Anton v Chea [2021] PGDC 131; DC6088 (14 September 2021)

DC6088
Papua New Guinea

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

COM NO 498 OF 2020

BETWEEN:

ROMAN ANTON
[Informant]

AND:

ADAM CHIN CHEA
[Defendant]

Waigani: Paul Puri Nii

14th September 2021

COMMITTAL PROCEEDINGS: Charge- One Count of Sexual Penetration -Section 229A-Criminal Code Act 1974, Chapter No. 262. Witness proclamations- authenticity of all statements before the court- Police evidence –victim statement is refused-consideration of other statements-Section 95 of the District Court- Evidence is insufficient- Defendant is not committed.

EVIDENCE: The accessible body of facts-information demonstrating whether the allegation against the Defendant is accurate –Evidence statements should reflect the offence of Sexual Penetration– Statements should be proper and legal – improper statements will invalidate the authenticity of evidence. Court satisfies the victim statement was obtained though Watsap. Arresting Officer admitted to signing off for the victim. The explanations given do not warrant someone to sign on behalf of others. The victim statement is inadmissible but rest of the statements are considered.

PNG Cases cited:

Anthon –v- Chea [2021] PGDC 103; DC 6056 (22 July 2021)
Police –v- Fango [2021] PGDC 109; DC6064 (12 August 2021)
State –v- Losasa [2011] PGNC 274; N5263 (17 November 2011),
State –v- Tivat [2019] PGNC 135; N7863 (16 May 2019)
State –v- Marukam [2012] PGNC 357; N4724 (12 June 2012)

Overseas cases cited:
Nil

References

Legislation
Criminal Code Act 1974, Chapter 262
District Court Act 1963, Chapter 40

Counsel
Police Prosecutor: Sgt Sagam For the Informant
In person : Adam Chin Chea For the Defendant

DECISSION ON COMMITTAL

14^th September 2021

INTRODUCTION

NII, P. Paul Magistrate. This is a ruling on Section 95 of the District Court Act 1963. The victim’s statement was refused by the court on 22^nd July 2021, through judgment in Anthon –v- Chea [2021] PGDC 103; DC 6056 (22 July 2021). Now this is my ruling on rest of the other evidence which are part of the evidence enclosed in the Police-Hand-Up-brief served on the court dated 9^th September 2020.

CHARGE

1. Defendant in this court is charged with one count of Sexual Penetration pursuant to Section 229A of the Criminal Code Act 1974, Chapter No. 262. The offending charge is mentioned hereunder:
   

229A. Sexual Penetration of a child.

(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.

FACTS

2. Police identified the Defendant as aged 18 years old and of Malaysia who was alleged to have engaged in an act of sexual Penetration with the victim who was 15 years of age at the time of the alleged offence. Police allege the victim was sexually penetrated by the Defendant at Grand Papua Hotel on 22^nd June 2019, while she was under the custody of her aunty. Police file was served on the court on 9^th September 2020. When the court perused the file, it was noted the victim statement was not signed but the arresting officer typed the victim’s initials and hence on 6th July 2021, the arresting officer was tasked by the court to testify his motives for doing this. On 15^th July 2021, the arresting officer was in court and testified the reasons why the statement was not signed by the victim. However, on 22^nd July 2021, the court upon enquiry found out the victim’s statement was obtained by police without her knowledge and understanding and thus was refused by the court in the judgment of Anthon –v Chea [2021] PGDC 103; DC 6056 (22 July 2021).
   

ISSUE

3. Whether evidence of other witness statements without the victim’s statement are sufficient to commit the Defendant?
   

THE LAW

4. The Principle in Police v Fango [2021] PGDC 109; DC6064 (12 August 2021),

says the court’s powers to decide on police evidence is under Section 95 of the District Court Act. I will restate the law below:

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 of

fence, it shall proceed with the examination in accordance with this Division.

ELEMENTS

5. Subject to the doctrines in State v Losasa [2011] PGNC 274; N5263 (17 November 2011), the burden rests with the Police Prosecution to demonstrate to the court each elements of the offence beyond reasonable doubt. The case in State v Tivat [2019] PGNC 135; N7863 (16 May 2019), enlightens the elements of the offence of Sexual Penetration under Section 229A of the Criminal Code Act 1974 as below:
   
   • (i) the accused engaged in an act of sexual penetration with another person,
   • (ii) the other person was a child under the age of 16 years or 12 years old, and
   • (iii) there existed at the material time a relationship of trust, authority or dependency between the accused and the victim child.
     

EVIDENCE

Witness statements and Police evidence

No	Witness	Particulars	Evidence
1	Kathleen Jonson	Victim’s mother	Her statement says she arrived from Australia when the allegation happened. Witness says she was on a business meeting and left he daughter with her sister Elizabeth Ipi but was taken by the accused had sexually penetrated her at Grand Papua Hotel.
2	Ceri Johnson	Victim	Witness says she is the main victim and says she was sexually penetrated by the Defendant.
3	Elizabeth Ipi	Victim’s aunty	Witness say the victim was with her when the Defendant allegedly sexually penetrated her.
4	Adam Chin Chea	Defendant	The accused has admitted to the offence through his statement declared at Boondall Police station in Queensland, Australia on 14th November 2020.
5	Kieeh KendeKali	Legal Representative	His statement is about how he obtained information from the witnesses in Australia.
6	Jeffery Dean Kennedy	witness	Witness says, he had a meeting with the victim’s mother at the time when the alleging took place.
7	Constable Daniel Wakane and Constable Roman Anton	Police corroborator and arresting officer	Their evidence is about how the accused was arrested, interviewed and charged for the allegation of sexual penetration.

CONSIDERAITON OF EVIDENCE

6. Police evidence is made up of victim and witnesses statements, medical report (if any), confessional statements by the Defendant and Police arresting officer and corroborator’s statements. In a case involving rape and other crimes where the victim is surviving, the victim statement should form the foremost ingredients of a police case in which other state witnesses are only to corroborate. The subject of focus is the victim statement but others are only to strengthen the victim statement. The rise and fall of a police case is determined by the strength in the victim’s statement. It is the main foundation in which police build their case upon. The main victim statement is like the stem while witness statements are like branches and leaves. If the stem is cut down, the branches and leaves will also fall because their strength and survival is through the stem. In the same manner, if the victim statement is inadmissible then the rest of the witness states will fall and thus will have not strength to succeed in the allegation.
   
7. On 22^nd July 2021, the Committal Court through an enquiry found out the victim statement was obtained without her presence. The court also noted that the maker of the statement was in Australia and did not understand and read her own statement but was signed off by the arresting officer by inserting the victim’s initials. The court after the enquiry ruled victim statement was disclosed to the court without complying with the mandatory requirements under Section 94(1A) of the District Court Act, and thus, the victim statement was refused in the ruling in Anthon –v Chea^[1].
   
8. In the absence of a victim statement, police evidence will be deficient to proceed. This footing is supported in State v Marukam [2012] PGNC 357; N4724 (12 June 2012). The court has refused to accept the victim’s statement and thus her evidence was not admitted as part of the police evidence.
   
9. Corroboration is not a requirement for offence involving child under Section 229H of the Criminal Code Act^[2]. The Law says a person could be found guilty on the uncorroborated testimony of one witness. However, to my understanding on this, the lone witness should be from the victim itself. In the absence of a victim statement, other lone witness cannot corroborate anything. A victim statement alone may be sufficient to hold an accuse liable but not from another witness and hence the uncorroborated statement of one witness should be from the victim. But in here the victim statement is missing.
   

RULING

10. I have considered the statements of witness Kathleen Johnson, Elizabeth Ipi, Keeh Kendakali and Jeffery Kennedy and found out that their evidences are based on the evidence of the victim. They only gave evidence to support the victim’s assertion of sexual penetration against the victim. The currency of each witness statements are energized by the victim statement. However, in the deficiency of the victim statement, the entire evidence is insufficient.
    

CONCLUSION

I have gone through the Police file that was tendered on 9^th of September 2020 and discovered that in the absence of victim statement, the reminder of the police evidence fails to make a case against the Defendant. Therefore, evidence is insufficient to connect that the accused engaged in an act of sexual penetration with the victim who was at the time was under the age of 16 years.

ORDERS

My final Orders:

1. Evidence is insufficient to commit the Defendant.
   
2. The Police information holding the allegation of Sexual Penetration against the Defendant under Section 229A of the Criminal Code Act is dismissed.
   

100. Defendant is discharged from bail obligations of 28^th May 2020.
     

4. Bail is refunded to the Defendant forthwith.
   

.

.

.

In Person: For the Defendant
Police Prosecutor For the State

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^[1] [2021] PGDC 103; DC 6056 (22 July 2021).
^[2] ‘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’.