Kamasunga v Opa [2021] PGDC 186; DC7041 (21 December 2021)

DC7041

Papua New Guinea

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

COM NO 922 OF 2020
CB NO 2961 OF 2020

BETWEEN:

ANDRIANA KAMASUNGA
[Informant]

AND:

DANIEL OPA
[Defendant]

Waigani: Paul Puri Nii

21^th December 2021

COMMITTAL PROCEEDINGS: Charge- Persistent Sexual Abuse -Section 229D (1) of the Criminal Code Act 1974, Chapter No. 262. Police to afford prima facie hands-on evidence sustaining the elements of the charge to make a prima facie case against the Defendant.

PRACTICE AND PROCESS: Approved requirement for prima facie Case-existence of the essentials of charge of Persistent Sexual Abuse –Evidence of victim claims she was sexually abused by her step-father on numerous occasions. Offender was arrested and charged founded on this allegation- Complainant alleges accused sexually touched her and sexually penetrated her with his fingers.

PNG Cases cited:

State v Makai [2009] PGNC 239 N3841
State v Epi (No 1)[2017] PGNC 52 ; N6674
State v BN (2014) N5677
Police v Are [2021] PGDC 123; DC6078
Anton v Chea [2021] PGDC 131; DC6088

Overseas cases cited:
Nil

References

Legislation

The Constitution of PNG
Criminal Code Act 1974, Chapter 262
District Court Act 1963, Chapter 40

Counsel
Police Prosecutor: Joseph Sagam For the Informant
Mr. Canute Nidue: Nidue & Associates Lawyers For the Defendant

PRONOUNCEMENT ON EVIDENCE

21^th December 2021

INTRODUCTION

NII, P. Paul Magistrate. This is my decision on whether a prima facie case is fittingly documented within the connotation of Section 95 of the District Court Act 1963, after Prosecution case and defense submission are warily dignified. On 10^th November 2021, Mr Nidue through a supplementary submission filed dated 3^rd November 2021 claims evidence is unsatisfactory to commit the Defendant. Police prosecutor Joseph Sagam challenged the Defense arguments and today is my declaration on committal.

FACTS

1. Defendant is aged 48 years’ form Laiyo village, in Pangia, Southern Highlands Province and he is a police officer. He is married with 4 children and resides at Bomana Police college. The victim is the Defendant’s biological daughter, 16 years old and attends Marienville Secondary school and she is the first born. Police allege that between 1^st January 2017 and 15^th August 2020 Accused had been sexually abusing her own biological daughter. Police went on to state the allegation started when the victim was in grade 7 at Bomana Primary school.
   
2. Police say Defendant gives things like phone and money to the victim in secret and between those dates Defendant would kiss her daughter behind closed doors until the victim senses something was not appropriate. Police allege that sometimes in 2019, Defendant showed nude pictures on his phone to the victim and asked her if she felt wet, sexy etc. The recent allegation was on 15^th August 2020, where the victim was told by the Defendant to grow her breast.
   
3. The matter was reported and Police consequently arrested the Accuse on 4^st December 2020, for the allegation of Persistent Sexual Abuse under Section 229D(1) of the Criminal Code Act. Police quantified on their indictment that acused was arrested because he engaged in a Persistent Child Sexual Abuse of a minor (name withheld) then aged 13 years and at the time victim was in a position of trust, authority and dependence on him.
   

CHARGE

4) Defendant is charged under Section 229D(1) of the Criminal Code Act.

“229D. Persistent sexual abuse of a child.

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

ISSUE

4. Whether police evidence is reasonable to commit the Defendant on the charge of Persistent Sexual Abuse.
   

THE LAW

The Authority of the Court

5. I have the jurisdiction under Section 95 of the District Court Act.
   

(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.

ELEMENTS OF THE OFFENSE

6. Police v Are [2021] PGDC 123; DC6078, unmistakably defines the Elements of Persistent Sexual Abuse under Section 229D(1)[i] in the subsequent method:
   

a) A person who,

b) on two or more occasions,

c) engages in conduct

d) in relation to a particular child

e) that constitutes an offence

EVIDENCE

7. The Police hand-up-brief holds prosecution evidence in the form of witness proclamations and other added textual evidence such as photo exhibits.
   

PROSECUTION CASE

8. Police evidence in brief.
   

a) Victim (name withheld)- says she is 16 years old and from a mixed parentage of Southern and Eastern Highlands Province. Witness says she was sexually assaulted by the Defendant since 2017 and the latest was on 15^th August 2020.

b) Christian Opa- Witness says she is married to the Defendant and the victim’s mother. She says on 29^th August 2020, she was informed by her daughter(victim) that Defendant hugged her and rubbed her breast with his hand. Witness says Defendant would be very obsessed with the victim and would take her to wherever he would go but not his other children for reasons known to himself.

c) Floyd Kuk- this witness says he is the victim’s best friend and met her in 2018 while they were doing grade 8 at Bomana primary school. Witness says he would visit the victim at times at her home but her father the Defendant won’t greet him nor shake hands with him. Witness says on 31^st August 2020, he was told by the victim that Defendant would touch her body connotation to say sexually assault her.

d) Rachael Pinda- the police arresting officer who arrested the Defendant and charged him for the offence of persistent sexual abuse under Section 229D(1) of the Criminal Code Act.

e) Eddie Milali- the policeman who was with the arresting officer at the time when the Defendant was interrogated at the police station.

DEFENSE CASE

9. Defendant through his Lawyer Mr Canute Nidue submits police evidence that the allegation does not meet the elements of the offense against the Defendant.
   
10. Defense describes the connotation of persistent sexual abuse of a child under Section 299D of the CCA in State v Makai [2009] PGNC 239 N3841, as:
    

a. In relation to the child that establishes an offence under Division IV.2A of the CCA

b. On two or more occasions

c. Each occasion was on a separate day

d. Material facts are clear

11. Defendant pleaded the case of State v Epi (No 1)[2017] PGNC 52 ; N6674 which defines the elements of sexual touching under Section 229B of the CCA and case of State v BN (2014) N5677 which establishes the offence of Indecent Act Directed at a Child under Section 229C of the CCA in support of his submission on evidence for the allegation against him to be dismissed.
    

CONSIDERATION OF EVIDENCE

12. I have carefully noted Defense submission on Police evidence and observed that Defendant cited other provisions of the Sexual offence against children to defend his charge under Section 229D of the CCA. Defendant is arrested under Section 229D of the CCA for Persistent Sexual Abuse of a child. It is obvious from my observation that although Defendant had cited other provisions of the CCA to upkeep his arguments to refute police evidence on the elements of the offending charge, my consideration will be completely on the offending provision. There is nothing wrong with Defendant’s argument but the charge under which the Defendant was arrested and charged is explicitly provided and thus whatever submissions made must be rigorously on the offending charge and its conforming elements.
    
13. Defendant on his submission has not submitted independent on the offending charge by attacking its elements but brought other changes under the Sexual Offence Against Children to the offending charge by attaching the offending charge. The elements of Persistent sexual abuse as distinct by Police v Are[ii] should be the focus of argument and nothing else. There are five(5) elements of the charge of Persist Sexual Abuse of a child abd they are: 1) A person who, 2) on two or more occasions, 3) engages in conduct, 4) in relation to a particular child, 5) that constitutes an offence.
    

RULING

First Element: A person

14. This is the first element and that is the offender must be correctly recognized and identified with its permitted features. Defendant is pronounced by police as aged 48 and from Laiyo village, Pangia, SHP who is presently a police officer serving RPNG and he is the victim’s biological father. Given this narrative, I am gratified that the first element is met by police.
    

Second Element: On two or more or more occasions

15. The second element is the conduct of persistent Sexual abuse must take place on more than two occasions. Victim stated that the first allegation started in 2017 and the latest on 15^th August 2020. There are two (2) dates provided for the alleged offense, the first date had no precise stretch and time which leaves its accurate date in ambiguity while the second date is fittingly delivered. I have witness statements of Floyd Kuk and Christina Opa and noted both have corroborated the second date but not the first date. Although corroboration is not an obligation for offenses under the division in which the defendant was arrested per Section 229H of the CCA, the substances of the victim statement must be unblemished to satisfy the word “persistent” in the charge. The case of Anton v Chea [2021] PGDC 131; DC6088 affords a victim statement as a stamp and all other witness statements are lake branches where their evidence is to support the victim statement. The victim statement is significant and thus must applicably capture the elements of “two or more occasions” to gratify the word “persistent”. However, the vagueness in the first date infringes the second element and thus this element is not met by police evidence.
    

Third element: engages in conduct

16. The third element is about the conduct of persistent sexual abuse. The evidence from the victim, Christina Opa and Samuel Kuk say Defendant was involved in an allegation of persistent sexual abuse with the victim. Regardless of how many times the purported allegation took place, but to what degree? The magnitude must be reinforced by the number of times Defendant had allegedly been involved in the act against the victim but in the nonexistence of the exact number of times to equal the elements of the charge, the element of conduct is missing and thus this element is not met by police evidence.
    

Fourth element: in relation to a particular child

17. The victim provided in her statement that she was 16 years at the time when Defendant was arrested and charged. That means in 2020 she was 16 years old. The offending charge under Section 229D(1) of the CCA is dissimilar to other provisions connecting to Sexual Offences and Crimes against children since it does not define what is a “child”. Nevertheless, I have adapted the wider classification under Section 229J of the CCA where a “child” in respect to offenses under this provision[iii] is a person under the age of 18 years. There is no medical documentation to confirm the victim’s age. However, since the victim says she was doing grade 10 at the time of allegation, I would from a reasonable man’s point of view accept the victim as less than 18 years old and she was a child. Therefore, this element is met by police.
    

Fifth element: that constitutes an offence

18. I am attentive of Section 229H of the CCA where Corroboration is not obligatory but the contents of the victim statement must be permissible and meet the elements of the subject allegation. Corroboration centers with other witness statements but what matters is the victim’s statement, it must be permissible and appropriate in the eyes of laws by meeting the elements. Since the purported conducts fall short of the word “persistent” to make a prima facie case to meet the elements of one or more occasions, it is my view that nothing establishes an offense under this element and thus police evidence has not satisfied this element.
    

CONCLUSION

19. With consistent to the principles in Police v Are[iv], I have Identified five (5) elements of the offence of Persistent Sexual Abuse under Section 229D of the CCA. Police evidence has met elements 1 and 4 but not elements 2, 3 and 5. I have arrived at a conclusion where the ruling on evidence is 3/5 for the Defendant which demonstrates police have slightly missed the burden of prove and thus it is my inclusive supposition that police evidence has failed to hold the Defendant answerable for his purported engagements under Section 229D(1) of the CCA.
    

ORDERS

20) My Final Orders

1. Evidence is insufficient to commit the Defendant for the charge of Persistent Sexual Abuse under Section 229D(1) of the Criminal Code Act.
   
2. The Information holding the charge of Persistent Sexual Abuse under Section 229D(1) of the Criminal Code Act is dismissed.
   

c. Defendant’s bail be refunded.

.

Nidue & Associate Lawyers For the defendant
Police Prosecutor For the State

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

[i] Criminal Code Act 1974
[ii] [2021] PGDC 123; DC6078
[iii] Offences under the crimes involving children.
[iv] Supra