Police v Bryan [2021] PGDC 147; DC7002 (13 October 2021)

Papua New Guinea

[In the Criminal Jurisdictions of the District Court Held at Waigani]

SITTING IN ITS COMMITTAL JURISDICTION

COM NO 1320-1325 OF 2020

CB 3955 OF 2020

BETWEEN:

THE POLICE

[Informant]

AND:

JUNIOR BRYAN

[Defendant]

Waigani: Paul Puri Nii

13^th October 2021

COMMITTAL PROCEEDINGS: Charges-2 counts of Sexual Penetration 229A (1)-Persistent Sexual Abuse-Section 229D (1), Abuse of trust-229E and Unlawful confine/Deprivation of liberty-355(a) Criminal Code and Sexual Offences and Crimes Against Children Act 2002. Observation of state witness- Police indication must launch prima facie evidence by gathering the elements of the charges against the Defendant to make a case against the accused.

PRACTISE AND PROCEDURE: Court’s power under Section 5 of the District Court Act. –Momentous elements of allegations to pull a prima facie case- Legal substance of the charges– Defendant brought from custody–Victim statements –- Evidence is sufficient to commit the Defendant for the six (6) charges.

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: Samghy For the Informant
Public Solicitor: Kaiok For the Defendant

DECISION

13^th October 2021

INTRODUCTION

NII, P.Paul Magistrate. Court’s decision on the strength of the Police and witness statements under Section 95 of the District Court Act 1963. The conclusion is arranged after the court has read through the police evidence and Defense submission. The conclusion is about the sufficiency of evidence.

CHARGES

1. Defendant is charged under 4 different charges. Two of these charges (Sexual penetration and Deprivation of liberty bear double counts each of the Criminal Code and Sexual Offences and Crimes against Children Act 2002.

Particulars of the offending laws and wordings:

a) Section 229A(1)-CCA (2 counts)

“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.”

b) Section 355-CCA

“355. Deprivation of liberty.

A person who unlawfully–

(a) confines or detains another in any place against his will. Penalty: Imprisonment for a term not exceeding three years”.

c) Section 229E(1)-CCA (2 counts)

“229E. Abuse of trust, authority or dependency.

(1) A person who engages in an act of sexual penetration or sexual touching of a child between the ages of 16 and 18 years with whom the person has an existing relationship of trust, authority or dependency is guilty of a crime. Penalty: Imprisonment for a term not exceeding 15 years”.

d) Section 229D(1)- 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”.

PASSING PARTICULARS (brief facts)

2. Police information indicates Defendant is aged 20 years of Koroboa in the Hela Province of PNG. Police information also describes the victim as male aged 11 and he is related to the accused, they have the same father but different mothers. It was alleged between the periods of 6^th May 2020 and 10^th October 2020, when the victim and Defendant’s father who is a Defense Force Corporal was deployed to Tari in Hela province, the accused allegedly committed the allegations against the victim. Police allege although the victim cannot recall the exact dates the alleged offences took place, the recent was on the date when the victim’s father last called and talked to the victim.
   
3. Police information says during the time when the victim’s father last called and on many other previous occasions, Defendant forcefully took the victim to their father’s single barracks and sexually penetrated him. Police allege that on those occasions, Defendant threatened to kill the victim with a knife if he did not cooperate. I will restate the Defendant’s pidgin version of how he threatened the victim as shown in the police information. Defendant says, “ yu rausim trousers or ba mi katim yu wantime displa nife”. Police says Defendant then forced the victim to remove his trousers and open his legs. Defendant subsequently inserted his penis inside the victim’s anus and later told him to suck his penis. Defendant then locked the victim in their father’s single barracks and went away but the victim later managed to break one of the windows and came out. Victim then went to his aunty and she called the victim’s father who was up in Tari about the incident.
   
4. After the victim told his father about the allegation against the Defendant, Defendant was on the run until he was caught by the victim’s father who took him to the police station and thus he was officially arrested and charged on the 6^th November 2020.

ISSUE

5. Whether Evidence in the police file is sufficient to commit the Defendant and that is whether each witness statement is agreeable to satisfy all the elements of the offending charges?

THE LAW

6. The doctrines under Yarume v. Eugua[1996] PNGNC 24; N1476 and Akia v Francis [2016] PGNC 335; N6555 gives an inclusive description of the obligation under Section 95 of the District Court Act. The principles in the two (2) cases further expounds and develop the Committal court’s jurisdictions to deal with indictable offences after when police evidence is tended in court. My jurisdiction under Section 95 of the District Court Act, is itemized 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 offence, it shall proceed with the examination in accordance with this Division.”

EVIDENCE

7. In the exercise of my committal jurisdiction, I will make sure there is sufficient evidence provided by police against the Defendant. The attitude in Police v Kimisopa [2021] PGDC 76; DC6031 is dynamic and applicable in this case where each and every witness statements shall be measured with the conforming charges and evaluate to ascertain whether it meets the elements of the offence.

ELEMENTS OF THE CHARGES

8. Police confirmation of witness statements need to accomplish the elements of the charges against the Defendant. In Police v Medako [2021] PGDC 54; DC6011. The court says, police evidence must meet all the elements of the offence. I will now restate state the element of the offence 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

Elements of Sexual Penetration

1. A person

2. who engages in an act of sexual penetration

3. with a child under the age of 16 years

Elements of Deprivation of liberty

1. A person

2. who unlawfully

3. confines or detains another

4. in any place against his will

Elements of Abuse of trust

1. A person

2. who engages in an act of sexual penetration or sexual touching

3. of a child between the ages of 16 and 18 years

4. with whom the person has an existing relationship of trust, authority or dependency

Prosecution Case

9. Prosecution has nine (9) people giving evidence. All of these witnesses have given written statements to Police.
   

a. Handa Bryan- he is the victim and his statement is about how the Defendant sexually abused and penetrated him on many occasions.

b. Lydia Akilo-she is the victim’s aunty (his father’s sister) who took care of the victim when his father was in Tari during official duty, her statement is about how she came to know about the allegation.

c. Joseph Brian-this witness is the victim’s biological father, his statements is about what he was told on the phone by his sister and his son the victim about the incident

d. Jeffery Wairra-he is PNG Defense force official who is a colleague to the victim’s father and his statement is about the conditions of the victim’s father’s room at the PNGDF single quarter barracks.

e. Nick Akarai- he is also a colleague of the victim’s father and his evidence is the same as Nick Akarai’s.

f. Samuel Koi- Police forensic and photographer who took photos of the place of allegation with the victim.

g. Christine Waure- She is a female nursing officer who conducted the medical examination on the victim.

h. Eddie Milali – he is a police corroborator who was with the A/O at the time of Record of Interview.

i. Rachael Pinda- She is the case officer who actually did the arrest on the Defendant.

Defense case

10. Defendant through his Lawyer submits victim has not mentioned any specific time the purported allegation took place. Defendant says it is questionable as to how police came up with the time frame between 06^th May 2020 and 10^th October 2020. Defendant then questions the medical report that it is inconsistent because the report did not mention the cause of laceration around the anus. Defendant says it is common knowledge that sometimes lacerations could be caused by excretes.
    
11. Defense then argues that Section 229E of the Criminal Code Act is not appropriate here because the victim is 11 years’ old. Defense says the provision is only relevant to Defendants who are 16 and 18 years old. Defendant also says there is no evidence to support the allegation of deprivation of liberty.
    
12. Defendant’s Lawyer says the two pieces of evidence from witnesses Jeffery Wairra and Nick Akarai are unreliable and irrelevant because the victim’s father’s room at PNGDF was broken even prior to the accident and hence there was no issue of deprivation of liberty.
    
13. Finally, Defense says, all the witnesses’ statements are lacking to support the allegations against the Defendant.

DELIBERATION OF EVIDENCE

14. I have considered the evidence and observed that on 5^th May 2020, the victim’s father locked his room at the PNGDF single barracks which was previously used by him and his 2 sons from different mothers, the Defendant and victim. He says while on Tari his son told him about the allegations against the defendant on the phone after when his sister found out that something was not proper with the victim.
    
15. Victim says, one day when they were playing on the field, his aunty chased them away and that was the time where the Defendant grabbed him and took him to his father’s room at the barracks. Victim says Defendant had sexually assaulted and penetrated him on many numerous occasions but he can’t remember them all as he forgot the detailed dates.
    
16. Witness statement of Lydia Akile says in or around August 2020, she scolded the children playing on the field and the victim in fear of her aunty ran away.
    
17. Defendant admitted at Question No 24 of his Record of Interview that he took the victim to his father’s room but denied involving in sexual allegations. Defendant says he told the victim to sleep in the room and went away but when Defendant returned in the morning he found out that the victim broke one of the windows and went out.
    
18. Based on the above evidence, I am satisfied that the victim's father went to Tari in the Hela Province on 5^th May 2020 and the allegation against the victim was done after he was up in Tari.
    
19. Defendant at question 31 of his ROI says the whole allegation against him was leveled to tarnish his name in the Barracks. Defendant is the victim’s half-brother and a relative to Lydia Akile who is his aunt. Why would the Defendant’s father, his half-brother and aunty (who are his own flesh and blood) would want to tannish his name? Additionally, what prominence the Defendant is known in the barracks that would compel his own people to tarnish his reputation? This part of the evidence is not convincing.

RULING

20. My ruling will be done selectively on each of the allegations against the Defendant. Firstly, for the allegation of Persistent sexual abuse of a child under Section 229D(1) of the CCA, the uncorroborated evidence of the victim is sufficient to satisfy myself there was persistent allegation of sexual abuse against a child. My conclusion is founded on Section 229H of the CCA since the law sanctions the court to give weight to an uncorroborated evidence of one witness and find the accused liable.
    
21. Based on this, I am satisfied with police evidence that it is meeting all the elements of the offence of persistent sexual abuse when Defendant was identified to be the person who on two or more instances had involved in demeanor in relative to a specific child that creates a crime. Therefore, there is sufficient evidence against the Defendant for the allegation of Persistent Sexual abuse.
    
22. Secondly, concerning the allegation of Sexual Penetration under Section 229A(1) of the CCA, I am also satisfied the Defendant is identified to be the person who participated in an action of sexual penetration with the victim who was at the time was less than 16 years old. Therefore, there is sufficient evidence meeting all the elements under this allegation.
    
23. Thirdly, about the allegation of Deprivation of liberty under Section 355 of the CCA, I am satisfied, the Defendant was identified to be the person who illegally restrained and detained the victim at a room in PNGDF barracks by the Defendant which he admitted on his ROI. Defendant says he locked the victim in the room but later broke one of the windows and came out. Therefore, there is sufficient evidence meeting all the elements under this allegation.
    
24. Lastly, on the allegation of Abuse of trust under Section 229E (1) of the CCA, I find the provision is technically defective and inappropriate under the current circumstance because this provision creates age limits for victims under which this law applies. The age limit as sanctioned by Law is between 16 and 18 years. I will recite the law below:

“229E. Abuse of trust, authority or dependency.

1. A person who engages in an act of sexual penetration or sexual touching of a child between the ages of 16 and 18 years with whom the person has an existing relationship of trust, authority or dependency is guilty of a crime. Penalty: Imprisonment for a term not exceeding 15 years”.
   
25. Defendant at the time of allegation was 11 years old may be turning 12 now but the law requires protection of victims between the ages of 16 and 18 and therefore there is insufficient evidence to make a case against the Defendant under this provision. This charge is inappropriate.

CONCLUSION

26. There is sufficient evidence for the charges of Persistent sexual abuse of a child under Section 229D(1) of the CCA, Sexual Penetration under Section229A(1) of the CCA and Deprivation of liberty under Section 355 of the CCA. Nonetheless, there is insufficient evidence for the charge of Abuse of trust under Section 229E (1) of the CCA.
    

ORDERS

27. My formal orders:
    
    1. Defendant is Committed for the charges of Persistent sexual abuse of a child under Section 229D(1) of the CCA, Sexual Penetration under Section229A(1) of the CCA and Deprivation of liberty under Section 355 of the CCA.
       
    2. The charge of Abuse of trust under Section 229E (1) of the CCA is dismissed for insufficiency of evidence.
       

Public Solicitor For the defendant
Police Prosecutor For the State