State v Maybe [2019] PGNC 137; N7878 (23 May 2019)

N7878

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1644 OF 2016

THE STATE

V

SAILAS MAYBE

Kerevat: Anis J
2019: 8, 16 and 23 May

CRIMINAL LAW – Verdict – sexual offence against children – section 229E(1) – Criminal Code Act Chapter No. 262 – child below the age of 18 years - alleged de facto type relationship of trust, authority or dependency - whether State evidence sufficient and also proves beyond reasonable doubt that there existed a de facto relationship of trust, authority or dependency between the accused and the victim

Facts

The accused lived on a block of land with his family as neighbours to the victim and her family. The victim was 17 years old at the time of the incident. The accused was with the victim at the victim’s house on the night in question. After dinner, the victim and the accused went over to another house which belonged to the victim’s family. There they had consensual sexual intercourse.

Held

1. In my view, the Court must be cautious when considering evidence to make a finding under such situation, that is, where the State alleges existence of a de facto type relationship of trust, authority or dependency. There should be cogent evidence adduced by the victim or by the victim’s family, namely, his or her parents, guardians or relatives.
   
2. The use of the phrase includes, but is not limited to under sub-section (2) of section 6A obviously means that the list of persons (who may qualify as persons with a relationship of trust, authority or dependency) therein is not exhaustive. See case: State v. John Ura (2005) N2862.
   
3. The victim’s sole evidence, despite not requiring corroboration under section 229H, was insufficient and fell short of the required standard of proof.
   
4. The accused was found not guilty and was acquitted.
   

Cases cited

State v. John Ura (2005) N2862
State v. Nane Tion Muasa (2007) N3216
Rodney Paul v. The State (2017) SC1630

Counsel

Ms J. Batil, for the State
Mr N. Katosingkalara, for the Accused

VERDICT

23^rd May, 2019

1. ANIS J: This was a trial on verdict. The accused was charged with having sexual intercourse with a minor who was 17 years old. The State alleged that at the time of the incident, there existed a relationship of trust, authority or dependency between the accused and the victim. Final submissions were presented on 16 May 2019. I reserved my decision on verdict to today at 9:30am.

2. This is my ruling

BACKGROUND

3. The State alleges that on 6 May 2016, between 7pm and 8pm, at Vunapalading in East New Britain Province, the accused, who was 18 years old at the time, engaged in an act of sexual penetration of the victim who was 17 years old at the time. The State alleges that the victim was like a cousin sister to the accused. As such, it claims that there existed a relationship of trust, authority or dependency between the accused and the victim and therefore the action of the accused contravened section 229E(1) of the Criminal Code Act Chapter No. 262 (Criminal Code).

SECTION 229E(1)

4. Section 229E(1) states, and I quote in part:

229E. Abuse of trust, authority or dependency.

(1) A person who engages in an act of sexual penetration or sexual touching of a child between the ages of 16 and 18 years with whom the person has an existing relationship of trust, authority or dependency is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 15 years.

ISSUE

5. I note that the prosecution has withdrawn the charge of rape against the accused. It is instead pursuing the alternative charge in the indictment, that is, section 229E(1).

6. The main issue for determination is this, whether at the time of the incident, there existed a relationship of trust, authority or dependency between the accused and the victim. The issue of course covers the second of the two (2) elements of the offence under section 229E(1). The first would be the requirement to prove that the accused had engaged in sexual penetration of the victim. This requirement is not disputed as I will discuss below.

COMMON GROUND

7. The parties are at common ground on the following facts. Firstly, there was consensual sexual intercourse between the accused and the victim on the date and time alleged. Secondly, the victim was below the age of 18 years and the accused was 18 years old, at the time of the incident. I refer to exhibits P4 and P5 which say that the victim was born on 31 October 1998. It means therefore that the victim was 17 years old at the time of the alleged offence on 6 May 2016, or five (5) months before she would turn 18 years old. The third common ground is this. The accused, the victim and their families are not related by blood. These are adduced in evidence and I find these to be the case.

EVIDENCE

8. The victim was the only witness called. She gave sworn evidence. This is what she said on the question of her relationship with the accused. She said the accused lives a bit further from their house. She said the accused is not related to them but only through her mother’s relationship with the accused’s mother. She said their mothers call themselves “sisters”. From their mothers’ relationship, she said that the accused was regarded as a brother to her. She said the accused does not come to their house often and that he and the accused were not friends then. She said when he comes around, they would cook and eat together. She later slightly changed her story and said that the accused comes around the house often and that she respects him as a “big brother”. She said she used to rely on him as a “big brother”. In cross examination, the victim said that although she regarded the accused as a brother, they both consented to have sexual intercourse on that night. She said he did not force or threaten her to have sexual intercourse with him.

9. The accused was the only witness that testified. He said he was 18 years old at the time of the incident. He said he regarded the victim to be also 18 years old. But later, in cross-examination, he agreed that the victim looked younger and that she considered him as a big brother. He gave similar accounts of where and how he and the victim had engaged in sexual intercourse. He however denied that he was the one that told the victim to undress. He said she undressed herself before they had sexual intercourse. In regard to relations, he said he is not related by blood to the victim or her family. He said his mother and the victim’s mother regard themselves as “sisters”. He said he regards the victim as his “sister” but not as his real sister. He agreed during cross-examination that the victim would regard him as her “big brother”. He also states that he would normally visit the victim’s family’s house; that they shared meals together.

CONSIDERATION

10. The best place to begin, in my view, would be to consider the definition of the phrase trust, authority or dependency. Section 6A of the Criminal Code Act states, and I quote:

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.

11. The use of the phrase includes, but is not limited to under sub-section (2) of section 6A obviously means that the list of persons (who may quality as persons with a relationship of trust, authority or dependency) therein is not exhaustive. See case: State v. John Ura (2005) N2862. I think the other relevant point to mention here is that the prosecution only needs to prove the existence of one type of relationship, that is, trust, authority or dependency to establish the 2^nd element of the offence under section 229E(1). See case: State v. Nane Tion Muasa (2007) N3216.

12. I note that I had asked State counsel whether a neighbour or a neighbour’s son would qualify as a person who may be regarded as having a relationship of trust, authority or dependency. And counsel, in my view and rightfully so, drew the Court’s attention to section 6A of the Criminal Code. And I also agree with counsel’s submission that the list of persons under section 6A(2) is not exhaustive, and I have covered that above in my judgment.

13. So, let me ask myself this. Did any of the three (3) relationships, trust, authority or dependency, exist between the accused and the victim? Both counsel drew the Court’s attention to the case, Rodney Paul v. The State (2017) SC1630. For the State, counsel submits that the circumstances and facts of the case are similar and therefore, based on that, the accused herein should be convicted under section 229E(1) of the Criminal Code. The defence argues otherwise. Counsel submits that the Rodney Paul case is distinguishable from the present case. Counsel submits firstly that unlike the Rodney Paul case, here, the prosecution has failed to call any or sufficient evidence from the parents of the victim to come forward and testify on the nature or the type of relationship that existed between the two (2) families or between the victim’s family and the accused, at the time of the incident. On that basis, counsel submits that the argument would fall short, that is, of want of proof beyond reasonable doubt. Secondly or regardless of the first argument, counsel submits that the accused’s relationship with the victim cannot be regarded as one with trust, authority or dependency. Counsel submits that the accused was not related by blood; he was not looked after or treated as a family member or an adopted family member like it was in the Rodney Paul case.

14. The facts in the Rodney Paul case are as follows. The prisoner was not related to the victim and her family. He was a student attending the University of Papua New Guinea. But he lived with the complainant and his family for about five (5) years. The victim’s parents testified in Court. The father said they had regarded the prisoner as a family member or as an adopted son during the period. He said he would assist him with money if needed and that they had allowed him to stay at their house freely with other members of the family. The Supreme Court held at paragraph 9 of its judgment, and I quote in part:

We agree that the relationship between the appellant and the complainant did not fall within paragraphs (a) or (b) or (d) to (h). However, there was sufficient evidence before the Court, especially in the evidence of the complainant’s father, that the appellant had in a de facto way been adopted into the complainant’s family. There was evidence from the complainant’s mother that she regarded the appellant as a son. The relationship that existed between the appellant and the complainant was therefore tantamount to a brother-sister relationship, which is a relationship of trust, authority or dependency under paragraph (c).

15. I adopt the above herein. For the present case, I note as a start that the accused is a son of another block holder neighbour within the same area where the victim and her family reside. He is not related by blood to the victim or her family. The reason why he normally pays visits to the house of the victim and her family, is because of the two (2) reasons as highlighted in evidence, namely, because the victim’s and the accused’s mothers call themselves “sisters”. In other words, they are more or less regarded as friends. The second reason is that the accused would from time to time visit the house of the victim and her family. They would share food with him together and it is common ground that the victim regards the accused as a “big brother”. I note that these expressions sisters and big brother were used as mere expressions rather than for their real meanings. I have observed the victim who was the sole State witness. I find her demeanour to be normal and, in my view, she seemed as a credible witness. She appeared, in my view, to speak her mind about the incident and with ease. Though she said she regarded the accused as a big brother, I did not, based on her evidence and her impression upon the Court, see or find that her regard of the accused would amount to a de facto type of a relationship, that is, that of a brother and sister. If at all, both evidence of the accused and the victim suggest to me that they may have a personal boyfriend/girlfriend type relationship. The latter of course is irrelevant for this purpose; however, it may assist the Court see the distinction and not to be confused, in its quest to determine whether there was existence of a de facto relationship of trust, authority or dependency within the meaning of the sections 229E(1) and 6 of the Criminal Code in this case.

16. In my view, the Court must be cautious when considering evidence to make a finding under such situation, that is, where the State alleges existence of a de facto type relationship of trust, authority or dependency. There should be cogent evidence adduced by the victim or by the victim’s family, namely, his or her parents, guardians or relatives. Such was the case in the case of Rodney Paul where the victim’s parents had testified to establish the de facto relationship of the prisoner as a son to their family. In the present case, the prosecution did not call the victim’s parents or other evidence except to rely on what the victim had to say. The fact that the accused, as a neighbour, comes to the victim’s house once in a while, and the fact that they share food together or crack jokes and the fact that she refers to him as a “big brother”, in my view, are insufficient and that they fall short of what should amount to a relationship or a de facto relationship of trust, authority or dependency, that is, between the victim and the accused as brother and sister. Of course, I make these findings which are not made in disregard to (or should be confused with) section 229H of the Criminal Code.

17. The standard of proof is beyond reasonable doubt. I am not satisfied that the prosecution has discharged the said standard.

SUMMARY

18. The accused shall be acquitted of the charge under section 229E(1) and shall be released forthwith.

ORDERS OF THE COURT

Verdict: Not Guilty
_______________________________________________________________
Office of the Public Prosecutor: Lawyer for the State
Office of the Public Solicitor: Lawyer for the Accused