Republic v Angka - judgment [2006] KIHC 41; Criminal Case 30 of 2005 (28 February 2006)

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

High Court Criminal Case No. 30 of 2005

THE REPUBLIC

vs

IOANE ANGKA

For the Republic: Ms Olga Guillen
For the Accused: Mr Karotu Tiba

Dates of Hearing: 27 February 2006

JUDGMENT

The accused was originally charged with rape, indecent assault and abduction. At the beginning of the trial the Republic abandoned the count of rape. Particulars of assault and abduction:-

On 15 June 2005 at Banraeaba village, Tarawa in the Republic of Kiribati IOANE ANGKA unlawfully and indecently assaulted Tekouti Nakuau.

On 15 June 2005 at Banraeaba village, Tarawa in the Republic of Kiribati IOANE ANGKA with the intent to have sexual intercourse took Tekouti Nakuau away and detained her against her will.

The facts are simple. The victim, Tekouti, is a little girl of seven. [The prosecution did not produce her to give evidence.] On the evening of 15 June 2005 her parents left her with her two sisters in their house while they went out drinking yangona. Her mother, Nei Romatua Nakuau, went home and noticed Tekouti missing. Her father Nakuau Temwaie and others (of whom Tebonna Takarabu and Akau Teeite were two) went looking for her. They found her in bushes about a hundred metres from where they lived, in a place where no houses were close. She was with the accused.

Nakuau:-

Found her amongst bushes a few metres away. She was with Ioane. He was between her legs – his head. He wearing underwear. She was face upwards. Accused drunk – smelt it. She said nothing. “If I cried he’d kill me”. She said he had been licking her vagina. Accused said nothing.

Nei Romatua:-

May be after midnight when noticed her missing. Checked with neighbours. Found her in bushes about 100m – no one living there. Saw her after husband did ..... “Licking my vagina and penis on my vagina” Accused present. Accused beside her. He was wearing underwear: long pants beside him.

Tebonna Takarabu:-

Child lost Tekouti. In bushes. Father found her. Next to meter box with Nakuau. Accused next to her, close. No underwear. Accused had no
t-shirt.

Xxmm: I don’t agree he was sleeping. He was doing something to the little girl. He had hidden child under bush: alone with her. Smelt alcohol. Drunk.

Akau Teerite:-

Found her amongst saltbush. Accused with her. Ioane had just got off child. His long pants near him – light colour. Ioane said he had only carried child to stop her crying and to tease parents. Houses not that close.

In his caution statement, admitted by consent, the accused had nothing to say about the incident “because I was very full of drunk”.

The only other witness was Dr Kautu Tenaua who examined Tekouti the next day and made a report:-

A young girl about 6-7 years old. Findings – hymen intact/redness noted around the urethral opening only. No obvious signs of forceful penetration.

The accused did not give evidence or call any.

Ioane Angka took Tekouti from her house at night, in the absence of her parents, to a quiet spot where he indecently assaulted her. There is no reasonable doubt about that.

Penal Code section 131:-

131. Any person who, with intent to marry or have sexual intercourse with a woman of any age, or to cause her to be married or carnally known by any other person, takes her away, or detains her, against her will, is guilty of a felony, and is liable to imprisonment for 7 years.
     

The prosecution must prove as an element of the offence of abduction “with intent to .....have sexual intercourse”.

No evidence of that intent has been proved. Akau (a policeman for the last 10 years) heard the accused say he had carried her off to stop her crying and to tease her parents. The accused made no admission of an intent to have sexual intercourse. There is no other evidence of his intent to have sexual intercourse.

The accused’s actions were indecent but do not necessarily shew an intention to go further. I must have a reasonable doubt about his intent to have sexual intercourse.

The Republic has therefore failed to prove all the elements of the crime of abduction.

The accused is guilty of indecent assault but not of abduction.

Dated the 28^th day of February 2006

THE HON ROBIN MILLHOUSE QC
Chief Justice