High Court of Kiribati
Criminal Case № 9/2018
THE REPUBLIC
v
BITIAUOKI TEMERIA
Tewia Tawita, Senior State Attorney, for the Republic
Teetua Tewera for the accused
Dates of hearing:	7-8 August 2018
Date of decision:	10 August 2018
JUDGMENT
[1]	The accused is charged with 1 count of attempted rape, contrary to section 130 of the Penal Code (Cap.67). He has pleaded not guilty.
[2]	The information in this case was originally filed on 13 December 2017. When the matter was mentioned before me on 16 July 2018, counsel for the accused advised that he would be applying for the information to be quashed, on the ground that it failed to comply with section 70 of the Criminal Procedure Code (Cap.17) (see Republic v Manibwewe Baon and anor). By the next mention date, the Attorney-General had rectified the defect by filing a fresh information, dated 18 July 2018 and signed by her. The trial proceeded on the fresh information without further objection.
[3]	On the morning of the first day of the trial, counsel for the prosecution advised that the investigating police officer was in Kiritimati and not available to testify. She said that she was in discussions with counsel for the accused on the possibility of admitting into evidence by consent the statement given by the accused under caution. I raised the alternative available to the prosecution of calling instead the police officer who assisted the investigating officer in taking the statement. The trial then got underway.
[4]	Four witnesses were called for the prosecution. Tanouea Betiraoi, a 17-year-old student, testified that she had been walking back to her house in Bikenibeu in the afternoon of 7 July 2017 when she saw children throwing stones onto the roof of an unoccupied government house. She went to investigate and observed through one of the windows a man lying on top of a woman inside one of the rooms of the house. They appeared to be having sex, while a crowd of children watched from outside the house. The man, who she later identified as the accused, had a t-shirt on but his shorts were unzipped. The woman, who she knew as a fellow student from school, appeared to be very drunk and “uncomfortable”.
[5]	Tanouea observed the accused move down and place his mouth on the woman’s vagina. The accused then stood up and came outside to chase the children away, before returning to his previous position on top of the woman. When some adults arrived to find out what was happening, the accused stopped what he had been doing and went outside again. Tanouea then went into the room and helped the woman up and outside to clean up in the sea. The woman appeared to be very drunk and was staggering when she walked. She did not make sense when she talked, and was very dirty and covered in vomit. After washing in the sea, the woman went off in the direction of her home, accompanied by the accused.
[6]	Tanouea agreed with the suggestion from counsel for the accused that the woman did not seem distressed and did not at any time call for help. She also agreed that it appeared that the woman was a willing participant and that there was no evidence of coercion on the part of the accused.
[7]	The second witness for the prosecution was the complainant, Tabweiti Burataake, aged 18 years. She testified that, on the morning of 7 July 2017, she went to the Sunrise store in Bikenibeu, planning to buy a school bag. There she met the accused, who lived in her neighbourhood. He was drunk. The complainant said that she had seen him around before but had not spoken with him prior to the day in question.
[8]	The complainant testified that the accused suggested that she accompany him to go and buy alcohol in the Nei Kaue area of Bikenibeu. She said that she was afraid but thought that it would not take long. They went to the house of an old man named Bwaraniko, where she drank sour toddy with the accused. After about an hour she went with the accused and Bwaraniko to drink on the beach, until it began to rain. They then went and continued drinking in an abandoned government house. She estimated that she consumed a single 1.5 litre bottle of sour toddy over the course of several hours. The complainant described an instance during the afternoon where the accused flirted with her – poking her in the ribs – an advance she rebuffed.
[9]	While they were at the house she went into another room to urinate, without realising that the accused was also there for the same purpose. She testified that she did not know that he was there until after she finished urinating. The accused turned around and saw her. As the complainant got to her feet, the accused walked up to her and kissed her on the lips. She tried to get away from the accused, but he blocked her with his arms on either side of her; her back was to the wall. She tried to duck under his arms but fell to the ground. The accused got on top of her and began sucking on her breast. The complainant tried to push him away, without success.
[10]	The accused was trying to extract his penis through the zipper of his pants. He removed her shorts, but her underpants remained on. She could see his penis and believed that the accused was going to have sex with her, so she covered her vagina with her hands. The accused was lying on top of her, thrusting his hips, but her hands were blocking him. She asked the accused to have pity on her, as she was just a student. “What if I get pregnant?” she asked. With the motion her underpants had rolled down by themselves; the elastic was worn or broken. She continued to try and push the accused away.
[11]	After a short while she heard the children outside the house. The accused went outside to chase them away. The complainant testified that she wanted to run away, but she was too drunk to manage. She was lying on the ground, trying to pull up her underpants. She managed to stand, and recalled Tanouea coming into the room to help her. They went to the sea so that she could clean herself up. She then went back to her house, accompanied by the accused. The complainant denied having any relationship with the accused and insisted that she did not consent to what the accused had done.
[12]	Under cross-examination, further details emerged and some of the details of the complainant’s story changed. She conceded that she and the accused were better acquainted than she had initially revealed. They had met some days earlier and made plans to go and drink sour toddy together that day. The meeting at Sunrise store was not a coincidence. The complainant admitted that, when she and the accused had kissed in the house, she was a willing participant. They kissed for 2 minutes. The accused removed her shorts and lowered her to the ground. The accused then lay on top of her and began thrusting his hips. When she told the accused that she did not want to get pregnant, he stopped thrusting and moved down and started licking her vagina. She said that she did not consent to that, but did not do anything to stop the accused, who continued licking her vagina for about 3 minutes. The complainant agreed that at no time had she called for help. She conceded that she had not wanted to bring the complaint against the accused, but that she had done so at the urging of her aunty, with whom she was living.
[13]	In re-examination, matters got a little more complicated. Despite her evidence under cross-examination that the accused had stopped thrusting his hips when she had raised her pregnancy concerns, during re-examination she insisted that he had continued thrusting and that, at one point, some of his penis had entered her vagina.
[14]	The third prosecution witness was Tairati Tekimwa, a 17-year-old student. Tairati was living in the Nei Kaue area of Bikenibeu last year. On the afternoon of 7 July he was returning home from surfing when he saw a crowd at an unoccupied government house. He looked through a window and saw what appeared to be a man and a woman having sex. He did not know the couple, but identified the accused as the man he saw on that day. He saw the accused on top of the woman, thrusting his hips. Tairati testified that he heard the woman tell the accused that she needed to urinate, and saw her try to push him away. The accused kept thrusting. At some point the accused came outside to chase the watching children away, before going back inside the house. A lot more people came to the scene and the accused left. Another woman went into the house to assist the first woman, who appeared to be very drunk. She needed help to stand up, and she was staggering. They went to the sea so that the first woman could clean up. Other than the attempt to push the accused away, Tairati did not see the woman offer any resistance to the accused.
[15]	The fourth prosecution witness was a leader from one of the communities in the Nei Kaue area, Karua Kaben. It transpired that she was not in a position to offer any admissible evidence regarding the matter before the court.
[16]	Counsel for the prosecution then informed the court that her final witness – the police officer who had counter-signed the statement given by the accused under caution – was not present. He was believed to be in Bikenibeu. She asked for an adjournment to enable him to attend. I reminded counsel that I had raised the issue with her that morning, and was not prepared to adjourn for long. In the end, court adjourned for 30 minutes. When we resumed, counsel for the Republic closed the prosecution case.
[17]	Counsel for the accused then applied for a ruling that the accused had no case to answer. He made his application by reference to section 195 of the Criminal Procedure Code. I pointed out to counsel that section 195 is located in Part VI of the Code – Procedure in trials before Magistrates’ Courts. The relevant provision of the Code for trials before the High Court is actually section 256(1) (in Part VIII, Procedure in trials before the High Court on information). It appears that the Court of Appeal fell into the same error in its leading decision on submissions of no case to answer, Republic v Edward Narayan and anor. This is significant, because Sections 195 and 256(1) take markedly different approaches to the issue. Section 195 of the Code provides as follows:
195	Acquittal of accused person where no case to answer
	If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit the accused.
[18]	Whereas section 256(1) provides:
256	Close of case for prosecution
(1)	When the evidence of the witnesses for the prosecution has been concluded, and the statement or evidence (if any) of the accused person before the committing court has been given in evidence, the court, if it considers that there is no evidence that the accused or any one of several accused committed the offence, shall, after hearing, if necessary, any arguments which the public prosecutor or advocate for the prosecution or the advocate or other person defending him may desire to submit, record a finding of not guilty.
[19]	For a ‘no case’ submission to succeed in a trial before the High Court, the court must conclude that there is no evidence that the accused committed the offence. This would appear to set a higher bar than even the approach taken in the leading English case of R v Galbraith. The Court of Appeal in Edward Narayan considered that Galbraith had no application in Kiribati, and that a court here is entitled to weigh not only the sufficiency of the evidence against an accused person at the end of the prosecution case, but also the reliability of that evidence. With respect to the learned Judges of the Court of Appeal, given that they were clearly labouring under the misapprehension that section 195 was the relevant section, I consider that I am not bound by the Court’s decision in Edward Narayan.
[20]	The meaning of section 256(1) is clear – a submission of ‘no case’ can only succeed if there is no evidence at all that the accused committed the offence. This determination should be made by taking the evidence from the prosecution witnesses ‘at its highest’, and putting to one side any concerns I may have regarding the veracity of any or all of the witnesses.
[21]	Applying that test to the prosecution evidence in the present case, I rejected the ‘no case’ submission from counsel for the accused. I then informed the accused of his rights, as required by section 256(2) of the Code. The accused elected to give evidence on oath in his own defence. No other defence witnesses were called.
[22]	The accused is a 40-year-old man. On 7 July last year he worked a shift from midnight to 6:00am as a security guard at Te Meeria mental health ward in Bikenibeu. He returned home at about 9:00am on that day. He slept for a while before getting some money and paying his electricity bill. After that he went to the Nei Kaue area to drink sour toddy. He consumed 2 bottles of sour toddy, each 1.5 litres. He then went to do some shopping at the Sunrise store in Bikenibeu.
[23]	At the Sunrise store he saw the complainant. He did not know her name, but they had been drinking sour toddy together a week previously. He had made plans with her to meet up and do that again, if he had some money. On seeing him again at the Sunrise store, the complainant told the accused that she wanted to go drinking with him, as they had planned. He agreed. He went to the house of Bwaraniko in Nei Kaue to drink, while she stayed at the store to look for a school bag.
[24]	About 30 minutes later, the complainant joined them at Bwaraniko’s house. It was just the 3 of them – the complainant, the accused and Bwaraniko. After they had each finished a 1.5 litre bottle of sour toddy, they went to the seawall nearby. The accused bought 3 more 1.5 litre bottles of sour toddy; 1 for each of them. When they had finished their drink, it began to rain. The group moved to an unoccupied government house, to keep drinking. They were joined by 2 other men, whose names the accused does not know. The new arrivals only stayed for about 30 minutes and, when they left, Bwaraniko left too.
[25]	By that time, the complainant had finished 3 1.5 litre bottles of sour toddy, over the course of a few hours. She was very drunk. She was having trouble walking, but was still making sense. She was lying on the legs of the accused. He told her to get up because he needed to go and urinate. He went into another room of the house and began urinating against the wall. When he finished and turned around, he was surprised to see the complainant behind him. They bumped into each other and fell down. He kissed her, and she pushed him away. They stood up, embraced, and he kissed her again, this time without resistance. He was becoming aroused.
[26]	The accused asked the complainant if he could take off her shorts. She asked if anyone was around. He replied in the negative. He lowered her shorts, but didn’t remove them completely. He pulled out his penis through the zipper of his long pants. She lay down and he lay on top of her. They continued kissing. He sucked on her breasts. He told the complainant that he wanted to have sexual intercourse with her. He realised that she did not want to have sex, because she would not let him remove her underpants, and blocked her vagina with her hands.
[27]	The accused asked the complainant if he could rub his penis between her thighs (non-penetrative sex, or simulated sex, sometimes called ‘outercourse’ – in the Kiribati language it is called te bwaanna). She asked if she could get pregnant from that, and he told her that she could not. He began thrusting. The movement caused the complainant’s underpants to roll down, because the elastic was loose or broken. During the simulated sex the complainant did not object, and she was embracing the accused. He moved down and licked her vagina. He went to resume the simulated sex, but the complainant pushed his head back down to her vagina.
[28]	When they heard the voices of the people outside, the complainant stopped the accused. He went outside and chased the watching children away. He went back inside and helped the complainant to put her clothes on. That was when Tanouea came in and helped the complainant to clean up. After she had washed herself in the sea she walked home, with the accused following behind. She said to the accused, “Don’t tell anyone.”
[29]	Under cross-examination, the accused readily admitted that, when they had been alone in the house together, he had wanted to have sexual intercourse with the complainant. He said that when he realised that she did not consent to that, he was content to have simulated sexual intercourse with her instead. However, he also admitted that, at some point while he was simulating sex after the complainant’s underpants had rolled down, his penis entered her vagina. It was “only a bit” of the penis – not the full length.
[30]	At that point I stopped the cross-examination of the accused. I raised with counsel the fact that both the complainant and the accused had testified that there had been penetration of the complainant’s vagina by the accused’s penis. I adjourned for lunch, and asked both counsel to research the question of whether, on the trial of an accused for an attempt, I could convict if the evidence showed that the substantive offence had actually been completed.
[31]	My concern stemmed from the fact that section 371(1) of the Penal Code defines an attempt as follows:
371										Attempt defined
(1)	When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence. [emphasis mine]
[32]	On resuming after the break, I raised with counsel the decision of the Queensland Court of Criminal Appeal in R v Barbeler on a case stated from the Minister for Justice and Attorney-General to answer the following question:
Whether an accused person who has been charged with committing an offence cannot be convicted of attempting to commit that offence unless the jury is satisfied, inter alia, beyond a reasonable doubt that the offence charged has not been committed.
[33]	The Court of Criminal Appeal considered the language of the first paragraph of section 4 of the Queensland Criminal Code, which is in almost identical terms to section 371(1) of our Penal Code. The court at first instance had held that:
[A]n accused may not be convicted of an attempt to commit an offence unless a jury be satisfied inter alia beyond reasonable doubt that the offence attempted to be committed was not in fact committed.
[34]	This approach was rejected by Douglas J in the Court of Criminal Appeal (with whom Wanstall ACJ and Dunn J agreed), and the question on the case stated was answered in the negative. I am content to apply the reasoning of Barbeler in the case before me. Even if the court is satisfied that the substantive offence was completed, this does not preclude the court from finding the accused guilty of an attempt to commit that offence.
[35]	Cross-examination of the accused then resumed. The accused agreed that the complainant had not wanted him to remove her underpants. He said that, from that point, he had been content to merely engage in simulated sex. When asked how then his penis managed to penetrate the complainant’s vagina, the accused responded, “It just slipped in, somehow.” He testified that it had not been his intention for his penis to enter the complainant’s vagina at all.
[36]	That brought the defence case to a close.
[37]	In considering the evidence in this case, I remind myself that it is not for the accused to prove his innocence. The burden rests with the prosecution to prove, beyond reasonable doubt, each and every element of the offence charged.
[38]	In order to convict the accused of the offence of attempted rape, I must be satisfied to the required standard of each of the following elements (from section 371(1) of the Penal Code):
a.	the accused intended to rape the complainant (ie. he intended to have sexual intercourse with her without her consent);
b.	he began to carry out his intention to commit the offence in a way suitable to bring about that which he intended to achieve;
c.	he did some overt act that made clear his intention to commit the offence.
[39]	In considering the evidence of the complainant, I formed the view that she was not being completely honest with the court. Some of her answers were evasive, and critical details of her account shifted as her testimony progressed. She admitted to lying when she had wrongly claimed to have not had any dealings with the accused prior to the day of the incident. There was clearly an effort to diminish her own involvement in the plan to go drinking with the accused. She even sought to downplay the amount of sour toddy she had consumed, and the extent of her intoxication. I have no difficulty accepting her evidence that she did not want to have sexual intercourse with the accused but, all told, I was left with a distinct sense of unease about her general lack of candour.
[40]	The evidence of the 2 eyewitnesses does nothing to reduce my concerns. I accept their testimony, but there was nothing in their evidence to suggest that the complainant was an unwilling participant in her encounter with the accused. The description of the accused thrusting up and down over the complainant is equally consistent with the explanation that the pair were engaging in simulated sexual intercourse.
[41]	There is ample evidence that, for at least some of the time, the accused intended to have sexual intercourse with the complainant. He admits this himself. However an intention to have sexual intercourse by itself is not enough – to be guilty of attempted rape he must have intended to have sexual intercourse with her without her consent. He must have intended to rape her.
[42]	Further to this, if his intention had been merely to have simulated sexual intercourse with the complainant without her consent, that would not be enough to sustain a conviction for attempted rape either. It would be enough to support a charge of indecent assault, but that is not the charge here.
[43]	In any event, I am not satisfied that the accused intended to rape the complainant. While it is not for him to prove anything, I accept his evidence that, on learning that she did not want to have sexual intercourse with him, he abandoned his original plan, and was content to engage in simulated sex and oral sex.
[44]	The first of the 3 elements not having been proved, it is unnecessary for me to go on to consider the other 2. It follows that the accused must be acquitted, and I find him not guilty of the offence of attempted rape.
Lambourne J
Judge of the High Court