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Nombri v Kaiabit [2022] PGDC 102; DC9026 (20 October 2022)

DC9026
Papua New Guinea

[In the Criminal Jurisdictions of the District Court Held at Waigani]
SITTING IN ITS COMMITTAL JURISDICTION

NCC NO 1575 OF 2021
CB NO 2956 OF 2021

BETWEEN:

MARY NOMBRI
[Informant]

AND:

WILLIE KAIABIT
[Defendant]

Waigani: Paul Puri Nii

20th OCTOBER 2022

COMMITTAL PROCEEDINGS: -Charge- Two counts of Sexual Touching -Section 229B(1) of the Criminal Code Act 1974 (Chapter No. 262). Assessment of evidence to offer a prima facie practical evidence meeting the elements of sexual touching to have the Defendant committed.

EVIDENCE: Acceptable answerability for prima facie Matter-Establishment of the charge of Sexual Touching–Issue on Record of Interview-No evidence of record of Interview-Defendant’s rights under Section 42(2) of the Constitution- Elements of the charge of Sexual touching is not sustained.

PNG Cases cited:

Akia v Francis [2016] PGNC 335; N6555 (24 August 2016)
Police v Koka [2021] PGDC 53; DC6010 (31 May 2021)
Police v Kambian [2021] PGDC 66;DC 6021(30^th June 2021)
Police v Medako [2021] PGDC 54; DC 6011
Nason v Kende [2022] PGDC 4; DC8001 (20 January 2022)
State v Pereya [2008] PGNC 144; N3494 (18 August 2008)
State v Mubin [1990] PGLawRp 592; [1990] PNGLR 99 (6 March 1990)

Overseas cases cited:

Nil

References

Legislation
Criminal Code Act 1974, Chapter 262
District Court Act 1963, Chapter 40

Counsel
Police Prosecutor: Chris Iga For the Informant
Public Solicitor: Himore, O For the Defendant

DECISION ON POLICE EVIDENCE

16^th October 2022

INTRODUCTION

NII, Puri. Paul Magistrate. Decision on whether a prima facie case is sufficiently predictable within the meaning of Section 95 of the District Court Act 1963. The proclamation is reached after the defendant and the police submissions are each measured. Accused contends evidence is insufficient since statements were fabricated and no record of interview while Police affirms evidence is relevant to commit the suspect. The following passages form the foundation of my ruling which are all in thorough form.

CHARGE

1. The suspect is arrested and charged of Sexual Penetration pursuant to Section 229B(1) of the Criminal Code Act 1974. The all-inclusive prerequisites of the charge are shown below:
   

229B. Sexual touching.

(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.

Penalty: Subject to Subsections (4) and (5), imprisonment for a term not exceeding seven years.

.

SUMMARY OF FACTS

2. Police information reads the Defendant is aged 46 years old and of Tapo village of Kainantu in Eastern Highlands Province and at the time of the offence was a teacher at New Erima Primary school in NCD. Police allege that on 15^th October 2021, the defendant did for sexual purposes touched the victim’s buttock a child under the age of 16 who was then 11 years old. Police moreover alleged that on 14^th October 2021, the same defendant for sexual purposes touched the vagina, breasts and buttock of a child, another victim under the age of 16 years who was then 11 years old.
   

ISSUE

3. Whether a prima facie instance is reasonably established to create a case against the Defendant.
   

THE LAW

The Laws governing Committal Court Proceedings

4. The Laws from Sections 94-100 of the District Court Act 1963, delivers the legal groundwork on how to administer committal decision. In Police v Kambian[i] the court modified the attitudes time-honored in Akia –v- Francis[ii] and governed that the committal court functions as an administrative process where police evidence is evaluated to make sure there is adequate evidence satiating the elements of the charge of Sexual touching.
   
5. The process of the committal court is not to test evidence but to assess evidence. Evidence is tested by the National court when witnesses are cross examined to ascertain its reliability and trustworthiness. However, in the committal court, evidence is only assessed to reach a prima facie case. Thus, the corresponding effect on the criminal burden of proof at the committal court is not for the police to prove their case beyond reasonable doubt but to prove their case on a balance less than the criminal balance of proof.
   

ELEMENTS OF THE OFFENCES

6. The court ruled in Police v Medako[iii] that police should establish to the court with continuous evidence to institute the elements of Sexual touching. In the present accusation, Police must attach the elements of the charge of two counts of Sexual touching to the evidence to make a prima facie case.
   

EVIDENCE

7. Police evidence plays a vital role to harvest an evenhanded decision. Evidence comprised in the police file should gratify the elements of sexual touching. Prosecution evidence should launch the charge of two counts of Sexual touching as is the value in Police v Koka[iv].
   

PROSECUTION CASE

8. Police Prosecutor Chris Iga argued in support of the prosecution evidence that there is prima facie sufficient evidence against the Defendant to commit him for the charge of sexual counting.
   

Police evidence as provided in the hand-up-brief

1. Margaret Kara –Witness is 11 years old and says she is the victim of sexual touching by the defendant. Witness says she cannot recall the date but says the defendant who was her class patron had invited closer to where he was sitting and touched her buttock.
   
2. Annabella Janget- this witness is another victim and she is also 11 years’ old who says on Tuesday 14^th October 2021, the defendant invited her to where he was sitting and touched her breast, buttock and vagina.
   
3. Joseph Yomba- this witness claims to be victim Magaret Kara’s father and says his daughter reported to him that she was sexually touched by the defendant who was her class patron.
   
4. Benjamin Puringi-this witness is victim Annabella Janget’s father and says his daughter was sexually molested and assaulted by the defendant.
   
5. Cathy Peter- Policewoman who corroborated the ROI.
   
6. Maria Nombri-the arresting officer who conducted the ROI.
   

DEFENSE CASE

9. Defendant though a submission filed on 23th September 2022, argued that evidence is not sufficient to commit the defendant for the offence of two counts of sexual touching. Defence through his legal representative from the office of the public solicitor argues on the following points:
   
   1. The record of the interview was not conducted on the defendant.

b) There is no strength in the police case.

c) Evidence is fabricated by the victim’s fathers.

4. Evidence not meeting the elements of the offence to substantiate the allegation.
   

CONSIDERATION OF EVIDENCE

10. Police Case-Police alleged that the defendant who was a teacher had sexually touched the two victims both eleven years of age, his own students and were attending to New Erima Primary school at the time of allegation. Police alleged that the first victim Margaret Kara was touched by the Defendant on her buttock on an unknown date while the second victim Annabela Janget was touched by the defendant on her vagina, breast and buttock on 14^th October 2021. The victims’ fathers put in evidence that their daughters reported to them about the allegations of sexual touching after they were respectively allegedly sexually touched by the defendant.
    
11. Defense case- Defendant through his Lawyer had denied the allegation and further argued that the record of interview was not conducted on the defendant and also there is no strength in the police case. Finally, the defendant argued that evidence is fabricated by the victim’s fathers and hence evidence is not meeting the elements of the offence to substantiate the allegation.
    

RULING ON THE POLICE EVIDENCE

12. Defendant is a primary school teacher who was arrested and charged for the offences two counts of Sexual touching under Section 229B(1) of the Criminal Code Act(as amended 2002), an allegation involving two eleven(11) years old girls who were doing grade two at the time.
    
13. I have assessed the witness statements of the victims Margaret Kara and Annabella Janget and noted both have identified the alleged perpetrator and says he had sexually touched their buttock, breast and vagina.
    
14. The victims’ fathers’ statements say they were told by the victims about the allegations so the fathers evidence are not direct evidence, they were hearsay.
    
15. The only evidence is from the victims. Is it safe to rely on the uncorroborated evidence of the victims and make a ruling on evidence? The answer is “yes”, the law under Section 229H of the Criminal Code Act (as amended 2002) is the basis. I quote the Law as follows:
    

“229H. Corroboration not required.

On a charge of an offence against any provision of this Division, a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself or herself that it is unsafe to find the accused guilty in the absence of corroboration.”

16. The Law is made for the court to deliberate on uncorroborated testimonies of witnesses statements. Nevertheless, for the court to draw the attention to this law, the other particulars constituting the police evidence should be all in order and conform with the obligations under Section 42(2) of the Constitution. I implement the law below:

“42. Liberty of the person.

(2) A person who is arrested or detained.

(a) shall be informed promptly, in a language that he understands, of the reasons for his arrest or detention and of any charge against him; and
(b) shall be permitted whenever practicable to communicate without delay and in private with a member of his family or a personal friend, and with a lawyer of his choice (including the Public Solicitor if he is entitled to legal aid); and
(c) shall be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained,
and shall be informed immediately on his arrest or detention of his rights under this subsection.”

17. The constitution is very clear where it says an accused person should be informed of the charge and reason why his/her was arrested. Moreover, the accused should be given an opportunity to talk to his/her family member and a lawyer who would represent him/her in court and that is the legal requirement under the constitution.
    
18. The above constitutional requirement is administered to the defendant through the Record of Interview. The Record of Interview is an integral of the police case and hence it should be in the police file. In Nason v Kende[1] the court says an accused right under Section 42(2) of the Constitutions is administered through the Record of Interview.
    
19. I have read through the defendant’s ROI and observed that most of the questions were unanswered and also the ROI was not signed by the defendant. If the defendant decided not to respond to the questions being asked in the ROI then the answers would be typed in as “remained silent” or “decided not to answer” but nothing here. Additionally, if the accused decided not to sign off the ROI then to a certain degree the accused should willingly accept it not to sign the ROI as is the standard in State v Mubin[2]. Evidence shows the accused did not sign the ROI and moreover he was never given an opportunity to participate in the ROI. I am convinced to believe the ROI was done by the Police without the presence of the defendant.
    
20. A person who has been arrested and charged should willingly and voluntarily participate in the ROI as sustained in State v Pereya[3]. An accused should be invited to the ROI so that he/she should exercise free will without fear or intimidation when taking part. An accused should not be forced to participate in the ROI or alternatively it is prohibited and illegal for police to do the ROI without the presence of the accused.
    
21. The effect of Section 229H of the Criminal Code Act is constricted to witness statements but not ROI although both play the same compulsion of evidence and thus the effect of the Act does not extend to ROI.
    
22. I am duty-bound to believe that the indispensable part of the police case which is the ROI was not administered on the defendant thus the defendant’s rights under Section 42(2) of the Constitution was breached by police.
    
23. After assessment of police evidence and defense submission, I am satisfied with defense submission that the essential part of the police case, the ROI was not administered to the defendant and there is no evidence of ROI.
    

CONCLUSION

24. Therefore, evidence is insufficient to make a prima facie case against the Defendant for the two counts of the charge of Sexual Touching under Section 299B (1) of the Criminal Code Act (as amended 2002) and thus the allegations are dismissed.
    

FORMAL ORDERS

1. Evidence in the police file is insufficient to commit the Defendant Willie Kaiabit for the charge of two counts of Sexual Touching under Section 229B(1) of the Criminal Code Act (as amended 2002).
   
2. Information of two counts of Sexual touching are dismissed.
   

100. Defendant’s bail money be refunded in full and bail obligations (if any) be discharged forthwith.
     

Public Solicitor For the defendant
Police Prosecutor For the Police

[1] [2022] PGDC 4; DC8001 (20 January 2022)
[2] [1990] PGLawRp 592; [1990] PNGLR 99 (6 March 1990)
[3] [2008] PGNC 144; N3494 (18 August 2008)



[i] [2021] PGDC 66;DC 6021(30^th June 2021)
[ii] [2016] PGNC 335; N6555 (24 August 2016)
[iii] [2021] PGDC 54; DC6011 (31 May 2021)
[iv] [2021] PGDC 53; DC6010 (31 May 2021)