IN THE COURT OF APPEAL OF KIRIBATI

Criminal Jurisdiction

Criminal Appeal No 2 of 1988

BETWEEN:

THE REFUBLIC
Appellant

AND

MATIETA TIMEON
Respondent

Mr. Altments for Appellant
Mr. Koaru for Respondent

Date of Hearing: 14th March 1989
Delivery of Judgment: 16th March 1989

JUDGMENT OF THE COURT
(Gibbs V.P., Frost, Donne, Dillon and Mitchell J.J.A.)

The respondent was charged with the offence of rape and alternatively of common assault. He was acquitted after trial before Maxwell C.J. The matter comes before the Court of Appeal upon a reference under section 20 of the Court of Appeal Act 1980 for an opinion on three points of law alleged to have arisen during the trial. In the trial before the learned Chief Justice the issue was whether there had been consent to the act of intercourse which the accused admitted had occurred. The Prosecution called as witnesses the complainant, her mother, a nurse who saw the complainant after the incident and to whom the complainant made a complaint, a special Constable whom the complainant also saw and a Medical Assistant who examined her and made a report. The Prosecution called also an Officer in Charge of the Police Station to whom the complaint was made. The defence called the accused. The learned Chief Justice reviewed the evidence and referred to inconsistencies between the evidence given by the complainant and by the other witnesses for the prosecution. He found that the inconsistencies to which he referred raised a doubt in his mind as to the guilt of the accused and held that he was not satisfied beyond reasonable doubt that the accused was guilty either of rape or of common assault.

The reference to this Court by the Attorney General raises three questions. The first is:

"Is it proper for a court to allow evidence in chief to be given by the accused as to what the complainant said, that evidence indicating consent, when such evidence was highly prejudicial to the prosecution and the matters in respect of which evidence was allowed to be given by the accused were not put to the complainant in cross-examination when she gave her evidence?"

The Attorney General submits that the answer to that question is No. In his reference he continues;

"It is respectfully submitted that a party should put to each of his opponent's witnesses in turn so much of his own case that concerns that particular witness. If he asks no questions he will generally be taken to accept the account given by the witness (Phipson on Evidence, 13th edition, para 33-69; R. v. Bircham (1972) Cr. L. R. 430; O'Connell v Adams (1973) Crim. L. R. 113; R. v. Wilson (1977) Crim. L. R. 553)."

The cases cited apply what is often referred to as the rule in Brown v. Dunn 6 R. 67 at 76-77 (H.L.).

The complainant, who had denied in evidence in chief that she had consented to intercourse with the accused, was cross-examined by Mr. Binataake who assisted the accused. The cross-examination was brief. The first three sentences in the cross-examination read "I did not grow up with the accused in the same village. He is not my boy friend. I am not acquainted with him." The complainant had said in her evidence in chief that she was riding her bicycle to collect some coconuts when the accused came up, held on to the back of her bicycle and asked her to drop him at Tetabuki. She told him that she was in a hurry but he insisted that she should take him to Tetabuki. She tried to get away but could not as he held her bicycle. He asked her to drop him at a house which he knew and, when she arrived there, he took both her hands and dragged her into the house, caused her bruises to her stomach, held her and forced her to have intercourse. In cross-examination she denied that she had said to the accused that he had another girlfriend. She again denied that the accused was her boyfriend.

In his evidence in chief the accused said that he saw the complainant on her bicycle, called out to her to wait for him; that she pulled over to the side of the road and he ran to her. He asked where she was going and she said she was going for a ride. He asked if he could ride with her and she agreed. He then became the cyclist and she sat on the cross-bar. They talked of their last meeting, he asked her to stop somewhere and she agreed. At this stage Mr. Altments, who prosecuted for the Republic, objected that what the accused said had not been put to the complainant in cross-examination. The objection was noted but the learned Chief Justice gave permission for the witness to continue. The witness continued, with further objection from Mr. Altments to give evidence that he and the complainant had intercourse and that the intercourse was with the complainant's consent.

After the accused had given his account of what happened Mr. Altments said that he wished to raise formal objections which were:

1. that the accused had given evidence on matters which should have been put specifically to the complainant.

2. that, in the words of Mr. Altments, the matters which were not put were "very substantial" and "affect the creditability (sic) of the accused and the complainant."

He then applied to recall the complainant before he proceeded with his cross-examination. The application was refused. The learned Chief Justice said that the matters raised were matters to be dealt with in addresses. Mr. Altments then cross-examined the accused. He did not at any time seek to call evidence in rebuttal.

Certainly Mr. Binataake did not put to the complainant in detail what the accused said had happened after he accosted her. She did however deny that she was acquainted with the accused, denied that she had said that she was going riding around for pleasure, denied that the accused was her boyfriend. From those denials of the complainant it was clear that she denied that the accused had been out with the complainant from 1985 onwards until she became pregnant, that he had sexual relation with her while he was taking her out. Further her evidence made it clear that she denied that the sexual intercourse on the day in respect of which the accused was charged was consensual. The essential parts of the accused's case, which were required to be put to the complainant, were clearly put in dispute by her evidence.

The second and third questions raised in the reference are as follows:

"2. If the court allowed such evidence should it have allowed the prosecution to recall the complainant to rebut such evidence?

3. Is it correct at law that witnesses cannot be recalled in criminal matters to rebut such evidence as stated in paragraph 50 of the judgement dated 31.5.88?"

In his reasons for judgment the learned Chief Justice referred to the objections made by counsel for the prosecution to which reference has already been made and to the learned Judge's refusal to allow the application to recall the complainant. In paragraph 50 of his reasons for judgment the learned Chief Justice said: "It is pertinent to point out here that the grounds on which objection is raised in this case do not fall within the principles for which witnesses could be recalled in criminal matters hence I turned down the learned Counsel's request."

In his reference to this court the Attorney General says "It is respectfully submitted that a Judge has a discretion to allow any witness to be recalled where the exigencies of justice require it. Further, a judge has power to allow the recall of a witness to give evidence in rebuttal. Further it is submitted that it has been clearly decided that the Judge has power to recall, or allow the recall of a witness to give evidence in rebuttal (Archbold para 4-383 4-409 4-410; R v Milliken (1969) 53 Cr. App. R. 330; R. v. Levy and Tait (1966) 50 Cr. App. R. 198)."

The leading statement on the admissibility of rebuttal evidence in criminal matters was made by Tindal C.J. in R. v. Frost (1839) 9 C.P. 159:- "There is no doubt that the general rule is that where the Crown begins its case like a plaintiff in a civil suit they cannot afterwards support their case by calling fresh witnesses because they are met by certain evidence that contradicts it. They stand or fall by the evidence they have given. They must close their case before the evidence begins; but if any matter arises ex improviso, which no human ingenuity can foresee, on the part of a defendant in a civil case or a prisoner in criminal case, there seems to be no reason why the matter which so arose ex improviso may not be answered by contrary evidence on the part of the Crown."

In Owen (1952) 36 Cr. App. R. 16; (1952) 2 QB 362 Lord Goddard said of the dictum of Tindal C.J. (supra) that "the rule" was "probably in wider language than would be applied at the present day." His Lordship cited Crippen (1911) 5 Cr. App. R. 255; (1911) 1 QB 149 where the Court of Appeal said that the rule might place an unfair burden on the prosecution and that it "was a question for the judge at the trial to determine whether the evidence, not having been tendered in chief, ought to be given as rebutting evidence."

The above authorities were cited by the Court of Appeal in R v Harrington 1984 Crim. L. R. 487 where the court referred (at 488) to "two possible extremes: first that the rebutting evidence should only be allowed where no human ingenuity could have foreseen the necessity for calling it during the prosecution's case proper; and secondly, that such rebutting evidence should be allowed even when the prosecution had good reason to believe that a particular defence would be put forward unless there was admissible evidence before the jury where indicated that it had been or might be put forward."

The Court concluded that "It was for the trial judge in his discretion to do what was fair and just to both sides."

In the instant case presumably the prosecution had no knowledge of what the accused would say when he gave evidence until he gave that evidence, although, when he was interrogated by the police concerning the incident, he had said that he had been "familiar" with the complainant before that incident and that she was his girl friend before she became pregnant. It was a material allegation that the complainant and the accused had had sexual intercourse previously on a number of occasions, and inferentially this had been denied by the complainant, although she was not asked the direct question, because she said that the accused was not her boyfriend and that she was not acquainted with him. There was nothing in the evidence of the accused that required the learned trial judge to allow the complainant to be recalled although in his discretion, he might have done so.

The court's answers to the questions raised by the Attorney General are:

1. A court is not in error in allowing evidence in chief to which objection is made to be given by an accused person alleging that a witness for the prosecution made statements which were not put to the witness in cross-examination.

2. In this prosecution the court could, at its discretion, have allowed the prosecution to call the complainant in rebuttal at the close of the accused's case, but was not obliged to do so.

3. It is not correct that witnesses in a criminal trial may not be called by the prosecution to rebut evidence given by the accused. They can be called, at the discretion of the trial judge, where such evidence could not have been anticipated by the prosecution and where the new matter had not been put in cross-examination of any witness for the prosecution.

Vice President
Judge of Appeal
Judge of Appeal
Judge of Appeal
Judge of Appeal