State v Garasai [2010] PGNC 145; N4137 (30 September 2010)

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CRIMINAL LAW – trial – rape – Criminal Code, Sections 347(1) & (2) – six counts – whether the accused sexually penetrated the complainant – whether the complainant consented.

The accused, a preacher, was charged with six counts of aggravated rape. There were five complainants, young female members of his ministry who served as flower girls. Three of them gave evidence about the circumstances in which they had sex with the accused. The accused admitted that he sexually penetrated the complainants but denied that this was done without their consent.

1. CANNINGS J: Steven Tari Nangimon Garasai, the accused, is charged with six counts of rape, committed in circumstances of aggravation.

2. Prior to the trial the National Court conducted an inquiry under Section 569 (want of understanding of accused person) of the Criminal Code into the matter of whether the accused was capable of understanding the proceedings. He was subject to psychiatric assessment and the Court on 14 April 2010 made a finding under Section 569(2) that he was capable of understanding the proceedings. He was accordingly called on to plead to the indictment, which was presented on 19 July 2010. He pleaded not guilty and a trial has been conducted.

3. The State alleges that he committed the offences over an 11-month period from June 2005 to May 2006 at the villages of Matepi and Gal, which are in a remote area, 17 km north-west of Madang town, inland behind Mt Hanseman, Madang Province.

4. The accused was aged in his early 30s at the time. He comes from Morobe Province and was raised in Manus Province. He had done some training, but not graduated, as a Lutheran pastor at Amron Bible College, Madang Province. He moved into the area behind Mt Hanseman in 2005 and started the Culture Ministry. He preached to the local people and held himself out to be King Yali, a reincarnation of God Yali, the deceased leader of the Yali Movement. The accused's Ministry was popular and he preached to large gatherings on Sundays. He appointed flower girls to assist in the work of the Ministry and five of them are the complainants in this case. Of the five, three gave evidence. The accused gave evidence, agreeing that he had sex with the complainants but saying that he did so according to the rules of his Ministry. Details of the six counts are in the following table.

No	Complainant	Date	Village	Complainant's evidence
1	"D"	28.06.05	Matepi	Did not give evidence
2	"D"	29.06.05	Matepi	Did not give evidence
3	"R"	16.03.06	Gal	Gave sworn evidence – State witness No 2
4	"F"	31.03.06	Gal	Did not give evidence
5	"S"	27.04.06	Gal	Gave sworn evidence – State witness No 1
6	"B"	30.05.06	Gal	Gave sworn evidence – State witness No 3

5. The crime of rape under Section 347(1) (definition of rape) of the Criminal Code consists of two elements: (a) sexually penetrating a person and (b) without that person's consent. For each count, if the State fails to prove either element the accused will be found not guilty. If the State proves both elements for any count, the accused will be found guilty of rape under Section 347(1) unless it is established that the accused has a defence such as mistake of fact (Section 24) or belief in consent (Section 347B). If the State proves the circumstances of aggravation alleged – abuse of a position of trust, authority or dependency – he will be found guilty of aggravated rape under Section 347(2). The significance of a conviction for aggravated rape is that the maximum penalty is increased from 15 years to life imprisonment for each count.

6. The evidence on each count will be separately considered. The first counts to be considered will be those on which the complainants gave evidence, in the order in which they gave evidence: count Nos 5, 3 and 6. The remaining counts will be dealt with in the order in which they appear on the indictment: Nos 1, 2 and 4.

7. The State relies on the sworn testimony of S, a sexual assault form and the accused's record of interview (admitted into evidence by consent). The accused's sworn evidence was the only evidence for the defence.

8. S is now 19 years old. She was 15 in 2006. She is from Sirau village in the Transgogol area of Madang Province. She is educated to grade 9 at Brahman High School. She joined the Culture Ministry in April 2006 after hearing of a new preacher, Steven Tari, coming to Gal village and going to see him preach the good news. He started collecting Christian men and women and flower girls. Thousands of people were involved. The role of flower girls was to collect flowers and on Sundays stand in front of the podium from where Steven Tari was preaching. He preached in a field in the open air. He announced that he was the King and the Son of God Yali and then he would preach the words of the Bible. She became one of his flower girls. Steven Tari also appointed a number of men to be his security guards.

9. She was Steven Tari's personal assistant. She did whatever he wanted her to do. If she or other flower girls did not do exactly what he wanted they would be removed from the enclosure in which they were living. The flower girls were scared of the security guards. When Steven requested her to bring girls to come to see him she would bring them. The flower girls and Steven stayed in the same enclosure. There were five houses, one for him and four for the flower girls. The houses were in close proximity to each other, only 10 or 15 metres apart.

10. On Thursday 27 April 2006 at about 5.00 pm Steven sent word for her to go and see him. She did not know why. She went to his house and he asked her to have sex with him. She did not want to have sex with him. She was afraid. He told her that he was her bridge to Heaven. She thought of herself and her life and felt that for Jesus Christ to accept her she had to have sex with Steven Tari. So they had sex. Afterwards he shook hands with her and told her to go outside. She did not report the incident to her friends or to her parents as she knew that her life was now with God. She would not have gone to see Steven on that day if she had known that he was going to have sex with her.

11. In cross-examination she agreed that she went to a Catholic high school and received religious instruction and was taught about the Bible. She knew of the teachings of Jesus Christ and knew that He did not have sex with His followers.

12. She was accompanied by her parents when Steven Tari was preaching. There were many men and women from various villages. She went as she wanted to see with her own eyes who Steven Tari was and who the son of God Yali was. She had heard many stories from other people that the new preacher was the son of God Yali. The local people believed that he had been sent to spread the Good News. Her parents and the older people in the area said that Steven Tari was preaching the same messages that God Yali had preached in the old days. She heard that God Yali fought in World War II and won the war and Steven Tari was operating in the same way as God Yali and there was nothing unusual about him having flower girls.

13. Her parents did not tell her that she had to join the Culture Ministry but they were happy when they found out that she had gone to live in Steven Tari's enclosure and become one of his flower girls. They felt that she and the other flower girls were now with Christ.

14. The defence counsel, Mrs Raymond, quizzed S as to why she did not resist Steven Tari's sexual advances. S agreed that the Bible does not say that Jesus Christ had boarding houses for His followers or that He had sex with His followers. If Steven Tari said that he was her bridge to Heaven and she had to have sex with him, didn't she think that that was contrary to the teachings of the Bible? That she did not have to have sex with Steven Tari? That she had sex with him because she wanted to? She consented? S replied that she thought of the Bible, but Steven Tari kept saying that he was now Jesus Christ and she believed in him, as did many others. She thought that he was her bridge to Heaven: to go to Heaven she had to have sex with him. She denied that she wanted to have sex with him. She felt that to be accepted by Jesus Christ she had to have sex with him.

15. It appears from this form that S was medically examined by Dr Henao on 2 June 2006. The form does not state where the examination took place. She is reported to have been "relaxed and stable". The form is of little evidentiary value. It contains no opinion by the doctor as to the circumstances in which S was sexually penetrated.

16. He was interviewed on 12 April 2007 by Sgt Mark Kepiou at Madang police station. He agreed that he started the Culture Ministry at Matepi in 2005 and there were young females from Matepi and Gal who joined and became his flower girls. Their job was to decorate the altar and stand in front of it while he preached. He agreed that he told the people that he was King Yali, son of God Yali, and that he had been sent by his father, God Yali, to bring the people to Heaven.

17. He agreed that he selected S to be his maid and she had to obey his instructions. On Thursday 27 April 2006 he told S that he wanted to see her in his house. He wanted to give her some work to do. He agreed that he had sex with S on that day but denied that she refused and said that she consented.

18. His school name is Steven Tari Nangimon Garasai but his true name is King Yali. He is the founder and leader of the Culture Ministry. He followed its laws in everything he did. The No 1 law is that flower girls belong to the Ministry. They work for the Ministry, not for their parents or the Government. The Culture Ministry operates according to the prophecies of God Yali. Before God Yali died he said to all the grandfathers and grandmothers of Madang: 'If you are married with three daughters, you give two away for marriage and one you give to God Yali to allow him to do his work'. That is God Yali's prophecy. All that he was doing with the flower girls was fulfilling God Yali's prophecy. In his face and body he is Steven Tari but his spirit carries another face: God Yali's.

19. In cross-examination, the prosecutor, Mr Kupmain, asked the accused about the respective roles in his Ministry of security guards and flower girls. The accused replied that he was just following what God Yali had started. Asked whether, as King Yali, he could order that a person be sacrificed for the work of the Ministry, he replied that he had not done that yet. Asked when he had first heard about God Yali's prophecy, the accused replied that he had not 'heard' about God Yali but he knows that his spirit is God Yali's. God Yali's spirit told him what to do and he has done everything according to God Yali's prophecies.

20. Asked if one of the prophecies of God Yali was for him to have sex with his flower girls, the accused replied that this information is sacred and no person should have knowledge of it. It should not have been revealed. God Yali had many women and he – the accused – also had many women. It was put to him that the person called God Yali did not have sex with his flower girls. The accused refuted that suggestion. God Yali was a man and slept with his women. That is a sacred story. No one should know about it. If you have knowledge of it you die, he said.

21. Asked why he had not completed his course at the Bible College, the accused replied that there was friction because of his preaching that there was no other god in the land besides God Yali.

22. He repeated that he had not 'heard' about God Yali. No one told him stories of the old days, he just knew that he was the son of God Yali. He started his Ministry and men and women saw what he was doing and came to hear his preaching. They knew he was King Yali. He revealed himself to them and they accepted him and gathered to hear him preach. Through his Ministry he was able to fulfil God Yali's prophecy, which was that he would go, and return. As part of his fulfilment of God Yali's prophecy he asked parents to present their daughters to him so that they could become flower girls for the Ministry. Asked whether he told his security guards to control the flower girls, the accused replied that everything he did followed what God Yali wanted. Flower girls never disobeyed him because their parents had told them to follow everything he said. He and the flower girls lived happily together until the police became involved.

23. He agreed that he told some of them that he was their bridge to Heaven. He said that because it was true. He was their bridge to Heaven. Those were the words of God Yali, who was also called Black Jesus; and many people now know him as Black Jesus.

24. He and his flower girls lived together harmoniously doing the work of the Ministry. It was only when the government intervened, the police were sent to the village and family members of the flower girls were shot, that people became scared and the work of the Ministry was interrupted. He does not believe that the flower girls who have given evidence, including S, are now free.

25. He agreed that on 27 April 2006 he had sex with S in his house. This was in accordance with the laws of the Ministry. This should have remained a secret, he said.

26. This first element of the offence of rape has been proven beyond reasonable doubt. S has given evidence that she had sex with the accused and the accused agrees that he had sex with her. Neither of them gave details but it is reasonably to be inferred that the accused introduced his penis into the vagina of S, thus satisfying the definition of sexual penetration in Section 6(a) (sexual penetration) of the Criminal Code.

"Consent" is defined by Section 347A (meaning of consent) of the Criminal Code, which states:

(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 [are] 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

(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—

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

28. The issue is whether S freely and voluntarily agreed to be sexually penetrated by the accused. In support of the argument that she did freely and voluntarily agree, are the following facts:

29. Those facts tend to suggest that S consented but they are not conclusive of the issue. In particular S is not, by virtue of Section 347A(3)(b)(i) and (ii), to be regarded as having consented just because she did not physically resist and did not sustain physical injury.

30. In light of those findings of fact I conclude that the circumstances in which the accused sexually penetrated S do not fall within the following paragraphs of Section 347A(2):

31. That leaves the question whether the circumstances in Section 347A(2)(i) apply. Did the accused induce the complainant to engage in the activity by abusing a position of trust, power or authority?

32. It has been proven beyond reasonable doubt that the accused told S that he was King Yali, that he was Jesus Christ, and that he was her bridge to Heaven. She believed that she needed to have sex with him to go to Heaven. If she did not believe those things she would not have had sex with him. The accused's conduct therefore induced her to have sex with him. He offered that inducement from the position of trust, power and authority that he held as founder and leader of the Culture Ministry and by virtue of his appointment of S as a flower girl, his personal assistant and maid. He used that position to offer the inducement.

33. Was that an abuse of his position? From the accused's perspective, no. He has given evidence that what he said to the complainant S was true. There is no reason to doubt that he genuinely believed at the time that he was King Yali. He still believes that. He believes that he did nothing wrong, that he was simply following the laws of his Ministry and fulfilling God Yali's prophecy. He was not in his own mind abusing his position. According to his evidence he, as the son of God Yali, was entitled to have sex with his flower girls.

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. Community standards dictate that a person who holds himself out as a preacher or holds some other position of religious authority and who purports to preach from the Holy Bible ought not to have sex with the members of his church. He ought not use his position to induce a member of his church to have sex with him. If he does so, at least if the church member is under or just over the age of consent, he will have abused his position of trust, power and authority.

35. I find it proven that that is what happened here: though the accused genuinely believed that he was doing nothing wrong when he induced S to have sex with him by telling her that he was her bridge to Heaven, he abused his position of trust, power and authority. It follows, by virtue of Section 347A(2)(i), that S did not freely and voluntarily agree to have sex with him. She did not consent.

36. That conclusion is reinforced by the fact that S did not say or do anything to indicate consent, which, by virtue of Section 347A(3)(a), is normally enough to show that there was no consent.

37. I reiterate that the court finds as a fact that the accused believed that he was doing nothing wrong and that he believed that S consented. Whether this provides him with a defence must be determined under Section 25 (mistake of fact) and Section 347B (where belief in consent is not a defence) of the Criminal Code.

(1) Subject to Subsection (2), a person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

(2) The operation of Subsection (1) may be excluded by the express or implied provisions of the law relating to the subject.

39. An accused charged with rape who honestly, but mistakenly, believes that the complainant consented will only be protected by the defence of mistake of fact if the belief is based on reasonable grounds (R v John Kalabus & Aita Sanangkepe [1977] PNGLR 87; The State v Peter Yama (1990) N817). Here, the accused's belief in consent was not based on reasonable grounds, so the defence is not available to him.

It is not a defence to a charge under this Part that the accused person believed that the person consented to the activity that forms the subject matter of the charge where—

(b) the accused did not take reasonable steps, in the circumstances known to him at that time, to ascertain whether the person was consenting.

41. I find that the accused's belief that S consented arose, for the purposes of Section 347B(a)(ii), from "reckless blindness". He sexually penetrated her in circumstances where he was reckless as to whether she was freely and voluntarily agreeing.

42. Furthermore he did not – given that the complainant was a newcomer to his Ministry and only 15 years old – for the purposes of Section 347B(b), "take reasonable steps, in the circumstances known to him at that time, to ascertain whether the person was consenting". His belief in consent therefore does not under Section 347B provide him with a defence.

43. The accused thus has no defence and, the two elements of the offence having been proven, he is guilty of rape under Section 347(1). The next question is whether the circumstance of aggravation charged in the indictment have been proven.

44. The indictment alleges that at the time the accused committed the offence he "abused a position of trust, authority or dependency in that he was her [the complainant's] religious instructor".

45. Section 349A (interpretation) of the Criminal Code provides examples of circumstances of aggravation for the offence of rape, including (e): circumstances where "the accused person, in committing the offence, abuses a position of trust, authority or dependency". Section 6A(2) (relationship of trust, authority or dependency) provides examples of relationships of trust, authority or dependency, including (e): circumstances where "the accused is a religious instructor to the complainant".

46. The accused was a religious instructor to the complainant. It has already been proven beyond reasonable doubt for the purposes of the finding that the complainant did not consent, that the accused induced her to have sex with him by abusing the position of trust, power and authority that he held. It follows that in committing the offence he abused a position of trust, authority or dependency. The circumstances of aggravation charged in the indictment have been proven beyond reasonable doubt.

48. The State relies on the sworn testimony of R and the accused's record of interview. There was no sexual assault form. The accused's sworn evidence was the only evidence for the defence.

49. She is now aged 21. She was 17 in 2006. She is from Guna village in the Transgogol area of Madang Province. She is educated to grade 7 at Gal Primary School. Steven Tari started the Culture Ministry at Matepi in 2005. He gathered many people around him and preached to them. There was some trouble and he spent some time locked up at Beon Jail but he soon came out and then the Culture Ministry operated at Gal.

50. He recruited many flower girls. She estimates that there were more than 100. She was one of them. Steven Tari spent a lot of the week teaching them Gospel songs and then on Sundays they would be dressed up for the service and go down to the field where he preached. They would stand in front of the grandstand and sing songs. Steven Tari preached that he was King Yali, the Son of God Yali. He preached from the Bible, as pastors do. She and the other flower girls resided in four houses that their parents built, which were about 40 metres away from Steven Tari's house. There were also two houses for his security guards.

51. On Thursday 16 March 2006 at about midday Steven sent word, via S, for her to go and see him. S said "Boss wants to see you". She followed S to his house. S showed her to his room and then went outside. She was alone with Steven Tari when he said that he wanted to have sex with her. She just stood there when he said that. He said 'If you do not have sex with me I will not prepare your way to Heaven'. He said nothing else. She thought what he said was true so she had sex with him.

52. She then came outside, saw S, who was waiting outside, then went to the river. She did not tell S what happened. She felt that what had happened was to do with the Ministry, so she should not tell her. If she had known that Steven Tari was going to have sex with her she would not have gone to his house.

53. In cross-examination she said that her parents had told her about God Yali and that after him someone would come to take his place. She believed, as others did, that Steven Tari was the son of God Yali and that he was the one who God Yali had sent to take his place. Her parents, like many others, encouraged her to become a flower girl. They told her 'That is God Himself, He has returned, go and join Him'. She felt it was her duty to obey her parents. That is why she felt obliged to have sex with Steven Tari when he asked her for it.

54. The accused agreed that R was one of his flower girls and that at midday on 16 March 2006 he sent S to bring her to his house as he wanted R to assist him in his work. He denied having sex with R on that day.

55. He agreed that on 16 March 2006 he sent S to bring R to his house and that he had sex with R. By doing that he was just following the laws of the Ministry. He knew the laws and she knew the laws. She agreed to have sex with him.

56. Though he denied it in his police interview, he admitted during his sworn testimony to sexually penetrating R. Her evidence by itself would have been sufficient as she was a credible witness. It is reasonably to be inferred that the accused introduced his penis into the vagina of R, thus satisfying the definition of sexual penetration in Section 6(a) of the Criminal Code. The first element of the offence is proven.

57. The circumstances in which R had sex with the accused are similar to those relating to S. He said 'If you do not have sex with me I will not prepare your way to Heaven'. This was an inducement to have sex with him.

58. He was not only saying – as he said to S – that he was a bridge to Heaven, but that R would not go to Heaven unless she had sex with him. By any reasonable standard of religious decency this was an abuse of a position of trust, power and authority.

R did not freely and voluntarily agree to have sex. She did not consent. The second element of the offence is proven.

59. No, for the same reasons as in count 5. The accused had a genuine belief in consent, but it was not a reasonable belief so he cannot rely on mistake of fact as a defence. Further, his belief in consent arose from his reckless blindness and he did not take reasonable steps to ascertain whether the complainant was consenting.

60. Yes, for the same reasons as in count 5. The accused, in committing the offence, abused a position of trust, authority or dependency.

62. The State relies on the sworn testimony of B, a sexual assault form and the accused's record of interview (admitted into evidence by consent). The accused's sworn evidence was the only evidence for the defence.

63. She is now aged 19. She was 15 in 2006. She is from Matepi village. Steven Tari started the Culture Ministry at Gal in 2006. She moved to Gal and became one of his flower girls. Their role was to sing songs and hold flowers when he was preaching from the Bible in the field on Sundays.

64. Her grandparents told stories about the old days when God Yali was alive. God Yali's law was their law, so they had to follow it. She believed in these stories and the laws of God Yali and she believed that God Yali had sent his son, Steven Tari, to carry on his work. She and the other flower girls resided in four houses that their parents built, near Steven Tari's house. There were also two houses for his security guards.

65. On Tuesday 30 May 2006 at 6.00 am Steven Tari sent word, via S, for her to go and see him. They went to his house and S left her with him and went outside. Steven Tari told her that he was her road to Heaven. If she slept with him, she would go to Heaven. So she slept with him, after which he told her that she would go to Heaven. She returned to her house, then felt blood flowing from her body so she went to the river and washed. She did not tell S what happened.

66. In cross-examination she said that her parents had told her about God Yali, the God of Before and Now, the true God. When Steven Tari arrived the old people said that he was God Yali returning. She and her parents and thousands of other people believed that he was God Yali. The believers were not only at Gal but also as far away as Madang town.

67. Her parents, like many others, encouraged her to become a flower girl and obey Steven Tari. She was pleased to be a flower girl and it made her feel important. She thought it was the right thing to do. When Steven sent for her she felt obliged to go and obey his instructions.

68. As in the case of S, the sexual assault form was vague. Neither the name of the medical officer who examined her nor the date of examination is shown. No comment is made on her appearance or emotional state. It appears that she had been sexually penetrated. The form is of little evidentiary value.

69. The accused agreed that B was one of his flower girls and that he had sex with her on 30 May 2006. He denied that she stared hard at him or said that it was not her wish to have sex with him.

70. He agreed that he had sex with B once at his house. By doing that he was following the laws of the Ministry. He knew the laws and she knew the laws. She agreed to have sex with him.

71. He admitted in his police interview and in his sworn testimony that he sexually penetrated B. Her evidence by itself would have been sufficient as she was a credible witness. Mrs Raymond submitted that she did not say in her evidence that the accused sexually penetrated her. She only said that she "slept" with him. I reject the submission that that is insufficient evidence of penetration. A complainant does not have to say expressly that she was sexually penetrated and does not have to say how penetration was effected. The only reasonable inference to be drawn from her evidence is that the accused penetrated her by introducing his penis into her vagina. The first element of the offence is proven.

72. The circumstances in which B had sex with the accused are similar to those relating to S. He told her that he was her road to Heaven. If she slept with him, she would go to Heaven. So she had sex with him. This was an inducement to have sex. It was an abuse of a position of trust, power and authority. B did not freely and voluntarily agree to have sex. She did not consent. The second element of the offence is proven.

73. No, for the same reasons as in counts 5 and 3. The accused had a genuine belief in consent, but it was not a reasonable belief so he cannot rely on mistake of fact as a defence. Further, his belief in consent arose from reckless blindness and he did not take reasonable steps to ascertain whether the complainant was consenting.

74. Yes, for the same reasons as in counts 5 and 3. The accused, in committing the offence, abused a position of trust, authority or dependency.

76. This complainant did not give evidence. The State nevertheless relies on a sexual assault form and the accused's record of interview and has invited the court to invoke the similar fact evidence rule on the question of absence of consent. The accused's sworn evidence was the only evidence for the defence.

77. As in the case of S and B, the sexual assault form was vague. It appears that D was examined by Dr Henao on 2 June 2006 (11 months after the incident), that she was "relaxed" and that she had been sexually penetrated. The form is of little evidentiary value.

78. The accused agreed that on 28 June 2005, when he was living at Matepi, he took D to his house to assist him with his work and had sex with her. He denied that she refused to have sex with him, that he slapped her, that he threatened her with a bushknife and that he told her that he would straighten her way to Heaven if she allowed him to have sex with her.

79. He agreed that he had sex with D at his house. By doing that he was following the laws of the Ministry. He knew the laws and she knew the laws. She agreed to have sex with him.

80. He admitted in his police interview and in his sworn testimony that he sexually penetrated D. This is sufficient evidence. I reject Mrs Raymond's submission that the accused cannot be convicted as the complainant did not give evidence. There is no rule of law that an accused can only be convicted if a complainant gives evidence. The first element of the offence is proven.

81. There is no direct evidence by the complainant or anyone else. The accused did not admit in his police interview or in his evidence in court that he told D that he was her bridge to Heaven, or something similar. He did not admit to penetrating D without her consent. It is therefore difficult for the State to prove absence of consent.

82. Mr Kupmain attempted to overcome this difficulty by inviting the court to invoke the similar fact evidence rule. He submitted that there was evidence before the court in the sworn testimonies of complainants S, R and B that the accused had a clear modus operandi: he induced his flower girls to have sex with him by abusing the position of trust, power and authority that he held. I agree that their evidence can, to a degree, be regarded as similar fact evidence, showing that the accused had a propensity to do the acts constituting the elements of the offence (The State v Paul Ipor Daniel [1988-89] PNGLR 580; The State v Bill Vevo [2007] PNGC 1; The State v Stafford Hambo (2010) N4036). However, the incident involving D happened at a different village and in a different year and there is no evidence that she was a flower girl. I find that absence of consent has not been proven beyond reasonable doubt.

84. This count relates to an incident early in the morning, about 4.00 am, on 29 June 2005 at the accused's house at Matepi – the day after the incident that is the subject of count 1. From the accused's record of interview it appears that D was still with him when the police raided the house and arrested him. The accused tacitly admits in his police interview that he had sex with D on that date but denies that it was non-consensual.

85. As is the case with count 1, there is sufficient evidence that the accused sexually penetrated D but insufficient evidence that he did so without her consent. He is not guilty.

86. This complainant did not give evidence. The State relies on a sexual assault form and the accused's record of interview and has invited the court to invoke the similar fact evidence rule on the question of lack of consent. The accused's sworn evidence was the only evidence for the defence.

87. As in the case of S, B and D, the sexual assault form was vague. It appears that F was examined by Dr Henao on 2 June 2006, that she was "anxious and shy" and that she had been sexually penetrated. The form is of little evidentiary value.

88. The accused agreed that on 31 March 2006, when he was living at Gal, he sent S to bring F to his house. He wanted her to do church work. F was a flower girl. He said that he had sex with her on that day and indeed had sex with her many times. He denied telling her that he was her only bridge to eternal life and that she refused to have sex with him.

89. He agreed that he had sex with F at his house. By doing that he was following the laws of the Ministry.

90. He admitted in his police interview and in his sworn testimony that he sexually penetrated F. This is sufficient evidence. The first element of the offence is proven.

91. There is no direct evidence by the complainant or anyone else. The accused did not admit in his police interview or in his evidence in court that he told F that he was her only bridge to eternal life, or something similar.

92. What about similar fact evidence? Mr Kupmain submitted that the evidence of S, R and B shows that the accused had a clear modus operandi: he induced his flower girls to have sex with him by abusing the position of trust, power and authority that he held. The case for invoking similar fact evidence in the case of F is stronger than in the case of D, as the incident involving F occurred in Gal and F was a flower girl and there is evidence in the record of interview that S was used to bring F to the accused's house. Also, the incident happened on 31 March 2006, just a couple of weeks after the incident involving R (16 March), and only a month or two before the incidents involving S (27 April) and B (30 May).

93. The State has shown that the accused had a definite propensity, in this period, at Gal, to induce his flower girls to have sex with him by telling them that he was their bridge to Heaven, or something similar. The reasonable inference that must be drawn from the evidence of S, R and B is that he induced F to have sex with him in the same manner by abusing the position of trust, authority and power that he held. I find that absence of consent has been proven beyond reasonable doubt.

94. No, for the same reasons as in counts 5, 3 and 6. The accused had a genuine belief in consent, but it was not a reasonable belief so he cannot rely on mistake of fact as a defence. Further, his belief in consent arose from reckless blindness and he did not take reasonable steps to ascertain whether the complainant was consenting.

95. Yes, for the same reasons as in counts 5, 3 and 6. The accused, in committing the offence, abused a position of trust, authority and dependency.

97. Steven Tari Nangimon Garasai is guilty of four counts of rape committed in circumstances of aggravation under Sections 347(1) and (2) of the Criminal Code, being count Nos 3, 4, 5 and 6 on the indictment presented on 19 July 2010; and not guilty of the other two counts of rape, Nos 1 and 2, on that indictment.

__________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused

National Court of Papua New Guinea

State v Garasai [2010] PGNC 145; N4137 (30 September 2010)