Republic v Baraniko [2005] KIHC 44; 59-04 (17 May 2005)

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

High Court Criminal Case No. 59/04

THE REPUBLIC

vs

BUREUA BARANIKO

FOR THE REPUBLIC: Mr B Tekanene
FOR THE ACCUSED: Ms B Maitinnara

DATE OF HEARING: 11 May 2005

JUDGMENT

Bureua Baraniko is charged with one count of incest and two counts of indecent assault:

Count 1

Statement of Offence

Indecent Assault contrary to section 133(1) of the Penal Code Cap 67

Particulars of Offence

Bureua Baraniko on an unknown date between 1^st January and the 28 of February 2003 at Terine village on the island of Tabuaeran unlawfully indecently assaulted Nei Karibatau Bureua.

Count 2

Statement of Offence

Incest contrary to section 156(1) of the Penal Code Cap 67

Particulars of Offence

Bureua Baraniko on an unknown date between 1^st January and the 28 of February 2003 at Terine village on the island of Tabuaeran had sexual intercourse with Nei Karibatau Bureua who he knew to be his daughter.

Count 3

Statement of Offence

Indecent Assault contrary to section 133(1) of the Penal Code Cap 67

Particulars of Offence

Bureua Baraniko on an unknown date during the month of February 2003 inside Mr Corbert’s house at the place called Tabon te hanger on the island of Tabuaeran unlawfully indecently assaulted Nei Karibatau Bureua.

The relevant sections of the Penal Code:

Section 133 (1) Any person who unlawfully and indecently assaults any woman or girl is guilty of a felony, and shall be liable to imprisonment for 5 years.

(2) It is no defence to a charge for an indecent assault on a girl under the age of 15 years to prove that she consented to the act of indecency.

Section 156 (1) Any male person who has sexual intercourse with a female person, who is to his knowledge - his daughter ..... is guilty of a felony, and shall be liable to imprisonment for 7 years:

(3) It is immaterial that the sexual intercourse was had with the consent of the female person.

By consent the prosecution tendered Nei Karibatau’s birth certificate. It shews she was born on 13 August 1988. In the first months of 2003 Karibatau was 14 years old.

The three incidents are alleged all to have happened at night.

Her account:

February 2003 about midnight. Temoaiti and Teteki. He (the accused) told me to take off my pants but I refused. ---- He pinched me between my thighs and he told me for the second time to take off my pants but I refused. Then I started to cry. Then he hit me – at home – on my forehead and beside my eyes. Before he asked me to pull down my pants he was right on top of me and touched my breasts and was sucking them. He is my father. Beginning of 2003. At Terine. A Friday – went to pictures. After we came home: in middle of night Bureua came and took off my clothes – touched my breasts and sucking them. Took off my pants: inserted penis in vagina and after that inserted his finger. Licking my vagina. Then he led me outside on to the grass: then again touched my breasts sucking them: got on top – inserted penis: inserted inside my vagina. Licking vagina again. I didn’t say anything. (Examination in chief).

Around midnight: lights were off – at Corbett’s house at Tabon te hanger. Everyone asleep. With Bintonga, Temoaiti and Teteki. Baraniko was in the other house on the ocean side: quite near. Accused on top of me: I was asleep. I woke up when someone was on top of me. Bureua was on top of me. I know it was: he was right next to me. ---- I was wearing
clothes - t-shirt and shorts. He took off my shirt...... I did nothing because I was scared of him. I didn’t wake anyone else up. I pushed him away. I refused to take pants off. He took my pants off. (Cross examination).

Bintonga and Temoaiti are Karibatau’s siblings. I do not know whether Teteki is or not.

The prosecution called Nei Temoaiti. She was distressed as soon as she was sworn and had answered only a few formal questions when I adjourned in the hope that she might compose herself. When the court resumed Mr Tekanene said he did not propose to examine Temoaiti further and would not call Bintonga. He then closed the prosecution case.

The accused gave evidence. He is now 54 years old. He denied knowing anything about the incidents. Mr Tekanene chose not to cross-examine at length. He could perhaps have cross examined as to whether or not the accused had been sleeping next to his daughter Karibatau, in January and February 2003 and perhaps other surrounding circumstances as well. There may have been good reason why Mr Tekanene did not cross-examine much. He did elicit the admission that Nei Karibatau is the accused’s daughter.

The defence called Dr Atuna Mareko and tendered her report. She examined Karibatau on 25 July 2003. The girl had told her she was 12 years old but the doctor said that to her she looked older than that. In Dr Mareko’s opinion, having examined her, there had been penetration either by penis or some other object some considerable time earlier than her examination.

Finally the only point at issue was whether I should find the prosecution case proved beyond reasonable doubt on the uncorroborated evidence of Nei Karibatau. In her cross examination of Nei Karibatau Ms Maitinnara did not challenge her account of events. Ms Maitinnara concentrated on consent: whether or not Karibatau had consented to what her father did. But consent is irrelevant both for incest and for indecent assault.

In her address Ms Maitinnara conceded that the verdict came down to whether or not on Karibatau’s uncorroborated evidence and with her client denying all knowledge I could be satisfied beyond reasonable doubt that the Republic had proved its case. She pointed to a number of things which could give me reason to hesitate to find the case proved beyond reasonable doubt:

It took 7 months for a complaint to be made to the police

The complainant told the doctor she was 12 when she was 14

She admitted to lies to her brother

The doctor agreed penetration could have been by anyone or something other than a penis.

Ms Maitinnara put all that could be put in favour of her client.

I thought Nei Karibatau was a believable witness. At the beginning of her evidence like her sister later, I wondered if she were going to say anything at all but gradually she did give an account in some detail, an account which rang true. And the account was not challenged in cross-examination.

I have come to the conclusion that the prosecution has proved the case beyond reasonable doubt.

It will be noticed that on Nei Karibatau’s evidence Bureua could have been charged with two counts of incest, the incidents described in the Particulars of counts 1 and 2. The girl described penile penetration twice, once inside the house and soon after, outside on the grass. Only count 3 was proved as indecent assault. As it is the charges laid are of one count of incest and two of indecent assault.

The accused is guilty on all three counts.

Dated the 17^th day of May 2005

THE HON ROBIN MILLHOUSE QC
Chief Justice