Police v Gerepe [2018] PGDC 10; DC3080 (31 January 2018)

DC3080
PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL (COMMITTAL) JURISDICTON]

COM54-55 of 2017

BETWEEN

POLICE

Informant

AND

MATUS GEREPE

Defendant

Goroka: L Sani, Magistrate

2018: January 31

CRIMINAL: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 establish a Prima-facie Case”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 procedures outlined under sections 94, 95 & 96 of the District Court Act, Ch. 40.

Cases Cited:
Nil

References:
Nil

Counsel:

Lawyer for the Informant, Police Prosecution

Lawyer for the Defendant, In Person

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L SANI, Magistrate:This instant case arose out of an information laid by a Senior Police Woman Constable namely Nancy Lesera attached to the Criminal Investigation Division of the Goroka Police Headquarters, Eastern Highlands Province, Papua New Guinea. The accused is MATUS GEREPE aged 50 years of Titona village, Henganofi Sub-District of the Eastern Highlands Province. He was charged on for one count of sexually penetrating a child under the age of 16 years thereby contravening section 229A (1) of the PNGCCA – Sexual Offences & Crimes Against Children No.27 of 2002.

Brief Facts:

2. It is alleged that on the 29^th of June, 2017 at about 4:00 pm the accused came to where the victim was living with her adoptive parents and took the complainant/victim with the consent of the adoptive parents. The accused is the victim’s step-father and the victim is 14 years old now but at the time of the offense she was 13 years old. The victim’s date of birth is 19/09/2003. He told the adoptive parents that he was going to take her to her mother at ketarobo where they will collect some garden food and return her back.

3. The accused did not take her to her mother at ketarobo as anticipated but instead he took her to maiba village in Lufa where they stayed for 6 weeks. During that time he was hiding her and sexually penetrating her. On the 18^th of August, 2017 at 8:00 pm, the victim’s father and Nosi Kenny found the accused and the girlin the garden at ketarobo and brought her to the house. The very next day the matter was reported to the police where the accused got arrested and detained in the cells.

4. LAW: Section 229A - SEXUAL PENETRATION OF A CHILD

(1) A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime.
(2) If at the time of the offence, there is an existing relationship of trust, authority or dependency between the accused and the child, an offender under sub-section (1) is guilty of a crime, and is liable, subject to section 19, to imprisonment for life.

5. ELEMENTS OF THE CHARGE

1. A person
2. Did sexually penetrate
3. Without Consent
4. A child/victim
5. Under the age of 16 years
6. Whilst in the position of trust
7. Date, time and place
   

ASSESSMENT OF EVIDENCE

6. Prosecution is calling 4 witnesses including the complainant/victim and the 2 police witnesses which bring to the total of 6. Other evidence such as the medical evidence inclusive of the doctor’s report is filed for cross-examination. The victim’s clinic book and a statutory declaration to support the victim’s age are also filed.

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(a) A person – He is the accused namely Matus Gerepe aged 50 years old. He is identified by 4 witnesses identified and confirmed that the accused took the girl and sexually penetrated her.
(b) Date, time and place - The accused abducted or kidnapped the victim from her adopted parents and had sexual intercourse with the victim between 29/06/2017 – 18/08/2017, till the day she was found with him hiding under the banana trees in the garden around 8:00 pm.
(c) Without consent - The complainant/victim is vulnerable to harmful effects inflicted upon her body by the accused being over the age of 50 used force to accomplish his sexual egos.
(d) A child/victim - The complainant namely YAYKO BARAVE is the victim in this case. Her statement is the original recount of what trans-fired between the accused and herself. Other 3 witnesses’ statements confirm her identity.
(e) Under the age of 16 years - The complainant was 13 years old at the time of offence. The victim’s age is also confirmed by the biological mother on the statutory declaration and the clinical book.
(f) Whilst in the position of trust –The accused is the step-father of the complainant/victim. The victim is the biological daughter of witness SHELLY NAKIVE (accused’s wife).

7. Medical Evidence -On the 28/8/2017, Examination as diagnosed by Dr. Bill Uvako-CMO as endorsed by a/CMO-Dr. Eri Ebos on affidavit reports that the SEXUAL PENETRATION did take place due to absence of hymen in the victim’s vagina except for the male sperm was negative due to the victim taking shower before the examination.

8. Photograph – The complainant/victim’s photograph was taken on 16/10/17 at the DJ Haus- Goroka after she turned 14 years old in September, 2017.

9. Record of Interview: Q14-Q18-The accused admitted to having sexual intercourse with the girl because her mother who was his wife was not at home. He also admitted to having sex with the victim knowing that he was the step-father which was a relationship of trust.

10. Clinic Book - Confirms her age and date of birth. Her biological mother’s affidavit is filed to support her true age.

COURT FINDINGS:

11. The Prosecution Evidence containing both written and oral statements of 4 witnesses inclusive of other material evidence has all been analyzed and tested to my satisfaction. There is more than enough evidence and is credible to support all the elements of the charge. The R.O.I also shows that the accused admitted to kidnapping the girl and took her from her adoptive parents so that he can sexually assault her for reasons known to him and her biological mother. The accused - Matus Gerepe is also in the position of trust of whilst he knowingly and sexually assaulted the complainant/victim namely Yayko Barave whose his daughter.

CONCLUSION:

12. Finally the test is whether in the court’s opinion in good faith. There is ‘sufficient Prima-Facie case’ against the Accused/defendant to answer in the National Court?

13. Based on the foregoing Assessment and Analysis of the Prosecution Evidence, whilst administering Section 95 of the District Court Act, Ch. 40, I find in my opinion, that there is “SUFFICIENT EVIDENCE” to establish a “PRIMA-FACIE CASE” against the accused/defendant to answer in the National Court.

14. Section 96 – Court administered section 96 – Defendant is asked whether he wishes to say anything towards the charge.

15. COURT ORDER:

1. The defendant is committed to the National Court for Sentence on the 1^st count.
2. That this case containing all Prosecution HUB files, any exhibits, materials, documents and court depositions be transferred to the National Court A/Registrar for call-over on 12/2/2018 at 09:00am.
3. That the defendant be notified promptly of the same by the A/Registrar.
4. That the defendant be remanded in CIS Bihute, and
5. That a remand warrant be issued forthwith
6. On the 2^nd Count –There is insufficient evidence to establish a prima-facie case against defendant on this count. Prosecution did not tender hub file on the charge. Case struck out and defendant is discharged.
   

Dated atGoroka on the 31^st of January, 2018.

Counsel:

Lawyer for the Informant, Police Prosecution

Lawyer for the Defendant, In Person