Republic v Atera - Judgment [2006] KIHC 83; 19-06 (7 June 2006)

IN THE HIGH COURT OF KIRIBATI
Criminal Jurisdiction
Held at Betio
Republic of Kiribati

High Court Criminal Case No. 19 of 2006

THE REPUBLIC

v

TEBEIA ATERA

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

Date of Hearing: 5 June 2006

JUDGMENT

Between 5 o’clock and 6 o’clock in the morning (when "it was getting light" according to the little girl, the alleged victim) the accused who was very drunk (he said he had been drinking for two days) went into the house where a little girl was sleeping. She was alone: her mother had gone down to the beach. The accused was looking for the house of his friend Tekamae: he had gone into the house next door. He has been charged with house-breaking and committing a felony and with indecent assault.

The prosecution called two witnesses, the little girl and her mother.

The little girl is 12 years old and in Class 6 at school. In appearance and demeanour she is a "young" 12 year old. Before she was sworn I satisfied myself that she knew she had to tell the truth and the seriousness of taking the oath on the bible: she was competent to give evidence:-

He came into my house - felt something heavy on top of me - touching my vagina .... Lifted up skirt: took off underpants. Mother came. He had on a lavalava: still wearing it. Lying on top of me thrusting his bottom up and down. Tebeia talked to my mother: "where is Tekamae’s house? (examination in chief).

I felt him taking off my pants: made me wake up. I was awake while he was thrusting: I was about to scream and mother came. He got off me and pushed me away - before my mother came. He was not on top of me when I was about to scream. The first I knew he took my pants off. (Cross examination).

The mother came back - she had been away may be 20 minutes:-

...Saw someone beside daughter. No one who lived with us: she was lying rolled towards the door. Her skirt was up: half way. Called to my husband to come. Person asked where Tekamae’s house is? My daughter crying loudly - did not recognize him - not a man from Bairiki: wearing only lavalava. (Examination in chief)

The accused gave evidence:-

The first time I’d ever come to this part of Bairiki .... I thought it was the house - went straight in .... I went to sleep in the house. Thought I was sleeping on my own. Not sure if it was a boy or girl in the house. I woke up when girl was calling out. The little girl did not call out: only the lady calling to her husband ..... When I came to lie down I moved her away from me a little. I did not move the little girl: I just lay down: not sure how close. I had enough space to move around. Not sure if cement floor or gravel and mats. I did not touch her. Did not touch her underpants or pull her skirt: did not get on top of her: touch her vagina. (Examination in chief)

Just came inside and went to sleep but I did see someone inside .... I did not ever put my hands or legs on girl. (Cross examination)

At this point the accused was reminded of his caution statement which had been admitted by consent:-

I regret that I picked the wrong house to visit. In fact I thought it was Tekamae’s house who was my companion drinking alcohol therefore I entered that house. As I entered there was one person lying in that house. As I lay there I put my legs on top of her. I did nothing further. As I heard the voice of a lady calling, I then ran away. I was being chased and caught whereby they attacked me.

Having been shewn the caution statement he said he could not remember whether he put his leg on the girl or not. "It may have been correct".

After the incident the father, called by his wife, chased the accused and beat him up. The accused accepted the beating - "it was my fault for entering the house". He apologised. Finally in cross examination the accused renewed his denial of the girl’s account.

If it were not for the admission in the caution statement I would have had a reasonable doubt about the indecent assault. I discount the mother’s evidence: as I suggested to counsel during addresses, a mother confronted with that situation was likely to think the worst whatever had actually gone on. Discounting her evidence it would have been word against word. The accused’s admission in the caution statement tilts the balance decisively in favour of the prosecution. A man would not put his legs on top of the little girl in these circumstances without having an indecent intent. Placing of the legs over the girl was an indecent touching and so an indecent assault.

How much of the rest of the little girl’s account is accurate may be open to some question but I am satisfied beyond reasonable doubt the accused is guilty of an indecent assault.

Without doubt, what happened was that the accused blundered into the house innocently enough (and without there being any break-in - the only evidence, the accused in cross examination, is that the house had no door) and was confronted by the temptation of the little girl lying asleep and alone. It was then (and not before he entered) the accused formed the intention of indecently assaulting her. It follows the accused is not guilty of house-breaking and committing a felony but is guilty of indecent assault.

Dated the 7th day of June 2006

THE HON ROBIN MILLHOUSE QC
Chief Justice