TL v R (SCA CR 12/2025 (Arising in [2022] SCSC CR 21/2022) [2025] SCCA 29 (15 December 2025)

IN THE COURT OF APPEAL OF SEYCHELLES TL (in forma pauperis rep. by Joel Camille) And THE REPUBLIC (rep. by Gulmette Leste) Reportable [2025] (15 December 2025) SCA CR 12/2025 (Arising in [2022] SCSC CR 21/2022 Appellant Respondent Neutral Citation v R (SCA CR 12/25) [2025] SCCA (15 December 2025) Before: Summary: (Arising in [2022] SCSC CR 21/2022) Twomey-Woods, JA, Robinson, André JA sexual assault - incurable defect in indictment – material inconsistencies in evidence – sole prosecution witness – corroboration – misdirection by trial judge – evidential burden – aggravated sentence trigger from interpretation of section 130(1) of the Penal Code Heard: Delivered: 1 December 2025 15 December 2025 ORDER The appeal is allowed. The conviction and sentence of twenty-eight years are quashed. The appellant is acquitted. JUDGMENT DR. M. TWOMEY-WOODS JA (Robinson JA and André JA concurring) Introduction [1] The Supreme Court convicted the appellant on 4th April 2025 for the sexual assault of a young girl, whose age at the time of the offence was not particularised in the indictment. The offence occurred on an unspecified date, during which the appellant is alleged to have touched the victim's breast. On 1 July 2025, the appellant was sentenced to 28 years’ imprisonment for this offence. The Supreme Court clarified that the length of the sentence was due to the appellant’s previous conviction for a sexual offence against another minor within 10 years of the current conviction, thereby invoking section 131(1) of the Penal Code. The charge [2] I must, at the outset, address the charge, namely, the way it has been drafted. It reads as follows: Statement of Offence Sexual assault, contrary to section 131 read with section 13(2) b of the Penal Code and punishable under section 131(1) as read with section 130 (4) of the same (Act) 5 of 2012). Particulars of Offence TL, a 33-year-old police officer of Castor Road. Mahé, while he was living at Pointe Larue, Mahé on a date, unknown to the Republic, at his residence, Pointe Larue, Mahé sexually assaulted his stepdaughter, namely Ms RH, presently 12 years old, but was a student of P4 at the time of the incident and touched her breasts with his hand for sexual purposes. (sic) [3] The indictment was filed on 1st April 2022. It was sloppily drawn, as the charge initially specified that the incident occurred when the complainant was in P2, later amended to P4, but without stating the year or the child’s age in P4. This leaves the date and even the year of the alleged offence uncertain. The issue is whether these defects make amendments to the charge incurable. [4] In this context, two fundamental principles of criminal pleading must be balanced. First, simple procedural errors should not invalidate an indictment. Second, a charge must clearly state the allegation to inform the defendant and enable a proper defence to be prepared. [5] Resolving this tension requires a structured analysis that prioritises substance over form. The rule against technicality prevents guilty parties from avoiding conviction due to procedural imperfections that are non-prejudicial, recognising the fallibility of drafting and emphasising substance over minor errors. [6] The second principle represents the essential right to fair notice, a fundamental aspect of justice rooted in protections such as Article 19(2)(a) of the Constitution. It guarantees that the accused can understand the case against them, raise a previous acquittal or conviction, and present an effective defence. This right is codified in section 111 of the Criminal Procedure Code, which stipulates that the charge must contain: “a statement of the specific offence… together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.” [7] The charge must therefore include specific details that provide reasonable information about the offence. Section 187(1) of the Criminal Procedure Code allows a court, when it finds a charge defective, to order its amendment or replacement, as long as this does not unfairly prejudice the accused. [8] Under section 187(2)(b), any amendment involving the substitution of an existing charge or addition of a new one may only be made before the prosecution closes its case. [9] Further, section 187(1)(c) requires that when the court permits such a substitution or addition, it must ask the accused whether they wish to present new evidence or recall witnesses for cross-examination and must allow it if so requested. [10] Confronted with a defective charge, the court should therefore undertake a sequential inquiry. First, it must characterise the defect, distinguishing a minor technical error (e.g., a spelling mistake) from a fundamental, substantive deficiency (e.g., omission of an essential element, or fatal vagueness). [11] Second, the court applies the prejudice test. If the defect causes no prejudice to preparing or presenting a defence, the first rule applies and the indictment may be amended or upheld as a mere irregularity. [12] If the defect does prejudice the accused’s ability to mount a defence, the second rule prevails: the flaw is fundamental and invalidates the charge, as it strikes at the heart of the right to a fair trial. Surprisingly, in the present matter, these issues were not raised at the trial. The question now arises whether this Court, on appeal, can intervene. [13] In Mohammed Ali Hussein & Ors v R,1 this Court cited numerous South African authorities on the mandatory requirement for clarity and specificity in charges, holding that defects rendering a charge incurable are those causing insurmountable prejudice to the accused. [14] In R v Pool & Ors2, the Supreme Court cited the South African case of S v Vilakazi3 to the effect that: “… if the time when an offence was allegedly committed is not a material element of the offence … the failure to refer to time, does not render the charge defective…” [15] In R. v A,4 Lord Steyn observed that the right to a fair trial is absolute and a conviction obtained in breach of it cannot stand. In the Australian case of Davies and Cody v The King,5 it was held that a court: “…will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court’s view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.”6 [16] In R v Cooper,7 Widgery LJ stated that appeal courts have extensive powers enabling them to ask: 1 CA 5 of 2016) [2016] SCCA 33 (9 December 2016). 2 (CR 48 of 2023) [2024] SCSC 85 (7 June 2024). 3 2016 (2) SACR 365 (SCA). 4 A, R v. [2001] UKHL 25; [2001] 3 All ER 1 (17th May, 2001). 5 [1937] HCA 27; 57 CLR 170; [1937] ALR 321 6 Ibid. p. 273. 7 1969) 53 Cr. App R 82. “…the subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the Court experiences it.”8 [17] Applying these principles to the present appeal, several particulars of the indictment are adequate. The location (“at his residence at Pointe Larue, Mahé”) is specific. The victim is clearly identified as “his step-daughter, namely RH,” the act: "touching her breasts with his hand for a sexual purpose" explicitly states both the physical act and the requisite mental element. [18] However, the indictment contains a crucial, fatal flaw in its lack of specific date or year: “on a date unknown to the Republic.” While the date is not always a necessary element, 9 the complete omission of any temporal detail is highly prejudicial. The accused’s ability to mount a defence, particularly an alibi, relies on knowing the timeframe. 10 Without it, he cannot account for his whereabouts, obtain records, or identify witnesses. [19] Both statute and our jurisprudence require the highest level of specificity reasonably possible. While courts permit some flexibility with phrases like “on or about” or “between”11 certain dates, stating that the date is entirely unknown is too vague. It does not sufficiently narrow the temporal scope. [20] Such open-endedness also raises a legitimate concern of prosecutorial overreach in these circumstances. It risks turning the charge into a “fishing expedition,” alleging an offence that could have occurred at any time over an extended period, thereby rendering a comprehensive defence impossible, undermining procedural integrity and the right to a fair trial.12 [21] This prejudice is even more evident here. The case record, together with that of a related matter (T. L v R),13 seems to indicate that during the same period in question, the appellant 8 Ibid, p. 83. 9 Archbold: Criminal Pleading, Evidence and Practice (Sweet & Maxwell 2013) ed PJ Richardson, 1-202 – 1-204. 10 Wright v Nicholson, 54 Cr. App. R. 38DC; R v Robson [1992] Crim. L. R, 665. 11 Op cit. fn 7 1-203. 12 Op. cit. fn 1-212, Mattocia v Italy (20030. 35 E. H. R. R. 47, EctHR. 13 ((SCA CR 15/2024) [2022] (Arising in CO 20/2022) (22 April 2025)) [2025] SCCA 3 (22 April 2025)). may have resided in the same village and was involved in two separate relationships with mothers of children who allege abuse. Indictments in both cases were filed on 1 April 2022, and he was convicted of sexual assault in one case on 13 September 2024 and in the present case on 4 April 2025. [22] The question, unclarified at the appeal hearing or in the brief, is whether this reflects a complex living arrangement, whether the offences occurred sequentially, a mistake regarding when the offences took place, or whether they occurred at all. Without a date or even a year, the appellant cannot effectively distinguish his whereabouts and activities between the two families or defend himself against this particular allegation without unfairly implicating himself in the separate, adjudicated matter. The charge’s vagueness thus creates a genuine risk of prejudice and factual confusion. [23] As I have stated, although the parties did not formally raise this issue, this Court is compelled to address it. This obligation arises from a constitutional duty and is additionally expressly permitted under Rule 18(9) of the Seychelles Court of Appeal Rules, which authorises this Court to consider grounds of appeal beyond those advanced by the appellant. [24] As judicial officers, we have a fundamental duty to act as guardians of the Constitution and uphold the rule of law. For these compelling reasons, I believe that the appellant would have been greatly prejudiced by the charge and see no alternative but to strike it out. [25] In the circumstances, it is unnecessary to consider the remaining grounds of appeal. I nonetheless address them because the judgment of the court below contains other serious irregularities that must be checked. The grounds of appeal [26] The appellant has raised the following grounds of appeal: 1. The learned trial judge erred in law and on the facts and concluding that inconsistencies in the evidence of the virtual complainant were minor to the extent that they did not rise to the level of materiality that would affect the complainant’s assertion of having been sexually assaulted. 2. The trial judge erred in law and on the facts, in having first appreciated some inconsistencies in the virtual complainant’s evidence and then failed to appreciate and assess sufficiently and address his mind to the fact that the complainant herself had admitted on oath that when asked by one R, whether the appellant had done anything wrong to her the complainant had answered “no” to the same question and hence cast doubts on the complainant’s own evidence as being credible. 3. The learned trial judge erred in law and on the facts by drawing the wrong inference from the defendant's evidence particularly, to the fact that the learned judge had addressed his mind to the extent of prejudicing his own mind, to the issue of intoxication, which he had equated wrongly, to the possibility of inappropriate actions occurring during the time. 4. The learned trial judge erred law in concluding that the appellant had an evidential burden in law to render his testimony more truthful and that the appellant had failed to bring independent evidence in support of his defence. 5. The sentence of 28 years meted out by the little trial judge is manifestly harsh and excessive and wrong in law. Inconsistencies in the evidence - grounds 1 and 2 [27] Mr. Camille, representing the appellant, has argued that since only one witness’s evidence was presented for the entire prosecution case, the inconsistencies within that witness's statement constitute significant and serious contradictions that render the conviction unsafe. In contrast to the appellant’s denial of the offence, he contends that although corroboration of the complainant’s evidence in sexual offence cases is not always required, given the circumstances of this case, some corroboration was necessary; without it, the complainant’s evidence remains uncertain at best. [28] In response, Ms. Leste, representing the respondent, has submitted that although there were inconsistencies, these were minor and not material. She has relied on the South African case of Trevor Zialor v R14 and Vilakazi15 for the proposition that inconsistencies in a complainant’s testimony must be assessed by their seriousness and materiality, which must be linked to the overall issue of truthfulness. [29] In Zialor, after analysing the evidence, Robinson JA concluded that the discrepancy between the indictment and the evidence, which had been based on a specific date, and the evidence showing the offence occurred between 31 October 2013 and 3 November 2013, was not such as to constitute a grave injustice. [30] In the present case, aside from the absence of a specific date indicating when the offence was committed, there were additional inconsistencies. The complainant stated that she had informed someone from Social Services that the incident occurred when she was in P4, yet in her signed statement to the police officer, she said she was in P1. During cross- examination, she admitted that she did not know her age at the time of the incident. When questioned by Dothy and Raphaelle, who visited her at school, whether the appellant had abused her, her response had been “no”. [31] However, when approached by KM, the complainant involved in another case concerning the appellant, about whether she had also been abused by the appellant, her reply was “yes.” She had met KM twice at playdates and could not recall KM’s age at either time. She also gave conflicting accounts regarding whether both of her sisters were present during the abuse. In her statement, she stated that both sisters were present, but in her court testimony, she claimed only one was. None of these witnesses was called to give evidence, which could have clarified the lurking doubt of whether she had been coached or influenced in making the allegation, resolved any inconsistencies, and strengthened RH’s complaint. [32] In the seminal case of Lucas v R,16 when this Court for the first time stated that in sexual offence cases, a complainant’s evidence need not be corroborated, it also added: 14 (SCA 10 of 2016) [2017] SCCA 42 (6 December 2017). 15 Op. cit.fn3. 16 (SCA 17 of 2009) [2011] SCCA 38 (2 September 2011). “We therefore hold that it is not obligatory on the courts to give a corroboration warning in cases involving sexual offences and we leave it at the discretion of judges to look for corroboration when there is an evidential basis for it…”(added emphasis) [33] In the present case, it seems that an inadequate inquiry was conducted regarding the necessity of applying the corroboration warning. As I have stated, the entire prosecution case depended on the inconsistent account of a 12-year-old girl who could not remember her age at the time of the incident and what exactly happened. One would expect that, at the very least, the police, Social Services, and the medical examiner would have been involved to verify that the complaint was made and thoroughly investigated. The learned trial judge’s consideration of the need for the corroboration warning appeared to focus on whether the complainant had enough maturity to understand the importance of telling the truth and on the fact that there was sufficient light at the time to observe the perpetrator. The latter point is seriously confusing, as no issue of identifying a perpetrator was raised at the trial. It was inappropriate to consider this matter. [34] This court is hesitant to overturn the decisions of a lower court, but given the significant gaps in this case, I find that the warning should have been properly considered and that corroboration should have been obtained. The absence of corroboration means this offence cannot be proven beyond a reasonable doubt. This has resulted in an unsafe conviction. Therefore, these grounds of appeal are successful. Misdirection by the trial judge on intoxication and the evidential burden – Grounds 3 and 4. [35] Other inconsistencies in the case involve the complainant’s evidence as to whether the appellant was drunk at the time he allegedly touched her breast. In her statement and examination in chief, she testified that the appellant was drunk. In cross-examination, she stated that he had not drunk “a lot”. The appellant denied he had drunk. Yet, the trial judge in convicting the appellant stated: “ The accused asserts that he and RH's mother were drinking at home while RH was present and that the offence allegedly took place in this atmosphere. The context of being intoxicated raises concerns about his sound judgment and behaviour, which lend credence to the possibility of inappropriate actions occurring during this time.” 17(Emphasis added) [36] The above is not only an incorrect finding as the applicant never asserted that he was drinking, but also a mistake as concerns the defence of intoxication, which was never raised. [37] This mistake is significant because it misinterprets the legal principles related to intoxication. Under section 14 of the Penal Code, intoxication is generally not a defence. The court cannot assume guilt by suggesting that being drunk increases the likelihood of inappropriate conduct. In fact, the law states that intoxication can only be a relevant factor for two specific purposes: first, if it negates the particular intent required for the offence (which was not argued here), or second, in the very rare cases where it provides a complete defence, such as if the accused was involuntarily intoxicated. Since the appellant denied drinking and the defence of intoxication was never raised, the learned trial judge’s comment was not only a factual error but also a serious legal mistake, as it wrongly used the concept of intoxication to imply guilt rather than being based on the evidence presented. [38] Mr. Camille contends that there is a further serious misdirection by the learned trial judge. In his decision, he writes: “ [T]he defence relies heavily on personal testimony without corroborating evidence to support his claims. Though the accused bears no burden of proof in law, he has an evidential burden to render his testimony more truthful and other independent evidence in support of his assertion was not produced.”18 [39] Mr Camille submits that the defence amounted to a denial of the prosecution's case and raises no new issue and therefore no evidential burden on the accused was triggered. [40] M. Leste has not specifically addressed this issue but has instead contended that no inference was drawn from the defence case but rather the trial judge took into consideration the evidence in its totality. 17 Paragraph 22 Supreme Court judgement 18 Paragraph 22 of the Supreme Court judgment in R v TL CR21/2022 (unreported). [41] Based on established common law principles, the trial judge's finding is wrong in law for many reasons. His findings conflates the evidential burden with a requirement for corroboration. He correctly states the accused bears no legal burden of proof. Indeed, the accused does not have to prove anything. The evidential burden is merely the obligation to raise a sufficient issue to be left to the trier of fact. This is typically discharged by the accused's own testimony, without the need for external support. The finding in the present case incorrectly treats the evidential burden as a requirement to produce independent, corroborating evidence. [42] In R v Galbraith,19 the court held that if the defence evidence, taken at its highest, could lead a jury to acquit, it must be left to them. It is therefore a question of the credibility of the accused. The evidential burden should not translate to a requirement for corroboration but rather a need to present evidence that might reasonably support their claims. [43] Tapper20 states that: “The evidential burden is the obligation ‘to show, if called upon to do so, that there is insufficient evidence to raise an issue as to the existence or non-existence of a fact in issue...”21 [44] Hence, the learned trial judge seemed to have imposed an improper standard on the defence. The statement that the accused failed to produce "other independent evidence" to render his testimony "more truthful" creates an improper legal standard. It suggests that an accused's sworn testimony is inherently insufficient and requires boosting by external evidence. This undermines the presumption of innocence. This is especially so given the fact that the learned trial judge did not impose the same standard on the prosecution to corroborate the evidence of its sole witness. [45] In Woolmington v DPP,22 the foundational case establishing that the prosecution must prove guilt beyond a reasonable doubt, Lord Sankey's "golden thread" speech has 19 [1981] 1 WLR 1039. 20 Collin Tapper, Cross & Tapper on Evidence (11 edn, Oxford University Press 2010). 21 Ibid, 132. 22 1935] AC 462 (HL). enduring validity in that the accused has no burden to prove his innocence or the truth of his account. Requiring independent evidence to support his assertion improperly shifts a practical burden onto the accused. [46] The correct legal position is that an accused discharges his evidential burden simply by providing a credible account of the facts which, if believed, would constitute a defence. Whether that account is believed is a matter solely for the judge of fact in our jurisdiction, who is entitled to accept it even in the absence of any independent supporting evidence. The learned trial judge’s remark demonstrates a fundamental misunderstanding of these principles. In summary, based on established common law principles, the trial judge's finding is incorrect in law for the following reasons: it transformed the evidential burden into a requirement for corroborative evidence, it implicitly imposed a standard of proof on the defence by deeming uncorroborated testimony insufficient, and it improperly assessed the credibility and weight of the accused's testimony. [47] Additionally, in attempting to strengthen the prosecution’s evidence, the learned judge presents a further flawed statement: “The fact that the accused states that he treats her like all his children and shows up to school for her as per his evidence shows that there is no reason why RH would come up with serious allegations against him.”23 [48] This again highlights a fundamental error by the learned trial judge. His reasoning reveals a mistake in legal syllogism: because we see no reason for RH to lie, the accused must be guilty. This incorrectly places the burden on the accused to disprove a motive or to demonstrate innocence by explaining the complaint. [49] In this context, it must again be reiterated that the accused does not have to prove his innocence. It is for the prosecution to prove beyond a reasonable doubt that the accused is guilty. [50] For these reasons, this ground of appeal also succeeds. 23 Op cit. 18, paragraph 12. The sentence - Ground 5 [51] Having convicted the appellant, the learned trial judge reasoned that since the present offence had occurred within ten years of a previous conviction, he had to consider the provisions of section 130 (1) of the Penal Code. These provide that: “ A person who sexually assaults another person is guilty of an offence and liable to imprisonment for 20 years: Provided that where the victim of such assault is under the age of 15 years and the accused is of or above the age of 18 years and such assault falls under subsection (2)(c) or (d), the person shall be liable to imprisonment for a term not less than 14 years and not more than 20 years: Provided also that if the person is convicted of a similar offence within a period of 10 years from the date of the first conviction the person shall be liable to imprisonment for a period not less than 28 years: Provided further that where it is the second or a subsequent conviction of the person for an assault referred to in subsection (2)(d) on a victim under 15 years within a period of ten years from the date of the conviction, the person shall be liable to imprisonment for life.” [52] The section outlines three levels of penalty for sexual assault, including provisos that increase the minimum sentence in specific cases. First, the general rule states that sexual assault carries a maximum sentence of 20 years’ imprisonment. Second, if the victim is under 15, and the accused is 18 or older, and the assault involves particular aggravated modes in sub-s. (2)(c) or (d), the court must impose a sentence between 14 and 20 years (i.e., a mandatory minimum of 14 years, with a maximum of 20). Third, under the second proviso, if the offender is convicted of a similar offence within 10 years of a previous conviction, the court must impose a sentence of no less than 28 years. This acts as a mandatory minimum for repeat offenders that overrides the earlier ranges. In other words, where applicable, the judge cannot impose less than 28 years, even though the general and aggravated tiers elsewhere specify “up to 20” or “14–20”. [53] Setting aside the constitutional mandate, our discretion in sentencing, and the case of Poonoo v R,24 the legislature appears to have deliberately established a higher minimum for repeat sexual offenders; the court’s discretion remains only above 28 years (subject to any overall statutory maximum that may apply to the specific offence). [54] In paragraph 7 of the sentence decision, the learned trial judge states: “ In determining an appropriate sentence in this matter, the Court must consider the provisions of section 130(1) of the Penal Code, which is applicable in this context. The accused has been convicted in a previous sexual offence case against a minor which falls within a period of ten years from the date of his initial conviction, a conduct which demonstrates both the seriousness of the offence and a persistent threat to the safety of the society and against vulnerable individuals. Given the seriousness of the offence, the pattern of reoffending and the vital need to protect society and preserve public confidence in the administration of justice, I proceed to sentence the accused to… 28 years”25 [55] In the context of reoffending, the key drafting choice in section 130 (1) is to refer to convictions rather than explicitly stating when the subsequent offence was . committed Two diverging theories have been presented to the Court. The first, a convictions- counting theory, considers the proviso as applicable whenever, at the sentencing date for the current offence, the record shows a prior similar conviction within the ten-year look- back period. Under this view, the statute assesses seriousness based on the existence and recency of convictions; concerns about fairness are addressed through proportionality and totality, rather than by excluding priors that result from pre-conviction conduct. [56] The second, a true-recidivist theory, interprets the proviso as targeting post-conviction persistence and thus requires the State to prove that the later offence was committed after the earlier conviction; when all offending predates the first conviction, the enhanced minimum does not apply. Both interpretations are textually available. The former gains support from systems that aggravate through prior convictions and leave room for judicial evaluation; the latter aligns with the moral premise of recidivism and the principle that penal minima should not be enlarged by implication. 24 (SCA 38 of 2010) [2011] SCCA 30 (9 December 2011). 25 Sentence Order R v TL CO21/2022,paragraph 7. [57] The Court must select the interpretation that best aligns with the language, purpose, and structure of the section. If the legislature intended to penalise persistence in crime after formal condemnation, the true-recidivist approach should take precedence; if, instead, it aimed to link punishment to the fact and recency of convictions, the convictions-counting approach should apply. [58] Many states in the USA have adopted the true-recidivist approach, in other words, punishing successive commission of offences which punish post-conviction persistence, not mere frequency of similar offences. [59] Those U. S. courts construe habitual-offender statutes to require that the index offence be committed after the earlier conviction, reflecting a policy of punishing persistence “after warning.” That approach ties enhancement to post-conviction culpability and excludes clustered offences unearthed later. The model tracks the moral rationale of recidivism: greater blame once the offender has been judicially “warned.”26 [60] The wording of the UK Sentencing Act is similar to our 130(2) in that both specify consideration of the time elapsed since the previous conviction. In that context, UK courts have implemented them as conviction-counting regimes subject to proportionality “escape valves.” In R v Offen,27 the Court of Appeal interpreted the (then)“two-strikes” automatic life sentence to allow departure for “exceptional circumstances,” but did not graft any requirement that the later offence be post-conviction conduct; the organising principle was risk and proportionality, not offence-sequence.28 26 See Justice Cavanagh’s decsion in People of the State of Michigan v. Caprese D. Gardner No. 131942, Robert Ansell v. Commonwealth of Virginia 250 S. E.2d 760 (1979) and State Of South Dakota, Plaintiff And Appellee v. John Walter Gehrke 474 N. W.2d 722 (1991). 27 [2001] 1 CR App Rep 24 (Nov 9, 2000). 28 The Court considered five conjoined appeals on section 2 of the Crime (Sentences) Act 1997, which requires courts to impose an automatic life sentence on offenders convicted of a second “serious offence” unless “exceptional circumstances” justify departure. Framing section 2 against its public-protection purpose, the Court held that “exceptional” bears its ordinary meaning - unusual or out of the ordinary - and that the touchstone for exceptionality is whether, despite two serious convictions, the offender does not present a significant continuing risk to the public. That assessment must be evidence-based, drawing on pre-sentence and medical/psychological reports, and applied case by case. On compatibility with the Human Rights Act 1998 and the Convention, the Court declined to find section 2 incompatible. It rejected the Article 7 argument, holding that the life sentence is imposed for the second offence and does not retrospectively enhance punishment for the first. It found no breach of Articles 3 or 5 because the tariff-and-parole framework renders post-tariff detention lawful and proportionate where risk persists; however, a rigid or overly narrow reading of “exceptional circumstances” could lead to arbitrary or disproportionate outcomes, which the Court sought to avoid by adopting a flexible, risk-focused approach. [61] The House of Lords in R v Drew29 adopted the same frame while addressing compatibility with the ECHR.30 The Supreme Court in R v Docherty31 confirmed Parliament’s latitude to prescribe preventative/mandatory frameworks for repeat or dangerous offenders; again, the analysis centred on text and proportionality, not on implying sequencing requirements. [62] From these UK cases, a clear principle emerges. When the provider provides a mandatory sentence for someone who is convicted of a second serious offence, the word "convicted" acts as a clear trigger. It creates a straightforward counting rule to identify who falls under the law. Concerns about the potential harshness or fairness of applying this rule in a particular case, for instance, where both crimes were committed closely together, are not addressed by re-interpreting this trigger. Instead, fairness is safeguarded through other means. Judges must apply general sentencing principles to ensure the outcome is reasonable and proportionate. More importantly, they must use specific "safety valves" that allow them to depart from the mandatory sentences if it would be unjust or there are exceptional circumstances. Applying those principles, the Court reviewed each appellant individually. Where the evidence did not show a real and continuing danger to the public, the existence of exceptional circumstances was recognised and the mandatory life sentence was set aside. Where the risk was significant, the automatic life sentence was upheld. 29 THIRTY-FIRST REPORT from the Appellate Committee 8 May 2003. 30 The appeal in Regina v Drew tested whether the “two-strikes” automatic life sentence in s.109 PCC(S)A 2000 is ECHR-compatible for a mentally disordered but criminally responsible offender, and how it interacts with MHA 1983 s.37 hospital orders. Drew had two prior s.18 GBH convictions (1995) and pleaded guilty in 2000 to a further s.18 offence, triggering s.109. Despite two psychiatrists recommending a s.37/41 order, the judge imposed the mandatory life sentence for lack of “exceptional circumstances”; Drew was transferred to hospital eight days later under MHA ss.47/49 after deteriorating in prison. The House rejected an Article 3 violation. Drew was fit to plead and culpable; mental disorder may mitigate but does not negate responsibility. The framework does not deny treatment: where life is imposed, the Secretary of State can secure hospital transfer; failures engage administrative law, not incompatibility. The brief lapse in medication did not meet the Article 3 threshold. Applying R v Offen, the House affirmed a real safety valve: no automatic life where the statutory dangerousness assumption is rebutted; where risk persists, life remains lawful with a proportionate tariff and Parole Board control post-tariff. Sentencers must recognise differences between life with parole oversight and restricted hospital orders and base “exceptional circumstances” on an evidence-grounded risk appraisal, including psychiatric material. On Convention points, Article 7 is not engaged because life punishes only the second offence; Articles 3 and 5 are satisfied by tariff setting, risk-based release and hospital transfer. The Court noted the s.45A MHA “hybrid order” as a useful (then limited) tool. Drew therefore confirms the two-strikes regime is compatible when tempered by Offen’s exceptionality and medical-transfer mechanisms, and directs courts to ask: does the offender pose a significant continuing danger to the public? 31 [2016] UKSC 62. [63] The fundamental purpose of this two-strikes law is public protection, not automatic punishment. Therefore, when the rule is technically engaged, the judge's central duty is not to apply a mechanical formula but to conduct a careful assessment of the offender's current and future danger to society. The process requires the judge to ask: Does this individual's level of risk truly justify a mandatory statutory sentence for public safety? If the assessment shows a significant and enduring threat, then the automatic sentence with a long minimum term is the appropriate tool. However, if the risk does not reach that level, the judge is expected to use the available exceptions to impose a different sentence. In essence, the law sets a strict threshold but demands a flexible, risk-based judgment on the ultimate sentence. [64] Australian sentencing law follows the same general framework. Prior convictions may be treated as aggravating factors because they demonstrate persistence in offending and underscore the need to protect the community. The High Court in Veen v The Queen (No 2)32 articulated this principle, holding that previous convictions may properly aggravate a sentence when they assist in assessing protection and deterrence, but they must not be used to punish the offender again for past crimes. In practice, this means that a prior record may justify viewing the present offence as more serious and selecting a harsher penalty within the proportionate range - even up to the maximum in extreme cases - but cannot be used as an independent basis for imposing a sentence that exceeds what the current offence, considered on its own facts, warrants.33 32 (1988) 164 CLR 465 29 March 1988. 33 Veen had a long history of alcohol abuse and brain damage, with early violent incidents as a youth, followed by a 1975 killing that resulted in a verdict of manslaughter by diminished responsibility and, on appeal in Veen (No 1), a 12-year term. Released on licence in 1983, he killed again in strikingly similar circumstances. On the second sentence, Hunt J imposed life imprisonment, finding that Veen posed a continuing danger when at large, particularly under the combined triggers of alcohol and stress. On appeal in Veen (No 2), the High Court clarified how prior convictions may be used at sentence without violating proportionality. Prior record can properly inform whether the present offence is an aberration or part of a sustained pattern, and it can illuminate propensity, the need for deterrence, and moral culpability in context. What it cannot do is generate a fresh penalty for past crimes or push the sentence beyond what is proportionate to the gravity of the current offence. Applying that approach, the majority (Mason CJ, Brennan, Dawson and Toohey JJ) treated Veen’s prior manslaughter and earlier serious wounding as legitimately probative of ongoing dangerousness; coupled with the extreme violence of the fresh killing, the repetition located the new offence within the worst category of manslaughter and warranted life imprisonment within the proportionality ceiling. In other words, the record helped place this offence at the top of the permissible range; it did not enlarge the range itself. [65] In summary, the convictions-counting theory triggers enhanced sentencing based solely on the existence and timing of prior convictions on the offender’s record at the time of sentencing for the new offence, regardless of whether the new offence was committed before or after the earlier conviction. The true recidivist theory requires that the later offence was committed after the earlier conviction, so that the enhanced penalty is applied only when the offender reoffends after having been convicted previously (showing post-conviction persistence in crime). [66] In applying these principles to the present appeal, if TL’s current conviction occurred after TL’s first conviction in 2024, the subsequent prosecution resulted in a second, similar conviction within ten years of the first. Under a convictions-based interpretation, TL qualifies within the proviso. If the proviso mandates a true mandatory minimum (“not less than 28 years”), the court must follow it once the condition - prior similar conviction within ten years - is met, subject only to any explicit statutory escape clause or constitutional proportionality (see Poonoo). If the court remains concerned about perceived unfairness where both offences pre-date the first conviction, such concerns can be addressed in reasons regarding proportionality and totality (for example, when considering concurrency, credit, or other sentence structuring). [67] However, the true recidivist approach aimed at post-conviction persistence would have required the prosecution to prove that the later offence was committed after the earlier conviction. As I have already indicated, on this basis, TL’s sentence of 28 years would not have been triggered as it is unclear which offence occurred first. [68] I am not prepared at this stage to decide which approach to take, but even if I were to adopt the convictions-indexed construction in TL’s case and the repeat-offender proviso would be triggered by the second similar conviction within ten years, I believe that proportionality should be addressed. [69] In that context, regard must be given to the integrity of the Penal Code and the gradation of offences.34 Ignoring the learned trial judge's opinion regarding the trigger for a 34 See in this respct Dworkin R A Matter of Principle (Harvard University Press 1985) 72: “The criminal justice system is not merely about convicting the guilty and ensuring the protection of the innocent from conviction. There sentence of 28 years, it cannot be overlooked that, in the present case, touching a breast resulted in a sentence of 28 years, while the other conviction by the same accused involving penetrative sex only attracted a fifteen-year sentence. Section 130 (4) (b) of the Penal Code makes it mandatory for the sentencing judge to consider whether or not the sexual assault involved penetrative sex. This was overlooked by the trial court. [70] Comparable cases of non-penetrative sexual assault indicate sentences ranging from one year35 to three years,36 to six years.37 Hence, by any measure, a sentence of twenty-eight years in these circumstances was extraordinarily excessive. [71] However, as I have observed, given the paucity of evidence, I do not see how the appellant could have been convicted, and there is no need to consider a different sentence in the light of the principles set out above. Order [72] In the circumstances, this Court makes the following orders: (a) The appeal allowed and all grounds of appeal are upheld. (b) I quash the conviction and sentence and acquit the appellant. Signed, dated and delivered at Ile du Port on 15 December 2025. is an additional and onerous responsibility to maintain the moral integrity of the criminal process.” 35 R v TDA (Criminal 39 of 2022) [2023] SCSC 249 (31 March 2023). 36 R v AB (Criminal 75 of 2021) [2023] SCSC 520 (23 June 2023). 37 The Republic v DG (CO 23 of 2021) [2023] SCSC 442 (16 June 2023.) _____________________________ Dr. M. Twomey-Woods, JA. I concur ________________ F. Robinson JA ANDRE JA (CONCURRING ADDITION) [1] I have had the benefit of reading in draft the judgment of Twomey-Woods JA and I am in full agreement with the orders she proposes. I write separately to emphasise two matters of principle which, in my respectful view, warrant express articulation: (i) the scope of this Court’s power under Rule 31(5) of the Seychelles Court of Appeal Rules, and (ii) the nature of the misdirections which, cumulatively, rendered the conviction unsafe. The Court’s Power Under Rule 31(5) to Raise Points of Law Not Addressed Below [2] Rule 31(5) empowers this Court, where the interests of justice so dictate, to consider and determine any point of law apparent on the record, notwithstanding that the point was neither advanced in the grounds of appeal nor addressed before the court below. This supervisory jurisdiction is neither exceptional nor discretionary in the abstract; it is grounded in the constitutional imperative that no person shall suffer conviction except upon a fair trial consonant with Article 19. [3] In my view, the deficiency in the indictment namely the total absence of any temporal framework for the alleged offence is precisely the type of defect that triggers Rule 31(5). It is a latent error of law that undermines the fairness of the trial, prejudices the preparation of a defence, and affects the jurisdiction of the trial court to lawfully try the accused. [4] It would therefore have been inappropriate, and indeed contrary to our constitutional duty, for this Court to remain silent merely because the issue was not raised by counsel. Appellate restraint does not require appellate abdication. [5] Courts in comparable jurisdictions have recognised a similar obligation. The Privy Council in Khalid v State [2015] UKPC 19 underscored that appellate courts must intervene sua sponte where the trial has miscarried in a manner affecting the integrity of the conviction. Likewise, in R v Taito [2003] 3 NZLR 577 (UKPC 15), the New Zealand Court of Appeal emphasised that an appeal court “cannot shut its eyes to a material error on the record which undermines the safety of the conviction,” even where unraised by counsel. The rationale in both jurisdictions is the same: the appellate court is the final constitutional safeguard against injustice. [6] For these reasons, I regard the intervention under Rule 31(5) not as an expansion of our jurisdiction, but as its faithful exercise. Misdirections and the Integrity of the Fact-Finding Process [7] I agree entirely with the reasoning of Twomey-Woods JA that the trial judge fell into several misdirections, each sufficiently serious to vitiate the conviction: (a) Erroneous reliance on intoxication The learned trial judge’s assumption that alleged intoxication of the appellant increased the likelihood of guilt was a misdirection both in fact and in law. No such evidence was accepted, and intoxication was never raised as an issue. The inference drawn was speculative and improperly prejudicial. (b) Misstatement of the evidential burden The statement that the accused had an “evidential burden to render his testimony more truthful” reflects a fundamental misunderstanding. A bare denial carries no evidential burden. It simply places the prosecution to its proof. The trial judge’s approach reversed the presumption of innocence by suggesting that the defence case required independent corroboration. (c) Failure to recognise the need for corroboration in circumstances demanding caution While corroboration is no longer a rigid requirement in sexual offence cases, the trial judge’s reasoning reveals that he failed to appreciate that the complainant’s numerous inconsistencies created an evidential landscape in which a corroboration warning was not only prudent but necessary. His omission deprived the accused of the safeguard envisaged by decisions of this Court, including Lucas v R (SCA 3/2006) [2007] SCCA 15. [8] In combination, these misdirections materially compromised the integrity of the fact- finding process. Even if the defects in the charge were absent, the conviction could not stand. Conclusion [9] In light of the incurable defect in the indictment, the misdirections at trial, and this Court’s duty under Rule 31(5), I concur fully that the conviction and sentence must be quashed and that an acquittal is the only legally permissible outcome. [10] I therefore agree with the judgment and the orders proposed. ____________________________ ANDRE JA Signed, dated, and delivered at Ile du Port on 15 December 2025. 23