Republic v Terebo [2021] KIHC 5; Criminal Case 36 of 2021 (21 October 2021)

IN THE HIGH COURT OF KIRIBATI

CRIMINAL CASE NO. 36 OF 2021

[THE REPUBLIC PROSECUTOR
[
BETWEEN [AND
[
[ROROBUAKA TEREBO ACCUSED

Before: The Hon. Chief Justice William Kenneth Hastings

Date of Hearing: 19, 20, 21 October 2021
Date of Judgment: 21 October 2021

Counsel: Mr. Tabotabo Auatabu for the Republic

Ms. Angitonu David for the Accused

ORAL JUDGMENT OF HASTINGS CJ

1. Rorobuaka Terebo pleaded not guilty to two charges of indecent assault by a person in a position of trust, contrary to s 155A of the Penal Code.
   
2. The first allegation is that sometime in 2011 he indecently assaulted his daughter, a baby then three months old, by licking her vagina.
   
3. The second allegation is that on 12 July 2020, he indecently assaulted his daughter, by then aged 8, by rubbing the tip of his penis on her face while she was sleeping.
   
4. There is no doubt that the defendant was in a position of trust in relation to his daughter and that she was under the age of 18 at the time of both alleged incidents. The issue is whether the prosecution has proved the allegations that he indecently assaulted her beyond reasonable doubt.
   
5. As in any criminal case, the burden is on the prosecution to prove each element of each charge beyond reasonable doubt. It is not enough for the prosecution to persuade me that the defendant is probably guilty or even that he is very likely guilty. Both will leave me with reasonable doubt. On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events and the prosecution does not have to do so. What the prosecution has to do is prove each element of the offence beyond reasonable doubt.
   
6. A reasonable doubt is an honest and reasonable uncertainty left in my mind about the guilt of the defendant after I have given careful and impartial consideration to all of the evidence that relates to each of the charges faced by this defendant.
   
7. If, after having given careful and impartial consideration to all of the evidence that relates to each element of each offence, I am sure the prosecution has proved each element of the offence beyond reasonable doubt, then I must find the defendant guilty. On the other hand, if I am not sure the prosecution has proved each element of the offence beyond reasonable doubt, then I must find the defendant not guilty.
   
8. Charges of this nature invariably evoke an emotional response. In spite of Mr Auatabu’s invocation of the immoral nature of the allegations in his opening address, I must reach my decision uninfluenced by prejudice or sympathy. I must instead consider the evidence coolly, dispassionately and impartially, as it relates to the elements of each of the offences that the defendant has been charged with. Feelings of sympathy or prejudice must not be allowed to adversely affect the evidence I have heard or my assessment of it.
   
9. The starting point is the presumption of innocence. I must treat the defendant as innocent until the prosecution has proved his guilt. The onus of proof is on the prosecution from beginning to end. The prosecution must prove each element of each offence. There is no onus on the defendant at any stage to prove his innocence. The presumption of innocence means that the defendant does not have to give or call any evidence and does not have to establish his innocence.
   
10. I turn now to the evidence. The prosecution produced three witnesses. The first witness was Manita Moiaua, the defendant’s wife and mother of the daughter Benetita. The second was Resana Tokinterai, a “counsellor-advocate” at the Kiribati Women and Children’s Support Centre. The third was Corporal Kirabwebwe Teuea, a police officer.
    
11. At the end of the prosecution case, the defence submitted there was no case to answer and asked me to dismiss both charges under s 256 of the Criminal Procedure Code. I declined the application. The defence then elected to give and call evidence. There were four defence witnesses: Kaos India, Takabwebwe Boubou and Nais Tangaroa gave evidence of what each observed about Manita’s conduct; the defendant gave evidence and denied the alleged incidents happened.
    
12. The issue as I said is whether the prosecution has proved beyond reasonable doubt the two incidents happened. I begin with the prosecution witnesses.
    
13. Manita said that Benetita was her third child. She said the defendant did not believe Benetita was his daughter.
    
14. In October 2011, she said the defendant was tickling Benetita with his lips to her stomach. Benetita was three months old. Benetita was naked because Manita was about to bathe her. Manita was outside the buia, which was built with coral limestone corner posts about two metres high and a steep thatched roof, the edge of which went below the level of the corner posts to about shoulder height. Manita said the defendant was inside the buia. He held the baby in both his arms as he tickled her. He was standing up and slightly bent over, his side to her. She said she thought he knew she was there. She said she watched the tickling for two minutes without distraction. She said she saw him lick the baby’s vagina. She took the child from him and said to him, how could you play with a baby like that. His response was that the baby’s father was Kaumai, the son of a female cousin.
    
15. Manita’s evidence was that the second incident happened on 12 July 2020 at their house. She drew a diagram to show who was sleeping where. There were five people. From left to right, it was two children, then her, then Benetita, then the defendant. She said she was sleeping but was awakened by the defendant pulling Benetita by her legs towards the mosquito net. She turned on a torch to see him rubbing his penis between Benetita’s nose and lip. She said she scolded him when she saw that. She said he replied that his penis was itching, and said she was awakened by an evil spirit. Under cross-examination, she said Benetita did not wake up during this incident.
    
16. She said she did not report either incident because she said she did not know where to go. It was only after an argument with her husband that she went to the police on 19 July 2020. She told the police about these two incidents in the course of obtaining a police safety order. She then took Benetita to Teraina with Social Welfare to separate herself and her daughter from him. She returned three months later. She said the defendant took her to a plot of land of land he leases in Banana 2 after telling her they were going to see Bastaake (her mother’s sister) and a Catholic priest for her to apologies. He told her his family did not want him to go back to her because of what she said he did.
    
17. She said that she always returned to the defendant because she loved him, and for her daughter’s sake. She also admitted under cross-examination that she was jealous of a number of women, including Nei Neiti whom she confronted when she was pregnant demanding to know who the father was.
    
18. She was asked why, if she went to the police to stand up for her child, she waited ten years in one case, and several days in the other case, to stand up for her child. She replied she did not think the police took complaints about this kind of conduct, which is why she only reported the incidents when she went to the police after fighting with the defendant. She denied lying about the assaults, saying “I saw it with my own eyes”. She denied being a jealous person.
    
19. Resana Tokintekai was an administrative social welfare officer with the Ministry of Women, Youth, Sport and Social Welfare at the time of the incident. She held that role for three years. In that time she said she interviewed 10 children. She said it was her experience that the first time a child is asked something, they cannot say what happened. They are shy, look away, smile, and look back. It is only the second or third time they are asked about something that it comes out.
    
20. She said she interviewed Benetita twice: the first time was on 23 July with her mother when she obtained a police safety order; the second time was the day before they left for Teraina, and that was with the child alone while her mother went to the maneaba.
    
21. In the statement to the police she made this week, Resana said Benetita told her that her father did something to her, but then said the father did not do something to her. She said it was her opinion that the child did not want to talk about “what happened to her”. In Court, she said she asked Benetita “Is there something your father did to you?” She said the child smiled, said nothing and looked away. Before the second interview, she said she told the child she had an obligation to protect the child. She said the police statement was based on both interviews she had with the child. She said that the evidence she gave in Court was true, which means the earlier police statement she signed, in which she said the child retracted the allegation, was not true.
    
22. I give no weight to the evidence of Ms Tokintekai. I accept that she is genuinely concerned about the welfare of women and children. Her evidence in this case however is damaged by her lack of experience interviewing children, by asking the child leading questions, by not investigating the possibility of coaching by the mother, by the inconsistency between her statement to the police and her evidence in Court, and by ladening her evidence with assumptions as to what happened. Examples include her statement that the child “did not reveal the truth”, and her interpretation of the child’s shyness, smiling and looking away as “not wanting to talk about what happened to her.” She appeared to not consider the possibility that this behaviour could be a reaction to a stranger asking leading questions, or that the child was simply shy. She also appeared not to consider the complainant’s account that Benetita did not wake up during the incident, would therefore have had no memory or awareness of it, and would therefore not have had no knowledge of what was being asked of her.
    
23. Corporal Kirabwebwe Teuea’s evidence was that she issued the police protection order after the complainant told her about the violent incident and the two indecent assault allegations. Her evidence adds nothing to the central issue in this case, which is whether the prosecution has proved beyond reasonable doubt that the two alleged incidents of indecent assault occurred in the way the prosecution says they occurred. This leaves the evidence of the complainant and the defence witnesses to consider.
    
24. I turn now to the defence evidence.
    
25. The first three witnesses gave evidence about what they observed the complainant did and said in various incidents. Their evidence was intended as relationship evidence. Kaos India said the complainant told her she had a mental health issue that gave her strong feelings of jealousy. This was not put to the complainant; is hearsay and I disregard it as evidence of the complainant’s mental health. She also described an incident in which the complainant disturbed people across the road from her by calling out for her husband. They told her to leave. Takabwebwe Boubou described the time the complainant and the defendant lived with him and his wife for three months. He said the complainant and his wife fought most of the time. He said he observed the jealousy of the complainant towards Marietta, a neighbour’s daughter.
    
26. Neiti Tangaroa said when she was pregnant, the complainant confronted her demanding to know if the defendant was the father. She also said she was at the maneaba between 1 and 13 July 2020 for the anniversary of its construction. She said the defendant and the complainant were there too with other members of the group. She said she thought they moved out on 13 July after the anniversary celebration. She thought this because if any member of the group did not attend, a penalty would have been imposed requiring the non-attendee to cook a feast, and in 2020 no penalty was imposed that she knew of.
    
27. I accept that the evidence of this group of witnesses was influenced by a desire to support the defendant, but their evidence also shows a verifiable pattern of behaviour on the part of the complainant, and Nei Neiti’s evidence places the second alleged incident in a maneaba.
    
28. The last witness was the defendant. He did not have to give evidence. The fact that he did does not change who must prove the allegations. It is the prosecution who has that task, and the defendant does not have to establish his innocence. The question remains the same—has the Crown proved the defendant’s guilt beyond reasonable doubt.
    
29. In this case the defendant has explained his version of events. He said that the allegations against him are untrue. He gave his account and said the allegations simply did not happen. If I accept what he says with respect to each charge, then obviously the proper verdict on those charges is acquittal because he will not have done what the prosecution says he did. If what he says leaves me unsure, then again the proper verdict is acquittal, because I will have been left with a reasonable doubt. If what the defendant says seems a reasonable possibility, the prosecution will not have discharged its task, and I must acquit. If I disbelieve the defendant’s evidence about what happened, I do not leap from that assessment to guilt, because to do that would be to forget who has to prove the case. Rather, I must assess all the evidence that I accept as reliable and ask, whether that evidence satisfies me of the defendant’s guilt to the required standard on each charge.
    
30. The defendant said he and the complainant were always fighting and that the complainant frequently suspected him of having affairs. He also said there was never a time he said or thought Benetita was not his daughter. He admitted that he has been violent to his wife in the past. Until I stopped it, he recounted all the places he and the complainant lived, and the circumstances in which they moved on. A pattern was established that they would move on when their fighting made the people they were staying with uncomfortable.
    
31. He said he, the complainant, Benetita and two other children were at the maneaba from 1 July 2020 for the anniversary celebrations. When he was asked why he would stay at the maneaba where there were other women knowing his wife was jealous, he replied that he would receive a penalty if he did not attend. This is consistent with Neiti Tangaroa’s evidence.
    
32. He also said there was no torch in his house, only two battery operated “Chinese” lights.
    
33. He denied the alleged 2011 incident. He denied the 2020 incident. He accepted that he hit his wife in 2020 and knew when he signed the police safety order that his wife had alleged he indecently assaulted Benetita. He said he only realized Benetita did not have her birth registered when he applied for the lease in Banana in 2018, and received a list of birth registrations that did not include her. He registered her birth in 2018, 7 years after she was born, as a result. I accept that the non-registration of her birth before that was an oversight. Two other children appear not to have had their births registered either, either due to oversight or incompatible registration systems.
    

Analysis

34. Simply observing witnesses and watching their demeanour as they give evidence is not by itself a good way to assess the truth or falsity of their evidence. A ss may not appear confidonfident, or may hesitate, fidget or look away when giving evidence. Thesn’t necessariln riln that their evidence is untruthful. The witness may be understandably nervous givingiving evidence in an unfamiliar environmenfront of unknown people. On the othed, a witnesstnesstness may appear confident, open and persuasive, but may nevertheless be uhful. Even an honest nest witness can be mistaken.
    
35. I have concerns about Manita’s credibility and the reliability of her evidence.
    
36. There is some inconsistency in how she views her own character. She seemed to take pleasure in admitting she was jealous when describing her confrontations with Nei Neiti and Nei Marietta, yet she denied being a jealous person or that jealousy motivated her to make up these allegations. This inconsistency however is more relevant as a character flaw than it is a reflection on her credibility.
    
37. I am also not troubled by the delay in Manita reporting these incidents to the police. It is not uncommon for complainants who allege sexual abuse to delay reporting the alleged abuse for a considerable period, even though they may have had opportunities to do so.
    
38. I am concerned however about the timing of the delay. If I accept her explanation, that she thought you could only complain about violent incidents to the police, but not incidents of this nature, then it is reasonable to believe her evidence that she did not know how to report what she says happened to her daughter. But if she thought she could not report sexual offending within the family to the police, why did she report it to the police this time? There is no evidence about how or why the complainant came to mention the indecent assault allegations to Corporal Teuea.
    
39. With respect to her credibility, the gist of her evidence is that the defendant indecently assaulted Benetita because he did not believe she was his daughter, and that was how the prosecution opened its case. Yet the birth certificate produced in evidence not only states that he is Benetita’s father, it states that he was the informant, and he gave a plausible explanation for why it took seven years to register Benesita’s birth. This tends to undermine Manita’s statement that she thought the defendant did not believe himself to be the father.
    
40. Her credibility is also undermined by the three defence witnesses who all described a pattern of behaviour that is inconsistent with her evidence that she is not a jealous person, and by her admission that she lied to the Roman Catholic priest. It is further undermined by the sleeping arrangement she described, where Benetita slept beside the defendant. It would be odd to allow the child to sleep beside a man her mother claims indecently assaulted her in 2011, when the child could have slept away from him with the other children.
    
41. I have less concern about the defendant’s credibility. He was honest about his shortcomings. He admitted that he had been violent towards his wife. Making concessions when concessions are called for can be a sign of honesty. He did not appear to try to hide anything when he was taken through each stage of his life with his wife.
    
42. I turn now to the evidence in relation to each charge. I will deal with the 2011 charge first.
    
43. In addition to the concerns I have expressed about the complainant’s credibility, I have concerns about the reliability of some of her evidence. My first concern relates to the alleged 2011 incident. From her position outside the buia, she claims to have seen the defendant inside the buia, standing and slightly bent, with his side to her and the baby in his arms, use his tongue to lick the baby’s vagina. She could not have had a clear view because of the lowness of the roof line, the contrast between light and dark, and their positions relative to each other. I also do not believe her evidence that she watched him for two full minutes undistracted by the bath she was preparing for the baby.
    
44. The defendant’s evidence was that it just did not happen. His account was not damaged in cross examination. Corroboration of the complainant’s account is not needed, but it is not a case of simply choosing whose account I prefer. To do that would ignore who has the burden of proof and it would also ignore the standard of proof beyond a reasonable doubt. The issue is always whether the prosecution has proved beyond a reasonable doubt that the defendant offended in the way alleged.
    
45. In this case my findings of credibility with respect to the complainant and the reliability of her evidence leave me with a reasonable doubt that the defendant offended in the way alleged. I therefore find the defendant not guilty on count 1.
    
46. I turn now to count 2.
    
47. The evidence does not establish either the date or the place of this alleged incident. The charge alleges the incident took place on 12 July “inside their house”. The complainant said in Court it took place on 2 July. The complainant also said it took place in their buia, yet both the defendant and Nei Neiti said the defendant and the complainant were at a maneaba with a church group for a celebration that took place in the first two weeks of July.
    
48. Taking the complainant’s evidence at face value, on her account there were five people in the buia that night. This presented little opportunity for the defendant to do what is alleged he did because of the risk of being caught. It is also odd that an abrupt pull of Benetita by her legs only woke Manita without waking Benetita herself or the other two children present. It is odd that no one was awakened by the sudden torchlight and exchange of words either. The existence of a torch in the buia was disputed by the defendant.
    
49. As date and place are left unresolved, and in light of my credibility findings with respect to the complainant generally and specifically with respect to her evidence of how she says the second alleged indecent assault occurred, I find the prosecution has not proved these allegations beyond reasonable doubt either. I find the defendant not guilty on count 2.
    

Dated the 21^st day of October 2021

Hon William Kenneth Hastings

Chief Justice