Republic v Peter [2009] KIHC 30; Criminal Case 8 of 2009 (20 July 2009)

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

HIGH COURT CRIMINAL CASE 8 OF 2009

THE REPUBLIC

V

RUTIANO PETER

For The Republic: Ms Taaira Timeon
For The Accused: Ms Maere Kirata

Date of Hearing: 20 July 2009

FINDING OF NO CASE TO ANSWER

Ms Kirata has submitted that her client has no case to answer. One of the elements of the offence under S.132 of the Penal Code is that the girl be taken "out of the possession and against the will of her father or mother, guardian or any other person having the lawful care or charge of her ----".

The evidence is that Eritabeta was a Form IV student at St Louis High School. She was living with her brother and sister-in-law at Abarao so that she could go to school because her mother was living on Abaiang. This was a family arrangement. Clearly at the time she went off with the accused she was not "in the possession of her mother" (to adapt the words of the charge): she was in the lawful care either of her brother or of her sister-in-law or both. Neither has given evidence so the prosecution has left a gap in its case. This gap was not closed by the evidence of N. Tokaniman, Eritabeta’s mother. N. Tokaniman’s evidence merely shewed the girl was not in her "possession" or "lawful care" on 24 September 2008.

The accused has no case to answer.

For the comfort of Ms Timeon I may add that had the accused given evidence all he had to do to get the benefit of the proviso to the section was to say what he had already said in his caution statement: that Eritabeta had told him she was 18 and he believed she was 18. Eritabeta acknowledged she told Rutiano she was 18 and on her appearance in court today she could last September have passed for 18.

Dated the 20th day of July 2009

THE HON ROBIN MILLHOUSE QC
Chief Justice