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Republic v Tourakai - judgment [2002] KIHC 67; Criminal Case 23 of 2001 (30 May 2002)

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

High Court Criminal Case 23/01

THE REPUBLIC

vs

BWARAME TOURAKAI
NIKUATA NAKOTI

For the Republic: Ms Pole Tebao
For the 1st Accused: Mr Aomoro Amten
For the 2nd Accused: Ms Taoing Taoaba

Date of Hearing: 27 & 28 May 2002

JUDGMENT

The two accused are charged with raping Nei Meere Temwaati on 12 October 2000 at Temwaiku. Meere is a woman, from my observation, in her 40’s. The first accused, Bwarame, is now 19, the second accused, Nikuata, 24.

The accused had been drinking sour toddy. They went to the house of Nei Taatake Booia. Nei Meere was there. In the early afternoon Meere left to catch a bus to Bairiki. Meere said the two young men offered to go with her to the bus. They each said she asked them to accompany her. Defence counsel made much of the discrepancy (and of a number of other discrepancies on side issues in the evidence of various witnesses) but it was not of great significance. As I remarked to Mr Amten during his final address, if witnesses give evidence which agrees word perfectly one may be suspicious of collaboration. Each of us sees (and recollects) the same event differently and will give a slightly different account of it.

Meere’s evidence in chief:-

I left – about afternoon. Going to catch bus to Bairiki. The two accused said they’d help me catch a bus ...... I went ahead, they following. “Where are you going?” “Bairiki”. Near some bushes they pulled me in. Bwarame and the other man followed. “Let’s sit down here and have a smoke”. They had a bottle of sour toddy. “What are you going to do to me as you’ve brought me here?” “You are going to lie down here” – Bwarame told me that. “Yes. You have no say. If you don’t lie down we’ll beat you up”. Nikuata. Threatening tone. Bwarame pushed me down by the chest. Pulled my panties down and pulled my clothes up – Bwarame. Nikuata was sitting beside us and told Bwarame to hurry up because it was then his turn. Bwarame on top of me and molesting me: his penis was in my vagina. Nikuata watching. “Hurry up. Haven’t you finished? It’s my turn next”. I was not sexually aroused: looking round for someone to whom I could call for help. “Why can’t I reach a climax?” “You can’t reach a climax because you are very drunk”. I was in pain as I was lying on gravel: would have made no difference if not on gravel: unhappy – they didn’t ask my view, forced me into act. “Enough. I can’t reach a climax. May be I’ll masturbate”. Other man took off shorts, got on top of me – penis in vagina. Whilst he was doing that an effeminate man appeared. They talked to the effeminate man: Nikuata still on top of me. “Look. Get off. Let’s find a more comfortable place”. I wanted to get away. I ran away: my lavalava wrapped round me. Ran to house we’d been at. I met Tio Tebaabure. Told him they’d raped me but continued running to house.

In cross examination Meere maintained her assertion that she did not consent to intercourse.

Nei Tataake Booia, from whose house Meere and Bwarame and Nikuata had set out for the bus, said that Meere came back to the house after 3 o’clock: “only had lavalava wrapped round; hair untidy”.

Meere’s evidence was to a considerable extent collaborated by Tio Tebaabure. He lived in the same village as Bwarame and Nikuata and knew them:-

I met these two young men: Bwarame was pulling Meere and Nikuata was following. The lady asked me to help her, save her. I told them not to touch her and that’s when the lady managed to escape. On the path leading to main road. When she ran she asked me to help her. Only had a lavalava wrapped around her. Tone of voice: shouting asked me to help or rescue her. I saw Bwarame holding Meere by the hand or arm: Nikuata following some distance away. I said to accused not to force her. Bwarame said that lady was their companion.

Meere had said she told Tio the two accused had raped her. Tio did not use the word “rape” but that Meere asked him to “help or rescue her”. On Tio’s version there was no complaint of rape but his description of Meere’s words and actions is consistent with her being unhappy and resisting the accused. Tio collaborates Meere’s evidence.

All three of these witnesses appeared truthful and to be describing accurately, as each remembered it, what had happened. I accept beyond reasonable doubt Meere’s account that she was forced by these two young men to have intercourse with each without consent.

The caution statement of each was tendered through the Investigating Officer, Det. Tabanea Kauriaa. Police Constable James Oten, the witnessing officer, supported the detective’s evidence.

Bwarame and Nikuata had been arrested quite early in the morning after the incident and their statements taken at the Bonriki police station in the early afternoon. No point was taken about the length of time they were kept in custody before being questioned. Nor could the point have been: the time between arrest and questioning was not too long.

In the course of receiving the statements the Court was involved in a discussion of semantics. Counsel for the accused, Mr Amten for Bwarame and Ms Taoaba for Nikuata, took the point that the word “bunora” which the Investigating Officer used to the accused for rape, means merely sexual intercourse.

I was surprised to be told that there is no Kiribati word for “rape”. I notice, though, in “An English – Gilbertese Vocabulary” compiled in the 1940’s by the Rev G H Eastman of the London Missionary Society, “rape” is translated “Te Kabainrang”. Perhaps that word has gone out of use. During final addresses I asked the Interpreter, Mr Vincent Tong, what word he had used when reading out the charge before each accused pleaded. Mr Tong said he used “taua” (another word meaning sexual intercourse) relying on the particulars to make it clear to the accused that he was being charged with sexual intercourse without consent.

Each caution statement contains an admission, in the English translation, of rape. Defence counsel in their cross examination put to Det Tebanea that their clients admitted to sexual intercourse and that’s all: neither accused had been told that the allegation was of intercourse without consent. The point having been raised neither on the voir dire nor in examination in chief, I allowed Ms Tebao, the acting Director of Public Prosecutions, further to examine Det Tebanea. The detective said he had explained to each that they were charged with sexual intercourse without consent: each appeared to understand and neither asked any questions about it. Neither accused when giving evidence was asked anything about whether he understood at the time he gave his caution statement that the complaint against him was of sexual intercourse without consent. I am satisfied beyond reasonable doubt that each understood, when he gave his statement, what was alleged against him. Each made a confession of rape.

To his credit, each accused gave evidence but neither was impressive. Perhaps it was unfortunate for Bwarame that last week he was a principal prosecution witness in another trial (concerning a quite different matter). Then I found him a good, reliable witness. The contrast in the way he gave evidence in this trial could hardly have been greater. This time he was evasive, hesitant and contradictory. Nikuata was unimpressive, too. He contradicted Bwarame and Tataake in some things. Nikuata admitted he was very drunk: even when drunk he acted rationally and could recall things: Meere had come to him for sexual intercourse: that’s how he got the idea. It was the first time he had met her. “I was drunk and I thought she was a young lady”!

Of course neither accused had to prove anything but having heard Bwarame and Nikuata I am satisfied the Republic has discharged beyond reasonable doubt the onus of proving its case against them.

Each of the confessions and the evidence of Nei Meere, Nei Tataake and Tio was enough to prove their guilt. As it is, there is both the evidence of what happened and the confessions.

Each accused is guilty as charged.

Dated the 30^th day of May 2002

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE