Republic v Temakei - Judgment [2006] KIHC 118; 32-06 (24 November 2006)

In the High Court of Kiribati
Criminal Jurisdiction
Held at Betio
Republic of Kiribati

High Court Criminal Case 32 of 2006

The Republic

v

Wiiri Temakei

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

Date of Hearing: 28 November 2006

JUDGMENT

Wiiri Temakei, a boy of 17, has been charged with indecent assault and defilement of a girl between 13 and 15 years old.

Particulars

(Count 1)

On or about the 6 May 2006 at Nikutiri village, South Tabiteuea in the Republic of Kiribati, Wiiri Temakei unlawfully and indecently assaulted Nei Tiareti Mikaere, a girl under the age of 15 years old.

(Count 2)

On or about the 6 May 2006 at Buariki village, South Tabiteuea in the Republic of Kiribati, Wiiri Temakei had unlawful sexual intercourse with Nei Tiareti Mikaere, a girl being of or above the age of 13 years and under the age of 15 years.

On arraignment Wiiri pleaded guilty to count 1 and not guilty to count 2.

The defilement charge is pursuant to section 135(1)(a) of the Penal Code. The proviso:-

Provided that it shall be a sufficient defence to any charge under paragraph (a) if it shall be made to appear to the court before whom the charge is brought that the person so charged had reasonable cause to believe and did in fact believe that the girl was of or above the age of 15 years.

The only point left in issue for trial was whether Wiiri "had reason or cause to believe and did in fact believe that the girl was of or above the age of 15 years". All other elements of the offence were admitted.

Nei Tiareti was the prosecution witness. She looks mature but not necessarily much older than 14 or 15. I noticed that, although she knew the day and month of her birth (7 March) she did not know the year. At the time of the incident she was in Form III at JSS. She denied that there had been any talk between her and Wiiri of her age.

Wiiri, on the other hand, said they discussed ages. He said he wanted to be a husband: she said they were still young.

She said she was 15. I said I was 17. I believed her: no idea she was younger, only 14. (Examination in chief).

Visited her house many times, friend of her brother ..... Possible I can’t be really sure if she were 15 or not. (Cross examination).

The proviso to section 135(1)(a) put the onus on the accused ("if it shall be made to appear to the court"). It is an onus on the balance of probabilities.

Considering the whole of the evidence, the circumstances of the intercourse, having seen and heard the girl and boy, I cannot find, even on the balance of probabilities, that he had "reasonable cause to believe and did in fact believe" that she was 15 or older. The strong probability is that he did not think about her age at all.

The accused is guilty of defilement.

Dated the 24th day of November 2006

THE HON ROBIN MILLHOUSE QC
Chief Justice