Police v Hud [2021] PGDC 249; DC8091 (23 October 2021)

DC8091

PAPUA NEW GUINEA

Com. No. 231 of 2021

In the District Court of

Justice held at Madang

BETWEEN:
THE POLICE
Informant

AND:
LENNY HUD
Defendant

Madang: Kome, B, A/PM

2021: 8 September

COMMITTAL PROCEEDING: Practice & Procedure – Two (2) counts of Persistent Sexual Abuse of two (2) Minors - Criminal Code Act, Section 229 D (1) - Police Hand-Up Brief filed –Submission on Sufficiency of Evidence filed by Defendant

COMMITTAL PROCEEDING: Practice & Procedure – Ruling on Sufficiency of Evidence – Issue of Uncorroborated Evidence - Prima facie case made out –Sections 95(1) & 95 (3), District Court Act

COMMITTAL PROCEEDING: Practice & Procedure – Evidence sufficient to commit Defendant – Administration of Section 96, District Court Act statement to Defendant – Final Ruling to Commit Defendant to stand Trial at National Court – Section 100, District Court Act

Cases Cited: Nil

Counsels:
First Constable Wanai, E for the Informant
Defendant In Person

RULING ON SUFFICIENCY OF EVIDENCE

2021: 8, 23 October

1. Introduction: KOME, B; In this Committal proceeding, the Accused, Lenny Hud, was charged under the PNG Criminal Code Act (CCA), Section 229 D (1) for two (2) counts of persistent sexual abuse of two female children, aged 6 and 9 years old at the time when the complaints were laid. These offences allegedly occurred between the periods from August 2020 to April 2021.
2. The accused, a 36-year-old male from Wain village in Nawaeb District, Morobe Province is the step father of the two (2) victims who will be referred to as DG and SG to preserve their identities.
3. The Court will make its Ruling for the two (2) charges on whether there is sufficient evidence to commit the Defendant to stand trial at the National Court together. Court had also explained to the Accused his rights under Section 96, DCA on the date of this judgment and got his statement so that will be included in the Court’s final Ruling given in line with Section 100 of the DCA.

Brief Facts and elements of the Charge

4. The brief facts in the HUB state that the Accused (Lenny Hud) met and lived with the mother of the two (2) victims after she had the two children (victims) from a past marriage.
5. That since August 2020 they lived at the LBC area in Madang and during the night when the mother of the children and others were asleep, the Accused would allegedly go to the 9 year old victim (DG) and remove her trousers and put his index finger into her vagina and play with it. He also put his erected penis onto her vagina and rubbed it with his penis. The victim usually woke up shocked to see what the Accused (step father) was doing to her.
6. It is further alleged that in the beginning of April 2021, when they rented a place at Milok street, Madang, the Accused would go into the bedroom of the two (2) victims when they were fast asleep and remove their trousers and put his fingers into and play with their vaginas. That the Accused also placed his penis on their vaginas and played with them and when he releases his sperm, he usually used the bed sheets they sleep on to wipe himself.
7. The facts in the HUB state that accused continued these alleged actions until the victims’ mother got suspicious on 25 April 2021 and the next day, she asked her two (2) daughters who confirmed what the Accused was doing and from there, she laid the charges.
   
8. The Defendant is charged with the section stated below:

229D. PERSISTENT SEXUAL ABUSE OF A CHILD.

[77](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.

Elements of the Charge:

9. The elements of the stated charge can be categorized as follows:
   1. That the Accused
   2. sexually abused the victims.

Issue

10. Whether there is sufficient evidence to sustain the elements of the charge and whether this evidence is consequently sufficient to commit the Defendant to stand trial at the National Court.

Analysis of Police Evidence and Defendant’s submission

11. The main State witnesses in the HUB are of the two (2) victims and their mother. The statements of the Police officers who conducted the interviews are not relevant here except to confirm that an interview was properly conducted.
12. The two witnesses basically confirmed in their statements what they had alleged against the Accused and their mother also confirmed her suspicions of the Accused.
13. A Medical Report was compiled by Dr. W. Sapau which stated among other things that she confirmed symptoms of redness and tenderness around the vagina areas of the two victims. Her report was done on 28 April 2021.
14. After the Police file was completed and served on the Accused, the Court directed him to file his submission on sufficiency of evidence Accused then drafted a hand written submission which he tendered to Court on 23 August 2021.
15. In his hand written submission, Defendant raised a number of issues including wrong timing of the allegations, witnesses stories not being true and timing not accurate and also that victims’ stories are not corroborated.
16. The Court also noted that in both the Record of Interview and his submission, the Accused remained silent and did not admit to his allegations. In the submission, the Accused also persisted that the charge should not be sexual penetration as there was no penetration or in his actual words in pidgin; “Brukim na go insait.” Interpreted in English, it would be something like, “Breaking and going in.”

Court’s Ruling as to Sufficiency of Evidence under Section 95, DCA

17. The Court has carefully perused the evidence in the HUB and also took into consideration the Defendant’s submission, and pursuant to Section 95 (1), (2) & (3) DCA, this Court is satisfied that there is sufficient evidence to sustain the elements of the charges brought against the Accused.
18. Even though the evidence of the victims is uncorroborated, Section 229 (H) of the Criminal Code Act is clear that such evidence is acceptable by the Courts.
19. This Sections is stated below:

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.

20. The Accused had also submitted that the charges should not be sexual penetration as there was no penetration. The Court notes that there has been some confusion with the words used, that is, penetration and abuse.
21. However, it is clear from the Section 229 D (1), CCA, that the charges here, viz sexual abuse, refers to “any conduct that constitutes an offence against this Division...” (Emphasis mine).
22. This basically means that whether there’s penetration or not does not really make any difference.
23. The Court also noted that the medical report is also consistent with the injuries sustained by the deceased.
24. The Court is thus satisfied that there is sufficient evidence from the state witnesses of the alleged offences committed by the Accused.

ADMINISTRATION OF SECTION 96 STATEMENT

25. Before Committing the Accused to stand Trial at the National Court, the Court proceeded to explain what a Statement under Section 96 of the District Court Act was and asked if Accused wanted to make a statement under the stated provision.
26. In response to that, the Accused stated that he will remain silent and speak at the National Court.

Final Ruling under Section 100, DCA as to whether Accused should be committed to the National Court or not

27. Taking into consideration that the Accused has refused to say anything in line with Section 96, DCA, the Court will now proceed to the final phase of the proceeding pursuant to Section 100 of the District Court Act and in his case, this Court is satisfied that there is sufficient evidence to commit the Defendant to stand Trial at the National Court.
    
28. The final orders of this Court are as follows:
    1. The Court finds that there is sufficient evidence to commit the Defendant as per his two (2) charges of the Sexual penetration of the two (2) minors under Section 229 D, (1) of the Criminal Code Act.
    2. Defendant is committed to stand Trial at the National Court and his case will be mentioned at the Madang National Court at the next Call-over.
    100. Warrant of Remand is extended.
         

Lawyers for the Informant: First Constable Wannai, E.
Lawyers for the Defendant: In Person