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

HIGH COURT CRIMINAL CASE 57 OF 2010

THE REPUBLIC

V

ETERIKA IANGAIBO
TIITERA TEBWEBWE

Ms Tewiia Tawita for the Republic
Mr Raweita Beniata for the 1st Accused
Ms Elsie Karakaua for the 2nd Accused

BEFORE: THE HON SIR JOHN MURIA CJ

Date of Hearing: 20 JULY 2011
Date of Judgment: 22 July 2011

JUDGMENT

Muria CJ: The accused, Tiitera Tebwebwe was initially jointly charged together with one Eterika Iangaibo with the offence of rape. The prosecution alleged that the two accused had sexual intercourse with the victim, Nei Kotee Boorau without her consent. At the commencement of the trial the prosecution decided to Nolle the charge against the first accused because they were unable to secure their key witness against him. The first accused Eterika Iangaibo, was discharged. 

The case proceeded against the second accused, Tiitera Tebwebwe, whom I shall now referred to as "the accused" in this judgment. 

I remind myself that the prosecution bears the burden throughout, of establishing the guilt of the accused beyond reasonable doubt. If I have my doubt, such doubt must be resolved in favour of the accused. 

Facts not in dispute 

There are certain facts in this case that are not in dispute. On 6 October 2009, the accused, the victim, Eterika Iangaibo and other friends were drinking locally brewed liquor made from fermented yeast, at Ambo village, on South Tarawa, at the house of Tokakia and Reiati. The victim was drunk. When their drinks ran out, the other friends went to get some more drinks while the victim went inside the house to sleep. 

While the victim was in the house, lying down asleep, the accused went into the house, and had sexual intercourse with the victim. Both were naked. Not only those who went to fetch some more drinks, returned and saw the accused and the victim having sex, but also other people came to the scene and saw them having sex, both fully naked. 

Sexual intercourse between the accused and the victim is a found fact in this case. The accused himself did not seek to deny it but agreed he had sexual intercourse with the victim. 

The issue in dispute

The only issue left for the court is one of consent to the sexual intercourse. The defence staunchly argue, that the accused had sexual intercourse with the victim with her consent. 

To resolve this issue, I shall now turn to the evidence. 

The evidence 

The prosecution called three witnesses. 
The first is the victim, Nei Kotee Boorau. Her evidence is that she had been drinking with another girl, the accused and another man on 6 October 2009 between 9.00am and 10.00am. She said that she was fully drunk and went to sleep. While she was sleeping, she said she dream someone was asking her for sex. She opened her eyes and saw that someone who was asking her. 

It was the accused. She said that when she woke up, she saw the accused lying on top of her thrusting his buttocks up and down as he was inserting his penis into her vagina. She said that she tried to push him away. 

In cross examination she was asked if she only pushed the accused away when she saw Tokamari and other people watching her that's when I knew I was in danger". 

After that Tokamari took her away to another house and from there they called the police. 

The second prosecution's witness Teeua Raitinnang (PW2) was the other girl who was also with the victim and the other boys. She went with the others to get more drinks. When she came, she saw the accused and the victim having sexual intercourse, fully naked. She said that she woke the victim up and gave the victim her clothes. The victim wore her clothes and so did the accused. She helped Tokamari to take the victim to her house. 
PW2 was the one who rang the police. 

The third prosecution's witness is Nei Tokamari Nawere (PW3). Her evidence is that it was her mother who told her about the incident. She then went to where the victim and accused were, and found them still having sexual intercourse. They were both naked. She then took the victim to her house. 

Asked in cross examination if she saw the victim made any resistance. She said that she did not know. She further sated that it was she that asked the victim to release herself from the accused, while she did. 

For the defence, only the accused gave evidence on his own behalf. His evidence is that he had been drinking with the victim, PW2 and Eterika. After the others left to get more drinks, Eterika went into the house where the victim was lying down asleep, and that he saw Eterika undressed the victim and had sexual intercourse with her. 

He said, after that, Eterika told him to go to the victim and to have sex with her. The accused went and asked the Victim if it was alright for him to have sex with her. The accused said that the Victim did not say anything but only "nodded" her head in agreement. He then had sexual intercourse with her. 

The accused's evidence is that the Victim only pushed him away when those who went to fetch more drinks arrived, as well as the others, and saw them having sex. 

Asked in cross examination if the Victim was fully drunk, he said, that they just had drinks with her. Asked by prosecution if he saw Eterika had sexual intercourse with the Victim, he said "Yes" because it was very close to where he was and that he saw them both naked. Again asked in cross examination if the Victim was awake when he had sex with her, the accused said that she was already awake after Eterika had sex with her. He reiterated in cross examination that he asked the Victim if she was willing to have sex with him and that she "nodded" in agreement. 

Assessment of evidence 

Although the charge against the first accused, Eterika Iangaibo, had been nolled, and so, no evidence can be laid against him in this trial, I have to accept the undisputed evidence of the accused in this case that on 6 October 2009, Eterika Iangaibo first had sexual intercourse with the Victim and followed by the accused. It was in fact part of the prosecution's case against both accused, until the nolle was made. 

It is a salient features of the accussed's evidence that cannot be ignored for the purpose of his own defence. This part of the accused's evidence, in my view, features both his admission of having committed the act complained of as well as forming part of the basis for his defence of consent. 

I observed the victim (PW1) gave her evidence. She appears to the court to be struggling to put her story coherently. Understandably, the incident took place almost two years ago and at the time she had been drinking. However, I do not think that her recollections of the events of what happened on 6 October 2009 were so marred by the lapse of time. 

The prosecution's case is that the Victim did not give her consent to the accused to have sex with her because she was "fully drunk" and was "sleeping" and that the accused simply took advantage of her insobriety or sturpefaction and sleep. Hence she was incapable of giving consent, so 

The first nail into the prosecution case was planted by the Victim herself when she said he heard in her dream that someone was asking her for sex. She opened her eyes and actually saw that someone (the accused) who was asking her for sex. That clearly confirms the accused's evidence that he first, asked the Victim if it was alright to have sex with her. Far from being a dream, the Victim was in my view, consciously attuned and did hear the request by the accused to have sex with her. 

Secondly, and consistent with the accused's evidence that she did not say anything but simply nodded her head, was due to the fact that she was sleeping, because she had been drinking. 

The second nail into the prosecution's case comes when one sees the evidence of the other two prosecution's witnesses (PW2 and PW3). Their evidence clearly shows that it was when those who went to fetch more drinks and others came and saw the accused and Victim having sexual intercourse that they stopped having sex and she pushed the accused away. Her evidence in cross examination is apt here: 

 "Q: When you saw Tokamari and other people you pushed the accused away?
 A: Yes, when I opened my eyes I saw Tokamari and other people watching them. That's when I knew I was in danger". 

That piece of evidence is not consistent with unconsenting sexual intercourse. 

They then stopped having sex and put on their clothes. The Victim was taken away to a house. 

The third nail into the prosecution case comes about when the Victim says in cross examination that she woke up and saw the accused on top of her. She pushed him away just to recognize him. Thus the only time they completely stopped having sexual intercourse was when the on-lookers were watching them. 

The final nail into the prosecution case in the suggestion by the defence in cross examination that the Victim did not make any attempt to have medical examination. To that suggestion, the Victim accepted that she did not make any attempt for medical check because she knew what happened. May be she was not asked to go for medical examination. But her answer speaks very little of someone who is aggrieved of being raped. 

Whether there is consent. 
The prosecution bears the burden of proving the absence of consent by reason of the Victim's state of intoxication and drunken sleep. 

Ms Tawita of Counsel for prosecutor cited the decision of the Court of Criminal Appeal of the Supreme Court of South Australia in R-v- Blayney and Blayney [2003] SASC 405. 

It must be noted that consent or permission to have sexual intercourse with a woman must be given consciously, so that if such consent or permission is given by force or out of fear of bodily harm, then that is no consent or permission. That is clear from the case law authorities. See R-v Camplin (1845) 1 Cox CC 220; Likewise a woman who is so intoxicated or in such a state of sleep so as to be incapable of making up her mind consciously is incapable of giving consent: See R-v- Francis [1993] 2 Qd R 300. 

However, as pointed out in R-v- Blayney and Blayney, it is a question of fact to determine the level of intoxication or state of sleep and whether the victim consented to sexual intercourse. In this regard the court went on to state: 

 "It is necessary to distinguish between cases where the Intoxication is so gross that the complainant is unable to consent and those cases where the complainant Is not so severely intoxicated and the consent to sexual Intercourse either because her inhibitions are reduced or for any other reason". 

The above advice is necessary in the present case. It is important to ascertain the level of drunkenness or intoxication of the Victim. That has to be done on the evidence before the court. The burden is on the prosecution to establish by evidence the degree of drunkenness of the Victim so as to show the absence of consent. 

The evidence in this case on the Victim's state of drunkenness came from herself. She said between 9.00am and 10.00am on 6 October 2009. She was drinking with another man. She said she was fully drunk and went to sleep. There was very little evidence or no evidence at all from PW2 as to how much drunk the Victim consumed, except that she said the Victim "looked very drunk", an observation she made after she came back from fetching more drinks, and finding the accused and Victim having sex. The evidence of PW3 does not help at all in ascertaining the state of the Victim's intoxication. The accused's evidence simply states that he, PW2, the Victim and Eterika were drinking at around 9.00am on 6 October 2009. 

The evidence before the court, in my judgment shows no more than the fact that the accused, the Victim and others were drinking "fermented yeast" between 9.00am and 10.00am and that the Victim went to have a sleep because she felt drunk. There was no evidence to show that she was in a state of drunken stupefaction such as to make her completely unconscious or unaware of what was taking place. The state of her drunkenness or sleepiness was only such as to reduce her inhibitions, if any, because on the evidence, the court is satisfied that she "nodded" in agreement when the accused asked her to have sex. That is consent, whether it was given under reduced inhibitions because of drunkenness, it was still consent. 

The prosecution suggested that the Victim's story that she did not consent to having sexual intercourse with the accused was corroborated by PW2's evidence. I have searched PW2's evidence but I have been unable to find that corroborating evidence suggested by the prosecution. There is none. 

The case of R-v-Blayney and Blayney on its facts is completely different from the present case: In that case the Victim was grossly intoxicated to the extent that she could not remember any act of sexual intercourse. There was no evidence of consumption of various drinks of brandy, mixed spirits, shots of skolling liquors during the whole night party. 

She was not sure when she woke up if anything happened to her at all at the night in question. She was so grossly intoxicated that she was in a drunken sleep or stupor and the accused took advantage of her. 

The evidence in the present case does not support such a scenario as the prosecution attempted to show in this case. 

Conclusion 

When all these circumstances and evidence are put together in present case, the court is left very much with a lurking doubt on the guilt of the accused. The prosecution, in my judgment, have been unable to demonstrate the absence of consent in this case beyond a reasonable doubt. That therefore must be resolved in favour of the accused. 

The only conclusion open to the court is to find the accused had consensual sexual intercourse with the Victim and so he cannot be guilty of the offence of rape: 

Verdict: 

Accused not guilty. 
Acquitted. 

Dated the 22nd day of July 2011

SIR JOHN MURIA
Chief Justice