Yves Banane v Rep (SCA 14 of 1984) [1985] SCCA 3 (1 April 1985)

SEYCHELLES COURTOFA. PPEAL Yv-es Ban ana vis Appellant Respondent Crill:::~naJ. Appeal No. 14 of 19e4 Nr'. J. Lucas for the appellant Niss IL ~iiI'ant for the RepubLi.c JUDGl'1ENT 'l'heappellant wa s charged before the Supreme Court \dth ,:ltaving caz-na L knowLadge of a person aga i usf the order of nat-ur-e contrary to section 151(a) of the Penal Code ontOount s 1 and 2 and \'1ith committing an act of gross indecency ''lith another ma. Le .person in pr'ivate contrary to section 154 01" the '. Penal COdcpn Count 3. The offences . committed· on a date unknown between 1st \<le.re,alleged to have been >-<.:j) Jauuary 19C53and 17thf/:;3 Hay 19h14 and the complainants under the respective counts ~were~hjc$~thr~e.e-sons Yvon, RoLand and Jean,agea 16,12 and 8 respectively. 'fhe ac c.us ed was found gUilty/CIf the three offences charged, and .senL':ueeo. to a term of 5 yet?:;.'S imprisonment on counts 1 and 2 arl:~ 3 ;;:--62}:'S Lmpr-i sonmezrt on count " all sentences to his ;jud.gmen."&that the mental state of l'irs. Banane and her behavaouz- c ouLd make her an unreliable 2. 'T:here 1.-IUS insufficient evidence adduced by the Prosecution to show that; accused had committed 3. the oi'fencesbeyond In considering case, a rE;asonable doubt. thesimilsr factevidence~in the' the Learned JudGe erred on .• the <Application of the principles to the facts of the case adduced by the prosecution. A. The Prosecution evidence ·"vIas so inconsistent that no tribunal properly direoted woul.d have convicted on it. 5. '-"he verdict \las in all the cir-c umstance s of the caseuDsafe and unsa~iBfactory. 'I'he r;l.'o\md against sentence is as f oL'Lowse .t,;;! (:aSG mam f e su Iy excessive .. i-ie sh:<11 deal ,~i-th the ar'peal against conviction on all the grounds toge~her and then ,-lith the appeal against· sen- tence. There was no app l i.ca.bi ou maue lit the trial that the, -.-count s be severed and a s epar a't e trial held on each count. Neitherw2.s there objection during the trial of evidence being given against the appellant of several other offences ai. Leged to have been committed by' him and b~haviouronhis part not necessarily connected wi.t h the . , o:ffences charged. Howev er-, it is our duty in this appeal to c ons Lo.er- each count separately with a view to consider which __p.ax<::~oi~tl1eevidence relates to it and whether ·there was sufficient evidence to support a conviction on eacn count. Befort entering upon a review 01" the evidence it is nec es sa'ry to set; out a fey; legal principles which t-ind (i) No sped_al rule 01" p:ctn(;1.p1.eoi- -admissibility applies to sexual, and par-ticularly to homo-. .sU€i58stions to the. contrary in Thompson v. R. ( 1910) 22'1, 235andllo "::' ~~",;' ·~'k·\;,<.~'; ;-~:':.:-_-J;~: v. Sims .(1946) K. B. 531, 540 should be i:gno;ed~Fb • .:--.i . (i:!.) The pz-Lnc i.pl er r or- det0rmining t.n e adl!lissibility;:C' 01" similar fact ev i.denc e in those types of offences is whe"ther sucn evidence has positive'. probative' va I ue , The; principle is correctly stated in R. v, Sims (191L6). K. B. 5:51, 539 and <;,.. , , i~ ;.40 as follows:- TL.eevidence the house into' actsthaydescribe of each man ~lfl. S that andrbh er-e committed a striking bear the.accu theacts·vIJla..1 .."",ou .. siIllilariti'~ Thati:3 a special the adl::issibil:i.t;y feature of the evidence s11f.ficient in itself to j.ustify l~e proba~ive force ~f ell the acts toge~her is one alone; much g~'8ac;('rthan might thinktt:ot three n' unless thin~ to suggest a conspiracy, to be G7e:r"Vinelwing. i'our are har-d Iy ~~ they \'-,erec onsp i.r-ing toge1:her. one man wight be telling 'li keLy to tell their evidence an untruth, the same untruth is no- If there would se~m for, lihereBS the jury (ili) S~milH:r:' fact ev'Lde nc e has pr-oba t ive value if there ., .r- if:sucn astril,ing similarity bet1rJ(:ien the L;cts as to. show an underlying unity to provideca connecting link be twe en them so that each anotne r-, renders the other more pr-obabLe , the speech or Lord Simon of Glaisdo.le 0- : , " • '~;.' KUbourn€ (1973)A. C.r;l29, 758 (and the .. inReg~-_v. jUdSment , :;.".',".. Bearman L. J. in·R.v. Scarrott (1978) ~l(22). -(iy)~--Simirar- fact ev i.denc e once admissible c or-r-obcr-atri cn , Its corroborative: a consequence of its probative (b) Cor-r-cbo r a t Lon ----~.--<~---- L tl':LH1. Judge (i) or !'lagistr:;;.te may I n. his ·.'e in.ruself a vmrning uhut it is dangerous to convict an accused person on the evidence of a w.it ne s s unless .such evidence is corroborated al-· tk;ughin law or practice the evidence of sucn a / witness does not require corroboration. 'l>rant v. H. (1965-19'76) SCAR 137, 140). g:i veri himself such a Vlarnincthere. must in cor r-cbcr-e.t i.on before a conviction based t:~c' evidence .of such ,.. Titness may (i:P Tile evidence of' an unswor-n child ~ction.)8(1) of the QJli ldcen Dpr;l B;; ';," can amount to c cr r-oooz-at Lon of evidence i'-i\Ten on out.n by another child (a ~omplainant), or by un svoz-n evidence if; corroborated as required by, tne proviso to that section. (Reg. v. Hester 1973 . r .~, '. J •• cni Ld or adu l t c an Lt se Lt: amount to corroborat:i.on of the unswor-n ev i.d.enc e. \-]e sh a Ll 1,,0\-1 c on.s.i.o er- the evidence lllldeY' the different c ount.s • ...-~t----- .. Courrt 1 'I'he 7!Oung man, Yvon Banano , aga.i n st whom the offence is;' alleg8d to have been commi.t t ad ,is a deaf mute. He could not' :'x " and did not give evidence at the trial. the c11'.'\:[';:;8 under count 1 \'IUS gl.ver: by l'jarie Banane the wif'.e:\·; .. tion in this case by virtue of section 130(2)(0) of mi na. L Proc edu r-e Code (Cap , 45). The learned Judge her evidonce but warned himself of the dangers the app0.ilant on her uncorroborated evidence. the cri~}',p ace ePt~d:r.;,;i~i· ,;it ;.;d,,-~ "~/~< al t!'Joug), she appeared to "be.neurotic in her behaviour '.. did not !;,ho,,;in any way that she <iUS ment aLl.y she fSav(, ev.i.denc e in the witness box. evi denc an th(; unswor-n evidence of h er- son Jean, a boy of 8. J",,"11 spoke of an acc or buggery c,e(;l-;eec the appellant· and Yvo~ when t.he appellant ua s pJ.a:ying the active part. Thi.s in •.. Lderrt "jas "ii't'nessed. by . Jerin 8:t home one n i.ghn , He said that at the time he wasst,c,lldirlC behind a aoor •. TheT'e Vie. S a visit by the Lear-ned ,Tuc.!.::e to the house tIle ap~)·:,llant after Counsel for' tlw def enc e had applied for SUGl~ vis i t , The purpose of Buch visit was to test the vernc:ity of Jean I s evidence. Unfortunately no memor-andumwr,s wade of vlbat took pLac e at the locus in quo. no point •._'2.5 r-ai.aed Ln tr~j.s n:cPNd. wi.t n regard to the c onuuc t of pr-oc eeu i.np;s on such visit and it must be .the Le.u-u ed Judge in u 'pos.~tion to see Hhathe said he saw as he Jean's cv:i.dence and acted upon ito occur-r-eo 0:0 a different ni[3;ilt r rom the incident wi.t ne.saed by l'iarie Ba.rane , Bo't n Lnc a.derrt s ·00,'1' u st r-i.k i ng similarity in that they occurred at heme d ur·il.1f.~ tJle yacht \ihilst the rest of t ne fv.mily wer-e sleeping. 'llhe appe Ll.arrt ':Jasplaying the .ac.t i.ve }Hrt and Yvon the passive .... r role • which VIe have outlined above, r-eLat i.ng to similar fact dence ,t·~letestill1ony of Narie Banan.e anuthat the t wo distinct :i.ncidents were admissible in the chai,,-;e under- coun crq , The evidenceo! Marie COI'!.'ObOT'lted tll<itof Jean .anc .i n turn, his rated tb'::,oi; of l'Jarie Bariane , The medical evidence of Dr. the app eLl.arrt , HOVlever, as it with p'recLsi.on \'1hen the t\<!o acts of bUggery on the T>~rson of Yvon testified to by r',,)rie Bariane actually took place, the evidence G.t' tilll10c::cor does t.r-ad.i ct; OJ' nullify their testimony. leif: ;,~'0 satisfied t nat there H[;;. S evidence upon \,lhich lant gu·Uty of the offence charged under Count 1. fore up;-,oJ.d ·the appe Ldarrt ls c ouv i.ctLon umde r- that Count 2 Under tll(lt count tile appellant is charged Hol'.iud. gave swor-n evidence to t.he eff ectthat there two .i.nci__dents of bUgE:ery by his fHther OIl his per-sonv-, is 8.11e,·;ed.e by him to have voccur-r-e d a t vhorae during the onvha s rat her' s bed and the ocher, !l'herc were ll() vlitn(H:sos to support a Ll.e g at. Lon a , On the other hond thti defence call~d the c up i.er-c of the h ouz e in \'/hich the ;i8COuCl is suppos2d to h~ve takenplac~ to ev i.denc e , dance is ~o the effect that the appellant never comes to their hOU~;E; and ~ha.t th. E:re is always scn.oone ar-ound at the house or ~D the yard. The'b.l·nad JudEe d id .,ot admi t tile similar fact evidence given oy ',:'x·ie Ba.nane or Jean as to the other acts of baggery of the 8.1-'"eJ_lant: on tLe person 01' Yvon 'co support the charge on Count 2. He did not give any reason for excluding. SUCh _.pvidence. This Nas \'iithinthe learned. Judge's discretion and He c annot say that it Has.\'frongly exercised in the cir-- cums tanc e s of this case. In tile end victed t1>" appellant on the, uncorroborated afterhnvillbl·;a.rned himseJ.f of'. the dangers of doingso~ .. The 19aI'lled.:rudt';e failed ~to deal Hi th the d eric e whi ch tended to negative house. He should also haVe considered the evidence in some detail as such evidencewa8 not satisfactory in In L,<; ci.r-c umst anc e s \1eare of opi.rri on that the learned Judge \·lc'." l'i. L'Or'gtQ heveconvicted the D.pr;e.1Jant onconnt on t!1f~ --.--o·:::orroborateQ evidence of Boland. i;le therefore Courrt ----' -') The c~'-idence all count -3 ccrisd s t s onl~f of the unsv/or.n· evidence of Jean to the effect tnat one night the appellant his fatl:er, took him to theappel1.ant I s bed and removed his c10';;,e8•. p. Laced:i.r in the appellant's anus. There, was no direct evidence to c oxrocor-at e the of Jeac relating to t~at ~nci~ent. "l'1vric Bariane I s evidence only c or-r-obor-at e s Jean's d erice on tile of (,:"rie Eunarre ' >1 corroborates t.hc i-e is to. count 3.11 in Courrt 1 'Out J-ean'5 t.heref'o re corroboration of his «videuce .rac t s alleged evidence t ha t ,evidence and l'la,ri'eBanau-e;sould,'PnlY corroborate "." " ' tile facts allegedinqount Jean's againstililTIself\<las .~- ' - . '. . uncorroborated , . -: appellam; may be. treated -as a fir~t cne -orr enc e under ..ccunt, 1 is Grave ef1.'cct; or .corrupting the n.cr-a. Ls of a weereol" opinion tUE,t, 5,u thecircuIDstances, five Yea2S Lmpr-Laonmenu is lIlftnlfestly excessive a 1 and-su"t~:jt;itute \':e allO,i the ajroeaI. against therei'or a sentence of to sentence DelivG. I'c( on the day 01' April 1935. .• *,"'.-. """-.~•.•• ~ .-.•.••••.•• ~ ••.• A~:r-'lustafa •.•••.• -•••••••••.• "' .•.•..•. " •• .:..<:a. Sir Eric LalH AA ~auzier