DC8070

Papua New Guinea
 
[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS COMMITTAL JURISDICTION
 
NCC NO 1091 OF 2021
 
BETWEEN:
 
JOHN PII
 [Informant]
 
AND:
 
MICHAEL KAMBI
 [Defendants]
 
Waigani: Paul Puri Nii
 
05th May 2022
 
COMMITTAL PROCEEDINGS: Charge-Unlawful and Indecent Assault-Section 347 of the Criminal Code Act. Witness statements- State evidence- suitable formation of prima facie evidence - elements of the charge persistent –Evidence is equal- Defendant committed to stand trial.
 
PRACTISE AND PROCEDURE: Calculation of evidence under Section 95 of the District Court Act. Defendant admitted to having sex with the victim but not sexual touching-elements of intention and premeditation. Evidence of Sexual touching. Defendant committed on one Sexual touching. Elements of the offense sustained.
 
PNG Cases cited:
 
NIL
 
Overseas cases cited: 
 
NIL
 
REFERENCE
 
Legislation
Criminal Code Act 1974, [Chapter 262]
District Court Act 1963, Chapter 40
 
Counsel
Police Prosecutor:             Regina Kilip                       For the Informant
Public Solicitor:                  David Kiok                         For the Defendant

COMMITTAL RULING
 
5th May 2022
 
INTRODUCTION

NII, P. Paul Magistrate. Conclusion on committal under Section 95 of the District Court Act. On 17th March 2022, the accused's Lawyer argued evidence is lacking to commit the defendant while the police prosecutor says evidence is sufficient and hence is my ruling on the parties’ arguments regarding the weight of file evidence.
 
CHARGE
                                    
1.	Defendant is charged under Section 349 of the Criminal Code Act. The details of the charge are publicized below:
 
349.    Sexual assault.
 
[1](1) A person who, without a person’s consent –
 
(a)      touches, with any part of his body, the sexual parts of that other person; or
(b)      compels another person to touch, with any part of this body, the sexual parts of the accused person’s own body,
is guilty of a crime of sexual assault.
Penalty:        Subject to Subsection (4), imprisonment for a term not exceeding five years.
 
(2) For the purposes of this section, “sexual parts” include the genital area, groin, buttocks or breasts of a person.
 
(3) For the purposes of this section, a person touches another person if he touches the other person with any part of his body or with any object manipulated by the person.
 
(4) Where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable to a term of imprisonment not exceeding 10 years
 
BRIEF PARTICULARS
 
2.	 Police allege the defendant is aged 50 years old and from Yaramanda village of Wapanamanda district in Enga Province who is a Policeman attached to Boroko police station at the time of allegation. Police allege that the defendant was on 10th June 2021 was on duty at the Boroko holding cells and at between 12am -1.30am he invited the female victim over to where he was staying and touched the Complainant’s breast and squeezed it. The Complainant was a suspect who was detained for stealing her husband’s money.
 
3.	The Complainant later reported the matter to police who subsequently invited the accuse to come over and detained and charge him for the offence of sexual touching under Section 349 of the Criminal Code Act.
 
ISSUE
 
4.	The enquiry of evidence is commanding here and that is whether or not there is appropriate evidence to commit the Defendant for the focus allegation.
 
THE LAW 
 
5.	The court will rely on Section 95 of the District Court Act and make a ruling on police evidence. The subject law is supplicated 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
 
a)    A person who, 
b)    without a person’s consent
c)    touches, with any part of his body,
d)     the sexual parts of that other person
 
EVIDENCE
 
Police case
 
6.	Police evidence is in the police file served on 12th October 2021. It contains victim and witness statements including the ROI and medical reports.
 
7.    List of police evidence:
 
No	Name	Particulars	statements	
1	Rambua Natasha 	Complainant	She says she is 17 years old and on 8th June 2021 she was arrested and charged for the allegation of stealing by her husband. She claims that while she was in custody, her phone battery was low so he requested for the defendant to charge her phone. Defendant then told her to go to his office in the holding cell. Police allege that while in defendant’s officer, the defendant move closer to the victim and sexually touched her breast and squeezed it.	
2	Leonard Rambua 	Witness	Witness claims he is the victim’s husband and he was the one whose complaint led to the victim’s arrest. Witness says he was informed by one of the policemen that his wife could be harassed by police so he asked him to check with her. Witnessed says later his wife told him that he was sexually abused by the defendant while in custody. 	
3	Stanley Tembon	Policeman	Witness says he is the arresting officer who arrested the victim for the initial offence of stealing from her husband.
 	
4	Apollos Terry	Policeman/ corroborator	Police witness who corroborated the ROI.	
5	John Pii	Arresting officer- 	Police arresting officer who did the initial investigation including the ROI. 	

Defense case
 
8.	Defendant denied the charge of sexual assault under Section 349 of the Criminal Code Act. Defendant says he did not sexually assault the victim as alleged but he had sexually penetrated her vagina with his penis after the victim had consented.  Defendant says him and the victim while in custody had conversation to have sex on the condition that defendant bought her a sheep tongue, fried sweet potatoes and sprite can drink so defendant says he walked out and bought those items at King kakaruk shop near the Boroko police station and returned and they had sex.

9.	Defendant maintains that he did not touch her breast nor squeezed it but only had sex and it was after an agreement to have sex that was reached between the defendant and the Complainant.  Defendant further maintained on his ROI that he was standing some 1-2 meters away from the victim and had conversation with the victim and not too close. 
 
DELIBERATION OF EVIDENCE
 
10.	 Evidence indicated that sometime on the 10th of June 2021, the defendant was on duty at the Boroko police station. At the time when the defendant was on duty a female accused was in the cell for stealing from her husband. Evidence demonstrates that at the time of the allegation the defendant and the victim were in the Boroko holding cell for reasons that the defendant was on duty in the cells and the victim was then a suspect in custody.

11.	 Defendant says he had sex with the victim after she had agreed to have sex with him while the victim says she was sexually abused by the defendant by touching and squeezing her breasts against her will. Victim says the defendant forcefully touched her breast and squeezed it.
 
RULING
 
12.	Defendant denied sexually touching the victim her breast but admitted he had sexual intercourse by inserting his penis into her vagina after she consented to it. There is no one else who witnessed the allegation except the defendant and the victim and so who is now telling the truth? 
 
13.	 Victim was an accused who was in confinement and was with the defendant since he too was on duty at the date of allegation. Defendant’s version of argument is about a consensual sexual penetration and victim says defendant touched and squeezed her breast or sexual assault. Defendant says victim had consented to have sex but there is no evidence that the defendant and the victim had known each other prior to the incident and hence how would a stranger consent to sex to another stranger within a short period? This is unrealistic.
 
14.	I have also assessed evidence from the Defendant that the victim could have screamed or shouted if she was forcefully sexually abused but she didn’t. I have considered this argument, however, evidence shows the allegation happened in a late night and early morning and it was not in a cell block but inside an office room inside the cell house. Given the authority (power of being a policeman) the defendant possessed at the time and the environment is self-executing evidence that the defendant feared for her safety and life and thus did not scream nor shouted. Moreover, the defendant and the victim were not in the normal cells exposed to other inmates but were in a separate and isolated solitary confinement and thus I would accept the victim’s statement under Section 352A of the Criminal Code Act.

15.	 Evidence of resistance demonstrated by the victim is sufficient enough that someone had refused.  The charge of Sexual Assault under Section 349 of the Criminal Code Act is listed as a Division 7 offence together with Section 352A of the Criminal Code Act where it provides that corroboration may not be a requirement for offence subject of my ruling. Thus under section 352A of the Criminal Code Act, I will consider the victim’s evidence as a proficient statement for purposes of my ruling.

16.	 Defendant mentioned at question 12 of his ROI that they stood and kissed for 20 minutes, hugged and sucked each other’s mouths’ and exchanged their slavers and later they had sex. Defendant says he did not see the victim’s breast but only saw her vagina opened wide and thus he inserted his penis into her vagina and had consensual sex for 15 minutes until he had ejaculated and they stood up.

17.	 Defendant’s own version of the statement that they hugged and kissed shows that the defendant was exposed to the victim’s breast at some point in time and the breast was exposed there directly or indirectly all throughout the cause of allegation. I would have agreed with the defendant if he said they only kissed and not sex, however his assertion that they only had sex means to some point in time defendant came into contact with the victim’s breast and therefore I will not take the evidence that defendant did not see nor touched the victim’s breast.

18.	Lastly, evidence shows the defendant is a policeman and was on duty looking after the inmates on the night of allegation. His job is neither to ask for favors for sex nor to induce someone to have sex. He is a policeman his job was to look after the inmates and not to sexually harass them in any manner or what so ever unless his actions were protected by the laws. Policemen should take the lead in enforcing the laws, not to break the laws. Professionalism in policing should be maintained at all times by policemen and women both off and on duties.

19.	Given the all above, am satisfied with police evidence that on the night of 10th June 2021 and early part of the morning at the Boroko holding cells, the defendant had sexually assaulted the victim by touching her breast.

 

CONCLUSION 
 
20.	Accordingly, under Section 95(1) of the District Court Act, I rule that police evidence is acceptable to make a prima facie case against the Defendant for the charge of Sexual Assault under Section 319 of the Criminal Code Act.  
 
ORDERS
 
21.	My Orders:
 
a)	Evidence is sufficient to commit Defendant Michael Kambi for the charge of Sexual Assault under Section 349 of the Criminal Code Act.

b)	Defendant is committed to stand trial.
c)    Defendant’s bail is extended.

 

Public Solicitor                                               For the defendant
Police Prosecutor                                           For the State

[1]          Section 349 amended by Act No. 11 of 1984, s7;  Section 349: penalty clause repealed and replaced by the Criminal Code (Amendment No. 2) Act 1986 (No. 17 of 1986), s19;  Section 349 Amended by No. 27 of 2002, s. 1.