Peter v Andiye [2022] PGDC 79; DC9015 (13 September 2022)

DC9015

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS COMMITTAL JURISDICTION]

COM NO 1634 of 2021
BETWEEN

CATHY PETER
Informant

AND

ELIZAH ANDIYE
Defendant

Waigani: O Ore Magistrate

2022: 13^th September
      

COMMITTAL PROCEEDINGS – Sexual Penetration – Section 229 A (1) - Criminal Code Act Chapter 262- elements of offence – whether evidence is sufficient to commit defendant to stand trial in the National Court – Evidence Sufficient to warrant committal to National Court

PNG Cases Cited
Regina v McEachern [1967-68] PNGLR 48

Overseas Cases

References

Legislation
Criminal Code (Sexual Offences and Crimes Against the Children’s) Act 2002
District Court Act 1963

Counsel

Samghy P, for the Informant

Philip M, for the Defendant
13^th September 2022

1. O Ore, Magistrate: Elizah Andiye was initially charged with one count of Persistent Sexual Abuse under Section 229D (1) and 3 counts of Sexual Penetration of a minor under section 229A (1) of the Criminal Code (Sexual Offences and Crimes Against the Children’s) Act 2002. However, the Defendant was only arraigned for one Count of Sexual Penetration of a minor under Section 229A of the Act. The Police did not pursue the other two charges. So, as it is, the Defendant now stands before this Court charged with one count of Sexual Penetration of a Minor.
   
2. This is my decision after submissions were made by respective parties on sufficiency of evidence.
   

FACTS

3. The following are the summary of facts alleged by police to have taken place.
   
4. The Defendant comes from Venda Village of Tambul Neibyler in the Western Highlands Province. He resides at 9-mile Makana Morobe Block. He was employed with the Christian Academy School as a Monitor.
   
5. The Victim is child RM and she is 8 years old. She is from Mul Baiyer in Western Highlands Province. The Victim’s aunty got married to the Defendant’s big brother and they lived together in the same house at Makana Morobe Block, 9 mile.
   
6. The Victim reported that during the term 3 school holidays, between 17^th October 2021 and 26^th October 2021, the Defendant Sexually Penetrated her 3 times on 3 different occasions in his room at Makana Morobe Block.
   
7. The Victim reported that the first time was in the Defendant’s room. She was sitting on a couch in the house when the accused pulled her to his room. He sat on a chair and he removed her trouser and sat her on his two thighs. He unzipped his zipper and inserted his penis into her vagina and sexually penetrated her vagina. After that he threatened her not to tell her mother.
   
8. The second time was the next day. She reported that she was busy playing with her toys inside the house when the accused came and pulled her to his room. He did the same thing by placing her on his thighs whilst he was sitting on a chair. He then unzipped his zipper band inserted his penis into her vagina and sexually penetrated her vagina. After that he threatened her not to tell her mother.
   
9. The third time was after the next day of the second abuse. The victim reported that she was resting in the house after playing with the kids. The accused came and pulled her to his room and did the same thing. After abusing her, he threatened her not to tell her mother. The victim reported that with fear she never reported her mother.
   
10. Until on Sunday 07^th November 2021 in the afternoon after washing at Ela Beach with her mother. She revealed everything to her mother about what Elizah did to her in his room at Makana, Morobe Block.
    
11. The Victims mother physically checked her in the house and then reported the matter at Gordons Police Station. At the same time, she took the victim to the hospital for medical examination.
    

ISSUE

12. Whether, the evidence in the Police Hand-up Brief is sufficient to commit the Defendant to stand trial in the National Court, for the commission of the alleged offence.
    

RELEVANT LAW

13. Section 229A (1) of the Criminal Code Act (Sexual Offences and Crimes Against Chidlrens) Act 2002 provides for the offence itself. It is in the following terms:

229A. Sexual penetration of a child.

(1) A person who engages in an act of sexual penetration with a child under the age of 16 years is guilty of a crime.

Penalty: Subject to Subsections (2) and (3), imprisonment for a term not exceeding 25 years.

14. In this case, upon a cursory enquiry by this Court, the evidence must at least touch on the Defendant engaging in an act of sexual penetration with the victim who at that time was a child under the age of 16.
    
15. Section 95 of the District Court Act provides this Court with the necessary powers to consider whether a prima facie case exits. It states:
    

“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.”

16. When considering whether a prima facie case exists against the Defendant to warrant a committal or not, the Court must firstly look into whether the administrative processes under Sections 94, 94A, 94B and 94 have been properly administered.
    
17. For the second part, conduct a cursory enquiry into the evidence offered by the prosecution. It is my respectful view that, at this stage, the Court must remind itself that it is only assessing the prosecution’s evidence on face value and not to fully establish the elements of the offence. The elements of an offence cannot be discussed because only one side of the story is available for scrutiny. Any Defence raised in submissions should not be discussed or tested. It must be left alone for the trial Court to decide when both sides of the story are heard if the matter is committed to the National Court.
    
18. The standard of proof required when assessing the evidence by the police is one that is lower than beyond reasonable doubt. See Regina v McEachern [1967-68] PNGLR 48
    

EVIDENCE

19. The evidence contained in the PHUB comprises of:
    
    1. Statement of 6 witnesses
    2. Record of Interview both Original and Translated
    100. Clinic Book
    4. Medical Report
       

Witness Statements

1. RM
   

20. She is the Victim aged 8 years old. She will identify the Defendant and also give evidence on when and how she was sexually assaulted by the Defendant.
    
    2. Rachael Maki
       
21. This witness is the victim’s biological mother. She will give evidence on how and when she came to know about the incident.
    
    100. Nancy Mirr
         
22. This witness is the Victim’s aunty. She will give evidence on how she came to know about the incident.
    
    4. Sr Diane Asen
       
23. This witness is the medical officer who medically examined the victim after the incident.
    
    5. Constable Esther Bavi
       
24. This witness is the Police Woman who was present during the Record of Interview.
    
    6. Constable Cathy Peter
       
25. This witness is the investigating or case officer.
    

PROSECUTIONS CASE

26. Prosecutor Samghy for the prosecutions submitted that there is sufficient evidence to warrant a committal of the Defendant to stand trial at the National Court. In response to submissions by the Counsel for the Defendant Mr Philip on the issue of corroboration, he submitted that as per Section 229H of the Act, corroboration is not necessarily required. He pointed out that the evidence by the victim herself is clear and unambiguous as to what had happened. The medical evidence or report also supports her story.
    

DEFENDANT’S CASE

27. The Defendant is represented by Mr Moses Philip. Much of Counsel’s arguments are centred around corroboration and also about the Victim not being properly prepared before her statement was taken. He submitted that because of these, there is no credible evidence and it would be risky to commit the Defendant to stand trial at the National Court and thus this case should be dismissed.
    

CONSIDERATION OF EVIDENCE BY THE POLICE AND FINDINGS

28. My review of the PHUB indicates that process under Sections 94, 94A, 94B AND 94C of the District Court Act have been properly administered. All statements and evidence taken and collated have been done properly and are properly before the Court.
    
29. In regards to the issue on sufficiency of evidence, I find that there is sufficient evidence to warrant a committal of the Defendant to stand trial at the National Court. There is sufficient evidence prima facie showing that the Defendant had sexually penetrated the Victim, a child of 8 years old on 3 separate occasions. The evidence by the victim is clear and also as per section 229A of the Criminal Code (Sexual Offences and Crimes Against Chidlrens) Act 2022, corroboration is not necessary.
    
30. Further to that, the medical report although circumstantial points towards the offence being committed. That is something that the trial court should test.
    
31. I therefore find that there is sufficient evidence prima facie to warrant the committal of the Defendant to stand trial at the National Court for the charge of Sexual Penetration of a Minor under Section 229A (1) of the Criminal Code (Sexual offences and Crimes Against Children’s) Act 2002.
    

COURT ORDERS

32. I make the following orders;
    
    1. There is sufficient evidence warranting the committal of the Defendant to the National Court for one count of Sexual Penetration of a Minor under Section 229A (1) of the Criminal Code (Sexual offences and Crimes Against Children’s) Act 2002.
       

Lawyer for the Informant Police Prosecutions
Lawyer for the Offender: Korerua and Associates