Police v Jacob [2022] PGDC 98; DC9045 (13 July 2022)

DC9045
PAPUA NEW GUINEA.

CRIMINAL JURISDICTION.
DC Com- 23/22 & CB NO: 52 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.
JACOB JACOB

Defendant/Accused.

Popondetta: Michael W. Apie’e

2022: July 13^th.

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;

-The count of Persistent Sexual Abuse of a Child contrary to Section 229D(10 of the Criminal Code (sexual Offences and Crimes Against Children’s) Act, 2002.
Established on the Police Hand Up Briefs.

Cases Cited:

Maladina v. Principal District Court Magistrate N2568

References:

Criminal Code Act-
District Court Act

Representation:

Senior Sergeant B. Waimona for the Police/State.
Mr. E. Yawisa of Public Solicitors for the Defendant.

RULING ON SUFFICIENCY OF POLICE HAND-UP BRIEF.

Background.

1. The Defendant Mr. Jacob Jacob aged over 40 years from Kurereda Village, Popondetta in the Northern Province is charged that ‘Between January 2017 to October 2021, he did engage in persistent sexual abuse of a child namely Ruby Tauselo then aged 11 years old in 2017, Aged 12 in 2018, aged 13 years old in 2019, 14 years old in 2020 and 15 years old in 2021, thereby contravening Section 229D (1) of the Criminal Code (sexual Offences and Crimes Against Children’s) Act, 2002 (Hereinafter CCA).
   
2. The Defendant is Charged on the 02/02/22 and brought to this Court, but matter is further stood over to the 04/02/22 for the Information to be re-issued correctly, and so on the O4/02/22 he was brought back to court with a new information and arraigned on the charge recited above.
   
3. Committal Process however commenced for him on the date of his first arrest being the 02/02/22.
   
4. Committal Files were completed and the Defendant was served his copies by the Police and the Police Hand Up brief (HUB) was tendered to Court on the 23/03/22 and also at that time it was noted that the Defendant was appearing from Police custody due to him being arrested on a Second Charge of Alleged Rape under Section 347 of the CCA. He was therefore remanded in Custody and the matter adjourned to the 25/03/22 for mention and Possible Committal Ruling.
   
5. However, due the defendant needing to consult with his Lawyers, the matter was adjourned to returned to Court on the 01/04/22 and the Defendant was further Remanded.
   
6. Due to other intervening factors the matter was not mentioned again in court until the 20/04/22 by which time the Defendant had already being allowed bail for his second Charge of Rape and so appeared from bail in respect of this matter as well. This matter was further adjourned to the 02/05/22 for Committal Process.
   
7. On the 02/05/22 Mr. Yawisa from The Public Solicitors Office appeared in Representation of the Defendant and Senior Sergeant Waimona for The Police Prosecution and Committal Process was initiated as follows;
   
8. Having read the PUB Previously pursuant to Section 95 and Section 94C of the District Court 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.”
   
   1. The Defendant Elected to remain silent in deference to his Counsel making Submission on the Sufficiency of the PUB on his behalf.
      
   2. Mr. Yawisa on behalf of the Defendant then made verbal Submissions under section 100 of the District Courts Act generally as follows;
      
      1. No Birth certificates of the Victim attached to the PUB.
      2. No Medical report of injuries or the state of the Victims body relative to the Charges are available to corroborate the allegations.
      3. Witnesses Relied on namely Jesse Soveni and Julie Faith Damiko were reciting Hearsay evidence of being told of the offences by the Defendant by the Victim.
      4. On the basis of the forgoing, Mr. Yawisa submitted that the Evidence Relied on in the PUB was insufficient to sustain the allegations made agains the Defendant therefore the Defendant ought to be discharged.
         
   100. The Prosecution needed time to consider and respond to the submissions by Counsel so matter was adjourned to the 16/05/22 for Police Response.
        
   4. On the 16/05/22 Senior Sergeant Waimona returned and submitted in Response as follows;
      
      1. The Birth Certificate was not readily available due to the Birth Mother being Bed-Ridded and therefore unable to assist Police.
         
      2. Medical: Medical Examination was not done due to the Date of reporting being more than Two months after the Last incident of abuse alleged.
         
      3. Also that the Defendant in his Record of Interview does not make outright Denials but instead Responded ‘I am not sure ‘ to pointed questions posed therefore leaving some uncertainty about his admission or denial to the alleged offence.
         
9. On that note the Committal ruling in this matter was thus adjourned to the 25/05/22 but due to intervening factors such as the Second Pending Charge of Rape against the Defendant and also the National Court Circuit to Popondetta, accordingly Ruling in this Matter court not be handed down until now.
   
10. The Second Charge of Rape against the Defendant was struck out and so the defendant only has this current charge pending against him.
    

Observations /Assessments.

11. The will observe as follows regarding the various submission made;
    
    1. Regarding Corroborative Evidence such as Recent or Fresh complaint and or Medical reports, the Amendments of 2002 to the CCA had to some extent minimized their definitive import at this stage of the Proceedings, being the Committal Stage.
       
    2. The Question of Sufficiency therefore at this Stage is based largely on what the District Court assesses as being sufficient on face value/Prima facie and not on the basis of Strict Rules of Evidence.
       
    100. With that in mind I will answer the Issues/Challenged raised by Mr. Yawisa as follows;
         
         1. Issue of birth Certificate- Even if there is no Birth Certificate provided, the Court can still make its own assessment of the Demeanor /Physical attributes of the Victim to make an inference on the Victims relative age.
            
         2. Additional, the other witnesses could be able to provide additional evidence of the Victims Age, so as to sustain the Specific Charge again the Defendant.
            
         3. Medical Report: The Fact that the Last Complaint of Abuse was allegedly more than Two months before the Report could be the reason Medical Personnel might not want to carry our examinations on the Victim is an Administrative Requirement beyond the control of the Victim and the Police.
            
         4. Besides, all the medical Report would do is provide corroborative Evidence which is a requirement that had being minimized in this kinds of offences under the 2002 amendments.
            
         5. Statement being Proffered by Potential Witnesses as being Hearsay evidence: This calls from the Application of Strict Rules of Evidence in assessing the Sufficiency of this particular pieces of Evidence which is not the function of the Committal court but that of the Trial Court.
            
         6. If these two witnesses Jesse Soweni and Julie Faith Damiko do not attend Court to give their Evidence, their Statements on the PUB does not matter as it will not be considered but if they do attend then they can be taken to task on this point by the Defendant and the Court.
            
         7. That ought to be rightly done at the Trial proper in the National Court and not at this state.

Orders/Committal Ruling.

12. 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 Police Hand-Up Brief pertaining to the Defendant.
       
    2. The Defendant is therefore Committed to the National Court for Trial or Further Processing for the Charge Persistent Sexual Abuse of a Child contrary to Section 229D (10 of the Criminal Code (sexual Offences and Crimes Against Children’s) Act, 2002.
       
    3. The Defendants bail of K500 is hereby extended to the Next Call Over of the National Court at Popondetta in August 2022 at a specific time and date to be set by the National Court Sub-Registry here in Popondetta.
       
    4. The Defendant is further Required to report once every week on Wednesday between the hours of 9.00am to 3.00pm at the National Court Sub-registry here in Popondetta until his matter is finalized.
       
    5. Reporting to Start on Wednesday the 20/07/22.
       

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