DC800

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CRIMINAL JURISDICTION]

DCCr 022 of 2008

BETWEEN

POLICE
Informant

AND

MARKAM FAMUNDI
Defendant

Goroka: M. IPANG

2008: March 13
April 14, 18
May 02, 05, 12, 16

CRIMINAL LAW – Criminal Code Act, chapter No. 262, s.347 A (2) (a)  sexually penetrating an adult female by inserting penis  in to her mouth.

Committal Proceedings – Handout Brief completed – Defendant an elderly  illiterate male person – Investigating Officer statements  and reduced in to English language without any  interpretation, translation or certificate of Interpretation.  No case submission – Defence counsel submitted that  s.94 B (2) and s.94 C (2) of District Courts Act, chapter  40 not complied – seeks dismissal of the information.

HELD: S. 94 B (2) and s. 94 C (2) of the District Courts Act, chapter  No. 40 are mandatory provisions. Court shall convince itself  that Defendant understood the statements before he/she signed.  S. 94(B) (2) and s. 94 C (2) of the District courts Act, Chapter No. 40 have not been complied with, case against defendant is  struck out and defendant is discharge of the charge.

Cases Cited

State –v- Kai Wabu [1994] PNGLR 498

References

Nil

Counsels:

 Prosecutor: Sgt Mark Hamuje
Paul Moses: Paraka Lawyers

16 May 2008

RULING

M IPANG, Magistrate: Defendant Markam Famundi was charged that between the 1st of April and 31st of December 2007, he did sexually penetrate a female adult (named) by inserting his penis into her mouth. He was arrested and charged under section 347 A (2) (a) of the PNG Criminal Code Act, Chapter No. 262. 

2. Brief Facts:

The State alleged that the defendant who was an ex-convicted prisoner of wilful murder of his second wife who was previously sentenced to 21 years imprisonment but was released on parole after serving only 14 years. He was actually released in 2006. After he was released, he learnt that his wife (the alleged victim), has got married to another man. He took the alleged victim Munue Nondu and the other man to the Village Court for adultery and the Village Court ordered Munue to return to the Defendant Markam.

3. Munue complied with the Village Court Order and went back to the defendant in 2007. She complained that between April to December 2007, the defendant started sexually assaulted her by forcing her sucked his penis and drank his sperm. The alleged victim said, the defendant told her that since she has got married to another man, he would not have sexually intercourse with her but she will have to drink his sperms until her stomach gets full and she will eventually die. Defendant as the victim said, forced her to suck his penis for around 13 to 14 times, he forced her so she sucked his penis until he released his sperm in to a cup and she drank his sperm. 

4. An official complaint was lodged with the Watabung Police Station which led to the arrest of Defendant on the 1st of March 2008. He was then referred to the Goroka Police Station for further investigations and interrogations. During interrogation by the Police, defendant denied committing the crime. However, as noted on the record, there are some circumstantial evidence like he is a man of violence, he chopped off victim’s finger, he broke victim’s spleen when he beat her up and that he murdered his second wife.

5. After the service of the Hand Brief to the defendant, his lawyer Paul Moses indicated that he intended to file a No Case Submission to have the charge against his client dismiss. On the 16th of May 2008, the defendant’s counsel made the following submissions:-

1.	Counsel’s submission is based on procedural irregularity and non-compliance of mandatory procedures under the District Courts Act, Chapter 40, counsel  submitted that the Handout Brief contains defects or irregularities as follows:

1.1 Defendant is contending that the witnesses’ Munue Mondo, and Dawa Mondo were done in English language and that there is no evidence that the makers of the statements had full knowledge of the contents, correctness and truth of the statements before both witnesses signed them. If there was pidgin version of their statements then there would be evidence to some extent that they understood the contents of the statements before they signed them.

1.2 There was no evidence from the Police Investigating Officer that he did interpret the statements to the makers of the statements before they signed them. There was no evidence such as certificate of interpretation or explanation of whether the witnesses were educated enough to fully understand the statements before they signed them.

1.3 There is nothing before the court for it to be satisfied that the person who made the statement had read and understood it, or if unable to read, had it read to him in a language that he understood with s. 94 C (2) of the District Courts Act, Chapter 40 before admitting the written statements.

1.4 Counsel submitted that witnesses’ statements written in English language and signed by the makers or witnesses with proof of fully understanding them, is a flawed investigation which should render the entire “Police Handout Brief” defective and therefore inadmissible.

6. Prosecutor Sgt. Hamuje’s counter – argument is out of contest. He argued that the evidence has been completed and Hand Brief has been filed and served on the defendant. Prosecutor’s response to counsel’s No Case Submission has been out of logical line and needs to be aligned. Prosecutor seeks to tender affidavit of translation filed by the arresting Officer.

7. Issues:

1. Whether there are procedural irregularity amounting to non-compliance of s. 94 C (2) of the District courts Act, chapter 40.

2. Whether the Affidavit of Translation filed by the arresting Officer is enough to correct the defects.

8. After perusing the Handout Brief, I do say that I do agree with defence Counsel argument. All the evidence obtained from the witnesses were reduced in to written English language with out no evidence that the witnesses understood their statements before they signed.

9. There are general guide lines on lawfulness of processes and procedures in obtaining witness statements or confessional statements to be more exact. In terms of section 94 c (2) of District Courts Act, a mandatory test has been laid down:

“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 it read to him in a language that he understood.”

10. Defence counsel had relied on the case of State –v- Kai Wabu [1994] PNGLR 498. In this case, Injia AJ (as then was) found that the committal magistrate did not satisfy himself that, the accused an illiterate villager, understood the statement because there was no evidence on the Handout Brief that someone has read to the accused in a language he understood the content of the written statements attributed to him. In reaching this decision, His Honour rejected the statements and discharged the accused.

11. In this present case, on the application of the Defence counsel, I have conducted an enquiry to ensure witnesses Munue Mondo and Dawa Mondo understood the contents, correctness and truth of the written statements before they signed but could not established such. This is the compulsory requirement as stated in State –v- Kai Wabu (Supra).

12. Ruling: 

I am not satisfied witnesses understood contents of their statements before they signed and as such I reject witnesses statements and discharge Defendant Famundi of his charge of rape under section 347 A (2)(a) of PNG Criminal Code Act, Chapter No. 262

Counsel:
Sgt. Mark Hamuje – Senior Police Prosecutor
Paul Moses – Paraka Lawyers