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Republic v Kooki - judgment [2001] KIHC 67; Criminal Case 06 of 2001 (10 December 2001)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Criminal Case 6 of 2001

THE REPUBLIC

vs

MAAMAN KOOKI

For the Republic: Ms Pauline Beiatau
For the Accused: Ms Emma Hibling

Date of Hearing: 3 & 4 December 2001

JUDGMENT

Maaman Kooki was charged:-

Rape contrary to section 128 of the Penal Code Cap. 67.

Maaman Kooki on the 14th April 2000, at Temakin, Betio, had unlawfully sexual intercourse, twice, with Tiereta Teiaobure without her consent.

Defilement of a girl between thirteen and fifteen contrary to section 135(a) of the Penal Code Cap. 67.

Maaman Kooki on the 14th April 2000 at Temakin, Betio, had unlawfully sexual intercourse, twice, with Tiereta Teiaobure, a girl aged between thirteen and fifteen.

Late in the evening of Friday 14 April 2000 Maaman, a married man now aged 27, was on his way home from a bar where he had been drinking and playing pool. Despite having had five cans he felt sober, OK. He was passing the Betio clinic when he fell into conversation with the complainant, Tiereta (date of birth 4 July 1986). Tiereta had had a row with a brother and, unbeknown to her family, had run away from home, intending to go and stay with Matereta, a lady aged about 40 who lived not far from the clinic. Maaman put the time when they met a nearly midnight: Tiereta some time after 10 o'clock.

One thing led to another and they had sex together, twice. Afterwards Maaman took Tiereta to his house where she slept the night with his wife, himself and others. The next morning she was taken to Matereta's. After Maaman's wife Rutia had been to Matereta's house, Tiereta complained to Matereta that Maaman had forced her to have sex with him the night before: he had raped her.

It was Tiereta's uncorroborated word against Maaman's. His version of events, from the time he gave his caution statement on 20 April, was that sex was consensual. I am inclined to think that it was. The two were together for several hours. Tiereta said Maaman forced her to go from place to place. I find that difficult to believe. Moreover she had at least one opportunity to leave him, when he left her alone for some minutes on a hammock while he went to buy sour toddy. She could have walked away then if she had wished but she stayed. Her will may have been overborne by an older man but I doubt it. Certainly I could not find beyond reasonable doubt that Maaman obliged Tiereta to have intercourse with him, that he raped her.

At the close of the Republic case I let Ms Beiatau, prosecuting, know my view. She argued that, if I were to find the accused not guilty of rape, then I could find him guilty of indecent assault. She referred me to section 164 of the Criminal Procedure Code and to section 133 of the Penal Code. The effect of these two sections is that when a person is charged with rape, if not guilty, he may nevertheless be found guilty of indecent assault and if the girl is under the age of 15 consent is no defence.

Ms Beiatau was quite correct in her interpretation of the sections. If the Republic had not laid the alternative charge of defilement I may have convicted of indecent assault. As it is the Republic made it more difficult for itself by laying the alternative because of the proviso to section 15(a) under which it was laid:-

Provided that it shall be a sufficient defence to any charge under paragraph (a) if it shall be made to appear to the court before whom the charge is brought that the person so charged had reasonable cause to believe and did in fact believe that the girl was of or above the age of 15 years.

There is no such proviso to section 133.

I pause to consider the onus of proof in the proviso. It is a defence so the onus is on the accused to establish it. The words "shall be made to appear to the court" are vague but I take them to be no higher than "prove on the balance of probabilities". The accused must bring himself within the proviso on the balance of probabilities.

It would be quite unfair to the Republic to have two bites of the cherry: at the point at which the accused was found not guilty of rape, to be able to choose either to argue that he was guilty of indecent assault pursuant to section 133 or guilty of defilement pursuant to section 135. By laying the alternative charge of defilement the Republic made its choice – if it failed to prove rape then the alternative lesser charge is defilement, not indecent assault – and thereafter was obliged to stick to it.

I entered a verdict of not guilty of rape and the trial continued on the alternative of defilement.

Because the accused had admitted to sexual intercourse and whilst the girl's proven date of birth made her only 13 at the time of the incident, the only point still alive was whether it be made to appear to the court that the accused has reasonable cause to believe and did in fact believe that the girl was aged 15 or more.

From her demeanour even more than from her answers in evidence I did not form a favourable impression of Tiereta. She appeared to be evasive and self justifying, not a reliable witness. More than that, she gave me the impression of being only a child: even now she hardly seemed 15 years old. It must have been the more so 18 or more months ago and should have been obvious to any older person.

Physically she looks mature and may be did, as Maaman said she did, look mature in April 2000 but mentally she most likely appeared still a child under the age of 15.

Maaman's evidence:-

I didn't ask her how old: I thought she was about 17: she was wearing a large T shirt and I did not expect her to be near clinic at that hour: where drunks roam. Some drunks behind clinic. Never occurred to me to ask her her age. We didn't talk there for long. She looked a big girl, just a little shorter than I. (Evidence in chief).

[From my observations of both of them, she is a good deal shorter than he.]

"She did not seem to be a child" (cross examination).

It is easy now for the accused to say he thought at the time she was over 15 – "about 17" as he put it. Yet I doubt whether he gave her age any thought at all. They just went ahead and had sex.

There was another piece of evidence quite against the accused. Kaure Uakeia to whom the accused went to buy sour toddy saw the girl sitting on the hammock outside his house:- "Didn't recognize her: between 11 and 12".

Ms Hibling, defending, reminded me that she cross examined Kaure about how good an opportunity he had to see Tiereta. It was a dark night and he saw her through the window: he saw her only once. Yet Kaure's assessment of her age stood. It is another straw in the wind blowing against the accused.

On the balance of probabilities it has not been made to appear to the court either that Maaman had reasonable cause to believe or that he did in fact believe that Tiereta was of or above the age of 15 years.

The accused is not within the proviso.

I find him guilty of defilement of a girl between 13 and 15.

Dated the 10th day of December 2001

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE