Kede v Suku [2010] PGDC 15; DC963 (30 April 2010)

DC963

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE SITTING IT ITS CRIMINAL JURISDICTION

CR NO 05, 05 OF 2010

BETWEEN:

REO A. KEDE
Informant

AND:

JAMES NALI SUKU
Defendant

LIHIR: B. TASIKUL
2010: APRIL 30

RULING ON COMMITAL

1. BTASIKUL, The defendant James Nali Suku is charge for two counts. The first count is that on the 17th of February 2010 did engage in an act of sexual penetration with Wendy Ruambil, a child under the age of 18 years. Contravening s. 229A (1).
   
2. On the second charge he is did sexually penetrate another person namely: Wendy Ruambil without her consent. Contravening to s. 347(1) both charges are laid under the Criminal Code (Sexual Offences and Crime Against Children) Act, 2002.
   
3. According to files tendered by the prosecution there were five statements obtained from witnesses. They are the victim, Ruth Ruambil, Dr D. Wau and the two police investigation officers.
   
4. According to the victim statement she was at her house when the accused approached her to buy spear smoke. Instead he came from the back grab hold of her and push her to the ground, removed her clothes and under pants and have sex with her. He left the victim crying until her sister came and found.
   
5. She was question and she reveals what happen to her and they reported the matter to the police.
   
6. A medical report by Dr Wau however reveals that the victim appeared normal, except menstrual bloody staining. There was no hymen found.
   
7. As this is a committal preceding this court is empower under the District Court Act only to enquire into the evidence before it and satisfied its self as to whether there are sufficient evidence to commit the defendant to stands trial in the National Court.
   
8. The question is now whether there is sufficient evidence before me to commit this defendant to stand trial at the higher court.
   
9. There is no doubt that the defendant had sexual intercourse with the victim. Apart from her evidence there is no other person who witness what happen, except the sister who came in later and found the victim crying.
   
10. According to the medical report everything seems to be normal. There is no evidence of any form of bruise, tear or any other form of injuries, except blood from her menstrual.
    
11. Because there is lack of evidence to corroborate the victim’s statement, I must ask myself whether this is enough to commit the defendant.
    
12. Section. 352A. of the same Act provides that where a person is charge of an offence under this Act may be found guilty on uncorroborated testimony and the judge shall not instruct himself that it is unsafe to find the accused guilty because of no corroborated evidence.
    
13. This may be the case but as a tribunal of facts is this evidence before me is sufficient enough to commit the defendant. I think I have discretion to satisfy myself on the evidence before me.
    
14. I therefore rule that the evidence now before me is not sufficient enough to commit the defendant on this charge of sexual penetration of Wendy Ruambil without her consent. I therefore dismissed this charge against the defendant.
    
15. On the remaining charged there is no evidence before me that the victim is under the age of 16 years. The only evidence by Ruth Ruambil is that her sister is sixteen years old. A plain statement like this is not enough, there must be evidence of her age as this is one of the most important element of this charge.
    
16. Evidence to justify the age of the victim must of document such as birth certificate, dental records, clinic book and etc.
    
17. I therefore also not satisfied that there is sufficient evidence to commit the defendant to stand trial. I therefore dismissed the matter and discharge the defendant. His bail granted in the National Court is refunded.