R v JL & Anor (CR 79/2015) [2020] SCSC 472 (26 March 2020)

SUPREME COURT OF SEYCHELLES 1 REDACT Reportable [2020] sesc .3.0\:0 r- CR79/2015 REPUBLIC (rep. by Lansinglu Rongmei) versus J ( L ol Gabriel) L (rep. by France Bonte) 1st Accused 2nd Accused Neutral Citation: Republic v & another (CR 79/2015) [2020] SCSC4q27 Before: Summary: Heard: Delivered: March 2020). Dodin J. Indecency towards a child under the age of 15 contrary to and punishable under Section 135( I) of the Penal Code. 13,14 July 2017,19 February, 1,16 March,S April, 7 May 2018, 4 April, 24, 27 Sept, 28 Nov, 10 Dec 2019. 27 March 2020 ORDER The 1st accused is found guilty of two counts of indecency towards a child under the age of 15 contrary to and punishable under Section 135(1) of the Penal Code and is convicted on both counts as charged accordingly. The prosecution has failed to establish a case beyond reasonable doubt against the 2nd accused. The 2nd accused is acquitted accordingly. JUDGMENT DODIN J. [1] The first accused, stands charged with two counts of indecency towards a child under the age of 15 contrary to and punishable under Section 135(1) of the Penal Code. The particulars of the offences are that on a date unknown to the prosecution during the year 2012, the first accused inserted his penis in the vagina of R L, a child under the age of 15 years old for sexual purposes and on another date unknown to the prosecution in the same year 2012, the first accused inserted his penis into the anus of RL a child under the age of 15 years old lor sexual purposes. [2] The second accused was also initially charged with two counts or indecency towards a child under the age of 15 contrary to and pun ishable under Section 135( 1) of the Penal Code. The particulars of the offences arc that on a date unknown to the prosecution during the year 2012. the second accused inserted his penis into the anus of RL, a child under the age or 15 years olel for sexual purposes and on another date unknown to the prosecution during the same year 2012, the second accused rubbed his penis against the body ofSl., a child under the age of 15. [3] On a submission of no case to answer. the Court ruled that there was sufficient evidence to establish a prima facie case against the 1'1 accused on both pi and 2nd counts and against the 2nd accused on the Jld count. The 4111 count against the 2nd accused was dismissed. [4] The 151 accused is the brother of RL and the 2nd accused is the father of RL. It is emphasised from the start that there is no evidence 01' there being any collective acts or common knowledge by the 1sl and 2nd accused in relation 10 the charges levelled against them. [5] The virtual complainant, RL, testified that the first incident took place when she was 8 years old, in 2012. She was in bed when the second accused carne into the room mumbling to himself. lie came to the bed she was sleeping on, removed her panty and got into bed behind her. He placed one hand on her vagina and pushed his penis into her anus. I-Ie moved back and forth for some minutes causing her to feel pain but she did not cry out. Afterwards he told her not to tell anyone but she told her mother the next day and it resulted in a fight between the secane! accused and her mother. [6] On another night in 2012 when she was watching television the first accused entered the sitting room and put on an adult film called "Fuck the Teacher". She moved to another sofa and fell asleep but was awoken by the first accused who had removed her panty. The 1SI accused bent her over and had :111<11 intercourse with her. [7] The next day, the rest of the family had gone to work on the farm except for herself and the first accused. The first accused called her to his room and told her to removed her panty and get on the bed under the sheets. He turned her raced down and had anal intercourse with her 1'01'some minutes, then turned her race Lipand inserted his penis into her vagina. The 1'1 accused had vaginal intercourse with her far some more minutes. It was her first time to have vaginal intercourse. Both acts were painful. [8] On another day when the rest of the family were in the garden except for the l " accused, her little sister and herself, the 1'1 accused look her to the bathroom and after washing her private parts, he proceeded to Iick her pri vatc parts and then had anal intercourse with her. On another day in 2012, the l " accused called her and her little sister, SL, to their parents' room and got both of them to kneel on the bed and had anal intercourse with both of' them in turn. [9] She testified that she did not tell her mother about the incidents with the 1st accused because she was afraid the ISl accused would beat her. II was only in 2013 that she told her mother who then took them to Social Services, the Child Protection Unit and the Doctor. She was later removed and placed at the foyer. [10] the mother of RL and SL testified that on a day in 2012, RL told her that the night before the 21ld accused had placed his penis in her anus. She called the 2nd accused outside and asked him about it. The 2nd accused said he was sorry and he would not do it again. On another day at around 6.30 pm. she walked into the 15l accused's 1'00111 and SCI'vV the lSI accused with his private parts exposed, in a crouched position between the legs of" Sl. who was lying on the bed without panties. The jSl accused ran outside. Later she told the 2nd accused what she has seen and later the 1SI accused came to her and apologised. Then RL and SL started to tell her about other similar incidents that had happened and she told the 21ld accused. Both accused started to become very aggressive and threatened her by telling her that if she reported the incidents death would come to her. She testified that in late 2014 she resolved to report the incidents to social services which took up the matter with Child Protection Agency and also took the children for medical tests. [11] Doctor Olga Fedorova testified that she examined a minor girl of 10 years old and made a report. She could not recall whether she examined 2 girls. The only part of her report which is of note is that the hymen 01' the girl was not intact and it was not a recent tear. There were no injuries to the genitals or in the genital area. [12] In their defence the 151 accused initially testified that [rom when he was IS or 16 years of age in the year 20 I 0 he had gone to live with his uncle at Les Mamelles. lie never went back to Port Claud or had any contacts with his sisters or access to the house at Port Glaud. He denied ever having had sexual intercourse or any other indecent act against the virtual complainant. [13] the brother of the lSI accused however testified that he was not sure whether the ISI accused was stayi ng at Port Claud in 20 IO. 20 I I, 2012, 2013 and 2014. He recalled that his father, the 2nd accused left sometime in 2011 and had since then only come to deliver things to the house but he never slept over. [14] testified that the ISIaccused has been living with him at Les Mamelles since 20 10 and that he had not been to Port Glaud since. However in cross- examination he admitted that he could not be sure the 1SIaccused hael not gone to Port Glaud because he (the witness) works at sea for up to 6 months at time. [15] The 2nd accused testified that he first left the house at Port Glaud in 2006 but that he returned in 2008. He left again for good in 2011 and he has been living with one for 8 12 years. They have a child now aged 7 years. He denies sleeping in the house in 2012 but agreed that on some occasions he brought things and came to see the children during the day. 1:"'lealso returned to the Iarrn in 2014 after had lett the place. [16] Section 135(1) of the Penal Code stales: Section 135. (1) A person who commits an aCI If indecency towards another person who is under the age a/fifteen is guilty of an 20 years: offence and liable 10 imprisonmentfor years Provided that where the person accused is of or above the age 0/18 is I!/(I kind described in subsection 2(c) years and the act ofindecency or (d) ofsection a term not less than 1-1years and nOI more than 20 years: 13()(2) the person . I'h({11be liable 10 imprisonment/or Provided also that ifthe person is convicted 0['(1 similar offence 'within () years from Ihe dale 0/ Ihe firs! convict iOI1,Ihe person a period of! shall he liable to imprlsontnentfor 0 period 110! less than 28 years: that where if is the second or (/ subsequent Providedfurther of the person (2)((0 within a period often years from the date ofthe conviction, person shall be liable to imprisonmentfor conviction n:/('/'l'ed to in subsection the interference the sexual life. " [or [17] All counsel adopted their no case submissions made at the close of the prosecution's case as part of their final submissions. [18] Learned counsel for the prosecution submitted that the offences were committed when the victim RL was 9 years old and it is established by the evidence that she did not want to let anyone know for fear of being teased or upsetting her mother but that she ended up confiding to her mother. Learned counsel submitted that the evidence of the victim was consistent and supported by the evidence of her mother. Learned counsel submitted that corroboration is not required in cases or sexual offence. It is a matter for the Judge's discretion whether any warning to that aspect is appropriate. In this case the victim was credible and consistent in her testimony and her evidence is supported by that of her mother. [19] Learned counsel submitted that the evidence or Doctor Fcdoro va was consistent with intact and that it the evidence of the victim in that the hymen of the victim was not was normal to see no injuries after 2 years since the incidents. [20] Learned counsel submitted that any inconsistencies that may seem to exist are minor and must be measured by the yardstick of seriousness and materiality and need not affect the truth of the overall witnesses' testimonies. [21] Learned counsel concluded that the prosecution has established the case against both accused on all remaining counts and moved the Court to find both accused persons guilty on each count. [22] Learned counsel for the 2nd accused submitted further that the evidence of is very suspect in that she did not hear anything allegedly happening on a b~d next to her. There is also evidence from the file 1'1'0111 the Family Tribunal where t~* same has stated that the 211d accused had done nothing to the child complainant. Learned counsel submitted that there is insufficient evidence to copvict the 211ci accused of the offence charged. [23] Having assessed b#~n engaging l;M:~ontroverted /j{ perpetrators the evidence, it is established that in sexual acts which were not testimony of' Dr. Fcdorova. According the virtual or to the virtual recent complainant, RL, had origin as per complainant, the the of the acts were the I SI accused who assaulted her on several occasions in 20,'12 and the 2nd accused who also performed 1r , -~:~. a sexual act on her in 2012. [24] B;~th accused denied that they were living with the virtual complainant or had any se~ual contact with her in 2012. In respect 01' the 211d accused. his testimony that he had moved out of the house and was living with ith whom he has a child of 7 years was not challenged by the prosecution. The evidence of in respect of the 2nci accused also did not implicate the 2nd accused directly, except in so far as she stated that the virtual complainant told her the next day. Her explanations as to why she did not do anything more than ask the 2nd accused if he I1~Clindeed Were that commi tted a sexual act or report the matter to the pol ice or social services she did not know what to do, they were living on a farm, making chips and s~~'ehad no money and nowhere to go at the time. [25] Whilst her testimony did not in itself contradict the testimony of the virtual complainant her demeanour and occasional vagueness 01' her deposition showed a lack of consistency. Whilst I am therefore satisfied that a prima facie case has been made against the 2nd accused for the charge against him, and whilst I believe that the virtual complainant had no reason to lie, J lind the testimony of the 2nd accused also compelling and consistent. IL must be emphasised that the prosecution is always btidened by the obligation to prove the accused's guilt beyond reasonable doubt. Ir{'WooLmington v Drp [19357 UKHL J the principle of proof beyond reasonable dbllbt .: 1 . dl~o: '. . :' and its application was well illustrated which stands good for this jurisdiction that if doubt, created by the evidence given by either the web oj the English Criminal Law one go/den thread "Throughout is always to be seen, is {he duty ofthe prosecution to prove the prisoner's guilt .... If at the end a/and on the whole of the case, there is the a reasonable prosecut ion or f he prisoner .... , the prosecut ion has not made (Jut the case [and) the prisoner is entitled to UI'/ acqutttal. No matter what the charge or where the trial, the principle that the prosecution must prove (1/ Ihe common luw oj' England and no the guilt ofthe prisoner attempt 10 whittle il d01VI1 can be entertained. is part ., This principle has always been the benchmark In criminal trials to determine if conviction is to ensue. [26] It is not a question perform the act corn pia ined 0r It of whether the judge believes the 2nd accused performed or did not is rather whether the cv idcnce brought by the prosecution has established beyond reasonable that the accused committed the act and whether the defence brought by the 211d accused has railed [0 weaken the prosecution's compelling evidence against him. I found the virtual complainant to be cogent and clear in recounting the incidents bet ween her and the 1'1 accused but she did not display the same conviction and clarity in recounting the incident between her and the 2nd accused. The contrast in her demeanour and testimony was well noted by counsel forthe second accused in cross examination. [27] Amongst the arguments of learned counsel for the 211<1 accused are that her lack of clarity is because the incident never took place or that she has been coerced by her mother to make the allegations against the second accused because the 2nd accused had deserted her to co-habit another woman with whom he had a child. I also find that even if the incident did take place she may have more fear 01 her father, the 2nd accused, than her brother, the 1'1 accused or that she genuinely does not want her father to be convicted, In fact in her testimony she admitted being in communication wfth her father and lived with her father during the year 2014. [28] Consequently, I find that there is still doubt in respect of the yd count against the 2nd accused. In the circumstances .. such doubt must be resolved in favour of the 2nd accused. With this conclusion, I must therefore find the 211d accused not guilty of the charge against him. 1acquit the 2nd accused accordingly. [29] In respect to the first two counts against the I SI accused, the evidence is far clearer and the evidence 0" I ,_ shaky on these convincing. Whilst ~9bll1ts, the testimony or tile virtual complainant was not shaken at all. On the other lf~:d the testimony of the ISI accused attempting to show that he did not have contact still remains ~~th the virtual complainant contradicted the testimonies 01 both his witnesses and telling the truth. Both showed that he was not ~ admitted in cross-examination live at Port Glaud liming 2012. that they were not sure whether the 1SI accused went to in fact was not sure but did not deny that the pt_,accused was living at Port Glaud up to 2014, was also not certain where st accused was during his long stints of up to 6 months at sea. It cannot therefore in the defence of the Ist accused raised any doubt in tbfl ,n," q~;~aid that the evidence brought ~::{~.; th~{'prosecution's evidence, ~~:;.~ ::. c ; [30] I}.~ying carefully analysed the evidence agai nst the l" accused, J am satisfied that the virtual complainant spoke the truth in respect of' the incidents between her and the 15t accused on at least the two occasions when the 21ld accused committed the offences for which he stands charged with, She was cogent and gave a rei iable account of her encounters with the J st accused which I believe in its entirety. On the other hand the defence evidence as related above did not at all assist the Ist accused but in fact showed that he could not have been telling the truth. I reject the 15taccused's defence as lacking in credibility and failing to give rise to any doubt in respect of the charges against him, ···.r ..... [31] Consequently, I find the 15taccused guilty of both counts or indecency towards a child J 5 contrary to and punishable under Section J 3S( J) of the Penal under the age of Code, I convict the 1st accused accordingly of both count 1 and count 2 as charged. Signed, dated and delivered at Ile du Port on 27 March 2020, " ..~ Qodin J , " nf