Police v Timothy [2017] PGDC 45; DC3079 (31 July 2017)

DC3079

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL (COMMITTAL) JURISDICTION]

COM 29 of 2017

BETWEEN

POLICE

Informant

AND

JONAH TIMOTHY

Defendant

Goroka, L Sani, Magistrate

2017: July 31

CRIMINAL:

INTRODUCTION:

Due to the seriousness of bringing a person for trial before a Judge in the higher court the law requires that a preliminary examination be conducted by a Committal Magistrate to access the strength of the allegations that the accused person did commit the Indictable Offence.

OBJECTIVE:

The primary objective of the committal proceedings is to determine in the opinion of the committal court whether in good faith that there is “sufficient evidence” to warrant a person accused of an indictable offence to be sent to “Trial” in the National Court. This proceeding is conducted in accordance with the procedures outlined under sections 94B, 94C, 95 & 96 of the District Court Act, Ch. 40.

Cases Cited
Nil

References
Nil

Counsels

Lawyer for the Police, State Prosecution

Lawyer for the Defendant, In Person

31^st July 2017

RULING ON PROSECUTION EVIDENCE

L SANI, Magistrate:This instant case arose out of information laid by a Police Woman DetectiveConstable Angela Nickson, attached to the CID Section of Goroka Police Headquarters, E.H.P. The accused is Jonah Timothy aged 23 of Karilmar-Sine sine village, in Gumine, Chimbu Province, in Papua New Guinea. He has been charged for “Sexually Assaulting a child”under the age of 16 years, thereby contravening section 229B of PNG Criminal Code Act. Ch. No. 262 – Sexual Offences and Crimes against Children.

THE CHARGE:

2. Section 229B (1) (a). SEXUAL TOUCHING – (1) A person who for sexual purposes-

(a) Touches with any part of his or her body the sexual parts of a child under the age of 16 years; or

Is guilty of a crime.

3. Penalty:subject to subsections (4) and (5) - imprisonment for a term not exceeding 7 years.

PROSECUTION EVIDENCE:

BRIEF FACTS:

4. It is alleged that on the Thursday 23^rd of March, 2017, between the hours of 9:30 pm and 10:00 pm sexually assaulted victim namely Naomi Diamond. The nature of assault was that he held her tightly to himself, put her down on the cement between his legs and tried to kiss her. At the same time he attempted to put his hands into the victim’s skirt. In that instant the mother of the victim saw him and screamed loudly: “Hey Jonah! What are you doing?” Upon hearing the mother, he released the victim.

ASSESSMENT OF EVIDENCE:

5. ELEMENTS:

1. A person
2. Unlawfully
3. Sexual Assault
4. Victim
5. Under the age of 16 years
6. Date, time and place
   

Analysis Of Police Evidence:

6. Police produced two (2) eye-witnesses only. They are the complainant/victim and the mother of the victim who actually saw the accused in the act. She will confirm the victim – her daughter. No other material or documental evidence or exhibits to support the age of the victim.

(a) The person being the accused namely Jonah Timothy. Identified and supported by 1^st& 2^nd witnesses. The victim and her mother namely; Naomi and Josephine Diamond.
(b) Unlawful - The fact that there is no consent from the victim and the forced used kiss and touch the complainant/victim is not lawful.
(c) Sexual Assault – The two (2) witnesses – the victim and her mother’s evidence is identical. What happened to the victim is supported and confirmed by the victim’s mother.

The fact that he grabbed hold of her firmly without her consent and attempting to kiss her and put his hands into her skirt are sexual in nature.

(d) Victim – is the complainant namely; Naomi Diamond – gave her statement of what happened to her personally.
(e) Under the Age of 16 years - The facts according to her statement dated 25/4/2017, states that her Occupation-is a student at the syntax school. Date of Birth is unclear. No other evidence to support her age is known. No clinic Book to confirm victim’s age.
(f) Date, time and place – Both victim and her mother namely Naomi and Josephine, their evidence support and confirm the date, time and place the incident happened.

COURT FINDINGS:

7. All the written and oral statements received as part of evidence from the prosecution have been tested and analyzed to my dissatisfaction. The prosecution evidence did not fully meet the required standard for establishing all the elements of the charge.

Criminal Law and Procedure:

8. Just a reminder to the Police of the basic constitutional provisions and the constitutional rights of the accused should be administered with care meaning that more time should be allowed or given to the accused person to seek legal aid before the record of interview in conducted. A denial of that is a breach of such rights and contrary to section 37(3) (4) (a) (b) (c) (d) (e)& (f) spells it out clearly. Section42-44 are the key provisions which all the police personnel should exercise when dealing with offenders with all manner of dignity and courtesy even when exercising their powers of arrest and charge.

CONCLUSION:

9. Finally, the test is whether in the court’s opinion in good faith that there is a “sufficient prima-facie case” against the defendant?Re:R. –v- McEachern (1967-1968) PNGLR 48.

10. Based on the foregoing assessment and analysis of the prosecution evidence, administeringsection 95 of the District Court Act, Ch. 40, I have found in my opinion, that there is insufficient evidence against the defendant to put him on trial in the National Court.

11. COURT ORDER:

1. Case Struck Out.
2. Defendant is discharged from the information.
3. Bail of K500.00 is refunded.
4. Surety of K100.00 of Peter Wamil is refunded.
5. Surety of K100.00 of Lina Drua is forfeited to state for non-attendance in court.
   

Counsels

Lawyer for the Police, State Prosecution

Lawyer for the Defendant, In Person