Police v JK [2020] PGDC 16; DC4072 (2 November 2020)

DC 4072

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS COMMITTAL JURISDICTION]

Comm. No 1442 of 2019
BETWEEN

THE POLICE
Informant

AND

JK
Defendant

Waigani: S Tanei

2020: 2^nd of November
      

COMMITTAL PROCEEDINGS - Charge- One Count of Sexual Touching contrary to section 229 B (1)(a) of the Criminal Code Act– Is the Police Evidence sufficient and prima facie sufficient to commit the Defendant to stand trial at the National Court.

COMMITTAL PROCEEDINGS – Legal requirements for prima facie case – Presence of the elements of the charge of Sexual Touching – Evidence is sufficient to commit the Defendant to stand trial in the National Court.

Cases Cited

Akia –v- Francis[2016 ] PNGC 335; N6555
Yarume v Euga [1996] PNGNC 24; N1476
State –v- Epi (No.1) [2017] PNGNC52; N6674
The State –v- Tommy Nand [2014] N5591
The State –v- Inabin [2018] N7287.

References

Legislation

Criminal Code Act
District Courts Act

Counsel

Senior Constable Peter Samghy, for the Informant

Peter, A., for the Defendant

RULING ON SUFFICIENCY OF EVIDENCE

2^nd November 2020

S Tanei: This is a ruling on whether there is sufficient evidence in a Police Hand up Brief to commit the Defendant to stand trial at the National Court pursuant to section 95 (1) of the District Courts Act.

CHARGE:

2. The Defendant is charged with one count of Sexual Touching under Section 229B (1)(a) of the Criminal Code Act.

FACTS:

3. Police say that on Sunday, 25^th August 2019, at around 12.30 pm and 1pm at 9 Mile, Morobe Block in the National Capital District, the victim, 4 years old, was playing around her house when the Defendant lured her with a two kina note and took her to the side of the house where he removed her skirt and rubbed his penis around her vagina, then he fondled her vagina with his fingers

4. The victim reported that, when he was doing that some liquid like milo came out of his penis and he rubbed it on her vagina. The Defendant then let go of the victim when he heard the victim’s mother talking.

5. The victim cried and reported the matter to her mother that the Defendant rubbed his penis (Bolo) on her atete (vagina).

6. The matter was reported to Police and the Defendant was apprehended and taken into custody. The Defendant denied sexually abusing the victim on the date and time when he was questioned by the Police. He was then arrested and charged for sexual touching of a child under Section 229B (1)(a) of the Criminal Code Act.

ISSUES:

7. The Court is faced with the issue of whether the evidence in the Police Hand Up Brief meets all the elements of the Offence of Sexual Touching and whether it is sufficient to commit the Defendant to stand trial at the National Court.

THE LAW

8. The law on Committal Proceedings is found in sections 94 to 100 of the District Courts Act.

9. Section 95 of the District Courts Act provides for the function of the Committal Court. It provides that;

“95. COURT TO CONSIDER WHETHER PRIMA FACIE CASE.

(1)34 35Where 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.”

10. There are a number of cases that deal with the powers of the Committal Court. The most notable are Akia –v- Francis[2016] PNGNC 335; N6555 and Yarume v Euga [1996] PNGNC 24; N1476. In those cases, the Court held that the Committal Court’s power is to weigh out the evidence that is presented by the Police through a Hand Up Brief and see if the evidence meets all the elements of the offence or charge. If there is sufficient evidence, the Defendant will be committed to Stand Trial at the National Court. If there is insufficient evidence, the Defendant will be discharged.

11. The Defendant was charged with one count of Sexual Touching under section 229 B (1)(a) of the Criminal Code Act.

12. Section 229B (1)(a) of the Criminal Code Act provides that;

⁷⁵(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.

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

13. In the case of The State –v- Epi (No.1) [2017] PNGNC 52; N6674, the Court held that the offence of Sexual Touching under section 229B (1)(a) of the Criminal Code consists of the following elements;

• A person
• For sexual purposes
• Touches
• Sexual part of a child
• The child is under 16 years old
  

These elements are also mentioned in the cases of The State –v- Tommy Nand [2014] N5591 and The State –v- Inabin [2018] N7287.

14. I am tasked to weigh out the evidence contained in the Police Hand Up Brief and check if all the elements of Sexual Touching under section 229B (1)(a) of the Criminal Code Act are met by the evidence and that the evidence constitute a prima facie case to commit the Defendant to stand trial at the National Court.

Defendants’ Submissions

15. Ms. Peter, as Counsel for the Defendant, submits that the evidence contained in the Police Hand Up Brief is insufficient to warrant a committal to the National Court. She submits that the evidence is insufficient due to the following reasons.

16. First, there is no evidence identifying the Defendant as the perpetrator. She submits that all the witness statements are hearsay, except for the victim.

17. She also submitted that the medical report cannot be used as evidence as it has not complied with the requirements under section 37 of the Evidence Act.

Prosecution’s Submissions

18. Senior Constable Peter Samghy of Police Prosecutions relied on written submissions filed on 10^th September 2020 and submit that there is sufficient evidence to commit the Defendant to stand trial at the National Court.

19. First, the prosecution submit that there is no issue as to identification as the victim clearly identified the perpetrator as Damu. He was seen at Eveadana Police Barracks. The Defendant then ran away after he was chased by the victims father and brothers. He was eventually caught at Morobe Block.

20. Second, they submit that the Medical Report was done by a qualified medical practitioner at the Port Moresby General Hospital (Obstetrics and Gynaecology) namely Dr. Marilyn Morris. This was done after she examined the victim. The report confirms that the victim’s vagina was fondled.

21. The Prosecution also submit that pursuant to section 229H of the Criminal Code, there is no need for corroboration of the victim’s story. The victim’s testimony is sufficient evidence.

POLICE HAND UP BRIEF

22. The Police Evidence in the Hand Up Brief consisted of the following;

1. Witness Statements
   1. EK

EK is the victim in this case. She was interviewed by Police Woman Constable Adrianna Kamasunga on 27^th August 2019 where she told the Police of what the defendant did to her on 25th August 2019. She identified the Defendant as Damu and stated that the Defendant lured her with a K2 note and took her to the side of a nearby house where he removed her skirt and fondled her vagina with his finger. He also masturbated while fondling her until he ejaculated.

2. Marian Kelly

This witness is the victim’s mother. She stated that on Sunday 25^th August 2019 she and the victim were preparing to do laundry. The victim took her clothes and went out of the house first. She stepped out of the house a few minutes later to do their laundry when the victim ran to her from the back of their neighbour’s house. The victim cried and told her that Damu touched her vagina and ejaculated on her. She also saw the victim holding a K2 note and asked her who gave her the K2 note and she said it was Damu. The Defendant jumped over the fence and ran away into the settlement. He was followed and caught by Marian Kelly’s eldest son and was later brought to the Boroko Police Station.

100. Arnold Kelly Kindalg

This person is the victim’s father.

He states that on 25^th August 2019 between 1pm and 2 pm, he was at home at Edevana 9 mile Police Flats.

He states that his wife was going to do laundry at that time. About 10 minutes after his wife left the house, he heard her calling his name so he left the house and ran down. There his wife told him that the Defendant (Damu) did something to the victim. They checked the victim and found deposits of semen around her genital area. He then left the barracks with his sons to look for the Defendant. They found him at the first street of Morobe Settlement and beat him up. The Defendant was then taken to the Police Station at Boroko where he was detained. He then stated that he took the victim to Port Moresby General Hospital where she was examined by a Doctor.

4. Constable Adrianna Kamasunga
   

She is a Police Constable who assisted the Investigating Officer. She states that she interviewed the victim and obtained her statement on 27^th August 2019. She also Corroborated the Investigating Officer when she conducted the Record of Interview with the Defendant on 3^rd December 2019.

5. Constable Cathy Peter
   

This witness is the Investigating Officer. She stated that she was given this file to deal with on 27^th August 2019. She also stated that she conducted the Record of Interview with the Defendant on 3^rd December 2019.

2. Exhibits
   1. Victim’s Clinic Book - shows her date of birth to be 5^th January 2015
   2. Medical Report from Dr. Marilyn Morris dated 27^th August 2019 – shows that the victim was brought in for examination and confirms that the victim was the subject of sexual assault due to fondling.
   100. Original Record of Interview

The Record of Interview was conducted on 3^rd December 2019 at the CID Office at Boroko. During the interview, the Defendant denied the allegations by the victim and her family members.

Analysis of Police Hand Up Brief

23. I adopt the principles set out in the cases set out above and am of the view that in order for the Court to safely commit the Defendant to stand trial at the National Court for the offence of Sexual Touching under section 229 B (1)(a) of the Criminal Code, the evidence must satisfy the elements of the offence and these are;

1. A person – The perpetrator must be properly identified.
2. For sexual purposes – The Defendant must have an intention to perform a sexual act

100. Touches – The defendant must use any part of his body to touch the victim

4. Sexual part of a child – The defendant must touch the victim on his or her genital, groin, breast or buttock.
5. The child is under 16 years old – The victim must be a child under 16 years old.
   

FINDINGS

24. I have carefully considered the Police Hand Up Brief and have formed the opinion that the evidence satisfies all the elements of the offence of Sexual Touching.

25. Firstly, the Defendant is identified as the person who Sexually Touched the victim. The victim identified the Defendant as Damu. He is known by this name as he lives around the area where the victim resides. The defendant also confirmed in the Record of Interview that he is also known as Damu.

26. Secondly, The victim clearly stated in her statement to Police that she was touched by the victim on her vagina. The victim also stated that the Defendant masturbated and left semen on her private part.

27. Thirdly, the evidence showed that the victim is under 16 years old. Her clinic book shows she was born on 5^th January 2015. She was only 4 years old at the time of the alleged offence.

28. I uphold the submissions of Senior Constable Peter Samghy of Police Prosecutions in that Pursuant to section 229H of the Criminal Code, Corroboration is not required in this type of offences. Here, the Court can find the perpetrator in child sex offences guilty on the testimony of the victim alone.

29. I reject the submissions of Ms. Peter of Counsel for the Defendant in relation to whether the Doctor who examined the victim needed to swear an Affidavit stating her background and qualification pursuant to section 37 of the Evidence Act. This is because section 37 of the Evidence Act provides for specialist evidence during trial proper. This is not relevant at this stage. Here, the Court is only administering the witness statements, documents and exhibits and deciding whether they meet the elements of the offence and not hearing the matter. The Court accepts the Medical report from Dr. Marilyn Morris of Port Moresby General Hospital.

30. I note in the Defendant’s submission that the Defendant challenges the evidence provided by the Police and raises issues such as the victim’s mother’s duty to check her daughter and why the victim’s father did not take any picture of her daughter. These are issues that can be raised at trial proper.

31. It is my view that that the essential element of identification has been satisfied by the Police. The Defendant is known to the victim and the victim clearly identified him as the person who touched her vagina with his penis and fingers.

32. The other elements follow after one another and they are also satisfied by the evidence in the Police Hand Up Brief. The Defendant had an intention to perform a sexual act, he touched the victim on her vagina and the victim was less than 16 years old.

33. I therefore find that there is sufficient prima facie evidence to Commit the Defendant to stand trial at the National Court.

CONCLUSION

34. After carefully considering and examining the evidence in the Police Hand Up Brief, I am satisfied that all the elements of the offence of Sexual Touching under section 229B (1)(a) of the Criminal Code Act are covered by the evidence.

35. I am therefore satisfied that the Police Evidence is Prima Facie sufficient.

COURT ORDERS

36. The formal Order of this Court is that;

1. There is sufficient evidence to commit the Defendant to trial at the National Court.
   

Lawyer for the Informant Police Prosecutions

Lawyer for the Defendant: Public Solicitor of Papua New Guinea