N7963

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1259 OF 2018 

THE STATE

V

KENNETH PENIAS
(NO 1)

Esa'ala, Alotau:  Toliken, J
2019:   13 May, 22 July

CRIMINAL LAW – Particular offence – Rape – Three counts – Trial –  Circumstances of aggravation – Position of trust, authority or dependency Trial – Whether accused sexually penetrated the complainant – Whether or not the complainant consented – Whether or not the accused stood in a position of trust, authority or dependency – Criminal Code Ch. 262; s 347,(1)(2).

The accused was charged with three counts of rape with circumstances of aggravation. It was alleged that the accused, who at the relevant time, was the step-father of the complainant, took the complainant into Alotau from her village on Ferguson Island to photocopy her School Certificates. The accused berthed his dinghy at the Sanderson Bay Wharf. He informed the complainant that some of his criminal friends wanted to use his dinghy to commit a robbery and in the evening he took her out to sea on the dinghy to rendezvous with his friends, telling the complainant on the way to co-operate with his friends. The complainant protested and the accused told her that she would have to co-operate with him then. So he removed her clothes, put her down on the floor of the dinghy and sexually penetrated amidst her protest and cries. He then threatened to throw her clothes into the sea if she did not stop crying and take her naked to his criminal friends. After sexually penetrating her he took her back to Sanderson Bay and they slept there in the dinghy. Around midnight the accused woke the complainant up and had sex with her again. Other dinghies and boats were berthed at the Bay at that time.

On another day about a week later, the complainant jumped on the accused dinghy again to Alotau. They again berthed at Sanderson. In the evening the accused took the accused out to sea again and sexually penetrated her again.

The accused denied sexually penetrating the complainant without her consent on all three occasions. He also denied that he is the step-father of the complainant. 

Held:

(1)	  I am satisfied beyond reasonable doubt that the accused sexually penetrated the complainant twice on the night of 17th October 2017 and once on a night in the last week of October 2017. I am also satisfied beyond reasonable doubt that the complainant did not consent to being sexually penetrated on each occasion.  

(2)	I am satisfied also that the complainant only submitted because of fear for her safety and because she was helpless and effectively detained at sea without any possibility of escape or calling for help.

(3)	I find that there was a de facto relationship between the accused and the complainant’s mother subsisted at the times the accused raped the complainant. In those circumstances the accused therefore stood in a position of trust when he sexually penetrated the complainant against her will.

(4)	But even if that were not the case, the complainant was a passenger in the accused’s dinghy on both days she was sexually penetrated by the accused in which case a de facto relationship of trust existed and the accused breach the trust reposed in him.

(5)	I return verdict of guilty on all three counts. 

Cases Cited: 
Papua New Guinea Cases

Meaoa v The State [1996] PNGLR 280 
The State v Alois Dick (2007) N3219
The State v Preston Paulus; CR NO. 155 OF 2015 (No.1) (unnumbered and unreported judgment dated 13th July 2018)

Overseas Cases Cited:

Browne v Dunn (1893) 6 R 67

Counsel:

A Kupmain, for the State
N Wallis, for the Accused

JUDGMENT ON VERDICT
22nd July, 2019

1.    TOLIKEN J:  The accused Kenneth Penias stands indicted with three count of rape with circumstances of aggravation pursuant to Section 347(1)(2) and Section 349A of the Criminal Code Ch. 262.These are:

COUNT 1:	"...[T]hat he, on 17th day of October 2017 at Sanderson Bay in Alotau sexually penetrated one Anna John without her consent.
			And that at the time of the offence, there was an existing 				relationship of trust of trust, authority and dependency 				between [him] and the complainant in that [he] was the 				step-father of the [complainant]." 
	
COUNT 2:	" ... [T]hat he, on 17th October 2017 at Sanderson Bay, in 		Alotau, Papua New Guinea sexually penetrated one Anna 		John with her consent. 
			And that at the time of the offence, there was an existing 				relationship of trust, authority and dependency 					between [him] and the complainant in that [he] was the 				step-father of the [complainant]." 

COUNT 3:	“... [T]hat he on an unknown date in the last week of 				October 2017 at Sanderson Bay, in Alotau, Papua 					New Guinea sexually penetrated one Anna John with her 				consent. 
			And that at the time of the offence, there was an existing 				relationship of trust of trust, authority and dependency 				between [him] and the complainant in that [he] was the 				step-father of the [complainant]." 

THE ALLEGATIONS

2.   The complainant, Anna John was at the time of the alleged offence 19 years of age. She had just completed Grade 12 in 2016 and had been living with her aunty Isabella Sebuloni at Waigani Estates, Alotau.  However, her mother took her back to the village at Palavi on Ferguson Island. Her mother had married the accused and was therefore a step-father to the complainant.

3.   On 15th of October 2017, the complainant's mother and the accused advised the complainant to accompany the accused into Alotau to photocopy his school certificates. And so they travelled together to Alotau on the accused's dinghy on 16th October 2017.

4.   On the next day the 17th of October 2017, the accused took the complainant out on his dinghy to the sea offshore from Goilanai. There he threatened her and forcefully had sex with her without her consent. He then took her back to the Sanderson Bay where he issued threats to her not to leave the dinghy.

5.   Then around midnight between 11.00p.m - 12.00a.m the accused had sex with her again without her consent.

6.   The complainant was greatly affected after this second incident and so when they arrived back in the village she reported the matter to her mother but her mother did not report the matter to the police.

7.   Then on the last week of October 2017, on a Monday, the accused took the accused back to Alotau. There he again took the complainant on his dinghy out to the seat at Goilanai and again had sex with her without her consent. The next day the complainant ran away from the accused to her aunty Isabella Sebuloni and reported the matter to her. Her aunt took her to the Alotau Police Station the next day and laid a report.

8.   The State alleged that the accused stood in a position of trust, authority and dependency and in doing what he did he abused that position of trust.
	
PLEA

9.   The accused generally denied all three counts. He denied that he sexually penetrated the complainant without her consent and further denied that he was the complainant's step-father. 

ISSUES

10.	The issues for my determination are therefore:

	1.	Whether the accused sexually penetrated the complainant 			without her consent as alleged on all three counts; and
	2.	Whether he stood in a position of trust, authority and 				dependency in respect of the complainant and whether he 			breached that trust.

THE OFFENCE

11.    Section 347of the Code relevantly provides for the offence of rape 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 Subsection (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.

ELEMENTS OF OFFENCE

12.  To secure a conviction the State must prove the following beyond a reasonable doubt:

	1. 	The Accused;
2. 	Sexually penetrated with his penis or other body parts or object;
	3.	The complainant's vagina or anus or mouth;
	4.	Without her consent; and 
5.	The accused stood in a position of trust, authority or dependency in respect of the child. 

THE EVIDENCE

13.   The evidence on all three counts came only from the complainant, her aunt Isabella Sebuloni and the accused, the accused Record of Interview and the Doctor’s report. 

UNDISPUTED FACTS

14.  The complainant, Anna John was 19 years old at the time of the alleged offence. She had just completed Grade 12 in 2016 and had been living with her aunty Isabella Sebuloni at Waigani Estates, Alotau.  However, her mother had taken her back to the village at Palavi on Ferguson Island with the intention of assisting her to further her education. 

15.   At that time her mother was in a relationship with the accused. Whether they were legally married or not, is not entirely clear, but they were cohabitating or living together.

16.  On 15th of October 2017, the complainant's mother and the accused advised the complainant to accompany the accused into Alotau to photocopy her school certificates. And so on 16th October 2017 the complainant and 5 other passengers travelled to Alotau on the accused's dinghy.  

17.  They berthed the dinghy at the Sanderson Bay Wharf area. The other passengers and the accused’s crew named Robin left while the accused and the complainant slept in the dinghy that night. The alleged rapes (counts 1 & 2) allegedly took place that night in the dinghy out at sea off the coast of Goilanai and then late in the night in the dinghy at Sanderson Bay. This is of course disputed and I will return to it presently.

18.   They returned to Ferguson Island the next day after the complainant had photocopied her documents. The accused in fact photocopied the documents for the complainant at Nur Printing. 

19.   Upon arrival back home the complainant did not feel well and was very uncomfortable staying with her mother and the accused. She did not talk to her mother immediately - a fact admitted by the accused. After 3 days she garnered enough courage and told her mother that the accused had raped her. Her mother, however, nonchalantly brushed this aside telling her that she will take this easy. The complainant was not happy about this and kept on telling her mother that she wanted to return to town.

20.   In the last week of October 2017, the complainant finally returned to town. She again jumped on the accused dinghy. They again spent the night on the dinghy at Sanderson Bay. The third alleged incident (which is also disputed) happened that night again out at sea off shore of Goilanai. The next morning the complainant was able to get a cousin of hers to accompany her to her aunt’s place at Waigani Estate.  There she reported the alleged assaults to her aunt who later reported it to the police.

21.  It appears that the matter was not immediately reported to the police though, but sometime in May 2018 after the accused was arrested for the alleged wilful murder of the complainant’s former partner. 

22.   It so happened that the complainant’s mother had confided in her former partner about the alleged rape of her daughter by the accused. The accused reacted angrily and violently when learning of this and allegedly killed him. 

23.  The accused was already in police custody when he was arrested and charged for the alleged rape of the complainant.

DISPUTED FACTS/ISSUES  

24.  It is alleged by that State that the accused sexually penetrated the complainant against her will and by force twice on the night of 17th October 2017 out at sea offshore from Goilanai and again on another night in the last week of October 2017. The accused denied all these charges. I will deal with all three counts as they are separated only by several days. I will also deal with the issue of penetration and consent together.

ISSUE 1:	WHETHER OR NOT THE ACCUSED SEXUALLY PENETRATED THE COMPLAINANT WITHOUT HER CONSENT TWICE ON 17TH OCTOBER 2017 AND AGAIN ON A DATE IN THE LAST WEEK OF OCTOBER 2017.

25.	The complainant testified that while they were at Sanderson Bay on 17th October 2017, the accused told her that some of his friends (criminals) had asked to use his dinghy to rob Digicel.
 
26.  Around 6.00p.m, he asked her to accompany him to go and see his criminal friends, but she refused asking him instead to take her to his uncle’s place.  The accused, however, insisted that she accompanied him and started the outboard motor and headed out to sea toward Goilanai.
 
27.   On the way he was telling her about his friends. He told her to co-operate with them if they wanted to do anything to her.  She protested that he should have left her behind and they started to argue. The accused stopped the engine and said to her “If you don’t want me to take you to my friends then you must co-operate with me.”   

28.   The complainant started to cry telling him that he was not supposed to do this to her as he was married to her mother already.  The accused, however, kept on insisting that she goes with him to his friends, and when she continued to protest, he again told her to listen to him and do what he says if she did not want him to take her to his friends. 

29.  In the midst of their argument the accused removed the complainant’s clothes against her will. She continued crying as he put her down on the dinghy floor and raped her. After having had sex with her he told her to stop crying and not to tell anyone otherwise he’ll take her to his friends. She, however, continued to cry, asking him why he had done this to her. He threatened to throw her clothes into the sea and take her naked to his friends if she did not stop crying.  After that they returned to Sanderson Bay and slept in the dinghy.

30.   During the night when the complainant was asleep the accused woke her up and had sex with her the second time, again against her will. They returned to the village the next village. She was feeling sore in his arms and in pain.

31.   In cross-examination the complainant said that the accused had left for town that day telling her that he will go and see some friends. He told her to stay in the dinghy and threatened to attack her uncle if she went to him. He was away for 25 - 30 minutes. She admitted that people came and went between 2.00p.m and 6.00p.m, but she did not tell them what the accused had allegedly done to her. She admitted that there were other dinghies and boats birthed at the Sanderson Bay that night. 

32.   In respect of the 3rd Count the complainant testified that she was not comfortable living with her mother and the accused after he had returned to the village. She said that despite reporting what the accused had done to her to her mother she did not do anything and that the accused also became very possessive of her and her sister and would not allow them freedom to move around or talk to others in the village.

33.   She was desperate to leave the village and return to her aunt at Waigani Estates and expressed this openly to her mother. Having no other option she hopped on with the accused and Timothy when he travelled to Alotau in the last week of October 2017.

34.   When they arrived in Alotau (Sanderson Bay) the accused did not allow her to leave the dinghy. Towards the evening she asked him to take her to the Transit Centre so that she could go and spend the night at her uncle’s place. The accused pretended to take her to Transit Centre, but instead headed out to sea toward Goilanai. There, out at sea he again raped her. They returned to Sanderson Bay and spent the night in the dinghy. She admitted that there were other people in their dinghies at the Bay, but she was too frightened to alert them of what the accused had done to her. 

35.   The next morning when the opportunity presented itself, she and a cousin made their way to the Market and from there she went to Waigani Estates. She reported the matter to her aunt. She conceded in cross-examination that this was not immediately, but sometime after the accused had been apprehended and in custody.  Her aunt corroborated the complainant on this. 

36.  The accused on the other hand testified that while in Alotau (on 17th October 2017) he told her to remain in the dinghy while he went to Nur Printing to photocopy her certificates. He returned and gave her K20.00 and told her to go the market. She did not go to the market, but instead went to her uncle’s place. She returned with three of her cousins, one of whom asked for a ride back home with the accused. 

37.   The next day (18th October 2017) the accused gave her K150 and told her to do shopping for herself and her mother. When she returned he asked her to stay in the dinghy while he went to refuel. When he returned in a taxi with the fuel, the complainant’s cousins were with her so he asked them to assist him take the fuel to the dinghy. After loading their cargo and passengers with the help of her cousin brothers they set off for Salamo. They arrived at Salamo late in the afternoon around 5.00pm. They dropped off passengers and headed across to Begasi where they anchored the dinghy and set off on foot to the complainant’s mother’s village. He had wanted to go on to his own village, but the complainant’s mother stopped him and so he spent the night with them.

38.   The accused vehemently denied ever sexually assaulting the complainant on any of the occasions alleged. 

39.   In cross-examination, the accused was referred to his answer to Q.34 of his Record of Interview. There following exchange is recorded:

Q.	Her mother upon knowing what happened to her she felt shy and was so upset with you for what you did to her, and told the daughter or the victim that she is sorry. Later you talked with your wife in the night and you told her to wake her up and apologise and she did, what will you say to this? (Sic.)
A.	Yes I said sorry and admitted to the mother telling her that I asked her out and she agreed and so both of us had sex, both of them started arguing when I left. (Sic)

40.   The accused denied ever making such a statement to the arresting officer.  

41.    On 19th October 2017, he received a call from teachers at Galuboa Primary School asking him to take them to Alotau to collect school materials. As he was preparing to leave Begasi for Salamo the complainant packed her bag and wanted to go with him because she had been angry with her uncles for not assisting her with her school fees.  

42.  As she was carrying her bag to the dinghy a heated argument erupted between herself and her mother and sister. The accused said he stopped the complainant’s mother from hitting the complainant, telling her that the complainant had the right to leave. The complainant and her mother continue hurling abuses at each other as the accused walked down to the dinghy. The complainant and her cousin brother Timothy hopped on and they left for Salamo and then on to Alotau.

43.  When they arrived in Alotau, the accused asked the complainant if she could go and spend the night at her uncle’s house, but she refused and they all slept in the dinghy instead. All the dinghies from Esa’ala were all berthed together. There were about 15 – 16 dinghies altogether at the Bay that night. No one left the Bay or travelled out that night for fear of having their dinghies impounded by Officers the Maritime Safety Division at Sanderson Bay. In any case the complainant would have easily reported to the other people around if he had raped the complainant. 

44.   The next morning the accused said he K50 to the complainant to buy their breakfast at Boss Mei. She returned with breakfast but did not want to eat with the others. He told her to keep the change and then after giving her another K20 he told her that she can then go to Waigaini and she left.

45.   It was not until some 10 months later that the accused said he was called in by PWC Sheila James when in detention for his other case that he was arrested and charged for the charges under enquiry.

	DELIBERATIONS 
	
A:     Whether the Accused Sexually Penetrated the Complainant

(i)	The Law

	Sexual Penetration

46.    Section 6 of the Code defines “sexual penetration” as the insertion, to any extent, of the penis, other body part or object into the vagina, anus or mouth of any person.  Full penetration is therefore not required to prove penetration. It has been held that licking a victim’s vagina for the purpose of stimulation or arousal constituted penetration within the meaning of Section 6 of the Act. The State v Alois Dick (2007) N3219) In The State v Preston Paulus; CR NO. 155 OF 2015 (No.1) (unnumbered and unreported judgment dated 13th July 2018) I held, among other things, that  reference to the “vagina” in the Criminal Code is a reference generally to the female genitalia including the external part called the Vulva which comprises the labium - the labia majora and labia minora -and therefore the insertion of a penis, or object, or other body part, to any extent, into the outer part of the female genitalia is sufficient to constitute penetration, and that is because the vagina as we laymen understand it does start from the vulva itself.    

Corroboration

47.   Corroboration is no longer required to convict a person on a charge of rape or any other offences under PART IV – Division 7 of the Code. Section 352A of the Code provides that a person may be found guilty on the uncorroborated testimony of one witness, and a Judge shall not instruct himself that it is unsafe to find the accused guilty in the absence of corroboration.
(ii) 	Analysis of Evidence 
48.   I have heard and observed both the complainant and accused in Court and have heard submissions from counsel. And really, this is a case of whom to believe. 
49.   The complainant was a girl of very slight built, soft spoken, but very confident. She was visibly shaken and her voice cracked at times when recounting what happened to her on the dinghy. She stood firm and did not buckle under intense cross-examination by Mr. Wallis. I found her to be a very credible witness. 
50.   The accused on the other hand is a strong muscular man and appeared to me to be of forceful character. And as expected he was confident and remained resolute also under similarly intense cross-examination by Mr. Kupmain. He did supply a few facts which were not evident from the evidence of the complainant such as the fact that it was him who photocopied her documents and that he was arrested much, much later for this offence when he was in custody for his charge for wilful murder. There were, however, aspects of his evidence that were not put the complainant and therefore infringed the Rule in Browne v Dunn (1893) 6 R 67. For instance, it was not put to the complainant that the accused had given her K150.00 for shopping and that the accused had asked her to follow her cousin Timothy to his father’s house to spend the night there when they returned to Alotau in that last week in October 2017. The complainant therefore did not have the opportunity to respond let alone counter the accused evidence on these matters.
51.   Be that as it may, I am satisfied that the accused had told the complainant that his criminal friends had asked for his assistance to rob the Digicel Shop, obviously in Town because there are no other Digicel shops in the province. 
52.   I am satisfied that on the evening of 17th October 2017, the accused took the complainant out to sea outside of Goilanai with the original intention of taking her with him to rendezvous with his criminal friends. As they were travelling out he demanded that she co-operated with them and do whatever they asked of her. 
53.   I find that when she refused he instead instructed her to comply with his instructions. I accept the complainant’s evidence that he removed her clothes, put her down on the dinghy floor and sexually penetrated her vagina with his penis amidst her protests and cries. And after he sexually penetrated her the accused threatened to throw her clothes into the sea and take her naked to his criminal friends before taking her back to the Sanderson Bay where they berthed the dinghy and slept. 
54.   I accept that there were other dinghies and possibly boats as well at the Sanderson Government Wharf that night as normally is the case. So there would have been other persons around as the accused said. However, that did not stop the accused from waking the complainant up around midnight and sexually penetrated her the second time that night. 
55.  What about the third count?
56.  I am satisfied that when the accused and the complainant and other passengers including her cousin Timothy arrived in Alotau that day in the last week of October 2017, the others left and the accused and the complainant again spent the night in the dinghy at Sanderson Bay. I accept that, as was the case on the previous occasion, there were other persons in their dinghies and boats which were berthed at Sanderson Bay. 
57.   I do not believe that the accused had asked the complainant to follow her cousin Timothy and spend the night at her uncle’s. I believe the complainant that when she asked the accused to take her to the Transit Centre, the accused pretended to take her there in the dinghy, but instead took her out again to the sea offshore from Goilanai. There in a situation where the complainant was essentially detained with no change of escape, the accused again sexually penetrated the complainant’s vagina with his penis. 
	B.	Whether the Complainant Did Not Consent
58.   So, did the complainant consent to being sexually penetrated by the accused on all three occasions? 
 (i)	The Law
Meaning of Consent
59.  Section 347A of the Code defines "consent" as "free and voluntary agreement." Hence, for a person to have consented to an act of sexual penetration, or any sexual activity for that matter, he or she must have freely and voluntarily or willingly agreed to being sexually penetrated.  Section 347A goes on to say that the following circumstances will not constitute consent:

	a)	the person submits to the act because of the use of violence or 			force on herself/himself or r someone else; or
	b)	the person submits because of the threats or intimidation against 		that person or someone else; or
	c)	the person submits because of fear of harm to herself/himself or 		someone else; or
	d)	the person submits because she or he is unlawfully detain; 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 not capable of understanding the essential nature of 		the act or of communicating his or her willingness 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) 	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.
60.   In determining whether or not a person consented, this provision also says that the court 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 on an earlier occasion, he freely agreed to 				engage in another sexual act with that person or some 				other person.
61.  Section 347B further provides that it is not a defense that the accused person believed that the other person consented to being sexually penetrated where the accused person's belief arose from his self-induced intoxication, or reckless or willful blindness, or where the accused person did not take reasonable steps, in the circumstances known to him at that time, to ensure that the person was consenting.
(ii)	Analysis of Evidence
62.   So, on the facts, could it possibly be said that the complainant consented to the two acts of penetration on the 17th of October 2017? I think not. The complainant in this situation was under the complete control of a strong and powerful man. She did not put up a physical fight when they were out at sea as the accused penetrated her because of the threats and intimidation issued by the accused. She obviously submitted because of fear of harm and while at sea she was effectively detained without any possibility of escape. In fact escape was impossible.
63.   The situation and the threats of harm did not dissipate or disappear after they returned to shore. The accused was still very much in control and any attempt to raise alarm or escape would have invited immediate repercussions from the accused.
64.  The accused denied sexually penetrating the complainant. This denial, however, flies in face of his admission in Q & A 34 of his Record of Interview. He did not challenge the admissibility of the Record of interview, if that admission was not made, or if made, was secured unfairly or involuntarily. The Record of Interview was tendered by consent and therefore the admission made by the accused there that he did have sex with the complainant (albeit purportedly by consent) still stands and must be taken against him.  
65.  I am satisfied beyond reasonable doubt that the accused sexually penetrated the complainant twice on the night of 17th October 2017 as I have already found. I am also satisfied beyond a reasonable doubt that the complainant did not consent to being sexually penetrated on each occasion that night. 
66.   What about the incident on that day in the last week of October 2017? I am satisfied also that the complainant submitted, but did so only because of fear for her safety and because she was helpless and effectively detained at sea without any possibility of escape or calling for help. She therefore did not consent.
67.   And so in conclusion I am satisfied beyond a reasonable doubt that the accused sexually penetrated the complainant without her consent. Notwithstanding the absence of corroborating evidence, I was impressed with the complainant’s evidence and demeanour. I found her to be a truthful witness.  That cannot, however, be said about the accused who, despite coming across very confident, displayed the traits of someone who was good at detracting from the truth.
ISSUE 2:	WHETHER THE ACCUSED STOOD IN POSITION OF TRUST
68.	Finally was the accused in a position of trust in respect of the complainant?
	(i)	The Law
Circumstances of Aggravation 
69. Circumstances of aggravation may include (but not limited to) circumstances where the accused abused a position of trust, authority or dependency when committing the offence. (See Section 349A for other circumstances of aggravation)
Relationship of Trust, Authority or Dependency
70.  Section 6 of the Code defines “relationship of trust, authority or dependency” to include (but not limited to) the 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 counsellor 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.

71.   The Supreme Court in Meaoa v The  State [1996] PNGLR 280 ( Kapi DCJ, Los and Doherty JJ ), held that positions of trust are not limited and may extend to  such de facto situations as a vehicle or a boat operator and his passengers. This position has now been given legislative force by Section 6A of the Code as we have seen.
  
	(ii)	Analysis of Evidence 

72.   The complainant testified that the accused was “married” to her mother. The accused, however, denied this, saying that he’d only been with the complainant’s mother for a very short time, about two weeks. And even then, he did not live with her. 

73.   As I said earlier it is not entirely clear if the complainant’s mother and the accused were ever married. The complainant’s mother was not called to explain the nature of their relationship and whether they were cohabitating. 

74.   Be that as it may, I am satisfied that they were in some sort of a de facto relationship. I do not believe that it was a mere two week fling or acquaintance, as the accused would like us to believe. On the contrary, I would like to believe and indeed find that there was a de facto relationship between the accused and the complainant’s mother which would have started well before the complainant returned to village at the behest of her mother and subsisted at the times the accused raped the complainant. In those circumstances the accused therefore stood in a position of trust when he sexually penetrated the complainant against her will.

75.   But even if that were not the case, the complainant was a passenger in the accused’s dinghy on both days she was sexually penetrated by the accused without her consent. In that situation according to what the Supreme Court said in Maeoa v The State (supra), a de facto relationship of trust existed. In both circumstances, I am satisfied beyond reasonable doubt that the accused stood in a position of trust and that he breached the trust reposed in him. 

VERDICT
76.   In conclusion I therefore return verdicts of GUILTY on each count of rape with circumstances of aggravation as preferred against the accused.

Ordered accordingly,   
_______________________________________________________
Public Prosecutor:  Lawyer for the State		
Public Solicitor:  Lawyer for the Accused