Republic v Erekana [2010] KIHC 41; Criminal Case 09 of 2010 (16 April 2010)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION

High Court Criminal Case 9 of 2010

HELD AT BETIO
REPUBLIC OF KIRIBATI

THE REPUBLIC

V

TEBWATI EREKANA

For the Republic: Ms Pauline Beiatau
For the Accused: Mr Mantaia Kaongotao

Date of Hearing: 14 April 2010

JUDGMENT

Tebwati Erekana has pleaded not guilty to three charges of indecent assault.

Particulars

Count 1

Tebwati Erekana on an unknown date between the 1st January and 31st December 2007 at Eita village on South Tarawa unlawfully and indecently assaulted Nei Bannenang Kabuta.

Count 2

Tebwati Erekana on an unknown date between the 1st January and 31st December 2008 around William Goward College on South Tarawa unlawfully and indecently assaulted Nei Bannenang Kabuta.

Count 3

Tebwati Erekana on the 6th March 2009 at Eita village on South Tarawa unlawfully and indecently assaulted Nei Bannenang Kabuta.

The prosecution alleged that on many occasions in 2007, 2008 and 2009 the accused put his finger in Nei Bannenang’s vagina. It will be seen that only three incidents have actually been charged: one in each of the years 2007, 2008 and 2009. The accused married the second prosecution witness, Nei Ereata Kiiba, in 2000. He is the brother of Nei Ereata’s first husband who had died: the uncle of the first prosecution witness Nei Bannenang Kabuta. The marriage has ended.

At the close of the prosecution case I found the accused had no case to answer on charges 1 and 3. The combination of the evidence of the two prosecution witnesses (confirmed in many respects by the accused in his caution statement, Exhibit P1) was that when the girl came home after having been out at night or weekends her mother and stepfather used, physically, check in her vagina to see whether she had had sexual intercourse or not. They turned off the light, shone a torch into the vagina and one or other of them inserted a finger. These incidents were all in 2007. Nei Bannenang said nothing happened in 2009.

On that evidence there was no indecent element at all. I could not find the accused guilty of indecent assault. Perhaps both parents were guilty of common assault. That would, in the circumstances of this case be so trivial I ignore it although technically perhaps the accused could be convicted.

Nei Bannenang said nothing happened in 2009. Although the mother said she last checked her daughter in 2009 I could not find any incident occurred last year.

From the evidence I concluded that the mother and daughter, the marriage breaking down, made the complaint to the police to be rid of the accused. Nei Ereata admitted they did not complain for more than a year after the incidents of which they spoke.

Nei Bannenang’s evidence relating to count 2:-

In 2008 before Kiritimati ..... going to check with vagina – next to William Goward. We were going to see other sister in Taborio. Midnight ..... On top of me and he was going to check me and to see how it feels like what I said before. He forced me and he was going to strike me. Trying to take off my pants but I was closing my legs. He punched my legs. I cried; he asked why. "You’re a brother of my father". He stopped and said "Sorry". Not to let anyone know. He was wearing lavalava but took it off when on top of me. Bebekan.

The accused in evidence denied any such incident. So it is the uncorroborated evidence of Nei Bannenang against the blank denial of the accused. One must always think hard before convicting on uncorroborated evidence in a sexual case. Of significance is that nothing about the incident is recorded in the accused’s caution statement which Ms Beiatau tendered. The police did not ask the accused anything about it. If a complaint had been made one would have expected the police to have questioned the accused. I infer from the absence of any reference to the incident alleged that the mother and daughter have added to their account later, after they had been to the police. It would be unsafe to convict the accused on the evidence before the court.

The accused had no case to answer on counts 1 and 3 and is not guilty on count 2.

Dated the 16th day of April 2010

THE HON ROBIN MILLHOUSE QC
Chief Justice