Republic v Teuru [2009] KIHC 12; Criminal Case 66 of 2008 (27 April 2009)

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

High Court Criminal Case 66 of 2008

The Republic

v

Boobai Teuru

For the Republic: Ms Teretia Tookam
For the Accused: Mr Giles O’Brien-Hartcher

Dates of Hearing: 22 April 2009

JUDGMENT

Boobai Teuru is charged with rape:-

Particulars of Offence

In or about early morning of 29th of July 2007 in the bush at Tenikatongtong on the island of Tabiteuea North (Tab-North) in the Republic of Kiribati, Boobai Teuru had unlawful sexual intercourse with Nei Tebuae Nawaia without her consent.

Nei Tebuae gave her present age as "17+". Boobai said he is "21+"

The defence is consent. Whether Tebuae freely consented to the intercourse or not is the only issue: no other elements of the offence of rape are in dispute.

Before I may convict I must be satisfied beyond reasonable doubt that Tebuae did not freely consent.

There is no corroboration of the alleged victim’s account. It is word against word. She asserted that the accused hit her, pulled her hair, dragged her, threatened her: she gave in and allowed him to have sexual intercourse. He to the contrary has denied any coercion and asserted that the intercourse was consensual.

Corroboration is not required by law. A judge summing up to a jury warns the members that they may convict on the victim’s uncorroborated evidence but it is dangerous to do so: the jury should think very carefully about it before convicting.

Boobai who is according to I-Matang reckoning the second cousin of Tebuae’s father, Nawaia Tabaeko (making Boobai the second cousin once removed of Tebuae) had been drinking fermented yeast with Nawaia at Nawaia’s house. Boobai’s wife was at the house, too. About midnight Boobai asked Tebuae to drop his wife at their own house. She did so, riding a motorbike. On the way back to the house Boobai stopped her on the road and said he wanted to go to the OECC (near the new hospital) to buy beer for her father. She agreed. He said she rode the bike and he was pillion: she says he rode and she the pillion. He says that they could not buy the beer and instead of going back to the house they rode on some distance to Tenikatongtong, an area of bushes, where the intercourse took place. She says he rode so fast she could not jump off and they went past the OECC without stopping. After intercourse he admits being the rider until he got off the bike and she rode on to the house.

A point in favour of the prosecution is that both said it was Boobai who accosted Tebuae as she was riding home after dropping Boobai’s wife. Boobai initiated the incident.

Both Tebuae’s statement to the police and Boobai’s caution statement were admitted by consent. If one compares Tebuae’s statement with her oral evidence the two coincide pretty well even though, as may be expected, there are differences of detail. There is however a qualification to the coincidence. Neither in Ms Tookam’s opening nor in Tebuae’s statement to the police is there any suggestion of more than one act of intercourse. Yet in her oral evidence Tebuae said the first incident was at "Takea" and there was a second incident at Tenikatongtong. Her oral evidence after describing the first incident:-

He got off me – got on motorbike: took me back. To Eita – in bush part. Told me "sex again". I accepted what he told me. He then had sex again. Undressed me, inserted penis into vagina. Got on motorbike again – told me to return on my own. I rode motorbike on my own.

The accused in his evidence denied they had sex the second time.

There is another discrepancy. Tebuae had said the first incident was at "Takea". She made no immediate complaint to her father, Nawaia (because she was afraid he would be so angry as to kill Boobai). Nawaia’s evidence was that when Tebuae did complain to him several days later she said it had happened at Tenikatongtong. The accused said it was at Tenikatongtong. The police investigating officer, Tooti Kautu, said Takea and Tenikatongtong are close by.

Tebuae’s account of a second incident of sexual intercourse looks to be a recent addition to her complaints. No mention of it to the police (and consequently only one count in the indictment, not two) and no mention of it in the prosecution opening.

Had it not been for Tebuae’s assertion of two incidents of sexual intercourse I think I would not have had a reasonable doubt that the prosecution had proven against the accused every element of rape. As it is, this discrepancy is sufficient to raise a reasonable doubt in my mind. Perhaps the alleged victim is "gilding the lily", thinking to strengthen her story by adding a bit more. Maybe she did consent?

The accused must be given the benefit of the doubt. He is not guilty of rape.

Dated the 27th day of April 2009

THE HON ROBIN MILLHOUSE QC
Chief Justice