Republic v Karaiti [2006] KIHC 28; Criminal Case 32 of 2005 (16 February 2006)

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

High Court Criminal Case No. 32 of 2005

THE REPUBLIC

vs

KATIEBWA KARAITI

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

Date of Hearing: 13 February 2006

JUDGMENT

Katiebwa Karaiti is charged on two counts, rape and assault occasioning actual bodily harm. Particulars:-

On the 18 February 2005 on the east side of one pit in the bush at Utiroa village on the island of North Tabiteuea Katiebwa Karaiti had sexual intercourse with [the complainant] without her consent.

On the 18 February 2005 in the bush at Utiroa village on the island of North Tabiteuea, Katiebwa Karaiti caused actual bodily harm to [the complainant].

The assault is alleged to have occurred during the events at the time of the rape.

The only issue relating to the allegation of rape is consent.

Both Katiebwa and [the complainant] are 18. They live in or about the village of Utiroa on TabNorth. [Strangely, when [the complainant] was asked her home island she could not say. All she would say is that she came from Utiroa village]. They had known each other, she said in cross examination, since they were 14. He said that [the complainant] had been his girl friend “since the football competition”. [In evidence he mentioned he had a wife]. There is no suggestion that they had had sexual intercourse before the 18^th February.

It was after 6 o’clock in the evening. [The complainant's] brother had sent her to the shop to buy a tin of curried chicken and some tobacco. She rode a bike. On the way back she met Katiebwa who was riding in the opposite direction. She said he blocked her way, grabbed her tibuta and hair, grabbed her by the throat to stop her crying out, forced her into the bush (still holding the tin of curried chicken and the tobacco) and made her have sex with him. She was having her period. After the intercourse they could not find her tibuta. She did not want to be seen wearing only a bra and he lent her his singlet. On the way back to where they had left their bikes they had sex again. [In examination in chief she said, “didn’t stop again in bush” but in cross examination she admitted the second incident and that the sex was consensual]. They went to his house where he got a lavalava (there was blood on his shorts from her menstrual discharge) and went on to the house where she lived. Her father was extremely angry. She went to her mother, and told her Katiebwa had raped her twice.

The Republic knew of [the complainant's] acknowledgment that on the second occasion she agreed to the sex. In the Summary of Facts Ms Beiatau handed up as her opening she said that on the second occasion “such intercourse was consensual”.

Katiebwa said that when they met he reproached her for not keeping an appointment to see him a week before. Although she said she was in a hurry he persuaded her to go into the bush. He used no force: they embraced and rubbed noses: he went ahead and in a depression made a comfortable spot for her to lie. They kissed: he sucked her breasts: said he was going to have sex with her: she demurred but agreed to his putting his penis between her legs. He saw she was having her periods: she went a distance and cleaned herself up. [The police officer Mweretaka Roobe later found the pad]. She returned: they had sex. Afterwards they could not find her tibuta. On the way back to the bikes they had sex again. They kissed and embraced. Katiebwa denied that he had grabbed her around the neck.

There are several things about [the complainant's] account which make me doubt. First her complaint that he had her by the hair (at first while they were wheeling the bikes) and dragged her into the bush against her will while she continued to hold the tin of curried chicken and tobacco. All very difficult things to do at the same time. Second that after the first incident she was prepared to wear his singlet: one would have thought she would not want to have anything to do with him or anything of his. Third that she had sexual intercourse with him again and voluntarily. Fourth they went off on their bikes together and continued together for some time.

Katiebwa gave his evidence well as a narrative without prompting. He asserted the intercourse on both occasions was consensual and denied grabbing her by the neck. His evidence accorded with the caution statement taken a week later and admitted by consent. His answer to the last question in the caution statement, “I wish to express my sad feelings towards [the complainant] for complaining and for saying bad things against me in her complaint”.

[The complainant's] father is dead. Her mother had been waiting for her daughter to come home. She became annoyed because [the complainant] was away so long. When [the complainant] did return she “came crying .... Her hair in disarray – story about Katiebwa raping her. She said that on her way back from shopping Katiebwa had pushed her off bike – pulled her to ocean side ..... She very untidy – crying – vagina in pain ....... She told me they had sex twice: she was unable to resist. Both occasions”.

Even though [the complainant] had been to Katiebwa’s parents house and had said nothing, I allowed the mother's evidence in as a complaint made at the first opportunity.

Nei Ngarengare Moneteti is the medical assistant. She examined [the complainant] about 9 o’clock that evening. The hymen was normal. Her findings were:-

(1) a bigger orifice, raw edges, sore when touched or stretched out, it slightly bleeds.

(2) two bruises with multiple tiny scratches on left anterior neck.

The Republic must prove every element beyond reasonable doubt. It has proved all elements but consent. I have given several reasons why I am doubtful about [the complainant's] evidence. The accused, Katiebwa, does not have to prove anything but he did give a believable account of what happened and he gave it in a believable manner.

During addresses I put to Ms Beiatau my doubts, particularly in view of [the complainant's] admission (late, in cross examination and contrary to examination in chief) that intercourse the second time was consensual: and having told her mother she had consented to neither act of intercourse.

Ms Beiatau’s submission was, in effect, that once the girl had been deflowered there was no reason for her to resist again. To the contrary I would have expected her to feel angry and repulsed by a man who had raped her: anxious to get away from him as soon as she could. Yet on her own account that is not what happened.

I cannot but have a reasonable doubt that the first intercourse was without [the complainant's] consent.

I am puzzled by the marks and bruises on her throat. No doubt they were there: Nei Ngarengare’s evidence is unchallenged. The only person who could have inflicted them is the accused. To make it more difficult [the complainant] said Katiebwa grabbed her around the neck by his left hand: the medical assistant said the marks appeared to have been made by a right hand. I accept as probably correct the accused’s denial that he grabbed her round the neck. If he did not grab her round the neck he must have made the marks in some other way, perhaps not knowing that he had.

At the beginning of events Katiebwa may have grabbed her around the neck. On the other hand it is reasonably possible that during consensual sex he grabbed her somehow and without realizing it caused the marks. If so then it would not be an assault. I just do not know. Not knowing means I cannot find assault occasioning actual bodily harm proved beyond reasonable doubt.

The accused is not guilty on each count.

Dated the 16^th day of February 2006

THE HON ROBIN MILLHOUSE QC
Chief Justice