Republic v Mataua [2018] KIHC 23; Criminal Case 69 of 2017 (22 May 2018)

IN THE HIGH COURT OF KIRIBATI 2018

CRIMINAL CASE NO. 69 OF 2017
(HELD ON KIRITIMATI ISLAND)

[REPUBLIC PROSECUTOR
[
BETWEEN [AND
[
[TAREKA MATAUA ACCUSED

Before: The Hon Chief Justice Sir John Muria

18, 21 & 22 May 2018

Ms Pauline Beiatau for Prosecutor
Mr Reiati Temaua for Accused

JUDGMENT

Muria, CJ: The accused, Tareka Mataua, has been charged with two counts of Defilement of a girl under 13 years of age contrary to section 134(1) of the Penal Code. It was alleged that on unknown dates between December 2016 and
March 2017, on two separate occasions, one, at ‘te non’ in ‘tenei n rababa’ and the other, at Tabwakea Village, both on Kiritimati Island, the accused had unlawful sexual intercourse with the victim Kabikea Taremon who was then under 13 years of age. The accused pleaded Not Guilty to both counts.

The case for the prosecution is that, on one occasion, at ‘te non’ or Tekakai, the accused had sexual intercourse with the victim in the night while her aunty was out playing bingo. On the second occasion at Tabwakea, the accused again had sexual intercourse with the victim. It was during the day time.

The accused denied having sexual intercourse with the victim. He said that he had never inserted his penis into the victim’s vagina.

In his evidence in chief and in cross examination, the accused stated that he only sucked the victim’s breasts and licked her vagina. In his statement to the police, the accused also admitted sucking the victim’s breasts and licking her vagina. The accused told the police that he apologised to the victim’s family for what he did to her.

The issue to be determined in this case is whether sexual intercourse took place between the accused and victim. Did the accused have sexual intercourse with the victim?

The case comes down as to who the Court believes. It is the victim’s words against those of the accused.

The victim is now 13 years old but at the time of the incident, she was only about 11 or 12years old. I bear in mind the fact that the victim is only a young child and the veracity of her evidence may become an issue. But I think the Court can still accept the evidence of a young child, such as the victim in this case, if the Court is satisfied that the child was able to comprehend and understand the questions put to her and answer such questions competently.

Thus in the present case, although the point was not raised by Counsel, the Court takes it upon itself to consider the competency of the victim child in this case to give her evidence on oath in Court. Having done so, I am satisfied that the 13 year old victim in this case was able to comprehend and understand the questions asked of her in Court and that she was competent to give her evidence.

The victim gave her accounts of what the accused did to her. He sucked her breasts and licked her vagina and then inserted his penis into her vagina. She said she was not able to shout because the accused threatened to hurt her. On both occasions, at Tekakai and Tabwakea, the accused sucked her breasts and licked her vagina, followed by sexual intercourse.

The other prosecution witness, Tiimaro Baiai (PW3) told the Court of what she saw when she went to the accused’s house to get a knife. She said she saw the accused jump out of the house wearing only underwear. She suspected something was going on. She went back to the accused’s house and called out the accused’s name. PW3 heard the victim’s voice and laughing followed by a shout or cry for help. She approached the house and saw the accused came out, covering himself with a blanket. She then saw the victim came out, wearing a top, a short jean and lavalava, and combing her hair.

The victim followed PW3 and they went to her aunty and reported the matter to her.

The victim was under 13 years at the time of the commission of the offence. The evidence of PW2 (victim’s mother) confirmed that. In any case there is no dispute as to the victim’s age.

The accused’s story is that he accepted he was alone with the victim on both occasions. He agreed to sucking the victim’s breasts and licking her vagina, but maintained that that was all he did. He vehemently denied having sexual intercourse with the victim.

I have given considerable thoughts over the versions of what happened by the victim and the accused. I looked in the evidence of any hint as to why the victim, a young child, could be giving a false story to the Court about what had happened to her. I could not find any. Her evidence has the hallmark of a brave young child telling her story and re-living the ordeal she went through at the hands of the accused. Her evidence found support from PW3 whose evidence demonstrated the opportunities which the accused had to do what he did to the victim.

The final blow to the veracity of the accused’s story that he only sucked the victim’s breasts and licked her vagina came from Dr Baranika’s evidence.
Dr Baranika’s evidence puts beyond doubt that the victim’s hymen was no longer intact. According to the Doctor, one of the implements which could cause the victim’s hymen to rupture was a penis.

In the present case I do not believe the accused’s story that he stopped short of having sexual intercourse with the victim and that all he did was sucked her breasts and licked her vagina. That was a proposition that was so unreal and cannot be believed even with any ingenuity.

On the evidence before the Court, I find the prosecution case proved beyond reasonable doubt that the accused had unlawful sexual intercourse with the victim who was a girl under 13 years of age at the time of the commission of the offence.

I find the accused guilty and he is convicted on the two counts of Defilement under section 134(1) of the Penal Code.

Dated the 22^nd day of May 2018

SIR JOHN MURIA
Chief Justice