IN THE HIGH COURT OF KIRIBATI 2013

CRIMINAL CASE NO. 4 OF 2011

BETWEEN:

[THE REPUBLIC
PROSECUTOR

AND

[IEIE RANGAITA
ACCUSED

Before: Hon Chief Justice Sir John Muria

27 June 2013

Ms Tewiia Tawita for Prosecution
Ms Andrea Hadaway for Accused

JUDGMENT

Muria CJ: The accused Ieie Rangaita, has been charged with one count of Indecent Assault contrary to section 133(1) of the Penal Code. He pleaded not guilty.

The evidence for the prosecution comes from the victim herself. By consent, the accused's caution statement was tendered in evidence. The accused gave evidence on his own behalf.

At the end of the day, it is really the word of the victim against that of the accused.

The burden, of course, still lies with the prosecution to prove its case beyond reasonable doubt. Along with this is also the warning which I bear in mind in this case, of the danger of convicting the accused on an uncorroborated evidence of the victim alone, especially in a case of a sexual nature. But, of course, if having heard the evidence of the victim, I am satisfied so that I am completely sure that the complainant victim is telling the truth, then I can convict on her own evidence alone.

The accused admitted in his caution statement and in Court that he touched the victim's vagina. He, however, stated that he did not intend to touch her vagina. He said that it was an accident.

In support of his defence of accidental touching of the victim's vagina, Ms Hadaway of Counsel for the accused, submitted the following factual scenario as appeared on the evidence. First, the accused mistook the victim for one Nei Matiteba whom the accused knew. He reached out his hand to touch her on her side, and accidentally touched her vagina. Secondly, it is submitted that the accused realized his mistake and apologised to the victim. Thirdly, the accused's story to the police was consistent to what he said in Court. Fourthly, the accused's state of intoxication supports the suggestion that he did not intend to indecently touch the victim. Fifthly, it is said that in a crowded public bus, touching someone, such as the victim, on a bus was all part of the 'vicissitudes of life' and would not be objectionable.

Ms Tawita of Counsel for the prosecution on the other hand, submitted that the accused deliberately touched the victim's vagina. Counsel relied on the evidence of the victim who stated:

"The man boarded the bus, sat next to me, looked at him with an impression that I was uncomfortable at. Looked at me, from my feet to head, I hated him, I tried not to look at him, I did not know this man, at St John Bosco I stopped the bus, got off the bus, asked him to move his legs as I wanted to get off the bus, he did not move his legs, I raised my leg over his legs to pass him, there he touched my vagina, got mad, cried and scolded at him, there he apologised he wasn't meant to it", "he tried to escape, one man blocked as to avoid him from escaping and pushed him back to his seat".

The sitting positions of the accused and victim in the bus is an important factor. The victim sat near the window next to the accused on the seat behind the driver. The accused also confirmed in his caution statement that he sat on a seat behind the driver. She had to get up and pass the accused before getting off the bus. She excused herself to be given way to pass the accused. Her evidence was that the accused did not make way and so she had to raise her legs to walk over the legs of the accused. She did so and it was then that the accused touched her vagina. She was angry and scolded the accused.

The victim did not say which hand the accused touched her vagina with. It was the accused himself who admitted to the police at the police station that he "touched her vagina with my right thumb" as she crossed over his legs. The accused's immediate excuse was that he mistook her for another girl whom he knew from Bairiki. The accident, if it was an accident, was not the act of touching the vagina of the victim, but the victim herself.

The clear picture presented by the evidence is that the accused deliberately refused to give way to the victim to pass him to go out from the bus. He deliberately touched the victim's vagina with his right thumb. That is not accidental indecent assault as claimed by the accused. His mistaken belief that the victim was another girl is no defence. A mistaken victim is no defence in the present case.

Counsel for the accused made reference to the statement made by the victim's brother to the police. That statement, although tendered without objection, is not admissible evidence in this case and cannot be relied upon. In any case, it is of no help to the accused.

The accused's version of touching the victim to her side but accidentally touched her vagina is a concoction that cannot be believed. It does not fit well with his own words that he touched the victim's vagina with his right thumb.

I do not accept the suggestion that the accused's drunken stupefaction diminished his ability to decide to do what he did to the victim in the bus. On the contrary, alcohol was the catalyst for him to do what he did to the victim. 

The evidence in this case boils down to whose version is to be believed. 

Bearing in mind the warning on the danger of convicting an accused on the evidence of the victim alone in sexual offences, I am of the view that the victim told the truth in Court. Her evidence is coherent, unshaken and has the ring of truth around it. I do not accept the accused's story which was an attempt to hide the truth of what he did to the victim in the bus on the day in question.

I am satisfied so that I am completely sure on the evidence before the Court that the accused unlawfully and indecently assaulted the victim in this case. 

I find him guilty and convict him accordingly.

Dated the 1st day of July 2013

SIR JOHN MURIA
Chief Justice