Police v Gema [2020] PGDC 14; DC4066 (14 October 2020)

DC4066

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

CB NO 9453-1962 OF 2019

BETWEEN:

THE POLICE
[Informant]

AND:

ANDREW GEMA
[Defendant]

Paul P. Nii
14th October 2020

Indictable offence- charge of Indecent Act infringing Section 229(C)(1) of the Criminal Code Act 1974-Court will assess the Police File tendered in court to establish a prima facie suitable evidence to warrant a Committal of the Defendant.

Committal Court- this court will manage the process under sections 94C & 95 of the District Court Act when determining committal.

Sexual Parts- Consideration of other sexual parts apart from the ones covered in Section 229B(2) of the Criminal Code Act, the Law is noiseless, areas close to the vagina apart from the groin are not incorporated by the classification as sexual parts but then what are they? Further finding reveals are sexual parts.

PNG Cases cited:

Maela v Yahamani [2010] PGDC 28; DC1038 (8 April 2010)
Yarume v Euga [1996] PGNC 24; N1476
State v Bernard [2010] PGNC 231; N4538 (25 June 2010)

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

Valuation of Evidence in the Police file

14^th October 2020

1. INTRODUCTION

NII, Magistrate. This is my ruling on whether a prima facie case is made out within the meaning of Section 95(1) of the District Court Act after when evidence in the Police HUB^[1] and Defense case are wisely evaluated.

2. CHARGE

The accused is charged with an offence of Indecent Act infringing Section 229C (1)of the Criminal Code Act 1974 Chapter 262^[2]

No submissions from the Prosecutor and the Defendant about evidence in the police file. HUB was tendered in court by the Prosecutor on the 10^th September 2020. Parties let the court to assess the file and come up with a ruling.

3. FACTS

The Defendant was arrested by Police on the 16^th June 2019 for an Indecent Act to wit “put his hands into the child’s elastic trouser and touching her sexual part; directed at a child under the age of twelve (12) years, namely Olivia MANGIPU, then aged 05 years old”. This summarized version of the facts which establishes the elements of the charge are taken from the Police information while the rest of the facts are follows:

1. The victim is a female aged five (5) years old from East New Britain and Southern Highlands parentage who resides at Batari street at Morauta in National Capital District. She currently attends Sunny Bunny and in preparatory class. The accused also resides at the same place as the victim and he is between the ages of 60 -70 years and comes from Woitape in Central Province. Police allege that on 9^th June 2020, the Defendant went and sat close to where the victim and some children were playing.
   
2. Police allege that the Defendant then spoke to the victim and he quickly put his hands into her elastic trousers and touched her vagina and removed his hands. Police further allege that the whole incident was witnessed by a Pamela who is the victim’s big sister (6 years then) who went and alerted the incident to the victim’s aunty and mother. The Defendant was subsequently taken to Gordon’s Police station where he was charged with the offence of Indecent Assault directed at a child under the age of (12) years old contravening Section 229C(1) of the Criminal Code Act.
   

4. ISSUE

The court will consider whether a prima facie case is practically proven and that is whether the evidence in the PUB is affable to commit the Defendant.

The Law on Committal Proceedings

The court will assess the contents of the Police Hand Up Brief and will form an opinion. The court will weigh all the evidence in the police file and make an assessment on each of the elements of the charge to ensure there is sufficient evidence on each of the element to guarantee a committal of the Defendant. Following is the law on Committal:

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.

The process under section 95 is the spin-off of Section 94C of the District Court Act. Section 94C empowers the court to judiciously measure all witness declarations and any contents in the police file including all exhibits and expert reports. Nevertheless, apart from this, the court is sanctioned to administer and discharge its powers under sections 94-100 of the District Court Act by giving effect to same. Section 94C is follows:

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 court’s administration under Section 94-100 of the District Court Act is further asserted in Maela v Yahamani ^[3]. The foremost intention of the committal court is accordingly to envision whether the evidence encircled in the police file produces a prima facie occurrence to justify an appropriate trial in the National Court.

The committal court in exercising its authority under Section 5 of the District Court Act when managing committal, it should ensure that ALL the evidence in the police case is sensibly assessed to make sure no elements of the offence is left out. This court will exercise its authority as a purifying apparatus where it warily weighs the evidence to inaugurate a prima facie case to ensure the evidence is necessary to justify a committal.

Checks and balance should be directed on both cases^[4], the Police case and accused’s submission on evidence to make sure evidence in the Police file surpasses accused’s argument on evidence. A balanced and nondiscriminatory hearing is healthy for the administration of justice at the Committal hearing.

Following is the offending Law:

229C. INDECENT ACT DIRECTED AT A CHILD.

(1) A person who commits an indecent act directed at a child under the age of 16 years is guilty of a crime.

Penalty: Subject to Subsection (2) and (3), imprisonment for a term not exceeding five years.

5.PROSECUTION CASE

Prosecutor Sangam informed the court to rely entirely on the police file and make a ruling and hence the court has to consider the evidence in the Police file. The court will thus cogitate witness statements of Olivia Mangipa who is the victim and Pamila Mangipa the victim’s elder sister aged 6 years. The court will also look at the evidence of Nessain Jackson and Waal Jackson. Police investigation reports of Steven Aua and Rachael Pinda are also considered.

The Accused was taken to the Police station and was interviewed and his record of interview together with all the witness statements are considered and assessed. All the witness statements gave an unblemished account of what happened on the 9^th June 2020.

6. DEFENSE CASE

Defense made no submission. Ms Peter who was representing the accused told the court to rely on the Police Hand Up Brief and make a ruling.

Though there is no submission on evidence by the accused or by his Lawyer, for the interest of justice I should look at the record of interview.

7. CONSIDERATION OF THE PROSECUTION CASE

Should I accept or reject the evidence in the Police file? My response to the Police case based on the Examination of Evidence in the Police File:

I have considered the victim’s statement. The Victim states that the Defendant pulled her shirt up and slipped his hand down through her stomach and touched the victim’s vagina and quickly took his hand out. After taking the hand out, the victim heard the Defendant saying in pidgin language as I quote “ yes m tasol mi laik holim” (end of the quote).

The second statement that I have gone through is the victim’s elder sister Pamila Mangapu aged 6 years. She says she was with the victim and the Accused touched the victim’s vagina and removed his hands off the victim’s trousers when she caught him. This witness also says she heard the accused saying in pidgin language as I quote “m tasol ya mi holim” (end of the quote). The third and fourth statements are from Nessan Mangipu and Jackson Waal. These witness were notified of the incident by the victim and her sister.

Under the new law where the accused is charged, the National court will not require more than one witness to find an accused guilty. This means only one statement of the victim is sufficient enough to make a case against the accused. Although the law requires that an uncorroborated witness of one person can be considered, I have in my wisdom decided to consider all the witness so that it would enable me to draw my conclusion on a majority basis. I have therefore considered all the statements. The following is the law which requires court to consider statement of one witness and make a ruling:

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.

I have assessed all the evidence contained in the witness statements and contented that all statements are cleared to go through the channel of committal.

8. CONSIDERATION OF THE DEFENSE CASE

Defense did not assist the court very much but my assessment of the witness statements including the Accused’s record of interview has engaged me in a position to make a ruling.

Accused denied his involvement in touching the victim’s vagina but he maintains throughout the interrogation stage that he touched the victim’s stomach and nothing else. The Defendant says that he only touched the victim’s top meaning he touched his stomach apart from her vagina. Defendant admitted to touching the victim but he did that good-humoredly and hence no sexual intention was attached to his actions.

The Defendant moreover in his response during interview stated that after touching the victim, he said these words “that’s it’ or in the pidgin language would well be translated as “m tasol”

9. RULING

I have considered the accused’s statement in the record of interview and all the witness statements in the Police file. I have carefully assessed all of them corresponding to the evidence and the charge. Firstly, accused admitted to touching the victim on her stomach but not on her vagina. In order to know whether the Defendant had actually touched the victim’s vagina, I must first of all know where in the body is the vagina located. Form my research as a layman I found out that the vagina is found close to the pubic area and where the abdomen ends and legs begin.

Section 229B(2) of the Criminal Code Act describes sexual parts as the genital area, groin, buttocks or breasts of a person. For the purpose of my ruling I will consider genital area and that is the victim’s vagina. The law does not cover areas close to the genital as also sexual parts except the groin, but then what are these areas? Although the definition of sexual parts does not extend to these areas and the law appears to be silent, I find that the areas below the umbilical region where the Hypogastric (pubic region) is found and the areas close to where the abdomen ends and legs begin as also sexual parts because these body parts are near to the vagina and are also sensitive as the vagina. The victim may feel the same effect as the vagina if any of these areas are sexually affected or touched.

I will determine that the pubic area around the vagina that attaches to the bottom part of the stomach below the umbilical region as also sexual parts and therefore there is evidence to establish that when the Defendant touched the victims’ Hypogastric region, he had actually touched the victim’s genital which is the vagina.

Secondly, the Defendant was heard by the victim and her sister saying in the pidgin language as “ M Tasol ya mi holim’ after he touched the victim’s vagina meaning that was what he was touching. I cannot really conclude what the Defendant meant when he say these words but the fact that these words followed immediately after touching the victim’s vagina meaning these words connects to the offence or came about as a result of touching the victim’s vagina and therefore I am persuaded that it has a relationship with the Defendant’s action.

After assessing and weighing all the evidence in the Police file, I am now content that the Defendant said these words “ M Tasol ya mi holim” after touching the victim’s vagina. I must now conclude that there is enough evidence to make a case against the Defendant and that is the Defendant touched the genital area of the victim which is the vagina. The evidence in the Police file is demonstrating a case against the Defendant.

There is sufficient prima facie evidence for the charge of Indecent Act pursuant to Section 229(C)(1) of the Criminal Code Act

10. CONCLUSION

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

11. ORDER

1. Defendant is committed 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] [2010] PGDC 28; DC1038 (8 April 2010)
^[4] Police and Defense case and this including Defense submission on evidence and the Police Hand Up brief