Kamasunga v Mathew [2022] PGDC 55; DC8058 (11 April 2022)

DC8058

Papua New Guinea

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

NCC NO 74 OF 2021
NCC NO 73 OF 2021

BETWEEN:

ADRIANA KAMASUNGA
[Informant]

AND:

GADIKI MATHEW
OLEFA NALO
[Defendants]

Waigani: Paul Puri Nii

11^th April 2022

COMMITTAL PROCEEDINGS: Charge-Sexual Penetration-Section 347(1)-)–Criminal Code Act. Witness statements- State witness statements- proper formation of prima facie evidence - elements of the charge supported–Evidence is corroborated- Defendants committed to stand trial.

PRACTISE AND PROCEDURE: Control and administration of evidence under Section 95 of the District Court Act. Committal Court’s jurisdiction-Complainant sexually penetrated and defendant Gadiki Mathew while Defendant Olefa Nalo arranged the victim to be sexually penetrated - evidence of sexual penetration -Defendant sexually penetrated the victim -elements of balanced and examination. Evidence of Sexual Penetration proven.

PNG Cases cited:

Nil

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
Public Solicitor: I Pailaea For the Defendant

CONCLUSION ON COMMITTAL

11^th April 2022

INTRODUCTION

NII, P. Paul Magistrate. Pronouncement in reference to the police evidence under Section 95 of the District Court Act. On 15^th March 2022, Defendants and accused argued on police evidence, Defendants’ argued police evidence is deficient while prosecutor argued evidence is sufficient. I have gone through the police file that was served to the court on 11th of July 2021 and accordingly now is my decision on evidence.

CHARGE

1. The Accused are charged with Sexual Penetration under Section 347 of the Criminal Code Act. The prerequisites of the charge is exposed beneath:
   

“347. Definition of rape.

[1](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.”

BRIEF PARTICULARS

2. Defendant Gadiki Mathew is aged 42 years and from Kilakila area of Port Moresby South in National Capital District. He is married with 6 children. While Defendant Olefa Nalo is aged 39 years and from Timoenai village of Lorengau in Manus Province. This defendant is the victim’s sister in-law and has 4 children, she resides with her family at Kilakila in NCD. The victim is aged 20 years old and also from Kilakila village and her and the Defendants are neighbours.
   
3. Police allege that on Friday the 1^st January 2021, the accused Olefa Nalo approached the victim and told her that accused Gadiki Mathew would give her some money so they went to 4-mile at King kakaruk shop and bought some food on a vehicle which was described by police as bearing registration No BDP 874 with tinted glasses. From there they went to Waramini Lodge and apartments at Hohola. Police say while at the lodge and apartment the defendants went to the lodge leaving the victim in the car at the car park. After a few minutes, defendant Olefa Nalo came back to the car park and told the victim to go in and see defendant Gadiki Mathew. However, the victim refused to go in but defendant Olefa Nalo forced her so she went in.
   
4. When the victim went to the motel room, Defendant Gadiki Mathew locked the door from behind her and forcefully removed her clothes and sucked the victim’s breast. Victim struggled and refused but the defendant Mathew Gadiki threated her that he had a gun in the car and with just a phone call away his partners in crime would come in and kill her so out of fear victim did not resist anymore and thus she was sexually penetrated by the Defendant Gadaki Mathew by inserting his penis into the victim’s vagina several times. After penetrating her she was given K1000 by defendant Gadiki Mathew to be shared with defendant Olefa Nalo who was waiting at the car park.
   
5. Victim subsequently went and lodged a criminal complaint against the Defendants for sexual penetration and thus both were arrested and charged under the offence.
   

ISSUE

6. The issue here is on the question of evidence; that is whether or not police evidence is sufficient to commit the defendant.
   

THE LAW

7. The functions of the committal court under the district court Act is to evaluate police evidence. The principles in Akia v Francis [2016] PGNC 335;N6555 authorizes the accountability of the committal court under Section 95 of the District Court. The empowering establishment of the District Court Act is emphasized below:
   

“95 Court to consider whether prima facie case.

(1) Where all the evidence offered on the part of the prosecution has been heard or received, the Court shall consider whether it is sufficient to put the defendant on trial.

(2) If the Court is of opinion that the evidence is not sufficient to put the defendant on trial for an indictable offence it shall immediately order the defendant, if in custody, to be discharged as to the information then under inquiry.

(3) If the Court is of opinion that the evidence is sufficient to put the defendant on trial for an indictable offence, it shall proceed with the examination in accordance with this Division.”

ELEMENTS OF THE OFFENCE OF SEXUAL PENETRATION UNDER SECTION 347(1) OF THE CRIMINAL CODE

a) A person who

b) sexually penetrates a person

c) without his consent

EVIDENCE

Defendants case

8. Defendants though their submission filed on 24^th February 2022 denied all the allegiants against them. They disputed the witness statements as inconclusive and the entire evidence is defective. Defendants argued that the evidence presented and collected did not comply with the mandatory requirements under the laws and thus asked the court to dismiss the information.
   
9. Defendants argued that it was not a case of rape nor forced sex but a case of consent and agreement between the parties that had led to the sex. Defendants also argued that the victim filed the complaint on 4^th January 2021 after Defendant Gadiki Mathew’s wife found out through a text communication in the victim’s phone. Defendant strongly argued that the victim would not have reported if the defendant’s wife did not find out. Thus defendants maintain it was a case of consent and hence the charge against them be dismissed.
   

Police case

1. Victim-she says she was raped by Defendant Gadiki Mathew in side room No 4 at Wramini lodge. Victim says she refused but the defendant overpowered her and even threatened her that she would be killed with a gun. Victim says she screamed and cried for help but no one heard her struggles. Victim says defendant after sexually penetrating her vagina with his penis told the victim that she was full filling her dreams because he had been dreaming to have sex with her until the 1^st January 2021.
   
2. Cathy Peter and Adriana Kamasunga- The police arresting officer and corroborator who had witnessed and conducted the record of Interview against the Defendants.
   

DELIBERATION OF EVIDENCE

10. Police evidence shows on the 1^st of January 2021 defendants Olefa Nalo and Gadiki Mathew and the victim were at Kilakila in Port Moresby South electorate and were at a company of people drinking alcohol to celebrate the New Year. Evidence shows the victim was approached by Defendant Olefa Nalo that Defendant Gadiki Mathew would give her some money. Evidence shows soon thereafter the Defendants and victim drove to Kingkakaruk and then to Waramini lodge in Hohola.
    
11. At question 41 of accused Olefa Nalo’s ROI says when she asked the victim to go inside the hotel room and meet the accused, the victim refused but she convinced her to go. However, accused Olefa Nalo says there was no rape nor threats and force issued against the victim and victim and thus victim voluntarily hoped on defendant Gadiki Mathew’s car and they went to Waramini lodge.
    
12. There is no issue about sexual penetration but defendant Gadiki Mathew is saying it was a consent sex unlit his wife found out.
    

RULING

Sexual Penetration under Section 347(1) of the Criminal Code Act

13. Defendant Gadiki Mathew is saying there was consensual sex. Consent is authorization for something to transpire or arrangement to do something. Consent should not be obtained through force nor under undue influences. It must be given under free will and the conscience should be clear at the time it is given, there should not be any ill motives attached.
    
14. When the victim was driven from Kilakila to waramini lodge she knew she was with the Defendants but she did not know why she was with the defendants. The accused Olifa Nalo’s assertion at question 41 of her ROI shows to me that both accused knew why they were at waramini lodge but not the defendant. If the victim knew why she was at the lodge then she should not have refused to go into the motel when requested by Defendant Gadiki Mathew.
    
15. I will now bring my attention to Section 352A of the Criminal Code Act and consider the uncorroborated evidence of the victim for my ruing sine the charge of Sexual Penetration under Section 347(1) of the Criminal Code Act falls under offense listed as Division 7 offense where corroboration may not be obligatory. My assessment of police evidence shows the victim was convinced by defendant Olefa Nalo to go to Waramini lodge. My assessment of evidence shows both defendants had met and planned for what would happen to the victim before she was taken to waramini lodge. This is evidenced in the accused Olefa Nalo’s ROI at question 41 that she convinced the victim to go to the hotel room after the victim had refused to go in. if consent to go and have sex with Defendant Gadiki Mathew was voluntarily given by the victim then she should not have resisted when asked to go into the hotel room. Evidence shows there was no consent.
    
16. Therefore, it is my ruling under Section 95(1) of the District Court Act that the accused Olefa Nalo had knowledge of the arrangement and event which led to the offence of rape against the victim and therefore under Section 7 of the Criminal Code Act, there is evidence that this defendant Olefa Nalo had arranged, pre-planned and colluded with the principal offender Gadiki Mathew to sexually penetrate the victim.
    
17. There is also evidence that Defendant Gadiki Mathew had sexually penetrated the victim without her consent at Waramini lodge at Hohola in NCD on the 1^st of January 2021.
    

CONCLUSION

18. Consequently, it is my decision under Section 95(1) of the District Court Act that evidence displays there is a case of Sexual Penetration under Section 347(1) of the Criminal Code Act. Thus evidence is sufficient to commit the defendants for charge under Section 347(1) of the Criminal Code Act in the following manner:
    
    1. Defendant Olefa Nalos is committed for her roles in enticing, convincing, assisting and luring the victim to have sex with the principal offender under Section 7 of the Criminal Code Act for the offence of rape under Section 347 of the Criminal Code Act.
       
    2. Defendant Gadiki Mathew is committed for his roles in sexually penetrating the victim by inserting his penis into the victim’s vagina without her consent.
       

ORDERS

19. My Orders:

1. Evidence is sufficient to commit the Defendant Gadiki Mathew for the charge of Sexual Penetration under Section 347(1) of the Criminal Code Act.
   
2. Evidence is sufficient to commit the Defendant Olefa Nalo for the charge of Sexual Penetration under Section 347(1) of the Criminal Code Act.
   

c) Defendants are committed to stand trial for the charge of Rape.

d) Defendants’ bails are extended.

Public Solicitor For the defendant
Police Prosecutor For the State

[1] Section 347 amended by Act No. 29 of 1983, s3 and No. 11 of 1984, s5; Section 347: penalty clause repealed and replaced by the Criminal Code (Amendment No. 2) Act 1986 (No. 17 of 1986), s17; Section 347 Amended by No. 27 of 2002, s. 1.