The State v Steven Tari Nangimon Garasai (2010) N4137

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 30 September 2010
• Citation: (2010) N4137
• Docket Number: CR NO 1022 OF 2007
• Court: National Court
• Year: 2010
• Judgement Number: N4137

Full Title: CR NO 1022 OF 2007; The State v Steven Tari Nangimon Garasai (2010) N4137

National Court: Cannings J

Judgment Delivered: 30 September 2010

N4137

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1022 OF 2007

THE STATE

V

STEVEN TARI NANGIMON GARASAI

Madang: Cannings J

2010: 19, 20, 21 July;

3, 4, 5 August;

6, 11, 30 September

VERDICT

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.

Held:

(1) The crime of rape consists of two elements: (a) sexually penetrating a person and (b) without their consent.

(2) Honest belief in consent is only a defence if it is based on reasonable grounds and does not arise from self-induced intoxication or reckless or wilful blindness and the accused took reasonable steps to ascertain that the complainant was consenting.

(3) Of the three counts (Nos 3, 5 and 6) in respect of which the complainants gave evidence, there was direct evidence that the accused sexually penetrated the complainant; and in the case of count 4, the first element was proven on the basis of the accused’s admissions.

(4) Consent means free and voluntary agreement and in all the circumstances, particularly considering the age of the complainants and their position in the ministry in relation to the accused and the inducement offered to them by the accused, and notwithstanding that the accused did not physically assault them, none of them who gave evidence could be said to have freely and voluntarily agreed to have sex with him. Absence of consent was proven on those counts (Nos 3, 5 and 6); and it was also proven, by invoking similar fact evidence, on count 4.

(5) The defence of honest belief in consent was not available to the accused as his belief was not based on reasonable grounds and arose from wilful blindness and he failed to take reasonable steps to ascertain whether the complainants were consenting.

(6) The State proved that the accused abused a position of trust, authority or dependency; thus proving the circumstances of aggravation charged in the indictment.

(7) As to the other counts (Nos 1 and 2), there was ample evidence of sexual penetration, however the similar fact evidence rule could not be relied on to prove absence of consent.

(8) The accused was accordingly found guilty of rape in circumstances of aggravation on count Nos 3, 4, 5 and 6 and not guilty on count Nos 1 and 2.

Case cited

The following cases are cited in the judgment:

R v John Kalabus & Aita Sanangkepe [1977] PNGLR 87

The State v Bill Vevo [2007] PNGC 1

The State v Paul Ipor Daniel [1988-89] PNGLR 580

The State v Peter Yama (1990) N817

The State v Stafford Hambo (2010) N4036

TRIAL

This was the trial of an accused charged with six counts of rape.

Counsel

A Kupmain, for the State

A Raymond, for the accused

30 September, 2010

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.

COUNT 5: COMPLAINANT “S”: 27 APRIL 2006

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.

Sworn testimony of S

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...