Republic v Kariba [2010] KIHC 89; Criminal Case 19 of 2010 (8 October 2010)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION
HELD AT BETIO

High Court Criminal Case 19 of 2010

THE REPUBLIC

V

REITIATA KARIBA

For the Republic: Ms Tewiia Tawita
For the Accused: Mr Mantaia Kaongotao

Date of Hearing: 6 October 2010

JUDGMENT

The accused, a boy of 15, has been charged on six counts, two of attempted rape, two of indecent assault and two of common assault. All offences are alleged to have occurred between 10 and 11 o'clock at night on the last 21st of November at Taborio: the same victim, a girl of 16, on each count. The victim, Nei Kakiaiti and her friend, Nei Tangare (aged 18) while on a bus to Betio, realized they did not have the fare. So they got off at Taborio. They saw the accused and his friend Reo, a boy of 17 and asked them for 40c each for fares. Kakiaiti was a good witness. I accept beyond reasonable doubt the coherent account she gave of what happened:-

Saw two of them – Reo and Reitiata. Asked for our bus fare. Told us if we followed them they'd give us fare. Hadn't seen them before. We ran to other side of road to catch bus: they shouted out to driver "No fare". Same with next bus. Reo said, "That's your partner and this one is mine". I see boy in court. (Identified accused). "I can punch you right now so that you faint". I was scared. Grabbed my hand and took next to boat. Dark. Told me to take off my skirt but I refused. Pushed me down. Didn't cry out – he scared me. Told me to take off panties. He got on top of me, trying to insert penis into vagina. Struggling: he very angry. Said he'd punch me – so I inserted it between my legs and his other friend came. "Why did you come? Where's the other girl? "She got on the bus". Trying to insert penis. Then we heard Tangare calling my name. Put his hand on my mouth. They dragged me to the lagoon side on the beach. He made me lie down, pushed me. Got on top: trying to insert penis. His friend standing above me: asked me to suck his dick. Didn't manage to insert penis. I asked him to get rid of his friend. The friend said "I'm next". "I'll watch out". Trying to insert again but police came with my friend. They dragged me trying to run away but I was struggling and ran away. I did not consent to what he did to me. (Examination in chief).

He told me to follow him and held my hand. He made me lie down and got on top. He scared me and at same time was trying to insert penis. I was struggling. He forced me. Think he was a bit drunk. Dark. Penis did not go into vagina. I screamed only when someone was coming on beach. (Cross examination).

The account is corroborated by her friend, Tangare:-

Short guy said for me to go with him. Other guy punched coconut tree: my friend looked very frightened. Her hand was being pulled towards a dark place. I ran suddenly to a lady – asked for help ..... Shining the torch where she last seen. Saw boy jump off Kakiaiti. Kakiaiti ran to policewoman and hugged her. Saw them on beach. Kakiaiti wearing only dress. Crying. Guys ran away.

Tangare had gone to the house of a lady, Nei Touberi Robeiti, a Special Constable and appealed for help. They found the victim and the two boys:-

Went with the girl (and some boys). Reached boat but girl not there: told her to call out friend's name. Shone torch – saw movement of people. Young girl came running, crying, putting on skirt, said her mouth being covered and blocked.

Finally there was some further corroboration from a lad of 13, Namai Boitu:-

Took young lady to policewoman's house. We went looking for the other girl. She was dragged along the beach. We torched them. Saw two boys – knew them – identified accused. They ran away and we chased them – no pants. Young lady no pants but dress – ran to policewoman, crying.

I do not hesitate to accept the evidence of all witnesses as truthful and accurate.

Finally Ms Tawita proved and tendered the caution statement made by the accused. As the accused is young, the police, very properly, had his father, Kariba Toanimarawa, present. Kariba both in his statement and in oral evidence acknowledged that his son gave his statement freely. Only on one point was there any demur: whether his son admitted using force or only having threatened to use it. Either way makes no difference. If the victim's will is overborne by actual force or merely out of fear that force will be used against her, in law the conclusion is the same: there is no consent.

The accused gave evidence. It was to the effect that Kakiaiti was a consenting party. Very difficult to sustain in the light of the admissions in his caution statement (Exhibit P1):-

I certified that I took force against the girl who lodges her complaint this time. I wasn't having sex with her but I just put out her underwear as I asked her to remove it and she was removing it. I tried to penetrate my penis into her virginal because I was full drunk so I asked her to do so. My penis wasn't got into her virginal because I saw the light of the torch then I ran away. My friend namely Neville was also came to me and told me to have sex after I come. At the moment as I was on the top of this girl (Kakiaiti), Neville was kissing her. The appearance of this girl was slim and has a medium height. The last thing, I want to apologize to this girl.

These admissions were amplified in question and answer:-

5. You mentioned that you took force against her, can you explain more? Ans – I took force against her and use an intimidation that I could hit her if she wasn't follow me but actually I wasn't smack her.....

11. Was she looks happy or afraid while she follows you? Ans – She looks afraid.

The prosecution has approved beyond reasonable doubt all elements of the three charges, attempted rape, indecent assault and common assault.

The accused used force to drag Kakiaiti, first to the boat and later to the beach. In the course of attempting rape, at the boat and on the beach he undoubtedly indecently assaulted her and both at the boat and on the beach he attempted to rape her and would have succeeded if he had been able to get his penis into her vagina as he was trying to do or if he had not been interrupted by having to move from near the boat to the beach and on the beach had not been seen by the search party.

The accused is guilty on all six counts.

Dated the 8th day of October 2010

THE HON ROBIN MILLHOUSE QC
Chief Justice