Ioane v The Republic [2024] KIHC 20; Criminal Case 39 of 2021 (29 August 2024)

IN THE HIGH COURT OF KIRIBATI TE KABOWI AE RIETATA I KIRIBATI

HIGH COURT CRIMINAL CASE 39 OF 2021

BETWEEN	TUITEKE IOANE Applicant
AND	THE REPUBLIC Respondent

Appearances:	Ms Aana Temaia, for the Republic Ms Abunaba Takabwebwe, for the Applicant
Date of hearing: Date of judgment:	6 August 2024 29 August 2024

JUDGMENT
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1. At the end of the prosecution’s case, Ms Takabwebwe, for the accused applied for a no case to answer pursuant to section 195 of the Criminal Procedure Code. The section is set out below:
   

“Acquittal of accused person where no case to answer
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.”

2. The accused’s application was based on there being no evidence to establish one of the elements of the offence that the victim was under the age of 15 years when the offence was committed. Ms Takabwebwe, submitted that there was no evidence to specifically adduce the age of the victim including the birth certificate nor anybody called to show the age of the victim like the mother or the police officer. To this extent, the accused’s counsel strongly submitted that there is no case to answer and that the accused should be acquitted.
   
3. The prosecution through, Ms Temaia, countered the application submitting that the second witness (mother of victim’s friend) in her evidence adduced that the victim is the same age with her daughter who was in form two that time.
   
4. In Kiribati the test to be applied in a “no case” to answer submission is now firmly established under section 195 of the Criminal Procedure Code and invigorated by the case law authority of The Republic –v- Edward Narayan and Lomi Loo [2012] KICA 9 Criminal Appeal 2 of 2012 (15 August 2012).
   
5. That test is: “If at the close of the prosecution 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”
   
6. The charge against the accused pertains to section 135(1) of the Penal Code (Amendment) Act 2017. The section is set out below:
   

“Any person who engages in sexual intercourse with a person under the age of 15 is guilty of a felony and is liable to imprisonment for life.” (my emphasis)

7. The above provision clearly shows that one of the elements (in bold) is that the victim should be under the age of 15.
   
8. In considering the evidence of the prosecution and counsels’ submissions, the only relevant evidence relating to the age of the victim was by the victim and the second witness, the mother of the victim’s friend. The evidence relates to the fact that the victim was in form 2 during the commission of the offence. No other evidence specifically states how old the victim was.
   
9. The submission by, Ms Temaia, for the prosecution about the second witness’ evidence is weak evidence except to tell this court that the victim is the same age with the witness’ daughter (form 2).
   
10. I agree with, Ms Takabwebwe, that more strong and specific evidence is needed to establish the element. Without such evidence, the accused cannot sufficiently make out a defence.
    
11. In considering the evidence adduced by the prosecution, even though there is some evidence particularly that the victim was in form 2, such evidence is so insufficient and unreliable such that no reasonable tribunal could convict on the evidence adduced.
    
12. I therefore grant the no-case to answer application finding no case to answer on sexual intercourse involving a girl under the age of 15.
    
13. The accused is therefore acquitted.
    

_______________________________
MR ABUERA URUAABA
COMMISSIONER OF THE HIGH COURT