Police v Mea [2020] PGDC 39; DC5027 (26 October 2020)

DC5027

Papua New Guinea

In the District Court

Held at Waigani

Sitting in its Committal Jurisdiction

Comm. Nos. 1150 of 2019

BETWEEN:
THE POLICE
Informant

AND:
OREX MEA
Defendant

Port Moresby: T. Ganaii, SM
2020: 26^th October

COMMITTAL PROCEEDINGS – One count of Sexual Penetration contrary to section 229D (1) of the Criminal Code Act – Prima facie sufficiency of evidence to commit the defendant to stand trial in the National Court - Legal requirements for prima facie case - Presence of the elements of the charge - Evidence is sufficient to commit the defendant to stand trial in the National Court

COMMITTAL PROCEEDINGS – Child complainant’s statement show persistent sexual abuse – Accept that prima facie evidence is sufficient to commit to trial

COMMITTAL PROCEEDINGS – Procedure – Where defendant makes submissions on sufficiency of Evidence and makes admission – Court to Consider PHUB and make independent assessment on sufficiency of Evidence
Cases cited
Akia v Francis PGNC 335; N6555
R-v- McEachern [1967-68] PNGLR 48
Maladina v Principal District Magistrate Posain Poloh [2004] PGNC 208
Yarume v Euga [1996] PGNC 24; N1476
The State –Masit [2017] PGNC 284, N6997 (24^th October 2017)

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

Counsel
Police Prosecutor: Koniu Polon For the Informant
In Person Defendant

RULING ON SUFFICIENCY OF EVIDENCE

26^th October 2020

Introduction
Ganaii, SM . This is a ruling on whether a prima facie case is made out within the meaning of Section 95 (1) of the District Courts Act (DCA) where all the evidence of the Prosecution is received in the form of a Police Hand Up Brief (PHUB) and the Court is required to consider whether it is sufficient to put the defendant on trial. Defence submission is also considered in this Ruling.

Charge

Original Charge – Sexual Penetration under section 229A
2. The defendant was originally charged on an information filed in Court for the charge of Sexual Penetration under section 229A of the CCA. This charge was read to the defendant on the 11 of July 2019 where he heard and understood.

New Charge – Persistent Sexual Abuse under section 229D
3. On the 25^th of November 2019, the Police prosecutor tendered the PHUB containing a new charge of Persistent Sexual Abuse brought under section 229D (1) of the CCA. This ruling is based on the present charge of Persistent Sexual Abuse under section 229D of the CCA.

4. The charge reads that between the 21^st day to the 24^th day of June 2019, at Mamano Street, Tokarara, the defendant engaged in an act of persistent sexual abuse of a child under the age of 12 years, then ten years old by inserting his fingers and penis into her vagina and anus.

Facts
5. According to the facts contained in the PHUB, the child complainant is a Grade Four pupil at the Tengei Christian Academy at Vadavada, NCD. The defendant is a family friend of the child complainant’s family and resides with them at her parent’s house in Tokarara.

6. Police allege that on Friday the 21^st of June 2019 the school closed at 12 mid-day and the child was dropped off at her house. She was playing with her sister and when thirsty decided to go up to the house to get a drink of cold water. The defendant was in the house. He grabbed her, closed her mouth with his hand and forced her into her parent’s room. There he forcefully undressed her and sexually penetrated her vagina with his penis. He then squeezed her hand hard and threatened her not to tell her parents. The child survivor was scared and didn’t tell anyone including her parents.

7. On a later date on the on the 24^th of June 2019, the child’s parents had not yet arrived home. The child survivor was in the house. The accused grabbed her and took her into the boy’s room. Again he forcefully undressed her and sexually penetrated her by inserting his penis into her. The accused was closing the child’s mouth with his hand. She bit his hand and when he let go she pushed him and ran out.

8. The Police also allege that the defendant did similar acts on the child on many other occasions but particulars of which including the dates the child is unable to remember. On the 25^th of June 2019, the child told her story of what the defendant had done to her to a close school friend of hers at school. The matter was reported to her parents and the Police.

Issue
9. The issue before this court is whether a prima facie case is made out and that is whether the evidence received from the prosecution is sufficient to warrant the committal of the defendant to stand trial at the National Court on the information laid.

10. The sub-issue is whether there is sufficient prima facie evidence on each elements of the offence of Persistent Sexual Abuse pursuant to section 229D (1) of the CCA.

The Law
The Law on Committal Proceedings

11. Part VI of the District Courts Act (DCA) provides the legal basis for committal proceedings specifically under Section 94 to Section 100 of the DCA.

12. The Committal Process whilst requires the Court to make a finding on the evidence presented by the Police, this process is very administrative in that the Court need only to form an opinion that there is a bona fide prima facie case against the Defendant; as per Akia v Francis ^[1]and R-v- McEachern^[2].

13. In the matter of Maladina v Principal District Magistrate Posain Poloh ^[3]His Honour Injia DCJ (as he then was); expressed in his opinion that the Committal process involves two phases, the first is when the Committing Magistrate makes a finding on whether or not there is sufficient evidence and whether a prima facie case is made out under Section 95 of the DCA on whether to discharge or commit the Defendant only after the Court administers an examination of a Defendant under Section 96 where the defendant is asked whether he desires to give evidence.

14. Furthermore, in the case of Yarume v Euga ^[4]the National Court said in respect to committal hearings that the process of committal requires proper and reasonable assessment of the evidence with a view to see whether all the elements or ingredients of the offence is present before he can commit the accused; Section 94B, 94C, 95 and 100 to be read together.

The law on the offending provision(s)

229D. PERSISTENT SEXUAL ABUSE OF A CHILD.

^[5](1) A person who, on two or more occasions, engages in conduct in relation to a particular child that constitutes an offence against this Division, is guilty of a crime of persistent abuse of a child.

Penalty: Subject to Subsection (6), imprisonment for a term not exceeding 15 years.

(2) For the purposes of Subsection (1), it is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.

(3) In proceedings related to an offence against this section, it is not necessary to specify or prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.

(4) A charge of an offence against this section –

(a) must specify with reasonable particularity the period during which the offence against this section occurred; and

(b) must describe the nature of the separate offences alleged to have been committed by the accused during that period.

(5) For an accused to be committed of an offence against this section –

(a) the court must be satisfied beyond reasonable doubt that the evidence establishes at least two separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting an offence against this Division in relation to a particular child; and

(6) If one or more of the occasions involved an act of penetration, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to life imprisonment.

(b) the court must be so satisfied about the material facts of the two incidents, although the court need not be so satisfied about the dates or the order of those occasions.

Elements
15. In the case of State v Makai [2009] PGNC 239; N3841 (15 December 2009), the court held that for an accused to be convicted of the offence of persistent sexual abuse of a child, the court must be satisfied beyond reasonable doubt that:

(1) he engaged in conduct

(a) in relation to the child that constitutes an offence under Division IV.2A of the Criminal Code;

(b) on two or more occasions;

(c) each occasion was on a separate day; and

(d) the material facts of the occasions are clear.

(2) The court does not have to be satisfied beyond reasonable doubt as to the dates or order of the occasions.

(3) The State does not have to prove each occasion of criminal conduct alleged in an indictment; two will suffice.

Prosecution Case
16. To prove its case the Prosecution produced nine (09) witness statements. The witness statements are of:

(1) RD – who is the child complainant. Her evidence is that the defendant sexually penetrated her on two or more occasions. She spoke of two specific dates and circumstances surrounding the commission of the offence. She also said there were more instances of sexual abuse.

(2) Onge Damagu – who is the child complainant’s biological mother. Her evidence is on how she learnt of the incidents. She also tells of the child’s date of birth. She also says the how the defendant came to live with them.

(3) AM– who is the child complainant’s best friend. She stated that when she learnt of what the defendant had done to the child complainant, she had reported to her grandmother Ms. Avia Koisen who is a lawyer.

(4) Avia Koisen – who is a lawyer and grandmother of the child complainant’s friend. Her statement is about how she learnt of the incident and reported to the school.

(5) Adrian Haru – who is the school principal of the child complainant’s school. He states of how the incident was reported to him and how he called the parents of the child to school to inform them.

(6) Olivia s Ephraim – who is the Health Extension officer with the Family Support Centre at the PMGH. She tells of her conduct of medical examination on the child and her findings in a Medical Report attached to her affidavit.

(7) Samuel Koy – who is a Police Photographer, attached to the National Forensic Science Center. He has taken and described a total of seven (7) photographs depicting the alleged crime scene and the child.

(8) Tinol Pakiapon – who is the Police Arresting Officer involved in the investigations and conduct of the police interview.

(9) David Blu – Is the corroborator in the conduct of police interview.

Documentary Evidence
17. Police rely on the following documentary evidence:

1. Record of Interview, both English and Pidgin versions. There were no admissions made.
   
2. Medical Report dated 27^th June 2019, Family Support Center, PMGH showing healing of area around vagina and anus of child and missing hymen.
   

100. Photo Copy of Cover and inside cover of Child Complainant’s clinic book, showing the child’s date of birth to be on 08^th of May 2009.This meant the child was ten years old at the time of commission of the specific two incidences of the 21^st and 24^th of June 2019.
     

4. Photographs, totaling to seven (7) depicting alleged crime scene and child complainant
   
5. Antecedent Report – not contained in PHUB. Not considered now.
   

Defence Submission
18. Defence submitted through a typed submission filed on the 10^th of February 2020 as follows:

1. At paragraphs 4 and 5 that he admitted to committing the offence and apolgised for not telling the truth to the police during the police interview; and
   
2. At paragraph 7, he admitted being raised by the child complainant’s family and regrets committing the offence.

19. It is to be noted that on the 22^nd of February 2020 the defendant informed the court that he will rely on his filed affidavit to make his submissions on sufficiency of evidence. The court in perusing the affidavit noted its contents and explained to the defendant that this process required him to make submissions on the PHUB and not give evidence. The court further explained to the defendant that his affidavit contained admissions and whether he was happy to give it to the court or talk to a lawyer. The defendant understood the court’s explanations and was happy for the court to receive his affidavit as his submissions on sufficiency of evidence. The court accepted the affidavit as submissions on sufficiency of evidence and explained that to the defendant. The defendant was happy to proceed. The affidavit was regarded as the defence submissions on sufficiency of evidence.
Prosecution Submission:
20. Prosecutions did not make any submissions.

Analysis of the Evidence and Consideration of Defence Submission:
21. In response to the defence submission, the court responds in the following manner:

1. The defendant was not assisted with a lawyer. The court had explained to him fully what was required of him to do and say in making submissions on sufficiency of evidence, including his right to have a lawyer represent him. He had heard and fully understood his options. He was happy to file his own submission which he did. He had admitted to committing the offence in his submission. He explained that he did not tell the truth during the conduct of his interview with the police.
   
2. The defence submission in itself is not evidence of commission of the offence. The court is required to look at the evidence in the PHUB to decide if there is a prima facie case and through admissions made in submissions o sufficiency of evidence. If the ROI contains admissions, these can be accepted as prima facie evidence in support of the allegations. In this instance, there are no admissions in the ROI. And the court cannot use admission through submissions on sufficiency to find a prima facie case. At trial, if the defendant decides to take a guilty plea, the trial court is obliged to independently confirm that plea with the court deposition or evidence in the PHUB.
   

100. There is sufficient prima facie evidence in the contents of the statement of the child survivor. She tells of more than two occasions on two distinct dates where the alleged acts of sexual penetration occurred by finger and penis penetration into the vagina and anus. She clearly remembers the circumstances and dates surrounding the commission of these acts of sexual penetration.
     

4. The medical report shows prima facie sufficient evidence of the child complainant’s genitalia (vagina and anus) being manipulated and that the hymen was missing. These are signs that may be consistent with sexual penetration.
   
5. There is prima facie sufficient evidence of the age of the child to be under 18 years old as per the child’s mother’s evidence and evidence from the Clinic or Birth book of the child.
   
6. Court is therefore satisfied that there is a prima facie case made out against the defendant on the evidence contained in the PHUB and not admissions made in the defendant’s submission.
   

Conclusion

22. Upon a requirement under Section 95 (1) of the DCA to make a determination on whether there is some evidence on each element of the offence to make out a prima facie case against the defendant to warrant his committal to the National Court and that is whether there is sufficient evidence on each element of the offence contained on the Police Hand Up Brief to warrant a committal on each charge as per the Information, I find sufficient prima facie evidence that Mr. Mea did commit the alleged offences of Persistent Sexual Abuse under section 229D (1) of the CCA. Consequently, I form a bona fide opinion that there is sufficient evidence against the defendant in order to commit him to stand trial.

Administration of Section 96
23. After the requirements of section 96 were explained to the defendant which he understood, including the explanation of his a right to a lawyer at that stage of the proceedings, he opted to remain silent.

24. The ruling on prima facie sufficiency of evidence is intact. There is sufficient prima facie evidence to make out a case against the defendant on one count of Persistent Sexual Abuse.

Final Orders

25. The court’s final orders are:

1. There is sufficient prima facie evidence to c committed the defendant to stand trial in the National Court on one count of Persistent Sexual Abuse under section 229D (1 )of the CCA;
   
2. The defendant is committed to stand trial in the National Court on one count of Persistent Sexual Abuse under section 229D (1 )of the CCA;
   
3. The defendant is to appear at the Waigani National Court, Criminal Listings on Monday 16^th of November 2020 at 9:30 am; and
   
4. Defendant is remanded in custody.
   

Police Prosecution For the Informant
Defendant In Person

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^[1] PGNC 335; N6555
^[2] [1967-68] PNGLR 48
^[3] [2004] PGNC 208
^[4] [1996] PGNC 24; N1476

5. ^[5]Section 229D of Part IV Inserted by No. 27 of 2002, s. 1.