Republic v Kaitabwa [2007] KIHC 130; High Court Criminal Case 13 of 2007 (4 September 2007)

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

High Court Criminal Case No. 13 of 2007

BETWEEN:

THE REPUBLIC
Plaintiff

AND:

MWATIERA KAITABWA
Defendant

For the Republic: Ms Pauline Beiatau
For the Accused: Mr Karotu Tiba

Date of Hearing: 30 August 2007

JUDGMENT

The accused is charged with two counts of indecent assault:-

Particulars

1. Mwatiera Kaitabwa, on an unknown date between the 1st September and the 30th November 2006 at Nabeina village on North Tarawa indecently assaulted Nei Tanginibwebwe Aranto in the office of Nuun Teweia Primary School.

2. Mwatiera Kaitabwa, on an unknown date between the
1st September and the 30th November 2006 at Nabeina village on North Tarawa indecently assaulted Nei Tanginibwebwe Aranto in one of the classroom of Nuun Teweia Primary School.

Nei Tanginibwebwe was the only witness for the prosecution as to the facts. Before she was sworn I questioned her and was satisfied she understood the nature of an oath and the duty of speaking the truth.

In her evidence:

..... Saw Mwatiera ...... Recognised his curly hair and bald head. I went off to sleep with younger sister ..... Mwatiera came woke me up and pulled me to the office – school office: near ..... In the office he took off my underpants, had my legs close together and rubbed his penis between my legs. He let me smoke and was holding my breasts. If I inform people in the house he would kill me. Nothing more – went back to house. On next night he took me again to class room, let me smoke and was holding my breasts. I smoked. "You should smoke: if you don’t I’ll kill you here on the spot". I didn’t reply. I was afraid and allowed him to touch breasts. Nothing else. Went back to house: no one else (there) but my younger sister. Didn’t tell anyone because I was afraid of (accused).

There is one piece of evidence which I found curious. On the first night, she said:-

Mwatiera came and tied a cloth round my mouth and my hands while I was asleep under the mosquito net.

She left the cloths on when she went to sleep and still had them on when Mwatiera took her over to the school. He had never tied her before.

I have wondered whether this casts doubt on the rest of her evidence. Finally – Mr Tiba not being able to break her down in cross examination – I have decided that as her story is otherwise believable, the evidence about the cloths does not detract from what is relevant to the allegations of indecent assault.

Mr Tiba cross examined her on the identification of the accused especially as the incidents were at night. I have to bear in mind the difficulties and unreliability of identification evidence. Even so Tanginibwebwe was adamant that her attacker was Mwatiera. She should have been able to recognise him. She knew him: they lived in the same house: she saw his curly hair and bald head. Mwatiera is an older man: he still has curly hair: I could not see whether he has a bald patch or not.

The prosecution called two other witnesses. Tanginibwebwe’s mother, Nei Maria Beiatau (who at the time was away, with her husband, at the TCH having another child – she has 10 children) was about to give evidence of her daughter’s complaint many months after the events. I refused to allow it: so late, it was not made at the first reasonable opportunity after the event. Nei Maria said Tanginibwebwe was born on 7 April 1995.

The other witness, Taubwerei Ioane, in whose house both Mwatiera and Tanginibwebwe were living, had no evidence to give except hearsay which I refused to allow.

I ruled against Mr Tiba’s submission of No Case to Answer. The prosecution had made out a prima facie case on Tanginibwebwe’s evidence: there was sufficient evidence, if believed, to convict the accused. The evidence was not corroborated but pursuant to section 11(1) of the Evidence Act 2003 corroboration was not required.

At first the defence called no evidence. During his address I pointed out to Mr Tiba there was no denial of Tanginibwebwe’s story and he had not discredited it in cross examination. Mr Tiba asked for an adjournment to consider whether after all he should call his client. I refused. He had chosen not to call evidence and was well into his address: it had only been when I pointed out that the victim’s evidence is uncontradicted and I could convict on it if I found it reliable beyond reasonable doubt that he wanted to reconsider. The trial had moved on: it was too late to let him reopen his case.

I reserved my decision. Thinking about it afterwards I decided that in fairness to the accused I should have allowed Mr Tiba an opportunity to reconsider.

The hearing was last Thursday. Last Friday at my invitation Mr Tiba made a formal application to reopen his case. Ms Beiatau did not oppose. I allowed the application.

The accused gave evidence. He is 47 years old, married. In late 2006 his wife was on South Tarawa. In summary Mwatiera’s evidence was a denial that any such incidents had ever taken place. Living in Taubwerei’s house he was treated with respect as an "old man". He had scolded Tanginibwebwe on occasion because she was "naughty" (I gathered with boys).

What that girl stated is not true. I am an old man in the house: how could I do such a thing?

It is not a question of who I believe, Tanginibwebwe or Mwatiera. The prosecution must prove the case against Mwatiera beyond reasonable doubt. If I have a reasonable doubt Mwatiera must have the benefit of it and be found not guilty. He has denied that either incident ever took place. There is the girl’s curious evidence as I have called it about Mwatiera tying her mouth and hands: she may have made the story up out of some resentment of Mwatiera, perhaps because he had scolded her: she waited a long time before she told anyone: her story is uncorroborated.

Maybe nothing happened at all. Having heard Mwatiera I have a reasonable doubt.

I find the accused not guilty.

Dated the 4th day of September 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice