Republic v Reetan [2010] KIHC 66; Criminal Case 17 of 2010 (16 June 2010)

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

High Court Criminal Case 17 of 2010

THE REPUBLIC

V

BAKATI REETAN

For the Republic: Ms Tewiia Tawita
For the Accused: Ms Maere Kirata

Date of Hearing: 14 June 2010

JUDGMENT

The accused has pleaded not guilty to three charges – Attempted Rape, Indecent Assault and Common Assault.

Particulars of Attempted Rape:-

Bakati Reetan, on the 27th day of December 2009 at Betio, Tarawa, in the Republic of Kiribati attempted to have unlawful sexual intercourse with Teramira Bauro without her consent.

It all happened in the early hours of Sunday 27th December last year. The victim, Nei Teramira Bauro, aged 17 and two girl friends, of whom Nei Mareta Berenata, also aged 17, was one, came to Betio and went to the Gateway Bar. They were standing at the entrance. The accused, whom Nei Teramira had not met before, came up. Invited her to dance. She accepted. After one dance he insisted on having another and another. Eventually she got away from him. She and her two friends left to go to the Midtown Bar. He followed. They went toward the Seventh Day Adventist compound:-

A guy asked if I knew this man? "I don’t know him. Help me to release myself". He said I knew him: tried to drag me to ocean side. Asked him to let me go. No one about. He was dragging me along. Very scared. Dragging me to his house: I was shouting out for him to release me. Left friends at SDA. Pushed me inside buia. Asked me to take off clothes. (Refused). One hand holding my hand, other on hair. In buia. I refused. He took off my clothes. He naked. Had my legs open. I was trying to push him off me. No one about. Trying to get penis into vagina. I trying to push him away: shouting. Police came: he was on top of me. (Examination in chief).

Nei Teramira maintained her account in cross examination, in particular that she did not want to go with the accused and resisted him at all times.

Nei Mareta corroborated Nei Teramira:-

Gateway with Teramira and Otobera .....on our way back, that man followed us. He went to one of our friends – Teramira. When going from Gateway to the SDA he followed us but when he saw the other boys he ran to Teramira. At the Gateway he wanted to go with Teramira. When they were dancing we were outside the Gateway. Teramira ran to us. Someone was talking to accused so we ran away towards Midtown. Accused ran to Teramira. AT SDA heard boys shouting. Accused ran grabbed Teramira from back. "Let me go. Let me go". We were afraid of other boys. He dragged her to ocean side at SDA. She was yelling "Release me. Release me". We went to her uncle.

The accused gave evidence. His defence was consent: that Nei Teramira was willing to have intercourse with him:-

I went after Teramira. I liked her more. We tried to hide from the other two friends. We managed and went to my house. I was not forcing her, holding her shoulder. Said we’d go back alter to her friends. Took her to my sleeping place. I wasn’t forcing her to go on buia. She got on. Chatting. She took off her own clothes. I did, too. Police. Nothing much happened. She didn’t try to escape from buia. I thought she was consenting.

Nei Teramira and Mareta were good witnesses. I accept beyond reasonable doubt that they truthful: that Nei Teramira did not want to be with the accused or to go with him.

Ms Kirata in her address submitted that while Nei Mareta corroborated the victim up to the time the accused dragged her away at the SDA there was no corroboration of what happened at the accused’s sleeping place: word against word: I should not be sure beyond reasonable doubt that by then the girl was still not consenting. The submission may sew a doubt in my mind but it is a fanciful doubt, not a reasonable doubt. It is beyond belief that the victim suddenly and freely changed her mind on the buia and was willing to have sexual intercourse with the accused. I reject Ms Kirata’s submission.

The accused was attempting to insert his penis into the victim’s vagina at the moment the police arrived. No doubt they had been called by the victim’s uncle after the other two girls went to the uncle and raised the alarm. If it had not been for the arrival of the police it is likely the accused would have succeeded in raping the girl. He was certainly in the process when disturbed.

The prosecution has proved beyond reasonable doubt against the accused every element of the crime of attempted rape. The accused is guilty. That being so there is no need to consider the alternatives of indecent assault and of common assault. They are subsumed in the attempted rape.

Dated the 16th day of June 2010

THE HON ROBIN MILLHOUSE QC
Chief Justice