Police v Are [2021] PGDC 123; DC6078 (1 September 2021)

DC6078
Papua New Guinea

[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS COMMITTAL JURISDICTION

COM NO 1205 OF 2020

BETWEEN:

THE POLICE
[Informant]

AND:

JOHN ARE
[Defendant]

Waigani: Paul Puri Nii

1st September 2021

COMMITTAL PROCEEDINGS: Charge-Persistent Sexual abuse-Section 229D(1)-Criminal Code and Sexual Offences and Crimes Against Children Act 2002. Contemplation of state witness- Police evidence must establish prima facie evidence by meeting the elements of the charge against the Defendant- to commit the Defendant.

PRACTISE AND PROCEDURE: Court’s authority under Section 5 of the District Court Act.–Significant elements of accusation to draw a prima facie case- Lawful foundation of the charge– Defendant says compensation payment made–Victim relatives accepted payment –victim should withdraw the charge – court will not entertain compensation payment - Evidence is abundant to commit the Defendant for the charge.

PNG Cases cited:

Police v Kimisopa [2021] PGDC 76; DC6031
Yarume v. Eugua[1996] PNGNC 24; N1476
Police v Medako [2021] PGDC 54; DC6011
Akia v Francis [2016] PGNC 335; N6555
Police v Gema [2020] PGDC 14; DC4066

Overseas cases cited:
Nil

REFERENCE

Legislation
Constitution
Criminal Code Act 1974, [Chapter 262]
District Court Act 1963, Chapter 40
Liquor Licensing Act 1963

Counsel
Police Prosecutor: Peter Samghy For the Informant
In person: John Are For the Defendant

RULING ON COMMITTAL

1^st September 2021

INTRODUCTION

NII, P.Paul Magistrate. This is my ruling on the Police evidence under Section 95 of the District Court Act 1963. The decision is prepared after I have read through the police file and Defense submission. The ruling is about the abundance of evidence.

CHARGE

1. Defendant is charged under Section 229D (1) of the Criminal Code and Sexual Offences and Crimes against Children Act 2002.
   

BRIEF FACTS

2. Police characterized the Defendant now before the court as John Are aged between 70 years and from Kufkun village in the Sinesine area of Simbu Province, he is employed as a security guard and resides at 9 mile area in NCD. It is allege by Police that between 01^st January 2021 and 19^th October 2020, Defendant took the victim, a 7 years old female child to a church area at 9 mile and sexually penetrated her vagina with his hands and penis. Police allege Defendant habitually entice the child victim with food items not to tell her parents about the purported sexual encounters until it is stated that on 19^th November 2020, the victim’s father caught the Defendant and the victim near the church area and questioned the Defended which subsequently led to his arrest by police under Section 229D (1) of the Criminal Code and Sexual Offences and Crimes against Children Act 2002.
   

ISSUE

3. Whether evidence in the police file is sufficient to make prima face evidence against the Defendant for the allegation against him?
   

THE LAW

4. Apart from Section 95 of the District Court Act, the Principles under Yarume v. Eugua[1996] PNGNC 24; N1476 and Akia v Francis [2016] PGNC 335; N6555 stretches a comprehensive account of the commitment I am indebted to execute. The courts have fittingly explicated what I shall be undertaking when enquiring committal matters. In instantaneous, the courts said my character as a committal court Magistrate is to weigh evidence in the police file and rule on its sufficiency. Apart from the two (2) cases, I have also itemized my authority beneath:
   

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.

PARLICULARS OF THE OFFENDING LAW

5. I will recite the specifics of the offending law as below:
   

Section 229D(1) of CCA

229 D. Persistent sexual abuse of a child.

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

EVIDENCE

6. The determination of assessing evidence is well expounded in Police v Kimisopa [2021] PGDC 76; DC6031. The court says, evidence in the police file plays a commanding part in the management of criminal fairness to certify an impartial and reasonable conclusion is reached. While acclimatizing this attitude in the existing circumstance, I will cautiously make sure the witness statements in the form of police evidence in the Police file meet all the elements of the accusation.

ELEMENTS OF THE CHARGES

7. In order to make a case against the assert offender, Police evidence must fulfill the elements of the offence as is the standard in Police v Medako [2021] PGDC 54; DC6011. I will recite the elements of the offending charge below.
   

Elements of Persistent sexual abuse of a child

1. A person
2. Who on two or more occasions
3. Engages in conduct
4. in relation to a particular child
5. That constitutes an offence
   

Prosecution Case

8. Police evidence is in the form of witness statements which are in the police hand-up-brief which I will comment in my ruling as how their statements are put before the court. There are an aggregate of seven(7) state witnesses which are detailed below:
   
   1. Joylyn Mon- She is the victim child and her statement is about the Defendant’s personality and testimony of the allegation.
      
   2. Aiyaka Mon-He is the victim’s biological father. His evidence is about how he found out about the allegation and the changes he saw in her victim daughter.
      
   100. Julian Tagibe-this witness is the victim’s biological mother and her evidence is about the victim’s date of birth and how medical examination on the allegation was taken.
        
   4. Maria Nombri-She is a police corroborator and her evidence about the identity of the Defendant and how he was interviewed.
      
   5. Adriana Kamasunga- She is the Police arresting officer and her evidence is about what happened during the interview with the Defendant and how she identified the Defendant.
      
   6. Stuart Robert- he is a police officer and his statement is about the photographs of incident scene he took.
      
   7. Dr Thomas Aiyaka- He is a medical Doctor and his statement is about his findings about the allegation.
      

Defense case

1. Defense case is acquired in the Record of Interview (ROI) and his oral arguments on the issue of compensation.
   
2. Defendant in his record of interview at question 25, he admits he removed the victim’s trousers and held her vagina but did not have sex with her. He also told the victim that her vagina was small and hence they would not have sex. Defendant also states at questions 30 and 31 that he inserted his fingers two (2) times into the victim’s vagina and told the victim not to put her hands into his pocket.
   

100. Defendant also states at question 40 of her ROI that he would pay compensation payment to the victim relatives if police exonerated (pardoned) him since it was his first to come in conflict with the law.
     

4. Furthermore, during oral submission, Defendant stood from the court docket and informed court that his relatives have paid compensation to the victim and hence the complainant should inform the court and have him taken out from custody.
   

DELIBERATION OF EVIDENCE

9. I have assessed evidence in the police file and noted that Defendant says he only touched and inserted his fingers into the victim’s vagina but did not penetrate her with his penis. What does the law talks about touching a female’s private parts, including the vagina without inserting penis? The attitude in Police v Koupa [2020] PGDC 13; DC4065, is “Sexual parts of a person including the vagina are sacred area,...it is a no-go-zone of a person’s body where no person is allowed to go closer or touch....” The law makes it an offence not to touch someone’s vagina even if there was no inserting of penis.
   
10. The Law does not limit to only touching a female’s sexual parts but extends to the whole female body. It is an offence to touch a female’s body in a sexual style or fashion. The sensation a female would experience when her vagina is touched in a sexual manner is no difference to any other part of her body. Therefore, it is illegal to touch a female’s body in a sensual routine including her vagina and her body. I will no acclimate the value under Police v Gema [2020] PGDC 14; DC4066, which is very much pertinent in the prevailing circumstance. The principle under this case makes it an offence when a female’s body is touched in a sexual manner. It says ....”The victim may feel the same effect as the vagina if any of these areas are sexually affected or touched....”
    
11. Although the Defendant did not inset his penis into the victim’s vagina, it is an offence when he touched the victim’s vagina and therefore I have evidence to consider the Defendant engaged in an action that establishes an offence against a female child when he says in his ROI that he injected his hands and touched the victim’s vagina on two (2) occasions.
    
12. Defendant also says in his ROI and oral submission that his relatives paid compensation to the victims’ relatives and thus asked the court to withdraw the allegation. The Criminal Law (Compensation Act) 1991, delivers the court shall apart from sentencing consider whether in the context of the instance compensation should be deliberated. This provision provides that the Maximum compensation payment is K5,000 or in default of that be sentenced to six (6) months. My watchful consideration of the amount and term of default penalty designates that such is appropriate in summary matters where trial could be administered at the grade 5 courts or a court that administers summary jurisdiction at the District Court.
    
13. However, in the situation of the present allegation, criminal compensation is not accredited by Law. The offence of Persistent sexual abuse of a child under Section 229D(1) of the Criminal Code and Sexual Offences and Crimes against Children Act 2002, is an offence in the criminal Code Act and is an indictable offence where only the National Court will take the plea and subsequently test evidence after indictment is offered. Therefore, in my view, the presentation of Criminal Compensations is not appropriate in the existent accusation against the Defendant.
    
14. Moreover, the method of compensation as a ground to withdraw Criminal charge(s) is in my view is unfitting for indictable offence and therefore such practices should not be tolerated by victim’s family/relatives. Finally, compensation payment should not be used as a means to an end by asking the court to remove the charge(s). Let the maneuver of justice move and judgment is prepared on the sincerity of evidence than having the progression and law hijacked along the way. Relatives and parties who are negotiating for compensation should be gotten as impeding the source of impartiality and hence they should be held responsible under the appropriate laws. For these reasons, it is unfitting and unlawful for me to withdraw the current allegation under the subject of compensation payment and therefore I refuse this issue of compensation put forward by Defendant.
    

RULING

15. After vigilant contemplation of the Police file and Defense case, I am satisfied the evidence in the police file is sufficient to make a prima facie case against the Defendant. The witnesses statements in the form of evidence captured in the police file satisfy me by meeting all the elements of the charge of Persistent sexual abuse of a child that accused is identified by the witnesses including the victim as the person who were on two (2) occurrences involved in a manner in relation to the victim that subsequently constitutes the subject allegation.
    

CONCLUSION

16. There is sufficient evidence to commit the Defendant for the allegation of Persistent Sexual Abuse of a child under the age of 7 under Section 229D(1) of the Criminal Code and Sexual Offences and Crimes against Children Act 2002.
    

ORDERS

17. My formal orders:
    
    1. Defendant is Committed.
       
    2. Matter adjourned to 8^th September 2021 for administration of statement under Section 96 of the District Court Act.
       
    100. Warrant issued and Defendant is remanded.

Public Solicitor For the defendant
Police Prosecutor For the State