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Republic v Ioane [2014] KIHC 6; Criminal Case 11 of 2012 (10 April 2014)

IN THE HIGH COURT OF KIRIBATI 2014

CRIMINAL CASE NO. 11 OF 2012
Held at Butaritari

BETWEEN

THE REPUBLIC
PROSECUTOR

AND

TAARETI IOANE
ACCUSED

Before: Hon Chief Justice Sir John Muria

8 & 9 April 2014

Ms Pauline Beiatau for Prosecutor
Ms Arian Arintetaake with Ms Fuatino Noa for Accused

JUDGMENT

Muria CJ: The accused, Taareti Ioane, has been charged with one count of Indecent Assault contrary to section 133(1) of the Penal Code and one count of Entering with Intent to Commit a Felony contrary to section 294(a) of the Penal Code. He pleaded Not Guilty to both counts.

At the commencement of the trial, the defence tendered the Magistrates' Court Minutes which showed that the accused had already been charged with the offence of Criminal Trespass under section 182 of the Penal Code based on the same facts of the events occurring on 11 February 2010. The Court minutes showed that the accused was convicted on his own guilty plea and sentenced to three months imprisonment. Although the offence under section 294(a) carried a heavier penalty than that under section 182, in the circumstances, the prosecution decided to proceed only on the charge of Indecent Assault in count one (1).

The prosecution called three witnesses. The defence was going to call also three witnesses. However, it was obvious that the evidence of two of the defence witnesses were very much on spreading rumours about what the accused was said to have done. It became clear that their evidence would have been irrelevant to the charge of indecent assault. The two witnesses were not eye witnesses or present at the place where the incident took place. The defence decided to call only the accused who gave evidence.

In the Court's view, the only relevant evidence in this case could only have come from three people, namely the victim, her husband and the accused. The victim Nei Maria and her husband, Tekemango, were sleeping together in their 'bwia' when the accused, Taareti Ioane, came to their house at 3.00 am in the night. The evidence of what occurred that may amount to indecent assault committed by the accused, could only relevantly come from those persons. That is the position taken by this Court when dealing with this case.

THE CHARGE

Section 133(1) of the Penal Code under which the accused has been charged provides as follows:

"133(1) Any person who unlawfully and indecently assaults any woman or girl is guilty of a felony, and shall be liable to imprisonment for 5 years".

The maximum sentence is usually reserved for the worst case.

THE EVIDENCE

The evidence of the victim is that at about 3.00 am in the night, while she and her husband were sleeping in their 'bwia', the accused came into their house (bwia). There was no dispute on that evidence.

The victim further testified that she woke up when she felt someone touched or poked her vagina. She said she immediately alerted her husband who was lying beside her, by pinching him. The intruder was said to be in the mosquito net. The victim saw him. The husband woke up and saw the person in the mosquito net. When the person realized that the husband was awake, he went out from the mosquito net and ran away.

The evidence, both from the husband and victim, stated that the husband chased after the intruder and caught him. It was the accused, Taareti Ioane. When the husband caught up with the accused, he asked him what he was doing at that time of the night in their house. The accused simply apologised. The husband did not accept the accused's apology.

The accused gave evidence. He admitted going to the victim and her husband's "bwia" at 3.00 am that night of 11 February 2010. He admitted that his purpose for going to the victim's house was to see the victim and to try "my luck" on her, that is to have sex with the victim. He admitted he had a torch (flashlight) with him that he shone on the victim. He said, however, that as soon as he realized that the victim's husband was awake, he ran away. He denied getting into the mosquito net in which the victim and her husband were sleeping. He also denied touching the victim's vagina.

The accused's case is simply that he went to the 'bwia' where the victim and her husband were sleeping that night in question at about 3 am for the purpose of having sex with the victim. The closest he got to, according to his Caution Statement and his oral evidence, was at the edge of the 'bwia' at "their legs side", to use his words. In other words, he was standing on the ground at the edge of their 'bwia'. He shone his torch into the mosquito net to see the victim and ran away as soon as the husband woke up.

ONLY ONE QUESTION

There is only one question to be answered in this case. It is whether or not the accused touched the victim's vagina. That question must be answered on the evidence before the Court.

I bear in mind that the onus is always on the prosecution to establish the guilt of the accused beyond reasonable doubt. If I have any doubt at all, slight though it may be, the benefit of that doubt must be given to the accused.

I also bear in mind that allegations of sexual nature are easy to make but difficult to refute. That is why corroboration is called for in cases of sexual nature. However, the Court can still convict on the uncorroborated evidence of the victim if the Court is satisfied, so that it is sure, that the victim is telling the truth.

The submission of Ms Beiatau of Counsel for the prosecution is that on the evidence before the Court, the accused had touched the victim's vagina and that his guilt has been proved beyond a reasonable doubt. Counsel submitted that the victim's evidence is corroborated by the husband's evidence as well as by the accused's Caution Statement. I have to say, with some hesitation, however, that the husband's evidence and the accused Caution Statement, in my view clearly support the position that the accused had trespassed on to the premises of the victim and her husband. The husband's evidence also supports the victim's evidence of the accused getting out from the mosquito net. That is as far as his evidence can go.

The evidence of the accused is that he went as far as the edge of their 'bwia' by the side of their legs, and shone his torch into the mosquito net without entering the mosquito net. But even if I am satisfied that on the evidence of the victim and her husband that the accused entered the mosquito net, I still have to be satisfied on the evidence that the accused touched or poked or stroke the victim's vagina. This is where the toss of evidence is really between that of the victim and the accused.

To find that his presence in the mosquito net supports the suggestion that the accused indecently touched or stroke the victim's vagina is to assume that the accused also touched her vagina. I can make that assumption if there is basis for doing so on the evidence. Arguably, the basis is the victim's evidence alone that the accused stroke her vagina. I am entitled to make that assumption, if I accept the veracity of the evidence of the victim. But for the discomfort I have on the victim's evidence, I feel I am not prepared to make that assumption.

The Court is not comfortable to peg the accused's guilt on the evidence of the victim alone that he touched her vagina. Her evidence, especially in cross examination, demonstrates to the Court that there is some lurking doubt as to the veracity of her evidence. Her answers to the questions put to her in cross examination by Ms Arintetaake go something like:

Q: You and your husband were fast asleep?

A: Yes.

Q: Very dark night?

A: Yes.

Q: No light on?

A: No, there was a lamp, lit a little.

Q: You saw a man in the mosquito net.

A: Yes.

Q: You saw him with your eyes?

A: I saw him.

Q: You saw him approaching you from the direction of your legs?

A: Yes.

Q: You were lying down up right?

A: Yes.

Q: He was stroking your vagina?

A: Yes.

Q: Your husband where?

A: Sleeping at my side.

Q: You did not scream?

A: I did not scream.

Q: You did not close your legs?

A: I did not close my legs. I laid down, my legs spread out.

Q: Sleeping close to your husband?

A: Yes.

Q: You laid down, spread your legs and pinching your husband's legs.

A: Yes.

Q: You said to police you pinched your husband's hands, not legs.

A: I pinched my husband's legs.

Q: You are lying?

A: No. I am not telling lies.

Q: You pinched husband's legs or hands? Which one?

A: It's a long time, I forgot.

Q: You slept in mosquito net?

A: Yes.

Q: You saw him poking your vagina?

A: I woke up. I saw him.

Q: You told police he poked your vagina for 15 seconds.

A: Yes.

Q: In that 15 seconds, you did not do anything to avoid accused?

A: No.

Q: Put it to you accused did not touch your vagina?

A: He did.

Q: You made up the story?

A: What I said is true.

The victim and husband said they planned to catch the accused by not panicking or shouting if the accused came and touched her vagina. Such a plan smacks of common decency. Further, the victim allowed the accused 15 seconds to do what he wanted to do, namely, to stroke her vagina before raising the alert with the husband. She did not see the need to take preventative measure by closing her legs. Instead she laid there on her back with her legs spread, allowing 15 seconds for the accused to stroke her vagina and then alert her husband pinching his legs.

One would have thought that as soon as the victim felt the accused touched her vagina she should have alerted the husband instead of waiting 15 seconds for the accused to do his dirty work before raising the alarm.

The clearest offence he committed that night at 3 am, on the evidence, was criminal trespass for which he had already been dealt with by the Magistrates' Court.

The picture given by the victim through her evidence leaves a lurking doubt in the mind of the Court as to the guilt of the accused. The Court must give the benefit of that doubt to the accused.

It is therefore my duty, having regard to the evidence before the Court, to find the accused not guilty and to acquit him of the charge of indecent assault.

VERDICT: Not Guilty.
Accused acquitted.

Dated the 10th day of April 2014

SIR JOHN MURIA
Chief Justice