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Republic v Ata [2018] KIHC 41; Criminal Case 43 of 2017 (14 December 2018)

IN THE HIGH COURT OF KIRIBATI 2018

CRIMINAL CASE NO. 43 OF 2017

[THE REPUBLIC PROSECUTOR
[
BETWEEN [AND
[
[NABUAKA ATA ACCUSED

Before: The Hon Chief Justice Sir John Muria

5 & 19 September 2018

Ms Ateti Tekawa for the Prosecutor
Mr Tabibiri Tentau for the Accused

JUDGMENT

Muria, CJ: The accused has been charged with one count of Attempted Rape contrary to section 130 of the Penal Code and one count of Indecent Assault contrary to section 133(1) of the Penal Code. The accused pleaded Not Guilty. The prosecution called three (3) witnesses. At the end of the prosecution case, Mr Tentau of Counsel for the accused made a no case to answer submission.

Brief Background

2. The brief background to the case is that on 8 August 2016 the victim was at Temaiku Village. She was there visiting the relatives of her husband. It was night time. Shortly thereafter, she decided to go out of the house to relieve herself. She was about to relieve herself when suddenly, someone grabbed her and threw her to the ground. The assailant then took off the victim’s shorts, laid on top of her and tried to have sexual intercourse with her. She told the person who was on top of her and the others (about five to seven of them) that she was pregnant. One of his friends called out the name, ‘Nabuaka’. She struggled to free herself. She eventually managed to escape, when a person came with a torch.

3. In cross examination, the victim stated that she recognized the accused’s face from the lights of an on-coming vehicle. The accused was still on top of the victim when the vehicle came past them. She said that was when she recognized the accused’s face.

4. The defence case on this no case to answer submission is pivoted on the issue of identification. Mr Tentau submitted that in respect of both charges, the victim could not identify the accused as the person who attempted to rape her or indecently assault her. The victim, herself, said that she did not recognise the person who she said was on top of her. It was dark. There were others there also, about five to seven of them. She heard the name ‘Nabuaka’ from one of the men. In those circumstances, Mr Tentau submitted, the identity of the accused could not be certain, so as to be sure that he was the perpetrator of alleged offences in this case.

5. Mr Tentau submitted that if the accused’s case on the identification is rejected, then the Court will go on to consider the evidence in relation to the two charges. First, as to the charge of attempted rape, the evidence of the victim must be considered carefully. One person was said to have grabbed the victim and threw her down to the ground. He laid on top of her. He took off her shorts. The victim struggled and managed to escape. Secondly, apart from the victim’s evidence that the person alleged to be the accused was lying on top of her, there was no evidence from the victim that he had done anything else. Under these circumstances, the defence submitted that there is no evidence sufficient enough to put the accused to his defence, in terms of section 195 of the Criminal Procedure Code.

The Test

6. In Kiribati, the test to be applied in a no case to answer submission is that set out in section 195 of the Criminal Procedure Code and authoritatively affirmed in Republic –v- Narayan and Loo [2012] KICA 9, Criminal Appeal 2 of 2012
(15 August 2012). In that case the Court of Appeal had this to say at paragraphs 27 and 28 of the judgment:

“27. The Chief Justice considered that in a judge-alone criminal trial in Kiribati – unlike in those jurisdictions where criminal trials were decided by a jury, as finder of fact, he was entitled to consider the sufficiency of the evidence at the end of the prosecution case. This is a slightly different test from the usual one in jury cases exemplified by
R –v- Galbraith [1981] 2 All ER 1060: i.e. that if at the end of the prosecution case there is some evidence possibly implicating the accused, the reliability of what should be left to a jury . The judge must not in those circumstances stop the case whatever view the judge had formed of that evidence. The Chief Justice here held that the difference of approach which he took lay in the fact that the judge plays the role of the jury as well as that of the judge in this jurisdiction.

28. Despite the submission of counsel for the appellant that the Galbraith approach should be followed, we conclude that the Chief Justice was entirely correct in taking the approach he did in circumstances where the trial judge is the trier of fact as well as the arbitrator in law. As the Chief Justice pointed out, section 195 provides that if the case against an accused is not made out “the court shall dismiss the case and shall forthwith acquit the accused”.
    

7. Applying the test set out in Republic v Narayan and Loo, Mr Tentau of Counsel for the defence submitted that the prosecution had failed to establish by evidence the identification of the accused as the person who allegedly attempted to rape or indecently assaulted the victim in the present case. As such, Counsel urged that the accused ought not be put to his defence and should be acquitted.

Identification of the Accused

8. The only evidence of identification of the accused came from the victim herself. Her evidence is that she went out to relieve herself. It was dark. Someone grabbed her, threw her down to the ground, pulled down her shorts and laid on top of her. She did not know nor recognize the person who laid on top of her. She could make out that there were about five to seven people there with the person who laid on top of her. She struggled to free herself. She then heard one of the persons in the group calling out the name “Nabuaka”. She testified in examination in chief that the accused was still on top of her when a car went passed and that she was able to identify the accused from the lights of the passing vehicle. In cross examination, the victim said that she tried to identify the accused from the light of the passing vehicle. The victim managed to free herself and ran to a maneaba when a person came with a torch.

9. The law on identification is well established and expounded in numerous case law authorities. I need not deal with the many case authorities on identification. I feel it suffices that I need only deal with what had been stated in R -v- Turnbull and Another [1976] 3 WLR 445; [1976] 3 All ER 549; 91976) 63
Cr. App. R 132; [1977] QC 224. Lord Widgery set out the guidelines to be followed so as to minimize injustice in cases involving the question of identification of the accused:

“First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the Judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications.
........

Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?

........

Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence”.

10. Sitting alone as a judge of fact as well as law, I give myself the cautionary warning of the dangers of miscarriage of justice arising out of conviction of the accused based on mistaken identification of the accused. I remind myself also of the need to carefully consider the circumstances in which the witness (victim) came to make the identification together with any peculiar features in the identification evidence which may lessen the strength of the prosecution case.

11. When one considers the victim’s evidence of identification of the accused, there is a strong case for saying that the victim’s evidence is weak. The victim’s evidence is that she did not recognize the person lying on top of her, since it was dark. The only reason why the accused was later identified was because one of the persons called out the name “Nabuaka”, which was the accused’s name. There was no evidence to show that the person who laid on top of the victim was identified by the victim at the time to be “Nabuaka” (the accused).

12. Evidence from the person who shouted the name “Nabuaka” would help the victim’s evidence in the identification of the person who laid on top of her. However, there was no evidence identifying the person who shouted the name either, and probably was the reason why he or she was not called as a witness in this trial.

13. The victim said that there were two other persons standing near the person who was said to be lying on top of her. They could be useful witnesses for the prosecution – to support the victim’s story in this case. They were not called. One can only assume that they were not identified also by the victim and so could not be located to be approached to support the prosecution case.

14. The next instance at which the victim said that she identified the accused was when a vehicle passed by. She claimed that she recognized the face of the accused who was lying on top of her. This was a passing traffic on the main road. The evidence suggests that the place where the accused and the victim were, was in the bush, although the victim later said that it was near the road. In cross examination, the victim confirmed that the person who grabbed her, pulled her to the bush. The Court was not told of the distance from that spot to the main road. There was no evidence of the length of time the victim observed the accused’s face under the lights of the passing vehicle. The circumstances under which the identification was made was unconvincing.

15. To compound the weakness in the identification evidence of the victim, she agreed she did not mention to the police about identifying the accused from the lights of a passing vehicle. The story given to the Court about the passing vehicle must clearly be an after-thought.

16. The inescapable conclusion is that the victim went to report to the police the next day, armed with the name of the accused which she heard on the night of the incident from one of the persons who were there that night. This was a case of identification by name being called out by another person. There was no evidence at all to even suggest that the victim knew and recognized that it was the accused who attempted to rape her that night. There is doubt in the Court’s mind. That doubt must be resolved in favour of the accused.

17. On the issue of identification, the prosecution has failed to satisfy the Court sufficiently to require the accused to be put to his defence in this case.

18. Even if I am wrong on the issue of identification, the evidence on the charge of attempted rape falls far short of satisfying the elements of the offence. The only evidence is that the accused pulled down the victim’s shorts. There was no evidence to show that the accused went further to remove the victim’s underpants or done anything further. The accused laid on top of the victim with his pants down. There was no evidence of attempted penetration. All that was said in evidence to have been done by the accused were preparatory acts which are insufficient to ground a charge of attempted rape. See Republic –v- Terieta [2007] KIHC 85.

19. The alternative charge of indecent assault cannot, in the light of the lack of evidence to sustain a charge of attempted rape, stand. See Republic –v- Terieta (above).

20. The defence submission of no case to answer in this case must succeed. Pursuant to section 195 of the Criminal Procedure Code, the accused has no case to answer. The charge of attempted rape and indecent assault brought against him are dismissed. The accused is acquitted.

Dated the 14^th day of December 2018

SIR JOHN MURIA
Chief Justice