DC5071
Papua New Guinee
[In the Committal Jurisdictions of the District Court Held at Waigani]

Case No. 1518 OF 2019

BETWEEN:

THE POLICE
[Informant]

v

Richard Wamp
[Defendant]

Mr. Paul P Nii  
Date: 14 September, 2020

CRIMINAL CODE: -Charge- One count of Sexual Touching conflicting to Section 229B(1)(a) of the Criminal Code (Sexual Offences and Crimes) against Children Act 2002- Has the Police provided prima facie satisfactory evidence to commit the Defendant to stand trial in the National Court

EVIDENCE: Lawful requirement for prima facie case-Existence of the elements of the charge of Sexual touching-Evidence is appropriate to commit the Defendant to stand trial in the National Court. There is evidence on the elements of sexual touching for sexual purposes- Evidence demonstrates there is a case of sexual touching

PNG Cases cited:
State v Kawung (2008) PGDC 16
Yarume v Euga [1996] PGNC 24; N1476;
State v Pia Mark [2012] N4727
State v Francis Vau Kamo [2006] N2991 (16 February 2006)
Akia v Francis PGNC 335; N6555;
State v Epi (No. 1) [2017] PGNC 52; N6674 (9 March 2017)
Maela v Yahamani [2010] PGDC 28; DC1038 (8 April 2010)
Bate v State [2012] PGSC 46; SC1216 (20 December 2012)
State v William (No 1) [2004] PGNC 212; N2556 (28 April 2004)
State v Bernard [2010] PGNC 231; N4538 (25 June 2010)

Overseas cases cited: 
Nil

References

Legislation
Criminal Code (Sexual Offences and Crimes) against Children Act 2002 Chapter  262
District Court Act, Chapter 40 

Counsel

Police Prosecutor: Peter Samghy			For the Informant
Ms. E Marum, Office of the Public Solicitor		For the Defendant

RULING ON SUFFICIENCY OF EVIDENCE

14th September 2020

INTRODUCTION

NII, Magistrate. This is a judgement on whether a prima facie case is carried on inside the meaning of Section 95(1) of the District Court Act where all prosecution evidence is established in a form of a Police Hand Up Brief (Police file) and the court is obligated to deliberate whether it is sufficient to put the Defendant on trial. Defense submission is also measured in the ruling to ensure they have a case made out for the Defense.

CHARGE

2.Defendant is charged with one count of Sexual Touching under Section 229B(1)(a) of the Criminal Code (Sexual Offences and Crimes) against Children Act 2002

FACTS

3. Police say that the Defendant is Richard Wamp, male, 28 years old of Kagamuga, MT Hagen,      Western Highlands Province who resides at Taurama nambis(coast line), Taurama, NCD and is employed by Pascoe Events and Set Up as casual. He is not married but has a child, boy aged 4 years old. Police further say that the victim is Georgina Elizabeth Andrew, female aged 7 and comes from a mix parentage of Buka (AROB), Angoram(ESP) and Manus(Manus). The victim resides with her parents at Taurama nambis(coast line), described as end of the world, Taurama, NCD and attend ST Theresa Elementary school, Badili, NCD and is in prep class.

4. Police allege that on Tuesday 10th September 2019, the Defendant saw the victim at Taurama Market place and asked her to go with him to the seaside to quest for shells but the victim declined the Defendant’s request and instead went with her friends to the beach. Police allege that the Defendant followed the victim to the seaside and again asked her to follow him to hunt for shells and subsequently the victim followed the Defendant from the beach and they went looking for shells.

5. Police further allege that the Defendant took the victim to the Mangroves and she sat on a tree and the Defendant removed the victim’s trousers and he held the victim’s vagina. Police went on to say that when the Defendant held the victim’s vagina she felt pain but the Defendant told the victim not to report the incident to any anyone. Police say that after the occurrence, the Defendant informed the victim to follow him and they went looking for shells. After onwards the Defendant and the victim went to the market place where they roasted the shells for consumption and thereafter the Defendant left the victim and vanished. The Defendant was then informed by her friends to go home which she did afterwards.

6. Police allege that the victim felt scared to inform her parents about the incident until on Thursday 12 September 2019, where she told her mother and a female Georgina and subsequently on Sunday 15 September 2019, the Defendant was formally arrested and charged for sexual touching of a female child under the age of 12 years then 7 years old by touching her vagina thereby contravening Section 229B(1)(a) of the Criminal Code (Sexual Offences and Crimes) against Children Act 2002

Note: The Police statement of facts noticeably recapitulates the events leading to the allegation (incident), the assertion and the subsequent arrest.

ISSUE

7. The Principal issue for consideration by the court is whether a prima facie case is carried on and that is whether the evidence received from the Prosecution in the Police Hand Up Brief is satisfactory to warrant the committal of the Defendant to stand trial at the National court.

8. The Sub issues for deliberation are whether there is sufficient evidence on each of the elements of the offence of sexual touching which are: - A person, For sexual purposes, Touches with any part of his/her body, The sexual part of a child

THE LAW 

The Law on Committal Proceedings

9. Part VI of the District Court Act delivers the legitimate foundation for Committal Proceedings. The specific provisions are Section 94 to 100 of the District Court Act.

10. The case of Akia v Francis PGNC 335; N6555; provides the nature of the Committal court process. The Committal process is administrative in nature since the court need to form a view on whether there is enough evidence corresponding to the allegation contained in the charges. This process therefore requires the court to make a finding on the evidence presented by Police. 

11. The committal court functions as a filtering process where it weights the evidence for a charge to ensure there is sensible evidence corresponding to each elements of the charge(s). The case of Yarume v Euga [1996] PGNC 24; N1476; says that before an accused is committed, the court must be satisfied that all elements of the charge is presentable. Committing and discharging of an accused is measured by the credibility of evidence presented before the court by the police.  

12. Moreover, the case of Maela v Yahamani [2010] PGDC 28; DC1038 (8 April 2010) affirmed the purposes of the committal courts…. Committal proceeding is more or less a process in which serious indictable offences which are vested in the jurisdiction of the National Court are filtered before they are remitted for trial proper. The process allows the Magistrate to assess the strength of the charges and that weak or misconceived cases are not unnecessarily sent to the National Court. The primary objective of the committal court is therefore to consider whether evidence contained in the police hand up brief establishes a prima facie case to justify a trial proper in the National Court….

The Law on the charge of sexual touching

229B. SEXUAL TOUCHING.
(1) A person who, for sexual purposes –
(a) touches, with any part of his or her body, the sexual parts of a child under the age of 16 years; or
(b) compels a child under the age of 16 years to touch, with any part of his or her body, the sexual parts of the acused person’s own body,
is guilty of a crime.

CASE LAW

Elements of the offence

13. The National court case of State v Epi (No. 1) [2017] PGNC 52; N6674 (9 March 2017) delivers that the offence of sexual touching involves five (5) element which are: -

1.	A person
2.	For sexual purposes 
3.	Touches 
4.	Sexual part of a child 
5.	The child is under 12 years old

PROSECUTION CASE

14. The Police Hand up brief encloses Prosecution evidence.

Witness statements

i.	Georgina Elizabeth Andrew- She is the victim and the core witness where the Defendant alleged to have sexually touched

ii.	Elizabeth Pangai Andrew-She is the victim’s biological mother and gave an account of what transpired on the date of the incident and thereafter 

iii.	Georgina Nou Taboro- She is a woman who resides at or around the same location where the victim’s parents live and she gave witness of what she heard from the victim on the 12th September 2019. 

iv.	The Police investigators statement encompassing record of interviews between the Defendant and the victim and themselves. 

Documentary evidence 

i)	Medical Report-Medical report arranged by Olivia S. Ephram, a health extension officer who works with Port Moresby General hospital. This report was conducted on the 17th /09/2019

ii)	Record of Interview (ROI)- There was NO admission-

iii)	There was no confessional statement form the Defendant and the Antecedent Report is unrelated at the committal stage.

DEFENSE SUBMISSION

15. The following submissions were made by the Defense:-

( i) Defense made submission on the issue of identity. Defense submits that the Evidence must establish that an accused person identified to be the accused was at the material time physically present and sexually touched the victim. 

(ii) Defense evidence is that the victim had unable to identify the Defendant as the perpetrator.  Defense submits that the Defendant could be some other person, KC or Richard Wamp.

(iii)  Defense also submits that the victim is an epileptic patient and therefore her mother should have taken good custody or care of her whereabouts and she shouldn’t let the victim wonder around with people she does not know.

(iv) The police information containing the charge is defective since a wrong provision was used in the information to charge the Defendant. The Defendant was incorrectly charged under Section 229B(2) of the Criminal Code (Sexual Offences and Crimes) against Children Act 2002. The cited provision does not contain the elements of the offence of sexual touching but only the definition of the sexual parts.

(v) the Committal court does not sit as a trial court where it should prove the elements of the charge beyond reasonable doubt but only to commit the Defendant upon assessing of presentable evidence before the court to ensure there is appropriate evidence. 

PROSECUTIONS SUBMISSIONS

16. The Prosecution made the subsequent submissions against the Defense case: - 

(i). Prosecution evidence is contained in the Police hand up brief filed on the 31st January 2020. Prosecution support their case on the witness statements and the whole evidence contained in the police file. Prosecution submits that the victim identified the Defendant as Richard Wamp who is also known as Casey,

(ii.) there are sufficient evidence where the committal court should establish a prima facie case against the Defendant; hence the evidence is convincing. 

(iii) the evidence and statements of the witness and the accused corroborates to connect to the charge although corroboration is not required for offence against the division of the provision where the Defendant is charged.

(iv) As a preliminary issue, Prosecution made submission pursuant to section 32 of the District Court Act that information holding the charge be amended and replaced with the wordings “Section 229B(2)” to “Section 229B(1)(a)”  of the Criminal Code (Sexual Offences and Crimes) against Children Act 2002.

Consideration of the Defence case

(17) I contemplate and answer to the Defense submission as follows:

(i). Defense case is that the victim unable to appropriately identify the Defendant since the victim named the Defendant as Casey and Richard Wamp. The evidence is that Casey is the same person that is known as Richard Wamp and hence the issue on identity is not relevant here; I will respond to the issue on identity later in my judgement. 

(ii) Defense submit that the victim is an epileptic patient and therefore her mother should have taken good custody or care of her whereabouts and she shouldn’t let the victim wonder around with people she does not know. Question of parental guardianship is unrelated here as it tends to deviate from the issue of evidence.

(iii) Submission from Defense that the information be struck out as it failed to capture the elements of the offence and only containing the definition of the offence. However, Prosecution made a preliminary application as part of their submission to amend this aspect of the information pursuant to Section 32 of the District Court Act and will expound on the effect of this provision later in my judgement. 

(iv) The evidence of the police corroborators and investigators only relates to the interview with the Defendant and the victim-there is no admission statement.

(v) The principal function of this court is only to examine the strength and weakness of the prosecution case based on what is in the Police Hand Up Brief and hence the court will make enquiry on whether there is appropriate evidence of the elements of Sexual Touching

Examination of Evidence in the Police File

18. The ensuing are the courts discussion on the elements of Sexual Touching: -

(i)A person- Police evidence must establish with evidence that a living person commits the crime of sexual touching.
 
(ii)For sexual purposes –Evidence provided by Police must authorize that incident is for sexual   purposes. For instances, the Defendant Richard Wamp touched a part of the body that is meant for sexual purposes and in this case it is the victim’s vagina. 

(iii)Touches- Police evidence must upkeep that the Defendant had actually touched the victims body 
(vi)Sexual part of a child- Police must establish in the evidence that the Defendant touched a sexual part of the victim. Section 229 B(2) of the of the Criminal Code (Sexual Offences and Crimes) against Children Act 2002 defines “sexual parts” including the genital are, groin, buttocks or breast of a person.

(v)The child is under 12 years’ old- Police evidence must provide that the victim is a child or under the age of 12 years’ old

19.  Defense submits that the information be struck out as it failed to capture the elements of the offence as it only contains the definition of the offence. Defense submits that the Defendant was wrongly charged under “Section 229B(2)” but the accurate provision should be “Section 229B(1)(a)” 

Evidence in the information is unbroken as elements of the offence of sexual touching is captured. However, prosecution has made a preliminary application as part of their submission to amend this aspect of the information pursuant to Section 32 of the District Court Act and I will rule on this first. The law on amending information is as follows:

 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.

Prosecution made an opening application as part of the submission to amend the information but the issue that I need to consider is would the amendment prejudice the Defendant? The court in State v William (No 1) [2004] PGNC 212; N2556 (28 April 2004) ruled that …..the Court has power to allow amendments to an information charging a defendant with an offence. That power is available and is exercisable at any stage of the proceedings but before judgment. I then concluded that, whilst it is within the powers of the Court to allow amendments, it must be exercised at the earliest possible, to avoid prejudice and therefore any injustice to the defendant…..

I noted judiciously that such amendment should be made before the judgement and also should not prejudice the Defendant. I am satisfied that the application to amend the information was made before the judgement and henceforward it is well within the regulation to consider for a ruling. I further note that the offence under which the Defendant is charged is Sexual Touching which the amendment does not alter nor displaces. The elements of the charges are not altered, they remained the same and it won’t prejudice the Defendant and henceforth an application to the amendment of information is considered and accepted

20. Defense case is that the Defendant is not the person that alleged to have committed the crime. Defense submits that the victim’s evidence disproves on who actually is the perpetrator of the crime. Defense states that the victim was unable to properly ascertain the offender as he was the one who actually committed the crime of sexual touching. Moreover, the Defense submits that the Police evidence does not connect the victim and the Defendant as relatives or known to each other and hence how could a stranger follow another stranger. Police evidence did not establish any relationships or what so ever with the Defendant and hereafter how could the Defendant from nowhere ask the victim to follow her. 

The general defense of identification must come with several qualifications as provided in the case of Bate v State [2012] PGSC 46; SC1216 (20 December 2012) and that is ….whether the witness is purporting to identify a person who was a stranger or someone he recognized and the length of time that the witness observed the accused…. The Defendant’s ROI confirms that at the time of the allegation he was at Taurama and someone has identified him and this is sufficient evidence to identity the Defendant and therefore in my view the Defendant is not a stranger to the victim and her relatives.

21.  The Defense submits that the victim is an epileptic patient and therefore her mother should have taken good custody or care of her whereabouts and she shouldn’t let the victim wonder around with people she does not know. The defense submission has no relevance to the issue of evidence as the question of parental guardianship is out of the confinement of this courts jurisdiction. What the committal court is functioned to do is to determine the sufficiency of evidence and nothing else.

22. Prosecution Case-Prosecution submits that there is sufficient evidence to commit the Defendant to stand trial in the National court. Prosecution trusted on the witness statements in the Police Hand Up Brief. Prosecution submits that all evidence supports the charge of Sexual Touching and therefore the Defendant be committed. A Defendant cannot be committed if there is inadequate evidence covering the elements of the offence. The case of State v Bernard [2010] PGNC 231; N4538 (25 June 2010) launches that even if there are evidence covering the elements of the offence, the evidence must not be tenuous since it will not make a case against the Defendant on evidence. The evidence provided in the Police Hand Up Brief by the prosecution must demonstrate a strong case against the Defendant. Thus, is the evidence contained in the police file establishes a strong case against the Defendant? It is this courts view that there is prima facie evidence against the Defendant.

23.  There is sufficient prima facie evidence on the elements of the charge of Sexual Touching under section 229B(1)(a)  of the Criminal Code (Sexual Offences and Crimes) against Children Act 2002.

CONCLUSION

24. I have considered the Defense and Prosecutions submissions on the issue of evidence and assessed both of them conforming to the laws and I find that there is sufficient evidence to progress a prima facie case to commit the Defendant to stand Trial in the National court for the charge of Sexual Touching under Section229B(1)(a) of the Criminal Code (Sexual Offences and Crimes) against Children Act 2002.

ORDERS

25.There is sufficient evidence to commit the Defendant 

Public Solicitors			For the defendant
Police Prosecutor			For the State