Police v Taina [2021] PGDC 85; DC6042 (8 July 2021)

DC6042

Papua New Guinea

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

NCC NO 183 OF 2021
CB NO 216 OF 2021

BETWEEN:

THE POLICE
[Informant]

AND:

MARTIN TAINA
[Defendant]

His worship Paul P. Nii

8th July 2021

COMMITTAL PROCEEDINGS: -Charge- Sexually penetrated -Section 229A(1) - of the Criminal Code Act 1974, Chapter No. 262. Police HUB pending record of interview- Application to Struck out the information-want of evidence- Application dismissed.

EVIDENCE: HUB pending ROI-Evidence is lacking-Justification for the delay-evidence from the bar table-

PNG Cases cited:

Nil,

Overseas cases cited:
Nil

References

Legislation
Criminal Code Act 1974, Chapter 262
Constitution

Counsel
Police Prosecutor: Peter Samghy For the Informant
Mr. Amet Jnr, Amet Lawyers For the Defendant

DECISION ON APPLICATION TO STRUCK OUT THE INFORMATION

08^th July 2021

INTRODUCTION

NII, Paul Magistrate. This is my decision on whether to dismiss the information under enquiry or permit it to progress for committal hearing.

CHARGE

1. Defendant is charged with one count Sexual Penetration of a child under Section 229A(1) of the Criminal Code Act 1974, Chapter No. 262.
   

FACTS

2. Defendant was arrested and charged for the offence on 29^th January 2021. Police allege that Defendant sexually penetrated a child under the age of 16 years, namely Hadasha Moia, who was then 13 years old, by inserting his penis into her vagina. Defendant’s file was not served on the him since his arrest to the date of his application to have the information struck out.
   

ISSUE

3. Should the information under enquiry be struck out for want of evidence?
   

MY JURISDICTION

4. My jurisdiction to hear this application is under Section 20(2) of the District Court Act. This provision is as follows:
   

(2) Where, by law, jurisdiction is conferred on one or more Magistrates to hear and determine proceedings in respect of an offence or to do an act or to exercise a power, that jurisdiction may be exercised by a Court.

DEFENSNE APPLICATION

5. Defendant through his Lawyer Mr Amet argued his client was arrested on 29^th January 2021, and to the date of this application (7^th July 2021) police have not progressed their case by preparing and gathering evidence to substantiate the allegation of Sexual penetration of a child under the age of 16. Defendant’s Lawyer submits that police file has not been served on his client and it has taken almost 6 months from the date of his arrest. Defense Lawyer moreover submits on the protection of the law under Section 37 of the Constitution that his client shall be presumed innocent until proved guilty according to law and thus his client’s allegation be afforded an unbiased hearing within a reasonable time. Lastly, Defendant submits that there is no evidence material before the court demonstrating the when actually the file against his client be ready. In the absence of all these and other grounds, Mr Amet submits the information under enquiry that transmits the charge against his client be struck out for want of evidence. In the nutshell, this is the Defendant’s application.
   

POLICE ARGUMENT

6. Prosecutor Samghy for Police objected to the Defendant’s application on the basis that police file is ready pending only the record of interview. Prosecutor Samghy informed the court that he was in communication with the case officer on 6^th July 2021, and she assured him she was working on the file. Prosecutor also informs the court that Defendant is on a National Court bail and therefore it was difficult for the arresting officer to locate him for the Record of interview. Lastly, Prosecutor responds that the Application would serve no utility because the Defendant could be re-arrested if the missing evidence are gathered and completed. Based on this, Prosecutor responds that the Defendant’s application be refused and matter be progressed to hearing on committal.
   

CONSIDERATION OF EVIDENCE

7. Police Prosecutor says that the case officer was out of NCD for two (2) weeks and returned. There is also an Affidavit filed by the Police informant dated 9^th June 2021, explaining the delay and the paragraph which is quite necessary for my consideration as I quote:
   

“all the necessary documents are complied, only the record of interview and the medical affidavit from the Doctor needed to complete the hand up brief” (end of quote)

8. There is evidence that Police file is progressing to some stage but I am not certain when the file will be completed and served on the Defendant and this will unquestionably have an undesirable consequence on the Defendant’s protection of law as in so far as section 37 of the constitution concern.
   
9. The delay in the Prosecution must be beyond human control and that is either by some external compelling forces such as an act of God or force Majeure or if controllable then the explanations for the delay must be satisfactory. The evidence must be properly before me in a standard approach so that I should be satisfied about the delay.
   
10. Moreover, I have considered Defense submission that the Defendant although was arrested and charged, he should be presumed innocent until his allegation is heard within a reasonable time. The term “reasonable time” was adapted by the committal court as three (3) months upon which time the file should be served on the accused. Essentially, it has been a practice endorsed by a Practice Direction, however the said Practice Direction has been repealed by a new Practice Direction termed as Practice Direction No 1 of 2020. This fundamentally means that there is no time limitation on when police files will be served.
    
11. All criminal charges that are governed by the Criminal Code Act shall be decided by the court and adjourn for further mentions or terminated for want of evidence thereon based on the nature of the charge. All charges shall be determined and considered on its own merit and the degree of seriousness. An Information holding a charge could be terminated after one month or one year depending on the nature and serious of the allegation if file is not ready. The Defendant in the current allegation is charged with Sexual Penetration of a Child pursuant to Section 229A(1) of the Criminal Code Act and the maximum penalty under the provision is for a term not exceeding 25 years. The penalty provision would determine the nature of the charge and in here 25 years means the charge is serious.
    
12. The delay of 6 months in preparing the police file is in the circumstance of the charge and its corresponding penalty is not a substantial delay. For the interest of justice, the Prosecution will be given the benefit of the doubt to prove their case and for this reason I will have the matter progressed to committal hearing.
    

RULINGS

13. The Defendant’s Application to have the information dated 29^th January 2021 struck out for want of evidence is refused but the court will issue certain maneuvering orders for the police informant to comply with.
    

ORDERS

14. Defendant’s application to have the charge against him terminated is refused.
    
15. Defendant’s HUB must be served on the Defendant by 14/07/2021.
    
16. Matter will be struck out for want of Police file if HUB is not served by 14/07/21.
    
17. Matter adjourned to the 14/07/21, for mention.
    

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Public Solicitor For the defendant
Police Prosecutor For the State