IN THE HIGH COURT OF KIRIBATI

CRIMINAL CASE NO. 24 OF 2015

		[THE REPUBLIC					PROSECUTOR
		[
BETWEEN	[AND
		[
		[ITINNAIBO ATARAKE				ACCUSED

Before:	The Hon Mr Justice Vincent Zehurikize

6 & 7 September, 6 October, 16, 17 & 30 November 2016

Ms Tewiia Tawita for the Prosecutor
Mr Tabibiri Tentau for the Accused

JUDGMENT

Zehurikize, J:	Itinnaibo Atarake hereinafter called the accused is charged with Rape contrary to section 129 of the Penal Code.

The particulars of the offence are that on 15 November 2014 at Buota village, Tarawa Island the accused had unlawful sexual intercourse with a woman namely Tekouti Anorite without her consent.  The accused pleaded not guilty and thus the case went into full hearing.  The prosecution called and examined three witnesses.  The accused gave evidence and called one witness.

Tekouti Anorite was called as PW1.  Her evidence is to the effect that in the morning of 15 November 2014 she went on a drinking spree with several people at Atata’s place.  There was a house close to the buia they were drinking from.  Time came when she together with Tibou and Nei Mwato together with her partner one Tekanene decided to have sex and the two pairs went to that house near the buia.  She had sex with Tibou but Mwato and Tekanene decided to leave.

After having sex with her Tibou went out.  She also went out and started going home.  But while outside that house the accused and one Teikaiarake met her.  They pushed her back into the house whereupon the accused forced her into sex.  That she was eventually rescued by one Nei Matang.  She saw Mwato and accused her of betraying her.

In cross examination she said that Mwato and Tekanene went to have sex in another house.  Tibou was not her boyfriend but had just met at that time.  She said that although she shouted nobody came to help her.  She said that one Kauriri came around but did not assist.  That there were some children who were watching.

It is Matang her sister-in-law who came and rescued her.  She further told the Court that the accused even assaulted her and her head got swollen.  She denied that she yelled because she was ashamed that Matang found her having sex.  She said that she reported to the Police at around 5pm; and at night Police took her to hospital for examination.  That the examination was at around midnight.

Matang Tiaoti (PW2) told the Court that while at home the child of the victim came to her house and asked her to go and pick the victim from the drinking place.  She went and found the accused having sex with the victim where there were a lot of people watching.  She found the victim calling the name of Natanga the husband of the witness.  He is a brother of the victim.

The accused was having sex and also punching the victim on the forehead.  The witness kicked the door in order to help her.  But it did not open.  It is the accused who opened it.  Then the witness accused the accused of showing off.  She went inside and took the victim away.  She was complaining of pain in the forehead and chest.  In cross examination she denied she was lying because of land dispute.  She said she found many people at the scene.

Mangarita Tarataake alias Mwato (PW3) told the Court that on
15 November 2014 she went with PW1 to the drinking place.  They found there Tibou and Tekanene among others.  They were drinking sour toddy.  Then she (PW3) got tied up with Tekanene as PW1 was with Tibou.  The two pairs decided to enter a nearby house where PW1 and Tibou had sex.  For her and Tekanene did not involve into sex because it was daylight.

She further said that when PW1 had finished playing sex she tried to get out of the house but the accused pushed her back into the house and forced her into sexual intercourse.  She screamed calling one Atang.  Then the one Matang, the wife of Atang came.  She kicked the door and took the victim away.

On going out the victim blamed her (PW3) for betraying her.  PW3 said that she had in fact tried to open the door but could not succeed because it was locked from inside.  She could not kick the door because it did not belong to her.  In cross examination she said she saw the accused tear the victim’s shorts.  That she did not assist her because the victim had already called her brother.

In his defence the accused said that the victim had been drinking the previous night.  He saw her being taken away by Matang (PW2).  But later around 9-10am she came back and joined the drinking group.  While they were drinking Mangarita (PW3) and Tekanene had sex in the nearby house.  Then the victim and Tibou also went and had sex there.  Tekanene and PW3 left leaving the victim and Tibou still having sex.

Then when Tibou came out he told the accused to go in and have his turn.  That he entered the house where he found the victim and he also had sex with her.  That when he was reaching the climax one Kauriri and Itinnaibo came and started cheering them saying “come on, come on”.  It was at this stage that the victim pushed him off saying they were being seen.  He went off the victim and went out.  Then Matang (PW2) came in and took the victim away.  At this time the victim started screaming.  The accused denied forcing her into sex.

In cross examination the accused said that when he entered the house the victim was laying down naked.  He insisted that he did not force her.  That she agreed.

Tibou (DW1) said that the group started drinking around 7 or 8am.  He was part of the group.  They were later joined by the victim and PW3.  He said that he had sex with the victim.  When he finished he told the accused to also go and also have sex with her which he did.  That after the accused had come out the victim created a scene by screaming and that she even tore her shorts.  Then Matang (PW2) took her away.

In cross examination, inter alia, DW1 said that the victim started yelling when Kauriri came.

It is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt.  In a case of rape the prosecution must prove the following ingredients of the offence beyond reasonable doubt:

1.	That there was sexual intercourse with a woman or girl
2.	That that sexual intercourse was without her consent
3.	The participation of the accused

It is not contested that the accused had sex with the victim.  What is in issue is whether the accused had the sexual intercourse with the victim without her consent.

I have had to consider the evidence as a whole to determine which of the two versions is credible.  It appears this to have been a morning of sexual spree by pairs of drunkards.  At least the victim admits having had sex with Tibou in a house near where the group was drinking.  It was in the morning hours but during broad daylight.  Her friend PW3 admittedly paired up with Tekanene.

People gathered around as they were drawn by curiosity to see what was going on.  Even children came around and watched the drama.

PW2 told the Court that while at home the child of the victim came to her house and requested her to go and pick her mother from the drinking place.  She went and found her having sex with the accused and found there a lot of people watching.  It is therefore not true that PW2 was alerted by screaming or yelling from the victim.  It is the child of the victim who alerted her.  This child must have been shocked by what was going on.

If indeed the victim was being forced into sex, at least any of the onlookers would have assisted.  But they were watching.  I believe the victim must have come to the reality when Kauriri started cheering them and when she saw that PW2 the sister in law had come.  It is therefore more probable than not that she made a scene in a bid to cover up the shame.

Even her friend PW3 who was among the people present did not try to rescue her.  Her explanation that she could not kick the door because it did not belong to her is an obvious flimsy excuse.  I believe she never attempted to enter the house because there was no reason for interference.  She herself had just had her own bite of the fruit in the same house.

Further, although PW1 the victim claimed to have been punched on the face and even PW2 indicated she saw her being assaulted by the accused, medical evidence did not support this claim.  No injury was found on her.

The case for the prosecution is shrouded in suspicion so much so that it is incredible.  It would be unsafe to rely on it to convict the accused.  Any doubt in such circumstances would be resolved in favour of the accused.

In the premise I find that the prosecution has failed to prove lack of consent beyond reasonable doubt.  Consequently I find the accused not guilty of Rape contrary to section 129 of the Penal Code and I acquit him accordingly.

Dated the 22nd day of March 2017

THE HON MR JUSTICE VINCENT ZEHURIKIZE
Judge