Nicholas Brian Julie v R (SCA 21 of 2017) [2018] SCCA 18 (30 August 2018)

IN THE SEYCHELLES COURT OF APPEAL [Coram: A. Fernando (J. A), M. Twomey (J. A), B. Renaud (J. A)] Criminal Appeal SCA 21/2017 (Appeal from Supreme Court Decision CN 77/2015) Nicolas Brian Julie Appellant Versus The Republic Respondent Heard: 21 August 2018 Counsel: Mr. Nichol Gabriel for the Appellant Mr. George Thachett, Asst. Principal State Counsel, for the Respondent Delivered: 31 August 2018 M. Twomey (J. A) JUDGMENT [1] I have not had the opportunity to read my learned brother’s decision in this appeal. He has however indicated his views to me, which views I respectfully dissent with for the reasons I have expressed herein. [2] The Appellant in this case was charged with the offence of sexual assault contrary to section 130 (1) read with section 130 (2) (d) of the Penal Code and punishable thereunder. [3] The salient facts of the present case are the following: The complainant’s version of events [4] The complainant, A. L., alleges that on the night of 2nd October 2015 she went to the Amusement Centre in Victoria with friends. Before leaving, she asked a man parked outside in a white car if he offered taxi pirat services. The man confirmed that he did and the complainant asked him to take her home to Sans Souci. She sat in the front seat and, feeling tired and a bit drunk, fell asleep. When she woke up, she was in the same car which was parked behind the Stad Linite at Roche Caiman, and the Appellant was having sexual intercourse with her. She screamed and tried to escape but the accused physically restrained her by strangling her and told her to shut up. She hit him with her mobile phone and managed to flee, heading towards the sound of music playing and asked a woman for help. The police were alerted shortly after the incident and the complainant was medically examined. According to the complainant, she did not consent to have sexual intercourse with the Appellant. The Appellant’s version of events [5] The Appellant chose to exercise his constitutional right to remain silent, from which no adverse inference shall be drawn. One out of court statement to the police was admitted by the Prosecution in which the Appellant admits having consensual sexual intercourse with the complainant. It was further alleged in the closing submissions by his counsel that the lack of evidence showing that force was used during intercourse, the lack of torn clothing, and the fact that the Appellant never disposed of the complainant’s mobile phone, which was left in his vehicle, point towards consensual intercourse. Conviction and sentence [6] The learned trial Judge concluded that there was no evidence to support the Appellant’s contention that the sexual intercourse had been consensual. The Appellant in this case was accordingly convicted of the offence of sexual assault contrary to section 130 (1) read with section 130 (2) (d) of the Penal Code and punishable thereunder and sentenced on 29 November 2017 to 7 years’ imprisonment for sexually assaulting A. L. without her consent. The Appellant is challenging both the conviction and sentence in this appeal. Grounds of appeal summarised [7] The Appellant is appealing against conviction on the following grounds: i. That the learned trial Judge erred in convicting the Appellant without properly taking into account the fact that the Appellant had a valid defence in the form of the consent of the victim. ii. The learned trial Judge erred in convicting the Appellant on insufficient evidence. iii. In all circumstances the conviction of the Appellant was unsafe and unsatisfactory. [8] It is clear that the grounds of appeal are interlinked and that in essence the appeal hinges on whether the complainant consented to having sexual intercourse with the Appellant on the night in question. The facts of this case raise two issues linked to consent: one is whether the victim had the cognitive capacity to consent at the material time, and the other is whether the allegation of use of force by the Appellant against the complainant would serve to vitiate consent. For this reason, the grounds of appeal against conviction will be taken together. [9] The Appellant is also appealing against sentence on the ground that the sentence of 7 years imposed on him was manifestly harsh and excessive and wrong in principle. [10] The Respondent has rejected each ground of appeal, stating that the Appellant’s analysis of evidence is misconceived and contrary to the evidence adduced during the trial. The Respondent maintains that the sexual intercourse was not consensual, as evidenced by the complainant’s physical struggle with the Appellant during her attempt to flee, her distressed state following the incident and the fact that she disclosed the alleged sexual assault to a witness and to the police immediately following the incident. It seeks therefore a dismissal of the appeal. Definition of consent [11] Historically, the offence of rape was defined as ‘the carnal knowledge of a woman forcibly and against her will’ (See St G Tucker, Blackstone’s Commentaries (William Young Birch and Abraham Small, IV, 1803) 210) and was originally silent on the mental element required. This has remained subconsciously the jurisprudential basis of the offence of sexual offences despite redefinitions. Essentially, the person engaging in the carnal knowledge (the penetration, mostly penis-in-vagina) is a man forcibly and against the will of a woman, that is, to be proven by her, and that she tried to fight him off. The mental element, as will be seen, also remains problematic. [12] Seychelles amended the traditional rape provision in 2005 and introduced gender neutral language. Section 130 of the Penal Code now provides in relevant part: “130. (1) A person who sexually assaults another person is guilty of an offence and liable to imprisonment for 20 years… 2) For the purposes of this section “sexual assault” includes- (a) an indecent assault; (b) the non-accidental touching of the sexual organ of another; (c) the non-accidental touching of another with one’s sexual organ, or (d) the penetration of a body orifice of another for a sexual purpose.” 130 (3) A person does not consent to an act which if done without consent constitutes an assault under this section if – (a) the person’s consent was obtained by misrepresentation as to the character of the act or the identity of the person doing the act; (b) the person is below the age of fifteen years; or (c) the person’s understanding and knowledge are such that the person was incapable of giving consent. [13] Jurisprudentially,however, the approach has remained more or less fixated on the old traditional attitudes to sexual offences. Consent remains a problematic yet integral element of the offence of sexual assault, as sexual activity is only legal if both parties consent to it. As I stated in the recent case of Republic v Stephen Enow [2017] SCSC 413 at parag [30], section 130 (3) of the Penal Code of Seychelles establishes what amounts to the absence of consent, but fails to provide a useful definition of consent. I reiterate therefore that this provision has the merit of permitting Judges to look beyond the strict wording of the enumerated categories of lack of consent when it is necessary to do so. I add that it is also time to look beyond the traditional male perspective as the prism through which sexual offences must necessarily be viewed. [14] The Seychellois Penal Code is circuitously derived from the Queensland Code and I have on many occasions sought helpful comparison to both its provisions and the precedents of that jurisdiction. In section 348 of the Criminal Code of Queensland (1899), the proscribed means vitiating consent are force, threat or intimidation, fear of bodily harm, exercise of authority, misrepresentations about the nature or purpose of the act, and impersonations of the victim’s sexual partner. An expression of consent induced by one of the proscribed means provided by this section is simply treated as no consent at all, even if there has been an outward expression of consent (Colvin & McKechnie, Criminal Law in Queensland and Western Australia – Cases and Commentary, 6th ed, LexisNexis Butterworths Australia, 2012, pg 153). The provisions relating to consent or rather lack of consent of the Criminal Code of Queensland and the Seychellois Penal Code are similar to the traditional common law interpretations of consent. [15] The common law tradition which has been followed in Seychelles generally acknowledges that consent or non-consent is difficult to prove by way of evidence. Sexual offences are in their nature conducted in private, and consequently independent witnesses are unlikely. However, what is unacceptable is that despite the adoption of gender neutral language in the legal provisions which I have explained above, a jurisprudential male dominance orientation to consent is adopted to the exclusion of a female perspective. Such an approach fails to consider a more holistic approach of what legal sex actually is. [16] In respect to what must be proven by the prosecution for a conviction of the offence rape, the court for example in R v Malone (1998) Cr. L. R 834, held that there was no requirement that absence of consent be demonstrated or communicated in order to establish that element of rape; in other words, the actus reus of rape did not import a requirement that the complainant demonstrate by words or conduct that there was lack of consent. All that was required for the jury to decide on the issue of consent was some evidence of lack of consent. [17] In R v Hysa (2007) EWCA Crim 2056, the Court determined that issues of consent and capacity to consent to sexual activity should normally be left to the jury to decide. [18] In R v Olugboja (1982) QB 320, Dunn LJ of the Court of Appeal held that: “The jury should be directed that consent, or the absence of it, is to be given its ordinary meaning and if need be, by way of example, that there is a difference between consent and submission; every consent involves a submission, but it by no means follows that a mere submission involves consent.” [19] In Seychelles, the Judge a quo is the Judge of law and fact and it is he/she who adjudicates on the issue of consent. In my view in such adjudication and in the appreciation of the facts, adopting the modern and holistic view of sex is imperative. [20] Feminist critique argues that the absence of a useful statutory definition of consent in rape or sexual assault has “allowed gender myths and stereotypes to expand the space for male subjectivity and allowed the defendant to read off consent from the complainant’s demeanour, body and sexual reputation at the expense of her voice” (Georgina Firth, ‘Not an Invitation to Rape: The Sexual Offences Act 2003, Consent and the Case of the Drunken Victim,’ [2011] 62 (1) Northern Ireland Legal Quarterly 99 at 102). [21] Former Supreme Court of Canada, Justice Claire L’Heureux-Dubé, defines myths and stereotypes as “irrational, non-scientific narratives used by human beings to explain what they do not fully understand” (Claire L’Heureux-Dubé, “Beyond the Myths: Equality, Impartiality, and Justice” (2010) 10:1 Journal of Social Distress and the Homeless 87 at 89). She further asserts that “myths and stereotypes divorce the law from contemporary knowledge because they have more to do with fiction and generalization than with reality [and] they are therefore, incompatible with the truth seeking function of the legal system” (supra). They serve to shift the blame from the rapist to the victim. The process of explaining their antiquated origins enables us to confront these attitudes, expose the way they inappropriately “inform our conscious reasoning processes.” [22] In Seychelles, it is only recently that the Court of Appeal has asserted that “rape and sexual assault are never the victim’s fault – no matter where or how it happens” (Pascal Fostel v The Republic CR SCA No. 19 of 2012). [23] Of more serious concern is the fact that the focus on consent may not adequately protect women. As has been pointed out, “an undesirable consequence of making the consent of the victim the central question in sexual assault cases has been that trials tend to focus on the conduct and sexual history of the victim rather than on the behaviour of the accused. Another criticism is that ‘the ordinary use of the term “consent” does not sufficiently distinguish between cases in which the accused submits out of fear and cases in which she is willing to engage in sexual intercourse’. Finally, it has been argued that the notion of consent cannot be determined fairly while jurors and Judges rely on their stereotypical views about sexual roles in their assessment of consent (such as, put bluntly, ‘yes’ means ‘no’; that women fantasise about being raped; or that women could resist if they really wanted to)” (See Thomas Crofts, ‘Rape, the mental element and consistency in the codes’ (2007) 7(1) QUTLJJ 1). [24] I have gone to a considerable extent to critique the prosecution of the offence of sexual assault if only, in the absence of statutory intervention, to require a moral and professional shift on the part of the legal profession in Seychelles on the appreciation of the difficulties faced by sexual assault victims (so far always women) and the necessity to orientate ourselves away from the traditional male focus in sexual offences accompanied by the demeaning of woman’s sexuality in the language used and the accompanying stereotyping underscoring the belief that in Seychelles, as in most other countries, it is the complainant of a sexual assault case who is on trial and not the accused, despite liberal platitudes to the opposite effect. [25] In my examination of the law on sexual assault and the examination of the evidence in the present case, I advocate a shift from the stereotype discussions, such as the subconscious justification that the assaulted person was consenting, was not wearing knickers, should have felt her knickers being pulled off, was too drunk, was not drunk enough, was inappropriately asleep in the front seat of a small car, should not have been in a taxi pirat, should not have gone to the Amusement Centre, should not have worked too early so as to feel too tired on a Friday night; in fact, should not have been there at all. [26] By adopting and requiring affirmative conduct in sexual assault cases, and through the limitation of situations in which consent can be lawfully obtained, the Court would be necessarily equipped and properly restricted in focus on the distinct and integral difference between legal sex and sexual assault, which invariably hinges on the absence of consent. [27] In this endeavour I am guided by and adopt Lois Pineau’s communicative criterion to challenge both the contractual and aggressive seduction models of sexuality, to shift the burden of proof from the person who is assaulted to the person who assaults, and to establish a standard that is not dependent on masculine perspectives. Pineau argues for sex that is based on the mutual agreement of both parties as is expressed in communication from both sides for the purpose of mutual enjoyment. Hence, it is the communication of consent and not of non-consent that is crucial. It is a model advocating the pleasure of both partners in whatever form they so choose and expressed mutually without pressure and coercion (See Lois Pineau, Date Rape: A Feminist analysis (1989) 8 (2) Law and Philosophy 217-243). [28] The challenge remains in finding how best to infuse these principles into the definition of sexual assault and in particular in the notion of consent within the statutory provisions of the Penal Code of Seychelles expressed as it is in a male orientated language. In my view, such an approach is not incompatible with the relevant provisions of the Penal Code on this issue. [29] Admittedly, the notion of consent extends across a wide range of mental states, from actual desire to reluctant acquiescence (Devereux & Blake, Kenny Criminal Law in Queensland and Western Australia 8th Ed, LexisNexis Butterworths Australia, 2013, at 323). In Holman [1970] WAR 2 at 6, Jackson CJ held that a victim’s consent to intercourse may be: “… hesitant, reluctant, grudging or tearful, but if she consciously permits it (providing her permission is not obtained by force, threat, fear or fraud) it is not rape.” [30] However, in R v Ewanchuk [1999] 1 SCR 330, the Supreme Court of Canada rightly shifting the focus on the accused’s comportment, held that implied consent is not sufficient for legal consent; an accused cannot rely on the complainant’s silence or ambiguous conduct to initiate sexual contact. Furthermore, it was held that: “In order to cloak the accused’s actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question”. [31] In the Australian case of Case Stated by DPP (No 1 of 1993) (1993) 66 A Crim R 259 at 278, Duggan J held: “Whether or not consent has been freely given is a question of fact for the jury to determine, having regard to all the circumstances. The question is not concluded against the accused simply by reason of the fact that there was an initial refusal to consent to intercourse. Even following such a refusal there may be a freely given consent after further dealings between the parties.” Cognitive capacity to consent [32] Consent will not be freely and voluntarily given if the victim lacks cognitive capacity to give consent. In Canada, the jurisprudence has consistently maintained that consent requires a conscious, operating mind which is capable of granting, revoking or withholding consent to each and every sexual act (Sweet & Maxwell, Archbold, Criminal Pleading, Evidence and Practice, 2013, Thomson Reuters, at 2054). In R v Ashlee, 212 C. C. C. (3d) 477, the Alberta Court of Appeal held that consent must be given to a particularly sexual activity and at the time of that activity, and that consent is a continuing state of mind which does not remain operative after a person has become unconscious and incapable of consenting (See in this context “Tea and Consent” https://www.youtube.com/watch?v=oQbei5JGiT8). [33] Supervening unconsciousness causes an inability to agree or consent (Saibu v R [1993] 10 WAR 279). In the Queensland case of Francis [1993] 2 Qd R 300, it was held that rape would be committed where a man had sexual intercourse with a woman who, by reason of sleep or a drunken stupor, was incapable of deciding whether to consent. Similarly, one cannot consent in advance to future sexual activity when he or she would be unconscious (R v J. A. 2011 SCC 28). [34] In the UK case of R v Bree [2007] 2 All ER 676, although it was established that drunken consent may well amount to consent in some cases, the Court held that if, through drink, a woman had lost her capacity to consent, sexual intercourse would be rape. Conversely, an alleged victim who had drunk “substantial quantities” could still consent to sex. It was reminded in that case, however, that the capacity to consent could evaporate before sexual intercourse took place. [35] In the present appeal, the Appellant’s contention that the sexual assault could not have happened because the complainant should have woken up when the vehicle came to a stop or when her seat was being reclined (note that there was no evidence to that effect as the Appellant neither testified nor adduced any evidence; rather the point was made by defence counsel and by a member of the bench hearing the appeal) is untenably speculative and in my view should be dismissed out of hand. The complainant consistently maintained in her evidence that she was a bit drunk and was very tired following a long day, and had fallen asleep in what she believed to be a taxi pirat after she had asked the driver to take her to Sans Souci. [36] In the circumstances, as stated in EC v R [2016] SCSC 788: “The mere fact that [the complainant] was drunk never diminished her capacity to know what had happened to her and to identify correctly the person who had had sex with her without her consent. There is no evidence on record to show that she was so drunk that she could not understand where she was, or whom she was talking to, or whom she had been with on the material day and time. On the contrary she recounted the events to the satisfaction of the learned trial Magistrate.” [37] Similarly, in Mousmie v The Republic (1978-1982) SCAR 543, this Court held that: “…it was unthinkable that the account given by the complainant had been concocted and there was no indication that the complainant was suffering from delusions or hallucinations. The part of the prosecution case which dealt with the commission of the offence could have been believed on the uncorroborated evidence of the complainant.” [38] More to the point, there is nothing to suggest from the evidence led at the trial in this case, that the complainant was so drunk that her recollection of the material events was patchy or uncertain. Her account of the incident during her testimony and during cross- examination was consistent. I agree with the learned trial Judge that there was no reason to doubt her version of events in this case, particularly given that her account was corroborated by the testimonies of multiple other witnesses. Therefore, it is reasonable to believe that the complainant was asleep at the material time and that she lacked the cognitive capacity to consent to any sexual activity by virtue of her being unconscious. Need for corroboration [39] There were two diametrically opposed accounts of events in this case. The complainant had impressed the learned trial Judge in the present case of her credibility, and he believed her evidence. The trial Judge was entitled to that conclusion as he had the chance to see the complainant testify and observe her demeanour on the stand, particularly while her evidence was being tested through cross-examination, a benefit which the appellate Court does not have (Vidot v R [2005] SCCA 20). This Court has on various occasions and most notably in Akbar v R (SCA 5/1998), held that in appeal: “The accepted approach to findings of fact which turn largely on the credibility of witnesses is to uphold such findings if they are supported by the evidence believed by the trial court and if there is nothing perverse in the trial ascribing credibility to such evidence”. In my view, to do otherwise would subject this Court to the same accusation of perversion. [40] The ineluctable journey towards dispensing of the need for corroboration in sexual assault cases was slow in Seychelles. In Re a Minor (No 2) (2008) SLR 348, it was held that corroboration is only required if the testimony of the complainant is credible; if the testimony is not credible and there is no other cogent evidence, then the accused should be acquitted even if corroborative evidence is capable of being found. Progressively, in Republic v P. T. A (Criminal Side No. 45 of 2000), it was held that the Court may convict an accused in the absence of corroboration if it is satisfied that the evidence of the complainant is truthful. [41] Finally, in Raymond Lucas v The Republic SCA 17/2009 (2011) SLR 313, this Court cited Article 27 (1) of the Constitution on rights to equal protection of the law and stated: "…to say that every complainant in a sexual assault offence case is less worthy of belief than another witness is an affront to their dignity and violates their right guaranteed under Article 27 (14) of the Constitution." [42] In EC v R [2016] SCSC 788, the Court of Appeal held that : “As for corroboration in sexual offences, it has been done away in other jurisdictions on the ground that it is discriminatory to require females to provide corroboration of their evidence contrary to the provision of the Constitution. This is now the law in Australia, Canada, Ireland, and in East Africa.” [43] Yet, even if corroboration was required there was plenty of it in this case. Stella Agathine gave evidence that she found the complainant in an obviously distressed state immediately following the incident, and was informed by the complainant that she had been raped. The complainant further informed her that the driver of the vehicle had not taken her home as she had intended, but had instead taken her to Roche Caiman. The witness was asked to telephone the complainant’s phone, then the complainant’s boyfriend, before notifying the police. [44] The complainant’s account of strangulation was corroborated by the testimony of Yanna Dupres, the responding police officer, who testified that she saw two red marks on the right side of the complainant’s neck shortly after the incident. Dr. Alejandro Ballester confirmed the presence of external scratches on the right side of the complainant’s neck in his medical report dated 3rd October 2015 (Exhibit P5). [45] Dr. Mohamed Amad Alla confirmed the presence of multiple superficial abrasions on the back and shoulder of the Appellant, which he opined could have been nail scratches. The Doctor agreed that the scratches could have been inflicted during love making at the suggestion of the Defence counsel. I find little credence with this suggestion, given that the evidence led at trial would indicate that the sexual intercourse was not consensual, and proceed to uphold the Trial Judge’s rejection of it. Reporting incident at the first opportunity [46] Because of the seriousness of the crime of rape, there has been attempts to introduce an element of objectivity into the determination of the question of whether the victim consented, which is achieved in some circumstances by considering the behaviour of the victim shortly after the alleged assault and particularly whether the victim made an early complaint about the assault (Devereux & Blake, Kenny Criminal Law in Queensland and Western Australia, 8th ed, LexisNexis Butterworths Australia, 2013, at 328). [46] Archbold Criminal Pleading, Evidence and Procedure, (supra) at para 20-12 provides that recent complaints in common law are admissible as evidence of consistency of the conduct of the complainant and would tend to negative consent. [47] The complainant testified that she told Stella Agathine immediately following the incident of the alleged sexual assault, before the police were telephoned. The witness corroborated the complainant’s version of events, giving evidence that she was working at Golden Plate Restaurant at Roche Caiman near the Stad Linite, when the complainant approached her in a clearly distressed state; the complainant was screaming, falling to the ground and crying. The complainant informed her that she came from the Amusement Centre and that she had been raped. [48] The complainant further told the witness that the driver of the vehicle had not taken her home at Sans Souci as she had intended, but had taken her instead to the Roche Caiman stadium car park. The witness was asked by the complainant to call the complainant’s mobile phone, which had been left in the Appellant’s vehicle, and her boyfriend, before calling the police. The complainant was immediately thereafter taken to the Hospital for a medical examination and then proceeded to give a formal statement to the Mont Fleuri police. [49] PW4, the complainant’s sister, was also informed by the complainant the morning after the incident that she had been raped. [50] Therefore, the complainant’s reporting of the incident immediately following the alleged sexual assault would tend to negative consent. This further satisfies the Trial Judge that there is ample corroborative evidence to support the complainant’s account that the sexual intercourse was not consensual. I see no reason to disagree with him. The evidence of Dr. Alejandro Ballester (PW 8) [51] The Appellant submitted that the doctor could not say with certainty whether sexual intercourse had taken place. I fail to see the relevance of this submission. It is reminded that it is not in dispute that sexual intercourse occurred, nor specifically that the sexual encounter had involved penetration; whether or not there was consent by the complainant to the sexual intercourse is the only fact in issue. [52] It would be unreasonable and albeit fanciful to expect under such circumstances for a doctor to say with absolute and unequivocal certainty that the scratches were due to strangulation or use of force during intercourse, unless the markings on the victim’s neck were elaborate and obvious. The doctor could only reasonably be expected when faced with two red marks on one side of a patient’s neck to opine as to whether he believed it possible for the scratches to be the result of a use of force or strangulation, those options being amongst many likely causes of the injury. Even Dr. Mohamed Amad Alla, when asked during cross-examination how the scratch marks on the Appellant’s body could have been occasioned, replied that this is a “common sense subject”. Therefore, although the prosecution did not further question the doctor in this regard, the presence of the scratches on the complainant’s neck immediately following the alleged sexual assault serves to corroborate, if nothing else, the complainant’s account of a physical struggle between herself and the Appellant. [53] It is reminded at this juncture that it is trite that there is no requirement for physical injury by the victim in sexual assault cases. [54] The doctor’s expert report was not challenged during the trial, nor was its admission into evidence objected to by defence counsel. Therefore, the Report was admissible as evidence under section 17 (1) of the Evidence Act (Cap 74), which provides as follows: “In any trial a statement, whether of fact or opinion or both, contained in an expert report made by a person, whether called as a witness or not, shall, subject to this section, be admissible as evidence of the matter stated in the report of which direct oral evidence by the person at the trial would be admissible.” Use of force negates consent [55] The complainant alleged that the Appellant had used force against her during the sexual intercourse. In Lespoir v R Cr. A 3 /1989 CA 9/1989, LC 13, this Court held that it was trite law that fraud, force or threats vitiate consent. It was reiterated in Pascal Fostel v Republic SCA 19/2012 (per Msoffe JA) that consent to a sexual act obtained by force is not consent. [56] The complainant gave sworn evidence during the trial that the Appellant was strangling her and was forcibly preventing her from leaving the vehicle. Furthermore, when she screamed, he told her to shut up. Her version of events was corroborated by that of Yanna Dupres, the responding a police officer who saw two red marks on the right side of the complainant’s neck, and by Dr. Alejandro Ballester, who reported that he had noted external scratches on the right side of the victim’s neck during her medical examination on 3 October 2015. As previously stated, the medical report was admitted into evidence as exhibit P5 in the absence of any objections from the Defence. [57] Furthermore, the complainant alleged that she had hit the Appellant with her mobile phone and dropped it in his vehicle before she was able to escape. It was not disputed by the Defence that the phone was left in his vehicle. Nevertheless, the complainant’s account was corroborated by the testimonies of PW4 and Yanna Dupres. Moreover, such evidence was in no way controverted by the accused. I am therefore satisfied that there is sufficient independent evidence to support the complainant’s account that force was used against her at the material time, which effectively negates consent. Police statement of the Appellant [58] The production by the prosecution of the out of court statement of the Appellant was impugned not on the grounds that it implicated the Appellant, but rather on the ground that it served to show the innocence of the Appellant. Well before this jurisdiction accepted that no corroboration of a credible complainant was necessary in sexual assault cases, the Court had established in R v Pierre [2007] SLR 200 that when corroboration is required false statements made by the accused to the police before the commencement of proceedings may amount to corroboration of the complainant’s evidence where: a) The lie is deliberate; b) The lie relates to a material issue; c) The motive for the lie is realisation of guilt and fear of the truth; and d) The statement is clearly shown to be a lie by evidence from an independent source. [59] The Appellant’s statement dated 12 October 2015 (exhibit P6), which was given to the police 10 days following the alleged incident, consists of numerous claims which would suggest that the Appellant and the complainant went to drink alcohol together at Plaisance then continued to drink together in the vehicle. After alleged consensual intercourse, it is the Appellant’s averment that he paid her SCR400 and dropped her off at Barrel Trading. He also claimed that she vomited in his car, and that he failed to disclose these details to the police earlier because he would have problems with his lady. [60] That, in my view, is weak evidence of consent. In the tradition of Woolmington v DPP [1935] AC 462, and the golden thread principle it is too often conveniently forgotten that evidential burdens shift throughout a case. While undoubtedly the burden of adduction of evidence to show lack of consent rests on the prosecution, when as in this case there is unambiguous evidence by the prosecution, an evidential burden (to show or lead some rebuttal evidence) is cast on the accused to show his belief of consent. In my view he failed in this duty. The complainant specifically denied in her testimony each allegation levelled by the Appellant in his police statement. On the basis of all the evidence led at the trial, the truthfulness of the Appellant’s statement to the police is highly questionable and the contents in my view improbable and self-serving. Conclusion regarding appeal against conviction [61] The Republic has the burden of proving the charge proof beyond reasonable doubt. If the Court has a doubt as to proof of guilt that fairly arises out of the evidence and that appears to be a reasonable doubt, and if it relates to one of the essential elements of the charge, then the Court should dismiss the case and set the accused free. [62] Lord Denning J in Miller v Minister of Pensions [1947] 2 All ER 372, 373 held as follows on the standard to be met in this respect: “It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt… If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’, the case is proved beyond reasonable doubt, but nothing short of that will suffice.” [63] I am, like the Trial Judge, satisfied that the Prosecution succeeded in proving the charge of sexual assault against the Appellant beyond reasonable doubt. May I add that any arguments raised during the hearing on appeal concerning the physical size of the Appellant in relation to the complainant and whether or not he would be able to have intercourse with her in the front passenger seat of the vehicle, or concerning the type of underwear that she was wearing for her allegedly not to notice its absence, or whether the complainant ought to have awoken while the Appellant was reclining her seat, or concerning the lack of torn clothing, apart from being devoid of deference to the female perspective, would not be sufficient to create a remote possibility in the Appellant’s favour. None of these issues would be relevant for the purposes of establishing whether or not there had been consent. If nothing else, the argument concerning the victim’s underwear may well go to the heart of the stereotypical rape myths discussed above. [64] On appeal, the burden is on the Appellant to show that the findings of the trial court were unreasonable or could not be supported having regard to the evidence (Naiken v The Republic [1981] SLR 19). This has not been discharged. [65] For all the aforementioned reasons, I see no merit in the Appellant’s grounds of appeal against conviction and dismiss them. Appeal against sentence [66] The Appellant is also appealing against his sentence of 7 years’ imprisonment. A sentencing decision should be overturned only if it is clearly wrong in principle or manifestly excessive (Labiche v R SCA 1 (a)/2004, LC 288). [67] In Francis Crispin v R SCA 16/2013, the Honorable President of the Court of Appeal held the following: “The guiding principles in sentencing are summed up in four words: retribution, deterrence, prevention and rehabilitation ... [The appellant] ignores the mental and physical pain and damage he causes his victims. The society abhors such actions. The Court must add an element of retribution in punishment of this crime to express the pain and disgust of the society when it convicts an accused with such crime.” [68] He further stated: "To deter offenders and likely offenders, the court must also mete a severe punishment to the offenders. This is considering that given an opportunity, there is nothing to show that the offender would not repeat his earlier actions. A severe sentence also ensures that the offender is kept away from the victims and likely victims, to prevent him from repeating his heinous actions. " [69] For the offence of sexual assault under section 130 of the Penal Code, the Appellant is liable to imprisonment for 20 years. I am of the view that abusing one's position of trust as a taxi driver, albeit a taxi pirat driver, to take advantage of a passenger who has fallen asleep in one's vehicle, is an aggravating factor in this case. Furthermore, the use of force against the victim is also an aggravating factor. For these reasons, and based on the current trend in sentencing, I reject the Appellant's ground of appeal against sentence. [701C dismissed accordingly. M. Twomey {JA) Signed, dated and delivered at Palais de Justice, He du Port on 31 August 2018. 19