R v NA (CO 29 of 2021) [2024] SCSC 180 (29 November 2024)

SUPREME COURT OF SEYCHELLES Reportable/Redact CO 29/2021 In the matter between: THE REPUBLIC (rep. by Lansinglu Rongmei) and NA (rep. by Bryan Julie) Accused Neutral Citation: Republic v N A (CO 29/2021) (29 November 2024) Before: Summary: Heard: Burhan J Sexual Assault 29 September 2022,30 September 2022,12 April 2023, 16 June 2023,23 October 2023,29 February 2024 and 24 May 2024. 29 November 2024 Delivered: ORDER I am satisfied beyond reasonable doubt that prosecution has proved the elements of the charges contained in Counts 1 to 3 beyond reasonable doubt. I proceed to find the accused guilty on Counts I to 3 and proceed to convict him in respect of these three Counts. In respect of Counts 4 and 5 as there is no specific evidence to support these acts, I proceed to find the accused not guilty on these Counts and acquit him of same. JUDGMENT BURHANJ [1] The accused NA has been charged as follows: Count 1 Sexual Assault contrary to section 130 (1) read with section 130 (2) (d) of the Penal Code and punishable under section 130 (1) of the same Act, Particulars of offence are that, NA of .., .." Mahe on a date unknown to the Republic in 2013 at '" .." Mahe, sexually assaulted one JK, who was 9 years old at the time, by penetrating the body orifice namely the vagina of the said JK with his penis for a sexual purpose, Count 2 Sexual Assault contrary to section 130 (1) read with section 130 (2) (d) of the Penal Code and punishable under Section 130 (1) of the same Act, Particular of offence are that NA of .., .." Mahe, on a date unknown to the Republic in 2013 at .., ...., Mahe, sexually assaulted one JK, who was 9years old at the time, bypenetrating the body orifice namely the vagina of the said JK with hisfinger for a sexual purpose, Count 3 Sexual Assault, contrary to section 130 (1) read with section 130 (2) (d) of the Penal Code and punishable under section 130 (1) of the same Act, Particulars of offence are that, NA of .., ..,' Mahe on a date unknown to the Republic in 2015 at .., .." Mahe, sexually assaulted one JK, who was 11 years old at the time, by penetrating the body orifice namely the vagina of the said JK with his penis for a sexual purpose. Count 4 Sexual Assault, contrary to section 130 (1) read with section 130 (2) (d) of the Penal Code and punishable under section 130 (1) of the same Act, Particulars of offence are that, NA of ..... " Mahe on a date unknown to the Republic in 2015 at .., .." Mahe, sexually assaulted one JK, who was 11 years old at the time, by penetrating the body orifice namely the vagina of the said JK with his finger for a sexual purpose. CountS Sexual Assault, contrary to section 130 (1) read with section 130 (2) (a) of the Penal Code and punishable under section 130 (1) of the same Act. Particulars of offence are that, NA of ...... , Mahe on a date unknown to the Republic in 2015 at ....... , Mahe, sexually assaulted on JK, who was 1J years old at the time, by licking the vagina of the said JKfor a sexual purpose. Case for the prosecution [2] It is to be observed that the charge sheets in the file dated 16th April 2021 and 1st June 2021 contain the same charges. The accused denied the charges contained therein and the matter proceeded to trial. [3] The prosecution opened their case by calling the victim JK who is presently 18 years of age. She stated that she was born on 24 August 2004 and lived in Anse Royale with her parents and her three siblings. She stated that her godmother was MA who lived with the accused at Les Canelles with her daughters. Witness JK stated that in 2013, when she was in P4, she lived with her godmother in Les Canelles together with the accused and her cousins. In 2013, when she was living with her godmother MA at Les Canelles, she stated that she was being abused by her godmother's husband, the accused. When she was sleeping at night, he had come to her room and touched and caressed her private parts and removed her clothes. He had touched her vagina, fingered her, then he tried to insert his penis in her vagina, but it did not fit. He went away but had come back a few days after. He had removed her clothes and again tried to put his penis in her, but it did not fit, so he had gone away. He had come again the next day and once again tried to put his penis in her vagina again and tried to force it, but it did not fit. All three incidents happened in 2013. When the accused was doing all these acts to her, he told her not to tell anyone because they would both go to prison. Witness stated that she believed him when he told her that they would both go to prison. In 2013, when these incidents happened, she was nine years old. Witness had not told anyone what he had done to her. [4] In 2015, when witness was in P6 (Primary 6) living with her godmother at Les Canelles, her godmother's husband, the accused, was also living with them at Les Canelles. He was still abusing her at that time. He would still come at night and try to force his penis into her vagina. She stated it hurt her and she began to bleed, and he left the room. This was the first time she bled. Witness stated she lived with her godmother and her partner the accused at Les Canelles until she went to live with her mother in Belombre. It is clear from her evidence in 2015, this occurred more than once. [5] In 2016, Witness was still at school in SI (secondary 1) in Beau Vallon. After moving to Belombre, she went to visit her godmother in Les Canelles for the weekend. Similar incidents happened when she went to visit her godmother. When she was sleeping at night, the accused had come to her and put his penis inside her vagina. After this she had left her godmother's house and gone to live in Belombre. She stated thereafter she no longer visited her godmother in Les Canelles. The last time she visited her godmother in Les Canelles, she was in S4 (secondary 4), and they went to sleep in the hotel called Mango House and at night he had come and slept next to her. Her cousin also slept there. He removed her clothes and put her on top of him and put his penis into her vagina. She stated that after the incident at Mango House, this was the last time she went to visit her godmother. [6] The witness testified that she spoke to her school Counsellor, Mrs Bernadette, about the incident when she was in S5 at Beau Vallon School on 31 January 2020. When she went to see the school Counsellor, witness stated she could not bring herself to tell the Counsellor what had happened, so she wrote it down in Creole and gave it to the school Counsellor. The witness stated she remembered what she had written and had signed it. She wrote that she was being abused. The school Counsellor told the witness that she would contact the social worker and her mother. Witness's mother and the social worker came to see the school counsellor, Mrs Bernadette. Witness was shown the document she had written and identified it, stating that the document was dated 31 January 2020. The letter she wrote to her school Counsellor was marked as Exhibit PI. [7] The witness testified that she went to talk to the school Counsellor, Mrs Bernadette, because she always encouraged them to talk about these things and witness felt comfortable talking to her because witness was close to her. When the witness wrote the letter and gave it to her, the school Counsellor said that it was good that witness "was getting it out" and she had assured her that she could always come to her if anything was wrong. The social services worker, Ms Alphonse had met with her on 4 February 2020. The social worker also met with Mrs Bernadette. After the meeting, witness had been taken for a medical test with her mother and the social worker. In addition to writing the letter, witness gave a statement to the police. She was accompanied by her mother and the social worker, Ms Alphonse. After giving her statement to the police, she continued to meet with the social worker at school and at home. When they met, witness stated she talked about her feelings and the case. The witness MA identified the accused in open court. She had known the accused since she was six years old in P2 (Primary 2). Witness produced her birth certificate as P2. Witness testified that she did not tell anyone about the incident until she told Mrs Bernadette because she was afraid of what might happen to her and felt more comfortable talking to her Counsellor. She was afraid of going to jail because the accused had told her that they would go to jail if she told anyone about the incidents of abuse. [8] Under cross examination, she stated no one had forced her to testify. She stated she was unable to stay with her mother because her mother had to go to work and she was alone, as there were no other children. Her godmother also wanted her to stay with them. She further stated in cross examination that her godmother's house had four bedrooms. One room is for her godmother, the accused and her daughter, the other room is for her cousin and the other room is for her. Certain times when she was there, she slept alone in the room. At that time of the incident, she slept alone. Sometimes the incidents happened when her cousin slept with her in a separate bed in the same room. Her cousin did not hear what happened. She admitted she reported the matter to the Counsellor. Witness admitted she is not very close to her mother, but sometimes she talks to her. Witness did not talk to her mother about these incidents because she was not always around and could not tell her godmother because she was afraid. Witness testified that at some point she was bleeding, and no one noticed it. Witness reiterated the incident that occurred in the kitchen. She never cried, nor alerted anybody in the house because she was afraid. She admitted that at Mango House they were all in one room when the accused abused her, and nobody noticed as she did not cry out. When she went to the hospital, she was told that there was proof of her being sexually abused. She admitted that since the last incident she has not spoken to her godmother. She admitted that she never told her godmother's two children who were girls about the incident. After the incident was reported, her godmother did not contact her. Her godmother has two older children to witness and one younger. Witness never told them about the incidents. She admitted under cross examination that since she left school, she has never spoken to the accused and the accused had not contacted her. She denied she was making up a story. She denied having a boyfriend at 11 years and stated she met her boyfriend when he was 15 years. She met her boyfriend at school when she was 15 years. Witness in re-examination stated that when she was sexually abused in the kitchen, she was initially in her bedroom. The accused held her hand and brought her to the kitchen and that is where he abused her. She did not tell anybody until for the first time she told Mrs Bernadette because she was scared of the accused and the threat of going to prison. [9] The next witness called by the prosecution was Mrs Bernadette Laurence who stated that she has been a school Counsellor for 26 years. She had started in Belombre, then La Digue and was transferred to Beau Vallon Secondary School in 2007. She stated that she is a qualified social worker. As a school Counsellor, her main responsibility was to work with students who are experiencing difficulties; this could be social difficulties such as neglect at home, abuse, and included serious behavioural problems at school. Her day-to-day activities in the school she stated are quite hectic as she has students and parents coming in for her services and she works closely with other external agencies like the social services and the school health nurse and APDAR. She stated that she meets students on a daily basis because she does both individual and group counselling and other work as well. [10] Mrs Bernadette described the victim JK as a shy child, reserved and a good child as she had no problems in school. JK had wanted to meet her on the 31 January 2020, and she had met her after lunch and made her feel at ease and asked her how she could help JK. Witness testified that JK told her that that there is something that has been bothering her for quite a while. Witness had assured her that what they would be speaking would be confidential between them unless she will need help for other people to come to assist her. It was then that JK told her that when she was in Primary 4 just after her First Holy Communion, she was abused by a man by the name ofNA and this man was the husband of her godmother with whom she was living. When she started to speak about it, witness saw her turn her face downwards because it was something embarrassing that she was speaking about, and she was a timid child. It is then that witness asked her if she would like to write what had happened to her and then she had written it down. When she finished writing witness did not re-read what she had written on the paper to her. Witness read it herself. Witness asked her if this had happened to her when she was in Primary 4 and she said yes and she told witness that this had started by only kissing, and then he had touched her everywhere on different parts of her body and that there was one time that the man had forced his penis in her vagina and the next day she had her period. The incidents had happened when JK was in Primary 4, 5 and 6 and she had told witness when she was in Secondary 5. Witness identified the document PI, which was the letter written by the victim in her office and given to her. The nature of the complaint required her to inform social services and the mother of the child. She had sent the document to the Ministry of Education and Ms Hermitte who is the Child Protection Officer. The Social Services had taken over the case. After JK left school, witness stated she had no contact with her. She stated JK was a good girl and had no problems and stated further she never had any behavioural problems. Some children skip classes and have disciplinary problems at school, but JK never had those kinds of problems. In her opinion, the witness believed what JK had written in the letter Exhibit PI. [11] Under cross examination, she stated she keeps a record of every child that has a problem and JK had joined Beau VaUon from Secondary 1 to 5 and has never had a disciplinary problem at school. Witness stated that she was not aware that JK had run away from Beau Vall on School on a number of occasions or that she had been caught with a man in a car after her stepfather had followed her. Witness stated further that if it had happened, she would have known. Similarly, witness stated she was not aware of an incident where JK's mother came to school because she found a list of men's names on JK's mobile phone and further stated that if this had happened, the school would have informed her. She was also unaware that JK had any boyfriends and as she was there from Sl to S5, if JK had been involved with boyfriends at the age of 13 or 14 while at secondary school, she would have been informed as a school counsellor. [12] Mrs Bernadette had referred the case to social services and explained that the correct procedure was when a child comes to her and reports an alleged sexual abuse, they take the information and then explain the procedure to the child, fill in the form and then call social services to report the case. Then the police, and medical services and the Ministry of Education and the Ministry of Social Services take over the matter. JK had told witness that when she was penetrated for the first time the next day, she had her period. Witness stated she did not know why JK had to go live with her godmother. She stated in schools it is very common for children of 15- 16 years old to have a boyfriend or a girlfriend. It is not a procedure at the school for such things to be reported. Witness agreed that sexual abuse is a serious offence. [13] The next witness, Julia Alphonse, testified that she is a child protection social worker with a diploma in social work. She has worked on more than 200 cases and stated the procedure when they receive a case, is to proceed with the child protection procedure which includes the medical report and police statement. Witness confirmed that the JK case was referred to them by the Beau Vallon School Counsellor, Mrs Bernadette on the 03 February 2020. When witness met JK she noted, she was a shy and very reserved person. She revealed that she had been sexually abused by the accused while staying with her godmother. Witness stated she was present when JK gave her statement to the police. She thereafter conducted follow-ups, school visits, counselling sessions and home visits. Witness also as a part of her duties had to follow up with the child and the family by providing counselling and support. [14] The witness further stated that JK had been having some other problems at home recently, and witness had visited her in relation to the problem she was having at home. Witness stated that children take a long time to report such cases of abuse because sometimes, it could be threats or sometimes they do not have the right person to talk to or they do not know exactly how to disclose it. JK was a person who did not talk much and could hardly express herself. She further stated that abused children have that kind of behaviour or character. Under cross-examination witness Julia Alphonse stated she has handled around 200 cases mostly related to sexual activity complaints. The victim JK exhibited some behavioural issues with her mother in respect of the use of her mobile phone and boyfriends, but these were not serious problems. Witness testified that she is not aware of JK running away from school with a man or wanting the case withdrawn as suggested by defence Counsel. Under cross-examination, she stated that the usual procedure in respect of a vulnerable child witness is to bring them to Court prior to the date of hearing and help them familiarise themselves and prepare them to the Court environment. Witness stated that in her experience as a social worker, the children of abuse or victims usually manifest certain behavioural problems. [15] Thereafter the prosecution closed their case. For the defence case, the accused gave evidence under oath and called his wife as a witness. Case for the Defence [16] The accused, NA testified that he is a helper in a shop and lives at Les Canelles with his 12-year-old daughter. He has four children, two girls and two boys and is married to MA but admitted they have not lived together for about 2 years. He admitted his wife and him are separated because things were not working out due to a problem on her side. His wife has two other children who are not his: two girls. He stated the separation had nothing to do with the offence. Although she left, the older daughter of his wife still lives with him and so does his daughter. [17] When JK made these allegations against him, the other children were living with him. The youngest is 19 years of age, older than JK. The accused testified that he knew JK because his wife had called him and informed him that JK was having problems where she was staying and that she wanted to take her to live with them. Before his wife called him, he knew JK because her parents used to come to their house. The accused stated that they had an agreement that whatever decision was to be made, he and his wife would talk about it. Witness never refused as even before that, when he was with his wife, they had adopted a girl named MM. When he and his wife were together their children were with them and they all lived together in the house that had four rooms. He proceeded to describe the house stating there is a kitchen, an area next to the kitchen where food is prepared. There is a bathroom and a toilet in one room. The room he shared with his wife is near the kitchen. The four girls all shared one room. Some other people lived with them at the time. They were 3 police officers. A NDEA and two sergeants; a woman and a man. He stated that JK never slept in a room by herself because they did not have enough room for her to sleep alone. [18] He stated that when JK came to live with them he treated her like his own child. He stated that there was a time when she started to lie and take things to school. At one point the witness had to do a spot check of her bag and found things she had put in her bag to take to school. JK spent most weekends with her mother and at that time went to Anse Royale school. [19] He denied all the incidents she described in her evidence and testified that the allegation made by JK that he dragged her from her room into the kitchen never occurred. He always saw her as his own child and treated her as such. He stated that his wife had not reprimanded him and that he always speaks the truth and even his neighbours know what happened and trust him. He admitted that JK's parents did not come to see them often as they were not that close, even though they were on friendly terms. He further stated that he never spoke to JK's mother but would tell his wife about JK that she had unknown numbers in her mobile phone with whom she was in contact with. Since he was charged, JK's mother has never spoken to him. However, JK is still on good terms with his children. He stated that none of the other girls had reported to him any allegations that JK was making against him. [20] The accused further stated that he and his wife had been married for 13 years. He always had a good relationship with his wife and, as a Christian, has never known any other woman except his wife. Even after they separated for about 2 years, he has not been with anyone else because he is still married. He stated he has never decided or thought about having sexual relations with a minor. He stated he is part of a prayer-evangelist group who go into the neighbourhood and give advice to young children on how to protect themselves. Witness said that when these allegations were made against him, he found himself drinking beer even though he is not someone who uses substances as it weighed on him so much. The accused stated he served as secretary in a church, and he is someone who should be an example to others and this alleged incident is not good for his spiritual life or for the life of the church. [21] Witness further stated that he had an idea that JK was making these allegations against him as after her mother had found the unknown numbers on her phone, they had started following her and at one point her stepfather saw her get into someone's car. His wife told him that she was lying and taking money. Witness believes that whatever JK said was the idea of the person she was seeing who came up with such a plan, because her mother kept following her. The accused stated he discussed the matter with his wife, and they tried to reason why she was being told all these things. When she was in the 6th grade she left and went to see her mother and never came back. He stated her testimony she came back is untrue. The last time she was with them was in P6. He denied going to a place called Mango which had only recently opened, where he and his wife had been to was an Arab place. He denied anything had happened in the house and stated that two police officers and NDEA officers all lived in the same house and therefore this could not have happened. JK was always sharing a room, and she never had a room of her own. [22] Under cross examination, he stated that he works as an accountant at Ramesh's shop and that he remembered giving a statement to the police. He had not said everything he said in court because they had only asked him whether, what JK said was true or false. He further stated that he did not expect to have to give more details or a longer statement as the way the police officers asked him questions, it was not in a way that was very detailed for him to explain. They just asked him very straightforward questions. He is not someone who commits crimes, so it did not come to him to explain himself. The accused admitted that he could not remember the exact year that the police couple and another ANB officer lived in his house but only that JK was also there. Eight people lived in the house, and he proceeded to name them under cross-examination and there were police officers he trusted them as they were responsible. Under cross-examination, the accused further stated that he started his counselling 22 years ago and he goes to visit houses and see the family and children are included in the counselling. He stated that he had to be firm with JK because she was starting to touch things that were not hers and lying too. He admitted in cross examination they had they never stayed at the Mango Hotel but stayed one day during the day but did not sleep there as his wife had got a call from the Arabs saying they were coming and they had to leave. They had wanted to stay the night, but it was not possible. He admitted they go there from time to time. [23] He stated that JK left them when she was in P6. He could not remember the exact age she was taken in and stated it was his wife who took responsibility, and he was busy with his church duties. He thereafter admitted that when they went to Mango house, JK was not living with them and his daughters wanted to see her, so they called her and asked her to come. He admitted it was not he but the stepfather who had seen JK get into the car. He denied the problem between him and his wife was because he sexually abused JK. The problem between them started before the case. He denied he had in any way sexually assaulted JK when she was 9 years old. He denied threatening her. [24] The accused next called his estranged wife MVA who testified that she lives at North East Point and has three daughters. She admitted she was married to NA the accused, but they have separated. They lived together in 2005 and got married in 2008. She stated that the father of JK was her brother, and she is her godmother. Witness stated that she was still in contact with JK at the time of her testimony and calls her, as she has just had a baby and as her mother is not seeing her in the hospital. She had told her the baby was underweight and sometimes she WhatsApp's her. She stated JK had come to stay with her when she was in PI when she was 6 to 7 years old. Witness had transferred her to Anse Royale school. Witness stated she had four underage children living with her at the time and there are four rooms in the house. When JK came, there were four rooms. Witness and her husband slept in one room with their youngest daughter. Then there was one room for their oldest daughter and JK slept in the third room with her other daughter. She stated that a cousin, a NDEA officer came to stay and thereafter all three daughters slept in the same room. At no time did JK sleep alone in the room. She stated that JK never slept at Mango House and stated further JK liked to steal and take things and was a quiet child. While she was living there, she never complained of any assault. She stated the day her husband was arrested; she was in Dubai and her child had called her and informed her. She admitted she was frustrated because her underage children were left alone in the house after the arrest. The accused was with the daughters and all the children were close to him, including JK. The arrest shocked the witness, and she had asked the accused what happened and what did he do, and he replied that he did not know what happened. Witness stated that she has no reason to believe that the accused actually had committed the offence. His behaviour towards the children was like a normal father and he would treat all of them the same. [25] She admitted JK stayed with them for four to five years from PI to P5. The mother of JK would call and complain about JK and mentioned an incident in 2019 about JK. It is clear witness MA had not witnessed this incident. At the time of giving evidence, the witness said that JK had started talking to her the year before. When they spoke, JK told her that she was three months pregnant and that she was having problems with her mother, who had told her to pack her things and leave. She said she was going to stay with her boyfriend. [26] Witness denied her husband had ever walked around the house naked. She testified that neither she nor her children had ever seen this. She stated that as far as this case was concerned, she had no evidence that anything had happened as none of the children reported anything to her. She stated the separation between herself and her husband the accused had nothing to do with the case, it is just a personal problem between them. She stated she still speaks to her husband, and she goes to her home, but they are not in a relationship together. During the time they were married, she always trusted her husband. Under cross-examination witness testified that she works as a security officer at Four Seasons. She also worked in 2010 as a security at the Seychelles Civil Aviation Authority (SCAA) at the Airport and as a security officer she did night duty and there are sometimes when she was not home at night. She admitted on the nights she was not at home; the kids would stay with the accused. She admitted it was the mother of JK who told her about JK getting into a red car incident and she had not witnessed it. She admitted that at the time of that incident JK was not living with her and her mother was responsible for her not the witness. She denied she was telling lies as the accused was the father of her children. She admitted that the accused was still taking care and maintaining one daughter. She denied she was misleading Court to protect the accused as he was maintaining the child. She further stated that in a week she does two-night shifts but is in communication with the children. She would check if they showered, ate, and went to sleep on time. [27] The next witness called by the defence was Hendrica Marie a police officer who stated she knew the accused through his wife MA. She stated that MA had a relationship with an uncle of hers and when she left her uncle she had stayed with the accused. She stated she had lived in their house at Les Canelles around the year 2014 for a year. At that time JK was also living there. Witness stated she knew JK before as when MA was in a relationship with her uncle, JK used to come there especially for children's parties. She described the sleeping arrangements in the rooms when she stayed at Les Canelles and stated there were four rooms and that all three children occupied the biggest room and were together in one room. While she was there, she has not heard anything about abuse. [28] Witness Marie-Chantal Nichol testified that she resides in Belombre, and she is a Senior Education Officer from the Ministry of Education. She was a Deputy Head from Beau Vallon Secondary for seven years. She worked at Beau Vallon secondary from 2013 until December 2022. As Deputy Head she was in charge of the Pastoral Care for the student and staff. She recalled JK and knew her from Sl up to SS. She was a quiet student and not that intelligent but an "average student." She was well behaved and attended school mostly every day. She was not a troublemaker. The time she was there she did not recall the school calling her parents for misbehaviour. Analysis [29] Having thus considered the evidence before Court, it is clear that the main defence of the accused is that he denies the incidents of sexual assault on the child, JK by him. It is his contention that JK is making up these stories as it is the idea and plan of the person who she is seeing. It is clear from his evidence that it was not him but the victim's mother and step- father who had begun to follow her after seeing unknown telephone numbers on her phone and at one stage had seen her get into someone's car. He further mentions that his wife had told him that she was lying and taking money. If this be true, the persons JK should be angry with are her mother and stepfather and his wife (godmother). It is clear from his own evidence that it was not him who followed JK, but her stepfather and it was her stepfather who had seen her get into someone's car and confronted her. Therefore, I see no reason why JK or the person she is seeing sho~ld have any animosity against him, to make up such serious false allegations. The victim in her evidence states she still likes her godmother the wife of the accused and it is apparent she is even at present in contact with her. Her evidence indicates no animosity towards her godmother. Therefore, his contention that JK is making up these stories as it is the idea and plan of the person who she is seeing, and others is unsustainable, unsupported and bears no merit. [30] Even though he further states that these incidents could not have happened as all four children were in one room as there were other persons staying in the same house, it is clear from his wife's evidence that though there were police officers and a NDEA officer who lived in the same house it was after 2013 that these persons came in to live in the said house. Even defence witness Hendrica Marie states it was around 2014 she lived in the house and that too only for a year. It is clear from the evidence of the victim that in 2013, the only other person in the room with her when the incidents occurred was the youngest child and it is admitted even by the accused and his wife that the house was a four-bedroom house. When one considers the evidence of his wife, it is clear she was not aware of the incidents of abuse as no one had told her anything and it is also clear from the evidence from his wife that she was working as a security officer and there were times when she never came home in the night. It is also apparent that at present she is not living with the accused and has separated from him for other reasons, and he still maintains a child. [31] The accused at the same time states that he had treated JK as he would treat his own child if that were the case, I see no reason for a well-behaved girl like JK to make up such serious allegations spreading over a considerable period of time if he had treated her like his own child. The fact that the accused served as secretary in a church or that he is pari of a prayer evangelist group who go into the neighbourhood and give advice to young children on how to protect themselves or that because of these allegations made against him it has affected his spiritual life and he finds himself now drinking beer are not defences this Court can accept. For all the aforementioned reasons I proceed to reject the defence of the accused. [32] This Court also notes the evidence of witness Mrs Bernadette Laurence school Counsellor for 26 years. As an experienced school Counsellor with her main responsibility being to work with students who are abused, she describes JK as a shy child, reserved and a good child as she had no problems in school. It is clear from her evidence that the child had voluntarily come out with the details of her abuse to her and there was no compulsion at all from the Counsellor or any other person. The abuse had occurred on JK when she was living with the accused and his wife, and she was only 9 years of age in P4 when the first incidents of abuse occurred in 2013. As the victim was a timid child, she was embarrassed to speak about it, and she had voluntarily written down in a letter what happened to her before the Counsellor. The Counsellor identified the letter P 1, which was written by the victim in her office and given to her. [33] The school Counsellor reiterated that JK was a good girl and had no problems and stated further she never had any behavioural problems. She stated some children skip classes and have disciplinary problems at school, but JK never had those kind of disciplinary problem in school. In her opinion, witness believed what JK had written in the letter Exhibit P 1. The school Counsellor further states that she keeps a record of every child that has a problem. JK had joined Beau Vallon from Secondary 1to 5 and has never had a disciplinary problem at school. Witness stated that she was not aware that JK had run away from Beau Vallon School on a number of occasions and that she had been caught with a man in a car after her stepfather had followed her and further stated that if it had happened, she would have known. Similarly, the Counsellor stated she was not aware of an incident where JK's mother came to school because she found a list of men's names on JK's mobile phone and if this had happened witness stated the school would have told her. She was also unaware that JK had any boyfriends and as she was there from S1 to S5 and if JK had been involved with boyfriends at the age of 13 or 14 while at secondary school, she would have been informed as a school Counsellor. The evidence of this witness completely contradicts the evidence of the accused who tries to suggest that the victim was a liar, with behavioural problems, having boyfriends and running away from school. I am inclined to accept the evidence of the school Counsellor on all these issues and reject the suggestions made by the accused. Her evidence that the victim JK was a well-behaved child is corroborated by Marie-Chantal Nichol a Senior Education Officer from the Ministry of Education who was Deputy Head from Beau Vallon Secondary for seven years. As Deputy Head, she was in charge of the Pastoral Care for the student and staff. She recalled JK and knew her from S 1 up to S5 and described her as a quiet average student who was well behaved and attended school mostly every day. She was not a troublemaker. The time she was there she did not recall the school calling her parents for misbehaviour. [34] When one considers the evidence of JK, it is clear that the sexual attacks on her began in 2013, when she was 9 years old in P4 and living with her godmother and the accused at Les Canelles. In 2013, on three occasions when she was sleeping at night the accused had come to her room and sexually assaulted her in many ways by touching her private parts, touching her vagina, and fingering her and also touched and caressed her private parts. He had tried to insert his penis on more than one occasion, but it did not fit. She states all these incidents happened in 2013, when she was 9 years old. The accused whilst doing all these acts to her had told her not to tell anyone because they would both go to prison. She had believed him and not told anyone. [35] Witness states in her evidence that even in 2015, when witness was in P6 (Primary 6) living with her godmother at Les Canelles, the accused, was still abusing her at that time. He would still come at night and try to force his penis into her vagina. When he did it hurt her, and she began to bleed, and he left the room. This was the first time she bled. It is clear from her evidence that there was penetration on that date. In her evidence there are slight inconsistencies in her evidence and PI, but this is understandable as the assault was of continuing nature over a prolonged period of time and had occurred several years back to the date, she was giving evidence. [36] Having carefully considered the evidence of the victim JK, I am satisfied that though she was subject to cross examination her evidence in respect of these incidents did not waiver or change. She categorically stated that the accused assaulted her when she was only 9 years old on several occasions. I find it difficult to accept the fact that the victim JK had made up these incidents as they date back to many, many years from the date she actually complained to the Counsellor in January 2020. It is clear that there is no reason nor was there any compulsion for her to make a false complaint against the accused. The reasons given by the accused for her making up such a story have already been dealt with and bear no merit. Further it appears that these incidents had affected her as borne out by the evidence of witness Julia Alphonse, a child protection social worker who had worked on more than 200 cases. She had been instrumental in counselling the victim and stated in her evidence that children take a long time to report such cases of abuse because sometimes, it could be threats or sometimes they do not have the right person to talk to or they do not know exactly how to disclose it. She stated JK was a person who did not talk much and could hardly express herself. She further stated that abused children have that kind of behaviour or character. She too denied knowledge of the allegations made in cross examination that the child had run away from school with a man. In this instant case, it is evident that as the accused had threatened the child that she too would go to prison, she became afraid and did not report her abuse. [37] For the aforementioned reasons, I am satisfied that the victim was telling the truth when she referred to incidents that occurred to her at the age of 9 and 11 when she made the complaint in the year 2020. I am convinced that these incidents did occur soon after her first Holy Communion and were etched in her memory that is why she was able to remember the age and class she was at the time the incident occurred. If she was lying, she would not have given such details dating back to 2013 when she was only 9 years old and even recollects that after one of the sexual attacks on her by the accused, she had bled and got her period. All these intricate details indicate that the witness is telling the truth and not fabricating or has been coached to say such things. It is clear from the evidence that the victim in her mind had decided to trust the school counsellor Mrs Bernadette and confide in her. Mrs Bernadette too gave evidence, and it is clear from her evidence too that the child voluntarily confided to her, the incidents of sexual assault the accused had committed on her and there was no compulsion or coaching done at the time. For all the aforementioned reasons I will therefore proceed to accept the evidence of the prosecution and reject the defence of the accused. [38] The Seychelles Court of Appeal in the case of Lucas v R (SCAI70f2009) [2011] SCCA38 (2 September 2011) held at paragraph 28 of the said judgment. "it is not obligatory on the courts to give a corroboration warning in cases involving sexual offences and we leave it at the discretion ofjudges to look for corroboration when there is an evidential basis as stated earlier" [39] When one considers the evidence of the victim JK in this case, it cannot be said that the witness was lying at the instigation of another or because she had a grudge against the accused, or her evidence was unreliable or that she had made a false complaint against the accused. Thus, as held in the aforementioned case there exists no evidential basis for the need to look for corroboration or for the corroboration warning. Considering these facts, this court is of the view that the evidence of the victim is acceptable to court as there is no doubt in the mind of court that the victim was telling the truth. [40] On consideration of the evidence led by the prosecution, I am satisfied beyond reasonable doubt that prosecution has proved the elements of the charges contained in Counts 1 to 3 beyond reasonable doubt. I proceed to find the accused guilty on Counts 1to 3 and proceed to convict him in respect of these three Counts. I am also satisfied that the prosecution has proved beyond reasonable doubt that penetration occurred during the sexual assault described in Counts 2 and 3. [41] In respect of Counts 4 and 5 as there is no specific evidence to support these acts, I proceed to find the accused not guilty on these Counts and acquit him of same. I also note that there are no charges brought by the prosecution in respect of the 2016 and 2019 incidents referred to in [5] herein. 19