R v HL (CR 44 of 2023) [2024] SCSC 200 (28 November 2024)

SUPREME COURT OF SEYCHELLES Reportable [2024] SCSC CR 44/2023 In the matter between THE REPUBLIC (rep. by L Monthy ) and H L (rep. by Mr F Bonte) O L Accused Neutral Citation: Before: Summary: Heard: Delivered: The Republic v HL (CR 44/2023) SCSC (16 December 2024) Govinden CJ Sexual Assault, non-identification of accused, No case to answer 3 June 2024; 23 May 2024 28 November 2024 RULING Pursuant to section 183 of the Criminal Procedure Code, the case has not been made out against the accused person sufficiently to require him to make a defence. The charge is dismissed and the accused person is acquitted. GOVINDEN CJ [I] The accused had been charged for the following offence. Count 1 Statement of Offence Sexual Assault contr to section 130 (I) as read with section 130 (2) (d) of the Penal Code, punishable under section 130( I) of the Penal Code. Particulars of Offence H L O L of , Mahe, on date unknown to the prosecution in July, 2020, at , Mahe, sexually assaulted another, namely L -M E L , aged 15 years old at the time, by inserting his penis into the vagina of the said -M E . [2] The brief facts of the case led by the prosecution are as follows. The Virtual Complainant, L -M E , who was of 15 years of age at the material time, on Saturday 25th July at around 9pm left her home with the permission of her mother to go to an event hosted by her cousin Juliette at her residence at Corgatte. The Virtual Complainant was picked up by a grey 110. In the car was V , J sister and two boys, one named H and the other unknown. V informed the Virtual Complainant that they were going for a ride. Despite her saying that she wanted to go to Corgatte as planned, nobody listened to her. The group proceeded to buy food and then went to the house that sells alcohol. H and the other boy got out to buy alcohol. The group thereafter dropped of another girl who was in the car. The Virtual Complainant asked to take her to Corgatte but the group informed her that it was still too early. Despite the Virtual Complainant asking V to call her mother, V said that she will do so later. The Virtual Complainant stated that the group then proceeded to Cascade, thereafter to the beach park at . There, she and V were given alcohol, which the Virtual Complainant initially refused, then was told to drink some, she took some sips then threw it away. Afterwards, the group proceeded to Aux Cap where the incident happened. [3] At Au Cap, V and another boy got out of the car and the Virtual Complainant stayed inside. H was on the driver's side of the car. Once the other two left, he locked the doors and rolled the windows up and came to the back seat next to the Virtual Complainant. He lifted one of her legs up, removed her short along with the panty, spread her legs and inserted his penis inside her vagina. The Virtual Complainant testified that while doing so he did not tell her anything but kept pinning her down and did not stop when she tried to remove him from her. The Virtual Complainant explained that when he inserted his penis in her vagina she tried to struggle against him and it was 5 minutes later that he actually stopped pinning her down and left her alone. Afterwards, the accused unlocked the car door and the Virtual Complainant got dressed and went outside. [4] The Virtual Complainant testified that at the time of the assault the other persons who were in the car were not near the car and that they only came back later on. Thereafter, they went to e. The Virtual Complainant stated that she did not tell anybody what happened that night as she was scared. Her mother found out about the assault when the [9] Dr. Setareh Brioche testified that she is an Obstetrician and Gynaecologist, Senior Medical Registrar and described that her profession includes attending to the special Child Protection Unit whereby she sees patients brought mainly from Social Services. The witness identified and produced the medical report dated 19th September 2019 signed by her (exhibit P2). According to the medical report, the Virtual Complainant came to see her along with her mother on the 12thAugust 2020 with a history of alleged sexual assault. The examination of the Virtual Complainant was not done until l S" August 2020 as she had active herpes. The Virtual Complainant was examined at the Child Abuse Clinic. Her external genitalia appeared normal with healed lesions from herpes infection. Hymen was not intact. In cross-examination, the witness explained that she would not be able to state when the hymen has been damaged. She further explained that if it is an acute case (within 24 or 48 hours) which is brought immediately after the first time the hymen is affected then it is possible to have evidence of an acute cause of the hymen not being intact but if it was a while ago, it would not be possible to tell exactly when the sexual intercourse occurred. [10] Dr. Setareh Brioche further explained that the Virtual Complainant has Systematic Lupus Erythematosus, which is an autoimmune condition where the body's immunity is low and patients with such condition are prone to a lot of kind of infections, such as herpes. In addition, the witness explained that normally it takes 2 to 12 days for herpes to develop into active after having contact and that it usually starts with symptoms of fever and later the patient may develop blisters. The condition is treated by antiviral such as one used in the present case by CDCU. [11] The Republic further called Corporal Carole Cassime as a witness. She testified that she works at the SS & CRB office as a Crime Scene Officer. On Thursday 20th August 2020, the witness attended alleged scene of sexual assault. The witness attended the scene with two other officers and alleged victim, the Virtual Complainant, her mother and alleged suspect H L were also present. Corporal Cassime testified that before proceeding on the scene she photographs the alleged victim and the alleged suspect, H L at the SS & CRB office. The witness also photographed a Hyundai iI0, registration number S3 140, the vehicle which was involved in the alleged incident. The witness further photographed the scene at Au Cap and where the alleged incident happened and the place where the vehicle had been allegedly parked. The witness identified the accused person in court as the same then alleged suspect that accompanied them on scene. The witness prepared photo album containing 16 photographs which were tendered and marked as Exhibit P3. Photo I shows alleged victim; photo 2 shows alleged suspect H L ; photo 10 and I I shows an area at Au Cap where the alleged incident happened as shown by victim; and photo number 15 is an area where the accused showed the witness where he had parked at one point. [12] The accused decided to remain si lent. The Defence was to bring a witness, however, on the date fixed for the defence, they informed the Court that they wi II not be calling anyone and hence closed their case. [13] The Republic submitted that the question of identification did not arise as the Virtual Complainant identified the accused by name. The Republic referred to Archbold 2012 pg 1537 14-20: "A witness may know the name of the person he asserts is the offender either because he has had personal experience of the offender using or answering to the name or because he is are of the offender being known by that name by a plurality of people ... in thefirst case in the second case there is hearsay but it is admissible there is no question of hearsay, 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 to judge this the tribunal offact will want to know how well the witness knew the defendant. " [14] It was submitted that the Virtual Complainant noted that the accused name was H L and that if she saw him again she would be able to identify him. However, in Court while giving evidence in camera she could not identify the accused person. According to the Virtual Complainant, she could not see clearly on the screen. The Republic submitted, however, that Virtual Complainant's mother testified that her daughter informed her of the name of the person who allegedly assaulted her, H L . However, the witness did not know who he was until the day that they went back to the alleged crime scene with the police and the accused. When she saw the accused, she realized she knew him as she used to reside at and knew him. The witness identified the accused in Court. The Republic further submitted that this is corroborated by Corporal Carole Cassime who testified that she took photograph of the victim and the accused as she identified the accused in court as the same accused person that she photographed and the same person who indicated what she photographed in photo number 15. [15] The Republic submitted that it is clear through the testimony of the Virtual Complainant that the accused is someone she knows as H , therefore she has had personal experience of the offender using and answering to the name. Additionally, her mother and Corporal Carole Cassime were also able to identify the accused in court. Further, it was submitted that the identity was not contested by the Defence and testimony of Corporal Carole Cassime to the fact that the accused indicated to her where he was parked at one point in time on the day of the alleged incident, was also uncontested and goes to show that the Defence is not disputing that the accused was in these locations with the alleged victim on that particular night. [16] The learned defence counsel raised two issues in his submissions before the Court (see proceedings of61h September 2024 at 9 am). The learned counsel submitted that the Virtual Complainant "has never said that she was raped or that there was any penetration. There was a question by my friend saying and then after he inserted his penis in your vagina, what happened? That was her question but before that the witness never said that he had inserted his penis into her vagina ... there was no such evidence given before her question, therefore this should not be attended by the court. " The Counsel for the prosecution in reply stated that "during proceedings it came out in evidence that there was penetration of the body orifices of the victim ". [17] The second issue raised is focusing on the identification of the accused. It was submitted that there was no identification at all. Therefore, the learned defence counsel submitted that his client, the accused must be found not guilty. The [earned counsel for the prosecution in reply reiterated submissions mentioned above and stated that with regards to the identification, it was the evidence of the officer who went on the scene along with the witness victim and accused, that the same accused in court was the same person that were shown to them by the victim as the assailant. Further evidence is of the Virtual Complainant knowing the accused person by name. [18] The submission of No Case to Answer at this stage is founded on Section 183 of the Criminal Procedure Code, which provides: "183. Acquittal of accusedperson when no case to answer If at the close of the evidence in support of the charge, is appears to the court that a case is not made out against the accusedperson sufficiently to require him to make a defence, the court shall dismiss the case and shallforthwith acquit him. " [19] The applicable test in respect to this submission can be found in the cases of R v Stiven (1971) SLRand R v Galbraith [1981] I WLR 1039. R v Stiven: "A submission that there is no case to answer may properly be made and upheld: (a) or (b) When there has been no evidence to prove an essential element offence; in the alleged When the evidence adduced by the Prosecution has been so discredited as a result 0/ cross-examination or is so manifestly unreliable that no reasonable tribula could sa/ely convict on it" R v Galbraith: "How then should thejudge approach a submission of'tno case"? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. Thejudge will 0/ course stop the case. (2) The difficulty arises where there is some evidence but it is 0/ a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the taken at its highest, is such that a jury properly directed could not Prosecution evidence, properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the Prosecution evidence is such that its strength or weakness depends on the view to be taken a/a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view a/the/acts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then thejudge should allow the matter to be tried by the jury. ltfollows that we think the second ofthe two schools of thought is to be preferred. There will of course, as always in this branch oj the law, be borderline cases. They can safely be left to the discretion of the judge. " [20] Archbold in Criminal Pleadings Evidence and Practice 2012 Edition 4-363 sets out the applicable principle in a no case to answer application as follows: "A submission of no case should be allowed where there is no evidence upon if the evidence adduced were accepted, a reasonable jury, properly 'which, directed, could convict. " [21] With regards to the issue of evidence of penetration, I refer to the proceedings of 23rcl May 2024 at 9:30 am (at page 6) where the Virtual Complainant testified the following: Q: A: Now you have also stated that you then proceeded to Au Cap and that was VI/here the incident happened. Can you tell us what incident you are referring to? and the other boy gal out ofthe car 1 stayed inside. When we got there V was on the driver's side of the car. He locked the doors and rolled the H windows up and then he came in the back seat next to me. 1 asked him what he was doing and he said nothing. Q: A: What happened after that? When he came to the back passenger seat next to me he lifled one of my leg up, remove my short along with my panty, spread my legs and inserted his penis inside my vagina. [22] Therefore, I find the learned defence's counsel submissions regarding lack of penetration testimony incorrect. [23] With regards to the issue of the identification, the prosecution evidence is that the Virtual Complainant knows the accused by name; and two other witness, namely, her mother and Corporal Carole Cassime identified the accused in court. The Republic has not presented evidence of Virtual Complainant identifying the accused by way of identification parade. The dock identification has failed, as submitted by the prosecution, due to the Virtual Complainant stating that she could not see clearly on the screen while given evidence via camera. [24] I refer to R 11 KNF (CR 17/2017) [2020] SCSC 563 (27 July 2020) where the issue of identification of accused in criminal cases has been thoroughly addressed: [21J Lord Widgery c. J in R v Turnbull [1977J QB 224 had warned of the possibility that a mistaken witness can be a convincing one and a number of such witnesses can all be mistaken and that mistakes in recognition of close relatives and friends are sometimes made. In doing so the Learned Judge gave the following direction, which has remained true to this day: in the judgment of the trial judge, "When, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. Thejudge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification. .. [22J In R v Lang, 57 Cr. App. R.871 it was also held: "The trial judge should identify to the jury the evidence which he adjudges is capable of supporting the evidence of identification. If there is any evidence or circumstances which the jury might think was supporting when it did not have that quality, the judge should say so. " [23J A Turnbull direction is generally required in all cases where identification is a issue. Only in the 1110stexceptional circumstances would a conviction based on substantial uncorroborated identification evidence be sustained in the absence of a Turnbull warning in those cases. Reliance is placed on Scott v. R. [1989J A. C. 1242 at 1261, PC,' Beckford v. R. 97 Cr. App. R. 409 at 415, PC and R v Hunjan, 68 Cr. App. R. 99 CA. [24] On the other hand, identification by two or more witnesses; DNA or .finger print evidence, which links the accused to the offence; collapsed alibi evidence; lies told by a identification by a defendant, which are deliberate and relate to the same issue; correct in the offence and similar fact: and multiple offences witness of other participants committed by the same person may amount to evidence capable of supporting the identification (see paragraphs 14-22to 14-23Archbold 2009, Criminal Pleading Evidence and Practice). This was essentially the case where identification was a substantial issue and corroboration required. When it comes to recognition evidence, in R v Bentley [1991] Crim. L. R. 620, CA, Lord Lane C.l observed that recognition evidence could not be regarded as troublefree. Many people had experienced seeing someone in the street whom they knew, only to discover they were wrong. A witness who says that, "1could have sworn it was you", may laterfind that he was mistaken even in recognition. [25] It is trite law that evidence of identification must be approached with caution. The reason is set out in the well-known case of'S v Mthethwa 1972(3) SA 766,in which Holmes JA held: the fallibility of human observation, evidence of identification is "Because of approached by the Courts with some caution. It is not enough for the identifying witness to be honest: the reliability of his observation must also be tested. This depends on various factors, such as lighting, visibility, and eyesight; the proximity observation, both as to time and situation; the of the witness; his opportunityfor the scene, extent of his prior knowledge of the accused's face, voice, build, gait, and dress; the corroboration; suggestibility; result of identification parades, (f any; and, of course, the evidence by or on behalf of the accused. The list is not exhaustive. " the mobility of the accused; [26] The decision in Muvuma Kambanje Situna -vs- The People (1982) ZR 115 is also instructive on this point. In the said case, it was held that, "Ifthe opportunityfor a positive and reliable identification is poor then itfollows that the possibility of an honest mistake has not been ruled out unless there is some other connecting link between the accused and the offence which would render mistaken identification too much ofa coincidence. II [27] In Sv Mehlape 1963 (2) SA 29 (A) at 32A-F it was said: lilt has been stressed more than once that in a case involving the identification of a particular person in relation to a certain happening, a court should be satisfied not only that the identifying witness is honest, but also that his evidence is reliable in the sense that he had a proper opportunity in the circumstances of the case to carry out such observation as would be reasonably required to ensure a correct identification. " the offences. [28] In this case the Virtual Complainant made a dock identification of the Accused person. The same took place with regards to the other eye witnesses, who allegedly saw the is settled law that dock (also known as "in court") commission of identification is where a witness identifies the defendant in a court room or in the dock as being the perpetrator they saw at the scene of crime. It is generally regarded as the most problematic of all forms of visual It is also of little probative value when made by a person who has no prior knowledge of the defendant because at the trial circumstances may compel the witness to identify the defendant at the dock. identification. It [29] At common law dock identification is usually permitted once evidence of a prior out of court identification (usually by way of an identification parade) has been admitted. The identification is used to reinforce the prior identification, which serves as the primary means of identification. [3D} In the case of Terrell Nailly v The Queen [201 2} UK PC 12, the Privy Council stated, inter alia, as follows regarding dock identification: "When considering the admissibility, and the strength, of identification evidence, it is ojien necessary to consider separately the circumstances in which the witness The saw the accused and the circumstances in which he later identified him ... decision whether to admit dock identification evidence is one for the trial judge, to the circumstances. Ultimately the question is one of be exercised in the light ofall fairness ... " [31} In the case of Dave Rose and ors vs R, SCA 6; 15,16 of 2014, a dock identifications of the Accused persons were permitted to be carried out by the trial court, the only other identification evidence consisted of identification ofthe Accused person on a CCTV camera footage at a location away from the crime scene. In coming to its determination Justice Fernando referred to the case ofR v Tricoglus (1976) 65 Cr App Rep 16 it was held: "It has all the disadvantages of a confrontation, and compounds them by being still more suggestive". [32} In Archbold 2009, 14-42 it is stated: for the first time in the dock is both an "The identification of a defendant undesirable practice: see R V Cartwright, 10 Cr. App. R. 219, CCA; and a serious irregularity: see R V Edwards (2006) 150 S. J 570 rc. In the South African case 0.( Maradu 1994 (2) SACR 410 (W) the court held that the danger of a dock identification is the same as that created by a leading question in examination-in chief which is normally inadmissible: it suggests the answer desired. Commenting on the disadvantages of dock identification it was said in the Zimbabwean case of Mutsiziri 1997 (1) ZLR 6 "Everything about the court proceedings points to the accused and to him alone, as the person who is to be identified by the witness ". the atmosphere of [33} In the local case of Moustache v R (2015) SCCA 42 it was said about dock identification: is generally regarded as the most problematic of visual "It identification. It is also of little probative value when made by a person who has no prior knowledge a/the defendant because the trial circumstances may compel the witness to identify the defendant at the dock. " of all forms [34} The minority decision in this case applying these principle found that the Appellants were total strangers to the witnesses; that the Appellants do not have any clearly visible physical features as could be seen when arraigned before us when this case came up for hearing; and could not be distinguished/rom the many other persons you see walking on the streets. It also bore in mind that the incident had taken place very quickly as per witness testimony and that the witnesses were in a state of shock when the incident took place. For this reason the court stated that a prudent prosecutor should bear these factors in mind when leading the evidence 0.1witnesses in a case of this nature and that a Trial Judge should ensure that the witnesses are not mistaken in their dock identification of the accused before convicting them and went on to allow the appeal against convictions. /I [35J In this case I consider, after having tested the credibility of the witnesses that the following are what I consider to be credible evidence 0.(identification in this case. [25] Firstly, 1 would like to reiterate the findings of R v Savy (CO 51/1998) [1999] SCSC 1 (5 February 1999) that in the circumstances of this case "It is unfortunate that the complainant was never afforded the opportunity of identifying the accused at a parade". In making this finding, the COUlt in R v Savy referred to Pragassen v R (1974) SLR 13, where the Court held: "The identification of an accused party by a witness in Court when the accused is in the dock, without an identification parade having previously been held is improper, unsatisfactory, and should be avoided wherever possible. Such evidence is admissible although suspect, but is of little, and, in some cases, of no weight. It must be taken into account with the rest of the evidence. Failure by the Magistrate to warn himselfin that respect amounts to a non-direction. " [26] Secondly, in the present case, the prosecution was not even successful with ensuring a dock identification by the Virtual Complainant. Before this Court is evidence that the victim identified the accused by name and third party witnesses made a dock identification. As cited above, the republic in its submissions referred to Archbold 2012 pg 1537 14-20 with regards to a witness knowing the name of the accused, however, it is also stated in the cited paragraph: "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 will want to know how well the witness knew the defendant" (emphasis added). [27] In Nenesse v R (SCA 35 of2013) [2016] SCCA 23 (12 August 2016) the victim did not identify the accused, identification parade was not done, however, other witnesses who had personally know the accused had identified the accused from the video footage. The evidence was accepted, however, in Nenesse v R, unlike this case, there was evidence that the witnesses personally knew the accused. The Court of Appeal held: "[6l ... PW Bouzin, had not said nor had it been suggested to him that he had known the Appellant before. There is a difference between recognition and identification. Although sometimes used as synonyms, 'recognition' is to match someone or something which a person perceives to a memory of some previous encounter with the same entity, while 'identification' is to establish the identity of someone or something which one may have seen for thefirst time. He had also said he could not identify the person because of the quality of the picture. [I7l TheAppellant in his Heads of Argument has complained that an identificationparade had not been held and that a Turnbull direction had not been given. In our view none of them were necessary. On the issue of an identificationparade, the holding of one such would have been superfluous as PW 8, PW 13 and PW 14 had recognized the Appellant whom they knew very well on seeing the videofootage. A Turnbull direction was not called/or as PW 8, PW 13 & PW 14 had taken their time to view the videofootage and the photographs and not in a 'fleeting glance '. It was held in Dodson (1984) 1 WLR 971 that a Turnbull direction is inappropriate because the process o.f identifying the person/rom a photograph is a commonplace event and some things are obvious from the photograph itself In Blackstone's Criminal Practice 2010 it is stated atF 18.29 that a "Afull Turnbull warning might not be appropriate in such cases, but the jury must still be warned of the dangers ofmistaken identification, and should be reminded of the need to exercise great care when attempting to make an identification from photographs or video recordings. " recognize tile Appellant from the video footage [I8} The .first and second grounds of appeal are that: "The learned trial Judge erred in in the absence 0/ direct evidence and in the absence of convicting the Appellant identification by the victim namely Ms. Brigitte Pierre ". These two grounds have no merit and we therefore dismiss them, (IS PW R. Gervais Belle, PW 13, S.l David Belle and PW 14 S.l Jemmy Barra, who {IIIknew tile Appellant well, gave direct evidence and had been able to positively and the that Ms. Brigitte Pierre photographs, as stated at paragraphs 8, 9 &10 above. The fact was unable to identify tile Appellant in the given circumstances. We have is immaterial had a look at the photographs produced by PW 1, Bouzin and are convinced that for a person who had known the Appellant previously and had worked with him before, it would not be difficult to recognize him in the photographs, although the photographs are not that clear. We are conscious of the dangers of mistaken identification, and the need to exercise great care when a case rests mainly on identification from photographs or video recordings. (2006) EWCA Crim 3320 a police officer, who had no specialist training in facial mapping or any other such technique, but had spent some time together interviewing the appellant and repeatedly viewing CCTVfootage with still images from that film, was permitted to state that he was '100 per cent sure' that one of the robbers pictured was the appellant. " of a robbery, In Abnett [28] In the present case, the prosecution has not presented sufficient evidence that the accused person was previously known to the Virtual Complainant. When asked if she knew the surname of the accused, the Virtual Complainant replied, "No". When asked whether she knows the accused, the Virtual Complainant stated the following: Q: A: Q: A: Q: A: Q: A: you have stated that a namely H came to pick you up that M . .. Ms L day, that Friday night. How do you know H 1know him a little bit. What do you know about H Nothing. But you do know the name of the person is H Yes. And you would not recall his surname No. ? ? . [29] Further, the prosecution submitted that the Virtual Complainant's mother recognised the accused from the time she lived in . As per the charge sheet, the accused person's address is . The Republic presented no evidence of the accused prior residency at t. In any case, the identification of the accused from the third party who has not witnessed the incident does not assist the prosecution's case in light of the absence of identification of the accused from the Virtual Complainant. [30] Therefore, I find that the prosecution has not presented sufficient evidence with regard to the identification of the accused person even on the prima facie basis. Consequently, pursuant to section 183 of the Criminal Procedure Code, the case has not been made out against the accused person sufficiently to require him to make a defence. The case is dismissed and the accused person is acquitted. Signed, dated and delivered at lie du Port on...lJ)lhQ~er ~~' Govinden CJ [30] Therefore, I find that the prosecution has not presented sufficient evidence with regard to the identification of the accused person even on the prima facie basis. Consequently, pursuant to section 183 of the Criminal Procedure Code, the case has not been made out against the accused person sufficiently to require him to make a defence. The case IS dismissed and the accused person is acquitted. Signed, dated and delivered at lie du Port on 28th November 2024 Govinden CJ 13