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Republic v Tebuke [2008] KIHC 29; Criminal Case 30 of 2008 (8 August 2008)

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

High Court Criminal Case 30 of 2008

The Republic

v

Teikori Tebuke

For the Republic: Ms Pauline Beiatau & Ms Taira Timeon
For the Accused: Mr Giles O’Brien-Hartcher

Date of Hearing: 6 August 2008

JUDGMENT

The accused, Teikori Tebuke, has been charged with two counts of indecent assault and one count of buggery. On arraignment he pleaded guilty to the counts of indecent assault but not guilty to buggery.

Particulars of the counts

Count 1

Teikori Tebuke, between the month of July to December 2006, at Temwaiku village on South Tarawa in the Republic of Kiribati unlawfully and indecently assaulted Nei Tengare Kaaua.

Count 2

Teikori Tebuke, between the month of July to December 2006, at Temwaiku village on South Tarawa in the Republic of Kiribati committed buggery by inserting his penis into the anus of Nei Tengare Kaaua.

Count 3

Teikori Tebuke, between the month of July to December 2006, at Temwaiku village on South Tarawa in the Republic of Kiribati unlawfully and indecently assaulted Nei Tengare Kaaua.

The victim, Nei Tengare, is a girl now nearly 14. She had been living for some years with the family of which Teikori is a member. She and he are related, cousins.

It is a masonite house. The family sleeps inside, under two mosquito nets close beside each other. Tengare was under one net with her aunt and her sister. Under the other slept Teikori, his brother and his niece.

Teikori has admitted acts of indecency committed on Tengare when, at night, he went into the mosquito net under which she was sleeping. He denied ever having buggered the girl.

Tengare appeared, as one would expect, embarrassed and shy when giving evidence on such personal matters:-

I was sleeping – awakened when he tried to get rid of my lavalava. Still sleeping when he inserted penis into anus. I slapped him off: he went off. Inside mosquito net with sister asleep. Recognized him – know it was him. Not that long. He was the one who always did things to me. (Examination in chief).

It hurt quite a lot, a great deal – asleep when it happened – woke up – enormous. I didn’t cry out. Silent. Told no one. (Cross examination).

She said he had not put his penis into her vagina but was confronted with her statement to the police (which she had said was accurate) that Teikori had inserted his penis into her vagina.

The prosecution called no other witness.

Teikori gave evidence. It was a denial that he had ever inserted his penis into Tengare’s anus.

During her address I put to Ms Beaitau three points which appeared to be against her.

First. The victim’s evidence was uncorroborated and had been met (on the question of insertion of penis into anus) with a complete denial. A jury may convict on the uncorroborated evidence of a complainant in a sexual case but must be warned that it is dangerous and they should think hard before they do decide to convict.

Second. My confidence in the victim’s reliability was shaken when it came out that she had said one thing in her statement to the police – that he had inserted his penis into her vagina – and in her evidence another – that he had not inserted his penis into her vagina.

Third. It is known insertion of the penis into the anus may be an action both difficult and painful. Yet that is what the victim asserts happened and that, despite great pain, she did not cry out. [She said in re-examination that she did not cry out because she was afraid: he had told her not to tell anyone else about the things he had done to her. Yet it is at the very least a possibility that, because of the pain, crying out would be involuntary.] There was no evidence one way or the other of her struggling or squirming to try to stop the accused. She was able to slap the accused to send him away. It is difficult to believe that Tengare could have remained silent if feeling "enormous" pain and that during the incident she did not move about sufficiently to disturb the others sleeping with her under the same mosquito net.

Ms Beiatau said all she could say to meet the points but finally I am left with doubt, a reasonable doubt, about the accused’s guilt on the charge of buggery.

He is not guilty of it.

Dated the 8th day of August 2008

THE HON ROBIN MILLHOUSE QC
Chief Justice