Anthon v Ipi [2022] PGDC 56; DC8059 (12 April 2022)

DC8059

Papua New Guinea

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

COM NO 1171 OF 2020

BETWEEN:

ROMAN ANTHON
[Informant]

AND:

ELIZABETH IPI
[Defendants]

Waigani: Paul Puri Nii

12th April 2022

COMMITTAL PROCEEDINGS: Charge-Procuring a Girl to have sex-Section 218(1)–Criminal Code Act. Witness statements- State evidence- not suitable formation of prima facie evidence - elements of the charge not persistent –Evidence is not equal- Defendant not committed to stand trial.

PRACTISE AND PROCEDURE: Calculation of evidence under Section 95 of the District Court Act. Defendant allegedly arranged a girl for sex -elements of intention and premeditation not present. Evidence of procuring a girl missing.

PNG Cases cited:

Anthon v Chea [2021] PGDC 131; DC6088

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: Mr Pilaia For the Defendant

COMMITTAL RULING

12^th April 2022

INTRODUCTION

NII, P. Paul Magistrate. Ruling on committal consistent to Section 95 of the District Court Act. On 24^th February 2022, Defendant’s lawyer submitted that evidence was not enough to make a prima facie case against the Defendant for her committal. However, the police prosecutor argued that police evidence is sufficient to commit the Defendant. The court has taken judicial notice of both arguments and now is my decision on the sufficiency of police evidence.

CHARGE

1. Defendant is charged pursuant to Section 218 (1) of the Criminal Code Act. The essentials of the criminal charge are revealed underneath:
   

“218. Procuring girl or woman.

(1) A person who procures, entices or leads away any girl or woman, whether with her consent or not, with intent that some other person may have carnal knowledge of her, whether inside or outside Papua New Guinea is guilty of an offence, notwithstanding that some one or more of the acts constituting the offence may have been committed outside Papua New Guinea. Penalty: Imprisonment for a term not exceeding three years.”

BRIEF PARTICULARS

2. Police allege that on 22^nd June 2019, Defendant intentionally conspired with another person namely Adam Chin Chea by allowing the victim to be engaged with him in having sex when the victim was still a minor under the age of 16 years old. Police further allege that the Defendant while with the victim in a hotel room in Port Moresby had sexually penetrated her vagina with his penis. Police allege that the victim was 16 years old at the time of allegation and the Defendant was 18 years old and they were in a sexual relationship.
   
3. Police summary of facts further revealed a Complaint was lodged by the victim’s mother and the accused was subsequently detained and charged under 218(1) of the Criminal Code Act.
   

ISSUE

4. Whether or not there is tolerable evidence in the police file to commit the Defendant for the allegation of murder.
   

THE LAW

5. The court’s authority to rule on police evidence is under Section 95 of the District Court Act. The court has the power to appraise evidence to launch whether or not evidence is suitable to create a case against the Defendant. The highlighting capacity is presented underneath:
   

“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

a) A person who

b) Procures, entices or leads away

c) Any girl or woman

d) Whether with her consent or not

e) With intent that

f) Some other person may

g) Have carnal knowledge of her

h) Whether inside or outside of PNG

EVIDENCE

Police case

6. Police evidence presented to the court on 12^th October 2020, integrates witness announcements and written evidence counting any photo exhibits and medical reports. Police Prosecutor in brief contended that police evidence is necessary to make a case against the defendant.
   

EVIDENCE

7. Witness statements and Police evidence
   

No	Witness	Particulars	Evidence
1	Kathleen Jonson	Victim’s mother	Her statement says she arrived from Australia when the allegation happened. Witness says she was on a business meeting and left her daughter with her sister Elizabeth Ipi but was taken by the accused and arranged for another man to sexually penetrated her at Grand Papua Hotel.
2	Ceri Johnson	Victim	Witness says she is the main victim and says she was sexually penetrated by the Defendant.
3	Elizabeth Ipi	Victim’s aunty	Witness say the victim was with her when the Defendant allegedly sexually penetrated her.
4	Adam Chin Chea	Defendant	The accused has admitted to the offence through his statement declared at Boondall Police station in Queensland, Australia on 14th November 2020.
5	Kieeh KendeKali	Legal Representative	His statements are about how he obtained information from the witness in Australia.
6	Jeffery Dean Kennedy	witness	Witness says he had a meeting with the victim’s mother at the time when the alleged allegation took place.
7	Constable Chris Konol and Constable Roman Anton	Police corroborator and arresting officer	Their evidence is about how the accused was arrested, interviewed and charged for the allegation of sexual penetration.

Defense case

8. Defendant through the submission filed on 18^th October 2021 argues that evidence is inadequate to commit the Defendant to stand trial. Defendant argues through her lawyer that all the witness statements are inconsistent and does not satisfy the elements of the allegation.
   

DELIBERATION OF EVIDENCE

9. Police evidence is in the police file tendered to court. The Complainant in this matter is the victim’s own mother and her statement says her daughter was sexually penetrated by a person named Adam Chin Chea through a purported arrangement made by the Defendant.
   
10. Police also based their allegation on a statement of witness from the Queensland Police Services made on the 14^th November 2019. This is a statement made to the Queensland Police by the victim’s boyfriend Adam Chin Chea against a Jeffery Kennedy for his harassment and treatment against the victim.
    

RULING

11. The current matter is related to Anthon v Chea [2021] PGDC 131; DC 6088. In this matter the victim’s boyfriend was arrested and charged for sexually penetrating the victim’s vagina with his penis, however, the information was dismissed because the victim statement was signed by the police informant and not the victim. The victim was in Australia and the statement was signed in PNG.
    
12. The court in dismissing the information says cases connecting Sexual penetration and other related crimes where the victim is living, the victim statement should form the notable components of a police case in which supplementary evidences are only to substantiate. The court further says the theme of focus is the victim testimony and others are only to reinforce the victim declaration. The court went on to state that:
    

“The rise and fall of a police case is determined by the strength in the victim’s statement. It is the main foundation in which police build their case upon. The main victim statement is like the stem while witness statements are like branches and leaves. If the stem is cut down, the branches and leaves will also fall because their strength and survival is through the stem. In the same manner, if the victim statement is inadmissible then the rest of the witness states will fall and thus will have not strength to succeed in the allegation”.

13. In the current case the victim’s mother is the Complainant and not the victim.

I have gone through the police file and noted that the same victim statement that was previously refused in a different proceeding is still in the file in which police have relied upon to prosecute the Defendant.

14. I have measured the accounts of witness Kathleen Johnson, Keeh Kendakali and Jeffery Kennedy and established that their evidences are based on the evidence of victim that she was enticed or lured by the Defendant to have sex with the victim. They merely gave evidence to upkeep the victim’s proclamation of sexual penetration against the victim given the allegation that the purported arrangement was done by the Defendant. The currency of each observer declaration is energized by the victim statements. However, in the lack of the victim declaration, the complete evidence is inadequate including the Complainant’s statement.
    

CONCLUSION

15. I have gone through the Police file that was tendered on 12^th of October 2020 and learnt that in the nonexistence of the victim declaration, the reminder of the police evidence nosedives (fails) to make a prima facie case against the Defendant.
    

ORDERS

16. MY final Orders:

1. Evidence is insufficient to commit the Defendant.
   
2. The Police information holding the allegation of Unlawful Carnal Knowledge against the Defendant under Section 218 of the Criminal Code Act is dismissed.
   

100. Bail is refunded to the Defendant.
     

Public Solicitor For the defendant
Police Prosecutor For the State