Police v Paimuru [2020] PGDC 43; DC5031 (26 October 2020)

DC5031

Papua New Guinea

In the District Court

Held at Waigani

Sitting in its Committal Jurisdiction

Comm. Nos. 914 of 2019

BETWEEN:
THE POLICE
Informant

AND:
FRANCIS PAIMURU
Defendant

Port Moresby: T. Ganaii
2020: 16^th June, 26^th October

COMMITTAL PROCEEDINGS – Charge- One count of Sexual Penetration contrary to section 229A (1) of the Criminal Code Act

COMMITTAL PROCEEDINGS - Is Police evidence prima facie sufficient 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 in pidgin is taken with the certification clause - Her name is written on it – There is an unsigned English translation with no translation Certificate – Accept prima facie that the English version is an accurate translation of the pidgin version and is admissible

COMMITTAL PROCEEDINGS – Corroboration is not required – Is applicable also at Committal process

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: Joseph Sangam For the Informant
Ms. Peter, Public Solicitors For the defendant

RULING ON SUFFICIENCY OF EVIDENCE

16^th June, 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
2. The defendant stands charged with one count Sexual Penetration of a child under section 229A (1) the CCA. Subsection (1) is the offence provision and ss (2) is the penalty for perpetrating the offence on a child under the age of 12 years.
3. If the matter is committed to trial and the trial judge finds that the child is under 12 years old, it attracts a more severe penalty. For current purposes, the offence provision is s229A (1)^[1].

Facts
4. The victim is twelve (12) years old, is in Grade Four (4) and resides at Joyce Bay settlement with her adopted mother Ms. Weka Silo. Ms. Silo is the child complainant’s maternal aunt who adopted the child after the child’s mother passed away. The defendant is the child complainant’s uncle as he was married to the child complainant’s late mother’s sister who also had passed away. They all reside close together at the same settlement.

5. On the 27^th of April 2019, the victim sought permission from her adopted mother Ms. Silo and went over to the defendant’s house for a sleep over with his children. Whilst in the room the child complainant fell asleep. Her cousins were asleep outside. She was alone and asleep in the room when the defendant approached her. He removed her trouser, covered her mouth with a pillow. He then sexually penetrated her vagina with his penis. The victim was bleeding from injuries sustained from forced penetration of her vagina. She wore her trouser and went over to her house to get changed. When she stepped out, she was still bleeding heavily and had blood running down her legs. According to Ms. Silo, the time was around 7-8pm (at night). Her grandfather Mr. Max (who is her adopted father’s uncle) saw the child complainant at the water tap and told his wife and they both approached the child complainant to enquire about what she was doing. They then discovered that she was bleeding. They alerted her adopted mother Ms. Silo who then enquired with the child. They child couldn’t tell them what had happened to her. They fetched a female called Ms. Sova to come over and talk to the child complainant. The child complainant then reported to Ms. Sova that the defendant had sexually penetrated her. They were looking for a vehicle to get the child complainant to the hospital when the defendant assisted by calling his base at the Guard Dog Security where a vehicle arrived and took her to the hospital.

Issue
6. 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.

7. The sub-issue is whether there is sufficient prima facie evidence on each elements of the offence of sexual penetration of a child under the age of 16 years, pursuant to section 229A (1) of the CCA.

The Law
The Law on Committal Proceedings

8. 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.

9. 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 ^[2]and R-v- McEachern^[3].

10. In the matter of Maladina v Principal District Magistrate Posain Poloh ^[4]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.

11. Furthermore, in the case of Yarume v Euga ^[5]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)

229A. SEXUAL PENETRATION OF A CHILD.

^[6](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.

Penalty: Subject to Subsection (2) and (3), imprisonment for a term not exceeding 25 years.

(2) If the child is under the age of 12 years, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to imprisonment for life.

(3) If, at the time of the offence, there was an existing relationship of trust, authority or dependency between the accused and the child, an offender against Subsection (1) is guilty of a crime, and is liable, subject to Section 19, to imprisonment for life.

Elements

12. The elements of the charge of Sexual Penetration of a child under the age of 16 as per State v Masit [2017] ^[7]are:

(1) the accused engaged in an act of sexual penetration with another person; and

(2) the other person was a child under the age of 16 years.

13. The court also held that in the trial of a child sexual offence, strict proof of age is required. Here such proof was absent, the accused was not found guilty.

Prosecution Case
14. To prove its case, the Prosecution produced four (04) witness statements. The witness statements are of:

(1) DM – who is the child complainant. Her evidence is that the defendant sexually penetrated her.

(2) Silo Weka – who is the child complainant’s maternal aunt and adopted mother. Her evidence is on what she observed from the child after the alleged incident of sexual penetration.

(3) Cathy Peter – who is a police officer and corroborator in the conduct of the interview with the defendant and

(4) Martha Maraga – who is a Police Officer and case investigator. She was involved in the conduct of the interview with the defendant.

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

1. Letter form Butuka Academy concerning child’s enrolment at school
   
2. Record of Interview, English Version (English is preferred language)
   

100. Antecedent Report – not considered at this stage
     

Defence Submission
16. Defence submitted through a filed submission as follows:

1. There is no medical report to prove sexual penetration;
   
2. There are no photographs showing stained clothing;
   

100. Three of the witness statements were unsigned;
     

4. There is no interpretation certificate which renders the statement defective and inadmissible; and
   
5. Consequently, there is insufficient evidence and prosecution had failed to make out a prima facie case against the defendant from evidence contained in the Police hand up brief.

Prosecution Submission:
17. Prosecutions did not make any submissions.

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

1. Where defence say there is no medical report to prove sexual penetration
   
   1. Court’s response is that pursuant to section 229H of the CCA, corroboration is no longer required. The courts can convict based on the victim’s story alone, provided is must be credible and believable.
      
   2. To say that this law applies only during trial is not correct in law as the law on corroboration guides all courts as a Rule of Evidence and can guide a committal court in determining prima facie sufficiency of evidence.
      
2. Where the defence say that there are no photographs showing stained

clothing, the court’s response is:

1. Good practice and a thorough criminal case investigations should include crime scene visits, sketch maps, photographs etc. to aid prosecution’s case. A good police HUB should contain such evidence to build police case. In cases where police case on the elements of the offence rests on circumstantial evidence, police need all other corroborating evidence such as these mentioned to build their case. In this instance, the child complainant’s story is sufficient to make out the elements of the offence.
   
2. At this stage, the court need not be concerned about credibility issues which are matters for trial proper. It is where such other evidence may be needed by the prosecutions to make out their case. For now, minus the photographs to show blood on clothing, there is prima facie evidence from the child complainant of being sexually penetrated resulting in her bleeding.
   
100. Where the defence say that three of the five witness statements were

unsigned, the court response is that:-

1. The police case comprises of only four witness statements. The four statements are as follows: child complainant’s pidgin statement has her name written on it; her English version is unsigned or does not have her name written on it; both English and pidgin versions of Statement of Weka Silo are unsigned; and the two police officers’ witness statements are signed. In summary, the unsigned statement of Mrs. Silo is inadmissible at this stage at it does not comply with section 94C of the DCA.
   
2. The complainant’s pidgin version is signed and is admitted into evidence and is the only statement that can be relied on.
   

4. Where the defence says there is no interpretation certificate which renders her statements defective and inadmissible, the court’s response is that the court can read both the pidgin and English versions and accept prima facie that they have been dully translated. The child complainant’s pidgin version is contained in a police statement form with a certification clause. It has her name printed on it. This shows compliance with section 94C of the DCA. Her statements both pidgin and English are accepted into evidence and relied on.
   
5. And where say that there is insufficient evidence and prosecution had failed to make out a prima facie case against the defendant from evidence contained in the PHUB. The court’s response is that having accepted that the child complainant’s pidgin version of her statement is admissible, court also accepts her English version as an accurate translation of the pidgin version although unsigned. At this stage, the court is satisfied that there is sufficient evidence in the statement of the complainant alone that makes out a prima facie case against the defendant on one count of sexual penetration under section 229A (1) of the CCA.
   

Conclusion

19. 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. Paimuru did commit the alleged offences of Sexual Penetration under section 229A (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
20. After the requirements of section 96 were explained to the defendant which he understood, he opted through his lawyer to write a statement. The matter was adjourned for a section 96 statement. After consideration of the defendant’s section 96 statement which was filed on the 12^th of October 2020, I consider that the defendant has raised and maintained his defence of general denial.

21. This court’s view remains the same that this is a matter for trial proper. The ruling on prima facie sufficiency of evidence is intact. The child knows the defendant and recognized him. She identified him as ‘uncle Francis’ in her statement. Evidence of her age is inferred from the fact that he is a primary school pupil in Grade Four. Proof beyond reasonable doubt on age is a matter for trial proper.

22. The defendant’s section 96 statement is transmitted to the National Court.

Final Orders

23. The court’s final orders after section 96 statement were filed are:

1. There is sufficient prima facie evidence to c committed the defendant to stand trial in the National Court on one count of Sexual Penetration under section under section 229A(1 )of the CCA;
   
2. The defendant is committed to stand trial in the National Court on one count of Sexual Penetration under section 229A (1 )of the CCA;
   
3. The defendant is to appear at the Waigani National Court, Criminal Listings on 16^th of November 2020 at 9:30 am;
   
4. The defendant’s District Court Bail is extended on the same conditions; and
   
5. Guarantors Mr. Michael Kore and Mr. Kapai Kavapo are to appear at the National Court to sign Guarantors’ certificate.
   

Police Prosecution For the Informant
Public Solicitors For the Defendant

---

^[1] The Interpretations Act, section 15
^[2] PGNC 335; N6555
^[3] [1967-68] PNGLR 48
^[4] [2004] PGNC 208
^[5] [1996] PGNC 24; N1476

6. ^[6]Section 229A of Part IV Inserted by No. 27 of 2002, s. 1.

^[7] PGNC 284; N6997 (24 October 2017)