DC969

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS CRIMINAL (COMMITTAL) JURISDICTION

COM 258 of 2009

BETWEEN:

JAPHET BANIWAD
Informant

AND:

JERRY IDAL
Defendant

Madang: E Wilmot

2005: 30 SEPTEMBER 2009

CRIMINAL - hand up brief – Accused charged with Sexual Penetration contrary to Section 347 (1) of the Criminal Code – question as to sufficiency of evidence to commit Accused to stand trial for Sexual Penetration. 

Cases Cited

List Cases Chronologically

SCR No. 34 of 2005 – Review pursuant to the constitution section 155(20(b) the application of Herman Laehy 
Bukoya -v- State SC887 (17 October 2007.

References
List Legislation In Alphabetical Order
Criminal Code Act
District Court Act

Counsel
Sergeant Patrick Nanao for the Informant
Lawyer, for the Paraka Lawyers

24 August 2009

1.	E Wilmot DCM: The is the information of First Constable Japhet Baniwab attached with the Traffic Section , Madang laid on 20th August 2009 against one Jerry Idal, the Accused.

FACTS

2.	It alleges that on the 20th of June 2009 on or around 11:00am the victim Pethre Ondom was out doing laundry at a small creak. After finishing her laundry she proceeded to bath herself. After this she had tied her towel across her upper chest and was about to leave for her house when approached by the Accused. 

3.	He grabbed her, tackled her to the ground and struggled with the victim to have sexual intercourse with her. During the process the victim’s towel came off leaving her completely naked. It is about this time the victim alleges that the accused pushed his fingers into her virgina.

4.	She struggled and fought off the accused and ran onto the main road naked.

5.	She then took a bush track and saw some children who were also bathing in the creak, they came to her aid and gave her a trousers and took her to her house.

6.	On arriving at the house she reported the incident. The police followed up and interview the accused and charged him with sexual penetration.

7.	The act the accused alleged top have committed the act of fingering the victims vigina is contrary to section 347 (1) of the criminal code.

8.	The Accused was remanded in custody.

ISSUE:

9.	Whether there is sufficient evidence to put the Accused to trail for the offence he is charred with.

The Law

10.	Section 347 of the criminal code states:

(1) A person who sexually penetrates a person without his consent is guilty of a crime of rape

Penalty: Subject to Subsection (2), imprisonment for 15 years.

Elements 

11.	the elements of Section 347 of the Criminal Code are: 

•	A person who sexually penetrates 
•	another person 
•	without his consent 

12.	The prosecution does not have to prove as an element of the offence that the accused intended to sexually penetrate the complainant without consent. (R v Philip Ulel [1973] PNGLR 254, pre-Independence Supreme Court, Clarkson J; The State v John Kalabus and Aita Sanangkepe [1977] PNGLR 87; National Court, Williams J). Those issues do not arise in this case. 

sexually penetrates

13.	The term " sexually penetrates " is defined by Section 6A of the Criminal Code. it states: 

When the expression " sexually penetrates " or " sexually penetrates" the definition is the introduction by a person of his penis into the vagina, anus or mouth of another person; or the introduction, by a person of an object or a part of his or her body (other than the penis) into the vagina or anus of another person.

Consent 

14.	Lack of consent is an essential element to this offence and it is defined in Sections 347A (meaning of consent). It states "consent" means free and voluntary agreement. 

FUNCTIONS OF THE COMMITTAL COURT

15.	The committal proceedings are not intended to determine the innocence or the guilt of an Accused and cannot result in an acquittal: SCR No. 34 of 2005 – Review pursuant to the constitution section 155(20(b) the application of Herman Laehy.

16.	The question that is posed in committal process is whether or not a prima facie case is established against an accused. In other words it is the strength of the evidence put forward by the prosecution (Bukoya -v- State SC 887 (17 October 2007).

STANDARD OF PROOF:

17.	The standard of proof in committal proceedings is stated in Regina –v- McEachern [1967-68] PNGLR 48 (24 May 1967)where it held:

To decide that the evidence offered by the prosecution in committal proceedings before the District Court "is sufficient to put the defendant upon his trial" within the meaning of that phrase in s. 102(1) of the District Courts Ordinance 1963 the court has only to form a bona fide opinion that there is a sufficient prima facie case against the defendant.

18.	This translates effectively that the measure of this standard is much less then the standard in trial where it must be proof beyond a reasonable doubt.

Consideration of witness statements:

19.	The state has brought several witnesses to establish that the incident took place. Further on the record of interview there is admission by the Accused.

20.	Having said this court needs only to form an opinion as to whether there is a prima facie case to commit him to stand trial.

21.	It is by this evidence this court concludes that there is a prima facie evidence on all elements of the charge.

This courts findings:

22.	This court in reaching its decision has considered the totality of the evidence presented, and considering the confession of the Accused taking into account the burned of proof on this court.

23.	This court commits the Accused to stand trial at the National Court for the charge of Armed Robbery pursuant to section 347(1) on 28 February 2010. Section 96 is now administered to the Accused.

E Wilmot (DCM)

Police prosecutor for the informant
Public Solicitors for the Accused.