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

HIGH COURT CRIM CASE 21 OF 2011

BETWEEN:

THE REPUBLIC
PROSECUTION

AND:

TIITO MATAKITE
ACCUSED

FOR PROSECUTION: TABURUEA RUBETAAKE
FOR ACCUSED: ARIAN ARINTETAAKE
Date of Hearing: 29 May 2012

JUDGMENT

The accused, Tiito Matakite was charged with two counts namely;

Count 1:

-	Attempted Rape contrary to section 130 of the Penal Code, Cap 67

Particulars of the offence;

Tiito Matakite on the 28 of October 2010 between the hours of 12 pm and 1300, at Tabiang village, Abemama in Kiribati, attempted to have unlawful sexual intercourse with a woman namely Nei Maryanne Ioane.

Count 2:

-	Common Assault contrary to section 237 of the Penal Code, Cap 67

Particulars of the offence;

Tiito Matakite on the 28 of October 2010 between the hours of 12oo and 1300, at Tabiang village, Abemama in Kiribati, unlawfully assaulted a woman namely Nei Maryann Ioane.

The prosecution called three witnesses, namely Nei Maryanne Ioane (the victim), Nei Bwaratita Kakiabo, and Nei Tebwereiti Tiare. 

Nei Maryanne, the victim, testified as follows (when examined in chief and cross examined);

Chatting with two lady friends, Nei Tebwereiti and Nei Bwaratita. Tiito Matakite came…asked me to sleep at my house as cannot sleep at his own house as he was drunk as was afraid of his father- in-law, no one at my house that time…I said yes…remembered my purse in house... I quickly went before him to get purse…he came in after me…. I took my purse... Tiito asked for mat and pillow... asked me to help spread mat for him...did that…gave him pillow, held on to my hand and pulled me down to mat...I fell on the mat…was surprised when he did that to me…usually called him a brother, not related by blood but our families have tie relations. He told me to have sexual intercourse with him. I said no...he punched me on side of shoulder, held me down….took his pant off. He said that if I shout he will punch my neck…went on top of me…tried to inset his penis in my vagina…could feel his penis…I struggled with him…penis did not enter my vagina as I pushed him away and lied to him that will meet him in the bush to have sexual intercouse…he put his pant on and left to the bush…I quickly ran away to my two friends, I was afraid…reached friends, Tebwereiti and Bwaratita….I told them what had happened. This happened around 12-1pm, midday.

Tiito denied that any such incident ever took place. His story is as follows;

Saw Maryanne chatting with her two friends, Tebwereiti and Bwaratita. Called her, she came. Wanted to know whether her husband was at home. She told me to take the lead to her house. Reached house, both sitting on mat, very far from each other, asked her for another time together, she told me to take the lead to the bush, never force her or tried to do any of the things she claimed I did to her. Had relations with her before…we plan to become couples after my return from 'te runga' (inter island football competition usually held in Tarawa, the capital), I did not fulfill this agreement maybe that was why Maryanne was angry and made up stories about me that I tried to rape her.

Evidences from both Tebwereiti and Bwaratita were quite similar. Both of them testified that they were with Maryanne when Tiito arrived. He called Maryanne. Maryanne went to him. They were chatting and both went to Maryanne's house. After a while Maryanne came back, running from the beach. She looked frightened, her voice was shaky when she talked to us, and she told them that Tiito tried to rape her.

Accused claimed that because the two witnesses were related to Maryanne their stories were not to be believed as they only wanted to help Maryanne. From listening to these two witnesses, I do not think that they had lied in court, or that they only said what they had to say for the sake of their relative, Maryanne. Their stories are evidences of recent complaint. I believe that they were telling the truth. That Maryanne looked frightened, her hair was messy and her voice was shaky when she ran back to them. This definitely means that something terrible was done to her for her to come to these stages. 

THE LAW

For an offence of attempted rape there are two elements to be proved beyond reasonable doubt. These are as follows;

-	there must be an overt act, and 
-	there must be an intention to rape when a defendant commits an overt act.

Was there an overt act? There were two contradicting stories, the victim's story that there was an overt act, and the accused's story denying it. The two prosecution witnesses stories indicating that there was something done to Maryanne that had resulted her to come to a stage where she was frightened, voice shaky and hair messy. I mentioned above that I believed their stories. I also believed Maryanne's story over Tiito's. She was a good witness. Counsel for the accused tried to establish discrepancies in her stories by comparing her evidence in court with her two statements with the police, I do not think that they matter much or that they made a big difference. When re-examined, she (victim) stated that it was her first experience with the police and it could have been possible that she forgot to inform them some details when was interviewed.

Next question-was there an intention to rape? Counsel for the accused submitted that there was no evidence of erection therefore no intention. She referred the Court to the case of R v Terieta HCCrC 34/2004. I agree that an erection could have been an indication of intent. There are also other factors that could also show intention which varies from case to case. In this case I believe that the prosecution had made out a prima facie case of attempted rape. The evidence of the force, the taking down of the pant and the taking out of the penis all lead to an intention to commit rape. 
The accused is guilty of attempted rape and common assault.

Dated 23rd July 2012.

…………………………………….
TETIRO M SEMILOTA
COMMISSIONER OF THE HIGH COURT