State v Namban [2013] PGNC 35; N5118 (13 February 2013)

N5118

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 256 of 2011

THE STATE

-v-

RALPH NAMBAN

Lorengau: Geita AJ
2013: 13 February

CRIMINAL LAW - Rape – Not guilty plea – Trial – S 347 (1) Criminal Code Act

CRIMINAL LAW –Rape- Evidence – Affidavit - Declaration that a charge will not be laid-Section 525 (1) (b) Criminal Code Act, Ch No. 262
PRACTICE AND PROCEDURE – Declaration not to lay charge – Discretion exercised by Public Prosecutor – Accused discharged – Bail refunded.

Counsel:
Mr. Camillus Sambua, for the State
Mr. David Mamu, for the accused

DECLARATION NOT TO LAY CHARGE

13 February, 2013

1. GEITA AJ: The accused was charged for one count of rape of a 16 year old high school student on 5 April 2008 at Mal village in Lorengau without her consent contrary to s. 347 (1) of the Criminal Code Act. The offence attracts a maximum penalty of life imprisonment.

2. The accused was charged and committed to stand trial on 28 December 2010 by the Lorengau Committal Court.

3. On 22 March 2012, after pre trial, the matter was listed for priority trial in February call-over. On 11 February 2013, during call over the case was given priority trialling for today. As it turned out the victim's guardian presented an affidavit through the Public Prosecutor Mr. Sambua seeking withdrawal of the charge. Her main reasons were that the passage of time had obscured memories of the incident and the victim did not want to relive the trauma of the incident by coming to court again. She has moved on in life and appears to be doing well in school and did not want further embarrassment and stigma from her peers and community where she now lives in. I note in the affidavit that some form of reconciliation was conducted between the accused and victim's families in 2009 and some undertaking made by the accused to meet the victim's education requirements. Be that as it may, those out of court arrangements are not the major determining factors in this case. The victim's well being and avoidance of stigma in my view are of paramount consideration as she is still continuing her Grade 12 education.

4. Based on the strength of her guardian's affidavit requesting for the withdrawal of this charge at the request of the victim, Mr. Sambua made application on her behalf. The court having questioned Mr Sambua if he had jurisdiction to make such application was directed to the relevant section in S.525 (1) (b) of the Code.

5. This court having satisfied that the Public Prosecutor had jurisdiction, formally accepted the application for declaration not to lay charges against the accused. I than made orders that declaration be endorsed and the accused be discharged. His bail will be returned to him. I further order that all necessary discharge papers be prepared and circulated to all interested parties.

Orders accordingly.

____________________________________________________________
Public Prosecutors Office: Lawyers for the State
Paul Paraka Lawyers: Lawyers for the Defendant