Paul v State [2017] PGSC 33; SC1630 (3 November 2017)

SC1630

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 10 OF 2015

RODNEY PAUL
Appellant

V

THE STATE
Respondent

Waigani: Cannings J, Makail & Murray JJ
2017: 31^st October & 3^rd November

CRIMINAL LAW – appeal against conviction for abuse of trust – trial – whether a relationship of trust, authority or dependency existed between accused and child complainant – relevance of consent – alternative charges – “lumped up” charges – duty of trial judge to set out and address elements of offence.

The appellant was convicted after trial of three counts of the child sex offence known as ‘abuse of trust’ under Section 229E(1) of the Criminal Code and sentenced to six years imprisonment. He appealed against conviction on five grounds: (1) there was no relationship of trust, authority or dependency; (2) the sexual relations were consensual; (3) he was unfairly convicted of alternative charges after being acquitted of the primary charges on the indictment; (4) the three primary and three alternative charges were unfairly “lumped up” on the same indictment; and (5) the trial judge failed to clearly set out the elements of the offences of which the appellant was convicted and failed to address his mind to the elements and failed to require the State to prove each element beyond reasonable doubt.

Held:

(1) There was sufficient evidence on which the Court could find the existence of a “relationship of trust, authority or dependency”, given that the definition of that term in Section 6A of the Criminal Code is not exhaustive. Ground 1 was rejected.

(2) The fact that the sexual relations were consensual was not relevant as absence of consent is not an element of an offence under Section 229E(1). Ground 2 was rejected.

(3) There was no impropriety or unfairness occasioned by the appellant being convicted of the three alternative charges on the indictment. Ground 3 was rejected.

(4) There was no breach of Section 531 of the Criminal Code as the six charges on the indictment alleged a series of similar acts against the appellant. Ground 4 was rejected.

(5) It would have been desirable for the trial judge to more clearly set out the elements of the offence and to specifically refer to the statutory definition of “relationship of trust, authority or dependency”. However the error was immaterial as it was evident that his Honour had a clear appreciation of the elements of the offence following submissions from counsel and applied the elements to the findings of fact. Ground 5 was rejected.

(6) All grounds of appeal were rejected. The verdict was not unsafe or unsatisfactory. The appeal was dismissed.

Cases cited:

The following cases are cited in the judgment:

Ilai Bate v The State (2012) SC1216
John Beng v The State [1977] PNGLR 115
Obed Jelis v The State (2012) SC1184
The State v Bond Nanal (2009) N3597

APPEAL

This was an appeal against conviction for three counts of abuse of trust under Section 229E(1) of the Criminal Code

Counsel:

L Mamu, for the Appellant
P Kaluwin, for the Respondent

3^rd November, 2017

1. BY THE COURT: Rodney Paul was convicted by the National Court constituted by Justice Manuhu, after trial, of three counts of the child sex offence known as ‘abuse of trust’ under Section 229E(1) of the Criminal Code. He was sentenced to six years imprisonment. He appeals against conviction, not against sentence.
   

BACKGROUND

2. An indictment was presented against the appellant, containing three primary charges and three alternative charges. The primary charges were one count of sexual assault (Criminal Code, Section 349(1)) and two counts of rape (Criminal Code, Section 347(1)). The alternative charge in respect of each primary charge was abuse of trust under Criminal Code, Section 229E, which states:
   

(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.

(2) It is not a defence of a charge under this section that the child consented unless, at the time of the alleged offence, the accused believed on reasonable grounds that the child was aged 18 years or older.

3. Amongst the agreed facts at the trial were:
   
   • The appellant was at the time of the alleged offences (November 2010 to April 2011) aged in his early 20s in the process of completing his education at the University of Papua New Guinea at Waigani, NCD.
     
   • The complainant was a 16-year-old girl, living with her parents in the family home at Tokarara.
     
   • The appellant and the complainant and her family are from Western Highlands Province.
     
   • The appellant was a regular visitor to the family home at Tokarara and would often stay there on weekends and was regarded as tantamount to being a member of the family.
     
   • The appellant stayed at the Tokarara house for an extended period over the Christmas-New Year period in 2010-2011.
     
   • The appellant sexually touched or penetrated the complainant on at least three occasions during the relevant period.
     
4. It was the State’s case that the sexual touching or sexual penetration that took place was without the complainant’s consent and that the appellant should be convicted of the primary counts. The appellant’s defence to the primary counts was that the complainant consented. The trial judge found that lack of consent was not proven beyond reasonable doubt and entered a verdict of not guilty on each of the primary counts.
   
5. As to the alternative counts, the appellant also raised the issue of consent. This is, under Section 229E(2), a defence to a charge under Section 229E(1) if it is combined with a belief on reasonable grounds that the complainant was aged 18 years or older.
   
6. His Honour dealt with the alternative counts of abuse of trust as follows:
   

I will now deal with the alternative three counts which are charges under Section 229E of the Criminal Code. Under that section, it is not a defence that a child consented unless the accused believed on reasonable grounds that the complainant was 18 years or older.

The issues therefore are whether the accused believed on reasonable grounds that the complainant was 18 years or older, that is one. And secondly, whether the accused was in a position of trust, authority or dependency with the complainant.

The accused insisted that he is not related to the complainant’s father and family in any way and that their relationship is political in nature. I find this claim unbelievable. Residing with a family is not a political relationship; it is personal in nature. The accused was evasive and gave calculated answers when he gave evidence. He also contradicted himself in his evidence and his record of interview. These discrepancies were correctly pointed out by the prosecution in their final submissions. On the other hand, the complainant’s father, Jacob Popuna, a lawyer and Public Curator of Papua New Guinea was impressive in his testimony. The court accepts his testimony that the accused was accepted into his family and became part of his family in or around 2005 and 2006.

The complainant’s father assisted the accused with money when he needed it. The accused stayed with the family throughout 2006 and at times from 2007 to 2010 until he graduated from UPNG. Jacob Popuna’s evidence is consistent with the complainant’s evidence that the sexual assault took place within the family home where the accused was also living.

There must have been and the courts so finds that the relationship between the accused and the Popuna family, as I have said, was personal in nature to the point where the parents trusted the accused enough to leave him at the family home with the complainant and her younger siblings. The accused was regarded as an adopted son and brother to the complainant and her siblings. The accused breached that trust when he sexually assaulted the complainant.

At the time of the assault the accused knew that the complainant was not over 18 years of age. His assertion that he thought the complainant was old enough is self-serving. He had been with the family since 2006 so he must have known that the complainant was in grade 8 at that time he set out to sexually assault the complainant. As an adult and a university student, he would have figured out that it was and is unusual for an 18 year old to be in grade 8. The accused does not have any good reason to support his claim to the belief that the complainant must have been over 18 years at that time.

Whether she was a virgin or not is immaterial. Whether she was injured during the sexual encounter does not improve the accused’s position. Whether she was the accused person’s girlfriend is also immaterial. The complainant was in grade 8 and it was obvious, must have been obvious to the accused that she was not 18.

In all the circumstances, I find the accused guilty of each of the three alternative counts of abuse of trust, authority or dependency under section 229E of the Criminal Code as specified in the indictment.

GROUNDS OF APPEAL

7. The combined effect of the notice of appeal, the written submissions and the oral submissions of Mr Mamu for the appellant is that there are five grounds of appeal:
   
   1. there was no relationship of trust, authority or dependency;
      
   2. the sexual relations were consensual;
      
   3. he was unfairly convicted of alternative charges after being acquitted of the primary charges on the indictment;
      
   4. the three primary and three alternative charges were unfairly “lumped up” on the same indictment, contrary to Section 531 of the Criminal Code; and
      
   5. the trial judge failed to clearly set out the elements of the offences of which the appellant was convicted and failed to address his mind to the elements and failed to require the State to prove each element beyond reasonable doubt.
      

GROUND 1: NO RELATIONSHIP OF TRUST, AUTHORITY OR DEPENDENCY

8. The appellant argues that the trial judge erred in law by finding that there was a relationship of trust between himself and the complainant. Mr Mamu submitted that all the evidence pointed to the appellant being a family friend only. He was not related to the complainant or her family. His relationship to the complainant did not fall within any of the categories of relationships defined as giving rise to a relationship of trust, authority or dependency under Section 6A of the Criminal Code, which states:
   

(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 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.

9. 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).
   
10. Quite apart from that, the definition of the term “relationship of trust, authority or dependency” is not exhaustive. So if it is proven beyond reasonable doubt that, in fact, a relationship of trust, authority or dependency existed, that element of the offence will be established.
    
11. We find that there was sufficient evidence before the trial judge on which he could be satisfied beyond reasonable doubt that in the circumstances of this case, such a relationship existed. We find that his Honour made no error of law in the manner contended for. Ground 1 is rejected.
    

GROUND 2: SEXUAL RELATIONS WERE CONSENSUAL

12. The fact that the sexual touching or penetration that took place was consensual did not provide the appellant with a defence unless it was combined with a reasonable belief that the complainant was aged 18 years or older. The trial judge adequately disposed of this defence by stressing that the complainant was a grade 8 student. No one could reasonably believe that she was aged 18 or older.
    
13. The fact that the sexual relations were consensual was therefore not relevant as absence of consent is not an element of an offence under Section 229E(1). Ground 2 is rejected.
    

GROUND 3: UNFAIRLY CONVICTED OF ALTERNATIVE CHARGES

14. It was argued that the drafting of the indictment was confusing and unfair and that once the appellant was acquitted of the primary charges, he should also have been acquitted of the alternative charges.
    
15. We reject this argument. The inclusion of alternative charges on an indictment is a standard and proper procedure. This is especially so in regard to child sexual offences under Division IV.2A (sexual offences against children) of the Criminal Code as there is no provision making an alternative verdict available in cases where the elements of a lesser charge exist (Obed Jelis v The State (2012) SC1184).
    
16. The drafting of this indictment was not confusing. Each of the six counts was a standalone charge. The acquittal of the appellant on the primary charges had no consequence for determination of the alternative charges. Ground 3 is rejected.
    

GROUND 4: UNFAIRLY “LUMPED UP” CHARGES

17. This ground of appeal is based on Section 531 (joinder of charges: general rules) of the Criminal Code, which states:
    

(1) Subject to this Code, an indictment must charge one offence only, and not two or more offences.

(2) Subject to Subsection (3), when several distinct indictable offences are alleged to be constituted—

(a) by the same acts or omissions; or

(b) by a series of acts done or omitted to be done in the prosecution of a single purpose,

charges of such distinct offences may be joined in the same indictment against the same person, and the several statements of the offences may be made in the same form as in other cases, without any allegation of connexion between the offences.

(3) If in a case to which Subsection (2) applies, it appears to the court that the accused person is likely to be prejudiced by the joinder, the court may—

(a) require the prosecutor to elect on which of the several charges he will proceed; or

(b) direct that the trial of the accused person on each or any of the charges be had separately.

(4) This section does not authorize the joinder of a charge of wilful murder, murder or manslaughter with a charge of any other offence.

18. The argument relies on a strict interpretation of Section 531(1) and would require us to conclude that in this case the State should have presented six indictments. That would be an absurd interpretation of Section 531(1), which is prefaced by the words “Subject to this Code”.
    
19. Subsection (1) must be read subject to all other provisions of the Code, in particular the provision that immediately follows it – Section 531(2) – and qualifies it substantially. If the offences are alleged to be constituted by the same acts or omissions or by a series of acts done or omitted to be done in the prosecution of a single purpose, the charges can be joined in the same indictment against the same person, unless this causes prejudice to the accused.
    
20. Here the six charges on the indictment alleged a series of similar acts against the appellant. We find no breach of Section 531 of the Criminal Code. We find that there was no prejudice to the appellant caused by the way in which the indictment was drafted. It was not confusing or oppressive. Ground 4 is rejected.
    

GROUND 5: FAILURE TO SET OUT AND APPLY ELEMENTS OF OFFENCE

21. The appellant argues that the trial judge erred in law by failing to clearly set out the elements of the offences of which the appellant was convicted and failing to address his mind to the elements and failing to require the State to prove each element beyond reasonable doubt. This argument is based on a line of authority developed in a series of Supreme Court decisions including Ilai Bate v The State (2012) SC1216, wherein the Court stated:
    

It is an integral part of the judge’s decision-making process in a criminal trial to state clearly the elements of the offence and to assess the evidence and to give reasons for the court being satisfied beyond reasonable doubt (or not) of each of the elements (Devlyn David v The State (2005) SC881, Patrick Towingo v The State (2008) SC983, Onama Andrew v The State (2009) SC997). A failure to set out the elements accurately might of itself amount to an error of law and will often be the cause of errors.

22. Mr Mamu validly pointed out that in the present case the trial judge did not set out clearly the elements of the offence under Section 229E(1), which are, as explained in The State v Bond Nanal (2009) N3597:
    
    • the accused engaged in an act of sexual penetration or sexual touching with another person;
    • the other person was a child between the ages of 16 and 18 years;
    • there was an existing relationship of trust authority or dependency between the accused and the child.
      
23. We agree that his Honour could have set out the elements of the offence more clearly than he did. It would have been desirable also for his Honour to specifically refer to the Section 6A definition of “relationship of trust, authority or dependency” before concluding that there was such a relationship.
    
24. However, such errors are immaterial as it is evident that his Honour had a clear appreciation of the elements of the offence following submissions from counsel and applied the elements to the findings of fact. Ground 5 is rejected.
    

CONCLUSION

25. All grounds of appeal have been rejected. To succeed on an appeal against conviction, an appellant must by virtue of Section 23 of the Supreme Court Act establish that the verdict is unsafe or unsatisfactory, the conviction entailed a wrong decision on a question of law or there was a material irregularity in the trial; and the Supreme Court must consider that a miscarriage of justice has occurred (John Beng v The State [1977] PNGLR 115). None of those conditions exist in this case. The appeal must therefore be dismissed.
    

ORDER

(1) The appeal is dismissed.

(2) The decision of the National Court is affirmed.

_________________________________________________________________
Public Solicitor: Lawyer for the Appellant
Public Prosecutor: Lawyer for the Respondent