Republic v Tungaru [2015] KIHC 71; Criminal Case 34 of 2013 (12 October 2015)

HIGH COURT OF KIRIBATI

HIGH COURT CRIMINAL CASE NO. 34 OF 2013

BETWEEN

THE REPUBLIC
PROSECUTOR

AND

KABAAUA TUNGARU
ACCUSED

9 October 2015

Ms Pauline Beiatau for Prosecutor
Mr Aretaake Ientaake for Accused

JUDGMENT

Zehurikize, J: According to the amended charge sheet of 30 September 2015 the accused was charged with three offences namely Incest contrary to section 156(1) of the Penal Code and two other offences of Sexual Intercourse with Collateral contrary to section 158(1) of the Penal Code.

At the trial, in a bid to avoid misjoinder of charges, the last two counts were withdrawn. Thus the accused, Kabaaua Tungaru, remained charged with the offence of Incest in Count 1.

It is alleged in the particulars of offence that Kabaaua Tungaru, herein called the accused, on unknown dates, during the years of 1997 until the year of 2012, at Kanamwemwe village on Teraina Island, on many occasions had sexual intercourse with a woman namely Nei Tiimo Tungaru whom he knew to be his sister.

The accused having denied the offence the case went on full hearing.

In a bid to prove its case the Prosecution produced one witness, the victim by the name of Tiimo Tungaru. Her evidence is to the effect that the accused is her real brother. Their mother died in 1995 while their father died in 1997. After the death of her father, she testified that her brother, the accused, forced her into sex. That they remained in that relationship as husband and wife until 2012 when she reported the matter to the Police.

What prompted her reporting is that the accused further turned to her two daughters and started also having sexual intercourse with them. As she could not stomach it any longer she reported his conduct to the Police upon which he was arrested, hence this case.

In his defence the accused exercised his right and opted to offer no evidence. It is the duty of the Prosecution to prove the guilt of the accused beyond reasonable doubt. The accused bears no burden to prove his innocence. In case of any doubt the same would be resolved in favour of the accused.

In the instant case the Prosecution has to prove the following ingredients of the offence if a conviction is to be secured:

1. That the accused had sexual intercourse with a female person;
   
2. That the female person was either his granddaughter, daughter, sister or mother;
   
3. That he had knowledge of the above said relationship.
   

As regards the first ingredient, the evidence of PW1, the only witness and victim, is to the effect that since 1997 the accused had been having sexual intercourse with her to the extent that they now have a son out of this sexual relationship. It is her evidence that the accused has been treating her as his wife until the year 2012 when she reported the matter to the Police.

This evidence is not controverted in any way. In fact, from cross examination and final submission by Mr Aretaake Ientaake, it appears to be the defence's contention that the accused had the sexual intercourse with PW1's consent.

It suffices to state that under section 156(2) "It is immaterial that the sexual intercourse was had with the consent of the female person". Consequently, I find that the prosecution has proved beyond reasonable doubt that the accused had sexual intercourse with the victim, the said Tiimo Tungaru.

On the second ingredient the evidence of PW1 proves beyond reasonable doubt that she is a sister of the accused. Since they lived together even before their parents died, the evidence of PW1 further proves beyond reasonable doubt that the accused when having sex with the victim clearly knew that he was doing so with his real sister.

In conclusion I find that the prosecution has proved its case beyond reasonable doubt. In the premise I have no option but to find the accused guilty of Incest contrary to section 156(1) of the Penal Code and I convict him accordingly.

Dated the 12th day of October 2015

THE HON MR JUSTICE VINCENT ZEHURIKIZE
Judge