Police v Francis [2021] PGDC 89; DC5048 (11 May 2021)

DC5048

Papua New Guinea

In the District Court

Held at Waigani

Sitting in its Committal Jurisdiction

Comm. No. 55 of 2020

BETWEEN:
THE POLICE
Informant

AND:
MAX FRANCIS
Defendant

Port Moresby: T. Ganaii

2021: 20^th April and 11^th May

COMMITTAL PROCEEDINGS – Practice and Procedure - Committal Ruling pursuant to Section 95 of the DCA - Phase One of the Committal process – One count of Persistent Sexual Abuse contrary to Section 229D of the CCA (Sexual Offences and Crimes Against Children Act 2003 - Sufficiency of Evidence on all of the elements of the offence charged – Separate conduct of Enquiry on Admissibility of child witness statement – Child witness statement is admissible - Evidence is sufficient to make out a prima facie case to commit the defendant to trial on the charge

COMMITTAL PROCEEDINGS – Practice and Procedure - Committal Ruling pursuant to 100 of the DCA – Phase Two of the Committal Process - Section 96 administered – Defence filed a section 96 statement – Defence maintains the defence of General Denial - Matter for trial proper – Ruling on Sufficiency of Evidence under section 95 is intact – Defendant is committed to stand trial in the National Court on one count of Persistent Sexual Abuse under section 229D of the CCA
Cases cited
Akia v. Francis PGNC 335; N6555
Maladina v. Principal District Magistrate Posain Poloh [2004] PGNC 208
R v. McEachern [1967-68] PNGLR 48
State v. Makai [2009] PGNC 239; N3841 (15 December 2009)
Yarume v. Euga [1996] PGNC 24; N1476

Legislation
Criminal Code Act Chapter 262
District Court Act, Chapter 40

Counsel
Police Prosecutor: Koniu Polon For the Informant
Mr. David Kayok, Public Solicitors For the Defendant

Ruling on Sufficiency of Evidence pursuant to Section 95 of the DCA
and Final Ruling on Committal pursuant to Section 100 of the DCA

2021: 20^th April and 11^th May

Introduction
Ganaii, SM. This is a ruling on whether a prima facie case is made out within the meaning of Section 95 (1) of the District Courts Act (DCA) where all the evidence of the Prosecution is received in the form of a Police Hand Up Brief (PHUB) and the Court is required to consider whether it is sufficient to put the defendant on trial. The parties’ respective submissions are also considered in this ruling.

2. This ruling also covers the administration of section 96 of the DCA and final ruling pursuant to section 100 of the DCA.

Charge: Persistent Sexual Abuse under section 229D of the CCA

3. Police say that “Between the 01^st of May 2019 and 12^th of January 2020, at Burns Peak settlement, Hohola, NCD, in Papua New Guinea, the defendant Max Francis, Adult male, from Romoro village, Chuave, Simbu Province

Engaged in persistent sexual abuse of a particular female child Michaelyn Michael a child under the age of 12 years then aged 9 years old

Thereby contravening section 229D (1) of the CC (Sexual Offences and Crimes against Children ) Act of 2002”

Statement of Facts
4. According to the facts contained in the PHUB, the child complainant is a Grade Four pupil attending Hohola Demonstration Elementary School and resides with her parents at Burns Peak settlement in the Hohola Suburb of the NCD. The accused now before the court is an adult male. He is unemployed and resides at the same settlement as the child’s family.

5. Police allege that on 12^th of January 2020 at about 6:00pm the child victim and her mother finished from attending to the Hohola SDA Church and were walking back home. It was about 8pm. As they reached the entrance of their house they both saw the accused sitting with another male friend outside his house. The complainant walked to the house while the child complainant stood next to the accused and was watching movies on his mobile phone. He turned around and saw the child victim and told her to follow him to his house so that he will give her K2. The child victim followed the defendant to his house. When the defendant saw that there were a lot of people and also when he heard the complainant calling for the child victim, he told her to go back to her house.

6. The child victim went home and her mother asked her where she had come from. She told her mother of what the accused did to her. She told her mother also that the accused had sexually abused her on many occasions in his house and would give her K2. He would threaten her not to tell anyone or he would kill her.

7. Police say according to their investigations, the alleged incidents of sexual abuse started on the 01^st of May 2019 to the 12^th of January 2020 when the child victim told her mother.

8. The defendant’s action in perpetrating acts of sexual abuse on the child on more than two occasions amounts to the offence of persistent sexual abuse under section 229D of the CCA. The defendant was arrested and charged accordingly.

Issue
9. The issue before this court is whether a prima facie case is made out and that is whether the evidence received from the prosecution is sufficient to warrant the committal of the defendant to stand trial at the National Court on the information laid.

10. The sub-issue is whether there is sufficient prima facie evidence on each elements of the offence of Persistent Sexual Abuse pursuant to section 229D (1) of the CCA.

The Law
The Law on Committal Proceedings

11. Part VI of the District Courts Act (DCA) provides the legal basis for committal proceedings specifically under Section 94 to Section 100 of the DCA.

12. The Committal Process whilst requires the Court to make a finding on the evidence presented by the Police, this process is very administrative in that the Court need only to form an opinion that there is a bona fide prima facie case against the Defendant; as per Akia v. Francis ^[1]and R v. McEachern^[2].

13. In the matter of Maladina v. Principal District Magistrate Posain Polo^[3]. His Honour Injia DCJ (as he then was); expressed in his opinion that the Committal process involves two phases, the first is when the Committing Magistrate makes a finding on whether or not there is sufficient evidence and whether a prima facie case is made out under Section 95 of the DCA on whether to discharge or commit the Defendant only after the Court administers an examination of a Defendant under Section 96 where the defendant is asked whether he desires to give evidence.

14. Furthermore, in the case of Yarume v. Euga^[4] the National Court said in respect to committal hearings that the process of committal requires proper and reasonable assessment of the evidence with a view to see whether all the elements or ingredients of the offence is present before he can commit the accused; Section 94B, 94C, 95 and 100 to be read together.

Evidence in Written Statement
15. Section 94C requirements in the committal process must be fulfilled and is in the following terms:

94C. Regard to Evidence, Etc.

(1) When conducting a committal hearing under this Part, the Court may, subject to Subsection (2), have regard to–

(a) the evidence contained in a written statement; and
(b) documents and exhibits,

of which a copy has been served on the defendant under Section 94(1) or made available for inspection under Section 94(2).

(2) Before admitting a written statement, the Court shall be satisfied that the person who made the statement had read and understood it, or if unable to read, had had it read to him in a language that he understood.

16. The case precedent on this principle of law in relation to written statements is in the case of The State v. Kai Wabu^[5]. In this case the court held that the combined effect of ss 94 (1A) and 94C (2) of the DCA is that the committal Court must conduct an enquiry to ensure that the makers of statements had full knowledge of the contents, correctness, and truth of written statements they are responsible for signing. This requirement is mandatory and requires strict compliance. This enquiry is an independent one, which the Court must conduct in the exercise of its judicial function. The court further stated that after having conducted the enquiry, the Court has the discretion to admit or reject the written statement. The Court must then record the nature and extent of the enquiry conducted and record its findings. A failure to conduct such enquiry and record its finding may result in voiding the committal.

The law on the offending provision(s)

229D. Persistent Sexual Abuse of a Child.

^[6](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.

(2) For the purposes of Subsection (1), it is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.

(3) In proceedings related to an offence against this section, it is not necessary to specify or prove the dates or exact circumstances of the alleged occasions on which the conduct constituting the offence occurred.

(4) A charge of an offence against this section –

(a) must specify with reasonable particularity the period during which the offence against this section occurred; and

(b) must describe the nature of the separate offences alleged to have been committed by the accused during that period.

(5) For an accused to be committed of an offence against this section –

(a) the court must be satisfied beyond reasonable doubt that the evidence establishes at least two separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting an offence against this Division in relation to a particular child; and

(6) If one or more of the occasions involved an act of penetration, an offender against Subsection (1) is guilty of a crime and is liable, subject to Section 19, to life imprisonment.

(b) the court must be so satisfied about the material facts of the two incidents, although the court need not be so satisfied about the dates or the order of those occasions.

Elements
17. In the case of State v. Makai [2009]^[7] the court held that for an accused to be convicted of the offence of persistent sexual abuse of a child, the court must be satisfied beyond reasonable doubt that:

(1) he engaged in conduct

(a) in relation to the child that constitutes an offence under Division IV.2A of the Criminal Code;

(b) on two or more occasions;

(c) each occasion was on a separate day; and

(d) the material facts of the occasions are clear.

(2) The court does not have to be satisfied beyond reasonable doubt as to the dates or order of the occasions.

(3) The State does not have to prove each occasion of criminal conduct alleged in an indictment; two will suffice.

Prosecution Case
18. To prove its case the Prosecution produced seven (07) witness statements. The witness statements were from the following and a summary of their evidence is as stated below:

(1) MM – is the child victim. Her evidence is that the defendant sexually penetrated her on more than two occasions. She spoke of specific occasions as follows: firstly at day time when she was playing and the defendant called her to him to give her K2 and he sexually penetrated her. This she recalls as the first incident. There were other incidents in which she describes as more instances of sexual penetration when her mother had gone to buy tobacco and the defendant would call her to his house and sexually abuse her.

The court notes here that the child witness statements were obtained in pidgin and translated to English. Both versions were unsigned however, in a separate enquiry, the court found that sufficient explanations were given by the Investigating Officer that she obtained and read back to the child her statement. The child was not able to sign them and sufficient reasons were given as to why the statements were not signed. The statements were admissible.

(2) Avaisa Michael – is the child complainant’s biological mother and main complainant. Her evidence is on how she learnt of the alleged acts of sexual penetration. She also tells of the child’s date of birth which is the 05^th of March 2011. She states that the child victim told her that the defendant had sexually abused her on many occasions.

Statement was obtained in pidgin and translated to English. English statement is unsigned. Pidgin statement has the name Abisa written on it.

(3) Michael Din – who is the child victim’s biological father. His evidence is on the child victim’s date of birth. He also told of how the child victim and her mother returned from church ad what the child victim told them about the sexual abuses perpetrated on her by the defendant.

Statement obtained in pidgin and translated into English. Pidgin statement is signed. English statement is unsigned.

(4) Mone Maso - Witness was an informal sales person. She states of what she observed on the night of the 12^th of January 2020. She saw the child victim coming from the defendant’s house after her mother was looking for her.

Statement obtained in pidgin and translated into English. Pidgin statement is signed. English statement is unsigned.

(5) Christine Waure Jimmy – Is a registered Nursing Officer with Family Support Centre, POM General Hospital. Her affidavit refers to and has attached to it the medical report.

The medical report had issues with it which are: the name of the mother of the child complainant is not correct, the Date of Birth of the child complainant is not correct and so the Medical Report could not be the right one for the child victim.

(6) Cathy Peter – Witness is a Police Women attached to the Sexual Offences Squad. She is involved as the Corroborator in the Police interview with the defendant.

(7) Martha Maraga – Witness is the Police Arresting Officer attached to the Sexual Offences Squad and involved in the investigations and conduct of the police interview. In her statement she mentioned that she conducted an interview with the defendant and arrested him after the child victim and her mother reported and made statements to the Police that the defendant had sexually abused the child victim.

Where the Arresting officer did not say how the child victim’s statements were obtained, a separate enquiry pursuant to section 94C was conducted. The enquiry found that the statements of the child victim were admissible.

Documentary Evidence
19. Police rely on the following documentary evidence:

1. Record of Interview dated 13^th January 2020, both English and Pidgin versions. There were no admissions made.
   
2. Medical Report dated 13^th January 2020, Family Support Center, POM General Hospital showing laceration at labia minora of vagina.
   

100. Antecedent Report – contains personal particulars of defendant. Also contains prior convictions if any. Prior is not considered now.
     

Defence Submission
20. Below is a summary of the Defence which was filed submissions on the 04^th November 2020 and verbal submissions after an enquiry into the admissibility of the child victim’s statements. Defence stated as follows:

1. The file is incomplete and contains inconsistencies such as on the age of child victim; evidence of her date of birth; name of the main complainant or child complainant’s mother and there was no specification on time periods for the alleged offence or acts occurring on two or more occasions constituting the offence of PSA;
   
2. Both versions of the child complainant’s statements are unsigned. It is not stated clearly by the investigating officer whether these statements were made by the child victim or not. And if so it is not stated clearly that they were translated into English;
   
3. There being no clear evidence as to whether the child victim had made those statements, there is no evidence showing that the child victim is capable of fully knowing and understanding the consequences of giving a statement under oath. Thus, her statement does not meet the requirements of section 94 1A and 1B of the DCA;
   
4. Without a signed statement, and an interpretation clause, it is not in compliance with section 94C (2) of the DCA;
   
5. In relation to time periods, the child victim did not mention dates and so it is questionable as to how the Police came up with specific dates between 01^st of May 20019 to 12^th January 2020. Defence submits that these time periods were made up by the Police;
   
6. The statement of Avaisa Michael was given in English and unsigned. In the pidgin version where the witness wrote her name, this name is not the same as the name shown in the English version. It is not clear if this is the same person;
   
7. In the Medical Report, the name of the mother of the child victim who accompanied the child victim to the Clinic is not the same as Avisa Michael who’s witness statements says that she is the biological mother of the child victim. In the Medical Report, the name of the mother of the child victim was recorded as Aloisa Peter. The names are different and for that reason the court must not accept both statements;
   
8. Statement of the father of the child victim Din Michael is not of evidentiary value as the witness Din Michael did not see what happened;
   
9. Both versions of statement of Mone Maso were not signed. It is not stated clearly by the investigating officer whether these statements were made by this witness. The court must not rely on them;
   
21. Due to the above, defence say the witness statements are inadmissible and there is insufficient evidence on the elements of the charge.
    

Prosecutor Submissions

22. The Prosecutions submitted that:
    
1. Since the child witness’ (victim) statement is not signed, the court can look at both parents’ statements where their original pidgin versions were signed. They are the main complainants who laid the complaint;
   
2. The names and date of birth in the medical report may have been an error. The trial court can hear explanations in trial proper on the contents of the medical report;
   
3. If there was no complaint and no identification of the defendant, the defendant could not have been brought in to the police station. There were formal complaints laid against him. He was identified; and
   
4. The statements of police witnesses are admissible and there is sufficient evidence on all the elements of the charge.
   

Analysis of the Evidence and Consideration of Parties’ Submission
23. In response to the parties’ submissions and evidence in the PHUB, the court responds in the manner below.

1. Firstly, the English versions of the statements of Avaisa Michael and Michael Din (parents of the child victim) and one Mone Maso have not been signed.
2. The Arresting Officer in a separate enquiry on the issue of admissibility of the child witness statements has explained at least that she had obtained the pidgin versions of the statements of parents of the child Avaisa Michael and Michael Din and had translated them into English. However, they were not signed.
   
3. The arresting officer was called in the committal court enquiry and can also be called at trial to explain why the English versions of the statement of the parents and of Mone Maso were unsigned. For now, because explanations were given that the arresting officer did obtain the statements at least for the parents in pidgin, typed them and had them signed, the English versions of all three witnesses (Avaisa, Din and Maso) which the court and all parties are able to read, are admissible for now. Mr Maso’s pidgin statement is signed as opposed to what the defence submits.
   
4. The witness statements of other witnesses (Arresting officer and the Corroborator) have complied with the requirements in section 94C and principles in Kai Wabu’s case and are admissible.
   
5. The unsigned statements (pidgin and English versions) of the child witness have been admitted into evidence after a separate enquiry was conducted and concluded on the 05^th of March and 20^th of April 2021. The court accepted that the statement of the child witness was obtained by the Case Investigating Officer and also read back to the child who understood it. The Investigating Officer also explained why the statements were unsigned. That ruling is written and is contained in the Committal File.
   
6. The statement of the child witness establishes that there were two or more occasions of acts of sexual abuse perpetrated on her. She recalls a specific incident in the morning of the day that the defendant called her to his house and sexually penetrated her. She also recalls other times when her mother went away to buy tobacco when the defendant called her and sexually penetrated her.
   
7. The child victim is able to identify the defendant by name and also as Shelly’s father. Shelly is the child victim’s paly mate and the daughter of the defendant. The defendant is known to the child victim’s family as he is their neighbor.
   
8. There is sufficient evidence given by both parents in their respective statements on the date of birth of the child. The child is under the age of twelve years. The age represented in the medical report may be an error or the report may not belong to the child victim.
   
9. The medical report is admissible for now as it was referred to in the affidavit of the Nursing Officer Sister Christine Waure. The reliability of the statement based on its accuracy are matters for trial proper;
   

10) The medical report may be discredited due to its inconsistencies with other evidence on the age of the child and name of the mother. It may not be the right report for the child victim. Corroboration however, is no longer required^[8] in proving sexual offences. The trial court can convict based on the evidence of the child victim alone. For current purposes, the court can rely on the child victim’s statement alone in making a finding of sufficient evidence.

11. The elements of two or more occasions of sexual offences are established by the child witness’ own story. The child victim was able to specify with reasonable explanation the occasions of sexual penetration. The child however is not bale to give evidence of the specific dates during which the alleged offence occurred. That is not a requirement. She was able to describe the nature of the separate offences alleged to have been committed by the accused during a period of time.
    
12. The court is satisfied that the evidence establishes at least two separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting an offence.
    
13. On the specific dates on the Information that is between the 01st of May 2019 to the 12th of January 2020, the arresting officer can be called at trial to explain why these dates were mentioned as the period in which the charge is alleged to have occurred. And further, witnesses including the child victim and her parents can also be called to explain. If witnesses are not able to pin point dates, if will be sufficient that the court can make inferences from facts surrounding the case on the periods in which the alleged acts had occurred.
    
14. For now, I find that there is sufficient evidence on the elements of the charge on identification and involvement of the defendant; that there were two or more occasions of alleged sexual penetration on the child over a period of time to make out a prima facie case.
    

Conclusion

24. Upon a requirement under Section 95 (1) of the DCA to make a determination on whether there is some evidence on each element of the offence to make out a prima facie case against the defendant to warrant his committal to the National Court and that is whether there is sufficient evidence on each element of the offence contained on the PHUB to warrant a committal on the charge as per the Information, I find sufficient prima facie evidence that the defendant did commit the alleged offences of Persistent Sexual Abuse under section 229D (1) of the CCA. Consequently, I form a bona fide opinion that there is sufficient evidence against the defendant in order to commit him to stand trial.

Administration of Section 96
25. After the requirements of section 96 were explained to the defendant which he understood, through his lawyer, he filed a section 96 statement on the 04^th of May 2021.

26. The defendant maintained his denial to committing any acts of sexual penetration as alleged by the child victim. This is a matter for trial proper.

27. The ruling on prima facie sufficiency of evidence delivered on the 20^th of April 2021 is intact. There is sufficient prima facie evidence to make out a case against the defendant on one count of Persistent Sexual Abuse.

Final Orders

28. The court’s final orders are:

1. There is sufficient prima facie evidence to committed the defendant to stand trial in the National Court on one count of Persistent Sexual Abuse under section 229D (1 ) of the CCA;
   
2. The defendant is committed to stand trial in the National Court on one count of Persistent Sexual Abuse under section 229D (1 ) of the CCA;
   
3. The defendant is to appear at the Waigani National Court, Criminal Listings on Monday 07^th of June 2021 at 9:30 am; and
   
4. Defendant’s bail is extended on same conditions.
   

Police Prosecution For the Informant

Public Solicitor For the Defendant

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^[1] PGNC 335; N6555
^[2] [1967-68] PNGLR 48
^[3] [2004] PGNC 208
^[4] [1996] PGNC 24; N1476
^[5] [1994] PNGLR 94 (Injia, J.)

6. ^[6]Section 229D of Part IV Inserted by No. 27 of 2002, s. 1.

^[7] PGNC 239; N3841 (15 December 2009

^[8] 229H. CORROBORATION NOT REQUIRED.

⁹On 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.