Criminal law

Republic v SWM (CO 101 of 2021) [2023] SCSC 128 (17 February 2023);

Fabianna Savy — Fri, 05 May 2023 06:42:17 +0000

Republic v SWM (CO 101 of 2021) [2023] SCSC 128 (17 February 2023);

Flynote

Fabianna Savy Fri, 05/05/2023 - 06:42

Search summary

Prosecution for sexual assault/ Section 130(1) read with Section 130(2) (d) of the Penal Code/ [REDACTED] old at the time of the sexual assault/ In law victim cannot consent to sexual intercourse/ Section 130(3) (b) of the Penal Code.

Headnote and holding

FINAL ORDER

In the final analysis, from a holistic examination of the totality of the evidence adduced before this court in this case, I hold the view that, the prosecution has discharged its burden of proof with regard to all the elements or ingredients of the offence of sexual assault with which the accused has been charged, and has done so at the standard required in a criminal case as the instant one, that is, beyond reasonable doubt.

For this reason, I find the accused S.W.M of [REDACTED] Seychelles guilty of one count of sexual assault contrary to Section 130 (1) read with Section 130 (2)(d) of the Penal Code and punisable under Section 130 (1) of same Act. I accordingly convict him for one count of sexual assault

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Adeline, J

INTRODUCTION

As I ponder about the facts of this case and put my brain and thoughts into gear and focus entirely on the evidence on record as I write this judgment, I have come to realise that, I need to be guided by the legal provisions of Section 143 of the Criminal Procedure Code, (“the CPC”) in order not to fall short of the legal requirements prescribed by law. It is therefore appropriate, from the inception, to spell out the legal provisions of Section 143 (1) and (2) as it is couched in our statute book, the CPC. Section 143 reads;

“Every judgment shall except as otherwise expressly provided by this code, be written by the presiding officer of the court in the language of the court, and shall contain the point or points for determination the decision thereon, and the reasons for the decision, and shall be dated signed by the presiding officer in open court at the time of pronouncing it”

Section 143 (2) goes further as to say;

“(2) In the case of a conviction, the judgment shall specify the offence of which, and the section of the Penal Code or other law underwhich the accused person is convicted, and punishment to which he is sentenced.”

In the instant case, as per the statement of the offence, SWM, (“the accused”), is indicted with one count of a felony featuring in the formal charge sheet filed in court on the 22^nd October 2021, that reads as follows:

“Sexual assault contrary to Section 130(1) read with Section 130 (2) (d) of the Penal Code and punishable under Section 130(1) as read with Section 130(4) (a) & (b) of the same (Act 5 of 2012)”

The particulars of the offence that also features on the same charge sheet, reads;

“SWM of [REDACTED], sexually assaulted one [REDACTED], by penetrating the body orifice, namely the vagina of the said [REDACTED] with his penis for sexual purpose”.

In the court’s proceeding of the 4^th November 2021, the accused pleaded not guilty to one count of sexual assault, and accordingly, a not guilty plea was entered on the court’s record against him. The case proceeded to trial and the prosecution called six witnesses. The accused opted to make a statement from the dock and called three defence witnesses to give evidence in his defence.

SYNOPSIS OF THE FACTS

[REDACTED], PW1, the complainant/victim and a vulnerable witness for the purposes of Section 11B (1) and 11B (2) of the Evidence Act, was only [REDACTED], when on her way to her [REDACTED] where her mum works, a black serion car driven by a man she identified as the accused, stopped close by her and began to persuade her to give him her telephone number in return for money. At first she hesitated, but as the man threatened her she conceded and accepted from the man SCR 300.

As the man talked to PW1, he told her that he sees her every day going up and down with her mum, sometimes in her school uniform and sometimes in her casual clothes. Threatened by the man with a pointed object placed at her back for her to get inside the car, PW1 did get inside the car and sat on the front passenger seat. The man driver drove the car towards [REDACTED] road. At [REDACTED], the man told PW1, to switch seat and to sit in the back passenger seat to avoid being noticed given that the car rear windows were tinted, which she did.

The man driver then drove the car along a farm and headed to a store on the farm. As he approached the store, he stopped the car, get out of it and walked a short distance away to speak to a man who was close by. PW1 understood him as having told the man to go to the Cable & Wireless post. The man driver then returned to the car and asked PW1 to get out of the car and walk to the store. Seeing some dogs close by, PW1 got out of the car, ran to the store and got inside.

Inside the store, PW1 saw a bed and some groceries on a shelf close to the bed. The man driver soon joined her inside the store. Once inside the store, the man removed his brief then placed a condom over his penis, and he asked PW1 to remove her panty and lie on the bed which PW1 did. The man driver then moved on the top of PW1’s body, inserted his penis inside her vagina and had sexual intercourse with her. After his first ejaculation into the condom, the man driver removed the condom and had sexual intercourse with PW1 for the second time. This time around, he did not wear a condom, and therefore, he ejaculated sperm inside PW1’s vagina. After the 2^nd round of sexual intercourse, the accused took a towel that was close by, wiped his penis and then threw the same at PW1 asking her to wipe her vagina with it.

Thereafter, the man driver put back his brief, whereas, PW1 put back her panty. Leaving the store, they both walked towards the car, got inside as the man driver drove away towards the [REDACTED] road headed to [REDACTED]. The car stopped close to [REDACTED] Supermarket at [REDACTED]. As PW1 got out of the car the man told her to send him a missedcall. Once she was out of the car, PW1 saw her mum [REDACTED], PW2, and her sister [REDACTED], PW4, in another car taking them to her [REDACTED] house. The driver of that car gave her a lift as he drove them all to the [REDACTED] house. That was the end of the 1^st episode.

The 2^nd episode happened the following day, the 20^th October 2021. PW1 had gone to the shop to buy some groceries for her [REDACTED]. There, she met her aunt [REDACTED], PW3, who was on her way to her [REDACTED]. PW3 asked PW1 of her whereabouts the previous day the 19^th October 2021 because her mum was looking for her. PW1 recounted the incident that happened to her. Once they both arrived at her [REDACTED] house, PW1 shared her experience of the previous day with her sister [REDACTED] in the presence of their mum, PW2, who was not too far away from them. As she over heard what they were talking about, PW1’s mother, PW2, started to scold her.

At one point, PW1 said that, she does have the phone number of the man driver who sexually assaulted her, and then she tried to call him. The man driver, who up to that point they did not know his true and correct name and identity, did not answer PW1’s phone call. PW1 gave her aunt, [REDACTED], PW3, the man’s phone number [REDACTED]. PW3 then phoned the number and the man driver answered. In their telephone conversation, which could be heard from the phone’s speaker the man driver told PW3 that his name is [REDACTED]. He pleaded to PW3 not to report the incident to the police and offered money in return.

After the conversation ended, PW1’s mum, accompanied by her sister, PW3 (PW1’s aunt) and her daughter, PW4, (PW1’s sister) took PW1 to the [REDACTED] police station to lodge a complaint about the incident. At the police station, PW1 was interviewed about the incident and then taken to the hospital on the same day to be examined by a doctor. At the hospital, PW1 was examined by Dr Maxwell Focktave, a licensed medical officer and gynaecologist who works at the Seychelles Hospital. After he completed his examination of PW1 he wrote a report, exhibit P2. In his report, interalia, Dr Focktave states, that he found no fresh lesion on or around the external genital area or around the anus of PW1. He reported that the hymen was not intact which in his opinion meant that, PW1’s hymen had been tempered with, possibly, because of sexual intercourse. In his testimony, Dr Focktave explained that, in normal circumstances, if the hymen is intact at the time of sexual intercourse, lesion would be found, but if someone is sexually active or had sex in the past, he will not necessariy see any lesion.

The third episode happened on the 21^st October 2021. While PW1’s mother, PW2, was at her house, she received a phone call from her daughter [REDACTED], PW4, who informed her that, the man who did those things to her sister, and daughter, PW1, will be coming to their house at around 5 pm to be accompanied by a man she knows quite well as [REDACTED]. Later on that day, at a time when PW1 too was at home, three men arrived at their family home. [REDACTED] who was amongst the three men introduced the man to PW1’s mum stating the following; “this is the person who had called and said he wants to see you”. PW2 then asked the man what happened. His answer was, “I am the one who did this to your daughter. Please forgive me. I accept that I have done this to your daughter, please don’t take me to the police. I will pay you some money”.

Whilst pleading for forgiveness or mercy, PW2’s daughter, [REDACTED], PW4, secretly called her sister [REDACTED] and asked her to call the police because the man who had sexually assaulted [REDACTED], PW1, was at their house. [REDACTED] did call the polie that responded to the call as they headed to the family home. As the accused heard the wail of the police siren approaching the family home, he ran away. He only came back after he was asked to come back. The police then arrested him.

SUBMISSIONS

SUBMISSION BY COUNSEL FOR THE REPUBLIC

Learned counsel for the Republic, did make a closing written submission of the prosecutions’s case against the accused. She begins by rehearsing the salient aspects of the evidence laid before this court by the prosecution witnesses. Having presented a synopsis of the facts and circumstances of this case in the preceding paragraphs based on the evidence on record. I find no good reason for a repetition. Learned counsel then proceeds to submit on the relevant law to be applied to the facts and circumstances of this case for establishing the accused guilt. She then proceeds to submit on the relevant law of sexual assault under Section 130 (2) (d) and Section 130 (3) (b) of the Penal Code, as amended, as well as the application of the common law of corroboration in cases of involving sexual offences.

Learned counsel correctly submits that, the law as it presently stands in this country, makes corroboration warning discretionary, in the sense that, it is up to the presiding judge to decide, whether, in the circumstances, a corroboration warning is necessary before convicting an accused of a sexual offence solely on the evidence of the complaint/victim. Learned counsel also submits on the law of identification amid the defence’s stance that, the wrong person has been on trial for an offence committed by another person, namely, one [REDACTED]. To illustrate the law of identification, learned counsel relies on the case of Turn bull and others [1976] 3 ALLER 549, putting greater emphasis on the guidelines spelt out in the case.

I have to say, candidly, that I have doubts about the application of the Turnbull (supra) guidelines to the facts and circumstances of this case, and I wonder whether they have any relevance at all in this case. Identification evidence in a criminal trial is used to identify the person who is alleged to have committed the alleged offence. It is to be noted, that there has been no strong challenge of the corroborative visual identification of the accused in this case. All that the defence has sought to do is simply to rely on the fact that some of the prosecution witnesses, including the complainant/victim, had given the name of [REDACTED] to the police as the person suspected of having commited the offence, and that, therefore, the wrong person was being tried for an offence which he never committed. The defence deliberately and conveniently omitted to add that, the name of [REDACTED] was a false name given to the witnesses, including the complainant/victim, by the accused himself, in order to conceal his correct name and his true identity.

Even if the court is to warn itself and exercise caution before convicting the accused in reliance on the correctness of the indentification evidence, the identification evidence against the accused is so strong that it renders the accused’s defence feeble. The process of identification started the moment the complainant/victim, PW1, got into the black serion throughout the journey up to the actual sexual intercourse in the store on the farm, and after and until she was dropped off by the accused. It must also be noted, that the accused is a person previously known to the complainant/victim. This fact transpired in evidence, PW1 having seen him sitting at the bus stop playing loud music in his car.

I do, however, take note of learned counsel for the Republic’s point, as she correctly submits, that given that it is the name of the accused that is in contention, that should not be confused with the identification of the accused by way of evidence which this court finds has been not only credible and reliable, but also, overwhelming, having been guided by the passage in S V Mehlape 1963 (2) SA 29 (A), cited and quoted by learned counsel for the prosecution.

SUBMISSION OF COUNSEL FOR THE ACCUSED

In the 1^st paragraph of her written submission dated 8^th November 2022, learned counsel has this to say;

“The Republic in the present case, not being satisfied with charging [REDACTED] instead of [REDACTED] for the crime allegly committed has now come up with a new person and I quote from the Republic’s written submission under paragraph 1 “the accused namely, [REDACTED] stands charge with following offence as per the charge dated 22^nd October 2021”

It is obviously clear, from the 1^st paragraph of her written submission, in spite having been written in a sarcastic manner, that it is learned counsel’s contention, albeit disingenously, that, the wrong person has been charged and prosecuted for the alleged offence of sexual assault in this case. This, in fact, is the crux of the accused’s defence as he professes his innocence. In essence, one of the issues that is called for a determination, and which will be addressed later in this judgment, is as regards to the identity of the assailant or the perpetrator of the crime allegedly committed. From learned counsel’s prospective, one [REDACTED] is the person who should have been charged and prosecuted in this case, not S. M, thus a case of mistaken identity. As per learned counsel’s submission, this is borne out of the police investigation diary after the victim’s mother, PW2, and the victim herself, had told the police that it was [REDACTED] who sexually assaulted her.

In a significant part of her submission, learned counsel discusses the prosecution’s burden and standard of proof of the charge levelled against the accused, with emphasis on mensrea and the actus reus of the offence, submiting that, the prosecution must bring evidence to prove beyond reasonalble doubt that;

“(i) there was penile penetration of the vagina, and

(ii) it was the accused that penetrated her vagina for a sexual purpose”

At paragraph 7 of her submission, learned counsel takes issue over the fact that, in her testimony on the 19^th October 2021, the complainant/victim had said, amongst otherthings, that she “saw some fluid coming out of her vagina”, when within 24 hours after the alleged incident, Dr Focktave who examined the complainant/victim found “no abnormal discharge”. This learned counsel submits, “is enough to cast serious doubt on the alleged sexual assault. I have read paragraph 8 of learned counsel’s submission and notes her emphasis on the words “if really happened”.

Clearly, this is a deliberate misconstruction of Dr Focktave’s testimony because it was never his testimony, that the alleged incident did not really happen. It is the submission of learned counsel that, based on the doctor’s testimony, coupled with the fact that there was no forensic analysis result of the swabs taken from the complainant/victim’s vagina, that the prosecution has not adduced evidence to prove, beyond reasonable doubt, that there was penetration of the vagina of the alleged victim for a sexual purpose, and therefore, the accused should be acquitted.

At this point, I am not inclined to venture into what would simply be a university style academic discussion. Suffice to say, that the proposition made by learned counsel is unconvincing and misleading because there is a plethora of cases where a conviction has been secured in sexual assault cases without forensic evidence, but on other evidence as well as evidence of identity linking the alleged assailant with the crime. In fact, it is borne out of the evidence, that there are other substantive evidence linking the accused with the alleged crime that would be discussed later in this judgment.

In her submission, learned counsel also raises concern about the police failure to ascertain ownership of the vehicle which allegedly picked up the complainant/victim as per her testimony, as a weakness in the prosecution’s case. In my considered opinion, the failure to ascertain ownership of the vehicle, being the black serion, does not in any way makes the prosecution’s case against the accused weaker because even if that had been done it would not have been relevant, and therefore, not considered to be evidence to prove or disprove the fact in issue, which is, did the accused sexually assaulted the complainant/victim.

In her review of the prosecution witnesses’ testimony, learned counsel described the evidence of [REDACTED], (PW2) and that of the alleged complainant/victim, PW1, as unreliable, and in the case of [REDACTED] as well, also fraught of hearsay evidence. Learned counsel referred the court to the fact that the police had recorded in the investigation diary that [REDACTED] had told the police that her daughter told her that she was sexually assaulted by [REDACTED]. She quoted [REDACTED], PW2, as having said the follwing;

“When my sister [REDACTED]spoke to him, he informed my sister that his name is [REDACTED]”

Learned counsel refers the court to the testimony of [REDACTED] (PW3) to further emphasise her contention that, the alleged complainant/victim was sexually assaulted by [REDACTED], whilst refering to [REDACTED]’s testimony, she having said the following;

“She called the number given to [REDACTED] by the man who allegedly sexually assaulted her, and the man told her that he is [REDACTED]… and the man admitted that he had slept with her, please don’t go to the police. I will come and give you a sum of money”

At paragraph 20 of her submission, learned counsel points to the testimony of prosecution witness police constable [REDACTED] (PW5) whom she said told the court that “a report was made by [REDACTED], (PW2), in which she told the police that the person who commited the offence is [REDACTED]. Learned counsel also submits, that when constable [REDACTED]’s “own statement was put to him and asked about the alias of the person accused of this crime, he said that he is S. M also knowns as [REDACTED]”. The point which learned counsel seeks to make, is that the name “[REDACTED]” that came up in the evidence is the nickname of [REDACTED], not the accused, S.M, as she sought to rely on the evidence of defence witness, [REDACTED].

In her submission, learned counsel stated, that [REDACTED], DW1, did say in his testimony that, he “accompanied the accused to the house of the family and when he was at the hosue of the family he was arrested”. Learned counsel emphasised that, when under cross examination [REDACTED] was asked whether the accused confessed to the family that he had sexually assaulted the child his answer was “no, he did not”.

Learned counsel refers the court to the testimony of Sgt [REDACTED], DW3, who testified for the defence. As per her submission, Sgt [REDACTED] who recorded the statement of [REDACTED], told the court that Ms [REDACTED] did say that her daughter was sexually assaulted by [REDACTED], and gave factual account of how it happened, and that she, Sgt [REDACTED], wrote the name of [REDACTED] because she told her [REDACTED]. Learned counsel submits, that as per Sgt [REDACTED]’s testimony, [REDACTED] was contacted by another officer who told her that he was fixing a boat at Belombre.

Learned counsel also refers the court to the exchanges of questions and answers between the prosecution and Sgt [REDACTED] in cross examination. Learned counsel quotes one of the questions and asnwers that reads as follows;

Question: Did [REDACTED] tell you how she got the name [REDACTED]?

Answer: She said it was the man that gave her the name.

In essence, to exenorate the accused’s culpability, in her submission, learned counsel has capitalised on the fact [REDACTED], (PW2), the mother of the alleged victim, and the complainant/victim herself, PW1, had told the police that the person who committed the sexual assault is [REDACTED] whose nickname is “[REDACTED]”, not S.M, the accused, whose nickname is “[REDACTED]”. What the evidence shows, which learned counsel has failed to state in her submission, is that, it is S.M, the accused, who gave both, the complainant/victim and her mother [REDACTED] that false name, [REDACTED] to conceal his true and correct identity.

THE LAW

In the instant case, the accused has been charged and tried for the offence of sexual assault, an offence prescribed under Section 130(1) read with Section 130 (2) (d) of the Penal Code. This statutory enactment reads as follows;

“130 (1) Any person who sexually assault another person is guilty of an offence and is liable to imprisonment to 20 years.

(2) for the purposes of this section, sexual assault includes;

(a) …

(b) …

(c) …

(d) the penetration of a body orifice of another person”.

In a criminal case, as the instant one, to secure a conviction for the charge of sexual assault, the prosecution carries the burden of proof (with the exception of affirmative defences which the Defendant must prove). That is to say, the prosecution had to present sufficient evidence to prove each element of the crime or offence, alleged to have been committed by the accused beyond reasonable doubt, failing short of the standard of proof, the accused must be acquitted.

The English case of Woolmington vs DPP 1935, AC, is a landmark House of Lords case, where the presumption of innocence was reconsolidated for application across the common wealth countries. The law lords in this case stated, that it is the duty of the prosecution to prove the accused’s guilt. If at the end of, and on the whole of the case, there is a reasonable doubt, the alleged offender must be acquitted. The Lords went on as to say, that, proof beyond reasonable doubt generally means that, the court must subject the entire evidence to such scrutiny as to be satisfied, beyond reasonble doubt, that all the important elements placed on the prosecutions by the substantive law are proved. If not satisfied, the accused must be acquitted.

In the English case of Miller v Minister of Pension [1947] 2 ALLER 372, 373, Lord Denning had this to say about proof beyond reasonable doubt;

“Proof beyond reasonable doubt does not mean proof beyond shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with a sentence of course it is possible but not in the least probable, then the case is proved beyond reasonable doubt but nothing short of that will suffice.”

Based on the offence of which the accused has been charged, that is to say, sexual assault contrary to Section 130 (2) (d) of the Penal Code, the prosecution had to prove the following elements or ingredients of the offence beyond reasonable doubt, namely;

That the complainant/victim experienced penetrative sexual intercourse
That the accused participated in the sexual intercourse, and
That the complainant/victim could not have consented to the sexual intercourse being below 15 years old.

Section 130 (3) (b) of the Penal Code is very pertinent to the issue of consent in this case and is therefore worthy of illustration. It reads;

“ 130 (3) (b) A person does not consent to an act which if done without consent constitutes an assault under this section if;

(b) the person is below the age of fifteen years,

(c) …”

DISCUSSION AND ANALYSIS OF THE EVIDENCE IN THE CONTEXT OF THE LAW

On account of the evidence laid before this court at trial, the first issue to be determined, is whether the prosecution did prove, beyond reasonable doubt, that the accused experienced penetrative sexual intercourse on the [REDACTED] in a store on a farm at [REDACTED]. The relevant evidence that bears proof of this allegation is the evidence of the complainant/victim, PW1 herself, and the evidence of Dr Focktave, crucially, which although not conclusive, the latter’s finding that the complainant/victim, PW1’s hymen was not intact suggesting that her hymen had been tampered with through sexual intercourse. Had Dr Focktave found that PW1’s hymen was still intact, it would have follow that, PW1 did not have sexual intercourse on the [REDACTED] as she claims or on any other day before, rendering the charge against the accused unsustainable.

As per PW1’s testimony, the actual sexual intercourse took place inside the store on a farm. Once she and the accused was inside the store, the accused removed his brief, place a condom over his penis, and after she, PW1, had removed her panty, she lied facing up on a bed that was inside the store. The accused then moved on the top of her body and inserted his erected penis inside her vagina thus had sexual intercourse with her. The accused did the same act twice. The 2^nd time he did it he did not place a condom over his penis. He ejaculated sperm inside PW1’s vagina. It must be remembered that, PW1 gave her evidence not so long after the incident when her memory could not be said to have faded away with the passing of time.

Interestingly, and perhaps without giving thought to the possible adverse effect vis a vis the accused defence, Mr [REDACTED], DW1, did confirm that the accused does own a farm at [REDACTED] and that he visits his farm everyday. He also confirmed, that he was present at the family home when the accused visited [REDACTED], PW1’s family home, although, he did not say for what reason he and the accused had to go to [REDACTED] PW1’s family home in the first place. When asked, whether the accused did confess to having sexually assaulted [REDACTED], PW1, and offered the family money to dissuade them from reporting the incident to the police, DW1 said that he is not aware of such conversation, but if it did happen not in his presence. Therefore, the significance of DW1’s testimony is that it at least corroborated the evidence of PW1, PW2 and PW4 that the accused did come at the family home of AM, PW1.

In considering PW1’s testimony one would need to consider how credible was her testimony. I did observe carefully the demeanour of PW1 as she deponed under oath, after having been adjudgedof being capable of giving intelligible evidence. She recounted the events of the 19^th October 2021, even before she got inside the balck serion car and driven to a store on a farm at [REDACTED], where the accused had sexual intercourse with her. Considering the veracity of her evidence, I found that PW1 was consistent, cogent, coherent and a truthful witness whose evidence is worthy of belief. In fact, in her written submission, learned counsel for the accused, did not make any significant comment or observation about PW1’s testimony beside her remark that she was unreliable, although in cross-examination, she was challenged on few aspects of her testimony which she dealt with with great confidence, while she stood her ground. Her responses to question put to her in cross-examination were remarkably candid. The vexed question that therefore follows, is, whether a conviction is possible in a sexual assault case as the instant one, without evidence corroborating the evidence of the complainant/victim who in this case is PW1.

It is now settled law in this country and indeed in other common wealth countries, that, the English law of corroboration that requires the judge in a criminal trial of an accused for a sexual offence to give a corroboration warning has now been made discretionary. This new legal position has been incorporated into the law of this country by way of case law authorities, notably, Raymond Lucas v R (SCA 17/2009). In Raymond Lucas (Supra), interalia, the court had this to say at paragraph 28;

“28. We therefore hold that it is not obligatory on the courts to give a corroboration warning in cases involviing sexual assault offences, and we leave it at the discretion of the judges to look for corroboration when there is an evidential basis for it.”

Therefore, on account of the evidence of [REDACTED] solely, I am satisfied, that the prosecution has proved, beyond reasonable doubt, that on the 19^th October 2021, a man penetrated the vagina of PW1 with his penis for a sexual purpose. That is not to say, that there is no corroborative evidence at all in this case. To the contrary, many aspects of the prosecution’s evidence are corroborated to a material exent by the evidence of other prosecution witnesses as well as the defence witnesses in some respect.

The 2^nd issue to be determined is, did the accused participated in the sexual intercourse amid learned counsel’s contention that, it was not the accused S.W.M who did it, but rather, one [REDACTED] known as [REDACTED]. Learned counsel’s contention that, the person who sexually assaulted [REDACTED], PW1, is [REDACTED] rest on the fact that PW1, her mum, PW2, and her aunt, PW3, had told the police that it was [REDACTED] who committed the sexual assault and that is featured in the police investigation diary, D1.

In their testimony PW1, PW2 and PW3 explained, that it was in the telephone conversation between the accused and PW1’s aunt, PW3, that the former told the latter that his name was [REDACTED]. In other words, it was in order to conceal his true identity that, the accused, whose real name is S.W.M told PW3 that his name was [REDACTED] when in actual fact, his true and correct name name is S.W.M. If a true perpetrator of a crime, when arrested by the police on suspicion of having committed a crime gives a false name to the police, if at all that person exists, doesn’t make him liable for the crime and exonerate the perpetrator. In her review of the evidence as featured in her written submission, learned counsel deliberately and conveniently ignores some crucial aspects of the evidence that points to the accused as the culprit in this case, understandably so, because they weaken the accused’s defence.

The crucial aspects of PW1’s testimony which I find to be credible and truthful, and which create no doubt about the identity of PW1’s assailant is the fact that PW1 identified the accused S.M even before she got into the car as he stopped the car close to her and spoke to her. PW1 received from him SCR 300. When she was inside the car, PW1 sat in the front passenger seat close to the accused driver S.M until she switched seat. They walked together to the store on the farm where the incident took place. All these events took place in broad day light. PW1 also identified the accused at the family home after he had turned up there to seek for mercy. PW1 also made a dock identification of the accused as the very same person who was the driver of the black serion, who drove her to [REDACTED] on a farm and had sexual intercourse with her in a store. Although dock identification in itself may lack credence, in the instant case, the same is corroborated by other visual identification evidence. Thus, in her evidence, PW1 was emphatic that it was the accused who had sexual intercourse with her on the 19^th October 2021. It must be remembered that PW1 gave her evidence at a time when her memory could not be said to have faded with the passage of time.

PW1’s testimony about her making no mistake as to the identity of her assailant, was corroborated by the evidence of her mum, PW2, who in her evidence stated that, the accused whom she identified in the dock is the same person who came to their house on the 21^st October 2021 to plead for forgiveness and to offer them money in return in order to dissuade them from reporting the incident to the police, and who on that particular afternoon, PW1 identified him as the person who sexually assaulted her on the 19^th October 2021. The evidence of PW1’s sister, [REDACTED], PW4, also corroborates the evidence of PW1 and PW2, in so far that it confirms that, the accused did come at their family home to seek for forgiveness, and that it was the same person she identified in the dock.

Furthermore, the conduct of the accused of coming to the family home to talk to the family about an incident which he is not culpable, and attempting to run away from arrest when the police arrived at the family home is not compatible to that of an innocent person. Therefore, all in all, the evidence of the prosecution witnesses against the accused did place him at the scene and distroyed his defence that it isn’t him who had sexual intercourse with PW1 in a store at [REDACTED] on the 19^th October 2021, but [REDACTED] instead.

Thus, amid the abundant of evidence against the accused, the argument that the alleged sexual assault of PW1, [REDACTED], was committed by [REDACTED] does not hold water and is simply a desperate move by the accused who is overwhelmed with guilt. I am therefore, satisfied, that the prosecution has proved, beyond reasonable doubt, that the accused did participate in the sexual intercourse when on the 19^th October 2021, PW1 experienced penetrative sexual intercourse perpetrated by the accused by inserting his penis inside PW1’s vagina.

It is now necessary to establish, whether on account of the evidence laid before this court, the prosecution has proved that at the time of the sexual assault, PW1, the complainant/victim, was below the age of 15 years. In cross-examination, PW1, in answer to a question put to her as to whether if one looks at her would think that she is below 16 – 17 years, stated that she is a 14 year old girl. In her testimony, PW1’s mother, PW2, stated that, she is the mother of five children and that [REDACTED], PW1, is one of her children whom she said is now a 15 year old (on the date she testified on the 21^st March 2022). She told the court that, [REDACTED] PW1, was born on the 12^th March 2007, and tendered in evidence as exhibit her Birth Certificate pertaining to the Civil Status Register No 258 of 2007.c, P1. I am therefore satisfied, that, on the date of the incident of sexual assault on the 19^th October 2021, [REDACTED], PW1, who is the complainant/victim in this case was below the age of 15 years old.

In the midst of an abundant of evidence against the accused in this case, I am perplexed by the serious and infelicitous criticism of the police at the hands of the accused’s counsel for not having charged [REDACTED] with the offence of sexual assault, but chose to charge the accused instead. I say so, because there is not a single shred of evidence that [REDACTED] is the one who committed the alleged offence of sexual assault. Clearly, therefore, learned counsel for the accused has ignored the evidence because it doesn’t fit her narrative in her quest to exculpate the accused. It is therefore not surprising that, she cannot accept the truth of what happened to [REDACTED], PW1 on the 19^th October 2021, and that the accused is the culprit who committed the sexual assault against her.

CONCLUSION

In the final analysis, from a holistic examination of the totality of the evidence adduced before this court in this case, I hold the view that, the prosecution has discharged its burden of proof with regard to all the elements or ingredients of the offence of sexual assault with which the accused has been charged, and has done so at the standard required in a criminal case as the instant one, that is, beyond reasonable doubt.

For this reason, I find the accused S.W.M of [REDACTED], Mahe, Seychelles guilty of one count of sexual assault contrary to Section 130(1) read with Section 130(2)(d) of the Penal Code and punisable under Section 130(1) of same Act. I accordingly convict him for one count of sexual assault.

Signed, dated and delivered at Ile du Port 17 February 2023.

____________

B Adeline, J

Adeline, J

INTRODUCTION

As I ponder about the facts of this case and put my brain and thoughts into gear and focus entirely on the evidence on record as I write this judgment, I have come to realise that, I need to be guided by the legal provisions of Section 143 of the Criminal Procedure Code, (“the CPC”) in order not to fall short of the legal requirements prescribed by law. It is therefore appropriate, from the inception, to spell out the legal provisions of Section 143 (1) and (2) as it is couched in our statute book, the CPC. Section 143 reads;

Section 143 (2) goes further as to say;

In the instant case, as per the statement of the offence, SWM, (“the accused”), is indicted with one count of a felony featuring in the formal charge sheet filed in court on the 22^nd October 2021, that reads as follows:

“Sexual assault contrary to Section 130(1) read with Section 130 (2) (d) of the Penal Code and punishable under Section 130(1) as read with Section 130(4) (a) & (b) of the same (Act 5 of 2012)”

The particulars of the offence that also features on the same charge sheet, reads;

“SWM of [REDACTED], sexually assaulted one [REDACTED], by penetrating the body orifice, namely the vagina of the said [REDACTED] with his penis for sexual purpose”.

In the court’s proceeding of the 4^th November 2021, the accused pleaded not guilty to one count of sexual assault, and accordingly, a not guilty plea was entered on the court’s record against him. The case proceeded to trial and the prosecution called six witnesses. The accused opted to make a statement from the dock and called three defence witnesses to give evidence in his defence.

SYNOPSIS OF THE FACTS

[REDACTED], PW1, the complainant/victim and a vulnerable witness for the purposes of Section 11B (1) and 11B (2) of the Evidence Act, was only [REDACTED], when on her way to her [REDACTED] where her mum works, a black serion car driven by a man she identified as the accused, stopped close by her and began to persuade her to give him her telephone number in return for money. At first she hesitated, but as the man threatened her she conceded and accepted from the man SCR 300.

As the man talked to PW1, he told her that he sees her every day going up and down with her mum, sometimes in her school uniform and sometimes in her casual clothes. Threatened by the man with a pointed object placed at her back for her to get inside the car, PW1 did get inside the car and sat on the front passenger seat. The man driver drove the car towards [REDACTED] road. At [REDACTED], the man told PW1, to switch seat and to sit in the back passenger seat to avoid being noticed given that the car rear windows were tinted, which she did.

The man driver then drove the car along a farm and headed to a store on the farm. As he approached the store, he stopped the car, get out of it and walked a short distance away to speak to a man who was close by. PW1 understood him as having told the man to go to the Cable & Wireless post. The man driver then returned to the car and asked PW1 to get out of the car and walk to the store. Seeing some dogs close by, PW1 got out of the car, ran to the store and got inside.

Inside the store, PW1 saw a bed and some groceries on a shelf close to the bed. The man driver soon joined her inside the store. Once inside the store, the man removed his brief then placed a condom over his penis, and he asked PW1 to remove her panty and lie on the bed which PW1 did. The man driver then moved on the top of PW1’s body, inserted his penis inside her vagina and had sexual intercourse with her. After his first ejaculation into the condom, the man driver removed the condom and had sexual intercourse with PW1 for the second time. This time around, he did not wear a condom, and therefore, he ejaculated sperm inside PW1’s vagina. After the 2^nd round of sexual intercourse, the accused took a towel that was close by, wiped his penis and then threw the same at PW1 asking her to wipe her vagina with it.

Thereafter, the man driver put back his brief, whereas, PW1 put back her panty. Leaving the store, they both walked towards the car, got inside as the man driver drove away towards the [REDACTED] road headed to [REDACTED]. The car stopped close to [REDACTED] Supermarket at [REDACTED]. As PW1 got out of the car the man told her to send him a missedcall. Once she was out of the car, PW1 saw her mum [REDACTED], PW2, and her sister [REDACTED], PW4, in another car taking them to her [REDACTED] house. The driver of that car gave her a lift as he drove them all to the [REDACTED] house. That was the end of the 1^st episode.

The 2^nd episode happened the following day, the 20^th October 2021. PW1 had gone to the shop to buy some groceries for her [REDACTED]. There, she met her aunt [REDACTED], PW3, who was on her way to her [REDACTED]. PW3 asked PW1 of her whereabouts the previous day the 19^th October 2021 because her mum was looking for her. PW1 recounted the incident that happened to her. Once they both arrived at her [REDACTED] house, PW1 shared her experience of the previous day with her sister [REDACTED] in the presence of their mum, PW2, who was not too far away from them. As she over heard what they were talking about, PW1’s mother, PW2, started to scold her.

At one point, PW1 said that, she does have the phone number of the man driver who sexually assaulted her, and then she tried to call him. The man driver, who up to that point they did not know his true and correct name and identity, did not answer PW1’s phone call. PW1 gave her aunt, [REDACTED], PW3, the man’s phone number [REDACTED]. PW3 then phoned the number and the man driver answered. In their telephone conversation, which could be heard from the phone’s speaker the man driver told PW3 that his name is [REDACTED]. He pleaded to PW3 not to report the incident to the police and offered money in return.

After the conversation ended, PW1’s mum, accompanied by her sister, PW3 (PW1’s aunt) and her daughter, PW4, (PW1’s sister) took PW1 to the [REDACTED] police station to lodge a complaint about the incident. At the police station, PW1 was interviewed about the incident and then taken to the hospital on the same day to be examined by a doctor. At the hospital, PW1 was examined by Dr Maxwell Focktave, a licensed medical officer and gynaecologist who works at the Seychelles Hospital. After he completed his examination of PW1 he wrote a report, exhibit P2. In his report, interalia, Dr Focktave states, that he found no fresh lesion on or around the external genital area or around the anus of PW1. He reported that the hymen was not intact which in his opinion meant that, PW1’s hymen had been tempered with, possibly, because of sexual intercourse. In his testimony, Dr Focktave explained that, in normal circumstances, if the hymen is intact at the time of sexual intercourse, lesion would be found, but if someone is sexually active or had sex in the past, he will not necessariy see any lesion.

The third episode happened on the 21^st October 2021. While PW1’s mother, PW2, was at her house, she received a phone call from her daughter [REDACTED], PW4, who informed her that, the man who did those things to her sister, and daughter, PW1, will be coming to their house at around 5 pm to be accompanied by a man she knows quite well as [REDACTED]. Later on that day, at a time when PW1 too was at home, three men arrived at their family home. [REDACTED] who was amongst the three men introduced the man to PW1’s mum stating the following; “this is the person who had called and said he wants to see you”. PW2 then asked the man what happened. His answer was, “I am the one who did this to your daughter. Please forgive me. I accept that I have done this to your daughter, please don’t take me to the police. I will pay you some money”.

Whilst pleading for forgiveness or mercy, PW2’s daughter, [REDACTED], PW4, secretly called her sister [REDACTED] and asked her to call the police because the man who had sexually assaulted [REDACTED], PW1, was at their house. [REDACTED] did call the polie that responded to the call as they headed to the family home. As the accused heard the wail of the police siren approaching the family home, he ran away. He only came back after he was asked to come back. The police then arrested him.

SUBMISSIONS

SUBMISSION BY COUNSEL FOR THE REPUBLIC

Learned counsel for the Republic, did make a closing written submission of the prosecutions’s case against the accused. She begins by rehearsing the salient aspects of the evidence laid before this court by the prosecution witnesses. Having presented a synopsis of the facts and circumstances of this case in the preceding paragraphs based on the evidence on record. I find no good reason for a repetition. Learned counsel then proceeds to submit on the relevant law to be applied to the facts and circumstances of this case for establishing the accused guilt. She then proceeds to submit on the relevant law of sexual assault under Section 130 (2) (d) and Section 130 (3) (b) of the Penal Code, as amended, as well as the application of the common law of corroboration in cases of involving sexual offences.

Learned counsel correctly submits that, the law as it presently stands in this country, makes corroboration warning discretionary, in the sense that, it is up to the presiding judge to decide, whether, in the circumstances, a corroboration warning is necessary before convicting an accused of a sexual offence solely on the evidence of the complaint/victim. Learned counsel also submits on the law of identification amid the defence’s stance that, the wrong person has been on trial for an offence committed by another person, namely, one [REDACTED]. To illustrate the law of identification, learned counsel relies on the case of Turn bull and others [1976] 3 ALLER 549, putting greater emphasis on the guidelines spelt out in the case.

I have to say, candidly, that I have doubts about the application of the Turnbull (supra) guidelines to the facts and circumstances of this case, and I wonder whether they have any relevance at all in this case. Identification evidence in a criminal trial is used to identify the person who is alleged to have committed the alleged offence. It is to be noted, that there has been no strong challenge of the corroborative visual identification of the accused in this case. All that the defence has sought to do is simply to rely on the fact that some of the prosecution witnesses, including the complainant/victim, had given the name of [REDACTED] to the police as the person suspected of having commited the offence, and that, therefore, the wrong person was being tried for an offence which he never committed. The defence deliberately and conveniently omitted to add that, the name of [REDACTED] was a false name given to the witnesses, including the complainant/victim, by the accused himself, in order to conceal his correct name and his true identity.

Even if the court is to warn itself and exercise caution before convicting the accused in reliance on the correctness of the indentification evidence, the identification evidence against the accused is so strong that it renders the accused’s defence feeble. The process of identification started the moment the complainant/victim, PW1, got into the black serion throughout the journey up to the actual sexual intercourse in the store on the farm, and after and until she was dropped off by the accused. It must also be noted, that the accused is a person previously known to the complainant/victim. This fact transpired in evidence, PW1 having seen him sitting at the bus stop playing loud music in his car.

I do, however, take note of learned counsel for the Republic’s point, as she correctly submits, that given that it is the name of the accused that is in contention, that should not be confused with the identification of the accused by way of evidence which this court finds has been not only credible and reliable, but also, overwhelming, having been guided by the passage in S V Mehlape 1963 (2) SA 29 (A), cited and quoted by learned counsel for the prosecution.

SUBMISSION OF COUNSEL FOR THE ACCUSED

In the 1^st paragraph of her written submission dated 8^th November 2022, learned counsel has this to say;

It is obviously clear, from the 1^st paragraph of her written submission, in spite having been written in a sarcastic manner, that it is learned counsel’s contention, albeit disingenously, that, the wrong person has been charged and prosecuted for the alleged offence of sexual assault in this case. This, in fact, is the crux of the accused’s defence as he professes his innocence. In essence, one of the issues that is called for a determination, and which will be addressed later in this judgment, is as regards to the identity of the assailant or the perpetrator of the crime allegedly committed. From learned counsel’s prospective, one [REDACTED] is the person who should have been charged and prosecuted in this case, not S. M, thus a case of mistaken identity. As per learned counsel’s submission, this is borne out of the police investigation diary after the victim’s mother, PW2, and the victim herself, had told the police that it was [REDACTED] who sexually assaulted her.

In a significant part of her submission, learned counsel discusses the prosecution’s burden and standard of proof of the charge levelled against the accused, with emphasis on mensrea and the actus reus of the offence, submiting that, the prosecution must bring evidence to prove beyond reasonalble doubt that;

“(i) there was penile penetration of the vagina, and

(ii) it was the accused that penetrated her vagina for a sexual purpose”

At paragraph 7 of her submission, learned counsel takes issue over the fact that, in her testimony on the 19^th October 2021, the complainant/victim had said, amongst otherthings, that she “saw some fluid coming out of her vagina”, when within 24 hours after the alleged incident, Dr Focktave who examined the complainant/victim found “no abnormal discharge”. This learned counsel submits, “is enough to cast serious doubt on the alleged sexual assault. I have read paragraph 8 of learned counsel’s submission and notes her emphasis on the words “if really happened”.

Clearly, this is a deliberate misconstruction of Dr Focktave’s testimony because it was never his testimony, that the alleged incident did not really happen. It is the submission of learned counsel that, based on the doctor’s testimony, coupled with the fact that there was no forensic analysis result of the swabs taken from the complainant/victim’s vagina, that the prosecution has not adduced evidence to prove, beyond reasonable doubt, that there was penetration of the vagina of the alleged victim for a sexual purpose, and therefore, the accused should be acquitted.

At this point, I am not inclined to venture into what would simply be a university style academic discussion. Suffice to say, that the proposition made by learned counsel is unconvincing and misleading because there is a plethora of cases where a conviction has been secured in sexual assault cases without forensic evidence, but on other evidence as well as evidence of identity linking the alleged assailant with the crime. In fact, it is borne out of the evidence, that there are other substantive evidence linking the accused with the alleged crime that would be discussed later in this judgment.

In her submission, learned counsel also raises concern about the police failure to ascertain ownership of the vehicle which allegedly picked up the complainant/victim as per her testimony, as a weakness in the prosecution’s case. In my considered opinion, the failure to ascertain ownership of the vehicle, being the black serion, does not in any way makes the prosecution’s case against the accused weaker because even if that had been done it would not have been relevant, and therefore, not considered to be evidence to prove or disprove the fact in issue, which is, did the accused sexually assaulted the complainant/victim.

In her review of the prosecution witnesses’ testimony, learned counsel described the evidence of [REDACTED], (PW2) and that of the alleged complainant/victim, PW1, as unreliable, and in the case of [REDACTED] as well, also fraught of hearsay evidence. Learned counsel referred the court to the fact that the police had recorded in the investigation diary that [REDACTED] had told the police that her daughter told her that she was sexually assaulted by [REDACTED]. She quoted [REDACTED], PW2, as having said the follwing;

“When my sister [REDACTED]spoke to him, he informed my sister that his name is [REDACTED]”

Learned counsel refers the court to the testimony of [REDACTED] (PW3) to further emphasise her contention that, the alleged complainant/victim was sexually assaulted by [REDACTED], whilst refering to [REDACTED]’s testimony, she having said the following;

At paragraph 20 of her submission, learned counsel points to the testimony of prosecution witness police constable [REDACTED] (PW5) whom she said told the court that “a report was made by [REDACTED], (PW2), in which she told the police that the person who commited the offence is [REDACTED]. Learned counsel also submits, that when constable [REDACTED]’s “own statement was put to him and asked about the alias of the person accused of this crime, he said that he is S. M also knowns as [REDACTED]”. The point which learned counsel seeks to make, is that the name “[REDACTED]” that came up in the evidence is the nickname of [REDACTED], not the accused, S.M, as she sought to rely on the evidence of defence witness, [REDACTED].

In her submission, learned counsel stated, that [REDACTED], DW1, did say in his testimony that, he “accompanied the accused to the house of the family and when he was at the hosue of the family he was arrested”. Learned counsel emphasised that, when under cross examination [REDACTED] was asked whether the accused confessed to the family that he had sexually assaulted the child his answer was “no, he did not”.

Learned counsel refers the court to the testimony of Sgt [REDACTED], DW3, who testified for the defence. As per her submission, Sgt [REDACTED] who recorded the statement of [REDACTED], told the court that Ms [REDACTED] did say that her daughter was sexually assaulted by [REDACTED], and gave factual account of how it happened, and that she, Sgt [REDACTED], wrote the name of [REDACTED] because she told her [REDACTED]. Learned counsel submits, that as per Sgt [REDACTED]’s testimony, [REDACTED] was contacted by another officer who told her that he was fixing a boat at Belombre.

Learned counsel also refers the court to the exchanges of questions and answers between the prosecution and Sgt [REDACTED] in cross examination. Learned counsel quotes one of the questions and asnwers that reads as follows;

Question: Did [REDACTED] tell you how she got the name [REDACTED]?

Answer: She said it was the man that gave her the name.

In essence, to exenorate the accused’s culpability, in her submission, learned counsel has capitalised on the fact [REDACTED], (PW2), the mother of the alleged victim, and the complainant/victim herself, PW1, had told the police that the person who committed the sexual assault is [REDACTED] whose nickname is “[REDACTED]”, not S.M, the accused, whose nickname is “[REDACTED]”. What the evidence shows, which learned counsel has failed to state in her submission, is that, it is S.M, the accused, who gave both, the complainant/victim and her mother [REDACTED] that false name, [REDACTED] to conceal his true and correct identity.

THE LAW

In the instant case, the accused has been charged and tried for the offence of sexual assault, an offence prescribed under Section 130(1) read with Section 130 (2) (d) of the Penal Code. This statutory enactment reads as follows;

“130 (1) Any person who sexually assault another person is guilty of an offence and is liable to imprisonment to 20 years.

(2) for the purposes of this section, sexual assault includes;

(a) …

(b) …

(c) …

(d) the penetration of a body orifice of another person”.

In a criminal case, as the instant one, to secure a conviction for the charge of sexual assault, the prosecution carries the burden of proof (with the exception of affirmative defences which the Defendant must prove). That is to say, the prosecution had to present sufficient evidence to prove each element of the crime or offence, alleged to have been committed by the accused beyond reasonable doubt, failing short of the standard of proof, the accused must be acquitted.

The English case of Woolmington vs DPP 1935, AC, is a landmark House of Lords case, where the presumption of innocence was reconsolidated for application across the common wealth countries. The law lords in this case stated, that it is the duty of the prosecution to prove the accused’s guilt. If at the end of, and on the whole of the case, there is a reasonable doubt, the alleged offender must be acquitted. The Lords went on as to say, that, proof beyond reasonable doubt generally means that, the court must subject the entire evidence to such scrutiny as to be satisfied, beyond reasonble doubt, that all the important elements placed on the prosecutions by the substantive law are proved. If not satisfied, the accused must be acquitted.

In the English case of Miller v Minister of Pension [1947] 2 ALLER 372, 373, Lord Denning had this to say about proof beyond reasonable doubt;

Based on the offence of which the accused has been charged, that is to say, sexual assault contrary to Section 130 (2) (d) of the Penal Code, the prosecution had to prove the following elements or ingredients of the offence beyond reasonable doubt, namely;

That the complainant/victim experienced penetrative sexual intercourse
That the accused participated in the sexual intercourse, and
That the complainant/victim could not have consented to the sexual intercourse being below 15 years old.

Section 130 (3) (b) of the Penal Code is very pertinent to the issue of consent in this case and is therefore worthy of illustration. It reads;

“ 130 (3) (b) A person does not consent to an act which if done without consent constitutes an assault under this section if;

(b) the person is below the age of fifteen years,

(c) …”

DISCUSSION AND ANALYSIS OF THE EVIDENCE IN THE CONTEXT OF THE LAW

On account of the evidence laid before this court at trial, the first issue to be determined, is whether the prosecution did prove, beyond reasonable doubt, that the accused experienced penetrative sexual intercourse on the [REDACTED] in a store on a farm at [REDACTED]. The relevant evidence that bears proof of this allegation is the evidence of the complainant/victim, PW1 herself, and the evidence of Dr Focktave, crucially, which although not conclusive, the latter’s finding that the complainant/victim, PW1’s hymen was not intact suggesting that her hymen had been tampered with through sexual intercourse. Had Dr Focktave found that PW1’s hymen was still intact, it would have follow that, PW1 did not have sexual intercourse on the [REDACTED] as she claims or on any other day before, rendering the charge against the accused unsustainable.

As per PW1’s testimony, the actual sexual intercourse took place inside the store on a farm. Once she and the accused was inside the store, the accused removed his brief, place a condom over his penis, and after she, PW1, had removed her panty, she lied facing up on a bed that was inside the store. The accused then moved on the top of her body and inserted his erected penis inside her vagina thus had sexual intercourse with her. The accused did the same act twice. The 2^nd time he did it he did not place a condom over his penis. He ejaculated sperm inside PW1’s vagina. It must be remembered that, PW1 gave her evidence not so long after the incident when her memory could not be said to have faded away with the passing of time.

Interestingly, and perhaps without giving thought to the possible adverse effect vis a vis the accused defence, Mr [REDACTED], DW1, did confirm that the accused does own a farm at [REDACTED] and that he visits his farm everyday. He also confirmed, that he was present at the family home when the accused visited [REDACTED], PW1’s family home, although, he did not say for what reason he and the accused had to go to [REDACTED] PW1’s family home in the first place. When asked, whether the accused did confess to having sexually assaulted [REDACTED], PW1, and offered the family money to dissuade them from reporting the incident to the police, DW1 said that he is not aware of such conversation, but if it did happen not in his presence. Therefore, the significance of DW1’s testimony is that it at least corroborated the evidence of PW1, PW2 and PW4 that the accused did come at the family home of AM, PW1.

In considering PW1’s testimony one would need to consider how credible was her testimony. I did observe carefully the demeanour of PW1 as she deponed under oath, after having been adjudgedof being capable of giving intelligible evidence. She recounted the events of the 19^th October 2021, even before she got inside the balck serion car and driven to a store on a farm at [REDACTED], where the accused had sexual intercourse with her. Considering the veracity of her evidence, I found that PW1 was consistent, cogent, coherent and a truthful witness whose evidence is worthy of belief. In fact, in her written submission, learned counsel for the accused, did not make any significant comment or observation about PW1’s testimony beside her remark that she was unreliable, although in cross-examination, she was challenged on few aspects of her testimony which she dealt with with great confidence, while she stood her ground. Her responses to question put to her in cross-examination were remarkably candid. The vexed question that therefore follows, is, whether a conviction is possible in a sexual assault case as the instant one, without evidence corroborating the evidence of the complainant/victim who in this case is PW1.

It is now settled law in this country and indeed in other common wealth countries, that, the English law of corroboration that requires the judge in a criminal trial of an accused for a sexual offence to give a corroboration warning has now been made discretionary. This new legal position has been incorporated into the law of this country by way of case law authorities, notably, Raymond Lucas v R (SCA 17/2009). In Raymond Lucas (Supra), interalia, the court had this to say at paragraph 28;

Therefore, on account of the evidence of [REDACTED] solely, I am satisfied, that the prosecution has proved, beyond reasonable doubt, that on the 19^th October 2021, a man penetrated the vagina of PW1 with his penis for a sexual purpose. That is not to say, that there is no corroborative evidence at all in this case. To the contrary, many aspects of the prosecution’s evidence are corroborated to a material exent by the evidence of other prosecution witnesses as well as the defence witnesses in some respect.

The 2^nd issue to be determined is, did the accused participated in the sexual intercourse amid learned counsel’s contention that, it was not the accused S.W.M who did it, but rather, one [REDACTED] known as [REDACTED]. Learned counsel’s contention that, the person who sexually assaulted [REDACTED], PW1, is [REDACTED] rest on the fact that PW1, her mum, PW2, and her aunt, PW3, had told the police that it was [REDACTED] who committed the sexual assault and that is featured in the police investigation diary, D1.

In their testimony PW1, PW2 and PW3 explained, that it was in the telephone conversation between the accused and PW1’s aunt, PW3, that the former told the latter that his name was [REDACTED]. In other words, it was in order to conceal his true identity that, the accused, whose real name is S.W.M told PW3 that his name was [REDACTED] when in actual fact, his true and correct name name is S.W.M. If a true perpetrator of a crime, when arrested by the police on suspicion of having committed a crime gives a false name to the police, if at all that person exists, doesn’t make him liable for the crime and exonerate the perpetrator. In her review of the evidence as featured in her written submission, learned counsel deliberately and conveniently ignores some crucial aspects of the evidence that points to the accused as the culprit in this case, understandably so, because they weaken the accused’s defence.

The crucial aspects of PW1’s testimony which I find to be credible and truthful, and which create no doubt about the identity of PW1’s assailant is the fact that PW1 identified the accused S.M even before she got into the car as he stopped the car close to her and spoke to her. PW1 received from him SCR 300. When she was inside the car, PW1 sat in the front passenger seat close to the accused driver S.M until she switched seat. They walked together to the store on the farm where the incident took place. All these events took place in broad day light. PW1 also identified the accused at the family home after he had turned up there to seek for mercy. PW1 also made a dock identification of the accused as the very same person who was the driver of the black serion, who drove her to [REDACTED] on a farm and had sexual intercourse with her in a store. Although dock identification in itself may lack credence, in the instant case, the same is corroborated by other visual identification evidence. Thus, in her evidence, PW1 was emphatic that it was the accused who had sexual intercourse with her on the 19^th October 2021. It must be remembered that PW1 gave her evidence at a time when her memory could not be said to have faded with the passage of time.

PW1’s testimony about her making no mistake as to the identity of her assailant, was corroborated by the evidence of her mum, PW2, who in her evidence stated that, the accused whom she identified in the dock is the same person who came to their house on the 21^st October 2021 to plead for forgiveness and to offer them money in return in order to dissuade them from reporting the incident to the police, and who on that particular afternoon, PW1 identified him as the person who sexually assaulted her on the 19^th October 2021. The evidence of PW1’s sister, [REDACTED], PW4, also corroborates the evidence of PW1 and PW2, in so far that it confirms that, the accused did come at their family home to seek for forgiveness, and that it was the same person she identified in the dock.

Furthermore, the conduct of the accused of coming to the family home to talk to the family about an incident which he is not culpable, and attempting to run away from arrest when the police arrived at the family home is not compatible to that of an innocent person. Therefore, all in all, the evidence of the prosecution witnesses against the accused did place him at the scene and distroyed his defence that it isn’t him who had sexual intercourse with PW1 in a store at [REDACTED] on the 19^th October 2021, but [REDACTED] instead.

Thus, amid the abundant of evidence against the accused, the argument that the alleged sexual assault of PW1, [REDACTED], was committed by [REDACTED] does not hold water and is simply a desperate move by the accused who is overwhelmed with guilt. I am therefore, satisfied, that the prosecution has proved, beyond reasonable doubt, that the accused did participate in the sexual intercourse when on the 19^th October 2021, PW1 experienced penetrative sexual intercourse perpetrated by the accused by inserting his penis inside PW1’s vagina.

It is now necessary to establish, whether on account of the evidence laid before this court, the prosecution has proved that at the time of the sexual assault, PW1, the complainant/victim, was below the age of 15 years. In cross-examination, PW1, in answer to a question put to her as to whether if one looks at her would think that she is below 16 – 17 years, stated that she is a 14 year old girl. In her testimony, PW1’s mother, PW2, stated that, she is the mother of five children and that [REDACTED], PW1, is one of her children whom she said is now a 15 year old (on the date she testified on the 21^st March 2022). She told the court that, [REDACTED] PW1, was born on the 12^th March 2007, and tendered in evidence as exhibit her Birth Certificate pertaining to the Civil Status Register No 258 of 2007.c, P1. I am therefore satisfied, that, on the date of the incident of sexual assault on the 19^th October 2021, [REDACTED], PW1, who is the complainant/victim in this case was below the age of 15 years old.

In the midst of an abundant of evidence against the accused in this case, I am perplexed by the serious and infelicitous criticism of the police at the hands of the accused’s counsel for not having charged [REDACTED] with the offence of sexual assault, but chose to charge the accused instead. I say so, because there is not a single shred of evidence that [REDACTED] is the one who committed the alleged offence of sexual assault. Clearly, therefore, learned counsel for the accused has ignored the evidence because it doesn’t fit her narrative in her quest to exculpate the accused. It is therefore not surprising that, she cannot accept the truth of what happened to [REDACTED], PW1 on the 19^th October 2021, and that the accused is the culprit who committed the sexual assault against her.

CONCLUSION

In the final analysis, from a holistic examination of the totality of the evidence adduced before this court in this case, I hold the view that, the prosecution has discharged its burden of proof with regard to all the elements or ingredients of the offence of sexual assault with which the accused has been charged, and has done so at the standard required in a criminal case as the instant one, that is, beyond reasonable doubt.

For this reason, I find the accused S.W.M of [REDACTED], Mahe, Seychelles guilty of one count of sexual assault contrary to Section 130(1) read with Section 130(2)(d) of the Penal Code and punisable under Section 130(1) of same Act. I accordingly convict him for one count of sexual assault.

Signed, dated and delivered at Ile du Port 17 February 2023.

____________

B Adeline, J

Republic v Jules (CR 40 of 2022) [2023] SCSC 46 (27 January 2023);

Fabianna Savy — Tue, 11 Apr 2023 06:50:11 +0000

Republic v Jules (CR 40 of 2022) [2023] SCSC 46 (27 January 2023);

Flynote

Criminal law

Fabianna Savy Tue, 04/11/2023 - 06:50

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Willful neglect, abandonment or exposing a child in a manner likely to cause a child unnecessary suffering moral danger or injury contrary to section 70(1)(b) read with section 70(4)(a) and punishable under section 70(6) of the Children’s Act.

Headnote and holding

Accused sentenced to a term of 2 years imprisonment suspended for 2 years.

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2023-scsc-46.doc

2023-scsc-46.pdf

VIDOT J

The Accused, [REDACTED] is charged with and pleaded guilty to the following offence;

Count 1

Statement of Offence

Wilfully neglecting, abandoning or exposing a child in a manner likely to cause the child unnecessary suffering, moral danger or injury contrary to section 70(1)(b) read with section 70(4)(a) and punishable under section 70(6) of the Children’s Act.

Particulars of Offence

[REDACTED] years old employee of [REDACTED] and resident of [REDACTED], Mahe, on the [REDACTED], after giving birth to a baby [REDACTED] at the beach at [REDACTED], wilfully neglected, abandoned or exposed the said infant in a manner likely to cause the child unnecessary suffering, moral damage or injury to health by placing and leaving the infant in a public bin at [REDACTED].

The Prosecution presented the facts to Court which were accepted by the Accused and she was accordingly convicted as charged.
The facts are that on [REDACTED] whilst at the [REDACTED] beach, the Accused went into labour and at around 2 p.m delivered a baby [REDACTED]. Once she gave birth, she wrapped the baby in a white towel and placed [REDACTED] in a black handbag that was in her possession. Upon leaving the beach, she placed the infant in a bin at [REDACTED] went to pick up her other child and went home. Upon arriving home, she threw the bag that she had placed the baby in, in a bin at [REDACTED]. The Accused knew of her pregnancy in [REDACTED] but did not reveal the same to anyone and neither did she reveal it to anyone after she had left the baby in the bin at [REDACTED]. Later that day, the baby was discovered in the bin and the Police were called and an investigation was conducted which linked the Accused to the crime.
Counsel for the Accused requested for a probation (pre-sentence) report. The same was received and a copy served on Counsels.
Counsel begged the Court to show leniency to her client. She notes that the Accused pleaded guilty and therefore shown remorse and accepted responsibility. Counsel states that the Accused was placed with a difficult position in regards to fear of being kicked out of the home by her mother and the fact that she was on her own since the father had decided not to have anything to do with her. The Accused has also to cope with a [REDACTED] who is [REDACTED]. She is also very remorseful for the crime committed.
I fully appreciate that at the time of her pregnancy the Accused was facing hardships She was in a difficult situation of desperation. I also note that the guilty plea was taken at the first opportunity, thereby saving the Court’s precious time, cost and inconvenience of witnesses having to give evidence; the guilty plea should warrant a reduction in sentence. Blackstone’s Criminal Practice (2021) paragraph E12, p2148.
I shall also consider the particular circumstances of the Accused. Counsel in fact referred to R v Rabie (1975) (4) SA 885 (A), wherein it was said that “punishment should fit the criminal, be fair to society and blended with a measure of mercy according to the circumstances.”
I also take into special consideration the fact that the Accused has a [REDACTED] who is [REDACTED] and also the fact that the Accused is following psychological treatment.
I consider the case of Republic v Nathalie Bacco [2022] SCSC 4, CR69/2021 a case of manslaughter for causing the death of a new-born infant and dumping the baby in a bin and Dolores Low-Hong v R, a case of infanticide. In both cases, court imposed suspended sentences on the accused, though in the latter case, such sentence was imposed on appeal.
Having listened carefully to submission of mitigation and considered the probation report, I convict the accused to a term of 2 years imprisonment suspended for 2 years.
If unsatisfied with this sentence, the Accused may appeal against the same within 30 working days from today.

Signed, dated and delivered at Ile du Port on 27 January 2023

____________

M Vidot J

VIDOT J

The Accused, [REDACTED] is charged with and pleaded guilty to the following offence;

Count 1

Statement of Offence

Particulars of Offence

The Prosecution presented the facts to Court which were accepted by the Accused and she was accordingly convicted as charged.
The facts are that on [REDACTED] whilst at the [REDACTED] beach, the Accused went into labour and at around 2 p.m delivered a baby [REDACTED]. Once she gave birth, she wrapped the baby in a white towel and placed [REDACTED] in a black handbag that was in her possession. Upon leaving the beach, she placed the infant in a bin at [REDACTED] went to pick up her other child and went home. Upon arriving home, she threw the bag that she had placed the baby in, in a bin at [REDACTED]. The Accused knew of her pregnancy in [REDACTED] but did not reveal the same to anyone and neither did she reveal it to anyone after she had left the baby in the bin at [REDACTED]. Later that day, the baby was discovered in the bin and the Police were called and an investigation was conducted which linked the Accused to the crime.
Counsel for the Accused requested for a probation (pre-sentence) report. The same was received and a copy served on Counsels.
Counsel begged the Court to show leniency to her client. She notes that the Accused pleaded guilty and therefore shown remorse and accepted responsibility. Counsel states that the Accused was placed with a difficult position in regards to fear of being kicked out of the home by her mother and the fact that she was on her own since the father had decided not to have anything to do with her. The Accused has also to cope with a [REDACTED] who is [REDACTED]. She is also very remorseful for the crime committed.
I fully appreciate that at the time of her pregnancy the Accused was facing hardships She was in a difficult situation of desperation. I also note that the guilty plea was taken at the first opportunity, thereby saving the Court’s precious time, cost and inconvenience of witnesses having to give evidence; the guilty plea should warrant a reduction in sentence. Blackstone’s Criminal Practice (2021) paragraph E12, p2148.
I shall also consider the particular circumstances of the Accused. Counsel in fact referred to R v Rabie (1975) (4) SA 885 (A), wherein it was said that “punishment should fit the criminal, be fair to society and blended with a measure of mercy according to the circumstances.”
I also take into special consideration the fact that the Accused has a [REDACTED] who is [REDACTED] and also the fact that the Accused is following psychological treatment.
I consider the case of Republic v Nathalie Bacco [2022] SCSC 4, CR69/2021 a case of manslaughter for causing the death of a new-born infant and dumping the baby in a bin and Dolores Low-Hong v R, a case of infanticide. In both cases, court imposed suspended sentences on the accused, though in the latter case, such sentence was imposed on appeal.
Having listened carefully to submission of mitigation and considered the probation report, I convict the accused to a term of 2 years imprisonment suspended for 2 years.
If unsatisfied with this sentence, the Accused may appeal against the same within 30 working days from today.

Signed, dated and delivered at Ile du Port on 27 January 2023

____________

M Vidot J

The Republic v Fanny (CR 49 of 2019) [2023] SCSC 45 (27 January 2023);

Fabianna Savy — Tue, 07 Mar 2023 07:55:30 +0000

The Republic v Fanny (CR 49 of 2019) [2023] SCSC 45 (27 January 2023);

Flynote

Criminal law

Fabianna Savy Tue, 03/07/2023 - 07:55

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Trafficking in a controlled drug, by mans of being in unlawful possession of a controlled drug with intent to traffic, contrary to section 9 (1) of the Misuse of Drugs Act 2016 read with section 9(1)(c) of the said Act and punishable under section 7(1) read with the Second Schedule of the said Act.

Headnote and holding

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2023-scsc-45.doc

2023-scsc-45.pdf

VIDOT J

The Accused stands charged with one count of Trafficking in a controlled drug by virtue of being found in unlawful possession of a controlled drug, with intent to traffic contrary to section 9(1), read with section 19(1)(c) of the Misuse of Drugs Act 2016 and punishable under section 7(1) read with the Second Schedule of the said Act. The particulars of the offence are that on 31^st May 2018, being an inmate at Montane Possee Prison, the Accused was trafficking in a controlled drug by virtue of having been found in unlawful possession of a substance having a net weight of 20.5 grams which contained a controlled drug namely heroin with a purity content of 64%, amounting of 12.85 grams which gives rise to a rebuttable presumption of having possessed the said controlled drug with intent to traffic.
The Accused pleaded guilty to the Count. The Prosecution then read the facts to Court. They are that 0n 31^st May 2018, the Prison Authorities received information that the Accused whilst working at IPHS as part of a work rehabilitation programme had swallowed drugs. The Accused was taken to Victoria Hospital where a CT Scan was conducted and drug was discovered around the anal area of the Accused. He was then brought to the ANB Office for further procedures whereby he excreted the controlled drug which was wrapped in plastic. The ANB Officers informed him of the offence of possession of a controlled drug. He was arrested and cautioned. The suspected controlled drug which was kept in possession of the ANB and sent for analysis was confirmed to be controlled drug namely heroin weighing 20.5 grams with a purity content of heroin of 12.85 grams. The Accused admitted the facts and was accordingly convicted. Accused’s Counsel then requested for a Probation (Pre-Sentence) Report (“the report”) before making submission. The application was allowed and a report dated 11^th January 2023 was prepared and served on Counsels.
The report together with submission in mitigation shall be fully considered before meting out sentence.
In the report the Accused admitted to committing the offence but intimated that it happened when he was on work programme with the prison and an ex-inmate had asked him to pick up the drugs from a civilian and that that former convict had promised to give him some drugs in return and that despite knowing the risk he agreed to it because he was drug dependent.
The Accused has pleaded guilty and has shown remorse and has accepted responsibility for the offence committed. A guilty plea in fact should earn an accused credit as far as sentence is concerned. In fact in terms with section 49(a) of the Misuse of Drugs Act (MODA) 2016, a guilty is a mitigating factor for a reduction in sentence. In migration Counsel noted that a guilty plea saves the Court’s precious time and saves the inconvenience of witnesses having to testify. This is the position advocated in Blackstone’s Criminal Practice (2012), paragraph E12 p2148 which states that a guilty plea would in effect earn an accused a reduction in sentence and that “reduction should be a proportion of the total sentence imposed calculated by references in which the guilty plea was indicated, especially at what stage of proceedings.”
Counsel also remarked that Section 49 of MODA provides that an accused’s acceptance of responsibility for the harm or potential harm associated with the offence, the absence of any commercial element in the offence and the absence of prior convictions should also be considered as mitigating factors. Such factors are present in this case.
Imploring for a lenient non-custodial sentence Counsel for the Accused relied on R v Marcus Dugasse (CR26/2020) where the accused were convicted of trafficking and agreeing to traffic in a controlled drug, namely 54.84 grams of substance with a purity content of cocaine of 32.82 grams and were sentenced to suspended sentences and fines. Other such cases include R v Clifford Adeline CO63 of 2020, [2022] SCSC 122, R v Micky Perry Zelia [2019] and R v Dhalin Joubert & Ors CR70/2021. In these cases suspended sentences were also meted out in circumstances similar to the present case. However, it must be emphasised that each case must be decided on its own facts. However, this Court will give due attention to these authorities.
In fact what Counsel was advocating for is for consistence in sentencing pattern. In Hili vs. The Queen, the High Court of Australia stated that consistency is not demonstrated by and does not require numerical equivalence rather consistency is obtained in the application of the relevant legal principles.
I have given due consideration to the mitigation and the report in meting out sentence and remain very conscious that drugs is a phenomenal problem in our society affecting a sizeable percentage of the population and the youth are being most affected and Courts have to answer to this persistent problem which is far from being resolved. It requires a lot of resources to tackle the problem, resources that could have been put to more beneficial use to society.
In the circumstances, I convict the Accused to one (1) year and six (6) months imprisonment and a fine of SR18,000.00 payable within 8 months of this sentence and in default to 6 months imprisonment.
The term of imprisonment shall be suspended for two (2) years.
If unsatisfied with this sentence, the Accused has a right of appeal against the same within 30 working days from today.

Signed, dated and delivered at Ile du Port on 27 January 2023.

____________

M Vidot J

VIDOT J

The Accused stands charged with one count of Trafficking in a controlled drug by virtue of being found in unlawful possession of a controlled drug, with intent to traffic contrary to section 9(1), read with section 19(1)(c) of the Misuse of Drugs Act 2016 and punishable under section 7(1) read with the Second Schedule of the said Act. The particulars of the offence are that on 31^st May 2018, being an inmate at Montane Possee Prison, the Accused was trafficking in a controlled drug by virtue of having been found in unlawful possession of a substance having a net weight of 20.5 grams which contained a controlled drug namely heroin with a purity content of 64%, amounting of 12.85 grams which gives rise to a rebuttable presumption of having possessed the said controlled drug with intent to traffic.
The Accused pleaded guilty to the Count. The Prosecution then read the facts to Court. They are that 0n 31^st May 2018, the Prison Authorities received information that the Accused whilst working at IPHS as part of a work rehabilitation programme had swallowed drugs. The Accused was taken to Victoria Hospital where a CT Scan was conducted and drug was discovered around the anal area of the Accused. He was then brought to the ANB Office for further procedures whereby he excreted the controlled drug which was wrapped in plastic. The ANB Officers informed him of the offence of possession of a controlled drug. He was arrested and cautioned. The suspected controlled drug which was kept in possession of the ANB and sent for analysis was confirmed to be controlled drug namely heroin weighing 20.5 grams with a purity content of heroin of 12.85 grams. The Accused admitted the facts and was accordingly convicted. Accused’s Counsel then requested for a Probation (Pre-Sentence) Report (“the report”) before making submission. The application was allowed and a report dated 11^th January 2023 was prepared and served on Counsels.
The report together with submission in mitigation shall be fully considered before meting out sentence.
In the report the Accused admitted to committing the offence but intimated that it happened when he was on work programme with the prison and an ex-inmate had asked him to pick up the drugs from a civilian and that that former convict had promised to give him some drugs in return and that despite knowing the risk he agreed to it because he was drug dependent.
The Accused has pleaded guilty and has shown remorse and has accepted responsibility for the offence committed. A guilty plea in fact should earn an accused credit as far as sentence is concerned. In fact in terms with section 49(a) of the Misuse of Drugs Act (MODA) 2016, a guilty is a mitigating factor for a reduction in sentence. In migration Counsel noted that a guilty plea saves the Court’s precious time and saves the inconvenience of witnesses having to testify. This is the position advocated in Blackstone’s Criminal Practice (2012), paragraph E12 p2148 which states that a guilty plea would in effect earn an accused a reduction in sentence and that “reduction should be a proportion of the total sentence imposed calculated by references in which the guilty plea was indicated, especially at what stage of proceedings.”
Counsel also remarked that Section 49 of MODA provides that an accused’s acceptance of responsibility for the harm or potential harm associated with the offence, the absence of any commercial element in the offence and the absence of prior convictions should also be considered as mitigating factors. Such factors are present in this case.
Imploring for a lenient non-custodial sentence Counsel for the Accused relied on R v Marcus Dugasse (CR26/2020) where the accused were convicted of trafficking and agreeing to traffic in a controlled drug, namely 54.84 grams of substance with a purity content of cocaine of 32.82 grams and were sentenced to suspended sentences and fines. Other such cases include R v Clifford Adeline CO63 of 2020, [2022] SCSC 122, R v Micky Perry Zelia [2019] and R v Dhalin Joubert & Ors CR70/2021. In these cases suspended sentences were also meted out in circumstances similar to the present case. However, it must be emphasised that each case must be decided on its own facts. However, this Court will give due attention to these authorities.
In fact what Counsel was advocating for is for consistence in sentencing pattern. In Hili vs. The Queen, the High Court of Australia stated that consistency is not demonstrated by and does not require numerical equivalence rather consistency is obtained in the application of the relevant legal principles.
I have given due consideration to the mitigation and the report in meting out sentence and remain very conscious that drugs is a phenomenal problem in our society affecting a sizeable percentage of the population and the youth are being most affected and Courts have to answer to this persistent problem which is far from being resolved. It requires a lot of resources to tackle the problem, resources that could have been put to more beneficial use to society.
In the circumstances, I convict the Accused to one (1) year and six (6) months imprisonment and a fine of SR18,000.00 payable within 8 months of this sentence and in default to 6 months imprisonment.
The term of imprisonment shall be suspended for two (2) years.
If unsatisfied with this sentence, the Accused has a right of appeal against the same within 30 working days from today.

Signed, dated and delivered at Ile du Port on 27 January 2023.

____________

M Vidot J

R v Amade (CO 39 of 2021) [2022] SCSC 839 (29 September 2022);

Fabianna Savy — Thu, 09 Feb 2023 10:35:12 +0000

R v Amade (CO 39 of 2021) [2022] SCSC 839 (29 September 2022);

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Criminal law

Fabianna Savy Thu, 02/09/2023 - 10:35

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Headnote and holding

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2022-scsc-839.docx

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VIDOT J

The Accused shall sign a bail bond in the sum 60, 000 (Sixty Thousand Rupees) and shall provide to Court 2 sureties who shall each sign a bond of 40,000 (Forty Thousand Rupees).
The Accused shall surrender his Passport or any Travel documents that he may have to the Registry of the Supreme Court not later than 1:00 pm tomorrow and the Immigration Department is instructed not to issue any Passport or Travel documents to the Accused and to prevent the Accused from leaving jurisdiction.
The Accused shall not whilst on bail interfere with witnesses in this case and particularly with the alleged victim.
The 2 sureties have to be produced at the Criminal Registry not later than 1:00 pm tomorrow as well.

Signed, dated and delivered at Ile du Port on 29^th September 2022.

____________

Vidot J

VIDOT J

The Accused shall sign a bail bond in the sum 60, 000 (Sixty Thousand Rupees) and shall provide to Court 2 sureties who shall each sign a bond of 40,000 (Forty Thousand Rupees).
The Accused shall surrender his Passport or any Travel documents that he may have to the Registry of the Supreme Court not later than 1:00 pm tomorrow and the Immigration Department is instructed not to issue any Passport or Travel documents to the Accused and to prevent the Accused from leaving jurisdiction.
The Accused shall not whilst on bail interfere with witnesses in this case and particularly with the alleged victim.
The 2 sureties have to be produced at the Criminal Registry not later than 1:00 pm tomorrow as well.

Signed, dated and delivered at Ile du Port on 29^th September 2022.

____________

Vidot J

R v Ferguson and anor (CO 16 of 2021) [2022] SCSC 813 (16 September 2022);

Fabianna Savy — Thu, 19 Jan 2023 10:30:20 +0000

R v Ferguson and anor (CO 16 of 2021) [2022] SCSC 813 (16 September 2022);

Flynote

Criminal law

Fabianna Savy Thu, 01/19/2023 - 10:30

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Headnote and holding

M VIDOT J

The Court hereby vary the bail conditions dated 17th December 2021 on the 1^st Accused as

follows:

[1] That is condition no.9 will be lifted, whereby no curfew shall be impose on him to facilitate him to go to work since he will be working night shifts at Carana Hotel.

[2] The 1^st Accused shall report to Central Police Station every Monday, Wednesday and Thursday.

Signed, dated and delivered at Ile du Port on 16 September 2022.

____________

M VIDOT

JUDGE

M VIDOT J

The Court hereby vary the bail conditions dated 17th December 2021 on the 1^st Accused as

follows:

[1] That is condition no.9 will be lifted, whereby no curfew shall be impose on him to facilitate him to go to work since he will be working night shifts at Carana Hotel.

[2] The 1^st Accused shall report to Central Police Station every Monday, Wednesday and Thursday.

Signed, dated and delivered at Ile du Port on 16 September 2022.

____________

M VIDOT

JUDGE

R v Jean-Charles & Anor (CO 100 of 2021) [2022] SCSC 386 (12 May 2022);

Olya Hetsman — Mon, 16 Jan 2023 10:32:58 +0000

R v Jean-Charles & Anor (CO 100 of 2021) [2022] SCSC 386 (12 May 2022);

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Criminal law

Olya Hetsman Mon, 01/16/2023 - 10:32

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2022-scsc-386.pdf

S.E. v R (SCA CR 70 of 2022) [2022] SCCA 68 (16 December 2022);

Mithila Mudalige — Wed, 28 Dec 2022 05:40:44 +0000

S.E. v R (SCA CR 70 of 2022) [2022] SCCA 68 (16 December 2022);

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Criminal law

Mithila Mudalige Wed, 12/28/2022 - 05:40

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appeal of conviction and sentence- sexual assault of 13-year-old girl-omission of formal conviction on record of transcript - alibi defence - severity of 15-year sentence

Headnote and holding

The appeal is dismissed

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IN THE COURT OF APPEAL OF SEYCHELLES

Reportable

[2022] SCCA 70

(16 December 2022)

SCA CR 07/2022

(Appeal from CO 48/2020) SCSC 16

S.E. Appellant

(rep. by Clifford André)

and

THE REPUBLIC Respondent

(rep. by Luthina Monthy)

Neutral Citation: S.E. v R (SCA 07/2022) [2022] SCCA 70 (16 December 2022)

(Arising in CO 48/2020) [2021] SCSC 16 (13 January 2021)

Before: Twomey-Woods, Robinson, Tibatemwa-Ekirikubinza, JJA

Summary: appeal of conviction and sentence- sexual assault of 13-year-old girl-omission of formal conviction on record of transcript - alibi defence - severity of 15-year sentence

Heard: 1 December 2022

Delivered: 16 December 2022

ORDER

The appeal is dismissed. Both the conviction and sentence are upheld.

JUDGMENT

______________________________________________________________________________

DR. M. TWOMEY-WOODS JA

(Robinson and Tibatemwa-Ekirikubinza JA concurring)

Background

The appellant, a thirty-four-year-old man, was charged with the sexual assault (rape) of A.N., a thirteen-year-old girl, in February 2019. The learned Chief Justice rejected the appellant’s alibi defence. On 13 January 2022, the court found the appellant guilty of the offence, and he was sentenced to fifteen years imprisonment.

Grounds of appeal

It is from this conviction and sentence that he has appealed on the following eight grounds:

The learned trial judge erred in law and on the facts, for having failed in the first instance to make a finding of facts, as to whether the prosecution has proven the offence beyond a reasonable doubt against the appellant.

The learned trial judge erred in law for having failed to convict the appellant for the alleged offence against him, on the basis of the evidence on records, prior to proceeding with the sentencing of the appellant, same failures which amount to a fatal irregularity in law.

The learned trial judge erred in law and on the facts for having found the appellant guilty of the alleged offence of sexual assault and more fully in having concluded that the evidence of the virtual complainant was cogent, credible, and consistent.

The learned trial judge erred in law and on the facts for having failed to appreciate that the prosecution’s evidence clearly shows that the virtual complainant never related the alleged incident, voluntarily and without a prompt.

The learned trial judge erred in law and on the facts for having failed to sufficiently and/or fully appreciate and analyse the legal principles relating to the defence of alibi, as raised by the Appellant, prior to his considerations of the appellant’s evidence relating to the same defence.

The learned trial judge erred in law and on the facts for having wrongly applied the principles of law relating to the defence of alibi as raised by the appellant, in his considerations of the defence’s evidence raised before the trial court.

Further or alternatively to ground 6 above, the learned trial judge erred in law and on the facts in failing to consider sufficiently and/or fully, the totality f the appellant's evidence before the trial court, relating to his defence of alibi before the court and/or in drawing the wrong inferences from the appellant's evidence relating to the same defence.

The learned trial judge erred in law and on the facts in meting a sentence of fifteen years imprisonment on the charge, against the appellant in that the sentence is manifestly harsh and excessive and goes contrary to sentencing principles relating to the same offence charged.

I propose to treat some of these grounds together as they are issue related.

Grounds 1 and 2 – material irregularities in the judgment

It is submitted that the learned Chief Justice did not address his mind as to whether or not all the elements of the crime with which the accused was charged had been proved beyond reasonable doubt by the prosecution. It is further submitted that the learned trial judge also did not formally convict the accused of the offence after finding him guilty as charged.
Learned counsel for the appellant, Mr. Camille, has submitted that although the learned trial judge stated that he found “the victim’s evidence to be cogent, credible and consistent” and subsequently asserted, “I will act on it totally”, he nevertheless did not satisfy himself as to whether the prosecution had indeed proven the case beyond reasonable doubt as there is no record of such a pronouncement in the judgment. In Counsel’s view, this is fatal to the case.
On the other hand, learned counsel for the respondent, Mrs. Monthy, has contended that the learned trial judge did make a finding of fact that the prosecution had proved the offence beyond a reasonable doubt. She submits that he had first, appropriately, taken note in the second paragraph of his judgment that the prosecution bears the burden of proving that the accused committed the crime beyond a reasonable doubt, and after considering the facts and circumstances of the case as a whole, had noted in the last paragraph of his judgment that “I, therefore, find the accused guilty beyond a reasonable doubt as charged in this case.” This, she submits, shows an adequate consideration as to whether the prosecution had acquitted itself of its burden of proof.
With regard to ground 2, Mr. Camille has submitted that the transcript of proceedings does not show that the learned trial judge proceeded to convict the appellant but merely stated: “I, therefore, find the accused guilty beyond a reasonable doubt as charged in this case.” In his submission, this is also fatal to the case.
Mrs. Monthy has submitted that failing to record a conviction is not fatal to the case. Both counsel have referred the court to section 143(2) of the Criminal Code of Procedure and several authorities on this issue. Mr. Camille has submitted that the case of Marie v R[1] established that the failure to convict an accused before imposing a sentence is a fatal irregularity. In contrast, Mrs. Monthy has relied on the authorities of Larue & Anor v R[2] and Hoareau v R[3] to propose that such omission is not a fatal irregularity.
Before I examine the authorities on this issue, I am guided by the Criminal Procedure Code. First of all, the Code, in relation to the necessary contents of a judgment, provides as follows:

Section 143

(1) Every such judgment shall, except as otherwise expressly provided by this Code, be written by the presiding officer of the court in the language of the court, and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the presiding officer in open court at the time of pronouncing it.

(2) In the case of a conviction, the judgment shall specify the offence of which, and the section of the Penal Code or other law under which the accused person is convicted, and the punishment to which he is sentenced. (Emphasis added)

Analysed against these provisions, can it be said that the learned Chief Justice's judgment falls short of these requirements? The learned Chief Justice states at the beginning of his judgment that “the prosecution bears the burden of proving that the accused committed the alleged crime beyond reasonable doubt”. He then summarises the prosecution's case, outlining the appellant's alibi defence. The next part of his judgment analyses and determines the issues raised in the case: whether corroboration of the complainant's evidence in sexual offences is necessary for Seychelles - he determines that it is not; whether he believes the prosecution evidence - he determines that the victim’s evidence is cogent, credible and consistent and states that he will “therefore […] act on it”. Next, he analyses the alibi evidence and determines whether he can act on it to rebut the evidence of the prosecution – he states that the evidence fails as it is ambiguous, inconsistent, not cogent and unreliable.
He concludes that “the alibi does not cast doubt on the victim’s account which is intelligible” and finds, “the accused guilty beyond reasonable doubt as charged in the case.”
Given these statements in the judgment, which in my view, satisfy section 143 of the Code, I fully endorse Mrs. Monthy’s submissions on these points. At the heart of this appeal is the correct approach to evaluating evidence by the trial court. Appeal courts should not be concerned that a trial judge does not use the mantra “I find that the prosecution has proved its case beyond reasonable doubt” or words to that effect. What is essential are signs, indices, and proof that a trial judge has evaluated the evidence against the correct burden and standard of proof. The record of proceedings and decision in the present case, as borne out by the statements from the judgment cited above, clearly indicate that the court was alive to its duty in assessing the evidence and acquitted itself of the necessary burden and standard of proof as required.
It must also be noted that there is no set template for recording one’s findings of fact in any particular case. There is no irregularity if the judgment meets the criteria in section 143 of the Code.
With regard to the fact that the learned Chief Justice did not use the words: “I convict the accused”, similar submissions to the ones made in the present case have been made in the past.
In Confiance v R[4], the oldest case on this point in this jurisdiction, the Court of Appeal ruled that although there was a failure to comply with the provisions of section 149 of the Criminal Procedure Code,[5] that is, strict compliance with the provisions of the Code, as long as the presiding officer has specified the offence of which, and the section of the Penal Code or other law under which the accused person was convicted, no failure of justice is occasioned to merit setting aside the conviction. Similarly, in Camille,[6] a magistrate did not record a formal conviction against an accused. On appeal, the Supreme Court found that the irregularity was curable under section 338 of the Criminal Procedure Code.[7] This is again because the court found that no failure of justice had been occasioned.
This line of jurisprudence was followed thereafter until the case of Marie v R.[8] In this regard, it must be noted that Marie was a Magistrates’ Court case in which established precedent had not been followed. It was clearly a case decided per incuriam and cannot be relied on.
I am strengthened in this view by the subsequent Court of Appeal cases of Larue & Anor v The Republic[9] and Hoareau v R[10]. The Court emphatically decided in those cases that the omission to record a formal conviction does not amount to an irregularity capable of having the conviction set aside.
This is because of the proviso in section 344 of the Criminal Procedure Code, which provides in relevant part:

“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account—

of any error, omission or irregularity in the summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, …

unless such error, omission, irregularity or misdirection has in fact occasioned a failure of justice:

Provided that in determining whether any error, omission, or irregularity has occasioned a failure of justice the court shall have been raised at an earlier stage in the proceedings.”

I therefore consider this issue settled and find that there is no merit in those two grounds, which are therefore dismissed.

Grounds 3 and 4 – the cogency of the complainant's evidence

Mr. Camille has submitted that the complainant’s evidence should not have been relied on as it was prompted or elicited by questions of a leading and inducing or intimidating character. He relies on the case of Rv Osborne[11] for this proposition.
I must first point out that the ratio in Osborne is to the effect that evidence of a similar complaint against an accused is admissible only to show that it is consistent with the complainant’s evidence. The statement in that judgment relating to evidence “not elicited by questions of a leading and inducing or intimidating character” refers to a similar complaint. It is disingenuous, if not misleading, to refer the court to this authority. It has no relevance to the present case, where there was no attempt by the prosecution to adduce evidence of a similar complaint against the accused.
Mr. Camille’s reference to the 1998 publication of Archbold about how the evidence of “females alleged to have been wronged” ought to be treated is not only misogynistic and dated but has been firmly settled in this jurisdiction by the case of Lucas v R.[12] It is settled jurisprudence that the evidence of a female complainant does not attract the necessity of a corroboration warning. Corroboration is a matter for the judge’s discretion based on the circumstances, the manner, and the content of the evidence, as in any other criminal case, regardless of the gender of the complainant.
The present case is one where the learned trial judge attached great credibility to the complainant's evidence. He stated:

“In the present case, I found the victim’s evidence to be cogent, credible, and consistent, and therefore I will act on it totally.”

It is trite that a court of appeal does not lightly interfere with the credibility findings of a trial court. There is no compelling reason for making an exception in this case. These grounds of appeal are therefore also devoid of merit and are dismissed.

Grounds 5, 6 and 6 – the reliability of the alibi defence

With regard to these grounds of appeal, Mr. Camille first submits that the learned trial judge did not enunciate the principles of law relating to the defence of alibi and therefore failed to direct himself on the law applicable in the present case. Secondly, he avers that the learned trial judge only considered the case of R v Vidot[13] to the exclusion of leading cases relating to the onus on the prosecution to disprove an alibi defence beyond reasonable doubt. He further avers that the learned trial judge did not consider the law regarding alibis as contained in the case of Sopha v R.[14]
Mr. Camille has also submitted that the alibi evidence was strong and never contradicted by the prosecution.
Mrs. Monthy has contended that the learned trial judge in accordance with the principles laid down in the case of Vidot, did not find the evidence of the defence witnesses in the present case with regard to the alibi of the accused to be consistent, cogent and reliable. She submits that there were serious material inconsistencies between the accused’s version and one of his witnesses. Ultimately the learned trial judge found that “the alibi [did] not cast doubt on the victim’s account which [was] intelligible.
Vidot was also a case concerning a charge of sexual assault in which the accused had tendered an alibi. The trial judge found that the accused and his witnesses did not give evidence that was consistent, cogent and reliable on the material particulars. He also noted that the prosecution bears the overall burden of proving the guilt of the accused even when he has raised the defence of alibi. The prosecution has to rebut the evidence and prove beyond reasonable doubt that the accused was there at the time and place of the alleged crime.
Sopha preceded Vidot but the principles enunciated by this court in relation to the burden on the prosecution where the defence of the accused is an alibi were not different. This Court found that in cases where the accused tenders a defence of alibi, the prosecution still has to prove its case beyond reasonable doubt. The Court stated:

“The proper approach is to examine the alibi and decide whether or not it has been established. If it has been established then the accused must be acquitted. If it has not been established but it appears that it may be true, then the accused should also be acquitted since there would be doubt as to whether the accused is guilty or not. If the alibi is clearly rejected then the case for the prosecution must be examined to determine whether it establishes the guilt of the accused. The rejection of an alibi is not of itself a ground for basing guilt. A conviction must be based on the strength of the case for the prosecution, not the weakness of the defence.”

This is the correct approach, and I endorse the principles as stated. However, I fail to see why Sopha has been relied on by Mr. Camille for the proposition that the trial judge in the present case did not satisfy himself that the prosecution had proved its case beyond reasonable doubt. The learned trial judge stated that he believed the complainant's evidence and that the prosecution had proved its case beyond reasonable doubt; he only added that the alibi did not cast doubt on the complainant’s evidence.
I accept that a misdirection as to the burden of proof can be fatal to a conviction. Where an alibi is raised, there is no burden on the accused – the burden is on the prosecution to negative the alibi beyond reasonable doubt. Generally, with or without an alibi, and notwithstanding any defence, the prosecution still has the burden to prove its case beyond reasonable doubt.[15] The accused never has to prove his innocence.
In the present case, it would have been better for the trial judge to have stated separately that he rejected the alibi evidence and that the prosecution had proved its case beyond reasonable doubt. What is essential, however, is that the judge did not shift the burden of proof onto the defence. Similarly to the case of Sopha, there was no miscarriage of justice, and the proviso in section 344 of the Criminal Procedure Code can be applied.

Notice of alibi defence

There is another matter relating to the alibi defence that I wish to raise - if only to address the expediency of trials. This concerns notice of an alibi to the prosecution. When this trial occurred, Practice Directions No. 3 of 2017 were in force.[16] These directions required the accused to provide a list of witnesses and indicate what elements of the offence would be disputed at trial – in other words, what his defence to the offence would be.
The transcript of proceedings reveals that during a pleas and direction hearing held on 31 July 2020, Counsel for the accused indicated that only the accused would be testifying. Subsequently, at a pretrial review on 9 November 2020, Counsel for the accused revealed that he would have two witnesses. Details of the defence disclosed were that “all the elements of the offence would be disputed.” An alibi was not indicated. It was only when the defendant testified that it became clear that his defence was essentially an alibi.
In the circumstances, the prosecution had no opportunity to verify the alibi. In this regard, section 5 of the Evidence Act provides in relevant part:

“Whenever the Republic or any other party to a trial is required by any law or rule of court in force in Seychelles to file a list of witnesses or give a notice of facts, if at the trial witnesses be tendered whose names have not been included in such list, or who have not been sufficiently described therein, or if evidence be tendered of a fact omitted from or not sufficiently set out in such notice of facts, or if such lists or notice shall not have been filed or given within the time fixed by law, it shall not be lawful for the court to reject the proof of such facts or refuse the witnesses offered merely on the ground that such notice of facts, list or description of witnesses has not been served in time, provided the court is satisfied that there has been no mala fides, but the court shall be at liberty to postpone the trial with such terms as to costs, if any, as to the court may seem just…” (emphasis added)

Whereas section 5 does not permit the court to reject an alibi as a defence when no notice of the same has been given by the accused (except in cases of bad faith), it could have adjourned the matter for the prosecution to verify the alibi. Several cameras in Victoria would have recorded the accused’s vehicle being towed on 10 February 2019. The prosecution failed to apply for such an adjournment to do this simple check.
The logic of giving notice of witnesses generally in a trial is clear. It prevents a trial by ambush. In cases where there is an alibi, it provides the prosecution with an opportunity to investigate the validity of the alibi and either prepare to undermine its credibility or, if proven true, to drop the charges against the defendant.
The Practice Directions, now repealed, put those rules in place and should have been observed by the court and parties in this case. The Directions reinforced the constitutional fair trial requirement to prevent surprise twists in trials and to meet the discovery standards demanded of a modern and democratic society.
Our source of criminal law is the common law, in which it has long been recognised that an alibi is a defence requiring special rules. In tracing the history of alibis in the common law, David Epstein[17] notes that:

“At common law, all defences except autrefois acquit, autrefois convict, and former pardon were admissible under a plea of not guilty. As a result, a problem faced the

prosecutor, who could not be prepared to meet any and all defences. In 1887 Scotland tried to rectify this situation and required that the defendant give notice when his defence would be alibi, insanity at the time of the act, commission of the act by another named and designated, self-defence, sleep or temporary mental disassociation, or hysterical amnesia.”

In R v Brown,[18] Lord Hope explained that before rules of disclosure had been codified, they existed in common law as a duty developed because of the elementary right of every defendant to a fair trial. He referred to R v Keane[19] in which Lord Taylor of Gosforth C.J. had also referred to “the great principle […] of open justice.”[20]
In any case, common law rules of disclosure emerged slowly and painstakingly in the nineteenth and twentieth centuries as preliminary hearings replaced the grand juries charged with determining whether there was good cause to commit an accused to trial. However, the preliminary hearing served primarily as:

“a discovery device for the benefit of the defence, afford[ing] it a safeguard against ill-founded prosecutions as well as substantive protection against surprise at the trial.”[21]

These common law rules were eventually codified in the Criminal Justice Act 1967, together with the added duty of the accused to notify the prosecution about an alibi defence. Inevitably, this has pitched the State against an accused’s constitutional right to remain silent. Nevertheless, John Burchill[22] in expounding on the unavoidable tension between the right to remain silent and the fact that notice should be required for an alibi defence, states that:

“Given the ease with which an alibi could be fabricated, this rule protects against a last-minute defence that may be impossible for the Crown to verify.”

In this regard, Alec Samuels[23] adds that:

“The criminal trial should be a fairly conducted inquiry into the truth, not a forensic game.”[24]

It must also be noted that in many common law jurisdictions where advance notice of an alibi is not given and then raised during a trial, an adverse inference from the late disclosure can be drawn, although the court cannot prevent the evidence from being called. Moreover, where there is evidence that an alibi has been fabricated, this may be used as circumstantial evidence to draw an inference or “consciousness” of guilt.[25]
In the case of Noble,[26] the Canadian Supreme Court, reiterated that the requirement to disclose an alibi defence before trial is a necessary exception to an accused’s right to silence. This rule may be traced back to the case of R v Jenkins[27].
What of our jurisdiction in Seychelles, then? As I have pointed out, there is an enshrined constitutional right to remain silent when charged.[28] Additionally, an accused person has a constitutional right to remain silent at the trial[29] and not to have an adverse inference drawn from his exercise of that right.[30] These are absolute rights and are not subject to limitations, unlike other rights, which are subject to qualification by law when necessary in a democratic society.[31] It is clear, therefore, that requiring an accused person to provide notice of alibi would be in breach of the Charter of Fundamental and Human Rights and Freedoms in the Constitution. A court cannot, therefore, require an accused person to disclose particulars of an alibi if he wishes to rely on the same at trial. The trial can only be delayed if an adjournment is sought by the prosecution to inquire into the alibi details.
As I have said this was not an issue at the trial, and the grounds raised regarding the alibi have no substance and are dismissed in their entirety.

A manifestly harsh and excessive sentence contrary to sentencing principles – Ground 8

The final ground of appeal as submitted by Mr. Camille for the appellant, is that the learned trial judge erred in law and on the facts in meting a sentence of fifteen years imprisonment on the charge, against the appellant in that the sentence is manifestly harsh and excessive and goes contrary to sentencing principles relating to the same offence charged. He has relied on the case of R v Suzette[32], in which this Court reduced a sentence of nine years upheld by the Supreme Court for the sexual assault by a teacher of a pupil of thirteen years from the same school in which he taught.
Mrs. Monthy has submitted that the offence with which the appellant was charged with carries a maximum penalty of twenty years.[33] She has also proposed that on the authority of Marengo v R,[34] and Cedras v R[35] the sentencing power is discretionary, exercisable by the court and that unless the sentence imposed goes beyond recent trends the court will not interfere with it.
Sentencing principles generally were expounded by the Supreme Court in the case of R v MI and ors.[36] Those relevant to the present appeal bear repeating: aggravating factors, including penetration by an act of sexual intercourse with a minor, the young age of the complainant, the position of trust held by the appellant with regard to the complainant; the interests of society – the protection of vulnerable members of society and the welfare of children from the degenerate conduct of rapists and paedophiles.[37]
If anything, previous sentences in similar cases do not reflect the increase in such cases clearly demonstrated by the incidence of such issues before the courts. It is extremely concerning that the court found the rape of a thirteen-year-old schoolgirl by a teacher meriting a sentence of only four and half years on the grounds that:

“There [was]no evidence that [she] was tricked, coerced, misled or in any way forced into having sexual intercourse with the appellant. There is no evidence that this was the first time that she ever had sexual intercourse.”

A child does not and cannot consent to intercourse. It is even worse when it is a person in a relationship of trust that commits the offence. Whether a complainant has had sexual intercourse before is not a consideration to be taken into account in cases of sexual assault. This court in Jumeau v R[38] has already distanced itself from the decision in Suzette, remarking that it was given per incuriam. I reiterate that the case of Suzette is an aberration and must not be relied on by any court.
In the present case, the appellant was the family taxi driver and the despair and trauma of the complainant after pleading with him to take her home and not to touch her are all too evident from the proceedings. She will remain traumatised for the rest of her life. She has borne the consequences of this crime, a child she has carried to term. Two young lives have been scarred.
I am aware that a sentence of fifteen years was severe and at the higher end of the scale. It was, however, neither wrong in law nor in principle. It was not manifestly harsh or excessive, given the offence, the maximum penalty imposable, the particular circumstances of this case and the considerations of public interest I have already outlined. In the circumstances, I see no reason to interfere with it. This ground of appeal is also devoid of merit.
For all these reasons, this appeal fails in its entirety.

Order

The appeal is dismissed. The conviction and the sentence are upheld.

_____________________________

Dr. M. Twomey-Woods, JA.

I concur ________________

Dr. L. Tibatemwa-Ekirikubinza, JA

F. ROBINSON JA

[57] I agree with the conclusion and order made by Justice Twomey-Woods in this case

that the appeal be dismissed.

[58] For the avoidance of doubt, I reserve my opinion with respect to her finding as to whether or not “[46] [...] requiring an accused person to provide notice of alibi would be in breach of the Charter of Fundamental and Human Rights and Freedoms in the Constitution.” The finding goes on to state that “[46] […] [a] court cannot, therefore, require an accused person to disclose particulars of an alibi if he wishes to rely on the same at trial.”

__________________

F. Robinson JA

Signed, dated and delivered at Ile du Port on 16 December 2022.

[1] (1985) SLR 75

[2] (1998- 1993) SCAR 131 (SCA) 1 of 1998) [1989] SCCA 5 (25 October 1989).

[3] (SCA 4 of 1989)[1989] SCCA 13 (25 October 1989).

[4] (1956- 1962) SCAR 220.

[5] Now section 344 of the Criminal Procedure Code.

[6] (1972) SLR 16.

[7] Section 338 of the Criminal Procedure Code contained the same provision that is now now contained in section 344 of the Criminal Procedure Code.

[8] Supra, fn 1

[9] Supra, fn 2.

[10] Supra fn 3

[11] [1905] I KB 551.

[12] (2011) SLR 313, (SCA 17 of 2009) [2011] SCCA 38 (02 September 2011).

[13] Vidot v Republic 3(7 of 1999) [2004] SCSC 11 (02 November 2004)

[14] Sopha & Anor v Republic (1988 – 1993) SCAR 209 (SCA 2 of 1991) [1991] SCCA 10 (14 October 1991)

[15] There are few exceptions - these are provided by statute – e.g. insanity as contained in section 13 of the Penal Code.

[16] These directions were repealed by the Chief Justice in 2021.

[17] David M. Epstein, Advance Notice of Alibi, 55 J. Crim. L. Criminology & Police Sci. 29 (1964).

[18] [1997] UKHL 33; [1998] AC 367; [1997] 3 All ER 769; [1997] 3 WLR 447; [1998] 1 Cr App Rep 66 (24th July, 1997)

[19] [1994] 1 W.L.R. 746.

[20] Ibid, page 370.

[21] Roger J. Traynor, Ground Lost and Found in Criminal Discovery in England, 39 N.Y.U. L. REV. 749 (1964), 754.

[22] John W Burchill, Alibi Evidence: Responsibility for Disclosure and Investigation, 2018 41-3 Manitoba Law Journal 99, 2018

[23] A. Samuels, The Criminal Justice Act, 31 (1) The Modern Law review, 16 (1968).

[24] Ibid, at 22.

[25] See the Canadian Suporme Court case of R v Hibbert 2002 2 SCR 445 at 62.

[26] R v Noble [1997] 1 SCR 874 146 DLR (4th) 385 [Noble].

[27] (1908), 14 C.C.C. 221 at p. 230, 14 B.C.R 61 (C.A.)

[28] Article 18 (3) of the Constitution provides: “A person who is arrested or detained has a right to…remain silent”

[29] Article 19 (2) (g) of the Constitution provides:” Every person who is charged with an offence – shall not be compelled to testify at the trial or confess guilt…”

[30] Article 19 (2) (h).

[31] Article 10 provides: Anything contained in or done under the authority of any law necessary in a democratic society shall not be held to be inconsistent with or in contravention of—
(a)clause (1), (2)(e) or (8), to the extent that the law in question makes necessary provision relating to the grounds of privilege or public policy on which evidence shall not be disclosed or witnesses are not competent or cannot be compelled to give evidence in any proceedings; (b)clause (2)(a), to the extent that the law in question imposes upon any person charged with an offence the burden of proving particular facts or declares that the proof of certain facts shall be prima facie proof of the offence or of any element thereof; (c)clause (2)(e), to the extent that the law in question imposes conditions that must be satisfied if witnesses called to testify on behalf of an accused person are to be paid their expenses out of public funds…” Therefore, the right to silence is not included in those rights capable of being circumscribed.

[32] R v Suzette (CP 5 of 2014) [2017] SCSC 916 (09 October 2017).

[33] See section 130 (1) Penal Code.

[34] (SCA 29 of 2018) [2019] SCCA 28 (22 August 2019).

[35] (SCA 38 of 2014) [2017] SCCA 3 (20 April 2017).

[36] R v Ml & Ors (CR 38 of 2019) [2020] SCSC 256 (16 April 2020)

[37] Simon v R [1980] SCAR 557

[38] (SCA 22 of 2018) [2019] SCCA 30 (22 August 2019).

Law report citations

S.E. v R (SCA 07/2022) [2022] SCCA 70 (16 December 2022) (Arising in CO 48/2020) [2021] SCSC 16 (13 January 2021)

IN THE COURT OF APPEAL OF SEYCHELLES

Reportable

[2022] SCCA 70

(16 December 2022)

SCA CR 07/2022

(Appeal from CO 48/2020) SCSC 16

S.E. Appellant

(rep. by Clifford André)

and

THE REPUBLIC Respondent

(rep. by Luthina Monthy)

Neutral Citation: S.E. v R (SCA 07/2022) [2022] SCCA 70 (16 December 2022)

(Arising in CO 48/2020) [2021] SCSC 16 (13 January 2021)

Before: Twomey-Woods, Robinson, Tibatemwa-Ekirikubinza, JJA

Summary: appeal of conviction and sentence- sexual assault of 13-year-old girl-omission of formal conviction on record of transcript - alibi defence - severity of 15-year sentence

Heard: 1 December 2022

Delivered: 16 December 2022

ORDER

The appeal is dismissed. Both the conviction and sentence are upheld.

JUDGMENT

______________________________________________________________________________

DR. M. TWOMEY-WOODS JA

(Robinson and Tibatemwa-Ekirikubinza JA concurring)

Background

The appellant, a thirty-four-year-old man, was charged with the sexual assault (rape) of A.N., a thirteen-year-old girl, in February 2019. The learned Chief Justice rejected the appellant’s alibi defence. On 13 January 2022, the court found the appellant guilty of the offence, and he was sentenced to fifteen years imprisonment.

Grounds of appeal

It is from this conviction and sentence that he has appealed on the following eight grounds:

The learned trial judge erred in law and on the facts, for having failed in the first instance to make a finding of facts, as to whether the prosecution has proven the offence beyond a reasonable doubt against the appellant.

The learned trial judge erred in law for having failed to convict the appellant for the alleged offence against him, on the basis of the evidence on records, prior to proceeding with the sentencing of the appellant, same failures which amount to a fatal irregularity in law.

The learned trial judge erred in law and on the facts for having found the appellant guilty of the alleged offence of sexual assault and more fully in having concluded that the evidence of the virtual complainant was cogent, credible, and consistent.

The learned trial judge erred in law and on the facts for having failed to appreciate that the prosecution’s evidence clearly shows that the virtual complainant never related the alleged incident, voluntarily and without a prompt.

The learned trial judge erred in law and on the facts for having failed to sufficiently and/or fully appreciate and analyse the legal principles relating to the defence of alibi, as raised by the Appellant, prior to his considerations of the appellant’s evidence relating to the same defence.

The learned trial judge erred in law and on the facts for having wrongly applied the principles of law relating to the defence of alibi as raised by the appellant, in his considerations of the defence’s evidence raised before the trial court.

Further or alternatively to ground 6 above, the learned trial judge erred in law and on the facts in failing to consider sufficiently and/or fully, the totality f the appellant's evidence before the trial court, relating to his defence of alibi before the court and/or in drawing the wrong inferences from the appellant's evidence relating to the same defence.

The learned trial judge erred in law and on the facts in meting a sentence of fifteen years imprisonment on the charge, against the appellant in that the sentence is manifestly harsh and excessive and goes contrary to sentencing principles relating to the same offence charged.

I propose to treat some of these grounds together as they are issue related.

Grounds 1 and 2 – material irregularities in the judgment

It is submitted that the learned Chief Justice did not address his mind as to whether or not all the elements of the crime with which the accused was charged had been proved beyond reasonable doubt by the prosecution. It is further submitted that the learned trial judge also did not formally convict the accused of the offence after finding him guilty as charged.
Learned counsel for the appellant, Mr. Camille, has submitted that although the learned trial judge stated that he found “the victim’s evidence to be cogent, credible and consistent” and subsequently asserted, “I will act on it totally”, he nevertheless did not satisfy himself as to whether the prosecution had indeed proven the case beyond reasonable doubt as there is no record of such a pronouncement in the judgment. In Counsel’s view, this is fatal to the case.
On the other hand, learned counsel for the respondent, Mrs. Monthy, has contended that the learned trial judge did make a finding of fact that the prosecution had proved the offence beyond a reasonable doubt. She submits that he had first, appropriately, taken note in the second paragraph of his judgment that the prosecution bears the burden of proving that the accused committed the crime beyond a reasonable doubt, and after considering the facts and circumstances of the case as a whole, had noted in the last paragraph of his judgment that “I, therefore, find the accused guilty beyond a reasonable doubt as charged in this case.” This, she submits, shows an adequate consideration as to whether the prosecution had acquitted itself of its burden of proof.
With regard to ground 2, Mr. Camille has submitted that the transcript of proceedings does not show that the learned trial judge proceeded to convict the appellant but merely stated: “I, therefore, find the accused guilty beyond a reasonable doubt as charged in this case.” In his submission, this is also fatal to the case.
Mrs. Monthy has submitted that failing to record a conviction is not fatal to the case. Both counsel have referred the court to section 143(2) of the Criminal Code of Procedure and several authorities on this issue. Mr. Camille has submitted that the case of Marie v R[1] established that the failure to convict an accused before imposing a sentence is a fatal irregularity. In contrast, Mrs. Monthy has relied on the authorities of Larue & Anor v R[2] and Hoareau v R[3] to propose that such omission is not a fatal irregularity.
Before I examine the authorities on this issue, I am guided by the Criminal Procedure Code. First of all, the Code, in relation to the necessary contents of a judgment, provides as follows:

Section 143

Analysed against these provisions, can it be said that the learned Chief Justice's judgment falls short of these requirements? The learned Chief Justice states at the beginning of his judgment that “the prosecution bears the burden of proving that the accused committed the alleged crime beyond reasonable doubt”. He then summarises the prosecution's case, outlining the appellant's alibi defence. The next part of his judgment analyses and determines the issues raised in the case: whether corroboration of the complainant's evidence in sexual offences is necessary for Seychelles - he determines that it is not; whether he believes the prosecution evidence - he determines that the victim’s evidence is cogent, credible and consistent and states that he will “therefore […] act on it”. Next, he analyses the alibi evidence and determines whether he can act on it to rebut the evidence of the prosecution – he states that the evidence fails as it is ambiguous, inconsistent, not cogent and unreliable.
He concludes that “the alibi does not cast doubt on the victim’s account which is intelligible” and finds, “the accused guilty beyond reasonable doubt as charged in the case.”
Given these statements in the judgment, which in my view, satisfy section 143 of the Code, I fully endorse Mrs. Monthy’s submissions on these points. At the heart of this appeal is the correct approach to evaluating evidence by the trial court. Appeal courts should not be concerned that a trial judge does not use the mantra “I find that the prosecution has proved its case beyond reasonable doubt” or words to that effect. What is essential are signs, indices, and proof that a trial judge has evaluated the evidence against the correct burden and standard of proof. The record of proceedings and decision in the present case, as borne out by the statements from the judgment cited above, clearly indicate that the court was alive to its duty in assessing the evidence and acquitted itself of the necessary burden and standard of proof as required.
It must also be noted that there is no set template for recording one’s findings of fact in any particular case. There is no irregularity if the judgment meets the criteria in section 143 of the Code.
With regard to the fact that the learned Chief Justice did not use the words: “I convict the accused”, similar submissions to the ones made in the present case have been made in the past.
In Confiance v R[4], the oldest case on this point in this jurisdiction, the Court of Appeal ruled that although there was a failure to comply with the provisions of section 149 of the Criminal Procedure Code,[5] that is, strict compliance with the provisions of the Code, as long as the presiding officer has specified the offence of which, and the section of the Penal Code or other law under which the accused person was convicted, no failure of justice is occasioned to merit setting aside the conviction. Similarly, in Camille,[6] a magistrate did not record a formal conviction against an accused. On appeal, the Supreme Court found that the irregularity was curable under section 338 of the Criminal Procedure Code.[7] This is again because the court found that no failure of justice had been occasioned.
This line of jurisprudence was followed thereafter until the case of Marie v R.[8] In this regard, it must be noted that Marie was a Magistrates’ Court case in which established precedent had not been followed. It was clearly a case decided per incuriam and cannot be relied on.
I am strengthened in this view by the subsequent Court of Appeal cases of Larue & Anor v The Republic[9] and Hoareau v R[10]. The Court emphatically decided in those cases that the omission to record a formal conviction does not amount to an irregularity capable of having the conviction set aside.
This is because of the proviso in section 344 of the Criminal Procedure Code, which provides in relevant part:

“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account—

of any error, omission or irregularity in the summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, …

unless such error, omission, irregularity or misdirection has in fact occasioned a failure of justice:

Provided that in determining whether any error, omission, or irregularity has occasioned a failure of justice the court shall have been raised at an earlier stage in the proceedings.”

I therefore consider this issue settled and find that there is no merit in those two grounds, which are therefore dismissed.

Grounds 3 and 4 – the cogency of the complainant's evidence

Mr. Camille has submitted that the complainant’s evidence should not have been relied on as it was prompted or elicited by questions of a leading and inducing or intimidating character. He relies on the case of Rv Osborne[11] for this proposition.
I must first point out that the ratio in Osborne is to the effect that evidence of a similar complaint against an accused is admissible only to show that it is consistent with the complainant’s evidence. The statement in that judgment relating to evidence “not elicited by questions of a leading and inducing or intimidating character” refers to a similar complaint. It is disingenuous, if not misleading, to refer the court to this authority. It has no relevance to the present case, where there was no attempt by the prosecution to adduce evidence of a similar complaint against the accused.
Mr. Camille’s reference to the 1998 publication of Archbold about how the evidence of “females alleged to have been wronged” ought to be treated is not only misogynistic and dated but has been firmly settled in this jurisdiction by the case of Lucas v R.[12] It is settled jurisprudence that the evidence of a female complainant does not attract the necessity of a corroboration warning. Corroboration is a matter for the judge’s discretion based on the circumstances, the manner, and the content of the evidence, as in any other criminal case, regardless of the gender of the complainant.
The present case is one where the learned trial judge attached great credibility to the complainant's evidence. He stated:

“In the present case, I found the victim’s evidence to be cogent, credible, and consistent, and therefore I will act on it totally.”

It is trite that a court of appeal does not lightly interfere with the credibility findings of a trial court. There is no compelling reason for making an exception in this case. These grounds of appeal are therefore also devoid of merit and are dismissed.

Grounds 5, 6 and 6 – the reliability of the alibi defence

With regard to these grounds of appeal, Mr. Camille first submits that the learned trial judge did not enunciate the principles of law relating to the defence of alibi and therefore failed to direct himself on the law applicable in the present case. Secondly, he avers that the learned trial judge only considered the case of R v Vidot[13] to the exclusion of leading cases relating to the onus on the prosecution to disprove an alibi defence beyond reasonable doubt. He further avers that the learned trial judge did not consider the law regarding alibis as contained in the case of Sopha v R.[14]
Mr. Camille has also submitted that the alibi evidence was strong and never contradicted by the prosecution.
Mrs. Monthy has contended that the learned trial judge in accordance with the principles laid down in the case of Vidot, did not find the evidence of the defence witnesses in the present case with regard to the alibi of the accused to be consistent, cogent and reliable. She submits that there were serious material inconsistencies between the accused’s version and one of his witnesses. Ultimately the learned trial judge found that “the alibi [did] not cast doubt on the victim’s account which [was] intelligible.
Vidot was also a case concerning a charge of sexual assault in which the accused had tendered an alibi. The trial judge found that the accused and his witnesses did not give evidence that was consistent, cogent and reliable on the material particulars. He also noted that the prosecution bears the overall burden of proving the guilt of the accused even when he has raised the defence of alibi. The prosecution has to rebut the evidence and prove beyond reasonable doubt that the accused was there at the time and place of the alleged crime.
Sopha preceded Vidot but the principles enunciated by this court in relation to the burden on the prosecution where the defence of the accused is an alibi were not different. This Court found that in cases where the accused tenders a defence of alibi, the prosecution still has to prove its case beyond reasonable doubt. The Court stated:

This is the correct approach, and I endorse the principles as stated. However, I fail to see why Sopha has been relied on by Mr. Camille for the proposition that the trial judge in the present case did not satisfy himself that the prosecution had proved its case beyond reasonable doubt. The learned trial judge stated that he believed the complainant's evidence and that the prosecution had proved its case beyond reasonable doubt; he only added that the alibi did not cast doubt on the complainant’s evidence.
I accept that a misdirection as to the burden of proof can be fatal to a conviction. Where an alibi is raised, there is no burden on the accused – the burden is on the prosecution to negative the alibi beyond reasonable doubt. Generally, with or without an alibi, and notwithstanding any defence, the prosecution still has the burden to prove its case beyond reasonable doubt.[15] The accused never has to prove his innocence.
In the present case, it would have been better for the trial judge to have stated separately that he rejected the alibi evidence and that the prosecution had proved its case beyond reasonable doubt. What is essential, however, is that the judge did not shift the burden of proof onto the defence. Similarly to the case of Sopha, there was no miscarriage of justice, and the proviso in section 344 of the Criminal Procedure Code can be applied.

Notice of alibi defence

There is another matter relating to the alibi defence that I wish to raise - if only to address the expediency of trials. This concerns notice of an alibi to the prosecution. When this trial occurred, Practice Directions No. 3 of 2017 were in force.[16] These directions required the accused to provide a list of witnesses and indicate what elements of the offence would be disputed at trial – in other words, what his defence to the offence would be.
The transcript of proceedings reveals that during a pleas and direction hearing held on 31 July 2020, Counsel for the accused indicated that only the accused would be testifying. Subsequently, at a pretrial review on 9 November 2020, Counsel for the accused revealed that he would have two witnesses. Details of the defence disclosed were that “all the elements of the offence would be disputed.” An alibi was not indicated. It was only when the defendant testified that it became clear that his defence was essentially an alibi.
In the circumstances, the prosecution had no opportunity to verify the alibi. In this regard, section 5 of the Evidence Act provides in relevant part:

Whereas section 5 does not permit the court to reject an alibi as a defence when no notice of the same has been given by the accused (except in cases of bad faith), it could have adjourned the matter for the prosecution to verify the alibi. Several cameras in Victoria would have recorded the accused’s vehicle being towed on 10 February 2019. The prosecution failed to apply for such an adjournment to do this simple check.
The logic of giving notice of witnesses generally in a trial is clear. It prevents a trial by ambush. In cases where there is an alibi, it provides the prosecution with an opportunity to investigate the validity of the alibi and either prepare to undermine its credibility or, if proven true, to drop the charges against the defendant.
The Practice Directions, now repealed, put those rules in place and should have been observed by the court and parties in this case. The Directions reinforced the constitutional fair trial requirement to prevent surprise twists in trials and to meet the discovery standards demanded of a modern and democratic society.
Our source of criminal law is the common law, in which it has long been recognised that an alibi is a defence requiring special rules. In tracing the history of alibis in the common law, David Epstein[17] notes that:

“At common law, all defences except autrefois acquit, autrefois convict, and former pardon were admissible under a plea of not guilty. As a result, a problem faced the

In R v Brown,[18] Lord Hope explained that before rules of disclosure had been codified, they existed in common law as a duty developed because of the elementary right of every defendant to a fair trial. He referred to R v Keane[19] in which Lord Taylor of Gosforth C.J. had also referred to “the great principle […] of open justice.”[20]
In any case, common law rules of disclosure emerged slowly and painstakingly in the nineteenth and twentieth centuries as preliminary hearings replaced the grand juries charged with determining whether there was good cause to commit an accused to trial. However, the preliminary hearing served primarily as:

“a discovery device for the benefit of the defence, afford[ing] it a safeguard against ill-founded prosecutions as well as substantive protection against surprise at the trial.”[21]

These common law rules were eventually codified in the Criminal Justice Act 1967, together with the added duty of the accused to notify the prosecution about an alibi defence. Inevitably, this has pitched the State against an accused’s constitutional right to remain silent. Nevertheless, John Burchill[22] in expounding on the unavoidable tension between the right to remain silent and the fact that notice should be required for an alibi defence, states that:

“Given the ease with which an alibi could be fabricated, this rule protects against a last-minute defence that may be impossible for the Crown to verify.”

In this regard, Alec Samuels[23] adds that:

“The criminal trial should be a fairly conducted inquiry into the truth, not a forensic game.”[24]

It must also be noted that in many common law jurisdictions where advance notice of an alibi is not given and then raised during a trial, an adverse inference from the late disclosure can be drawn, although the court cannot prevent the evidence from being called. Moreover, where there is evidence that an alibi has been fabricated, this may be used as circumstantial evidence to draw an inference or “consciousness” of guilt.[25]
In the case of Noble,[26] the Canadian Supreme Court, reiterated that the requirement to disclose an alibi defence before trial is a necessary exception to an accused’s right to silence. This rule may be traced back to the case of R v Jenkins[27].
What of our jurisdiction in Seychelles, then? As I have pointed out, there is an enshrined constitutional right to remain silent when charged.[28] Additionally, an accused person has a constitutional right to remain silent at the trial[29] and not to have an adverse inference drawn from his exercise of that right.[30] These are absolute rights and are not subject to limitations, unlike other rights, which are subject to qualification by law when necessary in a democratic society.[31] It is clear, therefore, that requiring an accused person to provide notice of alibi would be in breach of the Charter of Fundamental and Human Rights and Freedoms in the Constitution. A court cannot, therefore, require an accused person to disclose particulars of an alibi if he wishes to rely on the same at trial. The trial can only be delayed if an adjournment is sought by the prosecution to inquire into the alibi details.
As I have said this was not an issue at the trial, and the grounds raised regarding the alibi have no substance and are dismissed in their entirety.

A manifestly harsh and excessive sentence contrary to sentencing principles – Ground 8

The final ground of appeal as submitted by Mr. Camille for the appellant, is that the learned trial judge erred in law and on the facts in meting a sentence of fifteen years imprisonment on the charge, against the appellant in that the sentence is manifestly harsh and excessive and goes contrary to sentencing principles relating to the same offence charged. He has relied on the case of R v Suzette[32], in which this Court reduced a sentence of nine years upheld by the Supreme Court for the sexual assault by a teacher of a pupil of thirteen years from the same school in which he taught.
Mrs. Monthy has submitted that the offence with which the appellant was charged with carries a maximum penalty of twenty years.[33] She has also proposed that on the authority of Marengo v R,[34] and Cedras v R[35] the sentencing power is discretionary, exercisable by the court and that unless the sentence imposed goes beyond recent trends the court will not interfere with it.
Sentencing principles generally were expounded by the Supreme Court in the case of R v MI and ors.[36] Those relevant to the present appeal bear repeating: aggravating factors, including penetration by an act of sexual intercourse with a minor, the young age of the complainant, the position of trust held by the appellant with regard to the complainant; the interests of society – the protection of vulnerable members of society and the welfare of children from the degenerate conduct of rapists and paedophiles.[37]
If anything, previous sentences in similar cases do not reflect the increase in such cases clearly demonstrated by the incidence of such issues before the courts. It is extremely concerning that the court found the rape of a thirteen-year-old schoolgirl by a teacher meriting a sentence of only four and half years on the grounds that:

A child does not and cannot consent to intercourse. It is even worse when it is a person in a relationship of trust that commits the offence. Whether a complainant has had sexual intercourse before is not a consideration to be taken into account in cases of sexual assault. This court in Jumeau v R[38] has already distanced itself from the decision in Suzette, remarking that it was given per incuriam. I reiterate that the case of Suzette is an aberration and must not be relied on by any court.
In the present case, the appellant was the family taxi driver and the despair and trauma of the complainant after pleading with him to take her home and not to touch her are all too evident from the proceedings. She will remain traumatised for the rest of her life. She has borne the consequences of this crime, a child she has carried to term. Two young lives have been scarred.
I am aware that a sentence of fifteen years was severe and at the higher end of the scale. It was, however, neither wrong in law nor in principle. It was not manifestly harsh or excessive, given the offence, the maximum penalty imposable, the particular circumstances of this case and the considerations of public interest I have already outlined. In the circumstances, I see no reason to interfere with it. This ground of appeal is also devoid of merit.
For all these reasons, this appeal fails in its entirety.

Order

The appeal is dismissed. The conviction and the sentence are upheld.

_____________________________

Dr. M. Twomey-Woods, JA.

I concur ________________

Dr. L. Tibatemwa-Ekirikubinza, JA

F. ROBINSON JA

[57] I agree with the conclusion and order made by Justice Twomey-Woods in this case

that the appeal be dismissed.

__________________

F. Robinson JA

Signed, dated and delivered at Ile du Port on 16 December 2022.

[1] (1985) SLR 75

[2] (1998- 1993) SCAR 131 (SCA) 1 of 1998) [1989] SCCA 5 (25 October 1989).

[3] (SCA 4 of 1989)[1989] SCCA 13 (25 October 1989).

[4] (1956- 1962) SCAR 220.

[5] Now section 344 of the Criminal Procedure Code.

[6] (1972) SLR 16.

[7] Section 338 of the Criminal Procedure Code contained the same provision that is now now contained in section 344 of the Criminal Procedure Code.

[8] Supra, fn 1

[9] Supra, fn 2.

[10] Supra fn 3

[11] [1905] I KB 551.

[12] (2011) SLR 313, (SCA 17 of 2009) [2011] SCCA 38 (02 September 2011).

[13] Vidot v Republic 3(7 of 1999) [2004] SCSC 11 (02 November 2004)

[14] Sopha & Anor v Republic (1988 – 1993) SCAR 209 (SCA 2 of 1991) [1991] SCCA 10 (14 October 1991)

[15] There are few exceptions - these are provided by statute – e.g. insanity as contained in section 13 of the Penal Code.

[16] These directions were repealed by the Chief Justice in 2021.

[17] David M. Epstein, Advance Notice of Alibi, 55 J. Crim. L. Criminology & Police Sci. 29 (1964).

[18] [1997] UKHL 33; [1998] AC 367; [1997] 3 All ER 769; [1997] 3 WLR 447; [1998] 1 Cr App Rep 66 (24th July, 1997)

[19] [1994] 1 W.L.R. 746.

[20] Ibid, page 370.

[21] Roger J. Traynor, Ground Lost and Found in Criminal Discovery in England, 39 N.Y.U. L. REV. 749 (1964), 754.

[22] John W Burchill, Alibi Evidence: Responsibility for Disclosure and Investigation, 2018 41-3 Manitoba Law Journal 99, 2018

[23] A. Samuels, The Criminal Justice Act, 31 (1) The Modern Law review, 16 (1968).

[24] Ibid, at 22.

[25] See the Canadian Suporme Court case of R v Hibbert 2002 2 SCR 445 at 62.

[26] R v Noble [1997] 1 SCR 874 146 DLR (4th) 385 [Noble].

[27] (1908), 14 C.C.C. 221 at p. 230, 14 B.C.R 61 (C.A.)

[28] Article 18 (3) of the Constitution provides: “A person who is arrested or detained has a right to…remain silent”

[29] Article 19 (2) (g) of the Constitution provides:” Every person who is charged with an offence – shall not be compelled to testify at the trial or confess guilt…”

[30] Article 19 (2) (h).

[32] R v Suzette (CP 5 of 2014) [2017] SCSC 916 (09 October 2017).

[33] See section 130 (1) Penal Code.

[34] (SCA 29 of 2018) [2019] SCCA 28 (22 August 2019).

[35] (SCA 38 of 2014) [2017] SCCA 3 (20 April 2017).

[36] R v Ml & Ors (CR 38 of 2019) [2020] SCSC 256 (16 April 2020)

[37] Simon v R [1980] SCAR 557

[38] (SCA 22 of 2018) [2019] SCCA 30 (22 August 2019).

Prus and Others v The Government of Seychelles (SCA 63 of 2022) [2022] SCCA 66 (16 December 2022);

Mithila Mudalige — Fri, 23 Dec 2022 05:29:23 +0000

Prus and Others v The Government of Seychelles (SCA 63 of 2022) [2022] SCCA 66 (16 December 2022);

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Criminal law

Mithila Mudalige Fri, 12/23/2022 - 05:29

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Appeal against the disposal order made by the Supreme Court pursuant to section 5 of POCA

Headnote and holding

Appeal dismissed

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2022-scca-66.docx

IN THE COURT OF APPEAL OF SEYCHELLES

Reportable

[2022] SCCA 63 (16 December 2022)

SCA 41/2020

(Appeal from MA 356/2016)

Arising out of MC 62/2016

In the matter between

Radomir Prus

Sandra Prus

Exelsior Dreams

Free Sun Limited Appellants

(rep. by Mr. Guy Ferley)

and

The Government of Seychelles Respondent

(rep. by Ms. Nissa Thompson)

Neutral Citation: Prus and Others v The Government of Seychelles
SCA 41/2020) [2022] SCCA 63 (Arising in MA 356/2019) Out of MC 62/2016

(16 December 2022)

Before: Fernando President, Robinson JA, Andre JA

Summary: Appeal against the disposal order made by the Supreme Court pursuant to section 5 of POCA.

Heard: 1 December 2022

Delivered: 16 December 2022

ORDER

Appeal dismissed.

______________________________________________________________________________

cJUDGMENT

FERNANDO, PRESIDENT

The Appellants have appealed against the disposal order made on 14 September 2020, by the Supreme Court pursuant to section 5 of the Proceeds of Crime (Civil Confiscation) Act 2008 (hereinafter referred to as POCA), on an application dated 13 November 2019 by the Government, of the specified property of the Appellants, namely the four bedroom ‘Maison’ on parcel number 72, situated on Eden Island and the 28.8-meter long motor yacht, named ‘Dream Angel’ moored at Eden Island Marina.

The disposal order had been made 12 months after the interlocutory order made under section 4 on 15 November 2017 and the dismissal of the set aside application on 8 July 2019. At the time of the application pursuant to section 5 of POCA there had been no application pending under section 4(3) of POCA for the discharge of the interlocutory order before the Supreme Court in respect of the specified property nor was there any appeal pending before this Court.

Section 5(1) of POCA states: “Subject to subsection (2), where an interlocutory order has been in force for not less than 12 months in relation to specified property and there is no appeal pending before Court in respect of the interlocutory order, the Court, on application to it in that behalf by the applicant, may make a disposal order directing that the whole or a specified part of the property be transferred, subject to such terms and conditions as the Court may specify, to the Republic or to such other person as the Court may determine and such transfer shall confer absolute title free from any claim of any interest therein or encumbrances to the Republic or such person.” Subsection 5 (2) states that an application for a disposal order cannot be made “while (a) an application made under section 4(3); or (b) an appeal against an order made under the application referred to in paragraph (a); or; (c) an appeal against any order made under section 4, is pending.” According to subsection 5(2) of POCA, the 12 month period shall be calculated from the making of the interlocutory order under section 4, which was in the instant case on 15 November 2019, unless the Court for good cause shall otherwise determine.

The Appellants have filed the following grounds of appeal:

“The Honourable Judge erred in law in failing to hold that the Appellants’ constitutional rights would be violated should the court fail to hold;

That a conviction must be proven by the Government
The standard of proof should be between probable and beyond a reasonable doubt
The burden of proof rests with the Respondent.

The Honourable Judge erred in law in failing to hold that the allegations and suspicions of the Respondent did not meet the required standard of proof to deprive the Appellants of their right in property.
The Honourable Judge erred in law in failing to hold that nonetheless and on the facts, the Appellant had proven their defence and the properties were not proceeds from criminal or illegal acts.
The Honourable Judge erred in law in failing to properly and adequately assess the facts and evidence and thereby the findings in the judgment were flawed in law.
The Honourable Judge erred in law in failing to hold that the Respondents had failed to discharge their legal and evidential burdens of proof.”

By way of relief the Appellants have prayed that the entire judgment of the Supreme Court be set aside.

The Respondent had raised a preliminary objection to the maintenance of this appeal on the basis that a ‘disposal order’ made pursuant to section 5 of POCA cannot be appealed. It is the argument of the Respondent that section 5 of POCA, or POCA in general, does not make statutory provisions for an appeal against a Disposal Order to the Court of Appeal. This is erroneous since section 22 of POCA does in fact states: “For the avoidance of doubt an appeal from an order made under this Act, other than an interim order shall lie to the Court of Appeal.” Further, Articles 120 (1) and (2) of the Constitution states as follows: Article (1) “There shall be a Court of Appeal which shall, subject to this Constitution, have jurisdiction to hear and determine appeals from a judgement, direction, decision, declaration, decree, writ or order of the Supreme Court and such other appellate jurisdiction as may be conferred upon the Court of Appeal by this Constitution and by or under an Act.”, and Article (2) “Except as this Constitution or an Act otherwise provides, there shall be a right of appeal to the Court of Appeal from a judgment, direction, decision, declaration, decree, writ or order of the Supreme Court.” There is no doubt that what has been appealed against is an order made by the Supreme Court. There is nothing to the effect in the Constitution or in section 5 or elsewhere in POCA or in any other Act, excluding the right of appeal against a ‘disposal order’ made pursuant to section 5 of POCA. It was held in Treffle Finesse V The Republic CR Appeal No 1 of 1995: "The general right of appeal conferred by Article 120(2) of the Constitution and the general jurisdiction of this Court to hear appeals from the Supreme Court conferred by Article 120(1) can only be restricted by the Constitution itself or by an Act which provides that there shall be no such jurisdiction or no such right... The words “Except as this Constitution or an Act otherwise provides” envisage provisions which are expressly exclusionary and which exclude a right of appeal. Where the Constitution confers a right such right can only be taken away, where the Constitution so permits, by statutory provisions which are expressly and manifestly exclusionary.” It would have been a different matter if POCA had provided that no appeal shall lie to the Court of Appeal from a disposal order under section 5. Quite contrarily section 22 of POCA referred to earlier, provides otherwise. I therefore have no hesitation in dismissing the objection raised by the Respondent.

In the Skeleton Heads of Argument of Appellants, they have stated they will not at the hearing canvass ground (a), (i), (ii) and (iii). I have however decided to deal with them for future reference since they raise important issues pertaining to civil confiscation of proceeds of crime.

Grounds of appeal (a) and (b), ambiguous as they can be, is a complaint of the failure by the learned Judge to hold, that the Appellants’ right to a fair hearing and the right to property guaranteed under the Constitution, would be violated should the Court fail to hold in relation to the matters itemized therein. It is clear from the judgment that the learned Judge was very much aware, made reference, and dealt with these matters in detail in the judgment. The learned Judge had dealt with the issue whether a conviction needs to be proven by the Government at length from paragraphs 49 – 58 of the judgment and has in my view correctly held that a conviction need not be proved. The learned Judge had said: “The thrust of modern proceeds of crime legislation is to target the unexplained wealth of the criminal and not the criminal himself. The POCA regime in Seychelles adopts much of the model proposed in the United Nations Convention Against Corruption, in which legislation provides for non-confiscation-based confiscation/forfeiture proceedings that do not require a predicate offence to be established.” The learned Judge had cited the South African case of Prophet V National Director of Public Prosecutions 2006 (2) SACR 525 where the Constitutional Court had held: “Civil forfeiture provides a unique remedy used as a measure to combat organized crime. It rests on the legal fiction that the property and not the owner has contravened the law. It does not require a conviction or even a criminal charge against the owner”. The aim of the civil proceedings in rem was to prevent unjust enrichment through corruption, by sending a clear signal to public officials already involved in corruption or considering doing so, that their wrongful acts, even if they passed unscaled by the criminal justice system, would nevertheless not procure pecuniary advantage either for them or for their families. See ECHR judgments in Silickiene V Lithuania, (Application no. 20496/02), 10 April 2012 and Veits V Estonia, (Application no. 12951/11), 27 April 2008.

Article 48 of the Constitution of Seychelles states that Chapter III of the Constitution which contains the Seychellois Charter of Fundamental Human Rights and Freedoms “shall be interpreted in such a way so as not to be inconsistent with any international obligations of Seychelles relating to human rights and freedoms and a court shall, when interpreting the provision of this Chapter, take judicial notice of—

the international instrument containing these obligations;

(b)the reports and expression of views of bodies administering or enforcing these instruments;

(c)the reports, decisions or opinions of international and regional institutions administering or enforcing Conventions on human rights and freedoms;

(d)the Constitutions of other democratic States or nations and decisions of the courts of the States or nations in respect of their Constitutions.”

The United Nations Convention Against Corruption (UNCAC) entered into force in the Seychelles on 15 April 2006 having ratified it on 16 March 2006. Article 54 of UNCAC states that each State Party shall in accordance with its domestic law consider taking such measures as may be necessary to allow confiscation of such property without a criminal conviction. The Financial Action Task Force (FATF) was established in July1989 as an inter-governmental group by a Group of Seven (G-7) Summit in Paris. It has since been globally recognised, including Seychelles, as an authoritative body setting universal standards and developing policies for combating, amongst other, money laundering. In 2003 it issued a specific recommendation, which was calling for confiscation even in the absence of a prior criminal conviction (known as Recommendation no.3), which was to the effect that countries may consider adopting measures that allow such proceeds or instrumentalities to be confiscated without requiring a criminal conviction, or which require an offender to demonstrate the lawful origin of the property alleged to be liable to confiscation, to the extent that such a requirement is consistent with the principles of their domestic law.
The ECHR in the case of Gogitidze and Others V Georgia (Application no. 36862/05) 12 May 2015, observed that “Having regard to such international legal mechanisms as the 2005 UNCAC, FATF, Recommendations and the two relevant Council of Europe Conventions of 1990 and 2005 concerning confiscation of the proceeds of crime that common European and even universal legal standards can be said to exist which encourage, firstly, the confiscation of property linked to serious criminal offences such as corruption, money laundering, drug offences and so on, without the prior existence of a criminal conviction. Secondly, the onus of proving the lawful origin of the property presumed to have been wrongfully acquired may legitimately be shifted onto the respondents in such non-criminal proceedings for confiscation, including civil proceedings in rem. Thirdly, confiscation measures may be applied not only to the direct proceeds of crime but also to property, including any incomes and other indirect benefits, obtained by converting or transforming the direct proceeds of crime or intermingling them with other, possibly lawful, assets. Finally, confiscation measures may be applied not only to persons directly suspected of criminal offences but also to any third parties which hold ownership rights without the requisite bona fide with a view to disguising their wrongful role in amassing the wealth in question.”

In the affidavit supporting the application under section 5 of POCA, for disposal of property, Assistant Commissioner, Jean Celliers, had summarized the criminal conduct of the Appellants’ in this case as stated at paragraph 8 of the judgment as follows: “The fraud believed to have been committed by the Respondents [Appellants before this Court] consisted of the diversion of part of a subsidy paid by the European Union for new technology and machinery associated with waste management in the Czech Republic, Hungary and Poland for the benefit of a Czech group of companies (Exelsior Group Ltd, hereinafter Exelsior) to be supplied by a UK company, FPR Engineering Limited (a shell company, herein after FPR) to the Respondents in Seychelles and that this conduct further amounted to money laundering”. It was the position of Superintendent Prinsloo that the stages of money laundering are all evident in the transactions, namely ‘the placement stage’, ‘the integration stage’, and ‘the layering stage’.

Section 5 (3) of POCA states: “The Court shall make a disposal order in relation to any property, the subject of an application under subsection (1) unless it is shown to its satisfaction by the respondent…that the property does not constitute, directly or indirectly, proceeds of criminal conduct and was not acquired, in whole or in part, with or in connection with property that, directly or indirectly constitutes proceeds of criminal conduct”. Thus at the stage of section 5(3) the burden shifts entirely to the person against whom an application under section 5 of POCA has been made and there is no burden on the applicant who is seeking the disposal order. The learned Judge has referred to this at paragraph 66 of the judgment. Given the ‘civil’ nature of the proceedings in question, it is acceptable that the burden of proof in the proceedings should be shifted on to the person against whom an application under section 5 of POCA is made. Such civil mechanisms, involving the forfeiture of the proceeds of crime or otherwise unlawfully obtained or unexplained property, are known in UK, Italy and the USA. See the ECHR cases of Raimondo V Italy, (Application no. 12954/87), 22 February 1994, and AGOSI V the United Kingdom, (Application No 9118/80)24 October 1986.

A reading of the judgment clearly shows that the learned Judge was very much aware of the standard of proof required in establishing a section 5 POCA application. According to section 9(3) of POCA, the standard of proof required to determine any question arising under this Act, other than proceedings for an offence contrary to section 23 shall be that applicable to civil proceedings. The ECHR in the case of Gogitidze and Others V Georgia (Application no. 36862/05) 12 May 2015, stated that, whenever a confiscation order was the result of civil proceedings in rem which related to the proceeds of crime derived from serious offences, the court does not require proof “beyond reasonable doubt” of the illicit origins of the property in such proceedings. Instead, proof on a balance of probabilities or a high probability of illicit origins, combined with the inability of the owner to prove the contrary, would suffice.

The learned Judge had at paragraph 63 of the judgment stated that no application was made, during the proceedings before the Supreme Court for a determination of whether there has been or is likely to be a contravention of the Appellants’ charter rights so as to refer the matter to the Constitutional Court. It is only if it had been done that the question whether the alleged complaint of contravention of the Constitution, was frivolous or vexatious or the issue raised had not previously been decided by the Constitutional Court or the Court of Appeal could have been determined, which is a sine qua non, prior to referral. It is to be noted that the Constitution provides in article 26(2)(d) that the right to property may be subject to such limitations as may be prescribed by law and necessary in a democratic society in the case of property reasonably suspected of being acquired by the proceeds of drug trafficking or serious crime. It is to be emphasized that only lawfully obtained property enjoyed full constitutional protection. For the reasons set out in paragraphs 5 to 8, and 10 to 12, I dismiss ground (a) of appeal.

Grounds (b), (c), (d) and (e) of appeal, are almost to the same effect, namely the failure of the learned Trial Judge to hold that the Respondent failed to discharge its legal burden set out in POCA due to insufficiency of evidence. I find that the said grounds of appeal, do not set forth in separate numbered paragraphs the findings of fact to which the Appellants are objecting, and are therefore vague or general in terms, thus in contravention of rules 18(3) and 18(7) of the Seychelles Court of Appeal Rules 2005. A simple and general statement that the allegations and suspicions of the Respondent did not meet the required standard of proof, or that the Appellants’ had proven their defence, or that the learned Judge had failed to properly and adequately assess the facts and evidence; was totally insufficient to satisfy the requirements of rules 18(3) and 18(7) of the Seychelles Court of Appeal Rules 2005, in the face of the detailed judgment making reference to the evidence of the Respondent (paragraphs 8, 15 – 22, and 24) and the evidence of the Appellants’ (paragraphs 12, 13, 26 – 35, 38, and 39) and setting out the different explanations by the Appellants’ at different times during the several proceedings of this case (paragraphs 69 and 70), indicating their lack of credibility. That alone should suffice to dismiss grounds (b), (c), (d) and (e). I do not believe it is the duty of this Court to pin-point what evidence was available to substantiate the disposal order made by the Supreme Court pursuant to section 5 of POCA. It was the duty of the Appellant to have set forth the findings of fact to which they are objecting in filing the Notice of Appeal, none of which had been stated. The learned Judge had at paragraphs 71 -73 of the judgment reasoned out why she had concluded that the Appellants had failed in its burden of establishing to the satisfaction of court; that the property does not constitute, directly or indirectly, proceeds of criminal conduct.

I wish to state that sufficiency or insufficiency of evidence and credibility of witnesses are factual issues, which are essentially matters for the Trial Judge. The ECHR in the case of Gogitidze and Others V Georgia (Application no. 36862/05) 12 May 2015, reiterated that “It is not within its province to substitute its own assessment of the facts for that of the domestic courts, who are better placed to assess the evidence before them” (see Grayson and Barnham v. the United Kingdom, nos. 19955/05 and 15085/06, 23 September 2008). An appellate court would also rarely interfere with the findings of a Trial Judge on factual matters unless they are palpably wrong. At paragraph 74 of the judgment the learned Judge had stated: “…but of utmost importance is the fact that the Court is not satisfied that the Respondents have been able to show the legitimate source of their funds to acquire the specified property in this application. The different explanations by the Respondents at different times during these proceedings indicate their lack of credibility and I have no hesitation in disregarding their evidence.” At paragraph 75 of the judgment the learned Judge had said: “I am satisfied on the pleadings and the evidence before me, namely the affidavits of Assistant Commissioner Jan Celliers and Superintendent Hein Prinsloo and the exhibits appended to their affidavit that a disposal order in favour of the Applicant should issue in respect of the property.” For the reasons set out in paragraphs 12 and 13, I dismiss grounds (b), (c), (d), and (e).

The Appellants have through their Skeleton Heads of Argument in support of grounds (b) and (e) of appeal, filed in violation of this Court’s Practice Direction, 2 of 2019 dated 2^nd December 2019, erroneously made an attempt to place reliance on the provisions of section 9 of POCA, which only applies to proceedings under section 3 (when there is an application for an interim order) or section 4 (when there is an application for an interlocutory order) of POCA. Those stages had passed when the application was made under section 5 for a disposal order and the disposal order was made, as stated at paragraph 2 above. When this was pointed out to Counsel for the Appellant at the hearing he agreed and said that he will not be pursuing grounds (b) and (e).

The Appellants have in support of grounds (c) and (d) of appeal, erroneously made an attempt to shift the burden of proof to the Respondent when it was entirely upon them as stated at paragraph 12 above. Here again the Appellants have made an attempt to place reliance on the provisions of section 9 of POCA, which has no application as stated at paragraph 17 above.

I am surprised to find that even Counsel for the Respondent had fallen into the error of considering that a ‘disposal order’ made by the Supreme Court, as one made under sections 3 or 4 of POCA and thus in relation to which section 9 of POCA applies. It is only at paragraphs 52 - 54 of the submissions of the Respondent, that Counsel for the Respondent, had identified a ‘disposal order’ made as one to be distinguished from sections 3 and 4 of POCA. At paragraph 53 it is correctly stated that the ‘disposal order’ was only an extension of the proceedings already had in the interlocutory and receivership orders. As stated at paragraph 2 above at the time of the application pursuant to section 5 of POCA there had been no application pending under section 4(3) of POCA for the discharge of the interlocutory order before the Supreme Court in respect of the specified property nor was there any appeal pending before this Court.

In view of what has been stated above I dismiss the appeal.

________________

Fernando President

ROBINSON JA

I agree with the conclusion arrived at by the President in his judgment that the appeal should be dismissed.

_________________

F. Robinson JA

Signed, dated and delivered at Ile du Port on 16 December 2022.

ANDRE JA

IN ADDITION TO THE JUDGMENT OF FERNANDO PRESIDENT

[1] I have read the Judgment of the Learned Fernando President, and I am in concurrence with the judgment but I wish to however add to paragraph 5 of the judgment of Fernando President which addresses the question as to whether the Appellant had a right of appeal against the Disposal Order dated 14 September 2020.

[2] The Learned Fernando President’s pronouncement in paragraph 5 of said judgment is applicable in cases of a right to appeal generally. A more specific appeal against disposal orders is provided for in section 4(5) of POCA which states:

“Subject to subsections (3) and (4), an interlocutory order shall continue in force until—

(a) the determination of an application for a disposal order in relation to the property concerned;

(b) the expiration of the ordinary time for bringing an appeal from that determination; or,

(c) if such an appeal is brought, when the appeal is determined or abandoned, whichever is the latest, and shall then lapse.”

(Emphasis added)

[3] Section 4(5)(a) clearly refers to an order made by the court in terms of section 5(1) of POCA. The “determination” referred to in subsection (b) being the disposal order in subsection (a). This effectively means whilst an appeal against the disposal order is underway, the disposal order is stayed or the interlocutory order remains in force, until the disposal order is confirmed on appeal. Subsection (c) can be construed to mean that only once the appeal is either determined or abandoned, then further actions or proceedings on that issue lapse. The question that follows is: what is “the ordinary time for bringing an appeal” as per subsection (b)? The answer is since section 5(1) provides for a period of 12 months within which to lodge an appeal against the interlocutory order, such 12 month period is the ordinary time for bringing an appeal in terms of this statute, and therefore shall be calculated from the making of the disposal order under section 5, unless the Court “for good cause shall otherwise determine” (section 5(2)(c)). The Disposal Order having been granted on the 14^th September 2020, and the notice of appeal filed on the 13^th October 2020, the requirements of POCA were met.

CONCLUSION

[4] Consequently, whichever way the issue is scrutinized, from the provisions alluded to above, it is apparent that there is a right of appeal against the disposal order. These provisions do not offend the Constitution as such right to appeal cannot be open-ended and section 5(1) provides a time frame within which to lodge the appeal.

____________________

Andre JA

Signed, dated and delivered at Ile du Port on 16 December 2022.

Law report citations

Prus and Others v The Government of Seychelles SCA 41/2020) [2022] SCCA 63 (Arising in MA 356/2019) Out of MC 62/2016

IN THE COURT OF APPEAL OF SEYCHELLES

Reportable

[2022] SCCA 63 (16 December 2022)

SCA 41/2020

(Appeal from MA 356/2016)

Arising out of MC 62/2016

In the matter between

Radomir Prus

Sandra Prus

Exelsior Dreams

Free Sun Limited Appellants

(rep. by Mr. Guy Ferley)

and

The Government of Seychelles Respondent

(rep. by Ms. Nissa Thompson)

Neutral Citation: Prus and Others v The Government of Seychelles
SCA 41/2020) [2022] SCCA 63 (Arising in MA 356/2019) Out of MC 62/2016

(16 December 2022)

Before: Fernando President, Robinson JA, Andre JA

Summary: Appeal against the disposal order made by the Supreme Court pursuant to section 5 of POCA.

Heard: 1 December 2022

Delivered: 16 December 2022

ORDER

Appeal dismissed.

______________________________________________________________________________

cJUDGMENT

FERNANDO, PRESIDENT

The Appellants have appealed against the disposal order made on 14 September 2020, by the Supreme Court pursuant to section 5 of the Proceeds of Crime (Civil Confiscation) Act 2008 (hereinafter referred to as POCA), on an application dated 13 November 2019 by the Government, of the specified property of the Appellants, namely the four bedroom ‘Maison’ on parcel number 72, situated on Eden Island and the 28.8-meter long motor yacht, named ‘Dream Angel’ moored at Eden Island Marina.

The disposal order had been made 12 months after the interlocutory order made under section 4 on 15 November 2017 and the dismissal of the set aside application on 8 July 2019. At the time of the application pursuant to section 5 of POCA there had been no application pending under section 4(3) of POCA for the discharge of the interlocutory order before the Supreme Court in respect of the specified property nor was there any appeal pending before this Court.

Section 5(1) of POCA states: “Subject to subsection (2), where an interlocutory order has been in force for not less than 12 months in relation to specified property and there is no appeal pending before Court in respect of the interlocutory order, the Court, on application to it in that behalf by the applicant, may make a disposal order directing that the whole or a specified part of the property be transferred, subject to such terms and conditions as the Court may specify, to the Republic or to such other person as the Court may determine and such transfer shall confer absolute title free from any claim of any interest therein or encumbrances to the Republic or such person.” Subsection 5 (2) states that an application for a disposal order cannot be made “while (a) an application made under section 4(3); or (b) an appeal against an order made under the application referred to in paragraph (a); or; (c) an appeal against any order made under section 4, is pending.” According to subsection 5(2) of POCA, the 12 month period shall be calculated from the making of the interlocutory order under section 4, which was in the instant case on 15 November 2019, unless the Court for good cause shall otherwise determine.

The Appellants have filed the following grounds of appeal:

“The Honourable Judge erred in law in failing to hold that the Appellants’ constitutional rights would be violated should the court fail to hold;

That a conviction must be proven by the Government
The standard of proof should be between probable and beyond a reasonable doubt
The burden of proof rests with the Respondent.

The Honourable Judge erred in law in failing to hold that the allegations and suspicions of the Respondent did not meet the required standard of proof to deprive the Appellants of their right in property.
The Honourable Judge erred in law in failing to hold that nonetheless and on the facts, the Appellant had proven their defence and the properties were not proceeds from criminal or illegal acts.
The Honourable Judge erred in law in failing to properly and adequately assess the facts and evidence and thereby the findings in the judgment were flawed in law.
The Honourable Judge erred in law in failing to hold that the Respondents had failed to discharge their legal and evidential burdens of proof.”

By way of relief the Appellants have prayed that the entire judgment of the Supreme Court be set aside.

The Respondent had raised a preliminary objection to the maintenance of this appeal on the basis that a ‘disposal order’ made pursuant to section 5 of POCA cannot be appealed. It is the argument of the Respondent that section 5 of POCA, or POCA in general, does not make statutory provisions for an appeal against a Disposal Order to the Court of Appeal. This is erroneous since section 22 of POCA does in fact states: “For the avoidance of doubt an appeal from an order made under this Act, other than an interim order shall lie to the Court of Appeal.” Further, Articles 120 (1) and (2) of the Constitution states as follows: Article (1) “There shall be a Court of Appeal which shall, subject to this Constitution, have jurisdiction to hear and determine appeals from a judgement, direction, decision, declaration, decree, writ or order of the Supreme Court and such other appellate jurisdiction as may be conferred upon the Court of Appeal by this Constitution and by or under an Act.”, and Article (2) “Except as this Constitution or an Act otherwise provides, there shall be a right of appeal to the Court of Appeal from a judgment, direction, decision, declaration, decree, writ or order of the Supreme Court.” There is no doubt that what has been appealed against is an order made by the Supreme Court. There is nothing to the effect in the Constitution or in section 5 or elsewhere in POCA or in any other Act, excluding the right of appeal against a ‘disposal order’ made pursuant to section 5 of POCA. It was held in Treffle Finesse V The Republic CR Appeal No 1 of 1995: "The general right of appeal conferred by Article 120(2) of the Constitution and the general jurisdiction of this Court to hear appeals from the Supreme Court conferred by Article 120(1) can only be restricted by the Constitution itself or by an Act which provides that there shall be no such jurisdiction or no such right... The words “Except as this Constitution or an Act otherwise provides” envisage provisions which are expressly exclusionary and which exclude a right of appeal. Where the Constitution confers a right such right can only be taken away, where the Constitution so permits, by statutory provisions which are expressly and manifestly exclusionary.” It would have been a different matter if POCA had provided that no appeal shall lie to the Court of Appeal from a disposal order under section 5. Quite contrarily section 22 of POCA referred to earlier, provides otherwise. I therefore have no hesitation in dismissing the objection raised by the Respondent.

In the Skeleton Heads of Argument of Appellants, they have stated they will not at the hearing canvass ground (a), (i), (ii) and (iii). I have however decided to deal with them for future reference since they raise important issues pertaining to civil confiscation of proceeds of crime.

Grounds of appeal (a) and (b), ambiguous as they can be, is a complaint of the failure by the learned Judge to hold, that the Appellants’ right to a fair hearing and the right to property guaranteed under the Constitution, would be violated should the Court fail to hold in relation to the matters itemized therein. It is clear from the judgment that the learned Judge was very much aware, made reference, and dealt with these matters in detail in the judgment. The learned Judge had dealt with the issue whether a conviction needs to be proven by the Government at length from paragraphs 49 – 58 of the judgment and has in my view correctly held that a conviction need not be proved. The learned Judge had said: “The thrust of modern proceeds of crime legislation is to target the unexplained wealth of the criminal and not the criminal himself. The POCA regime in Seychelles adopts much of the model proposed in the United Nations Convention Against Corruption, in which legislation provides for non-confiscation-based confiscation/forfeiture proceedings that do not require a predicate offence to be established.” The learned Judge had cited the South African case of Prophet V National Director of Public Prosecutions 2006 (2) SACR 525 where the Constitutional Court had held: “Civil forfeiture provides a unique remedy used as a measure to combat organized crime. It rests on the legal fiction that the property and not the owner has contravened the law. It does not require a conviction or even a criminal charge against the owner”. The aim of the civil proceedings in rem was to prevent unjust enrichment through corruption, by sending a clear signal to public officials already involved in corruption or considering doing so, that their wrongful acts, even if they passed unscaled by the criminal justice system, would nevertheless not procure pecuniary advantage either for them or for their families. See ECHR judgments in Silickiene V Lithuania, (Application no. 20496/02), 10 April 2012 and Veits V Estonia, (Application no. 12951/11), 27 April 2008.

Article 48 of the Constitution of Seychelles states that Chapter III of the Constitution which contains the Seychellois Charter of Fundamental Human Rights and Freedoms “shall be interpreted in such a way so as not to be inconsistent with any international obligations of Seychelles relating to human rights and freedoms and a court shall, when interpreting the provision of this Chapter, take judicial notice of—

the international instrument containing these obligations;

(b)the reports and expression of views of bodies administering or enforcing these instruments;

(c)the reports, decisions or opinions of international and regional institutions administering or enforcing Conventions on human rights and freedoms;

(d)the Constitutions of other democratic States or nations and decisions of the courts of the States or nations in respect of their Constitutions.”

The United Nations Convention Against Corruption (UNCAC) entered into force in the Seychelles on 15 April 2006 having ratified it on 16 March 2006. Article 54 of UNCAC states that each State Party shall in accordance with its domestic law consider taking such measures as may be necessary to allow confiscation of such property without a criminal conviction. The Financial Action Task Force (FATF) was established in July1989 as an inter-governmental group by a Group of Seven (G-7) Summit in Paris. It has since been globally recognised, including Seychelles, as an authoritative body setting universal standards and developing policies for combating, amongst other, money laundering. In 2003 it issued a specific recommendation, which was calling for confiscation even in the absence of a prior criminal conviction (known as Recommendation no.3), which was to the effect that countries may consider adopting measures that allow such proceeds or instrumentalities to be confiscated without requiring a criminal conviction, or which require an offender to demonstrate the lawful origin of the property alleged to be liable to confiscation, to the extent that such a requirement is consistent with the principles of their domestic law.
The ECHR in the case of Gogitidze and Others V Georgia (Application no. 36862/05) 12 May 2015, observed that “Having regard to such international legal mechanisms as the 2005 UNCAC, FATF, Recommendations and the two relevant Council of Europe Conventions of 1990 and 2005 concerning confiscation of the proceeds of crime that common European and even universal legal standards can be said to exist which encourage, firstly, the confiscation of property linked to serious criminal offences such as corruption, money laundering, drug offences and so on, without the prior existence of a criminal conviction. Secondly, the onus of proving the lawful origin of the property presumed to have been wrongfully acquired may legitimately be shifted onto the respondents in such non-criminal proceedings for confiscation, including civil proceedings in rem. Thirdly, confiscation measures may be applied not only to the direct proceeds of crime but also to property, including any incomes and other indirect benefits, obtained by converting or transforming the direct proceeds of crime or intermingling them with other, possibly lawful, assets. Finally, confiscation measures may be applied not only to persons directly suspected of criminal offences but also to any third parties which hold ownership rights without the requisite bona fide with a view to disguising their wrongful role in amassing the wealth in question.”

In the affidavit supporting the application under section 5 of POCA, for disposal of property, Assistant Commissioner, Jean Celliers, had summarized the criminal conduct of the Appellants’ in this case as stated at paragraph 8 of the judgment as follows: “The fraud believed to have been committed by the Respondents [Appellants before this Court] consisted of the diversion of part of a subsidy paid by the European Union for new technology and machinery associated with waste management in the Czech Republic, Hungary and Poland for the benefit of a Czech group of companies (Exelsior Group Ltd, hereinafter Exelsior) to be supplied by a UK company, FPR Engineering Limited (a shell company, herein after FPR) to the Respondents in Seychelles and that this conduct further amounted to money laundering”. It was the position of Superintendent Prinsloo that the stages of money laundering are all evident in the transactions, namely ‘the placement stage’, ‘the integration stage’, and ‘the layering stage’.

Section 5 (3) of POCA states: “The Court shall make a disposal order in relation to any property, the subject of an application under subsection (1) unless it is shown to its satisfaction by the respondent…that the property does not constitute, directly or indirectly, proceeds of criminal conduct and was not acquired, in whole or in part, with or in connection with property that, directly or indirectly constitutes proceeds of criminal conduct”. Thus at the stage of section 5(3) the burden shifts entirely to the person against whom an application under section 5 of POCA has been made and there is no burden on the applicant who is seeking the disposal order. The learned Judge has referred to this at paragraph 66 of the judgment. Given the ‘civil’ nature of the proceedings in question, it is acceptable that the burden of proof in the proceedings should be shifted on to the person against whom an application under section 5 of POCA is made. Such civil mechanisms, involving the forfeiture of the proceeds of crime or otherwise unlawfully obtained or unexplained property, are known in UK, Italy and the USA. See the ECHR cases of Raimondo V Italy, (Application no. 12954/87), 22 February 1994, and AGOSI V the United Kingdom, (Application No 9118/80)24 October 1986.

A reading of the judgment clearly shows that the learned Judge was very much aware of the standard of proof required in establishing a section 5 POCA application. According to section 9(3) of POCA, the standard of proof required to determine any question arising under this Act, other than proceedings for an offence contrary to section 23 shall be that applicable to civil proceedings. The ECHR in the case of Gogitidze and Others V Georgia (Application no. 36862/05) 12 May 2015, stated that, whenever a confiscation order was the result of civil proceedings in rem which related to the proceeds of crime derived from serious offences, the court does not require proof “beyond reasonable doubt” of the illicit origins of the property in such proceedings. Instead, proof on a balance of probabilities or a high probability of illicit origins, combined with the inability of the owner to prove the contrary, would suffice.

The learned Judge had at paragraph 63 of the judgment stated that no application was made, during the proceedings before the Supreme Court for a determination of whether there has been or is likely to be a contravention of the Appellants’ charter rights so as to refer the matter to the Constitutional Court. It is only if it had been done that the question whether the alleged complaint of contravention of the Constitution, was frivolous or vexatious or the issue raised had not previously been decided by the Constitutional Court or the Court of Appeal could have been determined, which is a sine qua non, prior to referral. It is to be noted that the Constitution provides in article 26(2)(d) that the right to property may be subject to such limitations as may be prescribed by law and necessary in a democratic society in the case of property reasonably suspected of being acquired by the proceeds of drug trafficking or serious crime. It is to be emphasized that only lawfully obtained property enjoyed full constitutional protection. For the reasons set out in paragraphs 5 to 8, and 10 to 12, I dismiss ground (a) of appeal.

Grounds (b), (c), (d) and (e) of appeal, are almost to the same effect, namely the failure of the learned Trial Judge to hold that the Respondent failed to discharge its legal burden set out in POCA due to insufficiency of evidence. I find that the said grounds of appeal, do not set forth in separate numbered paragraphs the findings of fact to which the Appellants are objecting, and are therefore vague or general in terms, thus in contravention of rules 18(3) and 18(7) of the Seychelles Court of Appeal Rules 2005. A simple and general statement that the allegations and suspicions of the Respondent did not meet the required standard of proof, or that the Appellants’ had proven their defence, or that the learned Judge had failed to properly and adequately assess the facts and evidence; was totally insufficient to satisfy the requirements of rules 18(3) and 18(7) of the Seychelles Court of Appeal Rules 2005, in the face of the detailed judgment making reference to the evidence of the Respondent (paragraphs 8, 15 – 22, and 24) and the evidence of the Appellants’ (paragraphs 12, 13, 26 – 35, 38, and 39) and setting out the different explanations by the Appellants’ at different times during the several proceedings of this case (paragraphs 69 and 70), indicating their lack of credibility. That alone should suffice to dismiss grounds (b), (c), (d) and (e). I do not believe it is the duty of this Court to pin-point what evidence was available to substantiate the disposal order made by the Supreme Court pursuant to section 5 of POCA. It was the duty of the Appellant to have set forth the findings of fact to which they are objecting in filing the Notice of Appeal, none of which had been stated. The learned Judge had at paragraphs 71 -73 of the judgment reasoned out why she had concluded that the Appellants had failed in its burden of establishing to the satisfaction of court; that the property does not constitute, directly or indirectly, proceeds of criminal conduct.

I wish to state that sufficiency or insufficiency of evidence and credibility of witnesses are factual issues, which are essentially matters for the Trial Judge. The ECHR in the case of Gogitidze and Others V Georgia (Application no. 36862/05) 12 May 2015, reiterated that “It is not within its province to substitute its own assessment of the facts for that of the domestic courts, who are better placed to assess the evidence before them” (see Grayson and Barnham v. the United Kingdom, nos. 19955/05 and 15085/06, 23 September 2008). An appellate court would also rarely interfere with the findings of a Trial Judge on factual matters unless they are palpably wrong. At paragraph 74 of the judgment the learned Judge had stated: “…but of utmost importance is the fact that the Court is not satisfied that the Respondents have been able to show the legitimate source of their funds to acquire the specified property in this application. The different explanations by the Respondents at different times during these proceedings indicate their lack of credibility and I have no hesitation in disregarding their evidence.” At paragraph 75 of the judgment the learned Judge had said: “I am satisfied on the pleadings and the evidence before me, namely the affidavits of Assistant Commissioner Jan Celliers and Superintendent Hein Prinsloo and the exhibits appended to their affidavit that a disposal order in favour of the Applicant should issue in respect of the property.” For the reasons set out in paragraphs 12 and 13, I dismiss grounds (b), (c), (d), and (e).

The Appellants have through their Skeleton Heads of Argument in support of grounds (b) and (e) of appeal, filed in violation of this Court’s Practice Direction, 2 of 2019 dated 2^nd December 2019, erroneously made an attempt to place reliance on the provisions of section 9 of POCA, which only applies to proceedings under section 3 (when there is an application for an interim order) or section 4 (when there is an application for an interlocutory order) of POCA. Those stages had passed when the application was made under section 5 for a disposal order and the disposal order was made, as stated at paragraph 2 above. When this was pointed out to Counsel for the Appellant at the hearing he agreed and said that he will not be pursuing grounds (b) and (e).

The Appellants have in support of grounds (c) and (d) of appeal, erroneously made an attempt to shift the burden of proof to the Respondent when it was entirely upon them as stated at paragraph 12 above. Here again the Appellants have made an attempt to place reliance on the provisions of section 9 of POCA, which has no application as stated at paragraph 17 above.

I am surprised to find that even Counsel for the Respondent had fallen into the error of considering that a ‘disposal order’ made by the Supreme Court, as one made under sections 3 or 4 of POCA and thus in relation to which section 9 of POCA applies. It is only at paragraphs 52 - 54 of the submissions of the Respondent, that Counsel for the Respondent, had identified a ‘disposal order’ made as one to be distinguished from sections 3 and 4 of POCA. At paragraph 53 it is correctly stated that the ‘disposal order’ was only an extension of the proceedings already had in the interlocutory and receivership orders. As stated at paragraph 2 above at the time of the application pursuant to section 5 of POCA there had been no application pending under section 4(3) of POCA for the discharge of the interlocutory order before the Supreme Court in respect of the specified property nor was there any appeal pending before this Court.

In view of what has been stated above I dismiss the appeal.

________________

Fernando President

ROBINSON JA

I agree with the conclusion arrived at by the President in his judgment that the appeal should be dismissed.

_________________

F. Robinson JA

Signed, dated and delivered at Ile du Port on 16 December 2022.

ANDRE JA

IN ADDITION TO THE JUDGMENT OF FERNANDO PRESIDENT

“Subject to subsections (3) and (4), an interlocutory order shall continue in force until—

(a) the determination of an application for a disposal order in relation to the property concerned;

(b) the expiration of the ordinary time for bringing an appeal from that determination; or,

(c) if such an appeal is brought, when the appeal is determined or abandoned, whichever is the latest, and shall then lapse.”

(Emphasis added)

CONCLUSION

____________________

Andre JA

Signed, dated and delivered at Ile du Port on 16 December 2022.

Laurencine v R () [2022] SCCA 64 (16 December 2022);

Mithila Mudalige — Fri, 23 Dec 2022 04:33:57 +0000

Laurencine v R () [2022] SCCA 64 (16 December 2022);

Flynote

Criminal law

Mithila Mudalige Fri, 12/23/2022 - 04:33

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Appeal against conviction for sexual assault and the sentence imposed.

Headnote and holding

Appeal against conviction dismissed. Appeal against sentence varied and the sentences in respect of the two charges should run partially concurrently and the Appellant should serve a period of 17 years.

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IN THE COURT OF APPEAL OF SEYCHELLES

Reportable

[2022] SCCA 64 (16 December 2022)

SCA CR 01/2022

(Appeal from CO 08/2021)

In the matter between

C L Appellant

(rep. by Mr. Olivier Chang-Leng)

and

The Republic Respondent

(rep. by Ms. Corrine Rose)

Neutral Citation: Laurencine v R (SCA CR 01/2022) [2022] SCCA 64 (Arising in CO 08/2021) (16 December 2022)

Before: Fernando President, Robinson JA, Tibatemwa-Ekirikubinza JA

Summary: Appeal against conviction for sexual assault and the sentence imposed.

Heard: 1 December 2022

Delivered: 16 December 2022

ORDER

JUDGMENT

FERNANDO, PRESIDENT

The Appellant had appealed against his conviction for sexual assault contrary to section 130(1) read with 130(2)(d) and sexual assault contrary to section 130(1) read with 130(2)(a) and the sentences of 15 years’ imprisonment imposed on him in respect of each count which are to be served consecutively, thereby totalling to a period of 30 years’ imprisonment.

The first count as particularized in the indictment was for inserting his finger in the vagina of 9-year-old AR for a sexual purpose and the second count as particularized was for licking the vagina of AR and touching it with his finger and making AR lick his penis.

The Appellant has raised the following grounds of appeal against conviction:

“The Learned Trial Judge erred in fact when he stated that the evidence of the virtual complainant was corroborated by the evidence of Damien Isaac.
The Learned Trial Judge erred in fact when he incorrectly combined and narrated the version of events as described by the two material witnesses, being the virtual complainant and Damien Isaac.
The Learned Trial Judge erred in law and on the facts when he stated that the discrepancies between the evidence of the virtual complainant and Damien Isaac are a result of their being young children, failing to consider that their evidence differed significantly and materially.
The Learned Trial Judge erred in fact and law when he considered and based his decision on testimony that the Appellant made the virtual complainant touch his penis when this was not one of the offences with which the Appellant was charged.
The Learned Trial Judge erred in fact when he stated that the Appellant did not deny that he was in the house with the virtual complainant at around the time of the commission of the offence.
The Learned Trial Judge erred in fact and law when he stated that Dr. Michel, the expert witness, could not rule out sexual assault failing to consider that the same witness accepted that he saw no evidence of sexual assault on the virtual complainant.
The Learned Trial Judge erred in law when he failed to engage with the inconsistencies and deficiencies in the evidence against the
Appellant.” (verbatim)

As against sentence the Appellant has argued that it is harsh and excessive having regard to the circumstances and past jurisprudence.

By way of relief the Appellant has sought for “an order quashing the judgment and the acquittal of the Appellant, or, in the alternative, a reduction in his sentence proportionate to the circumstances of the case” (verbatim). Counsel should have taken care in reading what is written before placing his signature on a Notice of Appeal.

All grounds of appeal in my view are in relation to factual matters which are generally the domain of the Trial Judge who has had the opportunity to see and hear the witnesses testifying and thus view their demeanour, the yardstick to determine the truth of what the witnesses said. It is to be noted that appeals to this Court shall be by way of re-hearing and this Court has all the powers of the Supreme Court when hearing an appeal and in that respect may draw inferences of fact, and give any judgment which the Supreme Court ought to have given. In hearing an appeal, the duty of this Court is to ascertain whether sufficient evidence had been placed before the Trial Court to sustain the conviction. It is to be remembered that what is on appeal is the conviction of the appellant and not the judgment or the manner the judgment had been written. Thus, whatever misconceptions there may be in the judgment, as set out in paragraphs 16-18 of the Skeleton Arguments and any wrong inferences the Trial Judge may have drawn will not necessarily vitiate a conviction, provided this Court is satisfied that there is sufficient evidence to sustain the conviction. However, this Court will always bear in mind that it is the Trial Judge who is best suited to make a determination as to the truthfulness of witnesses having had the opportunity to watch their demeanour and it would only be in exceptional situations that this Court would interfere with a finding of fact by the Trial Court.

The evidence of A.R. being a child had been taken by closed circuit television, without objection. Prior to leading AR’s evidence, she had been questioned and the Court had been satisfied that she knew the sanctity of an oath and the difference between the truth and a lie. The learned Trial Judge as per the judgment had been satisfied that A.R. was capable of giving intelligible evidence, thus satisfying the requirement of section 11A of the Evidence Act. A.R. had said that at the time of the incident she had been living with her family, namely Manuela Tirant, her mother; E.L. her stepfather; V.P. her brother and sisters Ella and A; at Coco Rouz, in Praslin. On being asked why she was in Court A.R. had replied because Christopher raped her. Christopher is the Appellant in this case. She had said that Christopher works at Octopus and lives at Coco Rouz with Ms. Elna. He has his separate bedroom. She had said that she knows both the Appellant and Ms. Elna because they live opposite their house. On that eventful day in November 2020 A.R. had gone to sleep in Ms. Elna’s house. She had been in the bedroom with Ashira (A) and Adriano watching cartoons. Later Rene Richard and Damien had come to that bedroom. Thereafter, the Appellant had called her to his bedroom. It was a big room and there was a big bed in it. At that time Ashira, Adriano and R.R. were asleep apart from Damien. When she entered the Appellant’s bedroom she saw on television a man and a woman naked. There was a door to the Appellant’s bedroom but the door did not close properly. The Appellant placed a gas cylinder behind the door to close it. At this time, only the Appellant and A.R. were in the bedroom. Appellant had then removed A.R.’s short jeans and small panty and rubbed his finger inside her vagina. A.R. had not liked what the Appellant was doing and had asked him to stop it because it was painful but the Appellant had continued doing it. Thereafter he had rubbed his tongue inside her vagina. The appellant had also removed his shorts and asked A.R. to lick his penis. She had done so once and put on her shorts and left the Appellant’s bedroom. When she came out of the Appellant’s room Damien had told her that he knows what had happened. A.R. had told him that he was lying as she thought that he had not seen anything. A R. had said that she did not shout or call out to anyone nor had not told what the Appellant had done to her, because she was scared. A.R. had said that when the incident happened Ms. Elna and her baby had been in Elna’s bed room asleep. Later the Appellant had given her and her sister SCR 100 each. A.R. said that she felt scared when she saw the Appellant thereafter.

In cross examination it had been confirmed that the Appellant lived in Ms. Elna’s house and had his own bedroom, which had a big bed. A.R. had said she had gone to Ms. Elna’s house to sleep on several earlier occasions and was in the habit of sleeping in the same bedroom. Counsel for the defence had got A.R. to confirm that the Appellant had come to A.R.’s bedroom and asked her to come to his bedroom. A.R. had said that when she went to the bedroom the TV was on, but the Appellant had switched it off. A.R. had said that there was light in the room. Thereafter Counsel for the defence had virtually got A.R. to confirm what she had said in her examination-in-chief about what the Appellant did. By this line of cross-examination Counsel had not challenged the identity or presence of the Appellant at the scene of crime, despite the Prosecutor failing to ask A.R. to identify the Appellant, who was in the dock, when she testified. A.R. had also said that when she came out of the room of the Appellant Damien was awake and watching cartoons in another bedroom and the door of that room was open. Damien had told her that he saw what happened. She had told Counsel for the defence when questioned by him, that she was sure that she was telling the truth, that she knew the importance of telling the truth, that no one had asked her to tell lies. When questioned: “I put it to you that Christopher never did any of these things to you” A.R.’s answer had been “It is true. He did it.” Cross-examination revealed that A.R. had made the statement to the Police about 2-3 months after the incident. What the defence had attempted to show as contradictions of A.R.’s evidence from the statement she gave to the Police, was that in her statement she had said that there was a small mattress on the floor, which she did not state in her evidence and that she had not seen when the Appellant removed his shorts, although she said that in her evidence in court. A.R. had not been asked to describe all that was in the room of the Appellant when she was examined in chief and in my view both these matters are not material contradictions as to have an impact on the truthfulness of A.R.’s evidence.

The learned Trial Judge had said: “I have carefully scrutinized the evidence of A.R. as a whole, which I find it to be cogent, consistent and credible. I have also carefully considered the complainant’s demeanour and the words, phrases and expressions that she used in her testimony.” The learned Trial Judge had thereafter at paragraph 27 of the judgment repeated the testimony of A.R. which he believed. An appellate court will interfere with the factual findings of the Trial Judge only when there are grave errors as stated earlier.

15-year-old, Damien Issac testifying before the Court on oath, had stated that at the time of the incident, he had been living in Praslin with his mother, stepfather, two sisters and brother. They were neighbours of the Appellant who he named as Christopher Laurencine, Elna Paul and Manuella Tirant. When asked why he had come to Court, Damien had said, that he had come to tell the truth of what happened to the little girl called A.R who was also their neighbour. He remembered the night of the incident when he slept over at the house of Elna Paul. Damien was uncertain whether the incident happened in November or December 2020. On that day A.R. the victim, and three others (R.R., Ashira and Jelissa) were staying over at Elna’s house, including the Appellant, who Damien identified in Court. According to Damien he had slept at the house of Elna on multiple occasions and slept in two of the rooms interchangeably. That night too, he was first sleeping in the Appellant’s room. At a certain stage he saw A.R. who was also in the Appellant’s room with her hand on the private part of the Appellant. Both the Appellant and A.R. were clothed at this time. The Appellant was wearing a pair of shorts. At that time a sex movie was playing and the Appellant had asked Damien to take the external drive and go out of the room and watch TV in another room. He had then left the Appellant’s room leaving A.R. in the Appellant’s room. He had not gone to watch TV in the other room soon thereafter as he wanted to find out what the Appellant and A.R. were doing and remained in the living room adjacent to the other bedroom. It is clear from Damien’s testimony that he was not a witness to the entire incident as narrated by A.R. since he was asked by the Appellant to move out of the room. But certainly his curiosity would have been aroused as a teenager of 15 years, after seeing A.R.’s hand on the Appellant’s private part. It would have been for that reason that he wanted to find out what the Appellant and A.R. were doing. After some time, he had seen A.R. coming out of the Appellant’s room with a small amount of blood on her pair of shorts near her private part. When questioned A.R. had said it was from a cut. The next morning, he had informed A.R.’s sister about the incident and in January A.R.’s family about it.

In cross-examination it had been suggested to Damien that his version was different to that of A.R; having drawn his attention to the various discrepancies between A.R.’s and his evidence and therefore told that either he or A.R. was lying, to which Damien had replied that he had stated what he had seen. It had been the defence position: “I put it to you Damien that both your statement and your evidence today in Court is a complete lie”, which amounts to a total rejection of Damien’s evidence as one, that could not in any way rely upon. If that be the defence position it is strange why the defence now seek reliance on Damien’s testimony to discredit A.R. It is to be noted the court can come to a finding if it believes the testimony of A.R, without further evidence. It is strange to find that Counsel for the Defence had put to Damien a part of his statement to the Police, which corroborates his testimony in Court, namely: “and now Christopher (Appellant) saw me, and he asked me to go the other bedroom, where the other children are and then I went to the bedroom where the other children have already fallen asleep. So, I went back and stood there near Christopher’s bedroom.” Damien had repeated under cross-examination that the Appellant gave him an external and told him to go and watch movies and that he had seen blood on the shorts of A.R. When challenged that both he and A.R. had concocted a story against the Appellant which is untrue, Damien had denied it and said “It is true”. What the defence have failed to show in this case, is why A.R. a nine year old girl and fifteen-year-old Damien should have concocted a story about the Appellant against whom they or their parents had no motive or any form of grievance.

Undoubtedly there are inconsistencies between the evidence of A.R. and Damien; but bearing in mind that A.R. is only nine years and Damien 15 years, and the very confusing manner the questions had been asked both by the Counsel for the prosecution and defence; I do not attach any weight to the inconsistencies in the evidence of A.R. and Damien and in my mind they are not material so as to discredit the testimony of A.R. There has been no consistency in the manner both Counsel have examined the witnesses in getting at what they wanted the witnesses to testify to Court. The issues about who slept where, and at what time they moved in and out of the two rooms, in the testimony of Damien do not come out clearly as a contradiction of the evidence of A.R. so as to discredit the testimony of A.R. That part of the statement of Damien to the police, which the Counsel for the defence had highlighted has placed the Appellant at the scene, namely: “and now Christopher saw me, and he asked me to go the other bedroom, where the other children are and then I went to the bedroom where the other children have already fallen asleep.” The learned Trial Judge had been quite alive to this when he said: “The defence denies the offence by relying on what it considered contradictions in the prosecution evidence, especially between the evidence of Damien and that of the virtual Complainant. I have carefully considered this defence and I find that indeed there are discrepancies…” and have gone on to itemize some of the inconsistencies in the evidence of A.R. and Damien at paragraph 32 of his judgment. Having considered them the learned Trial Judge had said: “I have noticed these and some other discrepancies however, to my mind these do not come to the level of reasonable doubts. They amount to doubts that would be present in the evidence of young children, testifying about a traumatic incident, in public, months after the incident happened.” Having scrutinized the evidence of both A.R. and Damien in this case, I am of the same view as the learned Trial. Even if there are discrepancies in the evidence of A.R. and Damien, I am of the view that no substantial miscarriage of justice has occurred in this case and therefore apply the proviso in rule 31(5) of the Seychelles Court of Appeal Rules 2005. I therefore dismiss ground (iii) of appeal. Since ground (vii) is on the same lines as ground (iii) I also dismiss ground (vii).

Counsel for the Appellant in his Skeleton Arguments had stated that A.R. and Damien differ with regards to who was there that evening, where they were, what occurred and what conversations was had between them. Only the name of Jelissa had not been mentioned when A.R. testified. But there is no discrepancy in regards to the presence of the Appellant, A.R. and Damien in the house of Elna that evening in the testimonies of A.R. and Damien. The evidence bears out that the children were moving in and out of the two rooms that evening. It is also clear that Damien was not a witness to all that happened between the Appellant and A.R., as he had been asked to move out of the Appellant’s room by the Appellant with the external drive. The fact that A.R. had not narrated to Damien all that happened to her while she was in the room of the Appellant, soon after the incident and when Damien spoke to her, is understandable taking into consideration that she was only 9 years of age and would have been afraid or embarrassed to talk about it.

The medical evidence in this case does not corroborate or contradict the evidence of A.R., save it may lend some support to the evidence of Damien, indirectly. Dr. R. Michel, a very experienced Obstetrician and Gynaecologist and one who had testified before the Courts in many sexual abuse cases had, producing his Medical Report stated that he had examined A.R. on 12 February 2021, i.e. about 3 months after the incident. According to the said report there had been no external visible bruises. The vaginal examination had revealed that the hymen was intact and there was no vaginal discharge. In his Report he had stated: “Sexual abuse cannot be ruled out”. The doctor in explaining this to Court had said that this is because sexual abuse happens without leaving any physical evidence. He then had made reference to fingering and kissing. The doctor had said that even if there had been penetration there are instances where there will be no signs. He had stated that his examination had been days after the incident and thus too late to find any evidence of sexual abuse. The doctor had also said if there had been blood coming from the victim’s private part, it could be from a scratch, without a tear of the hymen. When asked in cross examination if it had been a scratch would it leave a scar afterwards, the doctor had said “No it will heal According to the learned Trial Judge, Damien’s evidence in relation to seeing blood on the shorts of A.R. had been corroborated by the doctor who said it could have been from a scratch. It is also to be noted that A.R. in her evidence had stated that when the Appellant rubbed his finger inside her vagina it was painful and she had asked him to stop it. Counsel for the defence had then asked the doctor: “You said that sexual abuse cannot be ruled out in your statement but you’ll agree with me that sexual abuse cannot also be confirmed by physical examination” to which the doctor had answered in the affirmative. The learned Trial Judge by making reference to this in his judgment did not in any way err in fact and law as stated at ground (vi) of appeal. I therefore dismiss the said ground of appeal.

Manuella Tirant (M.T.), the mother of A.R. testifying before the Court had stated that she learnt about the incident on 4^th February 2021, when she received a call from A.R.’s father of an incident regarding his daughter A.R. Following that she had confronted A.R. on the matter. At first A.R. had refused to talk saying that M.T. would beat her up. After comforting and assuring A.R. that she would not beat her, A.R. had cried and said that the Appellant had touched her vagina. Thereafter, she had gone to fetch Elna Paul, the lady in whose house the incident had occurred and A.R. had repeated her complaint in the presence of Elna. It was thereafter, the matter was reported to the police. M.T. had stated that she noticed changes in A.R.’s behaviour as of December 2020 when her grades in school started to drop and that the incident had affected A.R. a lot. M.T. had said that she had also noticed that the Appellant had started to shout at A.R. after November 2020 and she had found fault with him. The fact that A.R. had not given all the details of what happened as narrated in Court, when first questioned by her mother cannot be taken to discredit the testimony of A.R.

Elna Paul (E.P.) testifying before the Court had stated that the Appellant lived in her house in one of rooms and they shared the house rent between them. His bedroom door did not close properly and he was in the habit of closing it by placing a diver gas bottle or a rock to prevent the door from opening. A.R. was a neighbour and often came to her house with other children in the neighbourhood, namely Rene Richard, Adriano and Damien, to play and watch cartoon. The boys used to sleep in the Appellant’s room and sometimes A.R. also slept at her place, but not in the Appellant’s room. Elna had a son who was 1 ½ years old. The children had access to the Appellant’s room. She had come to know of the incident between the Appellant and A.R. when A. R’s mother M.T. reported it to her in the presence of A.R. A.R. had been crying at that time and looked fearful. According to her the Appellant was a kind person and a good friend of hers. He worked as a diver at Octopus Diving Centre. Elna was shocked to hear about the complaint of Elna as she did not expect that type of conduct from the Appellant. She had asked A.R. why she had not called her or screamed, and A.R. had said that she did not want to wake her up and her little son as they were sleeping. Elna had admitted that often she slept while the children watched cartoons. She had also said that the Appellant would be in the house with the children while she was asleep.

The evidence of M.T. and E.P. referred to in paragraphs 13 and 14 above makes it clear that A.R.’s complaint has not been at the instigation of any one of them. Their evidence shows that they too were taken by surprise to hear what the Appellant had done to A.R. who had no motive to fabricate a case against the Appellant. A.R. was an innocent child who through shame and fear had kept the incident a secret and her story would not have come out if not for Damien. It goes without saying sometimes unexpected behaviour is reported from persons one may not imagine.

The Appellant’s intentions become clear and A.R.’s testimony finds corroboration from the following facts. Damien’s evidence that he saw A.R.’s hand on the private part of the Appellant; the fact the Appellant was playing a sex movie before the incident; the Appellant sending Damien out of the room by giving him the external drive and asking him to watch TV in another room; the fact that Damien had seen A.R. coming out of the Appellant’s room with a small amount of blood on her pair of shorts near her private part, which the doctor had said could have been from a scratch in the vaginal area, the Appellant shouting at A.R. after December 2020, and A.R.’s behaviour when she was first questioned by M.T and subsequent to that as testified by M.T. I therefore see no merit in ground (1) and dismiss it.

I find no merit in ground (ii) as I do not find that the learned Trial Judge had ‘incorrectly combined’ and narrated the version of events as described by A.R. and Damien. He had only placed together the pieces of evidence of A.R. and Damien to make out the narrative. I therefore dismiss ground (ii).

Ground (v) is based on what the learned Trial Judge had stated at paragraph 27 of the judgment, namely, “The undisputed evidence puts the virtual complainant and the accused in the same house at around the time that the offences took place. The accused does not deny this.” The learned Trial Judge had said the Appellant only disputed having committed the offences of sexual offences he had been charged with. In making this statement the learned Trial Judge had not erred in fact as stated in ground (v). This was in fact the defence put forward on behalf of the Appellant on the basis of the cross-examination at the trial and what was borne out from the undisputed evidence. The defence had not in any way challenged the evidence of A.R. or Damien on the basis that the Appellant was not in the house at the time of the incident or brought evidence of an alibi. It is to be noted what is not challenged is taken to be accepted.

In regard to ground (iv), I state having examined the judgment, the learned Trial Judge certainly had not “based his decision on testimony that the Appellant made the virtual complainant touch his penis” as stated therein. Counsel for the Appellant had gone on to state in that ground that “this was not one of the offences with which the Appellant was charged”, indicating the Appellant was charged for making A.R. lick his penis. It is to be noted that ‘lick’ is a synonym or hyponym of ‘touch’. I see no merit in ground (iv) and dismiss it.

For the reasons stated above I have no hesitation in dismissing the appeal against conviction and upholding the conviction.

As regards the ground of appeal on sentence I find that the offences with which the Appellant was charged are serious and I am in agreement with what the learned Trial Judge had said at paragraph 7 of his Sentencing Order. I find however that the learned trial Judge had failed to consider that all the sexual assaults that the Appellant stood charged with had been committed at the same time and place and within a short proximity of time.

It is my view that a court is mandated, to act in accordance with the provisions section 36 of the Penal Code and give consecutive sentences, in cases where convictions have taken place under different indictments and not where the convictions for different offences take place simultaneously in respect of offences committed at the same time and in the course of the same transaction under one indictment as in this case.

Section 36 of the Penal Code reads as follows:

“Where a person after conviction for an offence is convicted of another offence, either before sentence is passed upon him under the first conviction or before the expiration of that sentence, any sentence, which is passed upon him under the subsequent conviction, shall be executed after the expiration of the former sentence, unless the court directs that it shall be executed concurrently with the former sentence or of any part thereof:

Provided that it shall not be lawful for a court to direct that a sentence under Chapter XXVI, Chapter XXVIII or Chapter XXIX be executed or made to run concurrently with one another or that a sentence of imprisonment in default of a fine be executed concurrently with the former sentence under section 28(c)(i) of this Code, or any part thereof.”

The words “after conviction”, “before sentence is passed upon him under the first conviction” or “before the expiration of that sentence” in section 36, is suggestive of this. In the instant case both convictions had been at the same time, in the same judgment, delivered on the same date and both sentences had also been delivered at the same time, in the same Order, delivered on the same date. There is however no bar for a court to order that sentences passed in respect of different offences committed in the course of the same transaction charged under one indictment be served consecutively. In my view consecutive sentences would be appropriate where the gravamen of the offences committed during the same transaction are different, and where there are clearly identifiable differences between the offences committed, for instance robbery and sexual assault.

The court also has the discretion under section 36 to order that any sentence, which is passed shall be executed concurrently with the former sentence or of any part thereof. The latter part of the earlier sentence which is underlined simply means, for instance in this case the court could have passed a sentence of 15 years in respect of count 1 and ordered that the sentence of 15 years in respect of the second count be executed concurrently one or more years after the commencement of the sentence in respect of count 1, thereby imposing a total sentence of imprisonment of 16 years or more, namely up to 28 years. This manner of sentencing by making the sentences partially cumulative has been adopted in Mill V The Queen [1988] 166 CLR 59. In the case of Dickens V The Queen [2004] WASCA 179, the Court of Criminal Appeal of Western Australia following Mill, ordered for cumulative service of the terms imposed by the trial court to one of partial cumulacy.

In this case, inserting the finger in the vagina of AR by the Appellant as particularized in the first count and licking the vagina of AR and touching it with his finger and making AR lick his penis as particularized in the second count have all taken place simultaneously, in the course of the same transaction and within a short period of time. This has been described as the “one transaction” or “continuing episode rule”. See Australian case of Ruane V R [1979] 1 A Crim 284. It is to be noted that despite the fact that the said acts fall under 130 (2) (d) and 130 (2) (a), they are generally interrelated sexual acts committed while having sex, although unlawfully, and can be viewed as a single act of sex. If one is to separate the various sexual acts committed, a person can be charged and punished for removing the clothes of the victim, getting her to be naked and thereafter the acts of inserting the finger in the vagina, the acts of cunnilingus and fellatio, all of which will fall under the sub paragraphs (a) to (d) of 130 (2). I am however not unmindful of the fact, that certain sexual acts like cunnilingus, analingus and felatio should be viewed as different and grievous in nature to other sexual acts, especially when committed on persons of tender years.

The Court of Appeal for Eastern Africa defined the phrase ‘same transaction rule’ in the case of Republic –vs- Saidi Nsabuga S/O Juma & Another [1941] EACA and revisited it again in Nathan –vs- Republic [1965] EA 777 where the court stated as follows: -

“If a series of acts are so connected together by proximity of time, criminality or criminal intent, continuity of action and purpose, or by relation of cause and effect as to constitute one transaction, then the offences constituted by these series of acts are committed in the course of the same transaction.”

In Royer V Western Australia [2009] Owen J described the ‘single transaction rule’ as follows: “At its heart, the one transaction principle recognises that, where there is an interrelationship between the legal and factual elements of two or more offences with which an offender has been charged, care needs to be taken so that the offender is not punished twice (or more often) for what is essentially the same criminality. The interrelationship may be legal, in the sense that it arises from the elements of the crimes. It may also be factual, because of a temporal or geographical link or the presence of other circumstances compelling the conclusion that the crimes arise out of substantially the same act, omission or occurrences.”

In Peter Mbugua Kabui –vs- Republic [2016] KLR the Court of Appeal of Kenya stated as follows:

“As a general principle, the practice is that if an accused person commits a series of offences at the same time in a single act/transaction a concurrent sentence should be given. However, if separate and distinct offences are committed in different criminal transactions, even though the counts may be in one charge sheet and one trial, it is not illegal to mete out a consecutive term of imprisonment.

In the South African case of S v Mokela 2012 (1) SACR 431 (SCA), the Court expressed the view that sentences are to run concurrently where “the evidence shows that the relevant offences are inextricably linked in terms of locality, time, protagonists and, importantly, the fact that they were committed with one common intent.”

It is stated at paragraph 5-588 of Archbold 2012 that: “As a general principle, consecutive terms should not be imposed for offences which arise out of the same transaction or incident, whether or not they arise out of precisely the same facts…”

In the case of K. M. Samatha Piyalal, CA/HCC/23/18, the Court of Appeal of Sri Lanka, quashed the sentence of 12 years on each of the two counts to run consecutively in a case where the accused was charged with the offences of sexual abuse, namely, cunnilingus and rubbing his genitals on a girl of sixteen years. Instead the Court of Appeal ordered that the said sentences of 12 years be executed concurrently. The basis for varying the sentence being that they were two offences committed under the same transaction.

The imposition of consecutive sentences on the Appellant which amounted to 30 years in prison, created the anomalous situation, in that he faced a penalty more severe than the maximum that could have been imposed under section 130 of the Penal Code, namely a sentence between 14 to 20 years, for an offence of a much more serious nature.

In sentencing in a case where multiple offences are charged, a Judge should take into consideration the principle of ‘Proportionality’ and the principle known as ‘Crushing Sentence’, which have been identified as being two limbs of the ‘Totality Principle’. Under the proportionality principle as stated in the Australian case of Woods V The Queen [1994] 14 WAR 341 the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case including those referable to the offender personally. See also Adams V Western Australia [2014] WASCA 191 and Roffey V Western Australia (2007) WASCA 246. According to the ‘totality principle’ the accumulation of sentences, in other words the total sentence should not be disproportionate to the total criminal conduct. Under the crushing sentence principle, a court should bear in mind as stated in Martino V Western Australia [2006] WASCA 78, that the sentence should not induce a feeling of helplessness in the offender and destroy any reasonable expectation of a useful life after release. Also see [Sayed v The Queen [2012] WASCA 17, (Buss JA, Martin CJ and Hall J agreeing); Azzopardi v The Queen [2011] VSCA 372, (Redlich JA, Coghlan and Macaulay AJJA agreeing); R v MAK [2006] NSWCCA 381, (Spigelman CJ, Whealy and Howie JJ); and R v Baker [2011] QCA 104, (Atkinson J, McMurdo P and Lyons J agreeing)]

It should also be noted that the fact that a sentence will be crushing is not of itself a reason for mitigation. As Doyle J stated in the Australian case of R v E, AD [2005] SASC 332 at: “Care must be taken in using the concept of a crushing sentence. Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed. The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the court to reduce it simply because to the offender the sentence may be crushing. At the end of the day if that is what is called for, that is the sentence that must be imposed” In the federal sentencing decision of Hay v The Queen [2009] NSWCCA 228, the Court cited Sully J’s comments in R v Wheeler [2000] NSWCCA 34: “It needs to be clearly understood by all concerned that a person who commits a deliberate series of discrete offences … must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment …” Courts have also noted that public confidence in the administration of justice requires courts to avoid any suggestion that what is being offered ‘is some kind of discount for multiple offending’.

It is stated at paragraph 5-592 of Archbold 2012 that under the ‘totality principle’, “A court, which passes a number of consecutive sentences should review the aggregate of the sentences, and consider whether the aggregate sentence is just and appropriate taking the offences as a whole.”

In the Australian case of Postiglione v The Queen [1997] HCA 26, Kirby J extracted a passage from Clayton Ruby, Sentencing (4th ed, 1994) 44-45 that identifies both limbs: “A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender ‘a crushing sentence’ not in keeping with his record and prospects” In the same case, McHugh J referred to a statement of King CJ in R v Rossi, that described the totality principle as enabling a court: “To mitigate what strict justice would otherwise indicate, where the total effect of the sentence merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect”

In S v Moswathupa 2012 (1) SACR 259 (SCA) the South African High Court said: “Where multiple offences need to be punished, the court has to seek an appropriate sentence for all offences taken together. When dealing with multiple offences a court must not lose sight of the fact that the aggregate penalty must not be unduly severe.”

In R v MMK [2006] NSWCCA 272, Street CJ said at 260:

“The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.”

In Franklin v R [2013] NSWCCA 122, the Court observed that:

“A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of accumulation and concurrence as well, of course, as questions of totality. In accordance with the approach in Pearce, sentences considered appropriate for each offence are to be determined and the overall objective criminality is then to be taken into account when considering whether they should be served concurrently or cumulatively upon one another, either in part or totally.”

It has been held that sentencing is about achieving the right balance between the crime, the offender and the interests of the community (S v Zinn 1969 (2) SA 537 (A) at 540G-H). A court should, when determining sentence, strive to accomplish and arrive at a judicious counterbalance between these elements in order to ensure that one element is not unduly accentuated at the expense of and to the exclusion of the others (see S v Banda 1991 (2) SA 352 (BG) at 355A).

The question is essentially whether, on a consideration of the particular facts of the case, the sentence imposed is proportionate to the offence, with reference to the nature of the offence, the interests of society and the circumstances of the offender. See Yose and Another v S (04/2021; A230/2021; RCA 199/2008.

I am of the view that the 30 years’ imprisonment passed on the Appellant is excessive and offends the totality principle when taking into consideration that the Appellant is 30 years old, a first offender and the fact that no force had been used in committing the sexual assaults. I am however of the view that the acts of cunnilingus and felatio, although committed during the same transaction, have to be viewed as different and grievous in nature and morally debasing, when taking into consideration that the victim was only 9 years of age. A strong message should go out to society that one must not corrupt persons of tender years.

While maintaining therefore, the sentence of 15 years’ imprisonment in respect of counts 1 and 2, I am of the view that the sentence of 15-year imprisonment in respect of count 2 should be executed concurrently, two years after the commencement of the sentence in respect of count 1, thereby imposing a total sentence of imprisonment of 17 years.

As stated earlier I dismiss the Appellant’s appeal against conviction and uphold the conviction, but quash the order that the Appellant serve a total period of 30 years’ imprisonment in respect of counts 1 and 2. I order that the Appellant shall serve a total period of 17 years’ imprisonment, in respect of both counts 1 and 2, as explained at paragraphs 24 and 42 above.

Fernando President

I concur: _________________

F. Robinson JA

I concur: _________________

L. Tibatemwa-Ekirikubinza JA

Signed, dated and delivered at Ile du Port on 16 December 2022.

Law report citations

Laurencine v R (SCA CR 01/2022) [2022] SCCA 64 (Arising in CO 08/2021)

IN THE COURT OF APPEAL OF SEYCHELLES

Reportable

[2022] SCCA 64 (16 December 2022)

SCA CR 01/2022

(Appeal from CO 08/2021)

In the matter between

C L Appellant

(rep. by Mr. Olivier Chang-Leng)

and

The Republic Respondent

(rep. by Ms. Corrine Rose)

Neutral Citation: Laurencine v R (SCA CR 01/2022) [2022] SCCA 64 (Arising in CO 08/2021) (16 December 2022)

Before: Fernando President, Robinson JA, Tibatemwa-Ekirikubinza JA

Summary: Appeal against conviction for sexual assault and the sentence imposed.

Heard: 1 December 2022

Delivered: 16 December 2022

ORDER

JUDGMENT

FERNANDO, PRESIDENT

The Appellant had appealed against his conviction for sexual assault contrary to section 130(1) read with 130(2)(d) and sexual assault contrary to section 130(1) read with 130(2)(a) and the sentences of 15 years’ imprisonment imposed on him in respect of each count which are to be served consecutively, thereby totalling to a period of 30 years’ imprisonment.

The first count as particularized in the indictment was for inserting his finger in the vagina of 9-year-old AR for a sexual purpose and the second count as particularized was for licking the vagina of AR and touching it with his finger and making AR lick his penis.

The Appellant has raised the following grounds of appeal against conviction:

“The Learned Trial Judge erred in fact when he stated that the evidence of the virtual complainant was corroborated by the evidence of Damien Isaac.
The Learned Trial Judge erred in fact when he incorrectly combined and narrated the version of events as described by the two material witnesses, being the virtual complainant and Damien Isaac.
The Learned Trial Judge erred in law and on the facts when he stated that the discrepancies between the evidence of the virtual complainant and Damien Isaac are a result of their being young children, failing to consider that their evidence differed significantly and materially.
The Learned Trial Judge erred in fact and law when he considered and based his decision on testimony that the Appellant made the virtual complainant touch his penis when this was not one of the offences with which the Appellant was charged.
The Learned Trial Judge erred in fact when he stated that the Appellant did not deny that he was in the house with the virtual complainant at around the time of the commission of the offence.
The Learned Trial Judge erred in fact and law when he stated that Dr. Michel, the expert witness, could not rule out sexual assault failing to consider that the same witness accepted that he saw no evidence of sexual assault on the virtual complainant.
The Learned Trial Judge erred in law when he failed to engage with the inconsistencies and deficiencies in the evidence against the
Appellant.” (verbatim)

As against sentence the Appellant has argued that it is harsh and excessive having regard to the circumstances and past jurisprudence.

All grounds of appeal in my view are in relation to factual matters which are generally the domain of the Trial Judge who has had the opportunity to see and hear the witnesses testifying and thus view their demeanour, the yardstick to determine the truth of what the witnesses said. It is to be noted that appeals to this Court shall be by way of re-hearing and this Court has all the powers of the Supreme Court when hearing an appeal and in that respect may draw inferences of fact, and give any judgment which the Supreme Court ought to have given. In hearing an appeal, the duty of this Court is to ascertain whether sufficient evidence had been placed before the Trial Court to sustain the conviction. It is to be remembered that what is on appeal is the conviction of the appellant and not the judgment or the manner the judgment had been written. Thus, whatever misconceptions there may be in the judgment, as set out in paragraphs 16-18 of the Skeleton Arguments and any wrong inferences the Trial Judge may have drawn will not necessarily vitiate a conviction, provided this Court is satisfied that there is sufficient evidence to sustain the conviction. However, this Court will always bear in mind that it is the Trial Judge who is best suited to make a determination as to the truthfulness of witnesses having had the opportunity to watch their demeanour and it would only be in exceptional situations that this Court would interfere with a finding of fact by the Trial Court.

The evidence of A.R. being a child had been taken by closed circuit television, without objection. Prior to leading AR’s evidence, she had been questioned and the Court had been satisfied that she knew the sanctity of an oath and the difference between the truth and a lie. The learned Trial Judge as per the judgment had been satisfied that A.R. was capable of giving intelligible evidence, thus satisfying the requirement of section 11A of the Evidence Act. A.R. had said that at the time of the incident she had been living with her family, namely Manuela Tirant, her mother; E.L. her stepfather; V.P. her brother and sisters Ella and A; at Coco Rouz, in Praslin. On being asked why she was in Court A.R. had replied because Christopher raped her. Christopher is the Appellant in this case. She had said that Christopher works at Octopus and lives at Coco Rouz with Ms. Elna. He has his separate bedroom. She had said that she knows both the Appellant and Ms. Elna because they live opposite their house. On that eventful day in November 2020 A.R. had gone to sleep in Ms. Elna’s house. She had been in the bedroom with Ashira (A) and Adriano watching cartoons. Later Rene Richard and Damien had come to that bedroom. Thereafter, the Appellant had called her to his bedroom. It was a big room and there was a big bed in it. At that time Ashira, Adriano and R.R. were asleep apart from Damien. When she entered the Appellant’s bedroom she saw on television a man and a woman naked. There was a door to the Appellant’s bedroom but the door did not close properly. The Appellant placed a gas cylinder behind the door to close it. At this time, only the Appellant and A.R. were in the bedroom. Appellant had then removed A.R.’s short jeans and small panty and rubbed his finger inside her vagina. A.R. had not liked what the Appellant was doing and had asked him to stop it because it was painful but the Appellant had continued doing it. Thereafter he had rubbed his tongue inside her vagina. The appellant had also removed his shorts and asked A.R. to lick his penis. She had done so once and put on her shorts and left the Appellant’s bedroom. When she came out of the Appellant’s room Damien had told her that he knows what had happened. A.R. had told him that he was lying as she thought that he had not seen anything. A R. had said that she did not shout or call out to anyone nor had not told what the Appellant had done to her, because she was scared. A.R. had said that when the incident happened Ms. Elna and her baby had been in Elna’s bed room asleep. Later the Appellant had given her and her sister SCR 100 each. A.R. said that she felt scared when she saw the Appellant thereafter.

In cross examination it had been confirmed that the Appellant lived in Ms. Elna’s house and had his own bedroom, which had a big bed. A.R. had said she had gone to Ms. Elna’s house to sleep on several earlier occasions and was in the habit of sleeping in the same bedroom. Counsel for the defence had got A.R. to confirm that the Appellant had come to A.R.’s bedroom and asked her to come to his bedroom. A.R. had said that when she went to the bedroom the TV was on, but the Appellant had switched it off. A.R. had said that there was light in the room. Thereafter Counsel for the defence had virtually got A.R. to confirm what she had said in her examination-in-chief about what the Appellant did. By this line of cross-examination Counsel had not challenged the identity or presence of the Appellant at the scene of crime, despite the Prosecutor failing to ask A.R. to identify the Appellant, who was in the dock, when she testified. A.R. had also said that when she came out of the room of the Appellant Damien was awake and watching cartoons in another bedroom and the door of that room was open. Damien had told her that he saw what happened. She had told Counsel for the defence when questioned by him, that she was sure that she was telling the truth, that she knew the importance of telling the truth, that no one had asked her to tell lies. When questioned: “I put it to you that Christopher never did any of these things to you” A.R.’s answer had been “It is true. He did it.” Cross-examination revealed that A.R. had made the statement to the Police about 2-3 months after the incident. What the defence had attempted to show as contradictions of A.R.’s evidence from the statement she gave to the Police, was that in her statement she had said that there was a small mattress on the floor, which she did not state in her evidence and that she had not seen when the Appellant removed his shorts, although she said that in her evidence in court. A.R. had not been asked to describe all that was in the room of the Appellant when she was examined in chief and in my view both these matters are not material contradictions as to have an impact on the truthfulness of A.R.’s evidence.

The learned Trial Judge had said: “I have carefully scrutinized the evidence of A.R. as a whole, which I find it to be cogent, consistent and credible. I have also carefully considered the complainant’s demeanour and the words, phrases and expressions that she used in her testimony.” The learned Trial Judge had thereafter at paragraph 27 of the judgment repeated the testimony of A.R. which he believed. An appellate court will interfere with the factual findings of the Trial Judge only when there are grave errors as stated earlier.

15-year-old, Damien Issac testifying before the Court on oath, had stated that at the time of the incident, he had been living in Praslin with his mother, stepfather, two sisters and brother. They were neighbours of the Appellant who he named as Christopher Laurencine, Elna Paul and Manuella Tirant. When asked why he had come to Court, Damien had said, that he had come to tell the truth of what happened to the little girl called A.R who was also their neighbour. He remembered the night of the incident when he slept over at the house of Elna Paul. Damien was uncertain whether the incident happened in November or December 2020. On that day A.R. the victim, and three others (R.R., Ashira and Jelissa) were staying over at Elna’s house, including the Appellant, who Damien identified in Court. According to Damien he had slept at the house of Elna on multiple occasions and slept in two of the rooms interchangeably. That night too, he was first sleeping in the Appellant’s room. At a certain stage he saw A.R. who was also in the Appellant’s room with her hand on the private part of the Appellant. Both the Appellant and A.R. were clothed at this time. The Appellant was wearing a pair of shorts. At that time a sex movie was playing and the Appellant had asked Damien to take the external drive and go out of the room and watch TV in another room. He had then left the Appellant’s room leaving A.R. in the Appellant’s room. He had not gone to watch TV in the other room soon thereafter as he wanted to find out what the Appellant and A.R. were doing and remained in the living room adjacent to the other bedroom. It is clear from Damien’s testimony that he was not a witness to the entire incident as narrated by A.R. since he was asked by the Appellant to move out of the room. But certainly his curiosity would have been aroused as a teenager of 15 years, after seeing A.R.’s hand on the Appellant’s private part. It would have been for that reason that he wanted to find out what the Appellant and A.R. were doing. After some time, he had seen A.R. coming out of the Appellant’s room with a small amount of blood on her pair of shorts near her private part. When questioned A.R. had said it was from a cut. The next morning, he had informed A.R.’s sister about the incident and in January A.R.’s family about it.

In cross-examination it had been suggested to Damien that his version was different to that of A.R; having drawn his attention to the various discrepancies between A.R.’s and his evidence and therefore told that either he or A.R. was lying, to which Damien had replied that he had stated what he had seen. It had been the defence position: “I put it to you Damien that both your statement and your evidence today in Court is a complete lie”, which amounts to a total rejection of Damien’s evidence as one, that could not in any way rely upon. If that be the defence position it is strange why the defence now seek reliance on Damien’s testimony to discredit A.R. It is to be noted the court can come to a finding if it believes the testimony of A.R, without further evidence. It is strange to find that Counsel for the Defence had put to Damien a part of his statement to the Police, which corroborates his testimony in Court, namely: “and now Christopher (Appellant) saw me, and he asked me to go the other bedroom, where the other children are and then I went to the bedroom where the other children have already fallen asleep. So, I went back and stood there near Christopher’s bedroom.” Damien had repeated under cross-examination that the Appellant gave him an external and told him to go and watch movies and that he had seen blood on the shorts of A.R. When challenged that both he and A.R. had concocted a story against the Appellant which is untrue, Damien had denied it and said “It is true”. What the defence have failed to show in this case, is why A.R. a nine year old girl and fifteen-year-old Damien should have concocted a story about the Appellant against whom they or their parents had no motive or any form of grievance.

Undoubtedly there are inconsistencies between the evidence of A.R. and Damien; but bearing in mind that A.R. is only nine years and Damien 15 years, and the very confusing manner the questions had been asked both by the Counsel for the prosecution and defence; I do not attach any weight to the inconsistencies in the evidence of A.R. and Damien and in my mind they are not material so as to discredit the testimony of A.R. There has been no consistency in the manner both Counsel have examined the witnesses in getting at what they wanted the witnesses to testify to Court. The issues about who slept where, and at what time they moved in and out of the two rooms, in the testimony of Damien do not come out clearly as a contradiction of the evidence of A.R. so as to discredit the testimony of A.R. That part of the statement of Damien to the police, which the Counsel for the defence had highlighted has placed the Appellant at the scene, namely: “and now Christopher saw me, and he asked me to go the other bedroom, where the other children are and then I went to the bedroom where the other children have already fallen asleep.” The learned Trial Judge had been quite alive to this when he said: “The defence denies the offence by relying on what it considered contradictions in the prosecution evidence, especially between the evidence of Damien and that of the virtual Complainant. I have carefully considered this defence and I find that indeed there are discrepancies…” and have gone on to itemize some of the inconsistencies in the evidence of A.R. and Damien at paragraph 32 of his judgment. Having considered them the learned Trial Judge had said: “I have noticed these and some other discrepancies however, to my mind these do not come to the level of reasonable doubts. They amount to doubts that would be present in the evidence of young children, testifying about a traumatic incident, in public, months after the incident happened.” Having scrutinized the evidence of both A.R. and Damien in this case, I am of the same view as the learned Trial. Even if there are discrepancies in the evidence of A.R. and Damien, I am of the view that no substantial miscarriage of justice has occurred in this case and therefore apply the proviso in rule 31(5) of the Seychelles Court of Appeal Rules 2005. I therefore dismiss ground (iii) of appeal. Since ground (vii) is on the same lines as ground (iii) I also dismiss ground (vii).

Counsel for the Appellant in his Skeleton Arguments had stated that A.R. and Damien differ with regards to who was there that evening, where they were, what occurred and what conversations was had between them. Only the name of Jelissa had not been mentioned when A.R. testified. But there is no discrepancy in regards to the presence of the Appellant, A.R. and Damien in the house of Elna that evening in the testimonies of A.R. and Damien. The evidence bears out that the children were moving in and out of the two rooms that evening. It is also clear that Damien was not a witness to all that happened between the Appellant and A.R., as he had been asked to move out of the Appellant’s room by the Appellant with the external drive. The fact that A.R. had not narrated to Damien all that happened to her while she was in the room of the Appellant, soon after the incident and when Damien spoke to her, is understandable taking into consideration that she was only 9 years of age and would have been afraid or embarrassed to talk about it.

The medical evidence in this case does not corroborate or contradict the evidence of A.R., save it may lend some support to the evidence of Damien, indirectly. Dr. R. Michel, a very experienced Obstetrician and Gynaecologist and one who had testified before the Courts in many sexual abuse cases had, producing his Medical Report stated that he had examined A.R. on 12 February 2021, i.e. about 3 months after the incident. According to the said report there had been no external visible bruises. The vaginal examination had revealed that the hymen was intact and there was no vaginal discharge. In his Report he had stated: “Sexual abuse cannot be ruled out”. The doctor in explaining this to Court had said that this is because sexual abuse happens without leaving any physical evidence. He then had made reference to fingering and kissing. The doctor had said that even if there had been penetration there are instances where there will be no signs. He had stated that his examination had been days after the incident and thus too late to find any evidence of sexual abuse. The doctor had also said if there had been blood coming from the victim’s private part, it could be from a scratch, without a tear of the hymen. When asked in cross examination if it had been a scratch would it leave a scar afterwards, the doctor had said “No it will heal According to the learned Trial Judge, Damien’s evidence in relation to seeing blood on the shorts of A.R. had been corroborated by the doctor who said it could have been from a scratch. It is also to be noted that A.R. in her evidence had stated that when the Appellant rubbed his finger inside her vagina it was painful and she had asked him to stop it. Counsel for the defence had then asked the doctor: “You said that sexual abuse cannot be ruled out in your statement but you’ll agree with me that sexual abuse cannot also be confirmed by physical examination” to which the doctor had answered in the affirmative. The learned Trial Judge by making reference to this in his judgment did not in any way err in fact and law as stated at ground (vi) of appeal. I therefore dismiss the said ground of appeal.

Manuella Tirant (M.T.), the mother of A.R. testifying before the Court had stated that she learnt about the incident on 4^th February 2021, when she received a call from A.R.’s father of an incident regarding his daughter A.R. Following that she had confronted A.R. on the matter. At first A.R. had refused to talk saying that M.T. would beat her up. After comforting and assuring A.R. that she would not beat her, A.R. had cried and said that the Appellant had touched her vagina. Thereafter, she had gone to fetch Elna Paul, the lady in whose house the incident had occurred and A.R. had repeated her complaint in the presence of Elna. It was thereafter, the matter was reported to the police. M.T. had stated that she noticed changes in A.R.’s behaviour as of December 2020 when her grades in school started to drop and that the incident had affected A.R. a lot. M.T. had said that she had also noticed that the Appellant had started to shout at A.R. after November 2020 and she had found fault with him. The fact that A.R. had not given all the details of what happened as narrated in Court, when first questioned by her mother cannot be taken to discredit the testimony of A.R.

Elna Paul (E.P.) testifying before the Court had stated that the Appellant lived in her house in one of rooms and they shared the house rent between them. His bedroom door did not close properly and he was in the habit of closing it by placing a diver gas bottle or a rock to prevent the door from opening. A.R. was a neighbour and often came to her house with other children in the neighbourhood, namely Rene Richard, Adriano and Damien, to play and watch cartoon. The boys used to sleep in the Appellant’s room and sometimes A.R. also slept at her place, but not in the Appellant’s room. Elna had a son who was 1 ½ years old. The children had access to the Appellant’s room. She had come to know of the incident between the Appellant and A.R. when A. R’s mother M.T. reported it to her in the presence of A.R. A.R. had been crying at that time and looked fearful. According to her the Appellant was a kind person and a good friend of hers. He worked as a diver at Octopus Diving Centre. Elna was shocked to hear about the complaint of Elna as she did not expect that type of conduct from the Appellant. She had asked A.R. why she had not called her or screamed, and A.R. had said that she did not want to wake her up and her little son as they were sleeping. Elna had admitted that often she slept while the children watched cartoons. She had also said that the Appellant would be in the house with the children while she was asleep.

The evidence of M.T. and E.P. referred to in paragraphs 13 and 14 above makes it clear that A.R.’s complaint has not been at the instigation of any one of them. Their evidence shows that they too were taken by surprise to hear what the Appellant had done to A.R. who had no motive to fabricate a case against the Appellant. A.R. was an innocent child who through shame and fear had kept the incident a secret and her story would not have come out if not for Damien. It goes without saying sometimes unexpected behaviour is reported from persons one may not imagine.

The Appellant’s intentions become clear and A.R.’s testimony finds corroboration from the following facts. Damien’s evidence that he saw A.R.’s hand on the private part of the Appellant; the fact the Appellant was playing a sex movie before the incident; the Appellant sending Damien out of the room by giving him the external drive and asking him to watch TV in another room; the fact that Damien had seen A.R. coming out of the Appellant’s room with a small amount of blood on her pair of shorts near her private part, which the doctor had said could have been from a scratch in the vaginal area, the Appellant shouting at A.R. after December 2020, and A.R.’s behaviour when she was first questioned by M.T and subsequent to that as testified by M.T. I therefore see no merit in ground (1) and dismiss it.

I find no merit in ground (ii) as I do not find that the learned Trial Judge had ‘incorrectly combined’ and narrated the version of events as described by A.R. and Damien. He had only placed together the pieces of evidence of A.R. and Damien to make out the narrative. I therefore dismiss ground (ii).

Ground (v) is based on what the learned Trial Judge had stated at paragraph 27 of the judgment, namely, “The undisputed evidence puts the virtual complainant and the accused in the same house at around the time that the offences took place. The accused does not deny this.” The learned Trial Judge had said the Appellant only disputed having committed the offences of sexual offences he had been charged with. In making this statement the learned Trial Judge had not erred in fact as stated in ground (v). This was in fact the defence put forward on behalf of the Appellant on the basis of the cross-examination at the trial and what was borne out from the undisputed evidence. The defence had not in any way challenged the evidence of A.R. or Damien on the basis that the Appellant was not in the house at the time of the incident or brought evidence of an alibi. It is to be noted what is not challenged is taken to be accepted.

In regard to ground (iv), I state having examined the judgment, the learned Trial Judge certainly had not “based his decision on testimony that the Appellant made the virtual complainant touch his penis” as stated therein. Counsel for the Appellant had gone on to state in that ground that “this was not one of the offences with which the Appellant was charged”, indicating the Appellant was charged for making A.R. lick his penis. It is to be noted that ‘lick’ is a synonym or hyponym of ‘touch’. I see no merit in ground (iv) and dismiss it.

For the reasons stated above I have no hesitation in dismissing the appeal against conviction and upholding the conviction.

As regards the ground of appeal on sentence I find that the offences with which the Appellant was charged are serious and I am in agreement with what the learned Trial Judge had said at paragraph 7 of his Sentencing Order. I find however that the learned trial Judge had failed to consider that all the sexual assaults that the Appellant stood charged with had been committed at the same time and place and within a short proximity of time.

It is my view that a court is mandated, to act in accordance with the provisions section 36 of the Penal Code and give consecutive sentences, in cases where convictions have taken place under different indictments and not where the convictions for different offences take place simultaneously in respect of offences committed at the same time and in the course of the same transaction under one indictment as in this case.

Section 36 of the Penal Code reads as follows:

The court also has the discretion under section 36 to order that any sentence, which is passed shall be executed concurrently with the former sentence or of any part thereof. The latter part of the earlier sentence which is underlined simply means, for instance in this case the court could have passed a sentence of 15 years in respect of count 1 and ordered that the sentence of 15 years in respect of the second count be executed concurrently one or more years after the commencement of the sentence in respect of count 1, thereby imposing a total sentence of imprisonment of 16 years or more, namely up to 28 years. This manner of sentencing by making the sentences partially cumulative has been adopted in Mill V The Queen [1988] 166 CLR 59. In the case of Dickens V The Queen [2004] WASCA 179, the Court of Criminal Appeal of Western Australia following Mill, ordered for cumulative service of the terms imposed by the trial court to one of partial cumulacy.

In this case, inserting the finger in the vagina of AR by the Appellant as particularized in the first count and licking the vagina of AR and touching it with his finger and making AR lick his penis as particularized in the second count have all taken place simultaneously, in the course of the same transaction and within a short period of time. This has been described as the “one transaction” or “continuing episode rule”. See Australian case of Ruane V R [1979] 1 A Crim 284. It is to be noted that despite the fact that the said acts fall under 130 (2) (d) and 130 (2) (a), they are generally interrelated sexual acts committed while having sex, although unlawfully, and can be viewed as a single act of sex. If one is to separate the various sexual acts committed, a person can be charged and punished for removing the clothes of the victim, getting her to be naked and thereafter the acts of inserting the finger in the vagina, the acts of cunnilingus and fellatio, all of which will fall under the sub paragraphs (a) to (d) of 130 (2). I am however not unmindful of the fact, that certain sexual acts like cunnilingus, analingus and felatio should be viewed as different and grievous in nature to other sexual acts, especially when committed on persons of tender years.

The Court of Appeal for Eastern Africa defined the phrase ‘same transaction rule’ in the case of Republic –vs- Saidi Nsabuga S/O Juma & Another [1941] EACA and revisited it again in Nathan –vs- Republic [1965] EA 777 where the court stated as follows: -

In Royer V Western Australia [2009] Owen J described the ‘single transaction rule’ as follows: “At its heart, the one transaction principle recognises that, where there is an interrelationship between the legal and factual elements of two or more offences with which an offender has been charged, care needs to be taken so that the offender is not punished twice (or more often) for what is essentially the same criminality. The interrelationship may be legal, in the sense that it arises from the elements of the crimes. It may also be factual, because of a temporal or geographical link or the presence of other circumstances compelling the conclusion that the crimes arise out of substantially the same act, omission or occurrences.”

In Peter Mbugua Kabui –vs- Republic [2016] KLR the Court of Appeal of Kenya stated as follows:

In the South African case of S v Mokela 2012 (1) SACR 431 (SCA), the Court expressed the view that sentences are to run concurrently where “the evidence shows that the relevant offences are inextricably linked in terms of locality, time, protagonists and, importantly, the fact that they were committed with one common intent.”

It is stated at paragraph 5-588 of Archbold 2012 that: “As a general principle, consecutive terms should not be imposed for offences which arise out of the same transaction or incident, whether or not they arise out of precisely the same facts…”

In the case of K. M. Samatha Piyalal, CA/HCC/23/18, the Court of Appeal of Sri Lanka, quashed the sentence of 12 years on each of the two counts to run consecutively in a case where the accused was charged with the offences of sexual abuse, namely, cunnilingus and rubbing his genitals on a girl of sixteen years. Instead the Court of Appeal ordered that the said sentences of 12 years be executed concurrently. The basis for varying the sentence being that they were two offences committed under the same transaction.

The imposition of consecutive sentences on the Appellant which amounted to 30 years in prison, created the anomalous situation, in that he faced a penalty more severe than the maximum that could have been imposed under section 130 of the Penal Code, namely a sentence between 14 to 20 years, for an offence of a much more serious nature.

In sentencing in a case where multiple offences are charged, a Judge should take into consideration the principle of ‘Proportionality’ and the principle known as ‘Crushing Sentence’, which have been identified as being two limbs of the ‘Totality Principle’. Under the proportionality principle as stated in the Australian case of Woods V The Queen [1994] 14 WAR 341 the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case including those referable to the offender personally. See also Adams V Western Australia [2014] WASCA 191 and Roffey V Western Australia (2007) WASCA 246. According to the ‘totality principle’ the accumulation of sentences, in other words the total sentence should not be disproportionate to the total criminal conduct. Under the crushing sentence principle, a court should bear in mind as stated in Martino V Western Australia [2006] WASCA 78, that the sentence should not induce a feeling of helplessness in the offender and destroy any reasonable expectation of a useful life after release. Also see [Sayed v The Queen [2012] WASCA 17, (Buss JA, Martin CJ and Hall J agreeing); Azzopardi v The Queen [2011] VSCA 372, (Redlich JA, Coghlan and Macaulay AJJA agreeing); R v MAK [2006] NSWCCA 381, (Spigelman CJ, Whealy and Howie JJ); and R v Baker [2011] QCA 104, (Atkinson J, McMurdo P and Lyons J agreeing)]

It should also be noted that the fact that a sentence will be crushing is not of itself a reason for mitigation. As Doyle J stated in the Australian case of R v E, AD [2005] SASC 332 at: “Care must be taken in using the concept of a crushing sentence. Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed. The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the court to reduce it simply because to the offender the sentence may be crushing. At the end of the day if that is what is called for, that is the sentence that must be imposed” In the federal sentencing decision of Hay v The Queen [2009] NSWCCA 228, the Court cited Sully J’s comments in R v Wheeler [2000] NSWCCA 34: “It needs to be clearly understood by all concerned that a person who commits a deliberate series of discrete offences … must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment …” Courts have also noted that public confidence in the administration of justice requires courts to avoid any suggestion that what is being offered ‘is some kind of discount for multiple offending’.

It is stated at paragraph 5-592 of Archbold 2012 that under the ‘totality principle’, “A court, which passes a number of consecutive sentences should review the aggregate of the sentences, and consider whether the aggregate sentence is just and appropriate taking the offences as a whole.”

In the Australian case of Postiglione v The Queen [1997] HCA 26, Kirby J extracted a passage from Clayton Ruby, Sentencing (4th ed, 1994) 44-45 that identifies both limbs: “A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender ‘a crushing sentence’ not in keeping with his record and prospects” In the same case, McHugh J referred to a statement of King CJ in R v Rossi, that described the totality principle as enabling a court: “To mitigate what strict justice would otherwise indicate, where the total effect of the sentence merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect”

In S v Moswathupa 2012 (1) SACR 259 (SCA) the South African High Court said: “Where multiple offences need to be punished, the court has to seek an appropriate sentence for all offences taken together. When dealing with multiple offences a court must not lose sight of the fact that the aggregate penalty must not be unduly severe.”

In R v MMK [2006] NSWCCA 272, Street CJ said at 260:

In Franklin v R [2013] NSWCCA 122, the Court observed that:

It has been held that sentencing is about achieving the right balance between the crime, the offender and the interests of the community (S v Zinn 1969 (2) SA 537 (A) at 540G-H). A court should, when determining sentence, strive to accomplish and arrive at a judicious counterbalance between these elements in order to ensure that one element is not unduly accentuated at the expense of and to the exclusion of the others (see S v Banda 1991 (2) SA 352 (BG) at 355A).

The question is essentially whether, on a consideration of the particular facts of the case, the sentence imposed is proportionate to the offence, with reference to the nature of the offence, the interests of society and the circumstances of the offender. See Yose and Another v S (04/2021; A230/2021; RCA 199/2008.

I am of the view that the 30 years’ imprisonment passed on the Appellant is excessive and offends the totality principle when taking into consideration that the Appellant is 30 years old, a first offender and the fact that no force had been used in committing the sexual assaults. I am however of the view that the acts of cunnilingus and felatio, although committed during the same transaction, have to be viewed as different and grievous in nature and morally debasing, when taking into consideration that the victim was only 9 years of age. A strong message should go out to society that one must not corrupt persons of tender years.

While maintaining therefore, the sentence of 15 years’ imprisonment in respect of counts 1 and 2, I am of the view that the sentence of 15-year imprisonment in respect of count 2 should be executed concurrently, two years after the commencement of the sentence in respect of count 1, thereby imposing a total sentence of imprisonment of 17 years.

As stated earlier I dismiss the Appellant’s appeal against conviction and uphold the conviction, but quash the order that the Appellant serve a total period of 30 years’ imprisonment in respect of counts 1 and 2. I order that the Appellant shall serve a total period of 17 years’ imprisonment, in respect of both counts 1 and 2, as explained at paragraphs 24 and 42 above.

Fernando President

I concur: _________________

F. Robinson JA

I concur: _________________

L. Tibatemwa-Ekirikubinza JA

Signed, dated and delivered at Ile du Port on 16 December 2022.

R v Cesar (CO 51 of 2021) [2022] SCSC 348 (08 April 2022);

Olya Hetsman — Thu, 10 Nov 2022 05:01:29 +0000

R v Cesar (CO 51 of 2021) [2022] SCSC 348 (08 April 2022);

Flynote

Criminal law

Olya Hetsman Thu, 11/10/2022 - 05:01

Search summary

Unlawfully wounding with intent to inflict grievous harm

Headnote and holding

I proceed to sentence the accused Andy Cesar to a term of six months imprisonment and a fine of SCR 5000 (five thousand). A sum of SCR 3,500 (three thousand five hundred) to be paid to the victim in compensation from the said fine. In default of payment of fine a term of 6 months imprisonment to run consecutively.

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BURHAN J

The accused in this case Andy Cesar was charged as follows for the following offence;

Count 1

Unlawfully wounding with Intent to Inflict Grievous Harm Contrary to Section 219 (a) and Punishable under Section 219 of the Penal Code Cap 158.

Particulars of Offence.

In that, Andy Virol Cesar of Les Mamelles, Mahe, on the 2^nd February 2020, at Les Mamelles, Mahe, unlawfully wounded one Dorian Hoareau by means of cutting the said Dorian Hoareau in the left hand with the use of a sword with intent to do some grievous harm to the said Dorian Hoareau.

The accused pleaded guilty to the aforementioned charge on the 22^nd of October 2021. At the request of his learned Counsel Mr. Clifford Andre a probation report was called.
When one considers the facts set out in the probation report, it is clear that that the accused Andy Cesar is 53 years of age and attended Primary and Secondary school and spent two years at the NYS (National Youth Services). He had worked as a Printing designer, model and as a casual labourer with Hunt Deltel. He is a recovering heroin user on Methadone treatment at present.
It appears the incident had arisen as the victim who lives in an upstair apartment had been banging on the door and when his partner got home the accused had told her of the incident and she had gone and confronted the victim and he could hear arguing. He had got angry with the way the victim was addressing his partner and taken a sword that was mounted on the wall and gone to confront the victim. He had seen the victim about to assault his partner with a broomstick made from coconut leaves. The accused had reacted quickly by hitting the victim on his wrist with the sword. He had thereafter been arrested. The victim version is that the partner of the accused had thrown a flower pot on him and he had retaliated by using a broom with coconut leaves.
It is apparent that the victim had suffered a serious injury in his left hand and had to spend sometime in the operating theatre. Thereafter he had had a scar on his left hand and diminished function of it. He moves that he be compensated for the said injury. Learned Counsel Mr. Andre in mitigation stated that the accused had pleaded guilty without wasting the time of Court. The accused is presently employed at Mohaz Cleaning Agency since December 2020 and as the incident had occurred on the spur of the moment learned Counsel moved that a lenient sentence be imposed.
The accused has been found guilty and convicted for the offence of causing grievous harm under section 219 (a) of the Penal Code. In cases of this nature concerning violence and assault, this Court is of the view the following factors should be taken into consideration at the time of sentencing:

The nature of the injuries caused to the victim.
If there was provocation on part of the victim at the time of the incident.
The aggravated nature of the assault.
The previous conduct of the accused and their disposition to violent conduct.

When one considers the facts of this case the injury is quite serious. The victim has suffered a fracture of his metacarpal bone. It appears he has a diminished function of the use of it.. There was a degree of provocation as the victim had attempted to hit the partner of the accused with a broom with coconut leaves as his partner had thrown a flower pot at the victim. The offence is of an aggravated nature as the accused had used an offensive weapon a sword. The accused has no previous convictions that indicate he is of violent disposition. At present it appears though he is employed, he is homeless according to the probation report.
Giving due consideration to all these factors, I proceed to sentence the accused to a term of six months imprisonment and a fine of SCR 5000 (five thousand). A sum of SCR 3,500 (three thousand five hundred) to be paid to the victim in compensation from the said fine. In default of payment of fine a term of 6 months imprisonment to run consecutively.
The accused is to be produced in Court prior to his release to give him time to pay the fine.
Time spent in remand to count towards sentence.
Right of Appeal explained.

Signed, dated and delivered at Ile du Port on 08 April 2022

____________

Burhan J.

BURHAN J

The accused in this case Andy Cesar was charged as follows for the following offence;

Count 1

Unlawfully wounding with Intent to Inflict Grievous Harm Contrary to Section 219 (a) and Punishable under Section 219 of the Penal Code Cap 158.

Particulars of Offence.

The accused pleaded guilty to the aforementioned charge on the 22^nd of October 2021. At the request of his learned Counsel Mr. Clifford Andre a probation report was called.
When one considers the facts set out in the probation report, it is clear that that the accused Andy Cesar is 53 years of age and attended Primary and Secondary school and spent two years at the NYS (National Youth Services). He had worked as a Printing designer, model and as a casual labourer with Hunt Deltel. He is a recovering heroin user on Methadone treatment at present.
It appears the incident had arisen as the victim who lives in an upstair apartment had been banging on the door and when his partner got home the accused had told her of the incident and she had gone and confronted the victim and he could hear arguing. He had got angry with the way the victim was addressing his partner and taken a sword that was mounted on the wall and gone to confront the victim. He had seen the victim about to assault his partner with a broomstick made from coconut leaves. The accused had reacted quickly by hitting the victim on his wrist with the sword. He had thereafter been arrested. The victim version is that the partner of the accused had thrown a flower pot on him and he had retaliated by using a broom with coconut leaves.
It is apparent that the victim had suffered a serious injury in his left hand and had to spend sometime in the operating theatre. Thereafter he had had a scar on his left hand and diminished function of it. He moves that he be compensated for the said injury. Learned Counsel Mr. Andre in mitigation stated that the accused had pleaded guilty without wasting the time of Court. The accused is presently employed at Mohaz Cleaning Agency since December 2020 and as the incident had occurred on the spur of the moment learned Counsel moved that a lenient sentence be imposed.
The accused has been found guilty and convicted for the offence of causing grievous harm under section 219 (a) of the Penal Code. In cases of this nature concerning violence and assault, this Court is of the view the following factors should be taken into consideration at the time of sentencing:

The nature of the injuries caused to the victim.
If there was provocation on part of the victim at the time of the incident.
The aggravated nature of the assault.
The previous conduct of the accused and their disposition to violent conduct.

When one considers the facts of this case the injury is quite serious. The victim has suffered a fracture of his metacarpal bone. It appears he has a diminished function of the use of it.. There was a degree of provocation as the victim had attempted to hit the partner of the accused with a broom with coconut leaves as his partner had thrown a flower pot at the victim. The offence is of an aggravated nature as the accused had used an offensive weapon a sword. The accused has no previous convictions that indicate he is of violent disposition. At present it appears though he is employed, he is homeless according to the probation report.
Giving due consideration to all these factors, I proceed to sentence the accused to a term of six months imprisonment and a fine of SCR 5000 (five thousand). A sum of SCR 3,500 (three thousand five hundred) to be paid to the victim in compensation from the said fine. In default of payment of fine a term of 6 months imprisonment to run consecutively.
The accused is to be produced in Court prior to his release to give him time to pay the fine.
Time spent in remand to count towards sentence.
Right of Appeal explained.

Signed, dated and delivered at Ile du Port on 08 April 2022

____________

Burhan J.