DC5043
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS COMMITTAL JURISDICTION]
Comm. No  318   of 2020
BETWEEN
THE POLICE
Informant

AND
“IG”
Defendant

Waigani:  Seth Tanei

2020:  16th of December
             
COMMITTAL PROCEEDINGS - Charge- One Count of Sexual Touching contrary to section 229 B (2) of the Criminal Code Act– Is the Police Evidence sufficient and prima facie sufficient to commit the Defendant to stand trial at the National Court. 

COMMITTAL PROCEEDINGS – Legal requirements for prima facie case – Inconsistent Evidence – Defective Information – Information Struck Out 

PNG Cases cited:

Police v Koupa [2020] PGDC 13; DC 4065 (14 October 2020)
Kuman –v- Howa [2016] PNGDC 15; DC2092

Overseas cases cited: 
Nil

References

Legislation
Criminal Code Act 1974 Chapter 262
District Court Act, Chapter 40

Counsel
Police Prosecutor: Sgt Joseph Sangam					
The Defendant:    In person

RULING ON SUFFICIENCY OF EVIDENCE

16th of December 2020

 INTRODUCTION

1.	TANEI, Magistrate. This is my ruling on whether a prima facie case is established within the meaning of Section 95(1) of the District Court Act after assessment of the police hand up brief.

 CHARGE

2.	The accused is charged with one count of Sexual Touching contravening Section 229B (2) of the Criminal Code Act 1974 Chapter 262.

3.	The Police Hand Up Brief was served on the Defendant and the Defendant subsequently caused a reply to the evidence contained in the file. I will now assess the evidence.

FACTS
  
4.	The Defendant was arrested by Police on 10th March 2020, for the offence of ‘Sexually Touching’ a female child under the age of 15 years, then 13 years old, by touching her vagina with his fingers. 

5.	The Defendant is aged 30 years old and hails from Riwali village in Rigo, Central Province. At the time of the allegation he was residing at Vadavada block along the Taurama road, NCD. The victim is aged 13 years old of Hanuabada, NCD and at the time of the allegation attends Koki Primary school and is in Grade 4. 

6.	Police allege that on Saturday 1st March 2020 between 8:15pm and 9:00pm at the TB Ward at the Port Moresby General Hospital at the National Capital District, the Defendant and the victim were seen together in the toilet.

7.	It is alleged that the victim was trying to wash at that time. When she went into the shower, the Defendant was in there. The Defendant then held the victim’s mouth with his hands and removed her clothes. He then touched the victim’s vagina with his hands. They were caught by the Defendant’s wife where she assaulted the Defendant and the victim ran and informed her father of the incident.  

8.	The Defendant was later taken to the Police station where he was formally arrested and charged for the offence of sexual touching under Section 229B(2).  

 ISSUE

9.	The issue before this Court whether the Police evidence in the Police Hand Up Brief is sufficient to commit the Defendant to stand trial at the National Court.

THE LAW 

a)	The Law on Committal Proceedings

10.	The function of the committal court is to weigh and assess the evidence in the Police Hand Up Brief and find out if the evidence meets all elements of the offence the Defendant is being charged with. The process of administering committal hearing and assessment of evidence is all captured in Sections 93-100 of the District Courts Act. 

11.	Section 95 of the District Courts Act provides that; 

“95. COURT TO CONSIDER WHETHER PRIMA FACIE CASE.
(1)34 35Where all the evidence offered on the part of the prosecution has been heard or received, the Court shall consider whether it is sufficient to put the defendant on trial.
(2) If the Court is of opinion that the evidence is not sufficient to put the defendant on trial for an indictable offence it shall immediately order the defendant, if in custody, to be discharged as to the information then under inquiry.
(3) If the Court is of opinion that the evidence is sufficient to put the defendant on trial for an indictable offence, it shall proceed with the examination in accordance with this Division.”

12.	The Defendant was charged with Sexual Touching under section 229B(2) of the Criminal Code Act. 

13.	Section 229B(2) of the Criminal Code Act provides that; 

  (2) For the purposes of this section, “sexual parts” including the genital area, groin, buttocks or breast of a person.

14.	In the case of Police v Anawai Koupa, His Worship Mr. Paul Nii held that; 

To establish an offence of Sexual Touching, Prosecution must demonstrate their case beyond reasonable doubt the elements of the charge with corresponding evidence in the HUB.  Each and every elements of the charge should substantiate the offence to ensure prosecution has a case on merit founded on evidence that would likely to be tested during hearing on evidence before the case is graduated to the trial court…

DEFENCE SUBMISSIONS

15.	The Defendant relied on his written submission filed on 14th September 2020. The submission challenged the evidence in the Police Hand Up Brief. 

16.	The Defendant says that the Police evidence against him is inconsistent. This is because in the victim’s statement, she said that she was sexually touched while the Statement from the Nursing Officer stated that she was sexually penetrated. 

17.	The Defendant submits that the victim was following him and was trying to seduce him and she was the one that invited the Defendant to touch her vagina. He submits that the victim is an undisciplined and a promiscuous girl who was not virgin and shifted the blamed to her.  The Defendant also submits that it was the victim who tailed him to the toilet knowing very well that he was already in the toilet and forced herself upon him. 

18.	For these reasons, he states that the matter should be dismissed for lack of evidence. 

PROSECUTION’S SUBMISSIONS

19.	The Prosecution opted not to file submissions but requested the Court to consider the Police Hand Up brief and make a ruling on it. 

20.	 I must say here that the practice of making submissions on the sufficiency of evidence is not prescribed by law but is mere practice.  The Court is not obliged to hear submissions. The opportunity to make submissions is a privilege and not a right. 

21.	What is important here is the Police Hand Up Brief and the Court is obliged by law to consider the evidence in the Police Hand up Brief and make a ruling as to its sufficiency. 

THE POLICE HAND UP BRIEF

22.	The Police Hand Up Brief consisted of the following; 

a)	Witness statements

i)	J A - Victim Statement-She is the victim, 13 years old and doing grade 4, She will identify the accused and testify in court what happened to her.

ii)	Auksy Kabua- the victim’s father, he will testify to the court what happened to his daughter.

iii)	Esta Bavi-this witness is the police corroborator and she will testify in court what transferred in court during the interview.

iv)	Addie Milali-this witness is a police officer and she is the arresting officer who is interrogated the accused. She will identify the accused and testify in court what transpired between her and the accused during the record of interview and how the investigation was carried out.

b)	Expert statements/Documentary evidence 

i)	Medical Report- This report was conducted by Sr Christine Waure. She is a nurse by profession and she will identify the victim and testify in court on her findings during the examination she carried out on the victim.

ii)	Record of Interview (ROI)-Containing the Defendant’s replies to a discussion conducted at the Police station by arresting officer. 

ANALYSIS OF THE POLICE FILE

23.	The Police Hand Up Brief contains witness statements, a medical report and police corroborator’s reports.  

24.	The victim says in her statement provided to the Police dated 9th March 2020 that the Defendant touched her vagina in a toilet at Port Moresby General Hospital when the Defendant’s wife caught him and assaulted him.

25.	Secondly, a medical report by nursing officer Christine Waure dated 6th March 2020 stated at paragraph 4 that the Defendant removed the victim’s clothes, forced her to the ground and sexually penetrated the victim by inserting his penis into the victim’s vagina. The Medical report also stated that it was her first time to encounter sex. 

26.	The other witness statements are from the Police investigator and Corroborator and have no direct relevance to the elements of the offence. 

27.	I note that the evidence contained in the Police Hand Up Brief inconsistent.  The victim stated in her statement that the Defendant touched her vagina. However, the medical report stated that the victim was sexually penetrated. 

28.	I am not empowered to make findings of fact and as such I will not enquire into the conflicting statements of the victim and the nurse. In this case, I am bound by law to weigh the evidence against the charge. Here, the Defendant was charged with sexual touching and so I should accept the evidence that is relevant to the charge and that is the evidence of victim where she stated she was sexually touched.

29.	I have also had the opportunity to look at the evidence contained in the police file with much attention to the charge under which she was charged. 

30.	At this juncture, it is very important that I go back to the offence to which the Defendant was charged with. 

31.	The Defendant was charged under Section 229B(2) of the Criminal Code Act and was arraigned by the court on 16th March 2020.  Section 229B (2) of the Criminal Code Act provides that; 

229B. SEXUAL TOUCHING.

(2) For the purposes of this section, “sexual parts” including the genital area, groin, buttocks or breast of a person.

32.	I note that this provision does not establish any offence or charge but only defines ‘Sexual Parts”. The correct provision that the Defendant should have been charged under is Section 229B(1)(a) of the Criminal Code Act 1974. 

33.	I have read through the court file and the police hand up brief but I have not come across any point where the Prosecution made any application to amend the information to reflect the correct charge. 

34.	The law under section 32 of the District Courts Act allows for the Prosecutor to amend the Information including the charge at any time before the hearing.  Section 32 of the District Courts Act provides that; 

32. 	WANT OF FORM OR VARIANCE IN INFORMATION, ETC.

No objection shall be taken or allowed to an information, or to a summons or warrant to apprehend a defendant issued on an information, for an alleged defect in the information in substance or in form, or for a variance between it and the evidence in support of the information, and any such variance may be amended by order of the Court at the hearing.

35.	Despite this, I note that the Prosecution, at no time in this proceeding, made any application to amend the Information to reflect the correct charge. 

36.	It is important to stress that The Information is a very important component of the police file. In fact, it forms the foundation of the Police case. The entire content of a Police Hand Up Brief revolves around the Information. An Information must contain the correct facts and charge in law. The charge under which the Defendant was charged with should be the precise charge under the correct provisions of the Criminal Code Act or other leglislation. 

37.	In all cases, the charge must be clear and comprehensive and the Defendant should be afforded the opportunity to defend himself under the correct legal provisions and charge. 

38.	I apply the principles enunciated by my sister Magistrate Her Worship Mrs. Laura Wawun-Kuvi in the case of Kuman –v- Howa [2016] PNGDC 15; DC2092 where she found that she had no jurisdiction to hear a matter and struck it out because the Information was defective. 

ANALYSIS OF THE DEFENSE CASE

39.	I find that the evidence against the Defendant is grossly inconsistent. 

40.	This is because the Medical report and the Nurse’s statement talk of sexual penetration of the victim while the victim’s statement talk about sexual touching.  

41.	Sexual touching and Sexual Penetration are different and distinct offences under the criminal Code and cannot be used interchangeably. 

42.	While the evidence is inconsistent, the law allows the uncorroborated evidence of a child victim in sexual offences under section 229H of the Criminal Code. In this case, the child victim’s evidence is in regards to sexual touching and so I will accept the evidence of the victim. 

43.	Given my discovery of the defect in the Information, I will not discuss the Defence case any further. 

FINDINGS

44.	The following are my findings; 

45.	Firstly I accept the victim’s evidence as being sexually touched and not sexually penetrated. 

46.	Secondly, despite accepting the victim’s statement regarding Sexual Touching, I find that the Information bearing the charge is defective.  The Defendant was charged under section 229B(2) of the Criminal Code. The correct provisions of the Criminal Code the Defendant should have been charged with is Section 229B(1)(a) and not 229B(2). These two (2) provisions are not the same, the former establishes the offending charge and its subsequent penalty while the later defines ‘sexual parts’. Essentially, it means the charge contained in the information against the Defendant is defective and thus cannot proceed further. 

CONCLUSION

47.	Having assessed the police file and finding that the Defendant was charged under the wrong provision in law, I conclude that the Information bearing the charge is defective and has no legal effect.

ORDER

48.	The formal orders of this Court are; 

1)	The Information containing the charge is defective as the Defendant  was charged under a wrong provision in law.

2)	The Information containing the charge of sexual touching against the Defendant is struck out. 

3)	Defendant is discharged. 

4)	The Defendant’s Bail monies be refunded forthwith.

In person									For the defendant
Police Prosecutor								For the State