In the High Court of Kiribati
Criminal Jurisdiction
Held at Betio
Republic of Kiribati

Criminal Case No. 43 of 1997

The Republic

vs

Tieta Timiti
Rabaere Robuti

For the Republic: Ms Pole Tebao
For the 1st Accused: Mr Banuera Berina
For the 2nd Accused: Mr David Lambourne

Date of Hearing: 20, 21, 22 July, 6 August 1998

JUDGMENT

The two accused have each pleaded not guilty to a charge of rape contrary to section 128 of the Penal Code Cap. 67 in that on 24 May 1996 at Betio, Tarawa, they had unlawful sexual intercourse with a woman named Nei Rereao Temoannang without her consent.

The prosecution called 6 witnesses to prove the charge.

The first witness was the complainant, Nei Rereao Temoannang. She gave her age as "20 something" but later in cross-examination stated that she had been born in 1967, so that her age now would be about 31.

At the time of the alleged offence, Nei Rereao was employed selling food in a stall. The two accused worked for Temautari, a fishing company located at the jetty at Betio. Nei Rereao testified that the two accused and some other workers owed money for food, so at about 8 am that day she went to Temautari to collect it.

She met the first-named accused Tieta Timiti, who worked at the gate house as a watchman. He denied that he owed any money but she showed him a sheet of paper she had prepared listing the names of 6 debtors. Tieta was shown as owing $1-80 and Rabaere, the second-named accused, as owing $4-60.

Nei Rereao said that she was told by Tieta to come back again when the other debtors would be present. She went away and returned about noon or just after, although she was not quite sure of the time.

She said that Tieta was sitting in the gate house. It was a small house consisting of 2 rooms. Tieta sat in the larger room by the window where he could see people entering the premises. There was a smaller room at the back.

She said that Tieta invited her inside. She sat beside him adding up her debts and waiting for the other people who owed money to arrive. He asked her to close the door because outsiders should not be seen in the gate house. She refused, saying that she was there for a reason, to collect debts. Tieta then asked her to go into the other room with him. This made her angry because she knew that he had a wife, and she refused.

According to Nei Rereao, as she was bending over her piece of paper, she was surprised to hear the door slam. Tieta quickly grabbed her hand and began to pull her into the other room while she struggled to get away. While this was happening she heard a car pull up outside. Tieta went to the door and opened it and several men came in, including Rabaere. They all helped to pull her into the other room. When they got her there, they held her by her arms and legs and removed her clothing. Rabaere removed her skirt, tearing it in the process. She could not scream as someone had his hand over her mouth. She struggled but was unable to free herself. When she was naked Tieta removed his underwear, got on top of her and penetrated her while the others held her arms and legs.

Nei Rereao said that when Tieta had finished, Rabaere took off his pants, got on top of her and also had sexual intercourse with her. She said that at this stage she began to feel faint, as though she had lost her senses. Although she did not agree with what Rabaere was doing she did not struggle. When Rabaere had finished they all left. She remained lying down as she had not yet regained her senses.

She stated that after a while a man named Tureia arrived and spoke to her from outside the gate house. She did not answer as she had still not gained full control of herself. However, he remained there and after a while she told him she had just been raped. He asked if she could recognise them and she replied no, only Rabaere and Tieta. He then told her to find some clothing as she was sitting there naked. She found her clothes and put them on. As she left the gate house she saw that Tieta was sitting in the usual place for the watchman.

On the road outside, she stopped a car with a policeman in it and was taken to Betio Police Station where she lodged a complaint. The police then drove her back to Temautari to see if she could identify any of the other people involved. When they arrived, Rabaere's wife was there. Nei Rereao said that Rabaere's wife was angry with her, claiming that Rabaere had not been one of the rapists. Nei Rereao asked her why should she be angry with her, and did she know what had just occurred. She said that when the wife still maintained that Rabaere was not among the rapists she wanted to fight her but was restrained and put into the police car.

When cross-examined it became evident that Nei Rereao's memory of some of the events leading up to the alleged offences was not clear. She had told the police in a statement made 2 days after the incident that she had not seen Tieta on her first visit to Temautari but had seen Rabaere and some others, who had told her they had not yet received their wages and asked her to return in the afternoon. She admitted that she had forgotten but said that what she had told the police would be correct.

She also agreed that she had told the police that Tieta had carried her to the other room, not pulled her as she stated in her evidence. She said that she could not now remember whether she was pulled or carried, but a little later on in her cross-examination she decided that she had been carried.

Her poor memory of the details of the events preceding the alleged rape also became apparent when she was asked in cross-examination about the number of men who had come into the gate house. Her reply was, "About 10". However, a few moments before that she had read to the court the following words from her statement to the police: "And when he put me down in the other room, Rabaere and about 4 friends entered but I did not know who they were".

Nei Rereao admitted that she suffers from an illness for which she has had treatment at the mental wing. The doctor advised her not to smoke, not to stay up late and not to walk under a hot sun. The illness comes and goes. Sometimes it can occur for a few days running but then it can be a long time before it occurs again. It is usually brought on by standing under a hot sun. When the illness comes on she becomes dizzy and confused. She can remember some things but not others. She loses her senses. She hears voices but does not remember what they say or whether they are talking to her, and she experiences a sensation of floating. She said that when she saw how many men there were she became afraid and that when the men held her down and were laughing at her she had felt faint and had the same feeling as when she loses her senses. However, she maintained that she remembered being raped by the 2 accused.

In answer to other questions put in cross-examination she replied that after it was over she sat there in a daze and could not be really sure whether the person who spoke to her from outside was Tureia or someone else and that she was not only dazed but crying.

The second prosecution witness was Tureia Tiobe, a man aged 24 who, at the time, was working at Temautari as an engineer.

He testified that while he was working someone whom he cannot now remember called him to come and identify a woman. He went to the door of the gate house and saw the complainant sitting in the second room. He identified her as a food seller named Nei Rereao. He did not know what had happened to her. He saw that she was wearing a shirt which he thinks was yellow. She had a skirt draped over her lap but she was naked underneath and he could see her pubic hair and vagina. He did not notice anything else about her appearance. He did not speak to her and she did not say anything to him. He did not enter the room but threw a cloth to her. She was alone.

The third prosecution witness was Const. Kantaro Tekina, age 48. He has been in the Kiribati Police Force for 23 years.

He was driving a double cab pick up taking home some workers from the patrol boat. A woman whom he identified as Nei Rereao stopped his vehicle just pas the jetty. She asked for assistance as she wanted to make a complaint that she had been raped. She looked sad and the witness knew that something had happened to her. She appeared to be a crazy woman. She explained that she had been raped. Her hair was untidy; it looked as though it had not been combed properly. She looked as if she had been crying. He did not remember anything about her clothing. He explained in cross-examination that he had thought she was crazy only until she explained that she had been raped. He then no longer held that opinion.

The fourth prosecution witness was Corporal Tabubuki Tebau, age 34. He took over the case on 25 May 1996. At that stage the complainant had already given a brief statement, but he spoke to her and found out what had happened. He then obtained a voluntary statement under caution from each of the accused. Both statements were put into evidence without objection.

The accused Tieta admitted in his statement that he had had sexual intercourse with Nei Rereao, but claimed that she had consented. In the record of interview he stated that he had arranged with her earlier in the day to come back later so that they could have sexual intercourse. She came back and they were engaged in sexual intercourse when Rabaere came into the room. Tieta told the police that he then left the room, leaving Nei Rereao alone with Rabaere. He denied that there were other men present who had held Nei Rereao's hands and feet while he penetrated her. However, he admitted that when Nei Rereao and Rabaere were in the room he saw about 4 or 5 men entering. He recognised their faces but did not know their names. Tieta was asked by the police whether he was drunk when he was on duty at the gate house and he replied: "Yes, I was a little bit drunk after I had consumed alcohol on Thursday night 23/5/98".

The accused Rabaere Robuti also admitted in his statement to the police that he had had sexual intercourse with Nei Rereao. In the record of interview he said he and 4 other men were unloading cargo from a vessel onto a tractor. He drove the tractor to a place near the cold store where he parked it. He then walked to the gate house to get some alcohol from the watchman Tieta. He went alone. When he arrived he saw Tieta and Nei Rereao lying on the floor. He did not know if they had had sexual intercourse. Tieta left and he told Nei Rereao to take off her short trousers. She immediately did so. He then told her to open her legs and when she did he got on top of her, took off his own shorts and had sexual intercourse with her. He told the police that at the time he had been drinking but was not too drunk. He denied that any friends of his had come tot he gate house, but said that 2 young men, whom he did not know, had entered the gate house after he had had sexual intercourse with Nei Rereao.

Corporal Tabubuki also told the court that Nei Rereao had complained that her skirt had been ripped and that police had taken possession of the skirt but that he did not know where it was not. (The skirt was never produced).

The fifth witness for the prosecution was Police Sergeant Tataai Tataa, age 36. He has been in the police force for 5 years and is a member of the crew of the patrol boat.

He was a passenger in the vehicle which was stopped by Nei Rereao. He said that there did not appear to be anything wrong with her body but she looked sick or crazy. She said she had been raped by Rabaere and Tieta. The witness said that when he asked her some questions she gave answers which did not correspond to the questions. She was asked how they had managed to rape her during the day time but she did not answer properly. Her face looked normal (I take it that the witness meant by this that her face was not injured, because he had already said that she looked sick or crazy), her clothes, body and hair were not in disarray. They took her to the police station to lodge her complaint.

The sixth and last prosecution witness was Constable Derrick Tierere, age 26. He was on duty at Betio Police Station when Nei Rereao made her complaint. He does not remember her appearance. She spoke to somebody else at the police station first and he was instructed what to do. He and other police drove her to Temautari, where Rabaere was arrested. Rabaere's wife was there and Nei Rereao wanted to fight her. The police restrained Nei Rereao and in doing so she fell to the ground. She was put into the police vehicle. During the struggle she suffered a few injuries and her skirt was torn.

That concluded the case for the prosecution. I found that there was a case to answer and both accused elected to remain silent and not to call any witnesses.

I then heard addresses from counsel for the Republic, counsel for the first accused and counsel for the second accused in that order.

Counsel for the Republic argued that the complainant was a credible witness whose evidence was corroborated by the evidence of the witnesses Tureia Tiobe, Const. Kantaro Tekina and Sgt. Tataai Tatoa, and that she ought to be believed.

A second argument was put forward that the requirement for corroboration or, to be more precise, the requirement that the judge warn the jury (or, in Kiribati, that I warn myself) of the danger of convicting on the uncorroborated evidence of the complainant, violates the rights of women in that it denies them the protection of the law guaranteed by section 3 of the constitution. Section 15 of the Constitution, which affords protection from discrimination, ought o be read as including discrimination on the ground of sex eventhough it does not say that, so the argument goes. Also, when interpreting the law on the point, I ought to follow the principles formulated in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and certain other international instruments.

Since counsel for the Republic had already submitted that complainant's evidence had been corroborated, I take it that this second argument was put in the alternative even though it was not expressed to be.

It is contended for the first accused Tieta that because the complainant suffers from an illness which causes her to imagine things and disturbs her reasoning, there must be some doubt about her evidence. It is further contended that the corroborative evidence is contradictory and therefore does not corroborate the complainant's evidence. With regard to the alternative argument put forward by the prosecution, it is submitted that the rule requiring a warning to be given is not discriminatory because it applies to both sexes, notwithstanding that the majority of victims are women.

A similar argument was advanced on behalf of the second accused as to why the evidence of the complainant ought not to be accepted, except that here it was submitted that there had been a complete absence of corroboration. In respect of the prosecution's alternative argument, the submission for the second accused was also that the rule requiring a warning was not discriminatory.

Before considering the evidence I must direct myself that the burden of proof beyond reasonable doubt remains upon the prosecution from first to last. The prosecution must prove the charge and each element of the charge beyond a reasonable doubt and if it fails to do so then the accused are entitled to be acquitted. There is no onus on the accused at any stage to prove their innocence. In the present case the prosecution must prove beyond a reasonable doubt that each of the accused had unlawful sexual intercourse with the complainant without her consent, or with her consent if the consent was obtained by one of ways prescribed in section 128.

Leaving aside for the present the prosecution's alternative argument, I direct myself that in cases of this nature it is dangerous to convict on the uncorroborated evidence of the complainant. However, bearing that warning in mind, if I have no doubt that the complainant is speaking the truth then I may convict on her evidence, even though uncorroborated.

The two accused have admitted having sexual intercourse with the complainant and the issue is whether or not it was with her consent.

It was obvious from the complainant's evidence that she had forgotten some of the details of the incident, but she readily admitted as much and was often apologetic for not being able to remember. However, her memory of being raped was quite clear. She told the police about what had had happened as soon as she could. She told them that some men had held her down and that it was the two accused who had raped her. As it happens, when the police spoke to the accused they both admitted to sexual intercourse, but claimed that she had consented.

The accused's evidence of her skirt being torn was not necessarily contradicted by the evidence of Const. Derrick Tierere, who said that her skirt was torn when she was restrained from fighting Rabaere's wife. It is possible that the skirt was torn twice. Unfortunately, as happens too often, the police have lost the exhibit, so I was unable to inspect it and judge for myself. There must therefore remain some doubt about the circumstances in which the skirt was torn.

The complainant was subjected to a long and rigorous cross-examination by the two defence counsel. Her cross-examination began at 11.30 am on the one day and finished at 2.36 pm the next day. Apart from one episode when she was reduced to tears, she remained stoical throughout. She could not be shaken on her evidence that she had been forced into having sexual with the two accused. When she left the witness box I was convinced that she had been telling the truth. I might add that I had viewed her evidence with caution in view of her disclosure of having occasionally suffered the illness already described. However, I accepted her evidence that signs of that illness had begun to come over her only when she was being raped, and not before.

Several prosecution witnesses gave evidence which corroborated the complainant's claim that sexual intercourse with the two accused had taken place without her consent.

Her evidence that after being raped she was left naked and in a daze on the floor of the gate house was confirmed by the second witness Tureia Tiobe.

Const. Kantaro Tekina's evidence was consistent with what the complainant had told the court about her distress. He stated that when she stopped his vehicle she had at first behaved as if she was crazy but he changed his opinion when he heard she had been raped. He confirmed that she looked sad, looked as though she had been crying, and that her hair was untidy.

Police Sgt Tataai, who was on the same vehicle, also said that the complainant appeared sick or crazy. He did not notice that her hair, body or clothes were in disarray. However, I have no reason to disbelieve the evidence of Const. Kantaro – a much more experienced policeman – on this point and I am satisfied that Sgt Tataai was simply not quite so observant.

The evidence of the complainant that other men were present in the gate house apart from the two accused is given some support by the cautioned statements of the two accused, although of course neither of them admitted that the men had played the role ascribed to them by the complainant.

The accused Tieta, in his answer to Q. 21, said that when Rabaere and Rereao were in the room he saw 4 or 5 men entering. As has been already mentioned, the complainant gave a statement to the police 2 days after the incident in which she said that Rabaere and about 4 friends had entered the room. The accused Rabaere, in answer to Q. 4, stated that he had been working with 4 men but, in his answer to Q. 21, stated that only 2 men had entered the gate house after he had had sexual intercourse with Nei Rereao.

Although the accused Tieta asserted in his cautioned statement that the complainant had consented to sexual intercourse, his answer to Q. 14 is not consistent with such an assertion.

Q.14	And what did you do to Rereao?

A.	When Rereao came inside the room I told her to lie down and she lay down on her back. I know that Nei Rereao agreed to my suggestion but she was ashamed as it was day time with plenty people outside on the verandah of the Te Mautari.

If Nei Rereao was ashamed because it was day time and there were plenty of people around who might see her, it is quite illogical that she would nonetheless willingly engage in sexual intercourse not only with Tieta, but then with Rabaere.

Neither of the accused made any reference in his cautioned statement to the complainant being upset at any stage. According to them, she was a willing participant. However, as has been shown, there was strong evidence that the complainant had been distressed.

The explanations given by the two accused that the complainant consented to sexual intercourse cannot be reconciled with the evidence that the complainant, as soon as she had recovered, went straight from the gate house, hailed a passing police car and complained of having been raped.

I did not believe what was said by the two accused in their cautioned statements about the complainant having consented to have intercourse with them. Nothing said in those statements caused me to have even the slightest doubt about the complainant's evidence. I am satisfied on all the evidence that the prosecution have proved beyond a reasonable doubt that each of the accused had unlawful sexual intercourse with Nei Rereao without her consent while she was being forcibly held down by some unidentified men.

Both accused are therefore found guilty of the offence of rape contrary to section 128 of the code and are convicted accordingly.

It does not now become necessary to rule on the alternative argument on the Constitution put forward by the Republic. However, I might add, merely by way of comment, that I would not have had to rule on that argument even if there had been a likelihood that the decision was going to go the other way. This is because whenever evidence exists which is capable of providing corroboration of the complainant's testimony, as it did in this case, the inevitable issue is going to be whether, in the light of that evidence, the complainant is believed or disbelieved. No matter which way that issue would be decided, it could not be argued that if the law as it exists in Kiribati were to be applied then the complainant would be denied the protection of the law or would be discriminated against. The reason for this is that if the accused were to be acquitted then it would not be because the complainant was unable to meet the requirement of corroborating evidence but because she was not believed notwithstanding that such evidence existed. In such a case the argument presented by the Republic becomes merely hypothetical, and the Court will not rule on a Constitutional question based on a hypothesis. Thus if the present case was chosen as a test case for that sort of argument then the choice was not a good one.

Dated the 17th day of August 1998

The Hon R B Lussick
Chief Justice

SENTENCE

I am told that the first accused Tieta is aged 37, is married and has one adopted child about 2 years old. I appreciate that he is the sole supporter for his family. As a result of being charged with this offence, he has been suspended and the conviction will make it difficult for him to return to his previous employment. However, hardship on an accused's dependents is often one of the prices to be paid for committing an offence. He has two very minor convictions for unrelated offences committed almost 8 years ago and I am prepared to regard him as a person of previous good character.

I am told that the second accused Rabaere is aged 30 and has a wife and 5 young children of ages ranging from 18 months to 5 years. He has one conviction for a minor traffic offence and I am also prepared to regard him as a first offender.

In fact, it is often the case that in offences of this nature the accused is a person of previous good character.

I regard what the two accused did to the complainant as being particularly cruel. Not only did they force themselves upon her but they degraded and humiliated her in front of other men. It is true that she suffered no physical injury but it is clear that she was in a very distressed condition and immediately experienced symptoms of, or similar to, a mental illness she had been prone to.

I think that the offence call for a substantial term of imprisonment. They are both convicted and sentenced to imprisonment for a term of 7 years.

Dated the 17th day of August 1998

The Hon R B Lussick
Chief Justice