Republic v Tawita [2005] KIHC 46; 08-05 (23 May 2005)

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

High Court Criminal Case No. 8 of 2005

THE REPUBLIC

vs

TIRIBO TAWITA

For the Republic: Mr Birimaka Tekanene
For the Accused: Ms Botika Maitinnara

Date of Hearing: 19 May 2005

JUDGMENT

Tiribo Tawita is charged with two counts of indecent assault:-

Count 1

Particulars of Offence

Tiribo Tawita, on an unknown date, sometimes between the 1^st December and the 30^th of December 2003, at Poland village Kiritimati Island unlawfully and indecently assaulted Nei Tekimatang Erene, while they were riding on a motorbike on their way back to “te kakai”.

Count 2

Particulars of Offence

Tiribo Tawita on an unknown date sometimes between the 1^st January and before the 12^th of July in 2004 at Poland village on Kiritimati Island unlawfully and indecently assaulted Nei Tekimatang Erene while they were on the hammock.

The time alleged in count 2 is quite vague – a bracket of over six months. Ms Maitinnara in her final address complained about it. The complaint should properly have been made before the pleas were taken. Ms Maitinnara could have asked for more particularity. Fortunately it has not mattered. The evidence for Prosecution and Defence is of only one incident in 2004 before 12 July during which the offence could have been committed. The accused has not been prejudiced.

Tiribo is a man of 35: Nei Tekimatang is a girl now 15, 14 at the times alleged, and is Tiribo’s niece.

Count 1 relates to an incident in December 2003. Tiribo and his family were living in a camping place for cutting copra (te kakai). Tekimatang was staying with them. The pigs at Poland had to be fed. Between four and five in the evening Tiribo accompanied by his own 10-year-old daughter, Tireetia, was to go on a motor bike to feed them. Tekimatang asked to go too. The three of them set off. Having fed the pigs they were to return. Tekimatang said Tiribo suggested she learn to ride the motorbike: he would teach her. Tiribo says she asked to learn. Whichever it was, when they were on a smooth road Tekimatang rode. She said Tiribo was sitting immediately behind her. Tiribo says Tireetia was immediately behind Tekimatang and he behind his daughter. The complaint is that Tiribo while Tekimatang was riding, indecently touched her many times on the breasts and the vagina – her breasts by putting his hands under her t-shirt, her vagina by putting his hands over her tights.

I am told, there is no evidence of this but it accords with my observations, that in Kiribati it is not the practice for a pillion passenger on a motorbike to hold on to the rider round the waist: only a husband or wife do that. If Tiribo did touch Nei Tekimatang indecently he must have been holding her. Unfortunately neither Tiribo nor Tekimatang was asked directly whether he was holding her and if so how. Tiribo said he had to reach for the accelerator to control the bike. He denied any indecent touching.

When they reached te kakai nothing was said. Nei Tekimatang made no complaint about what she says happened until she told her mother in July 2004. Mr Tekanene reminded me of Section 13 of the Evidence Act. I therefore direct myself that there may be good reasons why Tekimatang may have refrained from or delayed in making such a complaint. It is difficult, even having given myself that warning, to see why Tekimatang delayed so long. She gave no reason for it.

Count 2 relates to an incident when Nei Tekimatang and her mother, Nei Bwebwenteraoi Keariki were staying with Tiribo and his family at Poland. The date is not remembered. In her statement to the police, Tekimatang said it may have been in May. Mother and daughter had an argument. It was between five and six o’clock in the afternoon. The sequence of events is given differently by the various witnesses but all describe Tekimatang going out to her uncle who was lying on the hammock.

Tekimatang:

He went over to hammock and he called his daughter to call me. Tireetia. I went to him. He told me to sit beside him. He told me to sit between his thighs. I refused. He squeezed me on the arm.

[At this time the witness shewed some distress but continued her evidence: the distress was not sufficient for me to adjourn.]

I was wearing a bra and panties wrapping with towel. Came to him. Touching breasts and vagina. I started to cry. “A male can spread out the legs of a female and insert his penis inside a female’s vagina”. I was afraid: did nothing: placing two legs on me. Wearing bra, shorts, wrapping myself with towel. Kept on touching me and I kept on crying. Quite a while. One end of hammock broke. I went off. He said “We haven’t finished talking”. I went back to my mother. “Why did you take so long?” “He taught me a very good lesson”.

Tiribo:

At hammock – nothing: having a word with Tekimatang. She was at other end, sitting near my feet: hanging over side. Not long. People around, doing fish. Hammock broke. No indecent assault. Just teaching her a lesson. I stood up: told Tekimatang to go inside, apologise to her mother.

Nei Bwebwenteraoi (Tekimatang’s mother):

Argument with daughter: I called on accused – he came and said “Why can’t you obey mother?” Outside the hammock. An hour later his daughter came. Tekimatang went to Tiribo – came back crying: I asked what happened – “he taught me”.

Nei Niuakai (Tiribo’s wife):

Poland – argument at house. Tekimatang with her mother. Husband not there – fishing. I told daughter off. Husband arrived. I went outside to do fish. Quite close to hammock. I could see husband in hammock: Tekimatang sat on one end of the hammock. Not long. Hammock broke – husband stood up, girl went into house.

No doubt mother and daughter had an argument. The daughter was out on the hammock with her uncle. The hammock broke. The daughter went back to her mother. Tekimatang made no complaint to her mother until they were in London, some days, weeks or months later.

I was not much impressed by Nei Tekimatang. She struck me as rather a difficult, rebellious young woman. She had missed classes at school. She finally left and is now settled with a man. Even when she was giving evidence and before I heard the other witnesses I was not inclined to accept her story unless strongly corroborated.

The accused struck me much more favourably. He denied any indecent touching. His actions when he heard rumours of his having been indecently interfering with his niece were those of a man indignant at the talk. It may have been a pretence to cover guilt but I do not think so.

I accept that the two ladies, Nei Bwebwenteraoi and Nei Niuakai were honestly trying to tell what they remembered but their evidence is peripheral. Mr Tekanene cross examined Nei Niuakai as to how far she, as the accused’s wife would go to protect him. In his submissions he suggested that, because she was the wife of the accused, her evidence in his favour should not be accepted. I reject the submission. Otherwise no wife would ever be able to give evidence for her husband and be accepted. The evidence of a witness must be assessed in the light of many factors only one of which is relationships. Nei Niuakai asserted that what she saw – the girl sitting at the end of the hammock with her legs over the side – was true.

If Tiribo did indecently touch Nei Tekimatang he chose strange situations to do it – first on an open road in the presence of his own 10 year old daughter, one would think old enough to understand what was going on, while teaching Nei Tekimatang to ride a motorbike (“teaching and touching” is how Tekimatang put it) and secondly while he was teaching the girl a lesson, on a hammock and with his wife not far away, not to argue with her mother.

I cannot but have a doubt – a strong doubt – about there having been any indecency during either incident. I certainly could not find beyond reasonable doubt that there had been.

The accused is not guilty on both counts.

Dated the 23^rd day of May 2005

THE HON ROBIN MILLHOUSE QC
Chief Justice