Republic v Tion [2014] KIHC 16; Criminal Case 12.2011 (12 June 2014)

IN THE HIGH COURT OF KIRIBATI 2014

CRIMINAL CASE NO. 12 OF 2011

BETWEEN

THE REPUBLIC
PROSECUTOR

AND

NAUTO TION
ACCUSED

Before: Hon Chief Justice Sir John Muria

12 June 2014

Ms Pauline Beiatau for Prosecutor
Ms Jessica McLaren for Accused

JUDGMENT

Muria CJ: The accused Nauto Tion has been charged with one count of Rape contrary to section 129 of the Penal Code and one count of Criminal Trespass contrary to section 182(1)(a) of the Penal Code. He pleaded not guilty to both counts. I remind myself that the burden is on the prosecution to prove the case against the accused beyond reasonable doubt.

The Court finds the following facts not disputed. The accused and his family, as well as the victim and her family, together with other families were lodging in the Nei Wirara Maneaba at Matang Village, Nonouti on or about 16 December 2010. The accused's and victim's families had their mosquito nets put up at the corners of one end of the maneaba but opposite each other. The victim's mosquito net was at the lagoon side and the accused's mosquito net was at the ocean side in the maneaba.

In the evening of the 15th December 2010 the victim's husband, Bauro, went to a missionary's house to drink kava. The accused also attended the kava drinking session. After midnight, at about 3 am, the accused returned to the maneaba. He went to the victim's mosquito net, lied down beside the victim who was sleeping and had sexual intercourse with her from behind, under her leg. The accused lifted her leg and placed it on his. The victim felt his penis inside her. After they had sexual intercourse, the accused laid beside the victim. It was then that the victim touched the accused's body and realized it was not her husband. She jumped out of the mosquito net and called her husband. The accused went out of the mosquito net. Both the victim and husband recognised him to be the accused.

The accused accepted he had sexual intercourse with the victim. He, however, said that he mistakenly thought that the mosquito net he entered into was his and that the victim was his wife. He said that he only realized he was in the wrong mosquito net and that the victim was not his wife when the victim shouted to her husband.

In his evidence in Court, the accused also stated that when he returned from kava drinking, he went to his corner of the maneaba where his mosquito net was. He took his dinner where it was left for him and ate his dinner. After having his dinner, he went inside his own mosquito net and slept for about an hour. He later woke up because he wanted to pee. He went out of the maneaba to pee and came back into the maneaba. Instead of returning to his mosquito net, he went to the victim's mosquito net and lay down. He said he thought it was his mosquito net. He lay down and slept for about 45 minutes. He then felt like having sex and so called out his wife's name, Atinta, lifted up her leg and placed it on him and pushed his penis into her vagina from under her leg and had sexual intercourse with her. There was no resistance from the victim who thought the person having sexual intercourse with her was her husband.

The husband's evidence was that he returned from drinking kava and slept in the same mosquito net where his wife was. He was awakened when his wife jumped to him and told him what happened. He also recognised the accused. He did not do or say anything to the accused.

As the accused admitted that he had sexual intercourse with the victim, the only issue to be resolved is that of consent. The prosecution's case is that the victim gave her consent to the accused to have sexual intercourse with her because she thought he was her husband. The accused's case is that he thought the victim was his wife who willingly agreed to have sexual intercourse with him. Thus the two scenario we are faced with in this case are that sexual intercourse occurred between the victim and the accused willingly with the victim believing that the accused was her husband and the accused believing that the victim was his wife.

The suggestion by the prosecution is that the accused deliberately went into the victim's mosquito net and had sexual intercourse with her. It is further suggested that the accused's story that he mistakenly took the victim's mosquito net as his should not be believed. The prosecution further suggested that the accused's story that he mistook the victim as his wife and so called her name before having sexual intercourse with her should not be believed either.

The prosecution case is that the accused had sexual intercourse with the victim with her consent obtained by personating her husband.

As the case for the prosecution is pivoted on the allegation that the accused had sexual intercourse with the victim with her consent, which consent was obtained by personating her husband, the prosecution would have to establish by evidence that the accused personated the victim's husband, that is to say, the accused had done something to assume the character or identity of the victim's husband, with the purpose of deceiving her. There must be some act of deception on the part of the accused which made the victim gave her consent to have sexual intercourse with him.

The closest the victim's evidence gets to on this aspect of the case is when she said that her husband used to have sex with her in the same position as the accused had sexual intercourse with her. But there is no evidence to suggest that the accused knew that the victim's husband used to have sex with his wife (victim) in that position. By the same vein, the accused also testified that his favourite position when having sexual intercourse with his wife (Nei Atinta) was also from behind under her leg, the same position in which he had sexual intercourse with the victim.

On the evidence before the Court, I cannot find any evidence of impersonation at all in this case. He had not taken steps at all to assume the identity of the victim's husband, so as to deceive her. The evidence before the Court points to the fact the accused was simply being himself, went to the victim's mosquito net, got into the mosquito net, lied down behind the victim toward her legs, lifted the victim's leg and placed it over his body and penetrated her vagina from that position. The victim in her own evidence consented to the act of sexual intercourse. She actually asked the accused to "come on top" of her. This evidence is consistent with the accused's evidence that the victim asked him to get on top of her.

Another aspect of the case before the Court is that in his Caution Statement which is admitted in evidence, the accused stated that while in the mosquito net he wanted to have sexual intercourse with his wife. He called her name (his wife's name) and asked her to have sexual intercourse. The victim replied and asked him to "come on top" of her but the accused did not get on top of her. The evidence of the accused in his Caution Statement and in Court is confirmed by the victim's evidence that she asked the accused to "come on top" of her. In my judgment, there are two possible conclusions. The first is that when the victim said "come on top" she was responding to the accused's request to have sexual intercourse or she was consciously and willingly initiating a change of sexual intercourse position with the accused.

Again if the victim's evidence on this aspect of the case is accepted, then her request to the accused (whom she believed to be her husband) to get on top of her is contradictory to her evidence that her husband used to have sexual intercourse with her from behind under her leg whenever he came back from his drinking bouts.

But I think the more fundamental question in this case is whether the victim did not consent to the act of sexual intercourse with the accused. As stated in R -v- Linekar [1994] EWCA Crim 2; [1995] 3 All ER 69, at 73:

"An essential ingredient of the offence of rape is the proof that the woman did not consent to the actual act of sexual intercourse with the particular man who penetrated her. If the Crown prove that she did not consent to sexual intercourse, rape is proved".

The evidence in the present case clearly shows that the victim consented to the act of sexual intercourse with the accused. There can be no question about that.

A similar position of the law was expressed in Papadimitropoulos –v- R [1957] HCA 74; (1957) 98 CLR 249 where the High Court of Australia said:

"Rape is carnal knowledge of a woman without her consent. Carnal knowledge is the physical act of penetration. It is the consent to such physical act of penetration which is in question upon an indictment for rape. Such a consent demands a perception as to what is about to take place, as to the identity of the man and the character of what he is doing. Once the consent is comprehending and actual, the inducing causes cannot destroy its reality and leave the man guilty of rape".

In the case of R -v- Dee (1884) 15 Cox CC 579, the victim was lying down on her bed in her room, in the evening when it was dark. Thinking it was her husband who had gone out fishing and had come home early, said to the accused, "You are soon home tonight" to which he made no reply. The accused entered her room, personating her husband, lay down beside her and had sex with her. She did not resist sexual intercourse but she ran out of the room upon recognizing the accused was not her husband. The Court in that case found that the accused clearly knew that the victim was deceived by being silent to the woman's remarks. That is not the situation in the present case on the facts before the Court. In the present case there was consent by the victim to have sexual intercourse with the accused – consensus quoad hanc personam. The position would have been different if there was evidence to demonstrate that the accused knew that the victim was deceived at the time he had sexual intercourse with her. In which case he would be personating the victim's husband and there would be no consensus quoad hanc personam.

A further troubling feature of the case is that on her own evidence, the victim reported the matter to the police after one or two weeks of the incident. At first the victim did not report the matter to the police because, as she said, her husband told her not to do so. However, after about two weeks, she reported the matter to the police because she felt bad and frustrated to learn that the accused was boasting about his "sleeping with a married woman" in the village. It might well be assumed from her story then, that the matter might not have been reported at all had the accused kept his mouth shut.

Much has been argued and submitted by Counsel on the accused's drunkenness after a heavy night of kava drinking and his behaviour when he returned to the maneaba. Those were relied heavily on by the prosecution to build the case against the accused that although he might have been drunk, he knew what he was doing. He knew where his mosquito net was. He knew where his food was which he took and ate it. He rested, went out to urinate outside, returned to the maneaba and went to the victim's mosquito net instead of to his own mosquito net. It was said that the accused deliberately went to the victim's mosquito net to have sexual intercourse with the victim.

In the Court's view, even accepting those aspects of the accused's conduct, they did not alter the crucial position at the time the accused had consensual sexual intercourse with the victim in her mosquito net. At the time sexual intercourse took place in the mosquito net between the victim and the accused, the victim signified her consent and did give her consensus quad hanc personam to the accused. There is no evidence of personation and so there could not be any personation by the accused of the victim's husband. Simply lying behind the victim is not proof of personation.

On the evidence before the Court, there is doubt in the Court's mind that the accused personated the victim's husband when he had consensual sexual intercourse with the victim. I find the accused therefore not guilty of rape and he is acquitted.

Equally the evidence does not support the elements of the charge of criminal trespass contrary to section 182(1)(a) of the Penal Code. The accused must also be found not guilty of the charge of criminal trespass and he is acquitted of that charge.
ORDER: Count 1 - Not guilty of rape
Acquitted

Count 2 - Not guilty of criminal trespass
Acquitted

Dated the 20th day of June 2014

SIR JOHN MURIA
Chief Justice