DC3077
PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL (COMMITTAL) JURISDICTION]

COM24 Of 2017

THE POLICE

Informant

AND

YAHO JOHN

Defendant

Goroka:   Sani Lorna, Magistrate

2017:    July 14

CRIMINAL –

The primary objective of the committal court is to determine whether there is sufficient evidence to warrant a person accused of an indictable offence to be sent to stand trial in the National Court. The proceedings is conducted in accordance with the procedures outlined under sections 94C (1), 95(1)& 96 of the District Court Act, Ch. 40.

In this instance, the case arose out from information laid by a Police Woman Detective Senior Constable NANCY LESERA attached to CID Section of the Goroka, E.H.Provincial Police Headquarters. The Accused is YAHO JOHN aged 40 and he is from Pikosa village in Asaro, Eastern Highlands Province, in Papua New Guinea.  He’s been charged for sexually penetrating an under-aged child of 8 years old from the same area.

THE CHARGE:  

SEXUAL PENETRATION OF A CHILD – SECTION 229A (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 sub-sections (2) & (3) imprisonment for a term not exceeding 25 years.

(2)  If the child is under the age of 12 years, an offender against sub-section(1) is guilty of a crime and is liable, sub-section19, to imprisonment for life, and

Cases Cited
Nil

References
Nil

Counsels

Lawyer for the Informant, Police Prosecution

Lawyer for the Defendant, In Person

Date:  14th July, 2017

RULING ON PROSECUTION EVIDENCE

L SANI, Magistrate:   It is alleged by the police that between 01st – and 31st of January, 2017, between the hours of 1:00 pm and 2:00 pm the victim went to the creek to fetch water.  Evidence is not clear of the exact day or date, and time of offence took place.  The accused helped her get water and took her into an old house and sexually penetrated her.  After that he finished he gave her K2.00 note and warned her not to tell anyone and threatened to chop her neck if she told her parents.  Some days later she told her friends thinking it was a good story.  Whilst she was talking her auntie Dalcie over-heard her story from inside their house and later told it to her mother.  

2.   It was reported to the police where he got arrested on the 14th of March, 2017.  A record of interview was conducted.  After that he was formally cautioned and charged for the offence of sexual penetration.  Later he was told of his rights under section 42(2) of the constitution and detained in the cells.

3.   ASSESSMENT OF EVIDENCE - Elements of the Offence: 

1.	 A person being the accused
2.	 Unlawfully
3.	 Date, Time and Place
4.	 Sexually penetrate
5.	Female/Victim
6.	 Age of the Victim

Analysis of Police Evidence - Witnesses’ Statements:

4.   Witness 1 – Sylvia Ricky – victim – Pidgin version of the victim’s statement is not the same. “Emtokim mi long slip na mi slip naemrausim pants nasketblo mi naputimkokbloem go insait lo venese (kan-vagina) blo mi na mi krainaemtokyunokenkrainatokim mi long werim pants nasket.Miwerimnagivim mi K2.00 natokim mi olsemolaskimtoksotiduofgivim mi nemblo mi jaho.  In the English version states that he slept on top of her, and she felt pain and cried. That contradicts the victim’s statement.

5.  Witness 2 – Yondoro Ricky – Victim’s mother is giving hearsay statement. She did not identify the accused.  She heard everything from her sister who heard it from the victim.

6. Witness 3 – Dalci Peter:  hearsay.  She heard it from the victim on the 8th of February, 2017.  She was the one who told the victim’s mother and both of them went and assaulted Jaho.

7. Witness 4 – PWC – Cecelia Moa – She is a police corroborator at the R.O.I.  The Arresting Officer is the final witness – never been on site.  Acting on child’s statement and the 1st medical evidence.

8.  A Person - The accused being identified as the person charged namely Jaho John.

9.  Unlawfully–was no sexual penetration.  Medical Report shows no remarkable evidence of sexual penetration.

10.  Date, time and place – Date and time are unclear from the start.Between 01st January and 31st January, 2017.  Between 1.00pm – 2.00pm – the incident took place.  In an old house is unclear type of house where it’s situated. Again in the R.O.I, date put to the accused was: Q13.  Can you recall a date between 1/2/17 and 28/2/2017, where were you.

11.  Victim- Age of victim is confirmed as 8 years old. Child’s clinic Book confirms victim’s D.O.B. Victim was born on 01/02/2009.

12.  Sexually penetrate - Victim’s statement shows sexual touching no penetration- no evidence of S.I.  Medical report shows unremarkable – no trace of Sexual penetration.

COURT FINDINGS:

13.  The evidence of the victim is not supported with other material evidence and exhibits to confirm and support ALL THE ELEMENTS of the charge that can establish a Prima-facie case against the accused to answer in the National Court.

14.  All the witnesses’ evidence is hearsay and that it is insufficient.  The medical report is supposedly expert evidence.  It is stated as unremarkable it means that there is no trace of sexual penetration as alleged; therefore it goes on to mean that there is nothing to support the victim’s statement.  In addition, there is no other evidence to show proof of force used and sexual penetration occurred.  Therefore the totality of the evidence lacks the sufficiency to establish a prima-facie case for defendant to answer in the National Court.

Record of Interview:  

15.  The record of interview was conducted in contrary to the constitutional rights of the accused and the constitutional rights governing criminal matters.  For example- The incident took place in January and reported on 14th of March to the informant but the defendant was detained on the 13th of March.  The accused was interviewed on the same day she got the information.  That shows that interview is done without obtaining all the other material evidence which the informant needs in order to formally arresting accused and detaining the accused.  The informant obtained most of her evidence in the record of interview than she obtained from her own investigation.  The informant did not give time to the accused to exercise his rights except asking him what language he preferred to use.

Criminal law and procedure:

16.  The fact that the accused not been arrested charged ‘within a reasonable time and be afforded a fair hearing’ is a breach of that right.  Section 37 (3) (4) (a) (b) (c) (d) (e) & (f) spells it out clearly.  Sections 42-44 are the key provisions which all the police personnel dealing with these offenders must know so that they can discharge their duties with all manner of dignity and courtesy in their exercise of their powers of arrest and charging offenders.

17.  Finally, the test is whether in the court’s opinion in good faith that there is a “sufficient prima-facie case” against the defendant. Re: R. –v- McEachern{1967-1968} PNGLR 48.

CONCLUSION – RULING

18.  Based on the foregoing assessment and administering section 95 of the District Court Act, Ch. 40, I have found in my opinion, that there is insufficient evidence to put defendant on trial in the National Court.

19.  COURT ORDER:

Case is Struck Out.
Defendant is discharged from custody forthwith.
Warrant to release accused from custody be issued forthwith.