DC6019
PAPUA NEW GUINEA
[IN THE DISRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL (SUMMARY) JURISDICTION]

SUM 81 of 2021

BETWEEN

POLICE
(Informant)

AND

PRIMUS WAILIK
(Defendant)

Vanimo: B. Fehi
         2021: 02nd June

CRIMINAL SUMMARY: No case submission – Defendant denied charge of unlawful assault pursuant to Section 6 (3) of the Summary Offences Act – at the end of the police case accused counsel made no case submission – Principles in the case of State v. Paul Kundi Rape applied – First test of providing evidence to make up the elements of the offence not made out by the prosecution

CRIMINAL PRACTICE AND PROCEDURE: Child witness as key witness for the prosecution – Competency test required to be administered to satisfy the requirement under Section 6 of the Oaths, Affirmation and Statutory Declarations Act – Test administered and child witness considered being a competent witness to give evidence on oath.

Cases cited:

i.		State v. Paul Kundi Rape [1976] PNGLR 96; and
ii.		Police v. Bira [2010] DC 1090
iii.		Police v Mayani [2021] DC 6008
iv.		State v. Jubin [2018] N7726
v.		The State v. Boana Bonat [2016] N6217

Legislation:

•	Summary Offences Act

Representation:

Sgt. J. Musai for the Prosecution

P. Moses from the Public Solicitors Office for the Defendants

RULING ON NO CASE TO ANSWER SUBMISSION

02nd June 2021

1.	FEHI. B DCM: Defendant stands charged before me for one count of unlawful assault pursuant to Section 6 (3) of the Summary Offences Act. Matter was trialed and after the close of the Police case, defence made this no case submission.

RECORD OF PROCEEDINGS

2.	Sgt. Musai for the prosecution on 26th April 2021 presented the Police Information document before me bearing Summary File Number: 81 of 2021. I arraigned the defendant based on the information and he denied the charge. Matter was then set down for trial and adjourned to 07th May 2021 where Counsel Paul Moses from Public Solicitors’ Office in Vanimo verbally gave notice of his representation for the defendant. No application made by Counsel Moses, plea was consistent with his instruction; matter was then adjourned for trial to 10th May 2021. Police opened by producing two witnesses who gave oral testimonies on oath, after which they closed and the defence applied for an adjournment to make a no case submission. Application granted with the matter adjourned to 24th May 2021 for submission, however, this was not possible due to the non- appearance of the prosecutor. Matter further adjourned to 26th May 2021 where submissions were received from Counsel Moses on behalf of the defendant. I adjourned to 28th May 2021 to receive prosecution’s reply which Sgt. Musai did and both parties agreed for matter to be set down for ruling. I consider it appropriate and set the date for ruling on 02nd June 2021.      

3.	I now provide hereunder the full ruling on the no case submission.

POLICE SUMMARY OF FACTS 

4.	The police alleged that on the 04th of January 2021 both the Defendant and victim where at Baro, Vanimo West Coast, West Sepik Province. It follows that at that material time the defendant called the victim (who was a child between the ages of 8 to 10 years old) who went over to him from her parent’s house. Whereupon he took the victim into a classroom under the pretext of checking her ears, he instructed her to sit down on a chair placed in front of him, he was also sitted with his two thighs opened facing the victim. In that position defendant repeatedly checked victim’s ears on both sides. At this point, it was alleged that the defendant told her to stand up while he walked over to the classroom door to check if there were other persons around, after which he returned to where he was sitted while the victim was still in her standing position, he then told her to spread her legs, he pulled her shorts down with her panties and used his hands to touch her anus and virgina. The victim felt pain and refused to spread her legs further at the direction of the defendant. At this point the defendant removed his hands, moved the chair and got the victim to follow him out of the classroom. Afterwards the victim reported to her mother what the defendant did to her and her mother laid a complaint to the police resulting in this proceeding.       

PRINCIPLES OF LAW APPLICABLE IN A NO CASE SUBMISSION

6.	I note with approval defence reliance on the principles under The State v. Paul Kundi Rape [1976] PNGLR 96, the case credited with giving within our jurisdiction a reference point for such an application. I also observed in my earlier judgment in Police v Mayani [2021] DC 6008, the development of this principle and the need for the lower courts to reduce its complex application to a more simplified form. To emphasis this I adopted the observations of Murray J, in the case of The State v. Boana Bonat [2016] N6217. Her Honor in her judgment provided a simple summary of the relevant tests applicable to a no case submission. Borrowing from what I stated in paragraph 22 of Police v. Mayani (Supra), simply put, the requirement at this stage is for police to firstly show that they have enough evidence on respective elements of the offence, if they satisfy this test, its upon me as a tribunal of fact and law to assess the quality and relevance of these evidences after the necessary challenges through cross-examination.  

THE OFFENCE   
	
7.	The Charge from which the defendant appears before me was laid pursuant to Section 6 of the Summary Offences Act. This section provides:

		6. ASSAULT.
[2](1) In this section, “applies force” includes the application of heat, light, sound, 	electrical force, gas odour or any other substance or thing if applied to such a degree as to 	cause any injury or personal discomfort.
	(2) For the purposes of this section, a person who–
	(a) strikes, touches, moves or otherwise applies force of any kind to the person of 	another, either directly or indirectly, without his consent, or with his consent if the consent 	is obtained by fraud; or
	(b) by any bodily act or gesture, attempts or threatens to apply force of any kind to the person 	of another without his consent, under such circumstances that the person making the 	attempt or threat has an actual or apparent present ability to apply such force,
	is deemed to assault that person.
	(3) A person who unlawfully assaults another person is guilty of an offence.

8.	The Police as per the above provision have called 2 witnesses who individually gave evidence on oath. I will briefly state hereunder the police case and apply the no case submission test and weigh it against the submission of the defence counsel. 

THE POLICE CASE 

9.	The prosecution key witness is a child witness, given her status and as a matter of best practice I must before proceeding to obtain her testimony satisfy myself of her competency to give evidence on oath.  That is, the requirements to conduct on the child witness a competency test. To do this, I borrow and apply the observations of Susame AJ (as he was then) in the State v. Jubin [2018] N7726, were his Honor explained the basis to conduct such a test and the principle behind this applied overtime by the higher courts. I borrow and apply as relevant paragraph 32 and 33 of his Honor’s judgment and the observations contained therein:

	“32.	Notwithstanding that, guidelines have been established by case authorities of the 	need to conduct a competency test. This is in observance of Section 6 Oaths, Affirmation and 	Statutory Declarations Act Ch.317. By law that inquiry is necessary to ascertain whether the child 	comprehends the nature of oath and understands the consequences of giving false testimony 	under oath. If such an inquiry or examination is not done admissibility of evidence is questionable 	and cannot be relied on (Rolf Schubert v The State [1979] PNGLR 66, Java Johnson Beroro v The 	State [1988-89] PNGLR 562). The principles have been time and again adopted and applied by the 	courts over the years including the case of The State v Amos Jonathan [2009] PGNC 153 N3764 (22 	October 2009). I have considered and applied the principle in a couple of cases I dealt with, one of 	which is The State v Baaf Tatawa (2018) N7245 (11th May 2018).    

	33.		The competency test was again conducted in this case. Child witnesses WM & AK 	understood the nature of oath. Each of them understood it was wrong to tell lies and that they 	would be punished for telling lies. Court considered both as competent witnesses and had them 	sworn.” 

10.	Subject to the above the victim whom I will be referred to as WT appeared with her parents before me. All other persons within the court room were removed by the prosecutor upon my direction. Also Counsel Moses was asked to disrobe which he did and his client the defendant was directed to sit at the back of the court room out of sight from WT’s view. Having satisfied myself of this, I asked the father of WT to bring her in front of the bar table, the prosecutor and defence counsel sat at their usual sport on the table, WT sat on the side of the table on my left facing the witness box with his father beside her.    

11.	I asked WT if she goes to church with her parents and she replied yes. I asked her if she knows what the book in front of her is and she replied that it is the Bible and it is Jesus Christ’s book. I asked her if it was right or wrong to tell a lie and she replied that it is wrong. I asked her if she knew what will happen if she tells a lie and she replied that Papa God na Jesus bai nonup hamamas (Heavenly Father and Jesus will not be happy) and that she will be punished and sent to hell. Through her replies, I am satisfied that the witness understood it was wrong to tell a lie and also the nature of the oath. She also understood that if she tells a lie she would be punished for doing so. I consider WT as a competent witness and the prosecutor proceeded to administer the oath on the witness. 

12.	WT after being sworn in stated in her evidence that at the time of the offence she was called by the defendant to go see him. She got up from where she was sitted under her parent’s house and went over to him. Defendant then took her into the office. They both went into the office and defendant then told her to sit on the chair.  She said she stood in front of him and he checked her ears to remove water from it, and she returned back and he removed the tissue. He checked her ear again the second time and remove the tissue he had put in earlier. She stated that he repeated the same to her other ear and told her to go and sit down for a short while. Then she said she could not recall what happened next, she forgot everything that happened afterwards.   

13.	Prosecution through their introductory questions asked WT if she can still remember what happened at the date and time of the alleged assault on her by the defendant. She replied saying that she can recall but the story she is confused a bit because it happened some time ago. She said further that she can tell the story from the start but from the middle onwards she is confused and cannot tell these parts of the story before the court. WT still maintained through examination in chief that she cannot recall what happened afterwards apart from what she was able to tell the court. 

14.	When cross-examined, WT maintained that the defendant checked her ears inside the office and not outside as suggested by the defence. She added also that she came out after the defendant checked her in the office and saw defendant’s son Nigel walking towards the office.  

 15.	The second police witness was Grace Tandros the mother of WT. She gave the following testimony on oath and started by saying that on the 04th January 2021, she and her husband came to town to look for a vehicle. They left the kids at home and return back around 4:30pm. In the night she realized that WT was having difficulty sleeping, she inquired and was told about what the defendant did to her. According to witness, WT mentioned to her that the defendant told her to go for him to check her ears. WT repeated that story five times. WT also mentioned her siter Susana, Susana went to the beach and herself she went to the house. WT continued her story and told her that defendant checked her ears and then loosen her trousers, pushed it down and touched her vagina. She felt pain and told him to stop. The defendant removed his hands from her and instructed her that when she goes to the village where there are lots of rivers, she must look after her ears. After which WT said she went home and told her small sister Susana about what the defendant did to her. The witness stated that as a mother she noticed WT was having difficulty sleeping and also both she and her husband where in town when the defendant checked her and that it was done without their consent. Witness concluded by saying that she forgot to take WT for medical checkup at the clinic, her father took her after one or two days for checkup.        	 

16.	When examined in chief by the prosecutor, witness stated that WT told her that defendant also touched her anus, when cross-examined witness replied that she did not check WT right after she told her of what had happened. She also confirmed that her husband took WT to Baro Clinic for check and when defence counsel showed her a copy of the medical report she confirmed that that was the report prepared for her daughter. She also confirmed sighting and understanding the contents of the report. She denied that WT made up the story and maintained that she told her the truth. When questioned about a previous incident were WT lied  in making similar allegations to defendant’s son Nigel which resulted in him hitting her, she confirmed having knowledge of that incident. She also confirmed that 2 weeks prior to the date of the incident, she did gave permission to the defendant to check WT’s ears and also she agreed with counsel that defendant is employed with Callan Services a church run organization providing, inter alia, ear examination services and defendant was authorized to perform such checks. She further maintained that her daughter told her that defendant checked her ears inside and not outside the office. 

17.	The prosecution closed their case after calling the above two witnesses. Defence than sought an adjournment which I granted and filed before me a written submission on no case to answer. Thereafter prosecution replied. I have the benefit of reading both submissions and will now address the relevant points here under in my findings and decide whether to uphold the defence submission and discharged the defendant or to allow the trial to continue. But firstly, I must set out the relevant issues for my consideration.

RELEVANT ISSUES

18.	The following is what I consider to be the main issues for my consideration:

A.	What are the elements of the offence of assault;

B.	Whether the prosecution have provided sufficient evidence to make out each of the element of the offence;

C.	If so, whether I should allow trial to continue on the evidence as it appears after challenges by the defence.

FINDINGS ON THE ISSUES

19.	To answer issue one, that is, what are the elements of assault, I find relevant and apply what His Worship Kaumi (as he was then) identified and outlined in Police v. Bira [2010] DC 1090, were his Worship at paragraph 65 sated:  

“65.	The defendant has been charged with unlawful assault and the prosecution must prove beyond reasonable doubt that –

	(i)	the defendant
	(a)	directly applied force of some kind to the person of another;

OR(b)	indirectly applied force of some kind to the person of another;

OR(c)	by bodily act or gesture attempted to apply force of some kind to the person of another when he either had or appeared to have the ability to apply such force;

OR(d)	by bodily act or gesture threatened to apply force of some kind to the person of another when he either had or appeared to have the ability to apply such force;

AND
	(ii)	EITHER

	(a)	The other person did not consent to what the defendant did;

OR(b)	the other person did not consent but only because of a false representation of fact made by the defendant who either knew it was false or acted recklessly, not caring whether it was true or not;

AND
	(iii)	The defendant had no lawful excuse or justification for his act.

They are the elements of the offence. They are subject to three things. Firstly, the offence requires the prosecution to prove that the defendant, inter alia, directly applied force of some kind to the person of another. Secondly, that the other person did not consent to what the defendant did. Thirdly, the defendant had no lawful excuse or justification for his act.”	

20.	In addition to what His Worship identified, I will also include a further consideration and that is, there must be on the victim some form of injuries or the feeling of some form of discomfort. The foregoing to my satisfaction are the elements of the offence of assault. 

21.	As for issue 2, the question of whether the prosecution has provided sufficient evidence to make out each of the elements of the offence requires a full analysis of the defence submission and the prosecution’s evidence together with their reply to the submission.

22.	Counsel Moses for the defence through his written submission at paragraphs 11, 12, 13, 23, and 24 submit for the court to assess and find in their favor that the prosecution’s key witness WT, despite being a competent witness failed in her testimony to give a clear account of what the defendant did to her. Given this, counsel submits that the mother, prosecution’s second witness cannot give evidence to make up for what WT did not say in court. This I make out to be the crux of the defence submission and I need not venture further, as I accept the entirety of their submission was aimed to achieve this point of emphasis.

25.	The prosecution through their submission submitted that what WT stated in court is sufficient enough for her mother to give the full version of what the defendant did to her and on their testimonies’ the court should allow trial to continue and dismiss the no case submission.

26.	I remind myself that this is a no case submission and not submissions after conclusion of trial proper. My assessment of the evidence and respective arguments must be strictly within the parameters of the principles in Paul Kundi Rape. In doing so, I find that the prosecution’s key witness WT was a competent witness, through the application of a competency test, which I did. I also find that the environment was not intimidating in any way so as to affect the way she gave evidence in court. I also observed through her demeanor that she was relaxed and was in no way intimidated by the presence of the defendant. She clearly through her evidence called the full name of the defendant not once but several times. I have no reason to believe that whatever WT failed to provide in court through her testimony was because of the environment she was in when giving evidence.

27.	Having addressed this, I now consider what WT described in her testimony. I must say, it is clear that she forgot all the crucial aspect of the allegation, whether it was deliberate or not on her part, it is not for me to asses at this stage. What is apparent in her testimony is that there were no descriptions whatsoever implicating the defendant on most if not all of the key elements of the offence. Such as, the touching of her vagina and anus by the defendant with his hands and whether she hand suffered some form of discomfort of injuries to her body. Without a foundation set by the victim, her mother in my view cannot provide evidence to make up for whatever WT failed to say in court. As I have alluded to, WT is a competent witness giving her testimony in conducive environment free from any duress or intimidation. 

28.	Therefore, I must answer issue two in favor of the defence for the prosecution has failed to provide sufficient evidences to make out the elements of the offence of assault. Given this, it is not necessary for me to address issue three, for such will serve no purpose.     

CONCLUSION   

29.	Defence no case submission on behalf of defendant Primus Wailik is sustained.

30.	I must say at this stage, that I am not satisfied with the level of professionalism shown by the police throughout the course of this preceding, in particular the arresting officer. The allegations concerns sexual assault of a minor by a person in a position of trust and should be appropriately dealt with through the committal process by laying on the defendant the appropriate charges provided for under the Criminal Code Act. For whatever, reasons unbeknown to this court, this matter came before me through a Police Information carrying the charge of assault. I gather from the parents of the victim during the course of this proceeding that they were accorded no time and facilities to properly prepare themselves for trial, this I find relevance to the way WT gave evidence before me. The case in my opinion should have been properly investigated, if that was so, the outcome in my view will be different. I feel for the parents of such victims who tried to access justice for their children but yet the system keeps on failing them.  

31.	I suggest in the best interest of justice that the appropriate heads within the police command here in West Sepik Province see to it that something is done and for this matter request the arresting officer in writing to explains why this course was taken in view of the appropriate options available to him. Justice will truly be realized and the users of our system will find it worthwhile to access our services if we can prove to them that we can effectively perform our respective roles to serve their interest.

32.	However, my above views are observed outside of the findings I have made, insofar as this no case submission is concerned and therefore conclude by issuing the following orders under my hand:

COURT ORDER:

A.	No case submission sustained in favor of Defendant Primus Wailik with him discharged from the 	charge of assault.

B.	The whole of the proceedings instituted through the police information is dismissed in its 	entirety; and

C.	Bail to be refunded forthwith.