Republic v Kauriri - Judgment [2015] KIHC 19; Criminal Case 31.2013 (4 May 2015)

IN THE HIGH COURT OF KIRIBATI

CRIMINAL CASE NO. 31 OF 2013

BETWEEN

THE REPUBLIC
PROSECUTOR

AND

KATIMANGO KAURIRI
ACCUSED

Before: The Hon Justice Vincent Zehurikize

Ms Pauline Beiatau for Prosecutor
Ms Arian Arintetaake for Accused

JUDGMENT

Zehurikize, J: Katimango Kauriri, hereinafter called the accused, is indicted for Rape contrary to section 128 or 129 of the Penal Code Cap 68.

It is alleged in the particulars of offence that the accused on unknown date between March and April 2012 at Buota village, South Tarawa in the Republic of Kiribati, unlawfully had sexual intercourse with a 15 year old girl namely Temareiti Kautabea.

In the second count he is charged with Common Assault contrary to section 237 of the Penal Code Cap 68. It is stated in the particulars of offence that the accused on unknown date between March and
April 2012 at Buota village, South Tarawa in the Republic of Kiribati, unlawfully assaulted Temareiti Kautabea, a girl aged 15 years old.

The accused having denied the offences in both counts the case went on full hearing. In a bid to prove its case the prosecution examined two witnesses namely Temareiti Kautabea (PW1), the victim and Anna (PW2) the mother of the victim.

PW1 at the time of the trial was around 15 years of age. She is blind and according to her evidence she got blind when she was 11 years old. She lives with her parents and siblings at Buota village. She told the Court that she knows the accused who is from the same village and is related to her mother.

When she got stomachache the accused came to massage her. One day he came to massage her and found her in the room in the main house. At that time her mother was in the kitchen cooking. Instead of massaging her, PW1 stated that the accused raped her. She told the Court that the accused told her that he was going to rape her because that is what her mother had decided. That further the accused threatened her with a knife which he placed on her neck. He told her that if she made any noise he would kill her. He then inserted his penis in her vagina whereby she felt pain. But she could not do anything because the accused had pointed the knife to her.

After the accused had left, PW1 told her mother what had happened to her. She also told her mother that there was blood in her vagina whereupon her mother examined her and saw the blood. She did not tell her father of what had happened to her because her mother undertook to do so. But later she told her cousin called Buraoranti who in turn told her sister called Toare. This was after about six months. She then made a statement to the police. She was also examined by a doctor around January 2013.

In cross examination by Ms Arintetaake, Counsel for the accused, PW1 maintained her claim that the accused had raped her. Counsel cross examined her on her statement to the Police which she tendered in Court and was marked Exhibit P1 and the English translation as Exhibit P1A.

PW2 told the Court that when PW1 got stomachache, together with her husband they asked the accused who was known for massaging to come and work on her. He massaged her once and went away. That it was on the second visit when he raped her. That he raped her in the main brick house while she was in the kitchen.

She told the Court that she invited the accused for a drink but he refused as he appeared to be in a hurry. When she went to her daughter (PW1) she discovered that the accused had raped her. It is then that she understood why the accused was in a hurry and had refused a drink. She did not tell her husband about what had happened because she feared he might react by killing someone. However she reported to the Police at Bonriki who advised her to report to the Police in North Tarawa, but she never reported there as she could not easily go there. Later the Police at Bonriki acted and the accused was arrested.

In cross examination by Counsel for the accused, PW2 replied that she delayed making a statement to the Police because the Police had first wanted her to report to the Police in North Tarawa. She further explained that when PW1 disclosed her ordeal to the School of the Disabled they took her to the Sisters who helped her make a statement to the Police.

In his defence the accused accepted coming to massage the victim. When he arrived her mother was outside preparing leaves for making mats. The victim was inside a room lying on the bed. He told the Court that he sat in the living room waiting for her mother to come. In that living room there was a grandson of PW2 called Raurenti. He went to the room and massaged her in the presence of Raurenti and the exercise took about five minutes, after which he went from the house. He explained that he declined an offer for a drink from PW2 because he was in a hurry to go and attend to other patients. Then after about nine months' time he was arrested by the Police for this case.

In cross examination by Ms Beiatau the accused told the Court that he massaged the victim once because while massaging her she moved about with her body and he decided not to come back because it would be useless. He also explained that after massaging the victim he had to leave early because he had an eye problem and did not want bright sun to disturb it. He was running away from more sharp sunlight. He denied ever having sex with the victim.

After conclusion of the hearing Counsel for the Republic filed written submissions.

I wish to point out there is a material defect in the charge sheet in that the particulars of offence did not state that the unlawful sexual intercourse was "without her consent". Lack of consent in a charge of rape is an essential ingredient of the offence. It is the core element of the offence. In fact the particulars of offence are relevant to the charge of defilement.

The question is whether this failure to disclose lack of consent on the part of the victim vitiates the proceedings. In the circumstances of this case I am of the considered view that it does not. The accused was very well aware of the charge against him. The evidence adduced by the prosecution showed that he used force by threatening the victim with a knife in order to have sex with her. In his evidence he denies ever forcing the victim into sex. It is his case that he never had sex at all with the victim.

I find that no miscarriage of justice was occasioned in this trial on account of failure to state that essential ingredient of the offence of rape. The accused who was ably represented by Counsel was in no doubt about the case against him. I only urge the prosecution, in future, to be more careful when drawing charges to avoid presenting defective ones.

I will now proceed to state that it is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. In case of any doubt the same would be resolved in favour of the accused. The accused has no burden to prove his innocence.

In the case of rape, the prosecution has to prove the following ingredients of the offence, if a conviction is to be secured:

1. That there was sexual intercourse with a woman or a girl;
2. That the sexual intercourse was obtained without her consent;
3. The participation of the accused person.
   

On the issue of whether there was sexual intercourse with the victim, the prosecution relied on the evidence of PW1, PW2 and the admitted medical evidence. Although the medical evidence was admitted in evidence by consent of both Counsel, I find it worthless. The alleged sexual intercourse took place some time in March or April 2012. The victim, according to the medical report, was examined on
13 January 2013.

It is clear to me that this examination and report has no relevance to what had taken place almost a year before the victim was examined. The findings contained in the report cannot by any stretch of imagination be connected with what happened in March/April 2012. Since that time the victim could easily have had any sexual encounters with other men. I reject this piece of evidence.

I wish to state, however, that although in sexual offences like the instant case, medical evidence is desirable, its absence is not automatically fatal to the prosecution case. The fact of sexual intercourse can be established by any other credible evidence accepted by the Court. All that is required is for the prosecution to adduce evidence which proves beyond reasonable doubt that in fact the victim suffered an act of sexual intercourse at the material time. There is no hard and fast rule that there must be medical evidence in order to establish the fact of sexual intercourse.

It is for this reason that I will examine the evidence of PW1 and PW2 to determine whether by their evidence the fact of sexual intercourse was established.

According to PW1, the accused told her that he was going to have sex with her because that is what her mother had decided. That the accused placed a knife on her neck and warned her not to make any noise or else he would kill her.

It appears she feared for her life and never raised any alarm. He inserted his penis into her vagina and she felt pain. After he had finished she saw blood from her private parts which fact she disclosed to PW2 when she came into her room. PW2 examined her private parts and saw blood coming out. She was at that time 15 years old.

Although the two witnesses were cross examined on the fact of sexual intercourse they were not shaken by such cross examination. I believe their evidence. They were credible witnesses who naturally narrated what happened.

The accused's conduct after the incident also corroborated the evidence of PW1. He came out of the house in a hurry to leave the place. He could not even have time to have a drink offered to him by PW2. His evidence that he was in a hurry to go to attend to other patients or to avoid the coming strong sunshine affecting his eyes was a mere lie which helps as pointer to his guilt. Such a lie corroborates the evidence of PW1 just as his conduct did.

He further told a lie when he told the Court that he never went back to massage the victim because she had moved a lot during the massaging-turned rape. If it were true that she had been difficult to massage, the accused would have disclosed his frustration to her parents and informed them that he was not coming back. Instead he simply disappeared. I have no doubt that he was hiding away from shame. He knew the mother (PW2) must have been confided by PW1 what had happened to her. This subsequent conduct of abandoning the task of massaging the daughter of a relative was a further pointer to his guilt. It helps to corroborate the evidence of PW1 as to the fact of forced sexual intercourse.

Having believed the evidence of PW1 and PW2 which is corroborated by the conduct of the accused after This sexual encounter and his pack of lies I find that the fact of sexual intercourse with the victim was proved beyond reasonable doubt.

On whether the sexual intercourse was without the consent of PW1, the evidence I have already referred to above covers this issue as well. The victim was a young girl being then 15 years old. She was confronted by this old man with a knife which he placed on her neck. Sexual intercourse under such circumstances can never be said to be consensual. It was unlawful sexual intercourse as it was obtained by force. This element of the offence was also proved beyond reasonable doubt.

On participation of the accused in the commission of the offence, there is the evidence of PW1 and PW2 and his own evidence which pinned the accused at the scene of crime at the material time. PW1 knew the accused very well as a villagemate and a relative of her mother. He came to massage her in broad daylight. She could not have been mistaken as to who the assailant was. The accused again lied when he said that one Raurenti, a grandson to PW2 was present when he was massaging the victim and that the presence of that child was to ensure that nothing happens to the victim.

The evidence of PW2 shows that this boy and another were playing at the lagoon side as the accused remained in the house with PW1. If indeed the accused wanted anybody to witness the massaging he would have called in or waited for PW2 who was around in the kitchen cooking. He would not have used the child as a witness to the massaging.

It appears PW2 did not bother to witness the massaging because she trusted this old relative of hers that he could not be up to any mischief.

Lastly, I would like to comment on the delay in bringing these charges against the accused. The incident took place some time in March or April 2012. PW1 appears to have reported the case to the Police in December 2012 as her statement was recorded on
17 December 2012.

The delay is explained in evidence. According to PW2 the Police at Bonriki were unwilling to take up the case although the crime was committed in their area. They advised her to report to the Police in North Tarawa and she had difficulty in going there. I would imagine that if she had reported there she would have been pushed back to Bonriki.

It was not until after the intervention of the School of the Disabled and the Sisters that the Police at Bonriki found themselves obliged to record a statement from PW1. Their procrastination did not
stop here. Although PW1 made her statement to the Police on
17 December 2012, the case was registered in this Court on
10 October 2013 almost a year later.

Fortunately both PW1 and PW2 still vividly remembered what happened in March/April 2012 when they gave their evidence this year. They cannot be blamed for the delay. It is the conduct of the criminal justice system that should be frowned upon.

In view of the evidence on record I find that the participation of the accused in the commission of this offence was proved beyond reasonable doubt. In brief the prosecution has proved the guilt of the accused beyond reasonable doubt.

In the premise I find the accused guilty of Rape contrary to sections 128 and 129 of the Penal Code and convict him accordingly.

Having found as above I do not find it necessary to go into the second count. It appears to me to have been a veiled duplicity. It is unfair to charge the accused with a serious offence of Rape and also seek to base a minor offence of Common Assault on the same facts. It is a case of double jeopardy which I find unnecessary in the circumstances of this case.

It is not surprising that Counsel for the Republic never even referred to this second count in her final submissions. She addressed her mind only to the charge of Rape. A multiplicity and as it were duplicity of charges should be avoided as they only serve to embarrass the accused in his defence. Consequently the second count is dismissed as it serves no purpose. In the entire proceedings it was not addressed by either party. The accused would be acquitted of the offence in Count 2.

Dated the 4th day of May 2015

THE HON MR JUSTICE VINCENT ZEHURIKIZE
Judge