Pinda v Pang [2022] PGDC 118; DC9005 (22 June 2022)

DC9005

Papua New Guinea

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

COM NO 304 OF 2022
CB NO 444 OF 2022

BETWEEN:

RACHAEL PINDA
[Informant]

AND:

JAMIE PANG
[Defendant]

Waigani: Paul Puri Nii

22nd June 2022

COMMITTAL PROCEEDINGS: -Charge- Sexual Penetration -Section 347(1)- of the Criminal Code Act 1974 (Chapter No. 262). Police to offer prima facie agreeable evidence amplification to the elements of Sexual Penetration to have the Defendant committed to stand trial in the National court.

EVIDENCE: Approved accountability for prima facie case-Foundation of the charge of Sexual Penetration–evidence of rape within relationship-evidence of drug prior to sex-Consent was improperly obtained under the influence of drug- Elements of allegation met-Charge sustained-Defendant is committed.

PNG Cases cited:

Akia v Francis [2016] PGNC 335; N6555 (24 August 2016)
State v Rabu [2021] PGNC 426; N9200
Anthon v Chea [2021] DC6056
Police v Koka [2021] PGDC 53; DC6010 (31 May 2021)
Police v Kambian [2021] PGDC 66; DC6021(30^th June 2021)

Overseas cases cited:

R –v- Esau [1997]2 SCR 777
R –v- Ewanchuk[1999]1 SCR 330

References

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

Counsel
Police Prosecutor: Chris Iga For the Informant
Young and Williams Lawyers: Greg Sheppard For the Defendant

RULING ON POLICE EVIDENCE

22^nd June 2022

INTRODUCTION

NII, P. Paul Magistrate. Judgment on whether a prima facie case is reasonably accredited inside the connotation of Section 95 of the District Court Act 1963. The court’s announcement is clenched after Police evidence and Defense case are pragmatically distinguished. Defendant disputes evidence is laughable to commit him while Police withstands evidence is fitting to commit the Defendant and therefore in the ensuing pages is my ruling on the valuation of prosecution evidence.

CHARGES

1. The suspect is charged with Sexual Penetration under Section 347(1) of the Criminal Code Act 1974. The complete details of the charge is exposed hereunder:
   

347. Definition of rape.

(1) A person who sexually penetrates a person without his/her consent is guilty of a crime of rape. Penalty: Subject to Subsection (2), imprisonment for 15 years.
FACTS

2. Defendant is aged 43 years old and of Sydney in Australia who was at the time of the alleged offence was employed as a Manager of Sanctuary Hotel at Waigani in NCD and the victim is a female aged 20 years old and from Tubuserea in the Central Province. Police allege that on Tuesday 12^th October 2021, the victim’s girlfriend by the name of Belsie Navu received a phone call from another friend of hers asking her to go to Sanctuary hotel. Belsie then invited the victim to go with her to Sanctuary hotel since Belsie’s boyfriend Leon (Philong Nguyen) has invited them for some drinks. The victim was told by Belsie that a vehicle would come their way to pick them up to Sanctuary hotel. The vehicle would be driven by the defendant’s driver.
   
3. They were then picked up by the Defendant’s diver at Vadavada on a Toyota land cruiser at around 7.30am to 8-00pm. On their way to Sanctuary hotel, Belsie told the victim that Leon had booked a room for them so they went straight to the room, however, along the corridor they met the defendant who greeted them.
   
4. After some moments they went to the Defendant’s room. However, Belsie and Leon went out and left the victim and the defendant in the defendant’s room. Victim says after she was in the defendant’s room, she saw guns, pipes used for smoking drugs, HIV & AIDS testing Kit and other drugs such as Cocaine and Methamphetamine inside the cupboard. There was also rubber horses (tubes) running on top of the curtain like a laboratory.
   
5. Police allege the victim was then forced by the defendant to smoke and forced the pipe into her mouth. After the defendant finished the first round, she was forced to smoke the second round until she was exceedingly intoxicated with drugs. The victim was then asked by the defendant to go and have her bath which she did and came out. Defendant later went and had his bath and came out naked and sat close to the victim and had another pipe with some substances in it and later forced the victim to smoke the pipe. Subsequently the defendant took one of her fingers and tested for HIV AIDS test after when she was high on drugs but the result produced was negative.
   
6. Police then asserts that the defendant snatched the victim’s hair and told her to open her mouth and forcefully put his penis into her mouth and told her to suck his penis which she did until the defendant ejaculated his semen on the victim’s hair. Afterwards the defendant went and had shower and came out and was unhappy with the defendant and told him that she would come back with her family to address the issue.
   
7. Police allege that the victim was later taken to the bus-stop to be dropped off at her home by the defendant’s driver and one other man. She was then taken away by a taxi driver and was allegedly raped by the taxi driver and later was raped by a policeman by the name of Denley who was on duty on the morning of 14^th October 2021 at Port Moresby police station. On Friday the 15^th October 2021, a policeman named Komen Gubag and another person named Moiya Perry went to Vadavada and threatened the victim and her sister not to report the matter. However, the suspect was afterwards charged for the offence of Sexual Penetration under Section 347(1) of the Criminal Code Act.
   

ISSUE

8. Whether a prima facie case is realistically time-honored and that is whether Police evidence is fitting to make a case against the Defendant.
   

THE LAW

The Laws governing Committal Court Proceedings

9. The Laws under Sections 94-100 of the District Court Act 1963, affords the procedures on how to assess police evidence in the police hand-up-Brief. The court is obligated under the laws to make sure the evidence presented in court meet the elements of the offence to form a prima facie case against the defendant.
   
10. The court in Police v Kambian[i], and Akia –v- Francis[ii] have expounded the obligations of the Committal court

.

ELEMENTS OF THE OFFENCES

11. The National court in State v Rabu [2021] PGNC 426; N9200, offers the elements of sexual penetration under Section 347(1) of the Criminal Code Act, as:
    

a. A person,

b. Carnal knowledge or sexual intercourse or sexual penetration with

c. Women or girl,

d. Without her consent

EVIDENCE

12. Prosecution evidence plays a controlling portion in the criminal justice at the committal court to make sure an equitable decision is reached. Confirmation/evidence clasped in the Police file should satisfy the elements of the charge of Sexual Penetration. Police case must institute the allegation as delivered in Police v Koka[iii].
    

PROSECUTION CASE

13. Police Prosecutor Chris Iga argued that the Defendant forced the victim to have sex with him without her consent and thus preserves that Police evidence is necessary to commit the defendant for the charge of Sexual Penetration under Section 347(1) of the Criminal Code Act.
    

Police evidence

1. Maki Jack – Witness says through Belchy Navu and Leon she was arranged to meet the defendant and thus on the evening of 12^th October 2021, she met the defendant at his Sanctuary hotel at Waigani. Victim on her statement at paragraph 17 says the defendant forced her to smoke cocaine and ice while she was in the defendant’s room. Victim says after smoking her emotions changed and was feeling high. Witness at paragraph 18 of her statement says after the first round she was forced by the defendant to go for the second round which she did and by then she felt that she was completely intoxicated with drugs.
   
2. At paragraph 22 of her statement the victim says the defendant grabbed her hair and told her to open her mouth and put his penis into the victim’s mouth and forced her to suck which she did until the defendant released his semen on the victim’s hair. At paragraph 24 of the victim’s statement she says she was not happy about the defendant and says she would return with her relatives.
   
3. Witness says she was later raped by a taxi driver after being raped by the defendant and thus she reported to Hohola police station that she was raped by the defendant after being given drug. Finally, she says she was raped by a policeman whose first name is Denley who was at Town Police station when she was taken from Hohola to Town to lodge her complaint.
   
4. Philong Nguyen-this witness says in his statement that the victim and Belsie came to Sanctuary hotel since he and Belsie had been friends for 2 years and his reason was for them to meet and have soft drinks. However, he says the victim went with the defendant to his room while she took Blises to his room.
   
5. Vah Daniels- this witness briefly supports the victim’s statement about what she did and her purported ordeal with the defendant and her attempts to report the matter to the police and events leading to her threats from the policeman not to report the matter to police.
   
6. Sharon Kambari- she is the policewoman who took photos of the allegation scene.
   
7. Kawa Bobby- this policeman says after the allegation at Sanctuary hotel, he met the defendant at Hohola and found out that she was not behaving properly and assumed she must be intoxicated with some foreign drugs.
   
8. Emmanuel Lee Fofosiar, Duncan Mesambe, Steven Eka, Cathy Peter and Adriana Kamasunga- they are policemen and women involved in the investigation headed by the arresting officer.
   
9. Maria Nombri- This witness is a police corroborator who was with the defendant and the arresting officer at the time when the defendant was interrogated.
   
10. Rachael Pinda- the arresting officer who did the initial investigations that subsequently led to the arrest and the change against the defendant.
    

DEFENSE CASE

14. Defendant through his Lawyer Greg Sheppard based his argument against the police evidence on a submission on sufficiency of evidence filed dated 19^th May 2022. Defendant argued that the Complainant’s statements are all substandard and do not qualify under the laws to be recognized and deliberated as accurate documents for negotiation under Section 95 of the District Court Act. Defendant argues that the victim’s statements are tainted and thus would have no effect on the police case. Defendant constructed his arguments on the doctrines originating in the case of Anthon v Chea[2021] DC 6056.
    
15. Defendant’s other squabble is on the issue of ‘rape’, the allegation which is now the centre of arguments. Defence though his lawyer argues that the elements of rape are not existent in the evidence delivered by police. Defendant, reliable to the principles in the case of Anthon v Chea[1], argues that there is nothing in the Complainant’s statement that she did not consent. Defendant intensely contends that when the Complainant saw the defendant coming out from the bathroom naked, she felt sexually aroused and thus she had sex with the defendant and there is nothing in the police evidence that she did not consent.
    
16. Defendant through his submission on police evidence at pages 5 and 6 argues that none of the state evidence have established the elements of sexual penetration or rape and moreover asked the court not to consider the victim’s third and fourth statements since they came from a Translator by the name of Arron Cui. Defence argues witness statements are inconsistent and inclusive to make a case of rape against the defendant. Finally, the defence argues that the evidence of policemen and women giving evidence should not be deliberated in the ruling since they are giving statements of their routine police investigation and nothing to do with the elements of the offence.
    
17. Therefore, Defendant though his Lawyer submits that the ROI does not establish the elements of the offence and the Complainant’s statements do not clearly display evidence that there was no consent. Moreover, defence argues that there is no corroboration in the allegation and with unfailing to the principles in Anthon v Chea[2] submits evidence is unsatisfactory to Commit the defendant for the allegation of Sexual Penetration under Section 347(1) of the Criminal Code Act and thus the information be dismissed.
    

CONSIDERATION OF EVIDENCE (Police and defense cases)

18. When considering both sides of the story, I have noted that on the evening of Tuesday the 12^th of October 2021, the defendant and the victim met at Sanctuary hotel at Waigani in NCD. The victim is aged 20 years old from Central province and the defendant is aged 43 years and from Australia. The parties’ meeting was facilitated by Belsie Navu and her boyfriend Leon (Philong Nguyen). The Defendant and the victim then proceeded to the defendant’s room while Belsie and her boyfriend went to another room.
    
19. When the defendant and the victim were inside the defendant’s room, the victim was given some drugs by the defendant and thus they both afterwards got drugs. After having the drugs, the victim was asked by the defendant to suck his penis which she did until he ejaculated his semen on the victim’s hair.
    
20. Victim is saying the act of sucking the defendant’s penis was by force. She says she did not consent to suck his penis but the defendant forced her to suck his penis after she was given drugs and she complied. On the other hand, defendant says the victim agreed to have sex with the defendant and thus there was consent. The dispute now is on the issue of consent.
    

RULINGS

21. Defendant’s version of his submissions and arguments in respect to the police evidence on the issue of consent suggests to me that there was oral sex between the defendant and the victim on the night of 12th of October 2021, when they were alone in the defendant’s room. However, defence is submitting that the act of oral sex where defendant allegedly sexually penetrated the victim’s mouth was after when the defendant agreed to suck his penis.
    

ISSUE ON CONSENT

22. What is consent? The Oxford legal dictionary outlines consent as one individual willingly and freely decides and agrees to the proposal and requests or desires of another person. It is a term of common speech and understanding to satisfy the feelings of two; that is the person proposing and person consenting. However, Section 347A of the Criminal Code Act gives an explicated authorized description of Consent as in the resulting custom:
    

[iv]347A. Meaning of consent.

(1) For the purposes of this Part, "consent" means free and voluntary agreement.

(2) Circumstances in which a person does not consent to an act include, but not limited to, the following:—

(a) the person submits to the act because of the use of violence or force on that person or someone else; or

(b) the person submits because of threats or intimidation against that person or someone else; or

(c) the person submits because of fear of harm to that person or to someone else; or

(d) the person submits because he is unlawfully detained; or

(e) the person is asleep, unconscious or so affected by alcohol or another drug so as to be incapable of freely consenting; or

(f) the person is incapable of understanding the essential nature of the act or of communicating his unwillingness to participate in the act due to mental or physical disability; or

(g) the person is mistaken about the sexual nature of the act or the identity of the person; or

(h) the person mistakenly believes that the act is for medical or hygienic purposes; or

(i) the accused induces the person to engage in the activity by abusing a position of trust, power or authority; or

(j) the person, having consented to engage in the sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity; or

(k) the agreement is expressed by the words or conduct of a person other than the complainant.

(3) In determining whether or not a person consented to that act that forms the subject matter of the charge, a judge or magistrate shall have regard to the following:—

(a) the fact that the person did not say or do anything to indicate consent to a sexual act is normally enough to show that the act took place without the person's consent; and

(b) a person is not to be regarded as having consented to a sexual act just because—

(i) he did not physically resist; or

(ii) he did not sustain physical injury; or

(iii) on that or an earlier occasion, he freely agreed to engage in another sexual act with that person or some other person.

23. Consent under the law means free and voluntary agreement. Defendant maintained all through his submission that Complainant had freely and voluntarily agreed to have oral sex with him.
    
24. In order to fully appreciate and under the circumstances in which consent is freely and voluntarily given by the giver, I have adopted a few foreign cases in the ruling which advocate the principles of ‘free will’ and ‘voluntarily’. The Supreme court of Canada in R –v- Ewanchuk[1999]1 SCR 330 overturned the ruling in a court of appeal in a sexual assault case where the court said consent must not be implied but must be show by the person giving consent that they want to have sex. Moreover, in another Supreme court of Canada in R v Esau [1997]2 SCR 777, Ms R sued Mr Esau for unconsented sex. Ms R says she was drunk at the time consent was given and she said she could not recall what happened until after she was in her stable mind. She also claimed that she could not have consented if she had the capacity to do so and that was if she was not drunk and intoxicated. The Supreme Court upheld the appeal and affirmed the conviction on the basis that consent was obtained when there was absence of capacity to give consent.
    
25. Defendant argued at paragraph 13 of his submission by quoting the victim’s own statement that the victim “saw him and felt sexually aroused” meaning she saw the defendant and was sexually stimulated and “wanted to have sex with him” which then resulted in the act of sexual penetration and thus defendant’s own words visibly communicated her consent to have sex with the defendant as the position maintained by defense. Victim mentioned in her statement dated 21^st April 2022, that she felt different after smoking cocaine. Paragraph [13] victim says: “so I smoked it, my feeling started to change, I felt different” and again at paragraph [17] of her statement dated 10^th February 2022, she says: “I inhaled it and started to smoke when all of a sudden my emotions changed and I started to feel very high”.
    
26. I have carefully assessed all police evidence and arguments in respect to the issue of consent by defense and noted that the act of sexual penetration that occurred on the night of 12^th October 2021, happened after the defendant was drugged or intoxicated with cocaine by the defendant. I am also satisfied with evidence that the victim’s words for sexual favor with the defendant were spoken after she was intoxicated.
    
27. When adapting the principles under Section 347A (2)(e) of the Criminal Code Act, I am pleased that consent was obtained when the victim’s mind and capacity to think properly was affected by cocaine and thus she was incapable of freely consenting.
    

28. A person may give consent if he/she had been drinking and under the influence of liquor or using drugs. Nevertheless, the capability to give consent depends on their ability to make informed decisions free from pressure, coercion and incapacitation. If one had been incapacitated from alcohol or drugs they cannot liberally give consent. Therefore, evidence suggests consent was given after the victim was intoxicated with drug and was incapable of making a sensible decision and thus victim did not freely give consent. Moreover, evidence shows the victim consented to oral sex after she was intoxicated with drug and this evidently displays she was unable to make a reasonable judgment. Thus, the victim’s consent was not given knowingly and was ineffective in the situation.
.

DEFENSE SUBMISSION AND SILENT ON THE ROI

28. Sex was based on consent, that was the argument from the defendant’s Lawyer, however, when the defendant was asked by the police arresting officer at question 29 of his ROI about the allegation, defendant remained silent, did not answer the question. Defendant remained silent in almost all the questions being asked by the police interrogator, however, his Lawyer submits that sexual penetration was done after the victim had consented to have oral sex with the defendant. I do not know what the defendant meant when he remained silent. I cannot assume that silent means victim consent to the act of oral sex but whatever it may be should be unmistakably expressed than implied. Sometimes being silent at the ROI may assist the defendant and other times may not during the committal hearing.
    
29. Mr. Sheppard Lawyer for the Defendant is arguing that there was consent before sex but the defendant is remaining silent in his ROI, so where is the defendant’s basis that they had sex but after consent? I have not read anything in the PHUB that says defendant had sex with the victim. In the absence of a confessional statement, the only evidence the committal court is relying upon for the defense case is the ROI but sex is not mentioned, there is nothing in the ROI for the court to consider and thus I cannot assume evidence but evidence should be presentable.
    
30. I have noted the defendant’s arguments on the importance of the Complainant's statement and the principles in the case of Anthon v Chea[3]. The difference is this; in the case of Anthon v Chea[4], the Complainant’s statement to police was written by the arresting officer in PNG and signed off by engraving the Complainant’s initial while the Complainant was in Australian and thus the court found out that the Complainant’s statement was illegally obtained. The maker of the statement did not sign and read her own statement by indicating that she had read and understood the contents of her statements. However, in the current case, the Complainant was in PNG and she wrote and signed off her own statement.
    
31. Moreover, I have noted that there are some inconsistencies in the dates of witness statements. The offence of Sexual Penetration under Section 347(1)[5] is an offence under Division 7 offence on Sexual Offence and Abduction. Section 352A[6] provides that an accused may be dealt with on an uncorroborated testimony of one witness. Section 352A [7]is part of the Division 7 offences in which Section 347(1)[8] is part of and hence I have given due thoughtfulness to the Complaint statement but other issues are for the higher court to determine during trial.
    
32. In the assessment of evidence under Section 95 of the District Court Act, I am only assessing evidence on a prima facie basis, however, other issues of credibility and reliability of evidence should be deliberated when evidence is tested in the higher court but for now on a balance less than the criminal balance of proof, I am satisfied with police evidence that defendant has a case to answer in the National court.
    

CONCLUSION

34. Evidence is sufficient to make a prima facie case against the Defendant and thus evidence demonstrates defendant Jamie Peng aged 43 years of Sydney in Australian was on the night of 12^th October 2021, at Sanctuary hotel at Waigani in NCD, had sexually penetrated with his penis the mouth of the victim aged 20 years of Tubuserea in the Central Province without her consent.
    

ORDERS

1. Evidence is sufficient to commit the Defendant for the charge of Sexual Penetration under Section 473(1) of the Criminal Code Act.
   
2. Warrant is issued to the Defendant to be kept in custody.
   

.

.

.

Young and Williams Lawyers For the defendant
Police Prosecutor For the State

[1] [2021] DC 6056
[2] Supra
[3] [2021] DC 6056
[4] Supra
[5] of the Criminal Code Act
[6] of the Criminal Code Act
[7] of the Criminal Code Act
[8] of the Criminal Code Act



[i] [2021] PGDC 66;DC 6021(30^th June 2021)
[ii] [2016] PGNC 335; N6555 (24 August 2016)
[iii] [2021] PGDC 53; DC6010 (31 May 2021)
[iv] Section 347A inserted by Criminal Code (Sexual Offences and Crimes Against Children) Act 2002 (No 27 of 2002), s18.