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Republic v Ribauw [2018] NRSC 44; Criminal Case 100 of 2016 (31 August 2018)


IN THE SUPREME COURT OF NAURU CRIMINAL CASE No. 100 of 2016
AT YAREN
CRIMINAL JURISDICTION


BETWEEN


THE REPUBLIC


AND


CHARMORO RIBAUW


Before: Khan, J
Date of Hearing: 29 and 30 June 2018 and 3, 4and 5 July 2018
Date of Judgement: 31 August 2018


Case may be cited as: Republic v Ribauw


CATCHWORDS:


Charge of rape-contrary to section 105 of the Crimes Act 2016- accused admits to sexual intercourse- both complainant and accused intoxicated- Whether sexual intercourse was consensual.


HELD: Sexual intercourse was consensual. Accused acquitted.


APPEARANCES:


Counsel for the Prosecution: F Lacanivalu
Counsel for the Accused: R Tagivakatani


JUDGMENT


INTRODUCTION


  1. The hearing was completed on 5 July 2018 and I had anticipated that I would deliver my judgement on 6 July 2018, but was unable to do so. My session completed on 6 July 2018 and I departed for Brisbane on 8 July 2018 and returned on 24 August 2018 for the current session and thus the delay in delivering this judgment.
  2. The accused is charged with the charge of rape. The prosecution filed an information on 27 January 2017 which states as follows:

Statement of Offence


Rape: Contrary to s.105(1) (a), (b)(i) (ii) and (i) of the Crimes Act 2016.


Particulars of Offence

Charmoro Ribauw on 19 November 2016 at Nauru did intentionally engage in sexual intercourse with another person namely, Nastalia Moses, and the other person namely, Nastalia Moses, did not consent to the sexual intercourse and Charmoro Ribauw knew that the said Nastalia Moses did not consent and was recklessly indifferent to Nastalia Moses giving consent.


  1. On 10 February 2017 the accused pleaded not guilty to the above information in accordance with the provisions of s.190 of the Criminal Procedures Act 1972 (CPA) and the matter was adjourned to 7 March 2017.
  2. On 7 March 2017 at around 10am the accused appeared in court with his counsel, Mr Tagivakatani and Mr Lacanivalu appeared for the prosecution. The court was informed that the parties were in the midst of agreeing to the facts and the only issue for determination was ‘consent’.
  3. On 7 March 2018 the prosecution filed an amended information at 10.52am. This information is as follows:

Statement of Offence


Rape: Contrary to s.105(1) (a), (b), and (i) and (ii) of the Crimes Act 2016.


Particulars of Offence

Charmoro Ribauw on 19 November 2016 at Nauru did intentionally engage in sexual intercourse with Nastalia Moses who did not consent to the sexual intercourse and the said Charmoro Ribauw knew that the said Nastalia Moses did not consent.


  1. The amended information was filed without leave of the Court and this was never brought to the attention of court and consequently the accused never entered a plea of guilty to the amended information as provided for under s.191 and s.191(2)(CPA).
  2. On the day of the hearing on 29 June 2018 the prosecution filed another amended information which is almost identical to the first information filed on 27 January 2017. This amended information was filed with the leave of the Court and the accused was called upon to enter a plea and he entered a plea of not guilty.
  3. I shall refer to Nastalia Moses as the complainant.
  4. At the time of the offence the complainant was 29 years old and the accused was 19 years old.

PROSECUTION’S CASE

  1. The prosecution’s case is that when the sexual intercourse took place between the complainant and the accused, which is not in dispute, the complainant was asleep and when she woke up she saw the accused on top of her having sexual intercourse with her. Being asleep the complainant could not have consented to the sexual intercourse nor did she consent to the accused continuing to have sexual intercourse after she woke up.

DEFENCE CASE


  1. The defence case is that the complainant was in her bedroom and the accused was also in her house asleep in another room. He subsequently woke up and went into her room opened the door and found that the complainant was awake. They had a conversation and they kissed each other and he undressed her and sexual intercourse took place with her consent.

RELEVANT LAW


  1. Under s.8 of the Act, sexual intercourse means:
  2. ‘Consent’ is defined in s.9 of the Act where it is stated that:

AGREED FACTS


  1. On 7 July 2017 the parties filed an agreed facts in court. The agreed facts are as follows:
    1. The following facts are agreed between the prosecution and the defendant for the purpose of the trial. IT IS AGREED THAT:
      1. The defendant is one Charmoro Ribauw, 19 years old of Baitsi District. The complainant/victim is one Nastalia Moses, 29 years old of Aiwo District.
      2. In the early hours of 19 November 2016, the defendant was drinking alcohol with Nastalia Moses and Jayjay Bill (otherwise known as David Bill) and Dane Dagaegao at Nastalia’s home.
      3. Nastalia and JJ are cousins and live together in the same house.
      4. Sometime during the morning, the defendant was drunk so JJ escorted him to his room (JJ’s room) to sleep.
      5. Later in the same evening, Nastalia left the drinking group and went into her room and slept.
      6. In her room the defendant inserted his penis into her vagina and had sexual intercourse with her.
      7. On the same day in the afternoon, the defendant came back to Nastalia’s home because he told Jay Jay Bill that he forgot his shoes and sunglasses.
      8. In the evening, at night on the same day, the defendant met Nastalia at Aiue Boulevard where she asked him about what he did to her.
      9. Jayjay had taken Nastalia to the Boulevard but left her to speak to the defendant.
      10. She asked the defendant what he was doing in her room where he was silent for a while.
      11. The defendant then started apologising.
      12. Nastalia asked him if he had ejaculated inside her vagina which he did not know.
      13. The defendant then told her to take contraceptive pills against unwanted pregnancy.
      14. He also said that he was really drunk and it was his first time.
      15. Nastalia then personally reported the matter to the police on 21 November 2016 at 9.30am.
      16. The defendant was arrested and interviewed by police on 28 November 2016 before he was produced in Court.
    2. The following statements are agreed between the prosecution and the defence for the purpose of trial:
      1. Janae Bill
    3. The following exhibits are agreed between the prosecution and the defendant:
      1. First Information Report
    4. The following issue to determine in trial:
      1. Whether Nastalia Moses consented to having sexual intercourse with the defendant.

ISSUES FOR DETERMINATION


  1. As can be seen from the agreed facts the only issue for determination is whether the complainant consented to the accused having sexual intercourse with her.
  2. In a criminal trial before the Supreme Court the Judge is the sole arbiter of the law as well as the facts. In Nauru we do not have a jury trial or a trial by Judge with the assistance of assessors. In deciding the questions of fact, the Judge discharges the role of the jury/assessors. I expressed some reservations to the counsels about the appropriateness of having agreed facts in criminal trials as it affects the ability of the Judge to decide on the facts freely.
  3. I received submissions from both counsels on this issue and they submitted that agreed facts is pursuant to the provisions of s.147 of the Criminal Procedure Act 1972 which states as follows:

Proof by formal admission


(1) Subject to the provisions of this section, any fact of which oral evidence may be given in any criminal proceedings may be admitted for the purpose of those proceedings by or on behalf of the prosecutor or accused and the admissions by any party of any such fact under this section shall be against that party be conclusive evidence in those proceedings of the fact admitted. (emphasis added by me).

(2) An admission under this section:

(a) may be made before or at the proceedings;


(b) if made otherwise than in Court, shall be inviting;


(c) it may be inviting by an accused who is a natural person, shall purport to be signed by the person making it and, if so, made by on behalf of an accused which is a body corporate shall purport to be signed by a director, manager, secretary or other officer of a body corporate;


(d) if made on behalf of an accused who is a natural person, shall be made by his barrister and solicitor or pleader and if he is represented by himself if he is unrepresented;


(e) if made at any stage before the trial by the accused who is a natural person it must be approved and countersigned by a barrister and solicitor or pleader who is representing him whether at the time it was made or subsequently, before or at the proceedings in question.


  1. An admission under this section for the purpose of proceedings relating to this matter shall be treated as an admission for the purpose of any subsequent criminal proceedings relating to the matter including any appeal or retrial.
    1. An admission under this section may with the leave of the Court be withdrawn in the proceedings for the purpose for which it was made or any subsequent criminal proceedings relating to the same matter.
  2. What concerns me is that agreed facts are ‘conclusive evidence of the facts admitted’.[1] Once a fact is admitted then it inhibits the Judge from evaluating the evidence on the facts and thus in my respectful opinion perhaps not appropriate in a criminal trial on contentious matters.
  3. I accept that it is part of the case management system to have issues narrowed and shortened trial but it should not be done in a way that will affect the Judge’s function of evaluating evidence when it is in direct conflict with the agreed facts. So I therefore ask counsels to exercise constraint when doing so.

BURDEN OF PROOF

  1. The burden of proof is on the prosecution to prove beyond all reasonable doubt the elements of the offence and in particular that the accused had sexual intercourse with the complainant without her consent or was recklessly indifferent as to whether the complainant was indeed consenting.

BACKGROUND


  1. The complainant lives in Aiwo District with her brother David Bill (David), her cousin, Janae Bill and her aunts.
  2. On 18 November 2016 her brother David was drinking alcohol at the back of their house in the basketball court with Dane Dagaegoa. David worked as a doctor at the RON Hospital and he had invited the accused who was also employed by the RON Hospital as a laboratory technician. Later on David was joined by the accused and the accused’s cousin, Timson and Janae (David’s cousin).
  3. David had just returned from Cuba after 8 years and he invited the complainant who had also arrived in Nauru after being away in China for 8 years as well. The complainant joined the drinking party at around 11pm. When she arrived, she was introduced to the accused and they greeted each other. The complainant was wearing a boxer pant and had a sarong (lava lava) wrapped around her.
  4. The accused drank until about 2am when he passed out in his chair and David escorted him to his room. The complainant drank whiskey. She consumed 3 half glasses of whiskey (no mixture) and drank until about 3am when she made an excuse to go to the toilet as this was a boys party and she was the only female. She instead went to her bedroom and went off to sleep.
  5. The drinking continued until daybreak.
  6. When David and his friends were drinking outside the alleged incident took place between the accused and the complainant. The complainant’s bedroom is situated next to the basketball court where the drinking took place.

COMPLAINANT’S VERSION

  1. The complainant’s version is that she went into her bedroom and locked the door from the inside and left the louvre blades open. She went off to sleep in her lava lava and boxer pants which she wore previously to the drinking party.
  2. Whilst she was asleep she felt that someone was on top of her. When she woke up she realised that the accused was having sex with her and she tried to stop him but was unable to do so. She said that she was completely naked and turned to stop the accused from having sex and in the process, she also tried to look for something to cover herself and the accused kept saying ‘shush’ while still having sex. She then tilted to her right to get him off her.
  3. She covered herself with the lava lava and asked him how did he get into her room and he then got up put his pants on and dashed out of the room without putting his shirt on and left the bedroom door open.
  4. After he left the room she ‘wanted to go and confront him’. She said that she was tired and wanted to have a shower as she felt dirty after the sexual intercourse.
  5. She did not confront him that night. When asked by her counsel as to why she did not scream or call out for help she said that she was shy and embarrassed.
  6. When asked as to why she did not run out of the room and tell anyone about what had happened, her response was ‘not only was David really eager and keen for me to meet his friends. I was really shy to put him down and tell him what his friend just did that to me. I was really shy. I am a shy person.’
  7. She did not leave her bedroom and later went off to sleep and she woke up early in the morning and the first thing that came on her mind was to have a shower.
  8. Whilst having a shower she was still debating in her mind as to whether it happened or not and she stated ‘I didn’t want to believe it happened, but the whole time, even the moment I woke up, it was still in my mind, that it happened but I just still said it didn’t happen. While showering I was thinking about it happen, didn’t happen... I kept fighting it and saying it didn’t happen but I know it happened.’
  9. After having a shower, she went to have breakfast in the kitchen when she was joined by her cousin, Marsha Bill(Marsha), who asked her as to ‘what was your friend doing in our room’. She asked her ‘who’ and she said ‘the person with the weird haircut’ and the complainant knew that she was referring to the accused.
  10. Marsha then told the complainant that the accused had entered their room and he looked at her 2 aunties who were asleep and she pretended to be asleep but was awake.
  11. As Marsha and the complainant were talking, David walked into the kitchen and said ‘oh, so much for going to the toilet last night. What happened to you and who is the lucky guy?’
  12. The complainant said that David only heard the word ‘him’ and that according to her prompted him to say ‘who is the lucky guy?’.
  13. The conversation between the complainant and Marsha went on and Marsha said to her that the accused was looking for her and the complainant’s response was that the accused knew exactly what he was doing.
  14. After her conversation with Marsha, the complainant went to her room and stayed in there to hide and later that day she confided in Janae Bill and told he what happened. At about 4pm and she also told David what happened.
  15. David asked the complainant if she wanted to meet the accused and she said that she did, so he got in contact with him and arranged a meeting at Aiue Boulevard.
  16. The complainant and David drove to Aiue Boulevard at around 8.30pm where they met the accused. David got out of the car and the accused got in the front passenger seat and the complainant was in the driver’s seat.
  17. The complainant asked the accused if he ejaculated in her vagina and his response was that he did not know and he advised her to take pills to avoid pregnancy.
  18. The complainant stated that the accused started to hit his own face and started to cry and also hit the dashboard.
  19. The complainant kept asking him if he ejaculated inside her vagina and he apologised and said that he did not know and again asked her to take pills to avoid pregnancy.
  20. The complainant then told the accused that she was going to lodge a complaint with the police and told him to get out of the car.
  21. When he was in the car David was about 20 metres away and David came back and the accused said to him ‘what’s up your sis? – she has gone crazy’ and David said ‘how would you like if I did that to your sis?’.
  22. The complainant then drove to meet her cousin, Sgt Shaka Bill, outside the church. She told him what happened and asked him to keep it discreet. Sgt Shaka told her that he could not assist and asked her to see Sgt Sareima. He took the complainant to meet Sgt Sareima at her house. This was around 9pm and Sgt Sareima was also off duty and asked her to meet her on Monday 21 November 2016 at 9.30am. Sgt Sareima asked her to go to the hospital and she would have gone to the hospital if it was discreet but she did not go to the hospital.
  23. The complainant met Sgt Sareima as planned on 21 November 2016 and filed a First Information Report (FIR).
  24. The First Information Report is an agreed exhibit which states as follows:

Date – 21 November 2016

Time – 9.30 hours

Details of person providing information – Nastalia Moses

Details of officer receiving information – Sgt Sareima Aremwa

Confirmed information received – Sareima on 11/22/2016 9:33:49 am: on 21 November 2016 at 9.30 hours, Nastalia Moses walked into base to file a report against Mr Charmoro Ribauw for sexually harassing her while sleeping in her room.


  1. At around 11am the complainant gave a statement to Sgt Sareima.

ACCUSED’S VERSION


  1. On 28 November 2016 the accused was arrested and taken to the police station where a Record of Interview was conducted by Snr Const Jay Jay Bob in the presence of Sgt Sareima Aremwa. The Record of Interview was signed by the accused and Sgt Sareima but not by the interviewing officer.
  2. There was some confusion as to, whether the interviewing officer was Vicromic Starr or Jay Jay Bob. However, the Record of Interview was tendered by consent.
  3. In the Record of Interview the accused denied raping the complainant and stated that he had sexual intercourse with the complainant but it was by consent.
  4. When the allegation was put to him he denied it and later the Record of Interview was suspended to enable him to consult a lawyer.
  5. He stated that he asked her permission before she took her clothes off including her lava lava and pants and thereafter he took off his clothes.
  6. He stated that he only met her that night. He stated he drank Bombay Sapphire, dry gin and vodka.
  7. He agreed that he had passed out and was taken to David’s room where he slept and got up to vomit and later got into the house and was looking for David’s room when he ended up in Marsha’s room and later ended up in the complainant’s room.
  8. In the Record of Interview he stated he was unable to explain how he entered the complainant’s room but he maintained that when he entered the room she was awake and he asked her permission to take off her clothes before having sexual intercourse.
  9. He agreed that after the sexual intercourse he left her room and went outside to vomit and returned to David’s room where he slept until he was woken up by his cousin, Timson at about 5am when he left for his house.
  10. According to the accused he woke up at 7pm on 19 November 2016 and sent a text to David to say that he forgot his sunglasses and shoes and David told him to come over and collect his sunglasses and shoes. When he went over David asked him if he remembered anything from last night and the accused responded that he did not.
  11. Although he knew what David was talking about, he pretended that he did not and David said that ‘how would he feel if he had sex with his sister’ and I said ‘I would be mad’.
  12. David told him that he wanted him to meet the complainant and later the meeting took place at Aiue Boulevard at around 8.30pm.

AGREED FACTS

  1. The agreed facts among other things states:

CONSIDERATION


  1. In his evidence in chief the accused gave a different version about the ejaculation. He stated that before ejaculating he stood up and masturbated himself. That is in direct conflict with the agreed facts. Being an agreed fact that he did not know that he ejaculated in her vagina is ‘conclusive evidence’ against the accused and therefore he was precluded from giving a different version on that issue and I therefore disregard his evidence about masturbating before ejaculation.

ACCUSED BEING DRUNK


  1. The agreed facts state that the accused was drunk so David escorted him to his room, whilst the statement of Janae Bill also an agreed document states that his observation was that the accused was not really drunk but may have been tired. How do I resolve this conflict? With this conflict contained in the agreed facts the issue of being ‘drunk’ is not conclusive and it is open to me to consider and evaluate whether the accused was really drunk.
  2. The accused admits that he went out of the house to vomit. Marsha did not give evidence in this case but told the complainant that the accused went into her room and looked at her and her 2 aunties, and that according to her he was looking for the complainant. Marsha also said that she was awake and saw the accused. When he did not find the complainant, he went out of the room. Marsha’s account of events was related in evidence without any objections from the defence despite it being hearsay evidence.
  3. Having left Marsha’s room the accused went to the complainant’s room. According to the complainant the door was locked from the inside and the door could only be opened from the inside by reaching the knob through the louvre blades which was left open. The accused did not know that the door could be opened from outside by reaching the knob through the louvre blades. If the complainant’s evidence is accepted, that the door was locked from the inside, then the accused would have only been able to reach for the knob through the louvre blades. If he was so drunk would he have been able to do so without disturbing anyone or breaking the louvre blades?
  4. After the sexual intercourse the accused left the complainant’s room and ran back to David’s room to sleep. If he was really drunk how would he know which was David’s room? I think that Janae Bill’s observation that the accused was not really drunk is more in conformity with the actions of the accused moving out of the house and within the house from one room to the other despite it being his first visit to the house.

SEXUAL INTERCOURSE

  1. The complainant’s evidence is that she was fast asleep when she woke up and the accused was on top of her having sexual intercourse with her. She stated that after having sexual intercourse with her, he just dashed out of the room having put his pants only on. In cross examination it was suggested to her that she was double minded whether the accused asked for sex or she asked for sex. The complainant in response said ‘I never thought of having sex with him, sorry there is no confusion.’ After this response from the complainant the defence counsel did not pursue this issue any further.

71. In the depositions filed in court the complainant in her statement dated 21 November 2016 stated “When he was out, I was thinking of following him and talking with him and then later shower because it came to my mind did I ask to have sex or did he ask.’’

72. It is stated in Cross on Evidence[2] : ‘When deponents attend the trial, their testimony, not the statements in the depositions, constitute the evidence in the case...’.

73. In light of the complainant’s evidence in court, the defence counsel should have cross examined and put the statement to the complainant and sought an explanation from her and he failed to do so. In my view there was an equal responsibility on the part of the prosecuting counsel to seek clarifications from the complainant as to how the sexual intercourse took place. Whether it took place as she stated in her evidence in court that she was fast asleep when she felt the accused was on top of her, or whether it took place as she stated in her statement that ‘did I ask to have sex or did he ask to have sex’.

FOLLOWING DAY

74. Neither Marsha nor David gave evidence in this case. In the kitchen Marsha asked the complainant as to what was ‘her friend’ doing in her room. When the complainant asked who she was referring to, she said ‘the bloke with the weird hairstyle’ and the complainant immediately knew that she was referring to the accused. Then later they kept talking about that night when David walked in the kitchen, he just caught a bit of the story. All he heard was ‘him’. The complainant said that David asked ‘umm’, because I lied to them last night, I lied, I said I was going to go to the toilet, but I didn’t go to the toilet.’ So David said, ‘oh so much for going to the toilet last night. What happened to you and who is the lucky guy?’.

75. The accused was in contact with David and came over to collect his shoes and sunglasses which he had left behind.


76. At the complainant’s instigation David arranged for a meeting between the complainant and the accused at Aiue Boulevard at about 8.30pm. The complainant drove with David to Aiue Boulevard and met with the accused. David got out of the car and walked to a distance of some 20 metres and the accused got into the car and sat in the passenger’s seat. The complainant asked whether he ejaculated in her vagina. He said he did not know and asked to take pills to avoid pregnancy.

  1. The complainant was very frustrated with the accused’s response about the ejaculation. She never said to him that he had sexual intercourse without her consent. All she said was that she was going to file a complaint against him. After the meeting between the complainant and the accused was over, David came to the car and the accused asked him as to ‘what is wrong with your sister – she has gone crazy’ and David in response said ‘how would he like if he had done this to his sister’.

VISIT TO THE POLICE STATION

  1. After meeting with the accused, the complainant and David went to meet Sgt Bill Shaka who was their cousin. He was off duty and said he would help and suggested that the complainant should meet Sgt Sereima. He took her to Sgt Sereima and she asked them to come back on Monday to the police station.
  2. The complainant met Sgt Sereima on 21 November 2016 at 9.30am and filed an FIR.
  3. The information in the FIR was provided by the complainant in which she stated that she wanted ‘to file a report against Charmoro Ribauw for sexually harassing her while sleeping in her room’. The FIR did not state that the accused had raped the complainant.

ALLEGATION OF RAPE

  1. The first time the complainant raised the issue of rape was when she gave her statement to Sgt Sereima. In that statement/deposition which I have referred to above, she also stated that she was debating the question as to whether she asked for sex or whether he asked her for sex.
  2. In R v Bennett[3] it is stated in the headnote:

“A trial of a prisoner for rape, the Judge in his summing up, after referring to the evidence of medical witness, reminded the witness was apparently of the opinion that there had not been consent. He then added, ‘however, that is not binding on you but the question of consent or non-consent is entirely for you upon the evidence as a whole.”


  1. The defendant’s actions after the incident are also of relevance. After the alleged sexual intercourse the defendant did not run away but slept in the complainant’s house and only left when the drinking finished. He later came back to collect his shoes and sunglasses and later met the complainant in the car when she only raised the issue of his ejaculation and not rape. I pose the question as to whether his action is consistent with having raped the complainant.

CONCLUSION


  1. The complainant’s testimony in court was very compelling and if I were to accept that in isolation, then I will have no difficulty in convicting the accused of the charge of rape as all the elements would be proved, namely, that she was asleep when he had sexual intercourse with her. However, when I consider her testimony against all the matters that I have discussed, and further when I consider the evidence ‘as a whole’ I find that the sexual intercourse was consensual. In the circumstances, I find that the prosecution has failed to prove the charge against the accused and he is acquitted of the charge.

DATED this 31 day of August 2018.


Mohammed Shafiullah Khan
Judge

[1] S.147(1) of Criminal Procedures Act 1972
[2] 4th Australian Edition, page 405 [17035] .
[3] [1900] QLJ147

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