DC8080

Papua New Guinea
 
[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS COMMITTAL JURISDICTION
 
COM NO 178-180 OF 2021
CB NO 156 FO 2021
 
BETWEEN:
 
RACHAEL PINDA
 [Informant]
 
AND:
 
PHILMON SORA
 [Defendants]
 
Waigani: Paul Puri Nii
 
21th April 2022
 
COMMITTAL PROCEEDINGS: Charges-Sexual Penetration-Section 229A(1)-Abuse of Trust-Section 229E(1) and Sexual Touching-Section 229B (1)–Criminal Code Act. Witness statements- State witness statements- proper formation of prima facie evidence - elements of the charges supported–Evidence is corroborated regardless- Defendant committed to stand trial.
 
PRACTISE AND PROCEDURE: Control and management of evidence under Section 95 of the District Court Act. Court’s Jurisdiction-Complainant sexually penetrated and touched by the Defendant- evidence of sexual penetration and Sexual Touching-Defendant sexually penetrated the victim and sexually abused her -elements of balanced and examination. Evidence of Sexual Penetration proven sexual touching but not abuse of trust.
 
PNG Cases cited:
 
Akia v Francis [2016] PGNC 335; N6555 
Police v Koupa [2020] PGDC 13; DC4065

Overseas cases cited: 
 
NIL
 
REFERENCE
 
Legislation
Criminal Code Act 1974, [Chapter 262]
District Court Act 1963, Chapter 40
 
Counsel
Police Prosecutor:             Joseph Sangam                 For the Informant
Defendant:                        In person                           For the Defendant

DECISION ON COMMITTAL 
 
21st April 2022
 
INTRODUCTION

NII, P. Paul Magistrate. Decision in admiration to the police evidence under Section 95 of the District Court Act. On 10th March 2022, Defendants and accused asked the court to go through the police file and make a ruling on evidence. I have gone through the police file that was served to the court on 3th of June 2021 and thus now is my ruling on evidence.
 
CHARGE
                                    
1.	 Accused is charged with Sexual Penetration under Section 229A(1), Abuse of Trust under Section 229E(1) and Sexual Touching under Section 229B(1) of the Criminal Code Act. The essentials of the charge are below:
229A. Sexual Penetration of a child.
[1](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 Subsection (2) and (3), imprisonment for a term not exceeding 25 years.
 
229E. Abuse of trust, authority or dependency.
 
[2](1) A person who engages in an act of sexual penetration or sexual touching of a child between the ages of 16 and 18 years with whom the person has an existing relationship of trust, authority or dependency is guilty of a crime.
229B. Sexual touching.
[3](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 accused person’s own body, is guilty of a crime.
 
BRIEF PARTICULARS
 
2.	The defendant is aged 43 years and from Yagusa village of Okapa in Eastern Highlands. At the time of the allegation the defendant was the victim’s neighbour. The victim is aged 10 years and from Western Highlands Province and attends ST Pauls Primary school and lives with her parents at Gerehu stage 4 in NCD. The victim alleges that in October 2019, when she was 8 years old, the Defendant invited the victim to follow him up to a secluded location where she would play games on his phone. Believing that she would play games as most children around the victim’s age are obsessed with phone games these days, the victim followed the accused until they arrived at the location. The location was some few meters away from the victim’s home at Grerehu stage 4. NCD. 
 
3.	Police statement says as preplanned by the defendant, he forcefully held the victim against her will and removed her clothes. The victim children resisted but could not do much as she was overpowered by the Defendant’s strength who later pushed her to the ground and sexually penetrated her by inserting his erected penis into her vagina. After the allegation the defendant threatened the victim not to tell her parents or else he would kill her and her parents. The poor victim out of fear that she and her parents would be killed by the defendant if reported did not report the matter. 
 
4.	   Police allege that on several subsequent occasions after the incident in 2019, defendant had sexual abused victim but she did not report the matter out of fear until on 13th January 2021, she read a news article about a girls of her own age who went through similar stigma had her matter report and subsequently the accused was arrested and charged and thus the news article had motivated and boosted her confidences where she opened up and reported the matter to her parents and subsequently the defendant was arrested and charged for the respective charges.  

 
ISSUE
 
5.	  The issue here is on the question of evidence; that is whether or not police evidence is sufficient to commit the defendant.
 
THE LAW 
 
6.	 The functions of the committal court under the district court Act  is to evaluate police evidence. The principles in Akia v Francis [2016] PGNC 335; N6555 authorizes the accountability of the committal court under Section 95 of the District Court. The empowering establishment of the District Court Act is emphasized below:
 
“95     Court to consider whether prima facie case.
 
(1)  Where 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.”
 
ELEMENTS OF THE OFFENCE OF SEXUAL PENETRATION
 
a.    A person 
b.    who engages in an act of sexual penetration
c.     with a child under the age of 16 years
 
ELEMENTS OF ABUSE OF TRUST
 
a)    A person who engages 
b)    in an act of sexual penetration or 
c)    sexual touching of a child 
d)    between the ages of 16 and 18 years 
e)    with whom the person has an 
f)      existing relationship of trust, authority or dependency
 
ELEMENTS OF SEXUAL TOUCHING
 
a.    A person who, for sexual purposes –
b.    touches, with any part of his or her body, 
c.     the sexual parts of a child under the age of 16 years; or
d.    compels a child under the age of 16 years to touch,
e.     with any part of his or her body, 
f.      the sexual parts of the accused person’s own body

EVIDENCE
 
Defendant’s case
 
7.	 Defendant though his submission filed on 15th March 2022 denied all the allegiants against him. He disputed the witness statements as inconclusive and the entire evidence is defective. Defendant argued that the evidence presented and collected did not comply with the mandatory requirements under the law and thus asked the court to dismiss the information. 
 
Police case
 
a)	Victim-She says on a Tuesday of October 2019, defendant forcefully removed her clothes against her will, she says she struggled to run away but could not do as she was overpowered by the defendant. Victim says the defendant then proceeded to hold her breast, vagina and every part of her body. Victim says the defendant then forced her on the ground and inserted her penis into her vagina and it was really painful and she cried but the defendant threatened her not to cry or else he would kill her. Defendant also warned the victim not to report the matter to her parents or otherwise her parents would also be killed by the defendant. Victim says on may other occasions after 2019, she was also sexually abused and assaulted by the defendant too but those days she says she cannot recall.

b)	Emmie Yara, Judy Plang and Tom Plang- These are the Complainant's family including her mother and father who reacted to the allegations after they were informed of the allegations on 15th January 2021. These witnesses say as soon as they were made known about the allegation by the victim, they reported the matter to police and the defendant was thus arrested and charged.
 
DELIBERATION OF EVIDENCE
 
8.	Evidence suggests the defendant is aged 43 years old and from EHP and the victim is from WHP and was 8 years old at the time of allegation. The uncorroborated evidence of the victim shows she was sexually penetrated by the defendant buy inserting her penis into her vagina and also sexually abused and assaulted including sexually touching by the victim sometime in October 2019 on a Tuesday.

9.	Evidence shows the matter was subsequently reported in January 2021 and thus the defendant was arrested and charged for the allegations.
 
10.	 Defendant admitted on his ROI at question 23 and question 25 that he had only touched the victim’s breast but not the vagina. However, the defendant says at question 26 and 27 of the ROI that he removed the victim's trousers and penetrated her anus not the vagina. Defendant says the victim could have died if he had inserted his penis into her vagina.  Defendant also says that after the incident of 2019, defendant called the victim out from her home while her parents went to Gordon’s and he took her to a flower garden and masturbated in her presence until he ejaculated his semen for her so see and she saw what had happened and ran away to her home.
  
RULING
 
Sexual Penetration
 
11.	I have read the victim’s statements and noted that she was held against her will and pushed to the ground by the defendant and had sexually penetrated her by inserting his penis into her vagina. Defendant says he did not insert his penis into her vagina but her anus. This means there is no issue of sexual penetration since there was sexual penetration but the issue is of the receiving end, Defendant says he penetrated the victim’s anus while the victim says her vagina was penetrated by the defendant’s penis. Medical report shows the victim's hymen was torn and was 2 centimeters wide. This obviously means the victim is not virgin and thus there was penetration into her vagina. But the question is was it penetrated by the Defendant’s penis or form something else? 
 
12.	However, under Section 229H of the Criminal Code Act, I will accept and admit the victim’s uncorroborated statement for purposes of my ruling under Section 95 of the District Court Act. Therefore, I am satisfied with police evidence that on a Tuesday of October 2019, Defendant had engaged in an act of sexual penetration when the accused inserted his penis to the victim’s vagina when the victim who was 8 years old at the time of allegation, thus evidence is sufficient to commit the defendant for the charge of Sexual Penetration under Section 229A(1) of the Criminal Code Act
 
Abuse of Trust
 
13.	 Evidence shows the defendant is the accused neighbor and they had been staying together in the neighborhood and thus the victim respected and obeyed him as a fatherly figure in the neighborhood. It was from that respect and trust the victim followed the accused to a confined location when she was asked if she was interested in the computer games. However, the trust was allegedly abused when the accused on two or more occasions had engaged in the allegation of sexual touching and penetration against the defendant. Therefore, under Section 229H of the Criminal Code Act, I will accept the uncorroborated evidence of the victim and thus will commit the Defendant for the charge of Abuse of Trust under Section 229E(1) of the Criminal Code Act. 
 
Sexual Touching
 
14.	Victim says defendant prior to having sexually penetrated her had touched her breast and vagina. Defendant also admitted that he had touched her breast but did not penetrate her. The principles under the case of Police v Koupa [2020] PGDC 13; DC 4065 is applicable here. A female’s body including her sexual organs are not common places or markets where people will mingle and have fun or tell stories, these are her sacred parts, no one is allowed to touch or go close that part of the body, it is out of bound. Evidence shows defendant infringed the victim’s personal space and privacy when the accused had encroached into her sexual organs and touched her breast and vagina. Thus evidence suggest that the Defendant, for sexual purposes touched, the victim’s breast and vagina at the time when the victim was 8 years old. Therefore, evidence is sufficient to commit the Defendant for the charge of Sexual Touching under Section 228B (1) of the Criminal Code Act.
 
CONCLUSION 
 
15.	 Consequently, it is my decision under Section 95(1) of the District Court Act that evidence displays there is a case of Sexual Penetration under Section 229A(1) and Abuse of Trust under Section 229E(1) and Sexual Touching under Section 229B(1) of the Criminal Code Act. Thus evidence is sufficient to commit the defendant for the three charges against him.
 
ORDERS
 
16. My Orders:
 
a)    Evidence is sufficient to commit the Defendant for the charge of Sexual Penetration under Section 229A(1) of the Criminal Code Act.
 
b)    Evidence is sufficient to commit the Defendant for the charge of abuse of trust under Section 229E(1) of the Criminal Code Act. 
 
c)    Evidence is sufficient to commit the Defendant for the charge of Sexual touching under Section 229B(1) of the Criminal Code Act
 
d)    Defendant is now committed to stand trial for the three charges. 
 
e)    Warrant issued for the Defendant to be kept in custody.

 

In person                                                        For the defendant
Police Prosecutor                                           For the State

[1]          Section 229A of Part IV Inserted by No. 27 of 2002, s. 1.
[2]          Section 229E of Part IV Inserted by No. 27 of 2002, s. 1.
[3]          Section 229B of Part IV Inserted by No. 27 of 2002, s. 1.