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State v Mosanga [2011] PGNC 282; N4669 (16 November 2011)

N4669

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 951 OF 2010

THE STATE

V

KEBI MOSANGA

Lae : Gabi, J
2011 : 16 November

CRIMINAL LAW – rape – accused charged with offence of rape - allegations of inducement by accused on victim – whether accused and victim close blood relatives – whether there was consent – whether there existed a relationship of trust, authority and dependency – if there was whether accused used that position to offer inducement – evidence reveals no blood relations – no relationship of trust, authority and dependency - accused acquitted – ss 6A & 347 Criminal Code Act

Facts

The accused was indicted with three (3) counts of rape. The State's case is that the accused was the victim's "grandfather" and that he offered her money and a mobile phone to "induce" her to have sexual intercourse with him. There is no question that sexual intercourse took place as the accused and the victim readily admitted having sexual intercourse. The issues therefore are: (i) whether the victim consented to sexual intercourse; (ii) whether there was an existing relationship of trust, power or authority between the accused and the victim; and (iii) if there was, whether the accused used that position to offer inducement.

Held:

1. The accused and the victim are not related by blood.

2. There was no existing relationship of trust, power or authority between the accused and the victim at the time the offence occurred.

3. The accused is acquitted of the charge of rape.

Cases Cited

The State vs. Steven Tari Nangimon Garasai (2010) N4137

Counsel

J. Done, for the State
L. Vava, for the accused

VERDICT

16 November, 2011

1. GABI, J: Introduction: Kebi Mosanga, the accused, was indicted with three (3) counts of rape. The State's case is that the accused was the victim's "grandfather" and that he offered her money and a mobile phone to "induce" her to have sexual intercourse with him. There is no question that sexual intercourse took place as the accused and the victim readily admitted having sexual intercourse. The issues therefore are: (i) whether the victim consented to sexual intercourse; (ii) whether there was an existing relationship of trust, power or authority between the accused and the victim; and (iii) if there was, whether the accused used that position to offer inducement.

The Evidence

2. The victim, WG, was born on 19th September 1991. She was a grade 9 student at Dregerhhafen Technical Secondary School at the time of the offence. She grew up in Butaweng area. The accused and his family have also been living in the same area for the last twenty-six (26) years. The victim's family and the accused's family knew each other and the accused and the victim's mother called each other "aunty" and "uncle." The accused called the victim "granddaughter" and the victim called the accused "grandfather." It is alleged that the accused is related to the victim through her mother.

3. The victim admitted to having sexual intercourse with the accused on
25th January 2009, 2nd March 2009 and 14th June 2009. Hereunder is her evidence.

4. On 25th January 2009, the accused rang the victim and asked her to meet him at Butaweng waterfall. They met at a location about 100 meters from the waterfalls and had sexual intercourse. The accused gave her K200.00 and told her not to tell her parents. On 2nd March 2009, the accused called her in the morning and told her that he would pick her up in the afternoon in his vehicle. The accused picked her up in his vehicle and dropped her off at Butaweng waterfalls. She walked up to the location where they had sex initially on
25th January and waited for him. He joined her and had sexual intercourse. He gave her K500.00 and again warned her not to tell her parents. On 14th June 2009, he rang her in the morning between 6.00 and 7.00 am and asked her to meet him in the afternoon at his house. She met him near the Braun Hospital sign post and went to his house where they had sex. At that time the accused's family were not in the house. He did not give her any money that time but promised to do so later and sent her away.

5. In cross-examination, the victim said that she agreed to sexual intercourse because of the promise by the accused to give her money, that she had a boy friend/girl friend relationship with the accused and that she was not sure of her family relationship with the accused but her mother knew.

6. The victim's mother gave evidence on her relationship with the accused. According to her, the accused is related to her through her mother, Kem Bong. Kem Bong's mother was Oka Zora. The accused's grandmother was Luse and Luse's mother was Sara Baue. Oka Zora and Sara Baue were blood sisters. Later in her evidence, during examination in chief as well as cross examination, she indicated clearly that she was not really certain of the family tree or her family relationship with the accused. She became aware of the relationship between the accused and the victim in June 2009 and beat the victim after learning about it. The relationship ended roughly around that time as well.

7. The accused gave sworn evidence. He admitted that the relationship between him and the victim was girl friend / boy friend relationship and that sexual intercourse was consensual on those three occasions. He denied giving money to the victim immediately after sexual intercourse. He said the money, which amounted to K700.00 in all, was given over a period of about three weeks after each act of sexual intercourse. The money was to pay the outstanding school fees at Dregerhhafen Technical Secondary School. The victim denied this piece of evidence. He admitted giving a mobile telephone to the victim and said that the relationship started after the victim sent him a note asking for items such as shampoo and agreed that it ended in June 2009. He was asked if he has any family relationship with the victim and he denied been related to the victim by blood. He was a member and chairman of Gagidu Primary School from 2001 to 2007. He was never a Board member of Dregerhhafen Technical Secondary School.

The Law

8. Sections 6A and 347A of the Criminal Code are the relevant provisions.

"6A. Relationship of trust, authority or dependency.

(1) When the term 'relationship of trust, authority or dependency' is used in the definition of an offence, the offence, so far as regards that element of it, is complete upon proof that there was an existing relationship of trust, authority or dependency between the accused and the victim at the time the offence occurred.

(2) A 'relationship of trust, authority or dependency' includes, but is not limited to, circumstances where—

(a) the accused is a parent, step-parent, adoptive parent or guardian of the complainant; or

(b) the accused has care or custody of the complainant; or

(c) the accused is the complainant's grandparent, aunt, uncle, sibling (including step sibling) or first cousin; or

(d) the accused is a school teacher and the complainant is his pupil; or

(e) the accused is a religious instructor to the complainant; or

(f) the accused is a counselor or youth worker acting in his professional capacity; or

(g) the accused is a health care professional and the complainant is his patient; or

(h) the accused is a police or prison officer and the complainant is in his care and control...

347A. Meaning of consent.

(1) For the purposes of this Part, 'consent' means free and voluntary agreement.

(2) Circumstances in which a person does not consent to an act include, but not limited to, the following:—

(a) the person submits to the act because of the use of violence or force on that person or someone else; or

(b) the person submits because of threats or intimidation against that person or someone else; or

(c) the person submits because of fear of harm to that person or to someone else; or

(d) the person submits because he is unlawfully detained; or

(e) the person is asleep, unconscious or so affected by alcohol or another drug so as to be incapable of freely consenting; or

(f) the person is incapable of understanding the essential nature of the act or of communicating his unwillingness to participate in the act due to mental or physical disability; or

(g) the person is mistaken about the sexual nature of the act or the identity of the person; or

(h) the person mistakenly believes that the act is for medical or hygienic purposes; or

(i) the accused induces the person to engage in the activity by abusing a position of trust, power or authority; or

(j) the person, having consented to engage in the sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity; or

(k) the agreement is expressed by the words or conduct of a person other than the complainant.

(3) In determining whether or not a person consented to that act that forms the subject matter of the charge, a judge or magistrate shall have regard to the following:—

(a) the fact that the person did not say or do anything to indicate consent to a sexual act is normally enough to show that the act took place without the person's consent; and

(b) a person is not to be regarded as having consented to a sexual act just because—

(i) he did not physically resist; or

(ii) he did not sustain physical injury; or

(iii) on that or an earlier occasion, he freely agreed to engage in another sexual act with that person or some other person." (Emphasis added)

9. The State's position is that the accused "induced" the victim to engage in sex by "abusing" a position of trust, power or authority pursuant to section 347A(2)(i) of the Criminal Code.

Consent

10. The victim's evidence is that she was "bribed" by the accused to have sex with him. I understood that to mean that she was "induced" by the accused with money and a mobile phone to have sexual intercourse with him. It is admitted by the accused and the victim that money passed between them after each act of sexual intercourse. In cross examination, she said that her relationship with the accused was one of boyfriend/girl friend relationship. In addition, she kept the relationship secret and only ended it in June 2009 when her mother found out and beat her. I am not satisfied beyond reasonable doubt that she did not consent. I believe sexual intercourse was consensual.

Position of trust, power or authority

11. The accused must be in a position of trust, power or authority and abuse that position by offering the inducement. The test of abuse is an objective one. I agree with Cannings J in The State v Steven Tari Nangimon Garasai (2010)
N4137 where he said at paragraph 34:

"However, I consider that in order to determine whether a person has abused – used wrongly or improperly – a position of trust, power or authority, the relevant perspective is not from the point of view of the accused but from the perspective of the People of Papua New Guinea: community standards. That is, the test of abuse is objective, not subjective."

12. Was the accused in a position of trust, power or authority?
Section 6A sets out a non exhaustive list of circumstances where relationship of trust, authority or dependency exists. The State relied on s.6A(2)(c) to argue that the accused was the victim's "grandfather." On the evidence as it stands, I am not satisfied that the accused and the victim are related by blood. According to the evidence of the victim's mother, there is a remote possibility that the accused and the victim may be fourth cousins or some distant relatives. However, the exact nature of that relationship is unclear or uncertain. I am satisfied that the accused is not the victim's grandfather, uncle or first cousin. There was no existing relationship of trust, power or authority between the accused and the victim at the time the offence occurred.

13. For all the above reasons, I acquit the accused of rape.

____________________________________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the accused