Wangunu v Tomi [2008] PGDC 137; DC1021 (11 April 2008)

DC1021

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE IN VANIMO

CIR NO: 03 OF 2008

BETWEEN:

LEO WANGUNU
Informant

AND:

MATHEW TOMI
Defendant

VANIMO: AUGUST, DCM
2008: 20th 28th, March 9th, 11th April

RULING ON EVIDENCE

District Court Committal Hearing – Criminal Code (Sexual Offences And Crime Against Children) Act of 2002 – Charge of Sexual Penetration under Section 347 (1) – Whether "sexual penetration" as a element of the charge was established – Sexual penetration not established by evidence – Serious allegation – Matter struck out by the Court in the exercise of it’s discretion – Police in the exercise of their discretion may re-arrest the accused for sexual assault under Section 349.

No cases cited.

Facts

The allegation against the Defendant, Mathew Tomi of Malol Village Aitape, West Sepik Province who now resides in Wutung because of his marital relationship was alone in their house with his daughter –in-law, Dianne Nick, the victim between 12 mid day and 1.00 pm on the 17th of September 2007. It was alleged that the accused chewed betel nut and with his mouth full of buai, asked his daughter – in-law to go to him so that he can perform a traditional ritual of birth control to stop her from having any more children. The Accused had a target leaf, a piece of bark from a tree and some ginger leaves.

After asking the victim to seat down on a box in the living room, he started to place his hands with the leaf over the victim’s head rubbing from the head with his palm down the face, ears, over the mouth down to the victim’s neck. He then chewed the bark of the tree with the ginger and asked the victim to go and get changed into a laplap.

He followed the victim into the room and circled the leaf around the victim’s head and waist and blew into into the victim’s both ears. The victim did not move but just stood there without saying anything. The accused then pushed the victim’s top upward and rubbed both breast with the target leaf, sucked both breast and spite the milk out, telling the victim that the black nipples meant that there was bad blood inside that could make her pregnant.

The accused then asked the victim to remove her laplap and lie down on the floor and he rubbed the leaf over the belly button and with his mouth sucked the belly button saying he was removing bad blood. After repeating it several times he told the victim to remove her tight and panty. The victim at the point was nervous and became suspicious about all that the accused was doing, but could not call out or resist, as they were alone and the accused was his father -in - law

The victim obeyed him and removed her tight and panty and he instructed her to stand with her two legs apart. He then knelt down between the victim’s leg and rubbed the target leaf over the vaginal opening and then place his mouth over the victim’s vagina and sucked it and spite something out. He did that twice. All these times he did not undress, he had his clothes on.

The accused then told the victim "Wanem samting yumi tupela mekim imas indai namel long yu na mi tasol. Yu noken tokim narapela man". When the Accused was leaving the room he told the vitim, "Dispela em first round, second na third taim, bai yumi go long sex stret, nau bai mi passim bel bilong yu olgeta." He then left and followed his family to their garden. I was in fear so I later told my husband.

Ruling on Evidence

The Accused was charged for rape under section 347 (1) of the Criminal Code (Sexual Offences and Crime Against Children) Act 2002. The section states:

"347. DEFINITION OF RAPE.

(1) A person who sexually penetrates a person without his consent is guilty of a crime of rape.

Penalty: Subject to Subsection (2), imprisonment for 15 years.

(2) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, go imprisonment for life."

The two issues are firstly, whether the prosecution has established the element of sexual penetration. Secondly, if they prosecution has not established the element of sexual penetration, should the court in the exercise of it’s discretion and having regard to the seriousness of the allegation, struck out the matter and allow the police in the exercise of their discretion to lay a new charge of sexual assault under Section 349.

Having perused the evidence by the police prosecution, the court is of the view that the element of "sexual penetration" is not completed as defined by Section 6 (b) of the Act of 2002.

"6. SEXUAL PENETRATION.

Where the expression "sexual penetration" or "sexually penetrates" are used in the definition of an offence, the offence, so far as regard that offence, that element of it, is complete where there is: -

(a) the introduction, to an extent, by a person of his penis into the vagina, anus or

mouth of another person; or

(b) the introduction, to any extent, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person, other than in the course of a procedure carried out in good faith for medical or hygienic purposes"

In this case, the use of the mouth by the accused (part of his body) to suck the victim’s vagina twice does not, in my view, constitute or amount to sexual penetration. For the element to be established, the accused must have penetrated sexually with his penis or with part of his body like his tongue or with his finger into the vagina of the victim in the course of a procedure carried out in good faith for medical or hygienic purposes.

Even though the court is satisfied that there was consent was not obtained because the victim was of a mistaken belief that the act performed by the accused on her was for medical or hygienic purposes according to the meaning given to "consent" under section 347A of the Act, the prosecution has not established the element of sexual penetration to the satisfaction of this court.

The court therefore rule that there is insufficient evidence to commit the accused to stand trial in the National Court.

The court is also of the view that this is a serious case of breach of trust, especially when the allegation involves a victim who is according to PNG custom, is a daughter- in- law. Moreover, there is evidence that where the accused comes from, that is Malol Village in Aitape, the customary practice of birth control is only practice by the women folks not by men folk. Thus because of the seriousness of this allegation and in the exercise of discretion by the court, it is ordered that this case be struck out with a view that the Police in the exercise of their discretion may re-arrest the accused and have him charge for sexual assault under section 349 of the Criminal Code (Sexual Offences and Crime Against Children) Act of 2002.

The Court orders that the information on the charge of sexual penetration (rape) be struck out and the accused be discharged. The bail of K500.00 paid by the accused on Receipt No. Y 30883 is to be refunded to the accused accordingly.

Chief Sergeant Simon Maigu for the Prosecution
Mathew Tomi, the accused for hiself.