Republic v Itakara [2009] KIHC 45; Criminal Case 25 of 2009 (7 October 2009)

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

HIGH COURT CRIMINAL CASE 25 OF 2009

THE REPUBLIC

V

BWABU ITAKARA

For the Republic: Ms Pauline Beiatau
For the Accused: Mr Raweita Beniata

Date of Hearing: 7 October 2009

JUDGMENT

Bwabu Itakara, aged 45, has been charged with rape:-

On the 20th June 2008, at Tereke district between Tearinibai and Nuatabu village, North Tarawa, BWABU ITAKARA had an unlawful sexual intercourse with Nei Teera Kakoroa without her consent.

Bwabu pleaded not guilty.

Nei Teera, aged 17:-

Fixing thatched roof with pandanus, brother cutting toddy, going on for 6. Bwabu came with firewood: sat on a log. Told him what I dreamt about: asked him to explain. He said there was something wrong with me. Told me to meet him in bush for him to give me medicine and a massage. Saw him in bush about 1830. My house far away ..... Doing a back massage – not long. Came and sat in front of me. Told me he liked me: I said I did not like what he said as he was a member of family etc. He trying to take off my top and lavalava. Stronger than I, pushed me to ground: clothes still on: trying to take off lavalava. He on top. I had no underpants. Told him I scared and afraid: should be going home. Had legs open – on top of me – unfastening zipper he wearing red long sleeves and shorts. I could feel penis against vagina. He was thrusting – inside me – I was hurting: fast 4-5 times – stood up again. I was crying. Told him to stop: he did not. I could feel something coming out which I thought was blood. He put on pants. Crying: tried to run away: he held my hand. Told me not to go back to house: I said I wanted to go back home. Got back to house: dark. Did not talk to anyone: afraid. [Examination in chief].

Two or three days later early morning on ocean side [denies having gone with him]. [Cross examination].

Bwabu, to his credit, gave evidence. His defence was consent: that the girl was a willing partner, indeed had importuned him to have sex with her. There had been a second incident:-

Same thing happened three days later: another meeting in a different place: daytime, before lunch. Made arrangement that morning. [Examination in chief].

In cross examination Bwabu said they had had "sex about three times".

Mr Beniata very properly had put to Teera that there had been a second incident. She denied it. Her general demeanour, her body language, her voice, shewed indignation at the suggestion. From my observation of her I am satisfied she was telling the truth: there was no second incident.

The defence called Bwabu’s daughter, Nei Tewia:-

Saw something later. Teera woke my father: I went to use loo when I came back saw her waking my father. "What you are doing will get me into trouble". "There will be no problem".

The trouble with this evidence is that in Tewia’s statement to the police (Exhibit P1) she did not say she saw anything: it was only what her father had told her.

Which version is to be believed? I cannot place any reliance in Nei Tewia’s evidence.

In his caution statement (Exhibit P2) Bwabu had given quite a different account of a sexual encounter:-

One night nearly midnight and she visited and woke me up in order to accompany her out so I accepted couple of my daughter saw me hide peeping to us. When we returned early that morning and told that they were disappointed for what I have done. I informed them that they must not depressed as she intimidate visited woke me up to accompany her out.

Later in the caution statement he said that (contrary to his evidence) there was only one incident of intercourse.

I have come to the conclusion that the accused and his daughter have concocted the story about a second incident but the daughter did not get it quite right: at first saying it was what her father had told her: in evidence that it was what she saw.

There is no corroboration of Teera’s complaint. Corroboration is not necessary but there being none I must be very careful to be absolutely satisfied – beyond reasonable doubt – before convicting.

Teera was a good witness. I thought her telling the truth and reliable. I accept beyond reasonable doubt that the facts are as she gave them in evidence.

On the whole of the evidence I am satisfied beyond reasonable doubt that the accused is guilty as charged, of rape.

THE HON ROBIN MILLHOUSE QC
Chief Justice