R v MD N A & Anor (CO 26 of 2023) [2025] SCSC 36 (24 February 2025)

SUPREME COURT OF SEYCHELLES Page 1 of 16 In the matter between: THE REPUBLIC (Represented by Mrs Gulmette Leste) versus M N A A Banglades tional, Passport Mahe, Seychelles (Represented by Mr Audric Govinden) And F Passport J , Mahe, Seychelles (Represented by Ms Shantana Barbe) Reportable CO 26/2023 Prosecution I" Accused 2nd Accused & Or (CO 26/2023) (24 February 2025) Neutral Citation: Rep vs A Before: Summary: Heard: Delivered: Adeline J Submission of no case to answer Submissions 24 February 2025 FINAL ORDER this court finds, On a close examination of the totality of the evidence of the prosecution at trial against the 1SI and 2nd accused persons, the prosecution has adduced sufficient evidence establishing a prima facie case against the 1st and 2nd accused persons to warrant putting them on their defence of the charges against them. As such, the submission of no case to answer fails, and the pi and 2nd accused persons are put to their defence of the charges against them by accordingly, allowing them to exercise their rights to give evidence in their defence and to call witnesses. that RULING Adeline, J Page 2 of 16 WTRODUCTORYBACKGROUND [1] This ruling pertains to a submission of no case to answer by learned defence counsel for the accused at the close of the case for the prosecution at trial. The 1st and 2nd Accused persons are jointly charged with two counts of child trafficking contrary to Section 4(1) as read with Section 5 (l)(b) of the Prohibition of Trafficking in Persons Act, 2014 and Section 22 (a) of the Penal Code. The 1st accused person is further charged with five counts of Sexual Assault Contrary to Section 130 (1) as read with Section 130 (2) (b) and Section 130(3) (b) of the Penal Code and punishable under Section 130(1) of the Penal Code as well as two counts of indecent assault contrary to Section 135(1) as read with Section 130(3)(b) of the Penal Code and punishable under Section 135(1) of the Penal Code. [2] The 1st Accused has submitted a no case to answer for 2 counts of indecent assault and 3 counts of sexual assault offences, whose particulars are as follows; CountS Statement of offence Indecent Assault contrary to Section 135 (1) as read with section 130 (3)(b) of the Penal Code and punishable under Section 135 (1) of the Penal Code. Particulars of Offence M , N ' A , a Bangladeshi National with Passport No. of Mahe, on a date unknown to the prosecution during the year 2022, indecently assaulted another person namely Ms. E J an Il-year-old, by causing the said Ms. E J to do an indecent act towards him, namely, causing the said Ms. E J to touch the penis of the said M , N ' A . Count 6 Statement of offence Indecent Assault contrary to Section 135 (1) as read with section 130 (3)(b) of the Penal Code and punishable under Section 135 (1) of the Penal Code. Page 3 of 16 Particulars of Offence M , N A , a Bangladeshi National with Passport No. of Mahe, on a date unknown to the prosecution during the year 2022, indecently assaulted another person namely Ms. L J an Il-year-old, by causing the said Ms. L J to do an indecent act towards him, namely causing the said Ms. L J to touch the penis of the said M , N l' A . Count 7 Statement of offence Sexual Assault contrary to Section 130(1) as read with Section 130(2)(d) and Section I30(3)(b) of the Penal Code and punishable under Section 130(1) of the Penal Code. Particulars of Offence M , N l' A , a Bangladeshi National with Passport No. of Mahe, on a date unknown to the prosecution during the year 2022 .sexually assaulted another person namely Ms. F L who was under the age of 15, by penetration of a body orifice for a sexual purpose namely by inserting his penis in the vagina of the said Ms. F L . Count 8 Statement of offence Sexual Assault contrary to Section 1300) as read with section 130(2)(b) of the Penal Code and punishable under Section 130(1) of the Penal Code. Particulars of Offence M , A , a Bangladeshi National with Passport No. of Mahe, on a date unknown to the prosecution during the year 2023 .sexually assaulted another person namely Ms. , by the non-accidental touching of the sexual organ of another, namely by touching the vagina of the said Ms. C Count 9 Statement of offence Page 4 of 16 Sexual Assault contrary to section 130 (1) as read with section 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 M , N ' A , a Bangladeshi National with Passport No. of , Mahe, on a date unknown to the prosecution during the year 2022, sexually assaulted another person namely Ms. B J , by penetration of a body orifice for a sexual purpose namely by inserting his penis in the vagina of the said Ms. B J . [3] The 2nd accused on the other hand has made her submission on no case to answer, vide the written submissions dated 26th June, 2024, for the 2 counts of the offence of child trafficking, whose particulars are as follows; Count 1 Statement of offence Child trafficking contrary to Section 4(1) as read with Section 5(1) (b) of the Prohibition of Trafficking in Persons Act, 2014 and Section 22 (a) of the Penal Code. Particulars of Offence M , N A , a Bangladeshi National with Passport No. of Mahe and F J , with NIN of Mahe, each of them together and jointly trafficked one Ms. E J an 1 1 -year-old Seychellois girl on a date unknown to the prosecution in the year 2022, in that F J recruited and transferred her child E J and M , N A received the said child, knowingly or recklessly disregarding that the said E J is a child, for the purpose of exploitation, namely sexual exploitation by means of exposing the said child to pornography and inducing the child to be used for the sexual gratification of N A whereby F J obtained financial benefit. Count 2 Statement of offence Page 5 of 16 Child trafficking contrary to Section 4(1) as read with Section 5(1) (b) of the Prohibition of Trafficking in Persons Act, 2014 and Section 22 (a) of the Penal Code. Particulars of Offence M , N A , a Bangladeshi National with Passport No. of , Mahe, and F J , with NIN of Mahe, each of them together and jointly trafficked one Ms. L J an 11 year old Seychellois girl on a date unknown to the prosecution in the year 2022, in that F J recruited and transferred her child L J and M , N l' A received the said child, knowingly or recklessly disregarding that the said L J is a child, for the purpose of exploitation, namely sexual exploitation by means of exposing the said child to pornography and inducing the child to be used for the sexual gratification of M , N A whereby F J eobtained financial benefit. SUBMISSIONS [4] The main contentions of Counsel representing the 151 Accused are that: a) The particulars of the charge drafted for an indecent Act in Counts 5 and 6 do not correlate with the offence charged since there is no offence presented in the Penal Code for causing another person to touch the sexual organ of oneself. b) The events that happened in Au Cap are not clear. The evidence presented by the prosecution in support of Count 8 does not show that the 1st Accused person touched the vagina of Ms. C L It simply states that "he touched me again on my private p311". There is further no evidence to show that there was no consent on the part of Ms. C incident. since she was above the age of 15 at the time of the alleged c) For count 7, the Prosecution has failed to prove the lack of consent from Ms. F L that the accused had the mental capacity to commit the crime. Page 6 of 16 d) For count 9, the Prosecution has failed to prove beyond a reasonable doubt that there was no consent from Ms. J in accordance with Section 130(3)(b) - failed to prove that she was under 15years of age. [5] Counsel representing the 2nd accused contends, that the prosecution has failed to establish the actus rus, mens rea and the means for the offence of trafficking in persons and that the examination in chief and cross-examination of witnesses has created doubts in the prosecution's case. [6] The prosecution in reply submits, that a prima facie case has been established and both applications for a no case to answer ought to be dismissed. THE LEGAL FRAMEWORK AND THE LAW TO BE APPLIED [7] Section 183 of the Seychelles Criminal Procedure Code stipulates, that if at the close of the evidence in support of the charge, it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit him. [8] Furthermore, the Criminal Procedure Code under Section 265 (1) (c) is instructive on matters of no case to answer and it provides that "the judge shall decide all matters of fact necessary to be proved in order to enable evidence of particular matters to be given" and "(d) whether any question which arises is for himself or for the jury", and Section 249 (1) of the Criminal Procedure Code which provides that; "If,when the case for the prosecution has been concluded, the Judge rules, as a matter of law, that there is no evidence on which the accused could be convicted, the jury shall, under the direction of the Judge, return a verdict of not guilty". [9] The 1110Stsignificant case law authority of our jurisprudence often cited for consideration to determine whether an accused person has a case to answer or not is the case of the Republic versus Stiven [1971J SLR No.9. In that case, inter alia, the Court held that at this stage of the criminal proceedings during the course of the trial, there are two things that the COUlt ought to consider, and they are; Page 7 of 16 (i) Whether there is, or there is no evidence adduced by the prosecution to prove the essential elements of the offence of which the accused is being tried, and (ii) Whether the evidence for the prosecution has been so discredited, or is manifestly unreliable that no reasonable tribunal would safely convict. [10] The Case of the Republic vs Olsen, 1973 SLR No.5 at page 189, instructs us, that whether or not the accused has a case to answer depends not so much on whether the adjudicating tribunal would at this stage of the proceedings convict or acquit the accused but rather, whether the evidence is such that the Tribunal might convict. This consideration in approach was reiterated in the case of David Sopha & Another vs the Republic SCA 2 of 1991. In that case, the COUltwent further as to say that in considering a submission of no case to answer, the presiding judge must decide, "whether the evidence taken at its highest could lead aproperly directedjury convicting the accused. If so, the case should be allowed to go to the jury". [11] In essence, therefore, the applicable principles which ought to be applied as per R v Olsen [1973J SLR 188, followed by the R v Marengo [2004J SLR 116, and R v Matombe No.1 [2006J SLR 32 are the following, that is, whether; (a) there is no evidence to prove an essential element ofthe alleged offence, and (b) the evidence adduced by the prosecution has been so discredited as a result of cross examination or is manifestly unreliable, that no reasonable tribunal could safely convict 011 it. [12] The English jurisprudence has formulated a similar test to determine whether an accused has a case to answer or not at the close of the prosecution's case. In that regard, the cases of Galbraith [1981J 1, WLR 1039 as well as Queen v Jahnoy Walters EC SC Crim - case No 5 of 2009, and the Daley v R [1993J 4 ALLER 86 are often cited. In the Galbraith case (supra), the COUltspelt out two tests, notably; Page 8 of 16 1. Firstly, whether there is no evidence that the crime alleged has been committed by the accused. This is likely to be the case, where, for example, the essential evidence has not been called such as when witnesses have not come up to proof. 11. Secondly, whether there is some evidence but it is of a tenuous nature. That is to say, it is of inherent weakness or inconsistent with other evidence. [13] In Galbraith (supra), the court had this to say; "How then should a judge approach a submission of "no case"? If there has been no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will, of course stop the case. The difficulty arises when there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. Where the judge comes to the conclusion that the prosecution's evidence, taken at its highest, is such that it's strength or weakness depends on the view to be taken of a witness' reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury can come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by thejury.: There is, of course, as always in the branch of law, the borderline cases. They can safely be left to the discretion of the judge". [14] Guided by the case law authorities discussed in the preceding paragraphs of this ruling, on a submission of no case to answer, if the court was to rule that as a matter of law there is no evidence on which the accused could be convicted, the judge shall direct the jury to enter a verdict of not guilty or the COUlt sitting without a jury will make a declaration. [15] Therefore, the question that warrants a determination is when can it be said that there is no evidence on which the accused can be convicted. In the case of R 11 Hoareau, Twomey CJ (as she then was) makes reference to the case of Green vs R 1972 SLR 55, in which case Sauxier J had this to say about what constitutes "no evidence" as provided for under Section 294(1) of the Criminal Procedure Code, notably; Page 9 of 16 "The consideration which apply the at that stage are purely objective and the trial court is not asked to weigh the evidence. At that stage, it is only necessary for it to find that a reasonable tribunal might convict." [16] It is worthy of mentioning, that in Archbold In Criminal Pleadings and Evidence and Practice, 2008 edition, at page 492, the applicable principle in a no case to answer submission is written as the following; "A submission of no case to answer should be allowed where there is no evidence upon which, V the evidence adduced were accepted, a reasonable iw». if properly directed, could convict". [17] It is equally worthy of mentioning, that in a criminal trial as the instant one, the burden of proving the accused's guilt lies on the prosecution throughout the trial. There is no burden of proof on the accused to prove its innocence. This is what for the purposes of Article 19 of the Constitution guarantees the accused to a fair trial. In discharging its burden of proof, the standard required of the prosecution is beyond reasonable doubt. Nonetheless, at this stage of the proceeding, the prosecution is only required to establish a prima facie case against the accused to warrant the accused to be placed on its defence. A prima facie case is established where the evidence tendered by the prosecution is sufficient on its own for a court of law to return a guilty verdict even if the accused opts to exercise its right to remain silent. [18] In Ramanlal Trambaklal Bhatt liS R 1957 E. A 332 at 335, the court reminds us on whose onus is to prove the guilt of an accused person in a criminal case, and the standard required for such proof. In that regard, the court had this to say; "Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that the prima facie case is made out if, at the dose of the prosecution's case, the case is merely one in which onfull consideration might possible be thought sufficient to sustain a conviction. This is perilously near suggesting that the court would not be prepared to convict ifno defence is made, but rather, hopes the defence will fill the gaps in the prosecution's case. Nor can we agree that the question --- there is Page 10 of 16 a case to answer depends only on whether there is some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence. A more scintilla of evidence can never be enough, nor can any amount of worthless discredited evidence. It mav not be eas)! to define what is meant by a prima facie case ", bllt at least it mllst mean one on which a reasonable ;1-11")1properl)1 directing its minds to the law and the evidence could convict i[no explanation is offered by the defence". (underlined emphasis is mine) [19] In the Kenyan case of Ronald Nyaga Kiuva vs the Republic 2018 J(LR, the court held the following; "It is important to note that at the close of the prosecution's case, what is required in law at this stage is for the trial court to satisfy itself that a primafacie case has been made out against the accused person sufficient enough to put him on his defence pursuant to the provisions of Section 211 of the Criminal Procedure Code". COUNT 5AND6 [20] The 1st Accused person submits, that the particulars of the offence do not correlate with the charges, arguing that causing another person to touch one's sexual organ is not an offence contemplated under the Penal Code. The court notes that Section l3 5(1) criminalises indecent acts. [21] Upon reviewing the evidence, the Prosecution has tendered testimonies from Ms. , Ms. , and Ms. a that implicate the 1SI Accused in acts that may fall under the definition of an indecent act. I am convinced that the Prosecution has established the elements of the offence. Therefore, I find that there is a case to answer for Counts 5 and 6. [22] In addition, I agree with the Prosecution's argument, which is supported by the decision in Laurencine v R [2022J SCCA 64. In that case, the term "touching" was broadly interpreted to include acts such as "licking," as falling within the scope of the Penal Code. [23] Applying this reasoning, forcing a victim to touch another person's sexual organ constitutes an indecent act, thereby falling under the ambit of Section 135(1). Page 11 of 16 COUNT 8 [24] I have noted the l " Accused's submission that the evidence presented by the prosecution does not explicitly establish that the 151 Accused touched the vagina of Ms. y and does not demonstrate the absence of consent. [25] However, it is also clear fr0111the testimony of the complainant that the term "private part" was used to describe the area touched, in this case, the vagina. While the 1st Accused challenges the specificity of this evidence, it is my considered opinion that such testimony need not include precise anatomical terminology to be credible, particularly given the sensitivity of such matters. 1 acknowledge the ambiguity in the victim's testimony but notwithstanding that, I find that the phrase "private part" reasonably infers to a sexual organ, the vagina. [26] In EC v R (CN 66 of 2014) [2016J SCSC 788 (29 September 2016) where the Court was referencing Section 130 (2) of the Penal Code, it stated as follows, referring to the vagina as a private part: "This section clearly does not mention sustaining any injuries or a deposit of spermatozoa in the victim's private part as a necessary element of the offence of sexual Assault." [27] Further, Ms. was above 15 years at the time, lack of consent remains a . necessary element. Her testimony clearly indicates, that the act for which the accused is charged was not consensual. I find that there is a case to answer for Count 8. COUNT 7 [28] Section 130 (3)(b) of the Penal Code provides as follows: "130 (3) A person does not consent to an act which if done without consent constitutes an assault under this section if; b) the person is below the age offifteen years; Page 12 of 16 [29] This essentially means, that even if a person under the age of 15 consents to a sexual act, in the eyes ofthe law, such consent is not valid because they are legally incapable of giving consent. In s testimony, she stated, that she told the 151Accused that she was above the age of 15 because she believed that the 151Accused "only took older girls. " [30] I subscribe fully with the views expressed in the Court of Appeal case of R v Labrosse (SCA CR 1212023) [20241 (Arising in CR 6012021) where it was stated as follows: "In examining consent in relation to Sexual Assault, one must bear in mind that at the core of consent is capacity and the distinction between factual consent and legal consent. Factual consent is where based on the factual circumstances, the consent of a person is established. Nevertheless, there are situations where the law disregards such factual consent. One such example is found in Section 130(3)(b) of the Penal Code. Where the victim of Sexual Assault is a person below the age of fifteen years, it matters not whether there is factual consent. The law disregards such consent and imposes liability on the accused. Here there is strict liability and all that the prosecution needs to prove in that situation is that the victim was under fifteen years old". [31] In R v G [(Appellant) (Oil appeal from the Court of Appeal (Criminal Divisions) [20081 UKHL 37, para. 31 it was held: "The mental element of the offence under Section 5, as the language and structure of the Section makes clear, is that penetration must be intentional but there is no requirement that the accused must have I010wnthat the other person was under 13. The policy of the legislation is to protect children. If you have sex with someone who is on any view a child or young person, you take your chance on exactly how old they are. To that extent the offence is one of strict liability and it is no defence that the accused believed the other person to be over 13 or over." [32] At this stage, I am convinced that the Prosecution has tendered sufficient evidence to support the fact that h is a minor who falls under the provision in Section 130(3)(b) of the Penal Code. Page 13 of 16 [33] Furthermore, the circumstances of the quoted case, relied on by the 1Sl Accused are different from the current case. The charge in the case was Section 130(3)(c) while in this current case, the charge falls under Section 130(3)(b). [34] The 151Accused has relied on the statement made in, R v GL (Co 74 of2021) [2023J sese 427 (9 June 2023) where the Court held: "However, in all criminal cases, unless it is a strict liability offence, the Prosecution must also establish that the accused had the mental element to be made responsible for the crime." It should be noted, that the 151Accused incorrectly cited this authority as R v DL instead of the correct case referenced above. [35] The 1st Accused person submits, that the Prosecution must prove that he had the mental element to be held responsible for the crime and further argues, that the Prosecution has failed to demonstrate that he had the mental capacity to commit the offence. It is evident that the 151 Accused has used the terms "mental element" and "mental capacity" interchangeably, indicating a lack of understanding of the distinction between the two. [36] To clarify, the mental element (mens rea) refers to the mental state required to establish criminal liability which the prosecution must prove the defendant had at the time of committing a crime to secure a conviction. It encompasses the intent or knowledge of wrongdoing that constitutes part of a crime. On the other hand, mental capacity refers to an individual's cognitive ability to understand the nature and consequences of their actions, which may affect their criminal responsibility. [37] Based on the evidence presented by the prosecution, I am convinced that the Prosecution has sufficiently established the presence of the mental element required for this offence. The 1st Accused's reliance on R v GL does not undermine the Prosecution's case as the evidence indicates, that he had the requisite awareness and intent to be held criminally liable. Page 14 of 16 [38] As such, the Prosecution has established a prima facie case with evidence linking the P! accused to the alleged act. Consequently, I find that there is a case to answer for Count 7. COUNT 9 [39] The Prosecution has charged the l " Accused under Sections 130(1), 130(2)(d), and 130(3)(b) of the Penal Code. However, I agree with the 151Accused person that the evidence presented establishes that the complainant was above the age of IS at the time the alleged offence occurred. Section 130(3)(b) explicitly states that a person does not consent to an act constituting an assault under this Section if they are below the age of 15 years. [40] In the present case, as the Complainant does not fall within this category, the charge under Section 130(3)(b) cannot be sustained. I therefore find that this aspect of the charge was improperly framed and does not support the elements of the alleged offence. [41] It is important, that when filing charges against an accused to inform the accused" as far as is practicable ...and in detail of the nature of the offence". This is a guaranteed right of an accused in the Charter of Fundamental Rights which is enshrined under Article of the Constitution. It is for this reason that the Criminal Procedure Code at Section 11I requires, that in addition to stating the specific offence with which the accused person is charged, the charge must contain "such particulars as may be necessary for giving reasonable information as to the nature of the offence charged", so that an accused would be "adequately facilitated in preparing a defence to the charge". [42] This too is a fundamental right of an accused person under Article 19(2)(c) of the Constitution, and a necessary element of the right to a fair hearing under Article 19(1) of the Constitution. In the South African case of S V Langa 2010(2) SACR 289 (KZP) the majority of the Court recognized the principle that "a fair trial demands that an accused has the requisite knowledge in sufficient time to make critical decisions which will bear on the outcome of the case as a whole. It is for this reason that a charge sheet ought to inform an accused with sufficient detail of the charge he or she should face. It should set forth the relevant elements of the crime that has been committed and the manner in which the offence was committed". [43] That said, I have examined the remaining charges under Sections 130(1) and 130(2)(d) and find that the pI Accused still has a case to answer. Section 130(2)(d) pertains to the penetration of a body orifice of another for a sexual purpose, which is a distinct and substantive offence under the Penal Code. The evidence led thus far supports the elements Page 15 of 16 of these charges. COUNT 1 AND 2 [44J Section 4(1) of the Prohibition of Trafficking in Persons Act states: "A person who recruits, harbours, transfers, or receives a child, knowingly or recklessly disregarding that the person is a child, for the purposes of exploitation, whether or not by use of any means referred to in Section. 3(l)(a) to (g), commits the offence of child trafficking and shall, on conviction, be liable to imprisonment for a term not exceeding 25 years or such imprisonment and afine not exceeding SCR 800, 000". [45] The 2nd Accused has submitted, that she has no case to answer on Counts I and 2, asserting that the Prosecution has failed to establish a prima facie case against her. However, upon a careful examination of the evidence presented by the Prosecution, including the testimonies of the victims, Ms. and rt, both aged 1 1, I find that there is sufficient evidence t port the charges against the 2nd Accused. [46] The victims testified, that their mother, the 2nd Accused, took them to the 1st Accused's office, where indecent acts were performed. Furthermore, evidence reveals that the victims received money following their visits to the 1SI Accused's office, substantiating the allegations of exploitation. [47] At this stage, the Prosecution's evidence, if left unchallenged, is capable of leading to a conviction. It is neither manifestly unreliable nor has it been materially discredited. The inconsistencies raised by the 2nd Accused do not undermine the Prosecution's case to the extent that no reasonable tribunal could convict. [48] Having considered the evidence in its entirety, I am satisfied, that the Prosecution has established a prima facie case against the 2nd Accused. The evidence presented meets the Page 16 of 16 threshold required under Section 4(1) of the Prohibition of Trafficking in Persons Act and warrants the continuation of the trial as the accused has a case to answer. CONCLUSION [49] From the foregoing, and having considered the evidence of the prosecution witnesses, and without delving deep into the merits of that evidence as that would prejudice the 1st and 2nd accused persons herein, I am satisfied that a prima facie case has been established against both of the accused persons to warrant them to be placed on their defence. Signed, dated and delivered at Ile du P0l1 24th February 2025.