Republic v Moutu [2018] KIHC 11; Criminal Case 28 of 2015 (4 May 2018)

IN THE HIGH COURT OF KIRIBATI 2018

CRIMINAL CASE NO. 28 OF 2015

[THE REPUBLIC PROSECUTOR
[
BETWEEN [AND
[
[TEKEI MOUTU ACCUSED

Before: The Hon Chief Justice Sir John Muria

21 February & 2 May 2018

Mr Waimauri Nawaia for the Prosecutor
Mr Tabibiri Tentau for the Accused

JUDGMENT

Muria, CJ: The accused, Tekei Moutu, has been charged with one count of Rape and one count of Obstruction of Police Officers in the execution of duty. The accused pleaded not guilty to both counts. At the end of prosecution case Mr Tentau of Counsel for the accused made a no case submission on behalf of the accused in respect of both counts.

Mr Tentau made the no case submission pursuant to section 195 of the Criminal Procedure Code and also relied on the case of The Republic –v- Lomi Loo, Edward Narayan and Rajesh Prasad [2012} KIHC 11. Section 195 of the Criminal Procedure Code states as follows:

“195. If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit the accused”.

In the case of Republic –v- Lomi Loo, one of the accused, Edward Narayan made a no case submission after the prosecution case. The Court applied s.195 of the Criminal Procedure Code and stated:

“In Kiribati, I feel, however, that the words in section 195 of the Criminal Procedure Code (Cap. 17) where “it appears to the Court that a case is not made out against the accused person sufficiently to require him to make a defence” suggest that a judge who is both a judge of fact as well as law, is entitled to consider the sufficiency of the evidence at the end of the case for the prosecution. The position under section 195 of the Criminal Procedure Code goes further than that of a judge sitting with a jury. Thus, at the close of the prosecution case, if I am not satisfied that there is sufficient evidence on which I could convict the accused, I should stop the case, that is, I “shall dismiss the case and shall forthwith acquit the accused” to use the words of section 195 of the Criminal Procedure Code.”

In the present case Mr Tentau contended that the evidence failed to sufficiently make out a case against the accused to require him to make a defence on both counts. As such, Counsel submitted, the Court should find that no sufficient case has been made out against the accused and that he should be acquitted at this stage.

It was suggested by Counsel for the accused that in respect of the charge of rape, the elements of penetration and consent have not been sufficiently made out. As such the trial should end here and the accused need not be put to answer the charge further.

Mr Nawaia, on the other hand, submitted there is evidence from the victim (PW2) of penetration and lack of consent to sexual intercourse. Counsel urged the Court to find that there is evidence sufficiently shown to enable the Court to find that there is a case for the accused to answer on the charge of rape.

Applying the Republic –v- Lomi Loo, Mr Nawaia argued that on the prosecution’s evidence before the Court, the prosecution case is sufficiently made out to require the accused to be put to his defence.

As alluded to in Republic –v- Lomi Loo, in Kiribati the trial judge sits alone as a judge of the facts and law. Thus the English position as illustrated in
Republic –v- Galbraith [1981] 1 WLR 1039; 2 All ER 1060; 73 Cr. App. R 124 in a no case submission is not the same as the position under section 195 of the Criminal Procedure Code which applies in Kiribati. On appeal to Kiribati Court of Appeal by the Republic, the test under section 195 CPC was affirmed. Thus in Kiribati the test in section 195 CPC on the no case submission has been authoritatively laid down conclusively.

In the present case, the evidence of penetration and lack of consent to sexual intercourse came from the victim herself. She said that she felt the accused’s penis penetrated into her vagina. For the moment there is nothing else to suggest otherwise. On the question of lack of consent, there is evidence so far from the victim that she did not consent to sexual intercourse. There was the suggestion from the victim’s evidence that she did not agree to have sexual intercourse with the accused, that the accused forced her, made her laid down in the pit and punched her in the face.

The evidence of assault on her followed by sexual activities performed on the victim are matters that lend support to the suggestion of lack of consent. Taken together with the evidence of the security guard (PW1), there appears to the Court that a case is sufficiently demonstrated to require the accused to answer the allegation of rape brought against him in the present case.

It must also be noted that in a sexual case, although corroboration is called for, the Court can still convict the accused on the evidence of the victim alone, provided the Court is satisfied that the victim is telling the truth. See R -v- Gere [1981] SBHC 6; [1980-1981] SILR 145. In saying that, I do not mean to convey the position that the victim’s evidence is sufficient to convict the accused without more. The issue of whether or not to convict the accused involves full evaluation of the evidence from the victim as well as from the accused. But the principle just stated makes all the more a case that in a case such as this, where there is some evidence from the victim pointing to the elements of the offence, and there is no other evidence before the Court to rebut that evidence, the Court would be justified in having the accused put to his defence.

In this case, I find the accused had a case to answer on the charge of rape.

On the charge of obstruction of a police officer in the execution of his duty, the evidence is not in the same position. The evidence of the prosecution does not point to the mens rea elements of the offence. The element of wilful obstruction of a police officer in the execution of his duty has not been sufficiently made out. The evidence seems to show that the accused was rushing out to escape from being caught by the police officers at the time. Running away from being caught can hardly be equated with obstruction of a police officer in the execution of his duty.

As such not only that the accused has no case to answer on the second count but it must also be dismissed. The charge of Obstruction of a police officer is dismissed and the accused is acquitted of that charge.

ORDER: 1. Accused has a case to answer on the charge of rape.

2. The charge of Obstruction of police officer is dismissed and the accused is acquitted of that charge.
   
3. Trial to continue against the accused on the charge of rape.
   

Dated the 4^th day of May 2018

SIR JOHN MURIA
Chief Justice