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Karuwipan v Hau [2020] PGDC 31; DC4089 (10 September 2020)

DC 4089

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CRIMINAL (COMMITTAL) JURISDICTION]

CCC 7of 2020
BETWEEN

FIRST CONSTABLE UME KARUWIPAN

Informant

AND

JOSEPH HAU
Defendant

Waigani: L Wawun-Kuvi

2020: 7 January, 11 &25 February, 23 March, 8& 25 June, 9, 23 July,
      25 August, 1,3 & 10 September

CRIMINAL LAW-CRIMINAL PRACTICE AND PROCEDURE- COMMITTAL PROCEEDINGS- Sufficiency of Evidence and section 96 District Court Act

Cases Cited
Henry v Arua [2020] PGDC 3: DC4048
Police v Waluka [1999] PGDC 2; DC48 (25 March 1999)
Yarume v Euga [1996] PGNC 24; N1476 (6 September 1996)
State v Kai Wabu [1994] PNGLR 498 (25 May 1994)

Overseas Cases Cited
R v Plummer [2012] NTSC 30 (17 April 2012)
Ebatarinja v Deland (1998) 194 CLR 444; [1998] HCA 62
R v Howard Mungaribi [1988] NTSC 49; 55 NTR 12; 92 FLR 264,

References
District Court Act 1963
Criminal Code Act (Ch 262)

Counsel

Lawyer, for the Senior Constable George Vetari

Lawyer, for the Ms Agnes Peter

3 September 2020

RULING ON SUFFICIENCY OF EVIDENCE

L Wawun-Kuvi, Magistrate:

1. The defendant is charged with:
   • 1.1. Rape contrary to section 347(1) of the Criminal Code Act (Chapter 262) (the Code);

The Elements

2. The elements of Rape are:
   • 2.1. Accused
   • 2.2. sexually penetrates
   • 2.3. Complainant
   • 2.4. without consent

The Law on Committal Proceedings

3. The role of the Committal Magistrate is to determine whether the evidence is sufficient to commit the defendant to stand trial.^[1]
4. It is a safeguard to protect the rights of defendants.
5. Section 95 is the decision after the close of the evidence by the prosecution. It entails a process similar to a no case submission but with the distinction that there is no determination of guilt or innocence, see Police v Waluka [1999] PGDC 2; DC48 (25 March 1999).
6. Having been satisfied the Court then informs the Defendant of his rights under section 96 and administers the caution. The words “to say something or give evidence on oath” (emphasis mine) are remnants of the old procedure of giving oral evidence. Whatever the defendant decides, it is considered in totality with the prosecution evidence. The final decision to commit is under s 100 DCA.

Prosecution Evidence

7. The prosecution has given all of its evidence pursuant to s 95 (1) DCA.
8. Ms Peter has submitted that the Complainant and the other police witnesses are illiterate and could not have written the statements that have been submitted. She submits that someone typed the statement and told them to sign.
9. There is nothing to substantiate this submission in the way of evidence other than pure speculation.
10. In any event her submissions come well after the close of the prosecution evidence. On close reading of section 94C and section 95 it is noted that s 94C is an inspection of the statements during the hearing. If no objection is raised or the Court has decided that there are no issues with the statements or exhibits it becomes part of the prosecution case.
11. At s 95(1) it is too late for the submissions that the Court should not consider the evidence as it has already become part of the prosecution case.
12. Counsels for defence have to appreciate the history of Committal procedure as derived from England to Queensland and subsequently to Papua New Guinea. Committals in Papua New use to be by full oral hearing. Remnants of which still exist in the District Court Act. Queensland still maintains this procedure.
13. Coming back to Ms Peter’s submission s 94C of the DCA(2) requires that before I accept and admit into evidence witness statements, I have to be satisfied that they have read and understood the statements^[2]. I have already read each of the statements of the witnesses and am satisfied that all the deponents have read, understood and signed their statements. That is the reason why I have proceeded to this ruling on the entirety of the prosecution evidence.
14. Ms Peter has failed to take into account the provisions of section 94 (1) (d), s 94 (1A) and s 94 (1B) which provides in effect that once the deponents sign, they confirm that they have read and understood their statements and the statements are treated as affidavits pursuant to the Evidence Act.
15. I have accepted all the evidence of the witnesses because contained in all their statements is the warning clause pertaining to giving of false evidence and their signatures. And contrary to Ms Peter submission, relating to the Complainant’s English, she is an 18 old student who obviously by her letter to her parents contained in the depositions, prefers English as her mode of communication.
16. I now proceed on to the submissions on the sufficiency of the Evidence.
17. Ms Peter has cited the case of Yarume v Euga [1996] PGNC 24; N1476 (6 September 1996) to support her contention that I should conduct an exhaustive enquiry into the Complainant’s statement.
18. Ms Peter has filed written submissions and has reiterated in her oral submissions that the Court should not accept the evidence of the Complainant because:
    1. she was the person who initiated sexual intercourse by her conduct that day, in asking the accused who is her uncle to go fishing with her at an odd time of the night;
    2. she has an existing relationship with the accused; and
    3. her actions of reporting days later was inconsistent with the normal trend of reporting sexual abuse;
    4. the medical report is consistent with her having sexual intercourse with other men.
19. Ms Peter’s submissions are in fact inconsistent with the ruling in Yarume v Euga (supra). Yarume v Euga reinforces the principal that findings on the weight of the evidence is done by the National Court in the trial of the accused. The Committal Court’s role is to determine whether there is evidence to identify elements of the offence.
20. In the present case, as the defendant admits sexual penetration in his interview with police, the only element in contention is consent.
21. The Complainant in her evidence states that there was no consent.
22. Ms Peter in her attempt to draw the Court into analysis of the Complainant’s evidence fails to recognise that for the Court to do so would result in the Court entering into the realm of the trial Court. Assessments as to credibility and weight as stated is for the National Court.
23. All the grounds which counsel for the defendant has submitted have no foundation. There is nothing in the evidence that supports her arguments.
24. I would add here that Ms Peter’s submission that the Complainant’s conduct in the manner and time she reported is inconsistent with normal sexual assault cases, is without merit. There is abundant research on emotional and cognitive reactions in relation to non-reporting of crime globally. Victims feel fear, helpless and the threat of further victimization by authorities such as police are some of the reasons for non-reporting. In Papua New Guinea may be added, is the fear of violence from their family and the defendant’s family and the shame that it may attract from the greater community. Also there may be lack of family support or the perpetrator is the source of support. The ‘Me Too’ Movement in the United States targeted at publishing allegations of sex crimes committed by powerful and or prominent men, is demonstrative of how years after the abuse women are reporting and coming out in public. The famous case of the comedian and actor Billy Cosby is also demonstrative of how years later abuse is reported.
25. Returning to the case, as the only issue in dispute is consent, I find based on the above analysis and from the evidence of the Complainant that there is sufficient evidence establishing the element of lack of consent.
26. I shall now proceed to the caution and examination under section 96 of the District Court Act.

Section 96 Statement (10 September 2020)

27. Counsel for the Defendant has made an application for an adjournment for her to speak to her client regarding the section 96 statement on 3 September 2020. She submits that she needs time to obtain the statement.
28. I had granted the application for the purpose that she advise her client on what was involved in a section 96 District Court Act. In the event her client does provide a statement, it does not remove my role to specifically and sufficiently put the words of section 96 to the defendant and obtain his response.
29. When the matter returned today, Ms Peter explained that she did not have the opportunity to speak to her client. I refused the application as it is prejudicial to the defendant’s rights to have his matter expediently dealt with. In fact there is nothing in the written law that provides for the filing of a section 96 statement of the law. That is the sole responsible of the committal magistrate. See my ruling in Henry v Arua [2020] PGDC 3: DC4048, where I discussed that it may amount to a procedural defect where a Magistrate fails to explicitly put the words of section 96 to a Defendant. In that case I referred to the case of R v Howard Mungaribi [1988] NTSC 49; 55 NTR 12; 92 FLR 264, R v Plummer [2012] NTSC 30 (17 April 2012) and Ebatarinja v Deland (1998) 194 CLR 444; [1998] HCA 62.
30. Having put the statement the defendant has decided to remain silent.
31. I therefore accept on the whole of the evidence, that the evidence is sufficient and so commit the defendant to stand trial in the National Court.
32. Orders:
    1. The Defendant is committed to stand trial in the National Court.
       1. The Defendant is to appear on Monday 28 September 2020 at the National Court Waigani for listings.
       2. Defendant is remanded until Monday 28 September 2020 for listings.
          

Lawyer for the Informant, Police Prosecution

Lawyer for the Defendant, Office of The Public Solicitor

^[1] Yarume v Euga [1996] PGNC 24; N1476 (6 September 1996)
^[2] State v Kai Wabu [1994] PNGLR 498 (25 May 1994) and Yarume v Euga [1996] PGNC 24; N1476 (6 September 1996).