Republic v Nantoki - Judgment [2010] KIHC 146; High Court Criminal Case 58 of 2010 (1 November 2010)

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

High Court Criminal Case 58 of 2010

The Republic

v

Tebau Nantoki

For the Republic: Ms Tewia Tawita
For the Accused: Mr Raweita Beniata

Date of Hearing: 1 November 2010

JUDGMENT

The accused is charged with indecent assault.

Particulars:

Tebau Nantoki, on the 23rd of January 2010, Eita village, on South Tarawa, in the Republic of Kiribati, unlawfully and indecently assaulted Biike Bwaraeta, a young girl of 13 years old.

The accused, a man of 40, is alleged, while the victim a girl now 14, was asleep on a buia and no one else was about, to have put his hand into the top of her t-shirt to feel her breasts. The victim pushed his hand away. He put his hand up her t-shirt to feel her breasts. She pushed him away again and left.

Biike Bwaraeta:

I was asleep. I felt a hand under clothes. I quickly took hand away and then later felt it under clothes again: trying to touch breasts. I took hand away and went away. Saw it was Tebau. Aunty washing – but she was gone. Smelt nothing ..... (Examination in chief).

I was sleeping Saw person after opened eyes No one else about Saw his hand pushed it away I recognized him ..... When I got off the buia. He was there and I saw his face. (Cross examination).

Nei Biike gave her evidence well. I accept beyond reasonable doubt her account of what happened.

It is confirmed in part by her aunt, Nei Ritiabwa Terikate:

I was washing between bathroom and buia. On buia Nei Biike asleep. Tebau came along got on buia. He looked normal. Someone called me to play bingo. He leaned backwards and was lying on buia. (Examination in chief).

No one else. I went: he was lying on buia ..... Saw him got on buia. He was there. I was talking to him, maroro. He got on the buia. I was washing. We were talking. After what he did the family hated him. (Cross examination).

I also accept beyond reasonable doubt Nei Ritiabwa's evidence.

The victim's mother, Nei Ritia Bwaraeta, was angry when she was told what had happened. She and her family including her daughter Biike, had been staying at Eita with the accused and his deceased wife's family for Christmas. They immediately packed up and left:

Accused came to our house three or four days after we left. Came to apologize for what he had done to my daughter. I chased him away saying "You are a filthy man to do what you did to my daughter". He kept apologizing. Haven't seen him since. I didn't accept his apology.

Although the incident happened on a Saturday towards the end of January, it was not reported to the police until January. I wondered why the report was so late. Nei Ritia explained that at the time her husband was in New Zealand for medical treatment and did not come back until June. When he was told he had the matter reported. The explanation was sufficient to dispel any doubt which the late report might have put in my mind.

The accused gave a statement to the police under caution. It was admitted (P1) without objection. The accused summed it up at the beginning:

Yes maybe it was true but I was full drunk that time and not sure well.

There had been no suggestion in the evidence of either the victim or her aunt of his drunkenness.

At the close of the prosecution Mr Beniata submitted his client had no case to answer. I rejected the submission.

The accused, to his credit, gave evidence. His defence was that he was living at Bikenibeu with his partner, his wife being dead. While he could not remember clearly if he went to Eita on this morning, it was only to have a shower:

Went to Eita – not sure – only went there to have a shower. Maybe in morning between 8 and 9. Went back to Bikenibeu after shower. In Eita only showering.

This different explanation came as a complete surprise in view of his caution statement. His explanation for not giving it to the police:

I didn't tell the police I was at Bikenibeu with my partner because they didn't ask me.

He said he went to the victim's family to apologize not because he knew he had done wrong but because he was pressured:

I went to apologize in case information correct and was pressured.

On the whole of the evidence I have no reasonable doubt about the guilt of the accused. He is guilty of indecent assault.

Dated the 4th day of November 2010

THE HON ROBIN MILLHOUSE QC
Chief Justice