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Republic v O'Connor [1997] KIHC 72; CRC 16 of 1996 (13 January 1997)

IN THE HIGH COURT OF KIRIBATI
(BEFORE THE HON R LUSSICK C.J.)

HCCrC 16/96

THE REPUBLIC

v.

NEETE O'CONNOR

Mr T Tabane for the Republic
Accused in person

JUDGMENT

The accused is a well known medical practitioner in Kiribati. He has been charged with indecent assault on a female contrary to section 133 of the Penal Code (Cap. 67). The opportunity has been given to him to obtain legal representation but he has chosen to represent himself.

The complainant is a young woman presently aged 19, which means that at the time of the alleged offence on 29^th April 1994 she would have been 16 years of age.

Her evidence was that she was having irregular periods and so went to Betio Hospital seeking treatment. She was referred to the accused and was alone with him in a room when he examined her. She said that the accused made her lie down on a table after which he took a stethoscope and asked her to lift up her shirt. When she did so she claimed that the accused sucked her breasts.

According to the complainant the accused then asked her if she had had any contact with men. She at first said that she had, but soon afterwards admitted that she really had not. At that point she said that the accused kissed her on her nose.

The complainant said that what happened next was that the accused put his hand down her pants but she closed her legs so that he could not touch her vagina. She said that she could not stand what the accused was doing to her so she then got up and sat on a chair. The accused gave her a medical certificate and offered her some chewing gum which she refused to accept.

She said that at no stage did the accused give her any explanation for what he was doing. She did not accept what had been done to her and upon leaving the hospital she went crying to her mother. She also reported the incident to the police on the same day.

The second prosecution witness was a young woman who accompanied the complainant to the hospital that day together with another companion.

This witness testified that she told a nurse about the complainant's illness and the nurse directed the complainant to see the accused, Dr O'Connor. The witness saw that when the complainant came out of the room where the doctor had examined her she was crying. The complainant told her that the doctor was not a good doctor because he had sucked her breasts and put his hands down her pants to touch her vagina.

The witness said the three of them then went to tell the complainant's mother, who told the complainant to report the matter to the police.

The third, and last, prosecution witness was a police officer who took a statement from the accused, following which he conducted an interview. Both the statement and record of interview were put into evidence without objection. In fact the accused conceded that the document (Exhibit A) was an accurate record of what he had told the interviewing police officer.

In his statement the accused said that when he raised the complainant's T-shirt to examine her with a stethoscope she was ashamed to show her breasts so he became angry and slapped her hands away. She continued to hold on to her shirt so, because he was angry, he bit her breasts. When he did this he was not wearing his false teeth. The accused also explained in his statement that he touched the complainant's abdomen only to find out the cause of her loss of blood; if there had been pain then she might have had heavy bleeding or something wrong with her ovary.

At the conclusion of the prosecution case I explained to the accused his rights in accordance with section 256 of the Criminal Procedure Code Cap. 17. He elected to give evidence himself but called no other witnesses or evidence.

In his evidence in chief the accused simply relied on what he had said in his statement (exhibit A) and had nothing to add.

In cross-examination, he denied kissing the complainant on the nose. He also asserted that he put his hand down her pants in order to feel just above the pelvic bone as this was relevant to her complaint. He admitted that he did not explain to the complainant what he was doing, but claimed he would only need to do that if he intended to insert his finger into her vagina. The accused also admitted biting the complainant's breasts. The reason he gave for doing so was that she made him angry by pulling down her shirt when he was trying to examine her. He conceded that biting her breasts had nothing to do with procedure and that he had no lawful excuse for doing so.

In considering the evidence, I remind myself that the burden of proving the offence and each element of the offence beyond reasonable doubt rests from first to last upon the prosecution. On the other hand, there is no onus on the accused at any stage to prove his innocence. In the present case, the prosecution must prove not only that the complainant did not consent to what was done to her but that what was done to her was indecent.

I must say that upon consideration of all the evidence I have no difficulty finding the accused guilty of this offence. His own evidence that he bit the complainant on the breasts is sufficient in itself to convict him.

However, I was completely convinced that what the complainant told the court was what really happened. She submitted to an examination because the accused was a doctor. But what the doctor did to her clearly had nothing to do with medicine; what he did was rather for his own sexual gratification. I accept the complainant's version that the accused sucked her breasts and then attempted to touch her vagina. There is nothing in the evidence from which it could be inferred that the accused believed that the complainant was consenting to any of this. In fact the accused has not claimed that what he did was with the complainant's consent. On the contrary, he claimed that he bit her on the breasts to punish her. I did not believe his evidence that, having bitten her breasts, he put his hand down her pants without warning merely as part of a routine medical examination.

The behaviour of the complainant immediately following the incident is entirely consistent with her not having given consent to any of what happened and I am satisfied beyond reasonable doubt that such was the case. The evidence clearly establishes beyond reasonable doubt that the accused abused his position as a doctor in order to carry out an assault of an indecent nature upon the complainant.

I therefore find him guilty of the charge of unlawfully and indecently assaulting the complainant contrary to section 133 of the Penal Code and he is convicted accordingly.

THE HON R B LUSSICK
Chief Justice

(13/01/97)