Republic v Nelson [2018] KIHC 21; Criminal Case 58 of 2017 (22 May 2018)

IN THE HIGH COURT OF KIRIBATI 2018

CRIMINAL CASE NO. 58 OF 2017
(HELD ON KIRITIMATI ISLAND)

[REPUBLIC PROSECUTOR
[
BETWEEN [AND
[
[TIIM NELSON ACCUSED

Before: The Hon Chief Justice Sir John Muria

18 May 2018

Ms Pauline Beiatau for Prosecutor
Mr Kiatoa Iaoniman for Accused

JUDGMENT

Muria, CJ: The accused Tiim Nelson, has been charged with two counts of rape.

It is alleged by the prosecution that on 12 October 2016 at a place in the bush near the pandanus tree and ‘te bero’ tree at Tabwakea Village, in Kiritimati Island, the accused Tiim Nelson had sexual intercourse with the victim, Tekaburere Bwataua without her consent. It is also alleged by the prosecution that on the same date, the accused had sexual intercourse with the victim without her consent in the maneaba at Tabwakea village in Kiritimati Island. The accused pleaded Not Guilty to both counts of rape.

There is only one issue in dispute in this case, namely consent. The accused admitted he had sexual intercourse with the victim Tekaburere. He maintains that sexual intercourse was consensual.

There is no dispute at all as to what had happened between the victim Tekaburere and her drinking friends on the night in question. The victim Tekaburere spent the whole night in an unoccupied maneaba at Tabwakea drinking fermented yeast with five (5) male friends namely Tione, Etera, Willie, Tawita and Antonio. They started drinking at about 10 o’clock in the evening
(11 October 2016). By about midnight, the accused Tiim joined them.

The evidence of the victim Tekaburere narrated her sexual activities that night with her male drinking partners.

Before moving into the maneaba that night, the victim and her male friends were drinking at a place by the bush. While at that place, the victim and Etera first had sexual intercourse at that place near ‘te bero’ tree in the bush.

After they moved to the maneaba, Tione and the victim went out to a place beside the maneaba and had sexual intercourse. They returned to the maneaba and joined the others drinking. By then it was about midnight. Tiim (accused) joined the group. When the victim Tekaburere and Tione came back to the maneaba, Tekaburere came and sat next to Tiim.

Not long after that, Tiim and the victim went out of the maneaba to have sexual intercourse at the same place where Etera and Tione had sex with the victim Tekaburere. They had sexual intercourse but they were disturbed by someone. They returned to the maneaba.

By then it was already well past midnight. In the maneaba itself, Etera again had sexual intercourse with the victim Tekaburere for the second time. On that occasion the victim Tekaburere was on top of Etera. After that Etera came and joined the others drinking.

Tiim then went to where the victim was lying and had sexual intercourse with the victim for the second time. Their drinking friends left the maneaba, leaving Tiim and Tekaburere behind in the maneaba. By then it was about 3 or 4 am. It was then that Ruruba and others came and saw them having sex, with Tiim ontop of Tekaburere, both naked.

There is no dispute at all that each of the named men had sexual intercourse with the victim Tekaburere. In her evidence, the victim narrated the sequence of the incidents of sexual intercourse with each of the men. The only difference, in so far as the prosecution case is concerned, is that on the two occasions when the accused Tiim had sexual intercourse with the victim, Tekaburere, she did not consent to having sexual intercourse with him.

The prosecution evidence with regard to the first allegation of rape comes from the victim herself who said that she was going home when the accused followed her, grabbed her hair, dragged her to a place near the pandanus and ‘te bero tree’, took off her pants and underwear, the accused took his underpants and had sexual intercourse with her against her will. She said she struggled and shouted for help. Then she said she ran into the maneaba; that Tiim followed her into the maneaba and forced her to have sexual intercourse again in the maneaba. She said that her friends had already left the maneaba by then.

The victim’s story about being raped by the accused in the bush near the pandanus tree does not sit well with her own evidence in chief and in
cross-examination. In chief, the victim clearly stated that before her first sexual encounter with the accused, she went out from the maneaba with Tione to have sex with him. It was after her sexual encounter with Tione, that she went out with Tiim and had sexual intercourse with him, after which both of them came back to the maneaba. Then she and Etera went out to have sexual intercourse again for the second time.

There was no shouting or cry for help from the victim during that first sexual encounter with the accused. None of their drinking mates was called by the prosecution to testify of any scream for help arising out of that first claim of rape. Each of the victim’s drinking friends was a potential witness for the prosecution. They were with her at the time. They should hear any screaming for help from the victim. They were not called because none of them would be helpful to the prosecution. Only Willie was called by the defence and testified that all he heard was the voice of pleasure coming from the victim. Willie was with the group and he saw the victim went out with Tiim to have sex.

Counsel for the prosecution submitted that Willie’s evidence was unreliable and that Ruruba’s evidence should be believed. On the contrary, Willie was all along with the victim and their drinking friends that night. He was in a better position to testify as to what took place between Tiim and the victim Tekaburereu.

Ruruba was never present with the victim and her drinking friends. At best, Ruruba’s evidence only goes to confirm seeing the accused and the victim naked and having sexual intercourse in the maneaba.

In cross examination, the victim said that she was willing to have sex with Tione and Etera because they said nice things to her before having sex with her. She agreed to the order of sexual encounters with the three men, first Etera, then Tione, then Tiim. She agreed in cross examination that she had sexual intercourse with the accused in the maneaba by which time their other drinking friends had already left. She also agreed in cross examination that she had sex with the accused who was ontop of her when Ruruba came and saw them. She also confirmed in cross examination that Tiim did not manage to talk to Ruruba because Ruruba hit Tiim with a stick and Tiim ran away.

Like the prosecution witness Ruruba (PW2), the defene witness, Teiketi Noketi also saw the accused and the victim having sexual intercourse in the maneaba in the early hours of the morning of 12 October 2016. But unlike Ruruba, Teiketi did not disturb the accused and victim who were both naked and having sexual intercourse. It was when he was walking away that he saw Ruruba assaulting the accused.

Teiketi went to the maneaba after he heard the voice of a woman enjoying sex. He did not hear any shouting or cry for help. As such when he saw the accused and victim having sexual intercourse, he let them be, demonstrating that it was none of his business and walked away without talking to them.

Apart from his claim to have heard scream of a woman needing help, Ruruba also confirmed Defence witness Teiketi’s evidence that he also saw the accused and victim both naked and having sexual intercourse. PW2 went on to describe the eyes of the naked woman under the accused as ‘half open’ and that she was moving while the accused was ontop of her.

It is important also to note that there is no evidence at all to suggest that when Ruruba came upon the accused and the victim having sex, he spoke to the victim, to ascertain what had happened. Ruruba simply turned on the accused and hit him with a stick.

There was evidence that the accused was assaulted by Ruruba. A report/complaint was lodged by the accused and his mother with the Police. Nothing had come about of that complaint. Instead the accused was arrested and charged with the rape of the victim.

There was suggestion put to the victim in cross examination that the reason for alleging rape against the accused was to help Ruruba escape from the complaint lodged by the accused against him to the police. On cross examination the victim was asked:

“Q. You complained of rape to help Ruruba because Tiim complained to the police against Ruruba of assault?

1. Yes.
17. And because Ruruba saw you having sex with Tiim?
1. Yes.”
   

When all the evidence both from the prosecution and defence are pieced together, there is simply no basis for the complaint of rape in this case. The Court is left with so much of a lurking doubt, that the allegation of rape cannot hold. The Court is far from being satisfied that this is a genuine claim of rape. I am satisfied that the accused had consensual sexual intercourse with the victim on the two occasions

The charge of rape against the accused is dismissed and the accused is found not guilty and must be acquitted of both counts of rape.

ORDER: Both charges of rape dismissed. Accused acquitted.

There is evidence of assault on the accused. The complaint of assault must be investigated by the police in the usual way.

Dated the 22^nd day of May 2018

SIR JOHN MURIA
Chief Justice