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Police v Wangusawo [2022] PGDC 29; DC8040 (16 March 2022)
DC8040
PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS COMMITTAL JURISDICTION
SUM: 483 of 2021
BETWEEN
POLICE
(Informant)
AND
FERDINAND WANGUSAWO
(Defendant)
Vanimo: B. Fehi
2022: 16th March
COMMITTAL PROCEEDINGS: Charge of Rape pursuant to Section 347 (1) CCA – No submission on sufficiency of evidence by the Defence Counsel – whether
court is required to make an inquiry into the Prima Facie status of the PHUB – Is it proper to commit defendant for trial at
the National Court without considering the contents of the evidences within the PHUB – Committal pursuant to DCA S. 94B (1)
proper – administering of DCA S. 96 statement – Bail extended with conditions.
Cases Cited:
- State v. Ron [2019] N7933;
- Police v. Philip Siaguru [2019] DC3037;
- Ruh v. Kerker [2020] N8571;
- Police v. Oira [2022] DC7099;
- Police v. Kaiwi [2020] DC5052; and
- Liri v. The State (2006) N3110.
Legislation:
- District Courts Act Chapter 40
- Criminal Code Act
Other References:
- Magistrate Manual of Papua New Guinea by EDWARD R. HILL (BA, LLB)
Representation:
- Sgt. Charles Manbo for the Prosecution
- Counsel Paul Moses of Public Solicitors’ Office for the Defendant
RULING ON EVIDENCE
16th March 2022
- FEHI. B DCM: The defendant stands charged before me for one count of Rape pursuant to Section 347 (1) of the Criminal Code Act. The matter is now before me for ruling on evidence pursuant to Part VI of the District Courts’ Act.
RECORD OF PROCEEDINGS
- The defendant first appeared before His Worship PM/SPM Sasa Inkung on 27th October 2021, whereupon the charge was read and explained to him as well as the committal court process. Bail was also considered
and granted, thereafter, defendant paid K400 court bail and was allowed out to appear at next mention on 26th November 2021. Matter was than adjourned on that date to 03rd December 2021 and set before me after His Worship disqualified himself from further dealing with this matter. Defendant appeared
and I confirmed receipt of Police Hand-Up Brief (PHUB), defendant was asked on this and he too confirmed receipt of same. Matter
was than adjourned to 28th January 2022 for ruling, however, I was still on Rec-Leave therefore matter was further adjourned to 16th March 2022. Lawyer for the defendant elected not to file any submission on sufficiency of evidence leaving it to the court to decide
on the evidence. This is now my full ruling on the evidence as they appear within the PHUB.
POLICE SUMMARY OF FACTS
- The defendant (who was 18 years old at that material time) was alleged to have sexually penetrated the victim a 15 years old female
on Saturday 23rd October 2021 between the hours of 5:30pm to 6:00pm at Wusipi Settlement, Vanimo West Sepik Province. The facts of the allegation
are that the victim namely Meriam James was sent by her aunty one Ms. Colleth Yamiangu to throw away used diapers at the rubbish
hole and while she was there doing that, the defendant pulled her hands, used his shirt to block her mouth preventing her from shouting,
pushed her to the ground, set on her tight and sexually penetrated her vagina with his penis. As a result of this, the victim started
bleeding and the defendant ejaculated on her skirt, thereafter he tore the victim’s pants and bra and he left. Victim alleged
that the defendant was intoxicated when he sexually penetrated her. She later reported the incident to her aunty at about 10:00pm
and was taken the next day to Vanimo General Hospital for medical check-up. Afterwards, the incident was reported to the Police at
Vanimo Police Station resulting in the arrest and prosecution of the defendant before me.
THE OFFENCE AND ITS ELEMENTS
- Defendant was charged pursuant to Section 347 (1) of the Criminal Code Act, which the whole provision appropriately read as follows:
347. DEFINITION OF RAPE
(1) A person who sexually penetrates a person without his consent is guilty of a crime of rape.
Penalty: Subject to (2), Imprisonment for 15 years.
(2) where an offence under Subsection (1) is committed in circumstances of aggravation, the accused is liable, subject to Section
19, to imprisonment for life.
- The elements of Rape under the above provision requires the Police to gather evidence showing that the victim was sexually penetrated
by the defendant and also that at the time of penetration victim did not consented to that act. Reference is made to the State v. Ron [2019] N7933, decision per Cannings J.
- Having satisfied myself with the above, I will now consider what I am required to do in my exercise of this committal function. As
a guide, reference will be made to chapter 11 of the Magistrate Manual of Papua New Guinea (MM) and some relevant case precedents.
COMMITTAL PROCEEDINGS
- Chapter 11 of the MM covers committal proceedings, it provides a practice guide to the provisions predominantly featured under Part VI of the District Courts’ Act. The most profound sections are Section 94B, Section 94C, Section 95, Section 96 and Section 100 of the DCA. My task is to perform a preliminary examination, in doing so I must assess the strength of the accusation so as to prevent weak or
misconceived cases from proceeding to trial. I must also remind myself that committal proceeding is not a trial and I have no powers
to conclusively conclude those matters falling under this jurisdiction. Under this jurisdiction I am performing a judicial act but
not an adjudication role, because the function I am performing is not to determine whether or not the defendant is guilty of the
offence charged. The statutory test to be applied by me is only to ask whether the evidence is sufficient to put the defendant on
trial for an indictable offence. The measure of sufficiency is less than trial standard of proof beyond reasonable doubt, i.e., I
am only required to form a bona fide opinion that there is sufficient prima facie case against the defendant. I also make reference
to His Worship PM/SPM Lavutul’s description of the committal function as per his decision in the matter of Police v. Philip Siaguru [2019] DC 3037 for more insights.
- In my view there are two approaches I am allowed by law to take in dealing with indictable matters. DCA S. 94B (1) sets out the first
approach, which as it appears, a much speedier procedure. Should this course be available after certain strict requirements have
been met, I may transmit the witnesses’ statements and documentation to the National Court without considering their contents.
My task is only to collect witnesses’ statements and provide with it a formal order of committal. What now are the requirements
that need to be first satisfied before this approach becomes available?
- I am of the opinion that the requirements are laid out under DCA S. 94B (2) (a) & (b). For this approach to be taken, firstly I must ensure the defendant is represented by a legal representative and secondly the legally
represented defendant is willing to wave the right to the second approach which is a much straight forward and commonly utilized
method. The dangers of falling into confusion is ever present as was discussed in the matter of Ruh v. Kerker [2020] N8571, per decision of Suelip AJ. In brief, His Worship, who presided over the matter proceeded to commit the defendants in their absence without considering the
evidence as such his action was found to have breached their rights under Section 94B (2) (a) & (b). It was held that they were
not accorded the opportunity to make submissions on sufficiency of evidence.
- The second approach is a two part approach, firstly when the legally represented defendant request me as per DCA S. 94B (2) (b) to consider his submission on sufficiency of evidence. I will as per DCA S. 94C inquire into the contents of the statements and the documentary evidence as they appear within the PHUB. It is than that I am required
under DCA S. 95 to either discharge the defendant should the evidence be insufficient or commit the defendant should the evidence be sufficient.
If I chose to commit the defendant than I must accord him his rights under DCA S. 96. Secondly should defendant have no legal representation, it is my view that I must explained to him just as it would have been through
a lawyer the options available to him, if he so wishes to make submission on sufficiency of evidence on his own behalf, the above
steps will apply, the only difference is that he is representing himself.
- All in all, the first approach is in my view only available when the defendant is legally represented by a lawyer and the lawyer clearly
on record waive his client’s rights. It is only exercised when both lawyer and defendant are present before the court, see
case of Ruh v. Kerker (supra) under no other circumstances (apart from the above) can it be used must it be considered as not according natural justice to the
defendant. The second approach is common and should be accorded to the defendant with or without legal representation.
- However, as a matter of best practice, I emphasis the need to ensure the documents within the PHUB conforms to the necessary forms
specified under the DCA. It is only the need to consider the contents of the evidentiary statements and documentation that differ in the above mentioned
approaches.
- To best summarized the above my views, I will split the two approaches into categories and outline the necessary steps and requirements
contained therein.
- Category A.
- - Legally represented defendant choose to wave the right to the second approach, i.e., to make submission on sufficiency of evidence,
DCA S. 94B (2), (a) & (b);
- - The Court as per DCA S. 94B (1), is firstly required to conduct an inquiry on the requirements under DCA S. 94, i.e., the PHUB consisting of witnesses statements and documentary evidence must be served on the defendant or his legal representative
within the required timeframe and evidence pertaining to proper service must be provided, see His Worship O.Ore’s ruling at paragraphs 34, 35 and 36 in the matter of Police v. Oira [2022] DC7099;
- - Secondly, the court is required to inquire and be satisfied as to the legality of the witnesses’ written statements and other
documentary evidences as per DCA S. 94C (2), see also Police v. Oira (supra).
- - Should the court on a bona fide opinion decide to commit the defendant as per DCA S. 94B (1), it will do so without consideration of the contents of the statements or documentation. Thereafter, administer to him the DCA S. 96 Statement. Should it find any breach of the above, have him discharged and the matter struck out.
- Category B1
- - Legally represented defendants’ request and submit submissions on sufficiency of evidence per DCA S. 94B (2), (a) & (b);
- - The court is required as per DCA Ss. 94 (1), 94C (1) (a) & (b) and 94C (2), to conduct a full inquiry into the service of the PHUB, the legality of the documents (witnesses’ statements and documentary
evidences) contained therein and their contents; and
- - The court will now decide on the issue of sufficiency DCA S. 95 (1), if it so forms a bona fide opinion that the evidence is not sufficient to put the defendant on trial, have the defendant discharge
and the information under inquiry struck out. If it so forms a bona fide opinion that the evidence is sufficient to put the defendant
on trial with no other defects in form and service requirements, per DCA Ss. 94 (1), 94C (1) (a) & (b), 94C (2) and 95 (3), enter a prima facie case against the defendant and proceed to administer DCA S. 96 statement. See Her Worship (as she then was) T. Ganaii ruling at paragraphs 5, 6, 7, 8 and 9 in the matter of Police v. Kaiwi [2020] DC5052
- Category B2
- - Defendants with no legal representation but request on his own behalf to make submission on sufficiency of evidence;
- - The court is required as per DCA Ss. 94 (1), 94C (1) (a) & (b) and S. 94C (2), to conduct a full inquiry into the service of the PHUB, the legality of the documents (witnesses’ statements and documentary
evidences) contained therein and their contents; and
- - The court will now decide on the issue of sufficiency DCA S. 95 (1), if it so forms a bona fide opinion that the evidence is not sufficient to put the defendant on trial, have the defendant discharge
and the information under inquiry struck out. If it so forms a bona fide opinion that the evidence is sufficient to put the defendant
on trial with no other defects in form and service requirements, per DCA Ss. 94 (1), 94C (1) (a) & (b), 94C (2) and 95 (3), enter a prima facie case against the defendant and proceed to administer DCA S. 96 statement. See also Police v. Kaiwi [2020] DC5052 (Supra).
- Having satisfied myself with the above, I must restate here, that the counsel for the defendant elected to waive his client’s
right to request me to consider their submission on sufficiency of evidence. He has in actual fact filed no submissions before me.
The police prosecutor opted to rely on the evidences within the PHUB, also filing no submissions on his behalf. Given such and subject
to the above approaches, I will apply that as explained under Category A.
POLICE EVIDENCE/ HAND-UP BRIEF
- At this juncture, it is only proper to lay out the evidences as are contained within the PHUB. The contents of the PHUB are as follows:
- Witnesses’ Statements
- Statement of Victim namely Meriam James obtained and produced on 26th October 2021;
- Statement of Witness namely Colleth Yamiangu obtained and produced on 26th October 2021;
- Statement of Dr. Michael Alua of Vanimo General Hospital, produced on 05th November 2021;
- Statement of Policewoman corroborator, produced on 10th November 2021; and
- Statement of Policewoman Investigator, produced on 29th October 2021.
- Documentary Evidences
- True copy of “Record of Interview English Translation” at pages 10, 11, 12, and 13 of the PHUB;
- True copy of “Record of Interview Original Pidgin Version” at pages 14, 15, 16 and 17 of the PHUB; and
- True copy of the “Medical Report” prepared by Dr. Michael Alua at page 18 of the PHUB.
- I will now proceed to conduct my inquiry in line with the approach as explained in brief under Category A, in doing so, the following
issues must be addressed:
RELEVANT ISSUES AND DISCUSSIONS
- The following are the issues for my consideration:
- Whether I should proceed with conducting an inquiry into the contents of the witnesses’ statements and documentary evidences
without a legally represented defendant filing any submission on sufficiency of evidence?; and
- If no, is it proper for me to commit defendant for trial in the National court without first determining the prima facie status of
the PHUB against the defendant?
- The first issue regards the summary explanation under Category A above. DCA S. 94B (1) in my view provides expressly that I may commit the defendant to stand trial in the National Court upon only confirming that the
documents contained within the PHUB are in order, legally obtained and served on the defendant in accordance with DCA S. 94 without considering their respective contents. However, provided that the Lawyer for the defendant waived their right to request
for submissions to be head. I am satisfied that, the approach provided above is available to me when the defendant’s lawyer
with instructions from him elected not to file any submission on sufficiency of evidence. Therefore, it would appear to me as improper
to exercise my discretion to look into the contents of the witnesses’ Statements and documentary evidence when legally represented
defendants on their part waived the right to request for such an inquiry. I will answer issue one as no, it is not necessary for
me to do such when there is no submission before me for deliberation.
- The second issue concerns the tasks under DCA S. 95, that is, to inquire into the contents of the evidences and decide whether there is a prima facie case or not against the defendant
to either commit him for trial or not. This requirement follows through from those set out under DCA S. 94C (1) (a) & (b). Both these provisions are to be read starting with DCA S. 94B (2) (a) & (b), so it is my position that were the legally represented defendant opted not to file any submission on sufficiency of evidence, as
per my answer to issue one, DCA S. 94B (2) (a) & (b) and the other continuing provisions are not invoked and does not necessarily apply. All that is required of me is to ensure DCA Ss. 94 and 94C (2) are complied with warranting my committal of the defendant for trial in the National Court. Therefore, I will answer issue two with
a yes, it is proper for me to commit the defendant for trial in the national court without first considering the prima facie status
of the PHUB against him.
RULING ON THE SERVICE OF THE PHUB AND THE FORM AND CORRECTNESS OF THE WITNESSES’ STATEMENTS AND OTHER DOCUMENTARY EVIDENCES
CONTAINED THEREIN.
- I am satisfied that the PHUB was dully served on the defendant and properly handed up to court in compliance with the requirements
under DCA S. 94. The proof of service (POS) document lodged as the first document within the PHUB confirms this. From the POS I am satisfied that
the PHUB was served on the defendant on 25th November 2021 at Don Bosco Secondary School here in Vanimo Urban.
- I am also satisfied that the documents within the PHUB appear to be in their correct order, that is, a Police Information containing
the charge, Prosecution Brief of the allegation, witnesses’ statements of five witnesses namely Meriam James the victim, Colleth
Yamiangu, Dr. Michael Alua, Constable Sholian Beno and Constable Quinnie Peyikre. All witnesses’ statements appear in the correct
format and signed respectively by the deponents. I am satisfied as per DCA S. 94C (2) that all the persons making the statements understood what was contained in their respective statements.
- I confirm with the PHUB documentary evidences comprising the Record of Interview translated English version, Record of Interview Original
Pidgin version and the Medical Report prepared by Dr. Alua. All these documents to my satisfaction appear in their correct formant.
- Therefore, I find it proper to have the defendant based on the evidence contained within the PHUB committed to stand trial in the
National Court without considering the statements’ and documents’ contents. Should there be any miscarriage of justice
on my part by taking this approach, I am of the opinion that the defendant would not in any way suffer any prejudice, I say this
in line with the position taken by His Honor Lay J (as he then was) in Liri v. The State (2006) N3110, where he held that:
“Nothing is finally decided by the committal proceedings. The applicant’s constitutional rights will be protected on trial
from any deficiency in the evidence”
- To conclude, I inquired with counsel whether his client intend to make any DCA S. 96 statement which he replied in the affirmative. I proceeded to administer to the defendant the required caution and had him make his
statement. The defendant read from a written one page document and upon conclusion, counsel tendered before me the said document.
The Statement was duly signed and dated by the Defendant. My listening of the statement does not confirm any admission on his part
so it was unnecessary to further progress this matter but rather have him committed to stand trial in the National Court on a date
to be set by the National Court Registry.
- I now issue the following orders to conclude this matter before me.
COURT ORDER:
- The Defendant is committed to stand trial in the National Court based on the evidence contained within the Police Hand-Up Brief;
- Defendant’s bail of K400 is extended to the first mention before the National Court here in Vanimo on a date to be set by the
National Court Registry. Bail is extended on the conditioned that the Defendant observe the following:
- Not to leave Vanimo Urban, West Sepik Province until his first mention before the National Court;
- Not to reside at any other location but only at Wusipi Settlement, his current place of residence;
- Not to interfere with the State witnesses, in particular the Victim Meriam James;
- Not to commit any other criminal offences;
- Not to consume alcohol beverages or drugs of any sorts; and
- To appear at the first mention before the National Court.
- Bail conditions extend until such time it is reviewed by the National Court sitting here in Vanimo; and
- Clerk of Court Vanimo District Court House is directed to ensure all relevant registry process are complied with to ensure mention
of this matter at the National Court within a reasonable time.
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