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Tifati v Menengi [2007] PGDC 167; DC810 (20 November 2007)

DC810

PAPUA NEW GUINEA
[DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

DCCi 119 of 2006

BETWEEN

KOKOVE TIFATI
Complainant

AND

LUKE MENENGI
First Defendant

GLORIA LUKE
Second Defendant

Kainantu: I Kurei

2007: November 17, 20

Cases Cited

Nil

References

1. Section 61 A District Court Act

Counsel

For the Complainant – In Person
For the Defendants – In Person

17 November 2007

EX-TEMPORE JUDGMENT

Background

Complainant is related by marriage (i.e., his wife Edna) to the Two (2) defendants. Edna is adopted daughter of First Defendant.

Complainant claims his wife was raped by one Karank Kadi.

Karank was in custody till the letter in dispute made authorities to give direction for his case not to be proceed with.

Facts

Allegation of rape, Karank Kadi was detained.

Matter was registered in District Court Goroka, due to no Resident Magistrate in Kainantu. Matter before the Court was withdrawn and struck out upon directions from Office of Public Prosecutor Goroka (Joseph Kegan) dated 21 July 2004. Defendant released from custody.

The release of the suspect was based on letter – hand – written and signed by Complainant’s wife Edna, the allege rape victim.

Later on 25 May 2004, another letter from Office of Public Prosecutor give direction for re-instatement/recharge (Umpake).

Mediation was held parties reached understanding but Defendant refuse to pay.

Issue

Who is responsible for the hand written letter?

Who instigated it all?

How was Complainant suffered?

Evidence

Edna Kokove clearly states she and the Two Defendants all colluded and wrote the letter.

Complainant claims because of the letter suspect was released. It has caused concern, frustration, stress, etc.

First Defendant admits writing the letter but claims Edna begged him to do so.

Second Defendant re-wrote what First Defendant had written and Edna signed it.

The letter was taken to Public Prosecutors Office in Goroka was sighted by Senior State Prosecutor, Joseph Kegan. As a result he wrote the letter to Officer in Charge Prosecution, Police Station Kainantu.

Matter was withdrawn and struck out.

Second letter from Public Prosecutors Office (Umpake). Police did not adhere to it.

Matter was left until this Civil Proceedings.

Law

Law of Tort.

Criminal Law – Rape – Criminal Code Act.

Committal Proceedings s 61 A District Court Act.

Summary

Section 61 A of District Court Act is clear on who should withdraw the information, i.e., Informant and Public Prosecutor in serious crimes.

Checks and balances options are there, i.e., committal process then prior to indictment by State Prosecution – Nollie Proseque.

For the victim and associates to write a statement to the effect that there was no rape had taken place then it is victim evidence to due process of law. It be not used to release suspect from custody.

First Defendant Luke Menengi who would be in a better position to discourage what had taken place.

I draw an inference in the relationship, second Defendant has with the suspect, i.e., second Defendant is married to suspect’s relatives has something to do with this whole saga.

Second Defendant went to Police Station to visit the suspect then writing of the letter took place soon after on the same day.

For victim and Two Defendants to collaborate and write the letter and taking it direct to Office of Public Prosecutor is very fishy. The informant is by passed.

The claim by victim of being threatened by husband (complainant) and Informant to press charge is also fishy.

Nevertheless proper investigation and proper processing of the matter would be in the best interest of all parties.

The Complainant is claiming compensation for the frustration, stress, etc on him due to what has transpired.

Again I am mindful of the fact that Complainant’s own wife who clearly states in the witness box that she is part and parcel of the letter writing.

Also the truth of whether or not rape has taken place is not clearly established. It is only an allegation.

To fully hold First and Second Defendants solely responsible for this claim would be total injustice.

They be held partly responsible.

The victim is equally liable for all that problem.

She may have raised claim for rape. If it is not rape then if sexual intercourse took place then it could be adultery. This some time do happen.

Finding

First and Second Defendant held to contribute towards what Complainant has claim.

Edna (victim) has contributed a lot to this.

Assessment of Damages

Reasonable man’s test be applied.

Complainant claims K 3, 000.00. This claim has not been established by the Complainant either by law or fact.

There is no convincing evidence to the degree of stress, anxiety, etc.

My view is reasonable amount be awarded, I consider the amount agreed at the mediation but it be reduced due to Edna’s role in writing of the letter.

Half the amount agreed at Mediation be awarded – K 500.00.

Costs claim be awarded – K 100.00.

Exemplary damage considered and awarded – K 300.00.

In making awards I take into account means of First and Second Defendants to pay the awarded amount

For the Complainant – In person
For the Defendants – In person