Republic v Baikota [2005] KIHC 71; 16-05 (2 November 2005)

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

High Court Criminal Case No. 16 of 2005

THE REPUBLIC

vs

MIIKA BAIKOTA

For the Republic: Ms Pauline Beiatau
For the Accused: Mr Aomoro Amten

Date of Hearing: 31 October 2005

JUDGMENT

The accused was originally charged only with rape:-

Miika Baikota on the 19^th October 2004 on the beach of the lagoon side of Tekarakan village on the island of Marakei, in the Republic of Kiribati had unlawful sexual intercourse with Nei Anna Tabwakea without her consent.

On the morning of the trial, last Monday, Ms Beiatau, Mr Amten not objecting, filed an amended charge. The particulars of rape are not quite the same but that is of no significance. Significant is a second count:-

Sexual intercourse with a collateral contrary to section 158(1) of the Penal Code Cap 67.

Miika Baikota on the 19^th of October 2004 on the beach of Tekarakan village on the island of Marakei, in the Republic of Kiribati had unlawful sexual intercourse with Nei Anna Tabwakea, a niece.

The Attorney General had given his sanction as required by section 159.

The accused pleaded not guilty to both counts.

When the prosecution case closed, at his request the accused was re-arraigned on the second count and pleaded guilty.

That left only the count of rape to be tried.

In his caution statement, admitted by consent, the accused admitted intercourse and admitted that Nei Anna is his niece, the daughter of his brother. Before intercourse took place he had been drinking sour toddy, “estimated 7 cups”. The statement is not explicit as to consent by the girl or otherwise.

The only issue left to be tried therefore was consent.

It happened on the 19^th October 2004 on a remote beach on Marakei or on an islet nearby.

Anna was living with her aunt, Nei Bwebwenibeia and her aunt’s husband Mauritio Tiong at Tekarakan village. In the morning Miika came to the house. The two of them went netting. They did not have much luck: caught only 10 plus fish. [Miika took them all with him when they parted.] On the way back intercourse took place. She said she resisted:-

He let go of net, threw me on beach. I was surprised. He was on beach. He jumped on me, pressed me down. Took off my pants. I asked for forgiveness. He told me not to make any noise: he was aware I was not a virgin (as I knew). I was begging, asking for forgiveness. He managed to get my pants off. I had shorts and top. He had sex with me. He had shorts on. He inserted his penis into my vagina. He took his pants off – the front he pulled down, pulled out his penis. His legs pressing on to mine. Thrusting his bottom trying to climax. Sucking my breasts. I was struggling. I didn’t want him to have intercourse.

He said it was consensual:-

On way back could I have sexual intercourse with her? She accepted. We had it. She didn’t struggle: lay down. We (chatted). She agreed. She took her shorts off. After she took them off sexual intercourse. We told each other not to tell anybody. After we had sexual intercourse we chatted may be almost 15 minutes. Both went home.

It is word against word but there are a few straws in the wind.

The medical report seems to confirm intercourse on the beach (“some sand at left hand right side and some sand near the clitoris”) but that is all. There is no mention of any injury (nor did Anna complain of any).

The prosecution called Mauritio Tiong. Anna came crying to him:-

I asked “What’s wrong?” She said “Miika had sexual intercourse with me”.

The defendant called Nei Bwebwenibeia Nabeia, Mauritio’s wife. Pretty clearly she was annoyed when Anna came home with no fish. [Anna had said as much.] Anna looked normal: she still had her comb on her hair. Anna cried and went off to Mauritio.

I had allowed Mauritio’s evidence as being of an immediate complaint. In Nei Bwebwenibeia’s cross-examination it came out that Anna had already told her they had had sexual intercourse. The Kiribati word used (“tauai”) may mean either consensual or non consensual intercourse and I am not prepared to find against the accused that Anna used the word in the sense of rape.

Anna had admitted (in examination in chief) that she was not a virgin and Miika knew it. Miika in his caution statement had said, “I would like to say that she is not a virgin”. In his evidence in chief Miika said they had had intercourse before. In answer to me in cross-examination Miika said it was once before, may be a little over a week earlier. This may be why both he and she had said he knew she was not a virgin – Miika had first hand knowledge: may be it was only that he had heard it from others. Most unfortunately Mr Amten had not cross-examined Anna on the point. I cannot therefore put much weight on it. Had I been able to make a finding that they had had intercourse before it would have been a straw much in the accused’s favour. That she was not a virgin is still to an extent in his favour.

After intercourse it is common ground that the two sat for some time (his estimate is 15 minutes) chatting before going back. She said she was frightened to run off. I doubt it. Chatting for some time looks much more like relaxing after consensual intercourse than otherwise.

There are straws pointing in Miika’s favour – she was not a virgin and Miika knew it, may have had intercourse with her before – the lack of complaint of rape (in contrast to consensual intercourse) – no description by Anna to either Mauritio or Nei Bwebwenibeia of a struggle, no complaint of injury, her aunt said she looked normal – that they sat and chatted afterwards.

There are sufficient straws blowing in Miika’s favour at the least for me not to be able to find beyond reasonable doubt that Miika forced intercourse on an unwilling Anna.

The accused is not guilty of rape.

Dated the 2^nd day of November 2005

THE HON ROBIN MILLHOUSE QC
Chief Justice