R v HL (CR 45 of 2023) [2024] SCSC 206 (16 December 2024)

SUPREME COURT OF SEYCHELLES Reportable f2024 J sese CR 'fS/2023 In the matter between THE REPUBLIC (rep. by Mrs Leste ) and H L (rep. by Mr F Bonte) O L Accused v HL eCR 45/2023) sese (16 December 2024) Neutral Citation: Before: Summary: Heard: Delivered: The Republic Govinden C! Ruling on a Submission 6 September 2024 16 December 2024 of No Case to Answer RLLlNG The court finds that a case to answer has been sufficiently made out against the accused person to require him [0 make a defence. GOVINDEN CJ [I] I have thoroughly considered the submissions made by learned counsel for the accused at the close of the prosecution's case, in regard to his contention that no case to answer has been made out against the accused; as well as the learned counsel for the prosecution's reply to this submission. I"his is my decision. [2] The accused had been charged fer the following offences; Ctlll H 1 Statement of Offence Sexua I Assau It contrary to section 130( 1) as read with section 130(2 ) (d) and section 130(3) (b) of the Penal Code, punishabrc under section 130( I) of the Penal Code, Particulars of Offence H L O Lctourdie of FIlL'lish River Mahe, on date unknown to the prosecution in October, 2020, at , Mahc. sexually assaulted another, namely Jadcn Z , aged 7 years old at the tme. by inserting his penis into the mouth of the said .l Z . COllnt2 Statement If Offence Sexual Assault contrary to section 1 J()~') 'IS read with section 130(2) (d) and section 130(3 ) (b) of the Penal Code, punishable under section 130 (I) of the Penal Code, Particulars of Offence H L O L of ~~'1tlish River, ~':ahe. on date unknown to the prosecution in October, 2020, at . Mahc. sexually assaulted another, namely .l Z said J , Z aged 7 years old at the :',llC. by inserting his penis into the anus of the . [3] The submission of No Case to Answer at this stage is founded on Section 183 of the Criminal Procedure Code, which prov.ucs: "I 83. Acquittal of accused persot .vhen no case t(l answer Ifat the close ofthe evidence in ':'01'1 ofthe en. I'Re, is appears 10 the COUl'l that a case is not made 0111against {he, ' used lJer.\'OI1 sifficiently 10 require him to make a defence, the court shall dismiss th. ,'0.\'( (/11(/ shull ] .rthwith acquit him. " [4] The applicable test in respect to th.s si. - issron can b, found in the cases of R v Sliven (1971) SLR and R v Galbraith [1981 j 1;\1 LR 1039, R v Slivel7. "A submission thut there is no cas' to unSII'('1' /1UI1' properly he made and upheld: (a) or (h) When there has been 110 evidence to prove ,111 essential element in the alleged offence: When the evidence adcluc, / bv the PI'()['("lti017has been 1'1) discredited as a result of cross-exaininution or is so Illallij(";t~vunreliable that no reasonable tribula could safelv ('{)11\,j 'I,n it " R v Galbraith: "How then should the judg« (/1)./1/' -ach (I submission oj'''no case"? (1) Ifthere is no evidence that the crime alleged there is no .1 been connni.ted hy the defendant, ,top the case. (} J The difficult)' arises where there difficulty. The judge will O{'Co/II'\" is some evidence hut it is of a te IIOUS cltarctcter. for example because of inherent weakness or vagueness or because II is inconsistent with other evidence. (a) Where the judge comes to the conclusion 1/1 is the Prosecution evidence, it is his duty, such that a jury properly direct, 'odd not pro !rh' convict UpOI) top ,1,1.' case. upon a submission being made,», ,(II Where however the Prosecution evidence is such that its strength ,. weakness denends on the Vi:'11' 10 be taken of CI . which ar« '2.1':11.:'1 ally speaking within the province witness's reliability. or other 17/(1'/C, there is evidence upon which a of the jury and where on one no«: '1.: Fin 1, ottbe I"c/l' lefendant is guiltv, then thejudge jury could properly come to the c: should allow the matter to he tri: II i illows that l\Ie think the second of the two schools ofthought . Lusion tluu th hv the ./1I1'l'. taken at its highest, is to (if =eferr -d. it. There 'will ofcourse, as alwavs in If,,.s branch cftl». law. he borderlne cases. They can safely he lefl to the discretion IT! i !ti'>!,l!. " [5] Archbold in Criminal Pleadings Evlae tee and Practice 2012 Edition 4-363 sets out the applicable principle in a no case W i .iswer applicu.ion as follow's: "A submission ofno case should b ' allowed wlter« there is no evidence upon which, directed, could convict" if the evic'ence adduc e.] easonablejurr. ., a (' )})t _rI properly i I [61 The brief facts of the case led by UK' _secution COIL,st ofthe following: the Virtual Complainant, J , who was a roy 01' 7 years )1' age at the material time, was playing with his friends and sisters \\l ' n the: accuse.' took him away to a cave by a river. The-e he was forced to rcmo- I~ . ') c loth es r» ie accused a d the latter then proceeded to put his penis into his "11,1, which he 'i'li 'as a painful xperience. After this, the accused put his penis il110 h Q10Llth lie" atcd that he was an unwilling participant in both acts . J the-i TO his 1111)lhl '" place, but (lid not report the incident. The accused had told him nu' ther about \.\)1'11 he had done to him, About one month later, one ofhis niies inform, j his mother \\ iat had happened to her son, Following interrogations b ills mother. ie Virtual Complainant did not report the incident to her but did so to <ocia! Service Officer soon 'dier. The Officer testified that J kept silent because 'W;l'l nfwi(j " the repercus- ions if he was to talk about the incident. f7] The Virtual Complainant was also bro., ht to the doer .' for examination and the doctor testified that there was no injuries [0 lil IIU:-'ofthe v' 'ILial Complaii tnt: and that such injuries usually do not appear alter Olle nonth of a sex lui assault ano that the best time for examination in such cases would b p~s than T~II .lUI'S from the issault. The Birth Certificate produced by the prcsec.iu. »ows ',b., , was 7 year" ,f age at the time of the alleged assault. The sole eye\\ I 1 'is to the (1<;;.,.lIt is the Vi' .ial Complainant himself. and his testimony is uncorrob. ned. [8] In essence, the learned defence CCh c:l's sut.mss .in IS focusing mainly on the credibility of the prosecution case. ,.e submittcu .iat there are no independent eyewitnesses to the alleged offences. ,. tn...:C is .u corroborative .vidence, and no early complaint from the Virtual CuT'" ·lUll. r I~'l'CI, '11aintwas ex l' .cted from J by the police and the Social Worker. /. _ I\;S ,It he s.. '11ittedthat hi, evidence, being the only inculpatory evidence in th-' , ;') unsafe ~ !unsatisfactov, and, in effect, making the prosecution case so 11101" iL', nrel:'J)I, 1t no reasona- c tribunal would act on it, [9J It is clear from the above authorities tha .0 establish u primafacie case, the prosecution must establish all the essential clcrncr; 1 .nc of rcru., ...... L this stage, is not necessary for the Court to determine whether .l« .osecuuor. II' proved all [1 •-: elements of the offences ,;.:cording to the crimi lal S '\ " \)1 ') .l( f vond a rCHS() able doubt. This dcrcrrn i naLion shall be done at the e" . , r: ('1 ,:' trial proce. s to the defence arguments, Once the prosecutio 1 ,;~ , 'sior'<:~ rebu hie prcsurnj .ion, the accused persons have a case to answer '11'_1 I' ',I"". til " oresurnptio 1 I~their defence. Where the prosecution fails to ad i"', Wli'., -rnent of the ffenceatall,no convict ion could be reached and a ' .i"~inn )1 '11 ".sc~ to answe should succeed, Where they would not properly sccur. convici ion.z, .onviction of no case to answer should be upheld (see David Sop/7o _(\: ;0/' \' Rqmh/., SeA 2/1991; R Ii Prosper (CR 65/20 I 0) [20171 scse 944 (26 Octo' r 2017): R \' ,\ i::::am Uddin Ahmed (CR 53 of 2018212_023] scse 761 (6 OetobSI )0- ilL II OJ When it comes to the issue 01' tnc \\ t' lOr the pre» .tion evidence, where some of the evidence seems unconvincing. the atrcr is better ell for the end ofthe trial, when the evidence would be weighted, Unies nc evidence ;,JS been so compromised by the defence or by serious inconsisrcncie ,'1_ I'rl,,,(,,(,, i'S testimony the Court must determine whether the evidence [1<.1-.1, t. .aker. :1t il'. ~,ghest, is such that a reasonable tribunal could convict the aCClIS':G, T I ',)ectiol' rais by the learnc' defence counsel relates to the alleged unreliabilirv I',' H' prosec.r 'evidence due to the lack of credibility of the Virtual Comnlrna S Tcstiq1()1'\ hich is the rL 'V incriminating evidence, As such, I need to dctermi ' \",'tether the I rsccution evidence, taken at its highest. is such that a court properlv II; ':ed cnllld 11 T oroperly convict upon it. If that be the case. the trial shoi.ld stop h."'.' [1 I] Ihave gi lien much consideration to dl~ . _ igth 01 LIt;: rosccution case. It is one which admittedly is relying on the sole «.s. ; of lltC:.l ",,('d child viCLTI, Having heard his evidence and having observe, demeanor I. :~pecially whilst being cross examined under oath. ! l-ave C()I~J\' , ~ ,·."1"lll' i, r "'.1 he is a tru: -ful witness, His restirnonv is cogent. cor.sisiter. .1 ~ )1.;. ,'e .'c: no motiv- to lie agsint the accused The reason for his late CJI n int 1<: o.;l,rf'jeil +v explaincc' liven his tender age, the fear of the accused, and the 5'(~' \ <:<::"O('i<I[('l.i, ;rh a complain: of such a nature, Moreover. it is trite law that his est '\ doc= Iwl .~:lcorrobora ' 'C support if his evidence is highly credib!e. [12] My finding at this stage is only 011til arl: t.. J '" uafacie case . nd not beyond a reasonabic doubt. Based on ihc u. l' l .he ...<,t .. ed case 13\\ )1' child witness evidence, I am of the view that" (. L which j",l roperly dire ....ed itself on this subrniss 'on could properlv come ,\ Ie defendar , .;;guilty and that the oro' -cution s evidcr ce has II 1 1 "credited ... t no reasonable tribunal would act on it. I therefore !'" ,1 that a cu-e .v answcr has been sufficiently made out against the accused persor . 'q,11re hi.n " .nakc a defence. nd delivered at lie du Port on ' December __124 Govinden ('. I