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Republic v Ataneka [2008] KIHC 12; Criminal Case 25 of 2007 (26 February 2008)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Criminal Case 25 of 2007

The Republic

v

Bobai Ataneka
Vaitao Baikitea

For the Republic: Ms Teretia Tookam
For the 1st Accused: Ms Jane Fiske
For the 2nd Accused: Mr Karotu Tiba

Date of Hearing: 25 February 2008

REASONS FOR FINDING NO CASE TO ANSWER

Two young men have been charged under S. 135(1)(b) of the Penal Code with defilement of a girl being an imbecile. One of the accused has breached the terms of his bail and left South Tarawa without the prior permission of the Court.

The trial of the other, Bobai Ataneka, proceeded in the absence of the co-accused Vaitao Baikitea. Bobai pleaded not guilty but after Ms Tookam had opened her case but before she had called witnesses Ms Fiske informed the Court that her client admitted having intercourse with Taateti Kononerio but had no idea of her being an imbecile.

The evidence of Taateti’s adopted mother, Nei Benina Tamoaieta shewed that the girl, now aged nearly 18 but who must have been 16 at the time of the incident, 11 December 2006, is simple minded.

The prosecution called Dr Krassmiria Barbova-Gurova, Consultant Psychiatrist at the TCH. Dr Barbova in addition to her oral evidence had written two reports, dated 14 June 2007 and 22 February 2008. Her conclusions in each confirmed Nei Benina’s evidence that Taateti is mentally retarded:-

Taateti Kononerio is mentally retarded girl of Mild to Moderate degree (Mild to Moderate mental retardation).

She is not capable of giving informed consent for sexual intercourse.

I made a note of Dr Barbova’s answer to my question whether the girl is an idiot or an imbecile:-

Not an idiot – can’t be sure of her being an imbecile. She is on the border between mild and moderate. Moderate = imbecile.

In summary Dr Barbova cannot be sure that Taateti is an imbecile.

In the light of Dr Barbova’s expert evidence I could not find proof beyond reasonable doubt – whatever other evidence there may be – that Taateti is an imbecile: something essential for the prosecution to prove to obtain a conviction.

Having heard argument from Ms Tookam I found the accused Bobai had no case to answer. I released him.

The letter of the law apart, this is a pity. It means that men can take advantage without fear of consequences of the mental feebleness of a girl. This should not be.

Dr Barbova acknowledged in answer to Ms Fiske’s question that the terms "idiot" and "imbecile" are no longer used in psychiatry. Yet they are still the words in section 135 of the Penal Code. I suggest that Parliament may give consideration to amending the section to bring the wording up to date.

Dated the 26th day of February 2008

THE HON ROBIN MILLHOUSE QC
Chief Justice