Police v Aivapa [2022] PGDC 63; DC8066 (2 May 2022)

DC8066

PAPUA NEW GUINEA.

CRIMINAL JURISDICTION
DC Com- CB NO: 101 of 2022.
DC Com-CB NO: 102 of 2022

In the matter of Ruling On Sufficiency of Police Hand-Up Brief(s) pursuant to Section 95 of the District Court Act 1963

IN THE MATTER BETWEEN:

POLICE/STATE.
Informant.
.
AND.

1. RODNEY AIVAPA.
2. LISA RODNEY.
Defendants/Accused(s)

Popondetta: Michael W. Apie’e

2022: April 27^th, May 02^nd.

CRIMINAL LAW. Practice and Procedure-Sufficiency of Police hand-up brief, Section 95 of District Court Act. Whether Elements of the offense’s established on hand-up brief;

-One count of Incest each contrary to Section 223(1) of the Criminal Code Act.
Established on the Police Hand Up Briefs.

Cases Cited:

Maladina v. Principal District Court Magistrate N2568
Hekavo v. The State [1991] PNGLR 394
Hatenave Tete v. Regina [1965-1966] PNGLR 336

References:

Criminal Code Act-
District Court Act

Representation:

Senior Sergeant B. Waimona for the Police/State.
Defendants each appear in person

RULING ON SUFFICIENCY OF POLICE HAND-UP BRIEF.

Background.

1. The Defendants are Mr. Rodney Haivapa aged over 40 years from Kendata Village in the Sohe District of the Northern Province and his Biological eldest child and daughter Miss. Lisa Rodney aged 22 years old.
   
2. The First Defendant Rodney Haivapa is charged under Information CB No: 101/22 and the Second Defendant Lisa Rodney is Charged under Information CB No: 102 /22 each charged on separate Information’s that ‘from October 2020 to September 2021, they were engaging in continuous Sexual Relations with each other thereby committing ‘Incest’ Contrary to Section 223(1) of the PNG Criminal Code Act.’
   
3. They were first brought to Court on the 23/02/22 and after the usual mentions and adjournments of their case from time to time, the Police Hand Up-Brief (PB) in their various matters were tendered to Court on the 08/04/22 after they themselves were served their Copies earlier.
   
4. The Court then set the matter down for Committal Process to take place on the 27/04/22.
   
5. After having perused the PB pursuant to Section 94C of the District Courts Act, I adopt the general direction of Committal Processes as outlined in the case of Maladina v. Principal District Court Magistrate, wherein Injia DCJ as he then was, in commenting on Section 95 and 96 of the District Court Act said ‘Committal Processes involves two phased; “The first is when the Magistrate ‘receives’ or ‘hears’ evidence offered by the prosecutions only and considers the evidence whether the evidence is sufficient to put the defendant on trial. If the Court is of the opinion that there is insufficient Evidence, the court discharges the defendant on the Information (Section 95). That is the end of the matter. “If the Court is of the opinion that the evidence is sufficient to put the Defendant on trial, the Court Proceeds with the Examination of the Defendant under Section 96.”
   
6. Section 96 of the District Court Act was administered on the Defendants separately during the Court session on the 27/04/22 and firstly Rodney Haivapa opted to give an unsworn Statement from the Defendants Dock where-upon he stated as follows that;
   
   1. I am sorry for what I have done, I was wrong.
      
   2. I am now worried about my other school aged children as they are in school in Alotau (Milne Bay Province) and also here in Popondetta.
      
   3. I ask for Court Bail or Fine to Settle my family.
      
7. Defendant Lisa Rodney also opted to make an unsworn statement from the Defendant’s dock and she stated as follows;
   
   1. This happened between me and ‘daddy’ as I was raised by my mother’s line from babyhood until I got big.
      
   2. Then, when my father went and brought me back to Popondetta from Alotau, he did not properly thank those that cared for and raised me up.
      
   3. So an old Grandfather in Alotau ’Cursed’ me and said that I would ‘go around like this with my father’ so this happened.
      
8. The Case was then adjourned for Ruling to the 02/05/22 to cater for two things, Firstly the Committal Ruling itself and Secondly but more importantly to adhere to the requirement under Section 100 (3) (d) of the District Courts Act, to where possible allow the Defendants on bail.
   
9. The Defendants were then directed to prepare and to provide proposed guarantors on the 02/05/22 to assist in their bail consideration by the court.
   

Observations /Assessments.

10. The Defendants returned on the 02/05/22 from custody for Ruling on their Case and at the time the court made the following observations and assessments regarding their case,
    
    1. Though the Defendants were charged separately on different Information’s and Separate PB’s were tendered to Court for them each and severally, their various charged emanated from the same Transaction and so the Ruling in their Committal could be joined.
       
    2. The Court also observed that the Defendants each and severally did not contest or deny the charges in their various records of interviews (ROI) but rather they indirectly made admissions by trying to explain why this thing arose between them.
       
    3. The Defendant Rodney Havaipa made Admissions in his ROI about the allegations leveled at him and further still made Admissions in his Section 96 Statement that affirms this Committal Courts intentions further.
       
    4. The Defendant Lisa Rodney in her ROI and later in her Section 96 Statement seemed to suggest that a ‘Curse’ was placed on her by an elderly relative of her mother’s when her father took her back without Compensating the mothers line for the Effort in raising her up. She even said in her Section 96 statement that the Old man told her specifically ‘she would go around/have illicit sexual relations with her father.’
       
    5. Falling short of a ‘Plea of Insanity’ under section 24 (1) (a) of the Criminal Code Act, Lisa Rodney claims of being ‘Cursed’ or of being ‘Under a Spell’ from witchcraft or such will be disregarded by this court as the Test is not the mere allegation of ‘being Cursed or under a spell’ but rather that such a ‘curse or spell must deprive the Defendant from being in control of his or her actions and the Offending Action Alleged’, in this case the act of ‘INCEST’ must occur independently of the exercise of her will.’
       
    6. In this case she knew well what she was doing was wrong yet continued to participate in this illicit affair for over Eleven months.
       
    7. Such was the adjudication by Doherty J in the case of Hekavo v. The State [1991] PNGLR 394 wherein the Defendant was acquitted of a ‘Murder’ he committed whilst being affected by an ‘Epileptic Fit’ that caused him to lose cognitive functions for hours on end after such Fits or Seizers thereby not being in control or aware of his actions.
       
    8. In the Older case of Hatenave Tete v. Regina [1965-1966] 336, Section 24(1) (a) or its Pre-Independence equivalent under Section 23 of the Pre-Independence Criminal Code came under consideration, wherein the Defendant Hatenave Tete was led by a Woman name Loso (his co-accused) who was supposedly so over-come with grief over a death of a relative she was under a Trance of some sort that led to some form of Automatism that caused her to probably not know that she was pointing out the deceased to the defendant who promptly killed him.
       
    9. The Female named Loso in that case was acquitted of the Killing on reason of Insanity or Automatism wherein it was found that she was not in control of her actions, whilst Defendant Hatenave Tete got the full brunt of the Pre-Independence Punishment for the murder.
       
    10. In both the Hekavo and Loso and Hatenave Tete cases, the Episodes of Automatism was experiences that happened in very short spans of time not more than a few minutes to several hours depending on the prevalent mental and physiological conditions of those claiming it.
        
    11. In this case at hand, the Defendant Lisa Rodney not only made Admissions in her Section 96 Statement but also admittedly from her own account, was in full control of all her Faculties and knowingly engaged in Sexual Relations with her biological father all these time from October 2020 to September 2021, over a span of eleven months.
        
    12. Over a span of over Eleven months, there was more than ample time for her, and also her father to come to their sense and ceases and desist from this activity, but she persisted.
        
    13. Even if they did cease and desist after even the first episode, the damage morally and conscientiously was done and this case would have been Established Prima Facie regardless.
        
    14. Therefore, I do not find any grounds or substance in this contention of ‘Curses and spells’ by Lisa Rodney as being sufficient enough to sway this court from its Intentions to Commit.
        
    15. Even the Police witnesses who are the Defendant Rodney Haivapas Wife and the Defendant Lisa Rodney’s biological mother, and her father and also her uncle further revealed pertinent details about the Defendants conduct leading up to their arrest and detention that further sustains the Prosecution’s case insofar as the PB’s Sufficiency is concerned.
        
    16. The only Logical Ruling Left to this court is to Commit this case to the National Court for Sentencing /Trial or Further Processing of this case of Incest by the Defendants.
        

Bail.

11. Having thus formulated a Prima Facie Opinion on the Sufficiency of the PB the next requirement I was to consider is under section 100 (3) (d) of the District Courts Act and that is to consider and release the Defendants on Bail if at all possible.
    
12. Unfortunately, in this case, the Defendant have not provided any Guarantors to support their Bail let alone raise the issue of Bail during their appearance on the 02/05/22 despite Rodney Haivapa’s earlier requests on the 27/04/22.
    
13. Therefore, given the rate at which Court Bail’s are Absconded from, more often than not, this court will not consider bail for the Defendants but will have them remanded to appear at the National Court in Popondetta later this year 2022 from Custody for their matter.
    
14. They each and severally still retain the right to apply for Bail at Any time hereafter if they are able to muster the required Resources and Guarantors.
    

Orders/Committal Ruling.

15. That being so, in the final analysis this Committal Court Rules and Orders as follows;
    
    1. A Prima Facie / Sufficient case has been Established on the Various Police Hand-Up Briefs pertaining to the Defendants, each and severally.
       
    2. The Defendants are accordingly, each and severally Committed to the National Court for Sentence/Trial or Further Processing for the Charge(s) of Committing Incest (Continuously) with each other from October 2020 to September 2021 contrary to Section 223(1) of the Criminal Code Act.
       
    3. The Defendants are each and severally further remanded in Custody to appear for the mention of their case before the National Court at a time and date to be set by the National Court Sub-Registry here in Popondetta.
       

Police Prosecutions for the State.
Defendants each appear in person.