Republic v Tiorim [2018] KIHC 39; Criminal Case 33 of 2016 (27 November 2018)

IN THE HIGH COURT OF KIRIBATI 2018

CRIMINAL CASE NO. 33 OF 2016

[THE REPUBLIC PROSECUTOR
[
BETWEEN [AND
[
[TIAON TIORIM ACCUSED

Before: The Hon Chief Justice Sir John Muria

6 & 7 & 20 September 2017
2 October 2017
2 May & 9 November 2018

Mr Waimauri Nawaia & Ms Pauline Beiatau for the Prosecutor
Mr Raweita Beniata for the Accused

JUDGMENT

Muria, CJ: The accused Tiaon Tiorim has been charged with one count of rape contrary to section 129 of the Penal Code. He pleaded not guilty to the charge.

Brief Background

2. The victim was 14 years old at the time of the alleged incident. She was adopted by the accused and his wife since she was small. She considered them as her adoptive parents. The accused’s wife is in fact the victim’s cousin sister.

3. The alleged incidents took place in May and June 2014 at Baurua Village, Aranuka Island. The victim was still attending primary school then. Following the incident, the victim left her adoptive parents and went to stay with her cousin Atinta Nanitieri (PW2) at the Kauake School compound.

4. The victim did not report the matter to the accused’s wife or anyone else at their house. She was not able to do so because she was still living with her adoptive parents (accused and his wife) and that she was afraid to report the matter to her cousin sister who is the accused’s wife. She was able to report to her aunty Atinta as soon as she went to stay with her at the school compound. Thereafter the matter was reported to the police.

Evidence

5. The prosecution evidence came from four witnesses – the victim (PW1), Atinta (PW2), Kakiata Maritino (PW3) and Nabwe Nanitieri (PW4). In the main, the victim’s evidence is that the accused who was her adoptive father, on one occasion in May 2014, called the victim to go to him at the buia. The accused then told the victim to lay down. She did not want to do so. The accused then forced her to lay down on the buia. The accused pulled down her shorts and panties. He held her left leg and lifted it up and then pushed his finger into her vagina. The accused then pushed his penis into the victim’s vagina about four to five times. The accused did not reach his climax because he stopped as soon as he saw his wife coming to the house. He told the victim to put her clothes back on. The accused then left.

6. The victim went to the bathroom to pass urine and she saw blood on her panties. She went back to the buia where she also saw blood at the place where the accused had sex with her. The blood was from her vagina. It is to be noted, however, that the victim never mention about the blood to her Aunty Atinta, as well as to the police.

7. With regard to the second incident in June 2014, the victim gave her account of what had happened. The victim’s evidence is that at about 5 pm after returning from school, she took a nap. Other members of the household were not there in the house. The accused went to the victim who was sleeping, turned her to lay facing upward, laid on top of her and inserted his erected penis into her vagina. Since no one was around, he finished his business and then told the victim to put on her clothes. He then went away.

8. On both occasions when the accused had sexual intercourse with her, the victim did not consent. On both occasions, the accused threatened the victim not to tell anyone about what he did to her and that if she did, he would do something to her.

9. The victim also testified that not only that she did not tell anyone about what the accused did to her because of his threats, but also because the accused adopted her. She looked to him as her own father.

10. The victim also gave evidence of a third incident in July 2014. On that occasion, the accused was alleged to have called the victim to go to him at the back of the kitchen house. The victim who was inside the kitchen refused to go to the accused. The accused came inside the kitchen and again told the victim to go to the accused at the back of the kitchen. The victim refused. The accused threatened her to the effect that if she did not go to him, she would end up taking all her belongings and leave their house. The victim refused to go to the accused who then hit the victim.

11. The victim said that she reported the third incident to her cousin sister (accused’s wife) and that the accused threatened to send her out from the house.

12. Atinta Nanitieri (PW2) is the victim’s cousin sister who lived at Kauake School compound. The victim came to stay with her because she was told to leave the accused’s house. When PW2 asked Nei Tooreka (accused’s wife) of what had happened, Nei Tooreka told her that the victim was disobedient.

13. PW2 was the first person that the victim told her about the accused having sexual intercourse with her. The victim told PW2 that she was afraid to go back to the accused’s house.

14. Kakiata Maretino (PW3) was the Assistant Medical Officer who examined the victim on 9 August 2014. The Medical Report showed that the victim was no longer a virgin. The hymen was not intact. In Court, PW3 stated that rupture of the hymen can be caused by rape or even normal sexual intercourse.

15. The fourth prosecution witness was Police Constable Nabwe Nanitieri (PW4). Upon complaint of rape made against the accused, the police arrested him. PW4 interviewed the accused who denied the allegation of rape made against him. The accused also asked PW4 to convey his apology to the victim.

16. The accused gave sworn-evidence in Court. He denied the allegation that he raped the victim. He and his wife (Tooreka) adopted the victim and her brother since they were little children both of whom were related to his wife.

17. The accused’s story is that he did not have sexual intercourse with the victim. He said that it was the victim who had sexual intercourse with other boys, including Taimwaiti and Tekaai. When he found out that the victim had sexual intercourse with those boys, he asked his wife (Tooreka) to talk to the victim.

18. Tooreka talked to the victim and it was her decision to send the victim away because of her behaviour and having relationships with boys. The accused denied ever having sexual intercourse with the victim at the buia or in the house as alleged by the victim. The accused also denied the allegation of the third incident in the kitchen.

19. The accused’s wife, Tooreka, told the Court that the victim was a disobedient girl. She never listened to her and the accused and that she always went out with boys despite being forbidden to do so. Tooreka denied knowledge of her husband (accused) having sexual relationship with the victim. She denied seeing the accused and victim having sexual intercourse at the buia as alleged by the victim.

20. Tooreka testified that she saw the victim and Taimwaiti sleeping together in the victim’s house like couples. She did not manage to talk to Taimwaiti, but she talked to the victim about them sleeping together. The victim admitted to her that she and Taimwaiti slept together but did not have sex.

21. When confronted by Atinta (PW2) about the story of the accused having sex with the victim, Tooreka denied knowing anything about her husband having sex with the victim. Tooreka stated that she heard the allegation about her husband from the police. Tooreka, however, apologised for her husband’s behaviour to Atina and Tebano. Atinta accepted her apology but Tebano did not.

22. The defence also called Kaimwaiti Motimoa who confirmed that he had a relationship with the victim. Kaimwaiti confirmed he had sexual intercourse with the victim two times, once in the bush and once in the victim’s house. He further stated that it was him who had sexual intercourse with the victim in the victim’s house.

23. The defence also called Bwenna Tiaon who was the son of the accused and Tooreka. Bwenna stated that he, his father and mother went looking for the victim one night in September 2014. They found the victim at the back of the kitchen together with Tekaai. When they saw the victim and Tekaai, the victim was quickly putting her shorts back on while Tekaai ran away. Bwenna blamed the victim for spreading the false rumours about his father.

Issues

24. The issues for the Court to determine are whether sexual intercourse took place between the accused and victim, and if there was, whether there was consent or not. The prosecution always bears the burden of proving the elements of the offence on the evidence before the Court. In this case the prosecution must prove that the accused had sexual intercourse with the victim and that he did so without the victim’s consent. There is no obligation on the accused to prove or disprove anything.

Consideration

25. The prosecution evidence disclosed that sexual intercourse with the victim took place in this case. The medical report confirmed that upon examination of the victim’s vagina, it was found that the hymen was no longer intact and that clear white vaginal discharge was present in the vagina. The medical report on the victim was made on 9 August 2014 which was three months after the alleged first incident and two months from the alleged second incident.

26. Assuming on the evidence that rapture of the hymen in the victim’s vagina was caused by penetration during sexual intercourse, the prosecution would have to establish that it was the accused who was responsible for that condition of the victim, and not by some other persons. The evidence appears to suggest that Taimwaiti and Tekaai also had sexual relationships with the victim. The prosecution would have to exclude the two boys in order to sustain any link between the medical evidence and the accused.

27. Further, the Court’s view of the medical report is that it is of little value to the prosecution case on the allegation that the accused had sexual intercourse with the victim in May and June 2014. Its only value is to show that on 9 August 2014 when the victim was vaginally examined, the hymen was no longer intact.

28. We will have to turn to the other evidence to ascertain if the accused had sexual intercourse with the victim. The evidence of the alleged sexual intercourse came from the victim herself. At the time of the alleged incidents, the victim was 14 years old. She is now 18 years old.

29. The victim alleged that some time in May 2014, the accused had sexual intercourse with her on the buia. She stated that she saw blood from her vagina following the sexual intercourse. The accused denied the allegation. Tooreka in her evidence denied seeing the accused and victim at the buia together. There is the evidence from the victim of seeing blood from her vagina and on the floor of the buia. Again apart from her story, there is no other evidence to support that allegation. There is no evidence of the piece of cloth which she said she used to dry the blood on the floor of the buia.

30. Likewise, the evidence as to the alleged second incident in June 2014 in the house, came from the victim herself. There was no one else who saw, heard or in any way witnessed what was alleged to have happened between the accused and victim. In the end, it is the evidence of the victim as against that of the accused.

31. It is therefore necessary that as a Judge of the fact, as well as of the law, I must remind myself of the danger of convicting the accused on the uncorroborated evidence of the victim. I bear in mind that section 11 of the Evidence Act 2003 abolished the requirement of corroboration. However, section 11 does not deprive the judge of fact of the need to be cautious, especially in sexual cases, in relying on the unsupported evidence of a victim. The section simply removes the requirement of corroboration. It does not take away the common sense requirement of being cautious when it comes to relying on the uncorroborated evidence of a victim or complainant. This is because there is the evidence only of the victim and the accused, either or both of whom could be lying.

32. In this case, I can still convict the accused on the evidence of the victim without any corroborative evidence. However I can only do so, if I am completely satisfied and accept that the victim is telling the truth.

33. Is there any evidence to lend support to the victim’s evidence that the accused had sexual intercourse with her in May and June 2014 so that I am completely satisfied that the victim is telling the truth? I have already found that the Medical report done in August 2014 has very little value as to the alleged incidents against the accused in May and June 2014. The evidence of Atinta only relayed the victim’s allegation that the accused had sexual intercourse with the victim. She was the first person the victim reported to her about what the accused did to her. However the victim told Atinta about the alleged incidents in mid-July or August 2014, that is, three months after the first incident and one month after the alleged second incident.

34. Tooreka denied seeing the accused and victim at the buia. I am mindful that Tooreks is the wife of the accused and may have reasons to make such denial. Equally she could be telling the truth that she did not see the accused and victim together at the buia. The Court is still left to ascertain any other pointer to support the victim’s story.
35. Tooreka’s evidence is that she actually saw the victim and Taimwaiti slept together like couples in the victim’s house. She confronted the victim who admitted that she and Taimwaiti only slept together but did not have sex. It must be noted that Taimwaiti gave evidence and stated that he and victim slept together in the victim’s house and had sexual intercourse early in the morning at about 4 am or 5 am in 2014.

36. Tooreka further testified that she saw the victim and Nauatabu slept together. The victim admitted that to Tooreka but said that Nauatabu slept in her house because he was drunk. She said nothing happened between them.

37. Tooreka also further testified that she and Bwena Tiaon found the victim at night at the back of the kitchen with a boy named Tekaai. Bwena also testified the same. Both confronted the victim while she was putting her clothes back on. Tekaai ran away. The victim agreed in cross examination that she met Tekaai at the back of the kitchen at night. The victim also agreed in cross examination that the accused saw her and Tekaai at the kitchen that night. She denied having sex with Tekaai.

38. The Police Constable Naabwe Nanitieri (PW4) interviewed the accused about the allegation that he raped the victim. PW4 said that the accused denied raping the victim but that he was afraid of going to prison. PW4 also said that the accused asked him to convey his apology to the victim.

39. The explanation given by the victim for the delay in reporting the matter was that she was afraid to do so. Secondly, she felt bad in reporting what the accused did to her because she lived with the family and that the accused was her adopted father. When she was sent out to go and stay with Atinta she took the opportunity to report the matter to Atinta and later to the police. I think one can understand the victim’s predicament, being young in age and dependent on the accused and his family and the real fear of the repercussion of exposing the bad deeds of one of her parents. The victim’s delay in reporting cannot excuse the accused’s behaviour, if his behaviour is found to be true.

40. It is the accused who is on trial for the rape of the victim. Despite the evidence of the victim’s sexual relationships with the three men, if the evidence satisfies the Court beyond a reasonable doubt that the accused did have sexual intercourse with the victim without her consent, then the accused would be found guilty of the charge against him. If, however, after considering the whole of the evidence, the Court is still left with some lurking doubt, as to whether the accused did rape the victim, that doubt must be resolved in favour of the accused.

41. Incidentally, the evidence seems to suggest that the places where the victim alleged that the accused had sexual intercourse with her, were the same places where she was caught with the different men – Taimwaiti, Nauatabu and Tekaai. I accept that the three men with whom the victim had very close association were not on trial here for raping the victim. But the evidence on her relationship and actions with those men does lend somewhat credence to the accused’s assertion that the victim was misbehaving; that the accused and his wife were suspicious of the victim’s behaviour with the three boys; that the victim was caught flirting and having sexual relationships with the named men; and that the allegation made against the accused could well be her action to even the score, as suggested by the accused.

42. It is for the prosecution to exclude any doubt created in the mind of the Court by the evidence. In this case, the only evidence which the prosecution can rely on is that of the victim. The evidence of PW2, PW3 and PW4 are of very little support to the victim’s story. It is thus the victim’s evidence as against that of the accused. But the accused does not have to prove anything.

43. Weighing the evidence in this case, I find that the prosecution has not been able to remove the lurking doubt in the Court’s mind as to the guilt of the accused in this case. Consequently I am not satisfied beyond reasonable doubt as to the guilt of the accused and the charge of rape brought against him is dismissed. The accused is therefore acquitted of the charge of rape.

Dated the 27^th day of November 2018

SIR JOHN MURIA
Chief Justice