IN THE HIGH COURT OF KIRIBATI 2019

CRIMINAL CASE NO. 31 OF 2017

		[THE REPUBLIC					PROSECUTOR
		[
BETWEEN	[AND
		[
		[KATAWATI IOTEBWA				ACCUSED

Before:	The Hon Chief Justice Sir John Muria

27 February 2019

Ms Pauline Beiatau for the Prosecutor
Mr Reiati Temaua for the Accused

JUDGMENT

Muria, CJ:	The accused, Katawati Iotebwa, has been charged with one count of the offence of attempted rape contrary to section 130 of the Penal Code.  The accused pleaded not guilty to the charge.  The prosecution called three (3) witnesses.  At the end of the prosecution evidence, Counsel for the accused submitted that the accused should not be put to his defence, as on the evidence, the accused had no case to answer.

2.	The submission by Mr Temaua of Counsel for the accused is that on the evidence of the three prosecution witnesses, there is insufficient evidence to support the charge, including identifying the accused, and as such the accused has no case to answer.  Consequently, it is submitted, the case should be dismissed and the accused acquitted.

3.	Ms Beiatau of Counsel for the prosecution, on the other hand, submitted that the evidence of the prosecution witnesses sufficiently demonstrated that the accused has a case to answer on the charge of attempted rape in this case.  Counsel further submitted that the evidence of the victim and the security confirmed the identity of the accused as the person who tried to rape the victim.

4.	The evidence of the victim, inter alia, is that although it was dark, she could still recognize the face of the accused when he held her neck.  He was so close to the victim.  The accused talked to the victim.  The victim knew the accused for over six years.  She used to go to the accused’s house at Santa Maria to buy tobacco.  Although it was dark, there was some light in the area, and the victim could recognize the accused.

5.	It must be noted that at this stage, only the prosecution evidence is before the Court.   However, the question for the Court to determine is whether there is any evidence sufficiently led by the prosecution to identify the accused as the alleged perpetrator in this case and upon which the Court could, (not would) properly convict the accused.

6.	The test is set out in section 195 of the Criminal Procedure Code and expounded in Republic –v- Narayan and Loo [2012] KICA 11.  As a judge of both facts and law, I am entitled to consider the sufficiency of the evidence led by the prosecution even at this stage of the trial.  If I am not so satisfied, I must stop the trial, dismiss the case and acquit the accused.

7.	I deal first with the question of the identity of the accused.  The evidence as to the identity of the accused came from the victim (PW1).  At the place where she and her friend Taabane were drinking, although it was dark, there was some light coming from a nearby house.  The accused punched and knocked out Taabane who fainted on the ground.  The accused then turned to the victim and strangled her neck with his right hand and tried to remove her clothes.  Her evidence was that she knew it was the accused.  Not only that his face was so close to hers when he strangled her neck, she recognized him since he and the accused have been neighbours for more than six years.  She recounted instances previously when she used to go to the accused’s house to buy ‘koben’ from him.  This was not the first time that the victim saw the accused.  She clearly has previously known the accused which is one of the observations observed in 
R -v- Turnbull (1976) 63 Cr. App. R 132.  

8.	She also had the opportunity to observe the accused when he assaulted her friend, Taabane.  It was after assaulting Taabane, that the accused turned to the victim and strangled her.  That, together with her own personal knowledge of the accused, makes her evidence of the identity of the accused unassailable and can stand alone.

9.	The prosecution sought to rely in support on the evidence of the security man (PW2), whose evidence of identification was not very helpful.  He did not see the accused at the time of the incidence.  He only saw one Ringata.  The other person accompanying Ringata was standing in the dark, behind Ringata.

10.	Despite lacking in support from the evidence of the security man, the law permits reliance on the evidence of the victim alone if the Court is satisfied that the victim is a witness of truth and that it is safe to rely on her evidence alone.  In such a case, her evidence as to the identity of the accused need not be corroborated:  R –v- Williams [1956] Crim. Law Rev. 833.  See also the Kiribati case of Tominiko Kamaraia –v- R (7 November 1977 High Court Crim. App. 5 of 1977).

11.	On the evidence before the Court, I am satisfied and accept the evidence of the victim as to the identity of the accused.  I am satisfied on her evidence that the accused was the person who assaulted her on the night in question by strangling her at the neck.  The accused was also the same person who assaulted her friend, Taabane, that night in question.  I am satisfied on the prosecution evidence that the identity of the accused has been sufficiently established.

12.	The next question is whether the prosecution evidence has sufficiently made out the case against the accused, so as to require him to make his defence.  In this regard, ‘sufficiency’ of evidence does not mean that the evidence has been evaluated and tested for its credibility or reliability, although in a trial by a Judge alone, as in Kiribati, credibility or reliability of the evidence may be considered by the judge in a limited sense.  For example, to ascertain if there is sufficient evidence shown on each of the elements of the offence and on which the Court could convict the accused.  If there is no evidence at all shown on the elements of the offence, then there is simply no case at all against the accused and the Court should dismiss the case and acquit the accused at the close of the prosecution case.  This in my view is the whole import of section 195 of the Criminal Procedure Code.

13.	In Republic –v- Narayan (above), at the end of the prosecution evidence, there was no evidence against the accused Narayan on each of the elements of the offence under the Customs Act 2005 under which he was charged together with his co-accused one Lomi Loo.  The Prosecution led evidence which demonstrated the part played by Lomi Loo and the prosecution simply assumed that the evidence tied Narayan to the offence, when in fact not one evidence tied Narayan to any of the elements of the offence.  Narayan was found to have no case to answer.  The case against him was dismissed and he was acquitted.

14.	In the present case, the prosecution must demonstrate on the evidence before the Court, that there is sufficient evidence pointing to each of the elements of the offence of attempted rape.  The elements of the offence of attempted rape which the prosecution must establish are the intention to rape the victim and that the accused had done an act which was “a means adapted to its fulfilment and not mere preparatory act”, to achieve his intention, namely to have sexual intercourse with the victim without her consent.  Presently that is the law as defined in section 371 of the Penal Code.

15.	The crime that the accused is alleged to have attempted to commit is rape, that is, sexual intercourse with the victim without her consent.  The essence of sexual intercourse is penile penetration and an attempted rape must therefore be an act on the part of the accused adapted to achieving penile penetration.  The prosecution must therefore lead evidence which sufficiently demonstrates that the acts done by the accused are not mere preparatory acts but rather they were acts that made the accused nearly achieved penile penetration of the victim without her consent.  Ambiguous evidence will not suffice to support a prosecution case on a charge of attempted rape.

16.	I consider it also a useful test to consider in a case of attempted rape that where the accused made no admission, the only rational inference of his actions open to the Court is to find that the accused intended to have sexual intercourse with the victim without her consent.  See R -v- Dudley Pongi [2000’ SBHC 64; High Court of Solomon Islands Criminal Case 40 of 1990 (11 February 2000).  Intention to commit rape is not easy to prove but it can be reasonably inferred from the facts adduced.

17.	The evidence in the present case is that the accused was alleged to have approached the victim and her friend at the place where they were sitting and having their social drinks on the night in question at a place in Betio.  The accused was said to have punched the victim’s drinking friend by the name of Taabane who fainted.  The accused then turned to the victim and strangled her neck with his hands.  The accused used one of his hands to pull down the victim’s clothes until she was ‘naked from the bottom’.  It was then that the victim pretended she wanted to ‘pee’ and the accused released her.  She quickly took the chance to escape which she did.

18.	Ms Beiatau relied on the case of Attorney-General’s Reference (No. 1 of 1992) 96 Crim. App. 298 where it was emphasised that:

“… on a charge of attempted rape, it is not necessary to prove that the defendant had gone as far as to attempt physical penetration of the woman’s vagina with his penis.  It is sufficient if there is evidence from which the intent can be inferred and there are proved acts evidence from which the intent can be inferred and there are proved acts which a jury could properly regard as more than merely preparatory to the commission of the offence”.

19.	In the Attorney General’s Reference, the accused forced the victim to the ground, removed her panties and laid on top of her.  He pulled up her skirt with her breasts exposed.  The accused pulled down his trousers to below his ankles as he laid on top of her. Those facts were very far from the facts of the present case.  Nevertheless, Ms Beiatau of Counsel for the prosecution submitted that in the light of the circumstances of the present case, the only intention that can be inferred from the actions of the accused is that the accused intended to rape the victim.

20.	As for the accused in the present case, it was stated by the victim that he wore shorts.  The accused did not take off his shorts.  He only took off his belt.  That was when the victim managed to escape.  There is no evidence to suggest that the accused had removed his shorts and laid on top of the victim.  There was no evidence to show that the accused forced her to lay on the ground.   Left at that, is it reasonable to conclude that the only rational conclusion to draw in this case was that the accused intended to rape the victim?  In my view, the accused’s action is also suggestive of other behaviour of the accused other than attempting to rape the victim.

21.	The case of Attorney-General Reference cited by Counsel is not binding on this Court, although it is a useful guide.  That case was based on the English Criminal Attempts Act 1981.  The Penal Code which codifies the criminal law in Kiribati retains the common law tests as set out in section 371.  The Code was enacted in 1965 for Kiribati and the language used in section 371 is still supported by the pre-1981 cases such as Eagleton (1855) Dears C.C. 515; 169 ER 826 and DPP –v- Stonehouse (1977) 65 Cr. Ap. R 192, which set out the “last act” test, that is, the last act towards committing the full offence.  

22.	In terms of the provision of the present law as stated in section 371 of the Penal Code an attempt to commit an offence, it is important to bear in mind that the accused must put his intention into execution ‘by means adapted to its fulfilment and manifest his intention by some overt act’ but falling short of fulfilling his intention.  The words ‘by means adapted to its fulfilment’, in my judgment clearly denote the concept that the actions employed by the accused must be something more than mere preparation and it is the ‘last act’ as stated in DPP –v- Stonehouse (above).

23.	In the present case, taking the evidence adduced by the prosecution at its highest, the ‘overt act’ manifesting the accused’s alleged intention to rape the victim has not reached the threshold of a ‘means adapted to its fulfilment’ within the meaning of attempt under section 371 of the Penal Code.  I therefore find and hold that under section 195 of the Criminal Procedure Code the prosecution has not made out a case against the accused sufficiently to require him to make a defence on the charge of attempted rape in this case.

24.	The submission by the defence of no case to answer succeeds.  The case is dismissed and the accused is acquitted.

Dated the 12th day of March 2019

SIR JOHN MURIA
Chief Justice