Milali v Paraka [2021] PGDC 152; DC7007 (27 October 2021)

DC7007

Papua New Guinea

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

COM NO 1085 OF 2020
CB NO 3457 OF 2020

BETWEEN:

EDDIE MILALI
[Informant]

AND:

JASON PARAKA
[Defendant]

Waigani: Paul Puri Nii

27 October 2021

COMMITTAL PROCEEDINGS: -Charge- Sexual Penetration -Section 229A (1) and (2) of the Criminal Code Act 1974, Chapter No. 262. Court’s valuation on evidence to determine whether Prosecution provided prima facie hands-on evidence satisfying all the elements of the charge against the Defendant to commit him.

PRACTICE AND PROCESS: Legitimate requirement for prima facie case-Establishment of the fundamentals of charge of Sexual Penetration–Witness evidence and police statements including Medical reports. Defendant admitted to the allegation but said he could not recall as he was drunk. Defendant argued that the medical report would confirm. Evidence is sufficient to commit the Defendant.

PNG Cases cited:

Backley Yaruma v Sylvester Euga [1995] N1476,
Wrakuhau v State [2007] PGSC 27; SC895
Police v Medako [2021] PGDC 54; DC6011 (31 May 2021)
State v Ases [2012] 240; N4893
Police v Koka [2021] PGDC 53; DC6010 (31 May 2021)
Police v Dunamis [2021] PGDC 121; DC 6067
Anton v Chea [2021] PGDC 131; DC 6088
Police-v- Naria [2021] PGDC 119; DC 6074(25^th August 2021)
Police –v- Kauna [2021] PGDC 120; DC 6075


Overseas cases cited:
Nil

References

Legislation

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

Counsel

Police Prosecutor: Joseph Sagam For the Informant
Public Solicitor: Caroline Bomai For the Defendant

RULING ON COMMITTAL

27^th October 2021

INTRODUCTION

NII, P. Paul Magistrate. Court’s decision on whether a prima facie case is properly confirmed within the application of Section 95(1) of the District Court Act 1963, after Police evidence and Defense’s arguments are judiciously measured. On 8^th September 2021, Bomai, Accused’s Lawyer informed the court to rely on the Defendant’s submission filed on 13^th July 2021 and rule. Police Prosecutor Joseph Sagam agreed to the position taken by Defense and he asked the court to do the same for the Police file. Given this, I have watchfully measured both arguments concerning their clients and afterward in the next lines are my decision on committal.

FACTS

1. Police summary of facts identified the Defendant as Jason Paraka and he is 18 years of age and currently enrolled at Gorodns Secondary School doing grade 11. Police say he is from Paip village in Mendi, Southern Highlands Province. Police allege the victim is a female aged 11 years of age and from Simbu in Simbu Province who was at the time enrolled at a primary school in NCD.
   
2. Police information says on 16^th September 2020 between 2.30pm -3.00pm, at Kesau, Gerehu stage 2, the child victim went down to a nearby creek to wash but the accused called her up to where he was and took her to his house. Police information says Defendant then held the victim’s mouth and forced her onto the ground and forcefully removed her clothes and tried to sexually penetrate her vagina with his penis but given the child’s age her vagina was too small to be penetrated and thus Defendant forced the victim to open he mouth and suck her penis. Police says after Defendant had penetrated her mouth, she was released from the Defendant’s custody where she went straight and alerted members of her family where the Defendant was apprehended, and taken to the police station where he was officially arrested and charged for the offence of Sexual Penetration under Section 229A(1) of the Criminal Code Act [Sexual Offence and Crimes] Against Children Act 2002.
   

CHARGE

3. Defendant is charged with Sexual Penetration under Section 229A (1) of the Criminal Code Act 1974, Chapter No. 262. The charge against the Defendant is explained in the ensuing mode:

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

ISSUE

4. The question of enough evidence to make a prima facie case by meeting all the elements of the subject charge is fitting here.
   

THE LAW

Jurisdiction of the court

5. The Law under Section 94-100 of the District Court Act 1963 provides for the entire process on how court will administer committal process, however, Section 95 of the District Court Act gives the court the exact powers to apply to rule on the sufficiency of evidence. Section 95 of the District Court is further reinforced in Police –v- Dunamis [2021] PGDC 121; DC 6067, Police –v- Kauna [2021] PGDC 120; DC 6075 and Police-v- Naria[2021]PGDC 119; DC 6074
   

ELEMENTS OF THE OFFENCE

6. The court in Police v Medako [2021] PGDC 54; DC6011, evidently decorated prosecution evidence in the hand-up-brief must institute the elements of the relevant charges against the Defendant. The elements of the charge of Sexual Penetration is labelled below as:
   

Elements of Sexual Penetration under Section 229A[1] and

1. A person

2. who engages

3. in an act of sexual penetration

4. with a child

5. under the age of 16 years

EVIDENCE

7. The case law under Police v Koka [2021] PGDC 53; DC6010, is suitable in my ruling on committal here. This is a case where the court recognized the importance of evidence that it plays a substantial role in the management of criminal law here at the District Court to make sure an unbiased and balanced judgement is touched. The court further went on to stress the importance of evidence as ...
   

(I quote) ....“An allegation will only be proven through evidence since it is the accessible body of facts or material designating whether the allegation against the Defendant is proper or made-up” ....(end of quote)

8. Police hand-up-brief delivered to court on 21^st January 2021 comprising the labels of witness declarations and documented proof must rationally attach the elements of the subject offence.
   

PROSECUTION CASE

9. Prosecution evidence is captured in the police file tendered to court on 21^st January 2021.
   

Police evidence in short-term:

No	Name	Particulars	Statements
1	Kunassi Robert	victim	This is the victim and her story is about how she was approached by the Defendant and taken into custody where she was pushed to the ground, removed her clothes and sexually penetrated in her mouth. Her
2	Essy Mugo Robert	Victim’s father	Witness says he was at work when the alleged incident took place. Witness say the Defendant was held up by his family member and brought to Gerehu Police
3	Dabada Kobua	policeman	He says he took photographs of the scene where the alleged incident of sexual penetration took place.
4	Esther Bavi	Corroborator	She was present with the arresting officer during the ROI
5	Eddie Milali	Arresting officer	Policewoman who arrested and charged the Defendant
6	Dr Pauline Masta	Doctor	Dr who conducted medical check on the victim and did her finding regarding the purported crime against the Defendant

DEFENSE CASE

10. Defendant through Lawyer Caroline Bomai argues on her submission filed on court dated13th July 2021, that the medical report contained in the police file does not clearly show evidence of penetration in respect to the allegation. Defense says there is a different statement of facts which contradicts the victim’s version of the story against the Defendant. Defendant also argues the photo exhibits are irrelevant as they only show photos of houses and the nearby environment. Defendant finally argues that he did not commit the purported offence levelled against him and says police evidence is insufficient to make a prima facie case satisfying the elements of the charge of Sexual Penetration.
    
11. Defendant in line of his arguments has informed the court of its function under Section 95 of the District Court Act and also cited the case of Backley Yaruma v Sylvester Euga [1995] N1476, on how the court’s jurisdiction is reinforced by the case. Defendant also argues that the evidence in the police file is hearsay and he asked the court not to entertain police evidence by founding his argument on the principles in Wrakuhau v State [2007] PGSC 27; SC895 and State v Ases [2012] 240; N4893.
    
12. Funded on the above arguments Defendant requests the court to apply its powers under Section 95(2) of the District Court Act and dismiss the information against the Defendant for lack of evidence.
    

CONSIDERATION OF EVIDENCE

13. Before I proceed to the evidence, I will mention what the accused said on his ROI. Accused mentioned on his ROI at question 25 that he cannot recall what happened on the date of allegation as he was drunk. Defendant stated he could not recall whether he was involved in the allegation or not but mentioned only a medical report would prove and disprove the assertion against him.
    
14. Defendant’s argument is in three parts; first, on the issue of medical report that there is no report of penetration; second, on the standing of witness statement that all is hearsay; and third, on the summary of facts. Defendant says the particulars giving rise to the allegation is confusing and does not relate to the allegation against the Defendant.
    
15. I will address the argument on the medical report first. Defendant says Medical report does not show clear report of penetration through the mouth. The medical report of Dr Pauline Masta dated 18^th September 2020 says the victim had abrasions (scratch marks) over both clavicles (location between the rib and the shoulder) and her upper back that was caused by her top being rubbed against her skin. The doctor's report went on to say the vulva (outer part of the female genital) and perineum (the area between the anus and genital) appeared normal and intact, the hymen was not intact and there was no evidence of bleeding and seminal fluid. Medical report shows there was no vaginal penetration but there is evidence of scratch marks on the victim’s upper back. Sexual penetration is defined by Section 6(1)(a) of the Criminal Code Act. I recite the provision below:
    

“6 Sexual Penetration.

When the expression “sexual penetration” or “sexually penetrates” are used in the definition of an offence, so far as regards that element of it, is complete where there is –

(a) the introduction, to any extent, by a person of his penis into the vagina, anus or mouth of another person.”

16. The definition does not confine only to vagina but also extends to anus and mouth. The victim stated in her statement to police, she was pulled by the Defendant and told her not to scream and he shut her mouth with his hands and put her down on the floor. Victim says Defendant after had unsuccessful attempt on her vagina, asked her to suck his penis. According to the definition of Sexual penetration, there is evidence of sexual penetration as indicated by the victim when she says she sucked the Defendant’s penis and also there is evidence of scratch marks on her back. I am satisfied the scratch marks on the victim’s back are occasioned by the Defendant in his attempt to have the child victim suck his penis. Funded on this the argument that penetration did not occur is refused.
    
17. None of the people who had apprehended the victim and brought to the police station have given evidence except the victim and his father. The victim’s father’s witness statement is not assisting me since he only heard about the incident involving his daughter but the only evidence to rely upon is the evidence of the victim. The victim’s father’s witness statement is therefore relating to hearsay. The other evidence of the police arresting officer and corroborator are not helpful since they came into the scene after the allegation was reported to police. Should the court commit the Defendant on the uncorroborated evidence of the victim alone?
    
18. The Law under Section 229h of the Criminal Code Act says Corroboration is not required for offence in which Defendant is charge with. The law is stated hereunder:
    

[1]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.

19. The court in Anton v Chea [2021] PGDC 131; DC 6088, ruled that in an allegation where the victim is surviving, the victim statement forms the crux of the evidence in which other witness statements are only to back up. If the victim statement is missing, then the entire police case will not succeed. However, in accordance with Section 229H of the Criminal Code Act, the victim statement is on the court file and this is sufficient enough to be considered.
    
20. In respect to the arguments raised by the Defendant on the issue of hearsay evidence and conflicting facts, pursuant to Section 229H of the Criminal Code Act, I will consider the victim statement as it is and therefore the argument submitted under this limb is not considered and thus refused.
    

RULING

21. I have established three (3) things, firstly, Defendant was drunk at the time of allegation and cannot clearly recall what had happened and, secondly; it is an offence where evidence of one witness is sufficient enough to commit the Defendant and, lastly; Defendant’s state of mind and clear vision to recall and analysis things at the time of allegation was contaminated by alcohol and cannot recall what happened than the medical report and victim statement. Based on this, I am satisfied with the medical report that while the Defendant in the process of trying to push the victim on the floor before penetrating her on her mouth had caused brushes on part of her back and this aspect of the police evidence is sufficient to tie the Defendant to the allegation.
    
22. The child victim stated in her statement that the victim is known to her as they reside in the same neighborhood. Given this, there is evidence that Defendant is not a stranger to the victim as he was clearly identified and recognized by the victim.
    
23. Moreover, Defendant’s argument about his denial of the allegation has zero effects as far as his state of mind at the time of allegation is concerned (he was drunk and could not clearly recall). If Defendant admitted on his record of Interview that he cannot recall what had happened, then how could he recall and deny the allegation? Defendant cannot recall what happened but the medical report confirms his actions.
    

CONCLUSION

24. In the end, it is my decision evidence in the Police file is sufficient to make a prima facie case against the Defendant by meeting all the elements of the offence of Sexual Penetration under Section 229A(1) of the Criminal Code Act that Defendant engaged in an act of sexual penetration with the victim who was 11 years of age at the time of allegation.
    

ORDERS

25. My Final Orders
    

1. Evidence is sufficient to commit the Defendant

2. Defendant’s bail extended.

Public Solicitors For the defendant
Police Prosecutor For the State