath him.

The complainant also stated that before the accused forced her to have sex with him she was wearing a blouse (tibuta), lavalava and pants. And apart from her pants which the accused had in part tore and already pulled it down from her hip to her thigh, she wore nothing else as her lavalava and tibuta following the struggle with accused had already slipped off her body.

The tibuta (blouse) is reddish in colour was full of dirt and produced into evidence as Exhibit “P1”.

The lavalava which is bluish in colour with reddish and greenish pictures of fishes and star fish and whitish spots all over is also produced into evidence as Exhibit “P2”. It is also covered with dirt marks.

The pants which is whitish in colour is also produced into evidence as Exhibit “P3”. The pants has dirt marks and stains on it and it looks a dull creamy khaki white. The pants had also a tear at back from top to mid bottom and on the left hand side of leg of the pants from top to bottom.

The complainant also said that when the accused forcefully pulled her pants off her she suffered excrutiating pain at her vagina and bottom. The complainant also said that when the accused tried to force her to have sex with him for the second time she refused and lied to him and told him that she would be happy to go with him to his house and had sex with him there but not in the maneaba. Then the accused asked her whether she really wanted to go with him to his house, and she told him that she really wanted to. So they started walking towards the accused’s house but on their way they passed the complainant’s house so she asked the accused to wait for her near another house on the road to get a replacement pants.

When she got back home she stayed and did not go back to the accused. The complainant also said that the first person she saw was Nei Rotia in whom she confided that the accused had forced her to have sex with him. So Nei Rotia then woke up Kabiriera and asked him to go and look for the accused. Another member of the household also lodged a complaint about what the accused did to the complainant with the Bairiki Police Station. The complainant also said that she went to the Betio Hospital first before she went to the Bairiki Police. And at the Betio Hospital she (complainant) was examined by a doctor.

The complainant also testified that it was about after 12 midnight when she went to Bairiki Police Station and gave her statement. She said that her statement was written down by a police officer and it contained everything that she told them about the incident in question.

She also testified that after the police officer wrote down her statement he read it out to her to check it and then she signed. However she said that she did not read the statement carefully as she could not think properly at that time as she had lost her mind.

She was shown her statement and she confirmed that it was the statement she gave to the police on the night when the incident in question took place in the present case.

She also confirmed that her evidence in court and her statement are different and an example of such difference is the mention in her statement that “she was sitting on top of the accused and had sex with him” which she denied that she did such a thing with the accused.

When the complainant was cross-examined she denied that her evidence in court and statement were different. She however admitted that she had sex with the accused only once, and she also admitted that the accused tried to force her to have sex with him for the second time but she refused and lied to him that she would allow him to have sex with her for the second time provided they did it at his house. The complainant then read the following passage from her statement.

“Not long afterwards I then told Tente that I wanted to go home but he stopped me and forced me to have sex with him for the second time”. When she was cross-examined as whether or not she read her statement when she was given by a police officer to read it and checked and then signed she said that she did not read it as she could not think properly as she has lost her mind.

The complainant was once again cross-examined as whether or not she agreed after reading the quoted passage above that her evidence and statement are different and she said that “I am very surprised with this statement”.

The complainant also admitted in cross-examination that she knew Toma Manuera and was the first one from amongst the three boys she met who approached her first but he left her and then she was left with the accused.

The complainant also said when cross-examined that even though there was a house near the maneaba where the accused forced her to have sex with him, she did not scream or shout for help as she was afraid of him because of what he said to her when he lifted her that she must shut up as he had captured her then”.

She also said that she could not see any light in the house near the maneaba where the accused forced her to have sex with him and she did not know whether occupants were still inside the house and if she screamed only once these people inside that house might not be able to hear her.

The complainant also confirmed in cross-examination that the stain on her pants was from the injury from around the vagina area which was caused by the accused when he ripped it off her before he forced her to have sex with him.

The complainant also said in cross-examination that she did not read her statement when the policeman first gave her but she read it after he (policeman) gave her to read for the second time; she however never informed the police officer that she did not understand her statement (which the police officer wrote down for her) when she read it. And after reading it for the second time she confirmed that it was the very statement she gave to the police and all that is stated in it is true in all respects.

She also admitted in cross-examination that there was a second occasion when she had sex with the accused and she agreed to it because she was afraid of the accused.

She said also that what she is saying now is really true and yesterday she lied because she could not bear to talk about it (sexual intercourse) in court as it is in bad taste, embarrassing to her and offensive to the court. The statement of the complainant was then produced in evidence as Exhibit D1. She stated in her statement that when she was walking back to her house at Banraeaba she came across three boys and she recognised one of them as Tente – the accused who followed her and asked her whether he could accompany her ........ At that time he forced me and put his hand on her mouth and thus she could not shout. I tried to call for help but he was stronger than me ... and pulled me to the maneaba and then he released his hand from my mouth.

She also stated that not very long after she had sex with him he raped her for the second time. He also forced her to get on top of him and have sex with him again.

Rotia Nareau (PW2). She lives at Banraeaba and testified she knew the complainant who lives with them and she is a good friend of her daughter.

On 3 September 2004 she was at her house watching other members of her household playing cards. Then at about 12 midnight the complainant came back from work and complained to her that the accused had raped her.

When she saw the complainant she was crying, and her hair was dishevelled, her tibuta (blouse) was dirty and said that the accused took her to the Banimaneka maneaba and raped her.

Rouben Toare (PW3). He lives at Banraeaba. He testified that on 3 September 2004 at about 11 pm he was at Nareau’s house playing cards with some people. Nareau is the husband of Nei Rotia.

At about 12 midnight the complainant came and when he saw her she looked dirty, her hair was dishevelled and cried to Nei Rotia. Her clothes were dirty and her body was also dirty.

Dr Matikora Itonga (PW4). She is a qualified doctor, holds a bachelor of medicine from the Fiji School of Medicine, University of the South Pacific and has been practising as a doctor for more than six years.

She testified that on 4th of September 2004 early in the morning she examined Nei Arinteiti (complainant) at Betio Hospital. She was brought into hospital by the police on the police car and complained that she had been raped. After examining the complainant she prepared a report and the followings are her findings:

She (complainant) was shy, noted a torn, blood-stained panties and she also noted a laceration at perineum 6 o’clock (1cm long x 1cm deep and fresh blood noted. Hymen – slightly torn – old wound.

In cross-examination the doctor said that there was blood stain which looks like blood and smells of blood. She (doctor) also said that the laceration or tear was fresh and could have been caused when an erect male penis was being forced into the vagina during sexual intercourse. The tear in this case is between the vagina and anus area.

Then the caution statement of the accused was produced into evidence pursuant to section 126A of the Criminal Procedure Code (Cap 17) and is marked as Exhibit “P5”.

In his caution statement the accused admitted that he had consensual sexual intercourse with the complainant.

The accused also admitted in his caution statement that before he had sexual intercourse with the complainant he pulled down her underpants on the side that is why it was torn. The accused also admitted in his statement that the complainant wanted to have sexual intercourse by means of a “one inch penetration” but when he penetrated his penis into her vagina it went in completely.

That concluded the case for the prosecution. The accused then elected to give evidence and also to call evidence.

Tente Tawaiti (Accused). He is aged 21 and lives at Korobu village, Banraeaba. After 10-11 pm, of 3 September 2004 the accused testified he was with Toma and Taera drinking beer at Sally’s store.

Then the complainant passed by and then Toma approached and talked to her. And as they talked (complainant and Toma) the accused joined them. Then the accused asked the complainant to accompany him to the maneaba. The complainant agreed to go with the accused to the maneaba and they set out to the maneaba. Toma also accompanied them but left them at Sally’s store and the accused and complainant continued walking up to the maneaba. On their way to the maneaba (accused and complainant) there were a number of houses which were closely spaced together and were also well lit.

On reaching the maneaba the accused and the complainant hugged and held each other, talked and sat together and he (accused) asked the complainant to have sex together. The complainant agreed but only a one-inch penetration style.

The accused said that when he had sex with the complainant she was willing and never struggled and he never carried her towards the pandanus tree and had sex with her only once on the floor of the maneaba which is dirty and sandy. When we finished the complainant went home.

When we have sex the complainant never cried at all and thus he was really surprised about the allegation that he forced her to have sex with him.

The accused also stated that his caution statement was taken at Bairiki police station about a week after the incident in question.

Toma Manuera (DW1). He is aged 18 and lives at Banraeaba.

On 3 September 2004 the witness testified that he was drinking with Tentee and Taera near a store and then he saw the complainant passing by. So he approached her and talked with her. And as he talked with the complainant Tente approached them. So they (Tente, Nei Arinteiti and the witness) all walked as far as Nei Berita’s store and then the witness stayed at that store whilst the accused and the complainant continued walking towards the ocean side. The witness said that he could see them clearly walking towards the ocean side whilst Tente put his hand on the complainant’s shoulder. They appear to be quite happy to be together. And as they walked further away from him he then lost sight of them.

In cross-examination the witness confirmed that he and the accused are good friends and would help the accused if he is in trouble.

That concluded the case for the defence. I then heard addresses from counsel for the prosecution and counsel for the defence.

Counsel for the prosecution argues that there has been no consensual sexual intercourse as Nei Arinteiti’s consent has been obtained by force. And even though she appeared to have consented it was mere submission and not consent itself. R v Olugboja, 73 Cr App R 334.

Counsel for the defence on the other hand argues that the complainant is not a credible witness as she had lied to the court and therefore she should not be believed.

Counsel for the defence further argues that the rule in the case R v Golden [1960] 3 All ER 457 relating to inconsistent statement and evidence in the trial should be applied to the inconsistent previous statement and evidence in the trial of Nei Arinteiti. And the rule or principal in Golden’s case is that when a witness had made a previous statement inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the previous statement whether sworn or unsworn, do not constitute evidence on which they can act.

In Kiribati the court must direct itself that the evidence of Nei Arinteiti given at trial in the present case should be regarded as unreliable and that the previous statement cannot be relied upon by the court as evidence.

Counsel for the accused also argues that the accused unlike the complainant who had lied in court is a credible witness and he should be believed as he had never moved or shaken in his evidence that there has been a consensual sexual intercourse between him and the complainant. And this is supported by the fact that the complainant throughout the incident in question when it took place never screamed or shouted to get help or attracted the attention of those who were living near the scene of the crime. And as regards to the torn underwear this occurred when the accused pulled down the already slightly torn underwear at the knee of the complainant but he did not forcefully tear it form her body. And as regards to the dirty and sandy clothes this could have been caused by various ways for instance the dirty and sandy floor of the school maneaba where they had sex and afterwards lay down and chatted away to each for some time.

And with regard to the laceration as indicated in the medical report and evidence counsel for the accused argued and the doctor accepted it that this laceration could also be caused by consensual sexual intercourse when the erect penis is forded to such spot i.e. the perineum. Counsel for the accused further argued that there had been consensual sexual intercourse only rather than non-consensual sexual intercourse. In a non-consensual sexual intercourse the hymen and the vagina generally would have been affected or wounded but in the present case the wound is an old one, there is no fresh wound in the target area (i.e. the vagina and the hymen) slight or otherwise.

Before I consider the evidence I musts direct myself that the burden of proof beyond reasonable doubt is on the Republic from beginning to end. The Republic must prove the charge and each element of the charge beyond reasonable doubt and if it fails to do so then the accused is entitled to be acquitted. There is no onus on the accused to prove its innocence.

In the present case the prosecution must prove beyond reasonable doubt that the accused had unlawful sexual intercourse with the complainant without her consent or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind or by fear of bodily harm. The issue however in the present case is whether the accused and the complainant had a consensual sexual intercourse.

The complainant (Arinteiti) on her part said that the accused had forced her into having sexual intercourse with him. The accused on the other hand denied that he had forced Arinteiti into having sex with him. She was a consenting party.

The question therefore which the court has to grapple with in the present case is whether the complainant is to be believed or the accused is to be believed.

The evidence of the complainant given during the trial when contrasted with the content of her statement given shortly after the incident in question took place, is riddled with inconsistencies and contractions.

The complainant’s blatant and deliberate lie to the court that she had sex with the accused in the maneaba only once whereas in fact she has had sex with the accused for more than one occasions as she had clearly admitted at the end of her evidence and supported by her statements and apologised for it to the court is but one glaring example of such inconsistency and deliberate lie.

And in order to defend her position the complainant said that she had lied to the court yesterday (i.e. on Wednesday when the trial commenced) because she could not bear to talk about sexual intercourse in court as it is in bad taste, embarrassing to her and offensive to the court. The following is the account of the cross-examination:

Ques: Is it true that there is a second occasion when you had sex with the accused?

Ans: Yes, there was because he told me and I did it as I was afraid of him and hence I complied with whatever he wanted me to do as I was afraid of him.

Ques: What happened yesterday was that you denied that you had sexual intercourse with the accused for the second time?

Ans: Yes, and sorry about that but I can’t bear to talk about it (sexual intercourse) in public but what I am saying now is really true.

Ques: Yesterday you were sworn to tell the truth. Is that correct?

Ans: Now what I am saying is really true but yesterday I tried not to offend the court.

Ques: Yesterday it was offensive to the court but today it is not offensive to the court.

Ans: Yes as what I am saying today is really true.

Ques: But what about yesterday, didn’t you lie to the court that there was no second time sexual intercourse?

Ans: Sorry about that, yes, there was a second time when I had sex with him (accused) and I agreed as I was afraid of him.

Ques: So you agree with me that you had lied to the court?

Ans: It is not my intention to tell lie to the court but when I entered the court today I am overwhelmed by the feeling of fear but now what I am saying is really true.

Ms Iteraera, counsel for the prosecution argues that despite Nei Arinteiti’s blatant and deliberate lie to the court about the number of times she has had sex wit the accused which totaled three times in all she is still a credible witness as she was out of her mind at that time. On the next day however she honestly told the court that what she stated on the statement were all true. She was nervous, shy and uncomfortable (marengau) to say it. But she felt more at ease the next day.

Having observed Nei Arinteiti giving evidence in court for about two days my impression of her was that she was a confident young lady who has the answers to all the questions that were put to her during the examination in chief and the cross-examination. And as Mr Amten counsel for the accused argued, which I accept, the complainant did not hesitate to answer any questions and I did not get the impression that she was extremely nervous and afraid when she gave evidence. Of course there were several times when she gave evidence and she hesitated but this occurred simply because she wanted to make sure that she understood the question and answered it accordingly. Ms Iteraera further submits that it is expected of a victim of rape like Nei Arinteiti who had been under stress and humiliated to be shy and uncomfortable to say in court that she have been raped. As I said earlier when she gave evidence Nei Arinteiti appeared to be quite confident and free to give evidence and had she really been under extreme stress and embarrassment and shame to say she had been raped by the accused she would not admit or attempt to admit at all on the first day of the trial that the accused had forced her to have sex with him in the maneaba because it is in bad taste and offending to the court.

However it was towards the end of her second day of her evidence, and not during her examination in chief by her counsel for the prosecution, but during cross-examination by counsel for the accused that she eventually admitted that she had lied to court on the first day of the trial as she did in fact had sex with the accused for the second time. In fact she had sex thrice with the accused.

And she did this only after repeated questions and vigorous cross-examination by counsel for the accused.

Why didn’t the complainant feel embarrassed and shy on the first day of the trial to admit that she has had sex with the accused only once, whilst on the other hand, during some part of the first day and early first half of the second day of the trial the complainant felt constrained and embarrassed to tell the court about the same thing again (sexual intercourse) except that it took place or done for the second time.

And then towards half the cross-examination on the second day of the trial she surprised everyone in court as she suddenly admitted that she had sex with the accused for the second time. She also apologised to the court that she had lied about it previously.

It seems to me that the complainant had hoped that the fact that she has had sex with the accused on more than one occasion would have not been vigorously pursued by Mr Amten. She was wrong.

Beyond doubt I am satisfied that the complainant had lied to the court and therefore I do not regard her as a credible witness. I do not accept her evidence.

Another aspect of Nei Arinteiti’s evidence which has raised doubt in my mind that she was in fact consenting to have sexual intercourse with the accused is the kind of sexual intercourse which she had expected the accused to perform with her during sexual intercourse. She said:

“After he (accused) forced me (complainant) to lie down I then allowed him to have sex with me whilst he was squeezing my neck and that time I thought that he would perform what you call a “one inch” (sexual intercourse) style and as he penetrated me I felt pain and so I pushed him away from me (my body)” emphasis mine”.

This is quite a telling evidence as the complainant and the accused appeared to have made an agreement amongst themselves before they had sex. They should have a “one inch” sexual intercourse style.

The terms of the agreement is that the accused can penetrate the vagina of complainant with his penis but only to the depth of one inch inside the complainant’s vagina.

Had there been no agreement at all why did the complainant “thought” the accused would have done or perform a “one inch” style.

Clearly the complainant had already known what the accused should do during sexual intercourse with her. This is also supported by the evidence of the accused. In a rape scenario, and being forced sexual intercourse the victim would never be informed or know as how or what the rapist would do to the victim unless of course it s a consensual sexual intercourse and even then it depends very much on the parties involved.

Beyond doubt I am satisfied that the mention of “one inch” style sexual intercourse implies that the parties had pre-determined as how they should have sexual intercourse and hence an agreement to have sex in the way it has been pre-determined – in this present case a “one inch” style.

The complainant throughout her evidence had repeatedly stated that the accused during the incident in question had forced her to have sex with him by firmly squeezing her neck, hit her on the face, forcefully carried her from inside the school maneaba to outside and then she fell down on the ground and then lifted her up again and she fell again and then lifted her up again. All this went on for several minutes.

She also stated in her statement that the accused had blocked her mouth and squeezed her neck and then led her to the maneaba.

And yet despite all these rough and hard man-handling, lifting and punching of the face and squeezing of the neck and falling on the ground and then lifted up again and then dropped on the floor of the maneaba, no injuries or bruises were detected on the complainant’s body or face by Dr Matikora Itonga when she examined her.

The only wound which Dr Matikora found on the complainant’s body was a laceration (cut) on the perium.

And this wound was caused by a blunt force and the doctor accepted that an erect penis could cause such wound if forced to such spot during consensual intercourse.

Further the fact that the victim did not suffer any injuries or have any fresh wound in the vagina and hymen this suggests that there has been a consensual sexual intercourse so argued Mr Amten, counsel for the accused, which I accept.

So applying the principal in Golden’s case as submitted by Mr Amten, to the evidence of Nei Arinteiti given at trial I do not merely direct myself that her evidence at the trial in the present case be regarded as unreliable, but her previous statement does not constitute evidence on which this court can act.

So having considered the evidence of the complainant not in isolation but in the light of all the other evidence I find that I am left with some doubt as to its truth. The accused is entitled to the benefit of the doubt. He is therefore found not guilty of the charge of rape and is acquitted accordingly.

Dated the 15th day of February 2005

THE HON MR JUSTICE MICHAEL N TAKABWEBWE
Judge