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

High Court Criminal Case 15 of 2006

The Republic

v

Nimnang Mariano

For the Republic: Ms Ruria Iteraera
For the Accused: Ms Botika Maitinnara

Date of Hearing: 16 August 2006

REASONS FOR FINDING NO CASE TO ANSWER
(Ex Tempore)

The prosecution has closed its case and I have made it clear to counsel I find the accused has no case to answer.

The accused has been charged with rape. The defence is consent - obvious from the accused’s caution statement admitted by consent and from Ms Maitinnara’s cross examination of the complainant. The accused about 9 o’clock in the evening met - whether for the first time is not clear - the complainant under a breadfruit tree near the Nonouti Betio maneaba. They went together to see the night watchman at the Chamber of Commerce compound. They went to the cemetery where intercourse took place. They went to the accused’s house where there were several people. The accused had something to eat and both went to sleep on a buia. The next morning when the accused left - variously said to be to defecate or to collect his t-shirt from the cemetery - she left and went home. She admits lying at first to her mother that she had spent the night with a girlfriend. When her mother took her to test the story she admitted she had been with the accused. On the complainant’s evidence - the mother was not asked - her mother beat her up. She and her mother went to the police station to make a complaint.

There is no corroboration of the complainant’s story of rape. Her mother, Nei Tereti gave no evidence relevant to intercourse. Nakibae Bakati said in examination in chief that he saw her crying when she and the accused came to the accused’s house and that she complained she had been attacked: punched up. That evidence would have been sufficient for me to find a case to answer but in cross examination Nakibae readily admitted he had made it up.

Dr Ken Reue who examined the complainant said the external appearance of the hymen was normal: it was consistent with penetrating sexual assault. Consistent with but not proof of assault.

I was not impressed by the complainant. She admitted lying to her mother at a time when she could have made a complaint that the accused forced her to have intercourse. She said she was frightened into intercourse by the accused but she took no early opportunity to complain of that to anyone. She spent some hours with the accused going with him to various places.

The intercourse may have been without her consent, her will may have been overborne by threats. On the other hand that may not be so: the intercourse may have been consensual.

I could not on the complainant’s evidence, on the whole prosecution evidence, bring in a verdict of guilty.

That is why I have found the accused has no case to answer.

THE HON ROBIN MILLHOUSE QC
Chief Justice