Kamasunga v Putupai [2022] PGDC 127; DC9065 (29 November 2022)

DC9065

Papua New Guinea

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

COM NO 1899 OF 2021

BETWEEN:

ADNRIANA KAMASUNGA
[Informant]

AND:

MICHAEL PUTUPAI
[Defendants]

Waigani: Paul Puri Nii

29^th November 2022

COMMITTAL PROCEEDINGS: Charge-Sexual Penetration- s 347 of the Criminal Code Act. Witness accounts- Police witness proclamations- appropriate formation of prima facie signal - elements of the charge maintained–Evidence is documented - Defendant committed to stand trial.

PRACTISE AND PROCEDURE: Impost of evidence under Section 95 of DCA -Complainant by the Defendant- Complainant is the Defendant’s brother in Law-Police allege defendant raped the victim when alone in her room -elements of composed and going-over.

PNG Cases cited:

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

Overseas cases cited:

NIL

REFERENCE

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

Counsel
Police Prosecutor: Joseph Sangam For the Informant
Haiara Legal: Justin Haiara For the Defendant

RULING ON POLICE EVIDENCE

29 November 2022

INTRODUCTION

NII, P. Paul Magistrate. Ruling on whether a prima facie case is judiciously attributed inside the subtext of Section 95 of the District Court Act 1963. The court’s declaration is gritted after Police evidence and Defense cases are realistically considered. Defendant disputes evidence is not enough to commit him while Police resists evidence is suitable to commit the Defendant and therefore in the resulting lines are my judgment on the assessment of state evidence.

CHARGE

1. The suspect is charged with Sexual Penetration under Section 347(1) of the Criminal Code Act 1974. The comprehensive particulars of the charge are uncovered 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. The Defendant is aged 37 years old and from Ariaka village in the Magarima District of Hela Province who is married to the victim’s elder sister and together they have 3 children. The victim is 24 years old and lives with their elder sister who is married to the defendant.
   
3. Police allege that on Tuesday 5^th November 2019, some dates after the defendant’s wife left for Australia, the accused went to their family house at around 7.30am and forcefully raped the victim who was still sleeping on her bed. Police alleged that the victim tried to resist but the defendant congested her bodily movements and unrelenting raped her by inserting his penis into her vagina until her ejaculated his semen and left the victim.
   
4. A Complaint of Rape was subsequently lodged by the victim after she went for medical checks and alerting all her family members of the ordeal. On 27^th November 2019, the defendant was arrested and charged for the offence of Rape under Section 347(1) of the Criminal Code Act.
   

ISSUE

5. Whether a prima facie case is persuasively time-honored and that is whether Police evidence is appropriate to make a case against the Accused.
   

THE LAW

Authorities appropriate at Committal hearing

6. The decrees under Sections 94-100 of the District Court Act, gives the progression on how to measure police evidence in the police Hand-Up-Brief. The court is obligated under the rules to make sure the evidence obtainable in court meet the basics of the charge to make a prima facie case against the alleged perpetrator.
   
7. The court in Police v Kambian[i], and Akia –v- Francis[ii] have expounded the obligations of the Committal court by encouraging its commitments under Sections 94-100 of the District Court Act.
   

ELEMENTS OF THE OFFENCES

8. The court in State v Rabu [2021] PGNC 426; N9200, recognized 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

9. Police evidence plays a supervisory portion in the criminal justice at the committal court to making sure a practical conclusion is touched. Endorsement/suggestion clutched in the Police file would please the elements of the charge of Sexual Penetration. Police case must introduce the accusation as supplied in Police v Koka[iii].
   

PROSECUTION CASE

10. Police Prosecutor Chris Iga contended that the Defendant forced the victim to have sex with him without her agreement and thus conserves that Police evidence is compulsory to commit the alleged offender for the charge of Sexual Penetration under Section 347(1) of the Criminal Code Act.
    

Prosecution evidence

1. Victim – witness is the victim who says between 7am -8am on 5^th November 2019, when she was asleep on her bed and felt like a heavy object on her bed and to her surprise saw the defendant on her bed half naked. Victim says she shouted “mama ya” and asked the defendant what she was doing in her room. The defendant put his huge hands across her mouth and stopped her from talking. The accused then told the victim that he had closed all the doors and the windows and thus there was no point in her shouting and resisting. Victim said she was scared the defendant might kill her because of the news going around that men killing women over sex and thus she nodded her head in agreeing to the defendant’s sexual flavor.
   
2. Witness says the accused pulled down her jeans and demanded she remove her shirt too but she refused as she was ashamed. Witness says when she slept on top of her, she resisted a bit in shame trying to resist by closing her legs. However, witness says the defendant pressed down hard and parted her thighs with her hands and legs and said in the tok pidgin language as “ mi tok slip easy ya, none worry, ba mi fast one and kapsait outside” meaning the accused told the victim not to be worried since he was going to ejaculate his semen outside the vagina then raped her by inserting his penis into her vagina.
   
3. Witness says after raping her she was given a K250 by the defendant and told her not to tell anybody else as it would be between him and the victim. Victim says she felt hopelessness, useless, despair, violated disgusted and felt like committing suicide. Witness says after the occurrence, she went directly to Port Moresby General Hospital for medical checkup and later altered her family members which then led to the defendant’s arrest and the subsequent charge.
   
4. Las Minai Putupai-this witness says he is the defendant’s brother and works as a security at their house and says on 5^th November 2019 after 6.50am when he dropped off his uncle at school, the defendant came to their house. Witness says the defendant stays at 8-mile and does not come around but at that time he came and he opened the door for him to drive in. Witness says the defendant just dove in without saying a word and walked straight to his house, stayed for some time then drove out.
   
5. Rhonda Liu- Witness says she was told of the incident involving her younger sister’s rape allegation by her elder sister’s husband on 5^th November 2019 at 5.pm.
   
6. Rose Andrew Putupai- Witness says the accused is her husband and the victim is her elder sister and says on 5^th November 2019 when she was away in Australian for work related travel, she was told that her younger sister was raped by her husband.
   
7. Ali Mario Tepi- this witness says he is a policeman who assisted in the investigation against the defendant.
   
8. Samuel Koy- This witness is a policeman who took photos of the crime scene.
   
9. Martha Maraga-Witness says the defendant deliberately evaded police arrest but was arrested on 27^th November 2019 when he presented himself at the police station with his lawyer.
   
10. Adriana Kamasunga- the arresting officer who did the initial investigations that subsequently led to the arrest and the change against the defendant.
    
11. Dr Ovoi Verave-Medical doctor show conducted the medical examination on the alleged rape victim.
    

DEFENSE CASE

11. Defendant through his Lawyer Justin Haiara founded his arguments against the police evidence on a submission on sufficiency of evidence filed on 29^th September 2020. Defence argued that the Medical report dated 5^th November 2019 is not attached to the affidavit in the police file. Defence argued that the medial report is confusing because the name of the doctor encrypted at the bottom of the page is Dr T Joseph and the date is 5^th November 2019, however, defence submitted that Dr Ovoi Verav’s medical report dated 13^th November 2018 is not reliable since its dated is prior to the date of allegation. Defense also allege that the Medical report was prepared by the Obstetrics and Gynecology division by Dr Ovoi Verave but it was stamped by Port Moresby General Hospital. Defendant thus argued that the medical report is fake and fabricated to make an allegation against the defendant.
    
12. Secondly, the accused argued that the police summary of facts should correspond with the victim’s statements and her witnesses but argued that they are not matching. Defendant argued that there seem to be two instances of rape where the first was when the defendant sexually penetrated the victim on the bed while the second was when the defendant penetrated the victim from the back. Defense argued the second is not reflected in the police summary of facts than the first and thus submitted that the allegation is fabricated.
    

CONSIDERATION OF EVIDENCE

13. Defendant is married to the victim’s eldest sister whom police allege that on 5^th November 2019 had raped the victim without her consent when the eldest sister was in Australia. The victim later reported the ordeal to her relatives and the matter was thus reported to police. The victim says she was raped by her brother in-law. However, defense argued that the medical report is inconsistent and defective and also the summary of fact does not reflect the initial allegations reported by the victim.
    

RULINGS

14. I have considered the medical report and noted some inconsistencies in the dates, the medical report of Dr Ovoi Verave is dated 13^th November 2018, while the date of allegation is 5^th November 2019 and the medical report came from the Obstetrics and Gynecology division but has the stamp of Port Moresby General Hospital Revenue Section. The medical report does not confirm direct evidence of Rape but suggested that there may be some recent Sexual Assault –Sexual Penetration.
    
15. Medical report is to corroborate the Complainant’s assertion made to police. It is only to strengthen the police case and the allegation by the Complainant. Otherwise, the medical report in itself is not the primary allegation. Would the defectiveness in the medical report influence the allegation? What does the law say on this?
    
16. 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 it is evidenced and lawful for the court to proceed with the Complainant’s statement without corroboration excluding medical report. Therefore, it is safe to rely on the uncorroborated testimony of the victim.
    
17. Finally, I have assessed the second argument about the conflicting summary of facts and the Complainant’s statements. A summary of facts which is also called the statement of facts is the shortened version of the allegation giving rise to the charge. When assessing this arguments, I see that there is only one allegation of rape inside the victim’s room. However, evidence shows there are two different positions of penetration where one is the old missionary position where the defendant was sleeping on top of the victim facing down while the victim was facing up and the second was the doggy style where the defendant penetrated the victim through her back while the victim was kneeling down.
    
18. Different positions of penetrations do not change the allegation, however, the contradictory summary of facts by police not in line with the victim’s version of her story may affect the charge. Here the police summary of facts discloses one position of penetration (missionary position) but not the other (doggy position) but the allegation is still the same, this does not change the allegation. Therefore, I rule that the Police summary of facts coordinated the defendant’s description of her story in the statement to police.
    
19. I have also noted that the defendant when asked on his ROI about the allegation decided not to say anything, he remained silent. Moreover, defense arguments on evidence did not say anything about the allegation that Defendant was in the victim’s room nor sexually penetrated the victim. However, the submission is commonly on the issue of credibility of the medical reports and the police summary of facts.
    
20. After assessing the victim’s statements and witness Las Minai Putupai and the victim, it clearly corroborates the time of allegation as between 7-8am and the defendant’s presence at the residence where the victim was sleeping. Pursuant to Section Section 352A of the Criminal Code Act, the evidence of Las Minai Putupai and the victim are satisfactory enough to make a prima facie case against the defendant. All other issues are matters for the trial court to deliberate once evidence is tested.
    
21. In the assessment of evidence under Section 95 of the District Court Act, I am only measuring evidence on a prima facie basis, nevertheless, other issues of credibility and reliability of evidence should be considered when evidence is tested in the higher court but for now on a balance less than the criminal standard of proof, I am satisfied with police evidence that defendant has a case to answer in the National court.
    

CONCLUSION

22. Evidence is sufficient to make a prima facie case against the Defendant and thus evidence demonstrates defendant Michael Putupai aged 37 years of Ariaka village of Magarima in Hela was on the morning of 5^th November 2019, at Vadavada in NCD, had sexually penetrated with his penis the vagina of the victim aged 24 years of Yuhama-Tundaka village of Magarima in Hela 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. Bail is extended
   

Haiara Legal 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.