Police v Koupa [2020] PGDC 13; DC4065 (14 October 2020)

DC4065

Papua New Guinea
[In the Criminal Jurisdictions of the District Court Held at Waigani]

CB NO 1962-9453 OF 2019

BETWEEN:

THE POLICE
[Informant]

AND:

ANAWAI KOUPA
[Defendant]

Paul P. Nii
14th October 2020

PROCEEDINGS: -Charge- One count of Sexual Touching contravening to Section 229B(1)(a) of the Criminal Code Act 1974-The contents of the HUB should establish a prima facie acceptable evidence to commit the Defendant. The burden of the evidence should regulate a Defendant’s faith on whether he/she should be committed or discharged.

COURT’S AUTHORITY: -Part VI of the District Court Act endows the committal court to measure evidence to warrant its substances are satisfactory to commit an accused, it does not consider its trustworthiness and standing.

PNG Cases cited:

Yarume v Euga [1996] PGNC 24; N1476
State v Michael Raymond Martin And Andrew Girau [29 June 1989] N742.
State v Epi (No. 1) [2017] PGNC 52; N6674 (9 March 2017)
State v Bernard [2010] PGNC 231; N4538 (25 June 2010)

Overseas cases cited:
Nil

References

Legislation
Criminal Code Act 1974 Chapter 262
District Court Act, Chapter 40

Counsel
Police Prosecutor: Sgt Sangam For the Informant
Ms Peter: Office of the Public Solicitor For the Defendant

DECISION ON SUFFICIENCY OF EVIDENCE

14^th October 2020

1. INTRODUCTION

NII, Magistrate. This is my ruling on whether a prima facie case is demonstrated pursuant to Section 95(1) of the District Court Act after evidence in the HUB^[1] and Defense case are carefully measured.

2. CHARGE

The accused is charged with one count of Sexual Touching contravening to Section 229B (1)(a) of the Criminal Code Act 1974 Chapter 262^[2]

I must demonstrate to the parties how I arrived at my ruling. This is a case where HUB was tendered in court by the Prosecutor on the 8^th July 2020 and on the 30^th September 2020, Ms Peter informed the court that the accused would make no submission on sufficiency of evidence but for the court to consider the HUB and make a ruling. Afterwards, Prosecutor Sangam also adapted Ms Peter’s approach to his case and now is the court’s ruling on evidence in the HUB.

3. FACTS

The Defendant was arrested by Police on the 4^th December 2019 for a sexual offence where for “Sexual Purposes fondled with his hand the sexual part of a child under the age of 12 years namely the vagina of Dianne Wai (herein the victim) then four (4) years old”.

The above facts holding the elements of the charge are adapted from the Police information sheet containing the charge, nonetheless, a passing background of the incident connecting the accused and the victim is summarized below:

1. The victim is aged 4 years old and originates from Parua village in the SineSine Yongomul District of Simbu Province but presently lives with her parents at seven (7) mile in NCD.
   
2. The Accused is aged 28 years old and comes from a mix parentage of Goilala in Central and Morobe Province. He is single not employed and lives at seven (7) mile in NCD.
   

100. Police file shows that on 28^th November 2019, between the hours of 2pm and 3pm at 7 mile in NCD, the accused enticed the victim into where he was in the pretext of offering her a scorn to eat and thereafter slipped his hands in between her legs and started fondling her vagina until the victim’s grandmother caught the act and subsequently alerted the victim’s mother.
     

4. The Defendant was later taken to the Police station by the victim’s mother and on the 4^th December 2019, he was formally arrested and charged for the offence of sexual touching under Section 229B(1)(a)^[3].
   

4. ISSUE

The primary issue for consideration by this court is whether a prima facie case is reasonably proven which is whether Police evidence in the PUB is agreeable to commit the Defendant.

5. THE WRITTEN LAW

1. The Law on Committal Proceedings
   

The value of the committal court is to weigh all the evidence in the Police file including the ROI, witness statements, Confessional statements, exhibits and all other documents that are contained in the PHUB.

Sections 94 to 100^[4] delivers the accurate foundation for the whole Committal Proceedings, nevertheless, the genesis of the above is engaged from Section 95 of the District Court Act which is in the succeeding terms:

95. COURT TO CONSIDER WHETHER PRIMA FACIE CASE.

(1) Where all the evidence offered on the part of the prosecution has been heard or received, the Court shall consider whether it is sufficient to put the defendant on trial.

(2) If the Court is of opinion that the evidence is not sufficient to put the defendant on trial for an indictable offence it shall immediately order the defendant, if in custody, to be discharged as to the information then under inquiry.

(3) If the Court is of opinion that the evidence is sufficient to put the defendant on trial for an indictable offence, it shall proceed with the examination in accordance with this Division.

However, when administering Committal hearing under Section 95^[5] the substances of the HUB should please the obligation under Section 94C^[6] which is in the ensuing terms:

94C. REGARD TO EVIDENCE, ETC.

(1) When conducting a committal hearing under this Part, the Court may, subject to Subsection (2), have regard to–

(a) the evidence contained in a written statement; and
(b) documents and exhibits,

of which a copy has been served on the defendant under Section 94(1) or made available for inspection under Section 94(2).

(2) Before admitting a written statement, the Court shall be satisfied that the person who made the statement had read and understood it, or if unable to read, had had it read to him in a language that he understood

The Maela v Yahamani ^[7]case remarkably clarifies the determination of the committal courts. The committal court is an administrative process where it measures the powers and flaws of the evidence of any indictable offences^[8] before it is referred to the National Court for trial.

The principal aim of the committal court is thus to contemplate whether the evidence enclosed in the police file creates a prima facie occasion to rationalize a trial proper in the National Court

Consequently, the court at this juncture maneuvers as a filtering mechanism where it weights the evidence to inaugurate a prima facie case to ensure the evidence is sufficient such that it will go through the committal channel for a trial proper at the National court. Nonetheless, if the committal court is of the opinion that the contents of the HUB lacks assessment to qualify through the channels of committal then the court can terminate the information holding the charge(s) together with all its substances in the HUB.

2. The Law on the charge of Sexual touching
   

229B. 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

(b) compels a child under the age of 16 years to touch, with any part of his or her body,the sexual parts of the acused person’s own body,is guilty of a crime.

Penalty: Subject to Subsection (4) and (5), imprisonment for a term not exceeding seven years.

6. THE CASE LAW

Elements of the offence

It is imperative for the court to cautiously assess and weigh the elements of the offence to ensure that the evidence in the HUB connects the offence. This is the principle in the State v Michael Raymond Martin & Andrew Girau^[9]

To establish an offence of Sexual Touching, Prosecution must demonstrate their case beyond reasonable doubt the elements of the charge with corresponding evidence in the HUB. Each and every elements of the charge should substantiate the offence to ensure prosecution has a case on merit founded on evidence that would likely to be tested during hearing on evidence before the case is graduated to the trial court.

The National court case of State v Epi^[10] delivers that the offence of sexual touching involves five (5) element which are: -

1. A person
2. For sexual purposes

100. Touches

4. Sexual part of a child
5. The child is under 12 years’ old
   

All these elements must be satisfied by the Prosecution with evidence to have the accused committed.

7.PROSECUTION CASE

Prosecutor Sangam made no submissions but asked the Court to consider the evidence in the HUB. Prosecution case is encircled in the Police Hand Up Brief (Police File) in the form of witness testimonies and documentary evidence including medical report among others. The following are State witness:

Witness statements

1. Dianne Wai- the witness is the victim and she will identify the accused and testify in court about what the accused did to her on the 28^th November 2019 at 7 mile, NCD.
2. Mary Wai- She is the victim’s grandmother and she will testify to the court what she saw and what the victim told her.

100. Lenessa Vincent -This witness is the victim’s mother and she is going to testify in court about how she attended to the victim after the incident happened to her daughter and she will also testify to the court her daughter’s date of birth.
     

Expert statements/Documentary evidence

1. The victim’s medical report regarding sexual touching was conducted by Dr Deborah Panao, an Obstetrics and Gynecology Registrar who works with Port Moresby General Hospital. The medical report was conducted on the 13^th December 2019.
2. Record of Interview (ROI)-Containing the Defendant’s responses to an interview conducted at the Police station by Police.

100. Samuel Koy-this witness is the Police photographer, he took pictures of the victim and the location of the incident. He will testify in court where he took the photographs.

4. No confessional statement was found as part of the witness nonetheless an antecedent report is not relevant at the moment.
   

Police Statements

1. Lineth Namea- the witness is the arresting officer and also the interviewer, she will testify in court what transpired between her and the accused during the interview.
2. Adrinan Kamasaunga- The witness is the corroborator; she will testify in court what transpired during the interview.
   

Police Prosecutor Mr Sangam made no submission but asked the court to contemplate the evidence in the HUB and make a ruling and hence I went through the file and assessed all the evidence in the police file. All evidence in the Police file was assessed, including the evidence of witness statements, expert statements and statements from police.

8. DEFENSE CASE

Defense made no submission: -

Ms Peter for the accused told the court that the Defendant will make no submission and asked the court to consider the Police Hand Up brief and make a ruling.

For the interest of Justice, I must be properly assisted before arriving at a ruling on committal. I therefore went through the Police file or the HUB and read the Defendant’s record of interview to hook a perfect glimpse about his side of the story. When asked by the Police whether he had touched the victim’s genitals, the Defendant responded at page 3 of his record of interview as I quote in the pidgin language “mi holim but han blo mi no go inside the hul blo Diana” (end of the quote). The Defendant says that he used his right hand to touch the victim’s vagina but says he did not penetrate the victim’s vagina with his fingers.

The Defendant says that he only touched the victim’s vagina but did not do anything with his fingers. He further says that it was his first time to touch the victim’s vagina.

9. CONSIDERATION OF THE PROSECUTION CASE

My response to the Police case based on the Examination of Evidence in the Police File:

Police file contains statements of Dian Wai(victim), Lenessa Vincent(mother) and Mary Wai(grandmother). All their statements gave an account of what happened during the incident and shortly thereafter. All their statements connect to the incident. Although the law under section 229H^[11] requires that the evidence of one witness is sufficient enough to find someone guilty for crimes after trial in the National Court, for the commitments of this hearing, I am satisfied that all the witness statements are sufficient enough to make a case against the Defendant. The law on the importance of one witness is below:

229H CORROBORATION NOT REQUIRED.

On a charge of an offence against any provision of this Division, a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself or herself that it is unsafe to find the accused guilty in the absence of corroboration.

The contents of all the other witness including expert and police statements provides an unblemished picture of the incident at the time and afterwards. On the face of it, the evidence in the Police file is sufficient enough to warrant a committal. This outcome is purely based on the assessment on sufficiency of evidence contained in the Police file and nothing else. I have adapted the principle in the Maela v Yahamani^[12] by weighing all the evidence and satisfied that there is sufficient evidence to warrant a committal against the Defendant.

10. CONSIDERATION OF THE DEFENSE CASE

The accused stated in his record of interview that he had touched the victim’s vagina with his right hand and he had also stated that it was his first time to touch the victim’s vagina. The Defendant maintained that he had only touched the victim’s vagina but did not penetrate it with his fingers. The law on sexual touching including the genitals means touching the vagina of a female and hence the issue of not inserting the finger is unrelated. The indication of touching a female’s vagina is sufficient enough to attract the charge of sexual touching under section 229 B(1)(a)^[13]

Section 229B(2)^[14] describes sexual parts as groin, buttocks and breast including the genitals (vagina and penis). Any person including both male and female or any other sex is not authorized by law to touch for whatever purpose including sexual touching on another person. Sexual parts^[15] of a person are sacred area, it is a no-go-zone of a person’s body where no person is allowed to go closer or touch. Those areas of a person’s body are out of bound. Therefore, there is enough evidence to establish that the accused had trespassed on the victim’s private space.

The law requires that touching a person’s sexual parts including vagina is a crime. The law does not provide avenues for excuses such as only touching without inserting fingers or touching it for the first time. The Defendant’s assertion contained in his evidence that he only touched the vagina is sufficient enough to tie the offence of sexual touching.

11. EVALUATION

When administering the process under Section 94C^[16] all witness statements must be carefully evaluated and assessed to ensure the evidence is sufficient enough to permit a committal. This court’s function is not to enquire and investigate on the evidence but to assess and ensure there is sufficient evidence covering all the elements of the charge of Sexual Touching in the HUB.

This court must be satisfied that All the elements of the offence of sexual touching must be supported by the evidence in the PUB.

The Principle in State v Bernard ^[17] is that a Defendant cannot be committed if there is inadequate evidence covering the elements of the offence. The evidence must demonstrate a strong case against the Defendant. The evidence must not be tainted, weak and incredible since it will not make a case against the Defendant. Therefore, this court must be convinced that there is evidence each to satisfy all the elements of the offence of sexual touching. The five (5) elements of sexual touching are: 1) A person, 2) For sexual purposes, 3) Touches, 4) Sexual part of a child, 5) The child is under 12 years’ old.

Therefore, I am satisfied that a person(accused) for sexual purposes (intention) to touch Sexual part (vagina) of a child (since the victim was 4 years at the time). There is sufficient prima facie evidence satisfying all the elements of the charge of Sexual touching pursuant to Section 229B(1)(a) of the Criminal Code 1974, Chapter 262.

12. CONCLUSION

I have assessed the police file and satisfied that there is sufficient evidence to progress a prima facie case to commit the Defendant.

13. ORDER

1. There is sufficient evidence to commit the accused to stand trial in the national court.
   

Public Solicitors For the defendant
Police Prosecutor For the State

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^[1] Police Hand Up Brief, police file including all witness statements and state case is contained in this brief.
^[2] Criminal Code Act 1974 Chapter 262
^[3] supra
^[4] District Court Act, Chapter 40
^[5] supra
^[6] District Court Act, Chapter 40
^[7] [2010] PGDC 28; DC1038 (8 April 2010)
^[8] In many common law jurisdictions including PNG, an indictable offence is an offence which can only be tried on an indictment at the National court after a preliminary hearing by a committal court to determine whether there is a prima facie case to answer.
^[9] [29 June 1989] N742.
^[10] (No. 1) [2017] PGNC 52; N6674 (9 March 2017)
^[11] Criminal Code Act 1974
^[12] supra
^[13] supra
^[14] Criminal Code Act 1974 Chapter 262
^[15] buttocks and breast including the genitals (vagina and penis)
^[16] Supra
^[17] [2010] PGNC 231; N4538 (25 June 2010)