Republic v Kabora [2017] KIHC 5; Criminal Case 22 of 2015 (30 March 2017)

IN THE HIGH COURT OF KIRIBATI

CRIMINAL CASE NO. 22 OF 2015

[THE REPUBLIC PROSECUTOR
[
BETWEEN [AND
[
[KAURIRI KABORA
[MAREWE TOOMA ACCUSED

Before: The Hon Mr Justice Vincent Zehurikize

11 November, 18 November, 30 November & 2 December 2016

Mr Waimauri Nawaia for the Prosecutor
Mr Kiatoa Iaoniman for the 1^st Accused
Mr Reiati Temaua for the 2^nd Accused

JUDGMENT

Zehurikize, J: Kauriri Kabora (A1) was charged with Rape contrary to section 129 of the Penal Code while Marewe Tooma (A2) was charged with Assault Causing Actual Bodily Harm contrary to section 238 of the Penal Code.

When the case came up for hearing A2 pleaded guilty and got convicted. But the Court reserved sentencing until after the completion of the trial of A1.

A1 having denied the offence the case went on full hearing. In a bid to prove its case the prosecution examined three witnesses. In his defence the accused gave evidence on oath and called no witness.

The case for the prosecution briefly is as follows. On 13 June 2015 Maria Tetita went on a drinking spree with many other people including both accused at a village near Bonriki Airport. Later the group decided to go to the airstrip.

When they reached there, a scuffle arose between Maria Tetita (PW1) the victim and A2. Then A2 punched the victim on the eye. In apparent sympathy A1 held the victim’s eyes as if to relieve her of pain and led her to the wharf where, according to the victim, forced her into sex.

She told the Court that he pushed her down. That the accused then pulled down her shorts and panties, lay on top of her and forced her into sexual intercourse. After the accused had finished the sexual assault the victim went to the sea and washed her private parts. Then they went together to the village but at some stage she separated from him. Eventually she reported the matter to the Police.

The other prosecution witnesses are Urinata Raubeta (PW2) a Police Constable who around 7 to 8pm was called to Bonriki Police Station where she found the victim and escorted her to Nawerewere Hospital.

PW3 is Dr Ioanna Beiatau who examined the victim. The doctor found that she had a right swollen eye, bruises on the right neck and bruise underneath the right eye. The cause of these injuries were direct force. In cross examination the doctor said that love bite could also cause the bruise as that on the neck.

In his defence the accused said that PW1 consented to sex. That after she had been assaulted by A2 she ran to him and using his hand he massaged the eye that had been hit. That as they had had some conversation before, he moved with her to the wharf. When they reached there they sat down and again asked her and she agreed to have sex which they did.

After sex the victim went to the sea to bathe as he waited for her. When she came they moved together to the village. That he went to his house as she continued on her way home. He went on to state that after three days his wife who is related to the victim told him to go and apologise to her for having had sex with her. He was later arrested and made a statement to the Police.

It is the duty of the prosecution to prove its case beyond reasonable doubt. 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 elements of the offence namely:

1. That there was sexual intercourse with a woman or a girl;
2. That there was no consent to the sexual act;
3. The participation of the accused.
   

It is not in contention that the accused had sexual intercourse with the victim (PW1). Therefore the first and third elements of the offence were proved beyond reasonable doubt. The only issue is whether PW1 did consent to the sexual intercourse. This Court is faced with the evidence of the victim against that of the accused.

According to Mr Nawaia Counsel for the Republic, this was a straight forward case of rape. He contended that the accused forced the victim to walk to the wharf. That having covered her face, the victim did not know the accused was leading her to the wharf. She thought he was taking her to the village. That at the wharf the accused continued with his forceful acts when he forced her down, strangled her by the neck as she screamed, removed her panties and forced her into sex.

On the other hand Mr Iaoniman for the accused contended that as the two had agreed the victim knew she was going to the wharf and so she knew what was going to happen. On medical evidence Counsel observed that there was only one bruise on the neck which could have been caused by love biting.

I have considered submissions by both Counsel and scrutinized the evidence adduced by both sides. It looks to have been a heavy drinking day. According to the accused’s evidence, which is not disputed, they started drinking in the middle of the village. Then they shifted at a place near the airport. At about 9pm they started drinking at the airport. It is at this time that scuffle between the victim and A2 occurred.

During cross examination the victim told the Court that she was staying at Bikenibeu, but on that day she went to Bonriki to drink. They were drinking fermented yeast. She admitted she was drunk but that she knew what was done to her.

The question is when the victim moved with the accused to the wharf, was it because she was so blinded by the accused’s hands that she could not see where he was leading her or it is because there had been a prior agreement to go for sex? Or was it because she was so drunk that she was at the mercy of the accused?

It is difficult to believe that for a distance that took them some 10 minutes or so the victim could not know where she was going. It is more probable than not that she knew where she was going. It is noteworthy that the rest of the group did not seem to be alarmed and interfere in their movements. They simply went their ways. It is also important to note that after the sexual intercourse she even went to a party rather than going home. Probably that explains why she had to first go to the sea to wash her private parts. It might not have been to get rid of the accused’s filth from herself but rather to get ready to appear decent at a function.

These considerations might or might not be correct, but they help to show the doubt in the mind of the Court which should be resolved in favour of the accused.

The medical evidence was not helpful to the prosecution. Exhibit P1 discloses that the doctor found a bruise underneath or below the right eye. This was obviously an injury inflicted on the victim by A2. For the bruise around the neck the medical evidence was not conclusive. The doctor said it could have been caused by love biting, just as well as a direct force. It was not certain whether it was caused by an act of strangulation as the victim claimed.

The victim told the Court that in a bid to get hold of the accused’s testicles she deceived him that she wanted to put his penis in her vagina. But her explanation how she failed to squeeze them is not convincing. That the accused managed to keep a hold of her two arms and was at the same time able to remove her panties, open her thigh and insert his penis in her vagina appears not practically possible against a person who was not willing to the sexual act.

It is possible that the accused managed because she was so drunk while he was not. But it cannot be only on account of sheer masculine strength that he was able to have sex with her amidst her resistance.

I also note that the prosecution did not call at least one of the group members to throw some light on how the accused moved with the victim away from the group. Probably there was none who could have given useful evidence. In these circumstances I find it unsafe to rely on the uncorroborated evidence of the victim in this sexual offence.

Consequently, I hold that the prosecution has failed to prove lack of consent beyond reasonable doubt. And for that reason I find the accused not guilty of Rape contrary to section 129 of the Penal Code and acquit him accordingly.

Dated the 30^th day of March 2017

THE HON MR JUSTICE VINCENT ZEHURIKIZE
Judge