Republic v Terara [2005] KIHC 43; 64-04 (17 May 2005)

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

High Court Criminal Case No. 64/04

THE REPUBLIC

vs

NENEBATI TERARA

FOR THE REPUBLIC: Ms Pauline Beiatau
FOR THE ACCUSED: Ms Jennifer Troup

DATE OF HEARING: 12 May 2005

JUDGMENT

Nenebati Terara is charged with three counts of defilement of a girl under the age of 13.

Count 1

Particulars of Offence

Nenebati Terara between the 1^st of October and the 31^st of October 2003 at his house at Banana village on Kiritimati Island had unlawful sexual intercourse with Nei Kaukeata Teribwa who was under the age of 13 years old.

Count 2

Particulars of Offence

Nenebati Terara on the 2^nd March 2004 in the bush at Banana village on Kiritimati Island had unlawful sexual intercourse with Nei Kaukeata Teribwa who was under the age of 13 years old.

Count 3

Particulars of Offence

Nenebati Terara on the 6^th March 2004 at Tabwi’s house at Banana village on Kiritimati Island had unlawful sexual intercourse with Nei Kaukeata Teribwa who was under the age of 13 years old.

Giving evidence Nenebati said he was 32. Nei Rone Iaareta, Nei Kaukeata’s grandmother, gave evidence that her grand daughter was born on 10 August 1991.

In July 2003 Nenebati’s wife gave birth to their child and soon afterwards Kaukeata came to stay at their house to look after the baby. Either while staying at the house or after she left (like Nenebati she lived at Banana) Kaukeata gave evidence that Nenebati had obliged her to have intercourse with him at his house.

[I found Kaukeata unreliable on times and dates but do not regard it as significant: what is significant is that she gave evidence of three occasions on which intercourse occurred and in her evidence these occasions approximate to the dates charged. To place emphasis on disparities and contradictions on these matters could lead to verdicts on technicalities.]

Kaukeata said there were two later occasions earlier in March 2004 on which they had intercourse.

Although Nenebati admitted spending time with the girl and that there had been talk of love, he denied they ever had intercourse.

Nei Kaukeata:-

I stayed behind looking after the baby. I locked the doors and windows and went back to the child. One door not properly locked. House has two doors. Surprised when he came in, grabbed me by hair and dragged me to another room. He told me to take off my panties. I did: scared. He stood and make himself erect, inserted penis into vagina. I did nothing: scared – he said he’d kill me. About two in the afternoon. When he finished, stood up. The child started to cry: he ran to the child: I put on my pants. Didn’t tell anybody. I went to other room. October 2003.

2 March 2004 ------ At Banana, in the Catholic maneaba. Next to Father’s house under the breadfruit: I was under the breadfruit tree. I had strange feeling: I was attracted – very easy for me to approach him. I went to him under the breadfruit tree. He told me to go to Taabwi’s house. I did. Got on to buia. ---- We went to another house. He got erect. Put his penis in my vagina. Taabwi’s house. After having sex he was hungry. ---- Went to Inga’s house. ---- Went back to Taabwi’s house. Then he put his penis inside my vagina again. He went back to Inga’s for a smoke. He was chased away: didn’t return. Around 2300 I went back to maneaba.

---- First time I was at home at Banana. “Come and do this thing”. I climbed down and he said we were going to elope to his house at Tabakea village. Nobody else there. We went into the bush. Had sex. Then we walked to one of his relatives at hotel at Main Camp. ---- I stayed behind for night.

Next morning early my grandmother picked me up – to police at Banana – to Ronton. Can’t remember dates.

Incident at Taabwi’s house first – in the bush two weeks later. (Examination in chief).

The accused denied intercourse:

Know Kaukeata used to stay with us in 2003 July more than a month. ---- Didn’t spend time alone with Kaukeata. Never had sexual intercourse with her.

2 March 2004 working driving a bus: finished at 1400. ---- Sour toddy – to Moriti’s house. With Betero but stayed at end of village: Betero went to find toddy. Three kids passed by. “Nenebati we’re going to tell on you because you are drinking again”. Knew them. I asked them not to tell what I’d been doing. One came back and said that Kaukeata was still waiting for me. Same child came back again to say Kaukeata still waiting. I went with the kid to main road. ---- I went back to friend to drink sour toddy. Don’t know what happened then – woke about two in the morning at the playing court. Started walking back to Tabakea. No sexual intercourse. Evening of 6 March 2004. Wife sent me to hotel and then to see Kaukeata. ---- Child’s clothes left with Kaukeata – I needed to get them. Went to function at KPC maneaba and to Banana. Saw Kaukeata outside Catholic maneaba. About to tell Kaukeata about child’s clothes. Kaukeata asked me about Ratiera (wife) whether she had left. “I think we’d go somewhere else. I’m afraid of Rone”. Went to kiakia. Conversation. Other people 20m away. Could hear them. Light. Didn’t go into Taabwi’s house. Nothing but conversation – up to 20 minutes. Back to main road – she to maneaba. Went to Inga’s house looking for food. Led me to Inga’s house. After eating I dropped her at Catholic maneaba. Went to smoke, at Inga’s house. Nei Rone came: told her Kaukeata at maneaba – she chased me away – I was scared of her. No sexual intercourse. (Examination in chief).

---- I didn’t meet her on 2^nd March but did on 6^th ---- 6^th March wife told me to drop by (to pick up) child’s clothes. Kaukeata is young. ----We had a talk and I asked her about clothes. It was after I had asked her if she really loved me that we were on the kiakia. On kiakia we talked about previous incident. When I asked her if she really loved me she didn’t say anything. On the kiakia she said she really loved me. I didn’t say anything about loving her: she didn’t ask me if I did love her. No talk about love on kiakia. She’s the one who shewed her love for me. She did nothing to me. I didn’t love her. (Cross-examination).

The prosecution called two other witnesses, Nei Rone Iaareta, Kaukeata’s grandmother and Inga Moiwa. Both confirmed some detail of Kaukeata’s evidence but did not take the prosecution much further.

Dr Atuna Mareko was called by the defence: she examined Kaukeata on the 3^rd March. Her examination shewed that Kaukeata was not a virgin and she could not say how long it had been since she had intercourse. The girl was menstruating.

Kaukeata had had intercourse with some one or more but as Ms Troup submitted not necessarily with Nenebati.

Of significance were two caution statements to the police, those of Nei Kaukeata made on 10 March 2004 and of the accused on 11 March.

Kaukeata’s statement:-

I recalled that day Saturday night 6/3/04 I was at the Catholic maneaba. Nenebati arrived outside the Catholic maneaba and I approached him. I have an appointment with him. We went and have date at unoccupied house of Taabwi. After that we went to Inga’s house and have meal. After that we separated. I went back to the maneaba while Nenebati returned back to the hotel campus. ----

I was at the Catholic maneaba when suddenly Nenebati came and called for me. I approached him and led me to a raised floor house of Taabwi. Nobody in that house. Upon arrival there he asked me about my interview. After that I did not tell him more. Later on he laid me and raped me. He told me to take off my clothes and I did. He penetrated his penis into my vagina and raped, five times that night. After that he (my vagina) told me that he would ate my vagina so I would be crazy of him, so he did. After that he got onto me and fucked me again. I came during those times of fucking. I felt Nenebati penis was erected during the time of fucking. Nenebati fucked me until he finishes the fifth time, and he stopped eating me. After we have fucked we then went to Inga’s house and have meal.

Nenebati’s statement:-

At the Catholic maneaba I saw Kaukeata stood by the maneaba verandah and I called for her and she came. I asked her for the clothes of my kids (whom they used to babysitter for him) because what they have returned were not good. I also asked her for my wristwatch that they have in their possession. Awhile after Kaukeata took me by the hand and led me to Taabwi’s house at Banana. I questioned her saying “what wrong with you now do you really love me”. While we were talking I felt hungry and prefer to go.

In her statement Kaukeata describes intercourse at Taabwi’s house but Nenebati in his, while admitting they had been together and there had been mention of love, makes no admission of intercourse.

Eventually the verdicts depend on my assessment of Kaukeata and Nenebati: not a matter merely of which one I believe but whether I can find proved beyond reasonable doubt on all the evidence that the accused is guilty of some or all of the charges against him.

Kaukeata gave her evidence willingly and in some detail. I was surprised at her willingness in view of her obvious affection for the accused in later 2003 and early 2004 but that does not detract from her reliability: something must have happened not relevant to the trial: she certainly shewed no hostility towards the accused. Ms Troup emphasised her contradictions and so there were on some things. The girl must have been wrong on others (for example most unlikely they had, on the night of 6 March, intercourse five times in 20 minutes) but she was quite definite and believable that intercourse had taken place on the three occasions. As I remarked to Ms Troup during her helpful and spirited address although Kaukeata is mature physically she is still young mentally. Had her account been perfect I would have had some reason to doubt her. On significant matters, those necessary to prove the charges, I accept beyond reasonable doubt Nei Kaukeata’s evidence. On the other hand it is difficult to accept the accused’s denials. In particular I cannot accept his denial altogether of the incident on 2 March: that he got so drunk in company with Betero that he remembers nothing. I notice that Betero was not called to corroborate Nenebati’s story.

Eventually it is a matter of human nature. There can be no doubt that Nenebati and Kaukeata spent times together. Why should a man of 30 and a girl of 12 spend time together? What could they have in common but sex? Nothing was suggested. No wonder the grandmother was suspicious and angry. I reminded Ms Troup of the presumption, rebuttable though it was, often used in divorce cases in days gone by when adultery was to be proved: a presumption that if a man and a woman had the opportunity they would take it. Human nature has not changed. These two had one opportunity for certain – Nenebati admits it – on 6 March at night, after there had been talk of love (as I find despite Nenebati’s contradictions in his cross-examination). They spent time alone together on the kiakia or in Taabwi’s house. In the end common experience of human nature lends great weight to Kaukeata’s evidence and leaves me in no reasonable doubt about the guilt of the accused on all counts.

Intercourse occurred in 2003, whether it be October or earlier. It may be that at first the accused forced himself on the girl, as was her evidence: no doubt that later on she was at least willing to have intercourse and probably sought it. They had intercourse twice early in March.

I raised with counsel whether it was “all or nothing”: whether I should find the accused guilty on all counts or not guilty on all. In the light of my conclusions, after reflection the problem does not arise.

I have no reasonable doubt that Nenebati had intercourse with Kaukeata and on the three occasions charged.

The accused is guilty on all counts.

Dated the 17^th day of May 2005

THE HON ROBIN MILLHOUSE QC
Chief Justice