DC6017
Papua New Guinea
In the District Court
Held at Waigani
Sitting in its Committal Jurisdiction

Comm. No. 30 of 2020
BETWEEN:
THE POLICE
Informant

AND:
JONATHAN JOHN
Defendant

Port Moresby: T. Ganaii, SM

2021: 28th January, 23rd April 

COMMITTAL PROCEEDINGS – Practice and Procedure - One count of Sexual Penetration under section 347 (1) of the Criminal Code Act – Phase One of the Committal Process - Ruling pursuant to section 95 of the DCA - Sufficiency of Evidence to commit to trial on all elements of offence of Sexual Penetration – Evidence is sufficient on all the elements of charge of Sexual Penetration to commit Defendant to trial
COMMITTAL PRECEEDINGS – Practice and Procedure – Sufficiency of Evidence on element of Consent by a mentally and physically retarded victim – Evidence of her own story to the Police that the defendant held her hands, led her to a secluded spot, undressed her, separated her legs and sexually penetrated her is sufficient to make out a prima facie case of consent not being free and voluntary 

COMMITTAL PROCEEDINGS – Practice and Procedure – Phase two of the Committal Process - Ruing after an examination under Division 1 of Part VI of the DCA and after receipt of a Section 96 statement - Ruling pursuant to Section 100 of the District Courts Act
COMMITTAL PROCEEDINGS – Practice and Procedure - Nothing in the Section 96 statement affects the court’s ruling under section 95 on sufficiency of Evidence – Ruling that there is sufficient evidence to commit to trial is intact – There is sufficient evidence on the elements of the charge of Sexual Penetration including free and voluntary consent to make out a prima facie case against the defendant - Evidence is sufficient to put the defendant on trial - Defendant is committed to stand trial in the National Court on one count of Sexual Penetration under section 347 (1) (a) of the Criminal Code Act
Cases cited:
Akia v Francis PGNC 335; N6555 
Maladina v Principal District Magistrate Posain Poloh [2004] PGNC 208
R-v- McEachern [1967-68] PNGLR 48
The State v. Kai Wabu [1994] PNGLR 94 (Injia, J)
The State v Roy Dujambi (2017) N6894,  Judgment Delivered on 28 June 2017
The State v Venancius Waima(2004) N2578, Judgment Delivered on 19 March 2004
Yarume v Euga [1996] PGNC 24; N1476

Overseas Case 	 Nil 

References 		 Nil

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

Counsel
Police Prosecutor, Peter Samghy			For the Informant
Ms. C. Bomai, Public Solicitors Office			For the Defendant 	

	RULING on SUFFICIENCY of EVIDENCE and 
RULING PURSUANT to SECTION 100 of the DCA

2021: 	28th January, 23rd April

Introduction
Ganaii, SM		This is a ruling on whether a prima facie case is made out within the meaning of Section 95 (1) of the District Courts Act (DCA) where all the evidence of the Prosecution is received in the form of a Police Hand Up Brief (PHUB) and the Court is required to consider whether it is sufficient to put the defendants on trial. 

2.	This ruling also covers the administration of section 96 of the DCA and final ruling pursuant to section 100 of the DCA after the receiving of a section 96 statement.  

Charge
3. 	The defendant Jonathan John Adult Male, from Kaket Village, Dei Council District, of Western Highlands Province stands charged that he on the 15th day of December 2019 at Stage Five, Gerehu, NCD is charged that he

Did sexually penetrate another person  namely SK without her consent

Thereby contravening section 347 (1) (a) of the Criminal Code Act. 

Facts 
4. 	Defendant is 23 years old and resides at Stage Five, Gerehu suburb of NCD. The victim is a person living with a disability. According to the medical report and school for special needs report, she suffers from mental disability and epilepsy. She is 19 years old and lives on medication for her disability. She resides with her father at Gerehu, Stage Five and attends the Red Cross school at Hohola, NCD. 

5.	On Sunday 15th of December 2019 the accused was under the influence of alcohol and approached the victim. He pulled her by her hand into a wrecked car in the yard. He forcefully removed her trouser, separated her legs and forcefully penetrated her. The victim’s father caught the defendant and reported to the Police. The victim reported to the Police in her statement that the defendant raped her. 

6.	Police say that the victim did not consent under the circumstance. The defendant was therefore arrested and charged with one count of rape under section 347 (1) of the CCA.  

Issue
7. 	The issue before this court is whether a prima facie case is made out and that is whether the evidence received from the Prosecution is sufficient to warrant the committal of the defendant to stand trial at the National Court on the charge of sexual penetration. 

8.	 The sub-issues are whether there is sufficient evidence on each of all the elements of the offence of sexual penetration and whether the witness statements are admissible.

The Law
The law on Committal Proceedings

9.	Part VI of the District Courts Act provides the legal basis for committal proceedings specifically under Section 94 to Section 100 of the District Courts Act.

10.	The Committal Process whilst requires the Court to make a finding on the evidence presented by the Police, this process is very administrative in that the Court need only to form an opinion that there is a bona fide prima facie case against the Defendant; as per Akia v Francis and R-v- McEachern.

11.	 In the matter of Maladina v Principal District Magistrate Posain Poloh  His Honour Injia DCJ (as he then was); expressed in his opinion that the Committal process involves two phases, the first is when the Committing Magistrate makes a finding on whether or not there is sufficient evidence and whether a prima facie case is made out under Section 95 of the District Courts Act and the second being when a further finding is made under Section 100 of the District Courts Act on whether to discharge or commit the Defendant only after the Court administers an examination of a Defendant under Section 96 where the defendant is asked whether he desires to give evidence.
12.	Furthermore, in the case of Yarume v Euga the National Court said in respect to committal hearings that the process of committal requires proper and reasonable assessment of the evidence with a view to see whether all the elements or ingredients of the offence is present before he can commit the accused; Section 94B, 94C, 95 and 100 to be read together.
Evidence In Written Statement
13.	Section 94C requirements in the committal process must be fulfilled and is in the following terms:

 94C. 		Regard to Evidence, Etc.
(1) When conducting a committal hearing under this Part, the Court may, subject to Subsection    (2), have regard to–
(a) the evidence contained in a written statement; and 
(b) documents and exhibits,
of which a copy has been served on the defendant under Section 94(1) or made available for inspection under Section 94(2).
(2) Before admitting a written statement, the Court shall be satisfied that the person who made the statement had read and understood it, or if unable to read, had had it read to him in a language that he understood.

14.	The case precedent on this principle of law in relation to written statements is in the case of The State v. Kai Wabu. In this case the court held that the combined effect of ss 94 (1A) and 94C (2) of the DCA is that the committal Court must conduct an enquiry to ensure that the makers of statements had full knowledge of the contents, correctness, and truth of written statements they are responsible for signing. This requirement is mandatory and requires strict compliance. This enquiry is an independent one, which the Court must conduct in the exercise of its judicial function. The court further stated that after having conducted the enquiry, the Court has the discretion to admit or reject the written statement. The Court must then record the nature and extent of the enquiry conducted and record its findings. A failure to conduct such enquiry and record its finding may result in voiding the committal. 

The law on the offending provision
347.	Definition of rape.
(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.

(2)	Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section 19, to imprisonment for life.

347A.		Meaning of consent.

(1)	For the purposes of this Part, "consent" means free and voluntary agreement.

(2)	Circumstances in which a person does not consent to an act include, but not limited to, the following:—

(a)	the person submits to the act because of the use of violence or force on that person or someone else; or
(b)	the person submits because of threats or intimidation against that person or someone else; or
(c)	the person submits because of fear of harm to that person or to someone else; or
(d)	the person submits because he is unlawfully detained; or
(e)	the person is asleep, unconscious or so affected by alcohol or another drug so as to be incapable of freely consenting; or
(f)	the person is incapable of understanding the essential nature of the act or of communicating his unwillingness to participate in the act due to mental or physical disability; or
(g)	the person is mistaken about the sexual nature of the act or the identity of the person; or
(h)	the person mistakenly believes that the act is for medical or hygienic purposes; or
(i)	the accused induces the person to engage in the activity by abusing a position of trust, power or authority; or
(j)	the person, having consented to engage in the sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity; or
(k)	the agreement is expressed by the words or conduct of a person other than the complainant.

(3)	In determining whether or not a person consented to that act that forms the subject matter of the charge, a judge or magistrate shall have regard to the following:—

(a)	the fact that the person did not say or do anything to indicate consent to a sexual act is normally enough to show that the act took place without the person's consent; and
(b)	a person is not to be regarded as having consented to a sexual act just because—

(i)	he did not physically resist; or
(ii)	he did not sustain physical injury; or
(iii)	on that or an earlier occasion, he freely agreed to engage in another sexual act with that person or some other person.

Elements
15.	In the case of The State v Venancius Waima, Kanadakasi J, stated that from the language used by Parliament, the following are the elements that make up the offence of rape:
(1)	A person who:
(2)	Sexually penetrates;
(3)	Another person;
(4)	Without that person’s consent.

16.	In the case of The State v Roy Dujambi the issue at trial was one of consent to an act of sexual penetration where the victim was mentally retarded. In finding the defendant guilty, Miviri, J, held “that the defendant had sexually penetrated SD, a mentally retarded person, and that there is no reasonable hypothesis other than that of not consenting, as she [ the victim] was incapable of consenting or giving her consent due to her disability”. The essential element therefore is one of free and voluntary consent under the circumstance where the victim was mentally and physically retarded.  

Prosecution Case
17.	 To prove its case, the Prosecutions produced five (05) witness statements. The names of the witnesses and a brief of their evidence are as follows:

1)	SK – this witness is the victim. She states that someone approached her, held her hands, led her away, undressed her, opened her legs apart and sexually penetrated her.

2)	Torokowa Kisi – This witness is the victim’s biological father. He caught the defendant. He assaulted him and reported him to the Police.  

3)	Dr James Tony – Is the Doctor from PMGH. His evidence is that upon examination of the vagina, he found that there was suspected presence of sperm that needed to be confirmed and the hymen was absent. 

4)	F/C Lynette Namia– Is a police woman attached to the Sexual Offences Squad, Boroko Police Station. She was involved as a Corroborator in the conduct of the Police Interview with the defendant. 

5)	Constable Cathy Peter – This witness is a Police Woman attached to the Sexual Offences Squad of the Boroko Police Station. She is the investigating officer in the case responsible for conducting investigations, obtaining witness statements and documentary exhibits, the arrest and charge, the conduct of the Police Interview against the defendant and preparation of and service of PHUB. 

 Documentary Evidence:
18.	In support of its case the prosecutions relied on the following documentary evidence:

1)	The ROI, Pidgin and English versions, dated 19th December 2019. The ROI contains admissions to sexual intercourse. Defendant stated that the victim consented to sex and denies that he pulled her away and sexually penetrated her without her consent. 

2)	The Medical Report – This report is dated 18th December 2019 and stated that the victim was epileptic, and mentally disabled with cerebral palsy. Vaginal examination showed suspected semen, hymen was absent and vaginal swab was taken and sent for spermatozoa isolation. 

3)	 Letter from Red Cross – Was written by the co-coordinator of Inclusive Education dated 19th December 2019. It confirms that the victim was a student registered with special needs (physical disability) and attending the institution and  

4)	Antecedent	Report	Contains the personal particulars of the defendant and history of prior convictions (if any). Prior convictions if any is not relevant for now. 

Defence Submission
19. 	The defence submitted in an amended submission filed on the 13th of October 2020 as follows:

1)	The act of sexual penetration was consensual;

2)	The victim consented to sexual intercourse as she did not put up resistance and there would have been people around to see and hear her if she resisted or shouted for help;

3)	The victim showed implied consent in her statement;

4)	Mr. Kisi, the father of the victim gave a statement based on his assessment of the appearance of the victim. He did not see what happened;

5)	In his answer to a question in his ROI, the defendant said the victim whistled and signaled him with his eyes and hands telling him to go to her;

6)	In conclusion, there was no force used. The act of sexual intercourse was consensual and the elements of Rape is not made out.   

Prosecution Submission
20.	The prosecutor informed the court that they will only do verbal response. They submitted as follows:  

1)	The victim has a physical disability according to the letter from Red Cross and mental condition according to the medical report. The medical report describes the physical condition as epilepsy. It may not have been true that given both her physical disability status and mental state of mind that she would have whistled, signaled and invited the accused to have sexual intercourse with her;

2)	According to the father’s statement and the medical report the victim suffers a medical condition and could not have been able to give free and voluntary consent. 

3)	As such, on the element of consent, the act of intercourse was not free and voluntary.  

Consideration of  Submissions and Analysis of the Evidence
21.	 The court has considered both submissions in the light of the evidence in the Police HUB and makes the findings below.
1)	The witness statements conform to the rules in Section 94C of the DCA and the principles enunciated in Kai Wabu’s case. The statements are admissible.

2)	There is no issue on the act of sexual penetration and identification or involvement of the defendant. However, the prosecution still has the onus to prove each and every element of the offence of sexual penetration.

3)	The victim’s statement and the defendant’s answer in the ROI contain evidence of act of sexual penetration. The medical report to some extent also confirms the act of sexual penetration by absence of hymen and possible presence of sperm.

4)	On involvement and identification, the victim only says ‘a boy’ when referring to the person that held her and took her away. The victim’s father’s evidence shows that he caught the defendant with the victim and assaulted him. He reported him to the police. There are admissions in the ROI. The elements of identification and involvements therefore are made out.

5)	The only issue is one of consent and whether it was free and voluntary given under the circumstance that the victim was mentally and physically retarded.

6)	The law explains what consent is and what it is not. In section 347A of the CCA (as amended), when a person submits to the act of sexual penetration because of fear of harm; if the person is incapable of understanding the essential nature of the act or of communicating his unwillingness to participate in the act due to mental or physical disability; or the accused induces the person to engage in the activity by abusing a position of trust, power or authority, there cannot be consent that is free and voluntary. The case law of The State v Roy Dujambi is applied. 

7)	In the present circumstance, there is sufficient evidence showing that the victim was both mentally and physically impaired. These evidence come from the special needs school she attended; from the medical report and from the victim’s father. In this circumstance, it is noted that the victim was not a normal person and would not have been able to think and react in the normal way that normal people do.

8)	If the victim’s story is presented as it was, that is to the effect that she was “held by the hands, taken away, undressed, had her legs separated  and then sexually penetrated”, in my respectful view, that is sufficient for the court to find that for someone of the victim’s mental and physical state, she would not have been in a better position to consent or express no consent, and that in itself was enough  to show the presence of the element of non-consensual sexual intercourse. 

9)	In my respectful view, in the determination of whether or not consent was  ‘free and voluntary’, it will be a matter for trial proper for the trial judge to ascertain further from facts surrounding the alleged act of intercourse in the specific circumstance of the case. 

10)	At the standard where I sitting as a committal court, making an enquiry on a prima facie case, and am required to determine if the evidence as it stands is sufficient on the element of free and voluntary consent, I am of the view that there is sufficient evidence based on the manner in which the story of the victim was told to the police by the victim herself. 

11)	Of course, the other issue at trial would be for the trial judge to ascertain how the statement of the victim would have possibly been obtained by the arresting officer when the evidence says that she was mentally and physically retarded. For now, this was not raised as an issue by the defence. I did not see the need to conduct an enquiry as I accept that at paragraph 3, line 2 of the witness statement of the arresting officer, Cathy Peter, she had mentioned that she had obtained the statement of the victim on the 18th of December 2019, and that was the same date she had arrested the defendant.   

12)	Further, on the issue of consent, I note particularly that the victim’s statement did not say:  “I held his hand; we went away, I undressed, I separated my legs and we had sex”, but rather, she said the defendant did all of that. In this circumstance the matter must go to full trial for a proper determination on the issue of ‘free and voluntary consent’ and whether the victim understood the nature of the act of sexual penetration. 

13)	Further, I note the fact that the victim suffers from a mental and physical disability which may hinder her ability to properly and freely communicate both physically by her actions and signs and through words on her unwillingness to participate or withdrawal of consent to participate if that is the case.  

14)	On this basis, I find that there is sufficient evidence that consent may not have been “free and voluntary”. This is a matter that must go to trial for a fuller determination on the issue.

15)	I find that the other elements of the offence of sexual penetration which are the act of sexual intercourse or penetration and identification or involvement of the defendant have been made out and there is sufficient evidence on these elements to make out the charge. 

16)	All in all, there is sufficient evidence to make out a prima facie case against the defendant on the charge of sexual penetration.   

Findings
22.	The court makes the finding that there is sufficient evidence against the defendant on the elements of identification, involvement and sexual penetration without consent where “consent was not free and voluntary” under the circumstance of the case where the victim was both mentally and physically impaired.

23.	Consequently, the court finds that there is sufficient evidence on all of the elements of the charge of sexual penetration under section 347 (1) (a) of the CCA, to commit the defendant to trial.  

Conclusion 
24.	 I have made an assessment of the evidence in the PHUB and considered both parties’ submission on sufficiency of evidence. I find there to be sufficient evidence to make out a  prima facie case against the defendant to put him on trial for the charge of Sexual Penetration  under section 347 (1) (a) of the CCA . 

Administration of Section 96
25.	After the requirements of section 96 were explained to the defendant which he understood, he opted through his lawyer to write and file a written statement.

26.	The matter was adjourned and a statement was filed filed on the 09th of February 2021. The statement was not made under oath. The statement was signed by the court. 

27.	In summary, the defendant stated the following:

1)	The victim called and invited the him to approach her; 

2)	When the he approached her, she told him to go into the wrecked car;

3)	She then caressed him and kissed him; 

4)	She then removed her own clothes;

5)	The defendant  than had sexual intercourse with her; 

6)	The victim heard her father calling and got dressed. She told the defendant to stay where he was. She went out and closed the door of the wrecked car;

7)	The father of the victim saw the victim coming from the wrecked car. He found the defendant in the wrecked car and beat him up saying the defendant had raped his daughter; 

8)	At the time of the sexual intercourse, the defendant was unaware that the victim was an epileptic patient;

9)	The victim was behaving like a normal person. 

28. 	Based on the above, the defence submitted that there was consensual intercourse and the element of no consent is not made out. 

29.	After reading the defendant’s section 96 statement I consider that the defendant has not raised anything new that should affect the ruling on prima facie sufficiency of evidence. He maintained the defence of general denial to no consent under the circumstance of the case. 

30.	His story on the actions of the victim in consenting is a matter for trial proper. The ruling that there is sufficient evidence to make out a prima facie is intact. The defendant’s section 96 statement is transmitted to the National Court.

Final Orders
31. 	The final orders are as follows:
1)	There is sufficient evidence against the defendant to commit him to stand trial in the National Court on the elements of  one count of Sexual Penetration under section 347 (1) (a) of the CCA;

2)	The defendant is committed to stand trial in in the National Court on count of Sexual Penetration under section 347 (1) (a) of the CCA;

3)	The defendant is to appear at the Waigani National Court, Criminal Listings on the Monday the 10th of May 2021, at 9:30 am for mention and 

4)	The defendant is remanded in custody. 

Police Prosecutor:					 For the Informant
Ms. C. Bomai, Public Solicitors:		For the Defendant