Republic v Tarita [2006] KIHC 19; Criminal Case 28 of 2005 (18 January 2006)

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

High Court Criminal Case No. 28 of 2005

THE REPUBLIC

vs

MORETI TARITA

For the Republic: Ms Ruria Iteraera
For the Accused: Mr Aomoro Amten

Date of Hearing: 16 January 2006

JUDGMENT

The accused is charged on four counts – of rape, indecent assault, abduction and wrongful confinement. All charges relate to the same incident on 12 February 2005. The particulars of each count are:-

Rape On 12 February 2005 at Takoronga, Tarawa in the Republic of Kiribati, Moreti Tarita had unlawful sexual intercourse with Teatu Teunaia without her consent.

Indecent Assault On 12 February 2005 at Takoronga, Tarawa in the Republic of Kiribati, Moreti Tarita unlawfully and indecently assaulted Teatu Teunaia.

Abduction On 12 February 2005 at Takoronga, Tarawa in the Republic of Kiribati, Moreti Tarita with intent to have sexual intercourse took away and detained Teatu Teunaia against her will.

Wrongful Confinement On 12 February 2005 at Takoronga, Tarawa in the Republic of Kiribati, Moreti Tarita wrongfully confined Teatu Teunaia.

In the absence of particulars distinguishing the allegations of indecent assault from those of rape it was unnecessary to charge both offences. The accused having been found not guilty of rape, the court was obliged to consider whether the accused was guilty of the lesser offence of indecent assault. All the elements necessary to prove indecent assault are elements which must be proved as some of the elements of rape.

Likewise with abduction and wrongful confinement. Subject to argument (the point was not raised) I should think that the elements of the crime of wrongful confinement are the same as some of the elements of abduction.

In short, to cover all the alleged wrongful activities of the accused he need have been charged only with rape and abduction.

One issue alone was in contest between prosecution and defence: the issue of consent. There was no dispute on the facts even down to most details of the events of that afternoon and evening.

The 12th February 2005 was a Saturday. During the afternoon Moreti and his cousin Temakau Uriam were in the Banni bar in Betio, drinking. Nei Teatu came in: she was looking for her friend Nei Kateia to give her a tibuta. Moreti took a fancy to her and called her over. They sat together. Between five and six o’clock they left and caught the bus to Ueen te Rooti where a party was going on. Although Teatu did not mention his accompanying them, Temakau was with them on the bus. On arrival Teatu and Moreti spent a few minutes talking to those already drinking at the party. They then went to a kiakia where they spent several hours together and had sex twice. Once Temakau came and brought them food. Later Teatu had a wash, left (unknown to Moreti) and caught a bus to the Betio Police Station. She and Moreti had been together three to four hours. She and her boy friend (whom she had left during the afternoon at Solar Energy waiting for her) went to the Betio hospital where she was examined by Dr Keen Reue at about half past eleven. His report:-

Brought in by boy friend and a policeman. Unkempt as skirt was covered with dirt and sperm-like stuff.

Internal orifice was covered with white liquid. No evidence of blood. Hymen is absent. No laceration noted.

Also (?) stains or had (?) redder markings at neck (right and left). All consistent with sexually assault - forced.

Teatu complained that Moreti all the time by force and threat of force overbore her will, made her go with him and, on the kiakia, to have sex with him until she finally escaped.

Moreti, to the contrary, swore that she had been with him willingly all the time and consented to the intercourse: he did not use force or threat.

The prosecution called two witnesses as well as Nei Teatu and Dr Reue, Nei Ataniman Kantera, a barmaid at the Banni bar and Matin Mamara, the bus driver who took Teatu to the police station.

Ataniman:-

I was eating, looking at the road. I saw them at roundabout. He dragged
N. Teatu to get on bus. Pulled her with one arm. He wasn’t holding her when they were waiting for the bus. [Teatu had said, “I struggled (on the way to catch the bus): tibuta torn: from the back. First he held my tibuta: then grabbed arm – to bus. I was struggling and crying. Dragged me to catch bus.]

Matin:-

Told us to take her to police station. Getting off bus said she’d been attacked by her husband. “What happened to you?” She answered she was being forced. “Did he manage to get you”. (“to get” could = “rape”).

Nei Teatu is 21. As she was giving her evidence I made these notes:-

Attractive, self-confident, coherent – voluble, not emotional, understands English but evidence in Kiribati.

I could have added “self-possessed”. Not the kind of young lady, I assess, to be easily intimidated or have her will overborne. This is the first doubt I have about her saying she submitted through force or threat of force.

Secondly they were together, Teatu agrees, for three to four hours. They were in public places and among people. Yet she did not complain to anyone or attempt to free herself from Moreti’s control. It is difficult to believe that she had no opportunity all that time to get away from him.

On the other hand there is Dr Reue’s report. It is that what he saw was consistent with sexual assault – force. I noted especially the redder markings round the neck.

Thirdly, she had a boy friend waiting for her. She needed some explanation for her absence from the afternoon until late at night.

At the close of prosecution I was inclined to think that she may have gone willingly with Moreti to the party but resisted sexual intercourse.

However after hearing Moreti and his two witnesses I have doubts even that intercourse was forced. Moreti said that red marks on Teatu’s neck were love bites: love bites are consistent with consensual sex. Moreti denied that at any time he had used force or threats. He had said the same in his caution statement, admitted by consent.

The two defence witnesses.

Temakau Uriam:-

12 February 2005 drunk, myself and my cousin Moreti. Beer. Went to bar, drinking there. He called girl and she came. I was sitting next to him. Didn’t see him dragging her. Banni bar between 1700-1800: with me. Went to Ueen Te Roti. Bus. Walked on our own without touching others. Teatu not crying. Got off one at a time – walked to my aunty’s: they were with me. I went outside and leaning against wall of kiakia where they were. Didn’t hear any screaming – all I heard was talking ..... Not there when they had sex. Only came once when took food. Both lying down like husband and wife. We were leaning against posts. Almost underneath.

Tieru Tebwebwe was at the party:-

At Ueen Te Roti drinking in a house where we usually drink sour toddy. Saw three of them walking along. Girl walking on her own. Came to us for a couple of minutes then Moreti and girl went to buia. We were drinking just beside it. Heard no shouting, screaming ..... Not concentrating on kiakia. I was very drunk.

I have no reason to reject the evidence of either Temakau or Tieru.

To sum up: here is a self possessed young lady meeting a man in a bar, going with him to a party, having sex with him, leaving and needing some explanation to give to her boy friend who has been waiting for her. She complains the man forced her at every stage: the man denies it. They were together for three to four hours, a good part of that time with other people and yet, she says, she could not get away from him.

I cannot, at the very least, but have reasonable doubts about the guilt of the accused. As an element of each charge is that the accused used force or threat of force to overbear the girl, and the use of threats or force not having been proved beyond reasonable doubt I find the accused not guilty on each count.

Dated the 18th day of January 2006

THE HON ROBIN MILLHOUSE QC
Chief Justice