R v AH (CN 69 of 2019) [2023] SCSC 680 (11 September 2023)

· . IN THE SUPREME COURT OF SEYCHELLES Reportable [2023] SCSC 6?O CN 69/2019 Prosecution Accused REPUBLIC (rep by Luthina Monthy) and A. H (rep. s. Rajasundaram) Neutral Citation: Republic v A. H CR69 0[2019 [2023] SCSC 6.fP..delivered on 11 Before: Summary: Heard: Delivered: September 2023 Vidot J Sexual Assault contrary to section 130(1) read with section 130(2)(d) and section 130(1) of the Penal Code and Wilful and negligent exhibit of indecent material 14-07-2020,13-07-2021 II September 2023 and 17-01-23 identification to a child; The Accused is found guilty of on count one and acquitted of count two. ORDER VIDOT J JUDGMENT [1] The Accused stands charged with the following offences; Count J Statement of Offence Sexual Assault contrary to section 130(1) as read with sections 130(2)(d) and section 130(3)(b) of the Penal Code and punishable under section 130 (1) of the Penal Code Particulars of Offence A. H of Glacis, Mahe, on a date unknown to the Prosecution in March 2019, sexually assaulted his daughter, Ms. A. H, aged 5 years old at the time, licking her lips, inserting his penis into her mouth and inserted his finger into her vagina. Count 2 Statement of Offence Wilfully and negligently exhibits to a child any indecent material contrary to section 152(1 )(f) as read with section J52(2)(b) of the Penal Code and punishable under section 152(1) of the Penal Code. Particulars Of Offence A. H, of Glacis, Mahe, on a date unknown to the Prosecution in March 2019, wilfully and negligently exhibited to his daughter, namely, Ms. A. H, aged 5 years old at the time, indecent material of two naked woman taking a bath. Synopsis of Evidence (a) The Prosecution [2] A. H was only 5 years old when she alleged to have suffered a sexual assault assault from her father A. H. She testified that this happened when she lived at Glacis with her father, brother and grand-parents. Prior to that she had been living with her mother, father and brother at La Gogue. After, her parents had a tight, her father took her and her brother to live with him and her paternal grandparents at Glacis. She was not happy to go but her mother forced her to go. However, her mother did not exercise any threat over her to go with her father. Following the alleged incidents, she now lives with an aunty and uncle. [3] She testified that when she was at his father's place, the latter "touched" her. It happened one night; he squeezed her mouth, kissed her and inserted his finger into her vagina. It was painful and she asked him to stop, but he continued. Her grandmother came to the kitchen and switched on the light and his father pretended to be sleeping. Thereafter, when the grandmother turned off the light, he again continued to do what he was doing and again she asked him to stop. He did not. He mounted on her and performed an up and down motion. The Accused further placed his mouth on her vagina. That incident happened only once. [4] A. H testified that initially she did not report that incident to anyone. She was afraid. She was scared that if she told someone, that person would tell someone else. Thereafter, she revealed to her mother what happened. She told her mother that her father had done indecent acts to her. She refuted suggestions by the defence that someone had coached her into making such allegations. Following such revelation, her mother took her and her brother to the police. [5] 111 response to questions in cross-examination, she states that after the fight her parents had a separation. She also reiterated that no one had told her what to say in court and that her evidence is her own recollection of the incident. She also recounted that the father had shown her a video on his phone wherein two women were having a bath together. She did not want to look and she turned away. [6] She also stated that despite the fact that the incident happened when it was dark, she knew that it was her father who did such acts to her as her father woke her up and he was the one beside her. She testified that she does not like her father for what he did to her and that in fact, she is now afraid of her father. She does not want to be seen by her father. She is equally afraid of her mother and does not want her to see her with her aunty and uncle. [7] Dr. Sethareh Brioche is an obstetrician and gynaecologist. She examined A. H on 0211<1 April 2019. The latter was referred by the Child Protection Unit. A. H was accompanied by her mother and a social worker. The Doctor produced an examination report of her observations. She noted the external genitalia of A. H was normal. There was no abnormal vaginal discharge and that the hymen was intact. She testified that it is possible for the hymen to remain intact even if the girl has been fingered. This is because the hymen is stretchy and therefore, meaning tbat there will not necessarily be a rupture if fingered. She added that when the vagina is being fingered, there will not necessarily be abrasions. That \ would depend on the force applied and to the depth of the insertion. [8] N. C is A. H's mother. She is a mother of six, but none of her children reside with her. They are all in foster homes. She recounted that on Saturday in April 2019, A. H was insisting that she takes her to the beach to which she had said no. Since A. H was insisting she retorted that she was going to call the Accused to pick her up. A. H responded that her father had committed indecent acts to her. She was shocked and queried as to what the father had done. A. H said that the father had kissed her and inserted his private parts into her mouth. She also said that the father got her to watch an indecent video on his phone. The description of the movie explained by A. H, corresponds exactly to one the Accused had showed her before. Gira, a social worker, called and advised her to take A. H to the Glacis social worker on the Monday. From there she was referred to the main Social Services Office, whereby, the social workers decided to have a long conversation with A. H but without her being present. [9] Furthermore, she admitted to being an alcoholic. She and the Accused would fight and during one such fights she injured him with a cigarette in his eye as a means of self-defence as he was strangling her. Counsel for the defence put to her under cross examination that before the alleged incident with A. H she had threatened to send him to jail to which she answered in the negative. [10] She wanted to call the police, but a friend advised her to call Social Services. She called a friend who is a social worker and took A. H to her as she was crying. That friend by the name of Gira Nibourette, talked to A. H and filmed the conversation. She was adamant that she did not in way influence A. H to allege that her father committed indecent acts to her. She reiterated that the threats to send the Accused to jail came long before that present incident and that was because the Accused was always beating her. On two occasions at least, police had to intervene and arrested him. However, despite such threats she never followed through and CfD officers came to the house and asked her to sign such complaint forms but she refused. She just queried from them if they would assist her if the beating is repeated. [II] Juliana Alphonse is a social worker. Once the case was referred to the Child Protection Unit, she met with A. H. She was equally present when a statement was taken from A. H. When A. H was giving her statement she observed that she was confident but somewhat frightened. She found A. H to have been consistent in relating her story. She was also involved providing counselling and support to her and conducted home visits and noted neglect on the part ofthe mother (B) The Defence [12] The defence called two witnesses. The Accused elected to give evidence under oath. He testified that it has been four years since he has separated from N. C. This came about following a fight whereby N. C burnt him with a cigarette in his eye and placed a piece of glass under his neck. However, there were always fights between them. Following the fight, he left N. C's place with their two children, one of whom is the complainant. They went to his parents' house at Glacis. He said each time they fought, she threatened to send him to prison. However, under cross-examination he admitted that such threats was said to other people but not to him. Nonetheless, N. C confirmed that these threats were made. [13] He denied the charges and in particular the allegations made by his daughter. He denied having a smartphone on which to watch videos, but insists that he possessed a small Nokia phone on which to make calls [14] Armangine Hoareau is the mother of the Accused. Shee remembered the day that the Accused came to his house with the children he has with N. C. She described N. G as not being a good parent and aggressive. She did not take good care of the children and that she drinks a lot. Sometimes she (Mrs. Hoareau) would take care of the children. [15] She stated that she does not believe that the Accused committed these offences and that he is respectable. Countl The Law; Sexual Assault [16] Section 170 of the Penal Code provides as follows; "Any person who sexually assaults another person is guilty of an offence and is liable to imprisonment for 20 years Provided that the victim of such sexual assault is under the age of15 years and the accused is of or above the age of 18years and such assault falls under section 2(c) and (d, the person shalf be liable for a term ofnot less than 7 years and not more than 20 years. Provided also that (f the person is convicted of a similar offence within a period of 10years from the date of thefirst conviction the person shalf be liable to imprisonmentfor a period of not less than 14 years and not more than 20 years. " [17] Section 130(2)(d) provides that sexual assault includes the "the penetration of a body orifice for a sexual purpose. "The allegations here is that in the commission of the offence, the Accused inter alia inserted his fingers into the vagina of A. H, which she described as having been painful. [18] Consent is an essential ingredient to establish a case of sexual assault. Section 130(3) of the Penal Code provides; "A person does not consent to an act which ifdone without consent constitutes an assault under this section if; (a) the person consent was obtained by misrepresentation as to the character of the act or the identity ofthe person doing the act; (b) the person is below the age of 15 years old,' or (c) the person's understanding and knowledge are such that the person was incapable of giving consent. [19] In the present case, however, consent does not have much relevance since A. H was merely 5 years old at the time of the alleged incidents. Onus of Proof [20] I wish to place on record that in evaluating the charges 1 have considered all evidence adduced, though more importance have been attached to certain aspect of the evidence. I have considered both the evidence of the prosecution and that of the defence. Nonetheless, the onus is on the prosecution to prove its case beyond reasonable doubt [21] In DL v R (SCA CR 23/2020 (Appeal from CR24/2020» [20221 SCCA 19 (29 April 2022) the Court of Appeal quoted S v Van der Mayden 1999 (1) SACR 447 (W) a South African case wherein it was held that; "The onus of 'proofin a criminal case is discharged by the State if the evidence establishes the guilt of the accused beyond reasonable doubt. The corollary is that he is entitled to be acquitted if it is found reasonably possible that he might be innocent. These are not separate and independent tests, but the expression of the same test when viewed from opposite perspectives. the evidence must establish the guilt of the accused beyond reasonable doubt, which will be so also if there is at the same time In order to convict, explanation 'which has been putforward might be true. The two are inseparable, each being a logical corollary of the other. " [22] I note that in this case, the complainant is of tender age. Such witness are very vulnerable and could have been subject to influence by others. However, this does not mean that such vulnerable witnesses should not be believed. I find that many times child witnesses are more credible than adult witnesses. The Court therefore, has to assess their understanding of the charges levelled against the accused and the court processes in evaluating their testimony. Discussions [23] In this case, the prosecution is placing a lot of reliance on the evidence of the complainant. Despite her young age, r found her to have been cogent in her evidence. She survived cross examination unscathed and efforts to falter her did not shake her. She was consistent in giving evidence and her testimony was consistent. She explained how the accused touched her and demonstrated how he squeezed her mouth and kissed her. She explained how he took his fingers and inserted them where she urinates and added. "I asked him to stop and he continued. " If that part of the evidence of A. H is to be bel ieved then the act of sexual assault would have been committed. This is because the accused would have penetrated a body orifice of the complainant. She went on to explain as follows; "[H]« kissed me and 1 asked him to stop ....... And then he placed his mouth where 1urinate. " She also explained that such an incident happened only once. [24] Julianne Alphonse, the social worker who worked on the case was present when A. H was being interviewed explained that though A. H was a little afraid but "at the same time she was confident of what she was saying. "That gives more credibility to the evidence of A. H. [25] Counsel for the accused questioned Dr. Setareh Brioche at length in regards her conclusion that her examination revealed that A. H's hymen had not been broken. The doctor was asked (proceedings 13th July 2021, A. M, p5); "So Doctor, you stated that the hymen of the alleged victim was intact. In your expert medical opinion is this medically possible in view of the allegation offingering of the alleged victim's vagina? " She answered; "Yes, the hymen is stretchy. It is hydro-elastic. So, it does not mean that every time you finger it is - going to rupture the hymen. There are instances where it does not rupture the hymen are there are instances where fingering does rupture the hymen. " That in effect settles any doubt that the act of fingering did not happen as A. H's hymen was not broken. [26] There was also suggestion that N. C (A. H' mother) was carrying out threats she had made to the accused before. The threats are that she would sent him to jail. The suggestion is given the utmost consideration for the purpose of this judgment. N. C does not dispute that such threats were made previously during the relationship, however many times she just allowed it to pass. The Accused and N. C appear to have had a turbulent relationship. There was violence used from both sides. She further testified of one occasion whereby she made a complaint to the police, but refused to sign the complaint form as she did not want him in trouble and asked police whether she would be assisted in future should she have problem with the Accused. It is clear from the evidence, A. H was not influenced in making such allegations by N. C. A. H denies the same. In fact, it was N. C who had asked the A. H and her brother to go with their father after her parents had had a fight. [27] Therefore, this Court does not believe that N. C influenced A. H to make such allegations against the Accused. 1believe that A. H was being truthful when she testified that she was not influenced by her mother. A. H also denies suggestion that she had been assisted by somebody as to what she should deponed in Court. Identification [28] Through cross-examination, the defence broached the issue of identification. Counsel for the Accused in fact asked; "It was dark and there wasn't any light in that room?" A. H agreed that it was dark but she added that her father woke her up and was the person next to her. [29] The leading case dealing with identification is R v Turnbull [1977] Q. B 224 which prescribes rules to guide judges faced with contested visual identity evidence. The guidelines are applicable in cases of identification. The rules are aimed at assessing the quality of identification. It also deals with the warning a Judge should give himselfwhen assessing the considerations. The considerations are; (i) The length time that the witness was able to have the accused under observation; (ii) At what distance; (iii) The lighting condition; (iv) Was the observation impeded in any way; (v) Has the witness ever seen the accused before and ifso how often; and (vi) Was there any discrepancies between the initial description given by the witness and the actual description of the accused? [30] Counsel for the Prosecution quoted from Archbold 20] 2 pg 1537 14-20 which in explaining the law if identification states; "A witness may know the name of the person he asserts is the offender either because he has had a personal experience of the offender using or answering to the name or because he is aware of the offender being known by that name by plurality of people ..... in thefirst case there is no question of hearsay, in the second case there is hearsay but it is admissible pursuant to common law ..... The issue is whether or not the witness has correctly identified the defendant as the offender, not whether he knows his name, in order tojudge this the tribunal of fact wiff want to know his name, in order tojudge this tribunal of fact will want to know how well the witness knew the defendant. " [31] When dealing with issues of identification the court needs to warn itself of the need for caution. Such a caution is necessary so as to avoid the risk of injustice. The court also needs to recognise that a witness who is honest may be wrong even if they are convinced that they are right and that a witness who is convincing may still be wrong. Furthermore, a witness who recognises well may still be wrong. the Defendant r give myself that warning. even when the witness knows the Defendant very [32] It is commonly accepted that recognition is more reliable than identification of a stranger; however, even when the witness appears to recognise someone he knows, the court (the jury) should be reminded that mistakes in recognition of close relatives and friends are sometimes made. [33] In this case, A. H acknowledges that it was dark in the room she was in but says that she knew it was her father who did the unlawful act to her as he was the one next to her. Furthermore, the accused talked to her and he was showing her videos on his phone. This is a case of recognition. She would have recognised the voice of the accused and noticed his physical appearance from the light from his phone. There was also suggestion from the defence through cross examination that the accused was indeed in the room with A. H at the material time. It was suggested to A. H that the Accused did not show him his phone but rather he was just watching something thereon by himself (pp26 and 27, proceedings 14th July 2020 a.m). [34] I find that the Prosecution has establish the charge to the required standard. There is no doubt in my mind that the Accused committed the act of sexual and find him guilty of the same accordingly. Count 2. Wilful or negligent exhibit indecent material to a child [35] It is clear from this charge that the prosecution has to establish that there was a wilful or negligent act by the Accused whereby A. H was exposed to indecent materials. The allegation is that the accused had illicit indecent video of two women having a bath together which he showed to A. H. The Accused denied the same and states that he did not have a smart phone on which he could watch videos. He only possessed a simple phone from which he could make calls and send texts. However, when A. H was being cross-examined, she was not challenged in any way to establish that the Accused did not have a smart phone. In fact, as I have said before, the suggestion was that the Accused was watching videos on his phone and that he did not ask A. H to watch whatever it was he was watching. Therefore, I find that the Accused was not being truthful when he testified that he owned a smart phone. He was being deceptive. [36] However, A. H only testified of a video of two women taking a bath. This is no sufficient for the Court to conclude that the video was contained indecent content. N. C on the other hand, stated that the Accused had showed him the same video of two women bathing and indulging in indecent act. She had had the Accused to delete the video. Nonetheless, this Court cannot conclude that they were the same video in the absence of any such description fromA. H. [37] Therefore, I find that as regards the second count, the prosecution has failed to discharge the burden to the require standard. I acquit the Accused of the second count. 12