Republic v Terieta - Judgment [2007] KIHC 85; Criminal Case 02 of 2007 (3 May 2007)

In the High Court of Kiribati
Criminal Jurisdiction
Held at Betio
Republic of Kiribati

High Court Criminal Case No. 2 of 2007

The Republic

v

Antonio Terieta

For the Republic: Mr Birimaka Tekanene
For the Accused: Mr Karotu Tiba

Date of Hearing: 1 May 2007

JUDGMENT

The accused has been charged with attempted rape:-

Antonio Terieta at Temaiku village on the island of South Tarawa in the Republic of Kiribati attempted to have sexual intercourse with Nei Teetaieta David without her consent.

The victim gave evidence of the accused being at her house, obliging her to go with him to her brother’s house and then to go with him to a quiet area at Temaiku. In the course of all this he held her by the neck, punched her face, pushed and punched her:-

Forced me to sit down – take off my clothes – punched head. Took off my top. Kept on punching me. Really scared. Forced me to take off my bra – got on me – scared – punched me to my face. Shouted as motorbike came past. Had taken off only my top. Jumped on him, pushed him away. He asked me again to take off my shorts. I pulled down my pants. (I resisted). He was wearing short trousers. He pulled down his trousers. Shouted to people walking down the road. They torched me – he ran away – a group of men chased him. After 8 o’clock – dark.

In cross examination the victim denied they had ever had sex or that she went willingly with the accused.

A medical report, admitted by consent, described injuries seen the following day:-

T-shirt front part covered with blood stained (fresh). Lips upper and lower were swollen and slight bleeding. Posterior part of neck (left) side was slight swollen too. All marks were consistent with force being applied.

Only one other prosecution witness, a man who helped in the search for the victim. He saw a man standing up who ran away and "a lady on the ground".

At the close of the prosecution case, Mr Tiba submitted his client had no case to answer.

There is evidence of indecent assault and common assault sufficient to make out a prima facie case for the accused to answer – the taking off of clothes, the accused on the victim, the victim’s evidence of his violence towards her and the medical evidence. The victim gave no evidence of an attempt to have sexual intercourse such as the accused having an erection or attempting to insert his penis.

Section 371(1) of the Penal Code:-

When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfillment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.

Under the heading of "Actus Reus in Attempt" Kenny’s Outlines of Criminal Law (1952 ed at para 63) puts it this way:-

...in all crimes an actus reus must consist in something done (or omitted), and in attempt the deed must be one performed in actual furtherance of the crime intended. And, in addition, that deed must be such that it raises a presumption that the accused was aiming at the crime in question. In other words the accused must have actually done things which are steps intentionally taken in furtherance of some specific aim, and which themselves are enough to suggest beyond reasonable doubt what that specific aim was.

The Criminal Attempts Act 1981 (UK) (S.1):-

(1) If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.

Although not binding in Kiribati, section 1(1) of the UK Act is a succinct summary of the law here as elsewhere.

Had the accused done an act which was more than merely preparatory to the commission of rape? Had he, reverting to Kenny, done something enough to suggest beyond reasonable doubt what his specific aim was?

On the evidence the answer to both questions is "no".

The accused had done acts preparatory to the commission of rape – lying on the accused, causing her to take off clothes and taking down his shorts – but he had gone no further. He had done nothing to suggest beyond reasonable doubt that his specific aim was to rape the victim.

The accused has no case to answer to answer on the charge of attempted rape.

The more vexed question is whether, having no case to answer on attempted rape, he may have a case to answer of some lesser offence?

The Criminal Procedure Act Section 164:-

When a person is charged with rape and the court is of the opinion that he is not guilty of that offence, but that he is guilty of an offence under one of the sections 133(1) ....... of the Penal Code, he may be convicted of that offence although he was not charged with it.

Section 133(1) of the Penal Code describes indecent assault.

No doubt that if the accused had been charged with rape he would have had a case to answer on indecent assault. He has not been charged with rape but with attempted rape. Is attempted rape a lesser alternative to rape, an alternative of which an accused may be convicted on a charge of rape? An indication of a negative answer is in section 164 itself. Attempted rape is not among alternative offences of which a person charged with rape may be convicted.

There is some confirmation of a negative answer in Kenny:-

In the offence of attempt the gravamen is measured by the kind of crime intended and this means that the essence of attempt lies in the intention rather than in the acts done in furtherance thereof. In other words the criminality is constituted more by the mens rea than by the actus reus. Yet since mens rea alone is not a crime the courts required a physical element also; but in this case only as much was necessary as could establish the mens rea. (Paragraph 61).

The gravamen of the offence of attempted rape is the attempt, not rape itself. Either there was an attempt to rape or there was not. There is no lesser alternative to an attempt. Indecent assault is not a lesser alternative to attempt to rape. There is no descending line of less serious offences (indecent assault, common assault), if I may put it that way, from attempted rape as there is from rape.

There is insufficient evidence that the accused had gone far enough, had done acts which were more than preparatory, had done acts which suggested beyond reasonable doubt that his specific aim was to rape the victim. Likewise there is no lesser offence of which the accused could be convicted.

The accused has no case to answer.

Dated the 3rd day of May 2007

THE HON ROBIN MILLHOUSE QC
Chief Justice