Nicholas Brian Julie v R (SCA 21 of 2017) [2018] SCCA 18 (30 August 2018)

JUDGMENT

 

1. The Appellant has appealed against his conviction for sexual assault contrary to section 130(1) read with section 130(2)(d) of the Penal Code and the sentence of 7 years imprisonment imposed on him.

 

2. As per the particulars of offence X (name withheld) on 2^nd October 2015, in the vicinity of Stad Linite, Roche Caiman, Mahe, without consent, sexually assaulted V (name withheld) by the penetration of her body orifice, namely the vagina, of the said V for a sexual purpose.

 

3. Section 130 (1) of the Penal Code states: “A person who sexually assaults another person is guilty of an offence and liable to imprisonment for 20 years.”

 

4. According to section 130 (2) (d) “sexual assault” for the purposes of this section includes-

 

“...the penetration of a body orifice of another for a sexual purpose”.

 

5. According to section 130(3): “A person does not consent to an act which if done without consent constitutes an assault under this section if-

 

(a) the person’s consent was obtained by misrepresentation as to the character of the act or the identity of the person doing the act;

(b) the person is below the age of fifteen years; or

(c) the person’s understanding and knowledge are such that the person was incapable of giving consent”.

6. According to section 130(4): “In determining the sentence of a person convicted of an offence under this section the court shall take into account, among other things-

(a) whether the person used or threatened to use violence in the course of or for the purpose or committing the offence;

(b) whether there has been any penetration in terms of subsection (2)(d); or

(c) any other aggravating circumstances.”

7. Facts in Brief:

The victim who was 24 years old testifying before the court in her examination-in-chief, had stated that on the day of the incident she had gone to the Amusement Centre after work with two of her friends for a drink. Around 9-10 pm, her friends had left to go by bus and she had waited for her boyfriend. Since her boyfriend had got late to arrive she had approached the driver of a small white coloured car which was a ‘taxipirat’, (unlicensed taxi) that was parked at the Amusement Centre to take her to her home in Sansousi. The driver is the Appellant in the case. The victim had not stated that she gave any other directions to the Appellant, who was a total stranger, as to the whereabouts of her home in Sansousi. She got into the front passenger seat and had fallen asleep. Suddenly she had woken up and found the Appellant, the ‘taxipirat’ driver, had been on top of her and strangling her with his hands around her neck. The victim had screamed but the Appellant had asked her to shut up. She had told court that “He raped me”. The victim does not give any indication as to when the Appellant stopped having sex with her. The question therefore arises did he stop when she screamed or continued to have sexual intercourse even after she screamed? To the leading question “So you mean he penetrated your sexual organ, vagina” from the learned Prosecutor the victim had said “Yes”. Again to the leading question “So he penetrated your sexual organ with his sexual organ”, the victim had said “Yes”. She realized the car had been parked behind the ‘Stad Linite’ stadium. This was not in the direction of Sansousi.

8. The victim had then managed to escape and run towards a place where she heard music. This was the Golden Plate Restaurant. While getting out of the car, the victim’s telephones a Nokia and an Alcatel, had fallen inside the car. In answer to the question as to how she managed to escape, the victim had said: “I must have hit him with my phone. I just grabbed my bag and I ran”. The victim in answer to a question by the learned prosecutor had said that she did not consent to have sex with the Appellant. To the leading question: “That is why you screamed and you hit him and you escaped from the car” the victim had said “yes”. At the Golden Plate Restaurant she had sought assistance from a lady whom she saw there. The lady had then called the Police. The Police thereafter arrived and the victim had been taken to the hospital, where she had been examined. The following day she had given a statement at the Mount Fleuri police station.

 

9. Six days later the victim had identified the Appellant at an identification parade held at the Central Police station. In court she had identified the Appellant again and the car the Appellant was driving, from the photographs shown to her. She had also pointed out to the front seat, where she alleged, she was raped. The car is a small Daihatsu Charade numbered S 15448. It is clear from looking at the photographs of the car any non-consensual sexual intercourse while seated in the front seat of the car, in the manner described by the victim is difficult, if not almost impossible, unless the seat was put into a reclining position. There is no evidence before the court that the front passenger seat of S 15448 could have or had been put into a reclining position. After the victim had said that she fell asleep because she had a few drinks the learned prosecutor had asked the victim “So I presume you started your work on that day very early in the morning and then in the evening you had this party which made you sleep in the car”, the victim had said, yes. She had not said what she drank or how much she drank. The victim had not said that she was intoxicated at any stage as not to know what was happening. Even if we are to accept that the victim was drunk, it is to be noted that drunken consent is also consent. The victim had stated that she did not ask the Appellant to take her to any other place nor does she recall going with the Appellant to any other place and had only told him to take her home to Sansousi.

 

10. We have highlighted some of the questions asked in examination-in-chief to warn prosecutors that they should not ask leading questions in eliciting evidence from witnesses for the prosecution. In view of the fact that the defence in this case is one of consent, no prejudice could therefore have been caused to the Appellant in regard to those questions.

 

11. The victim under cross-examination had said that this was the first time she had fallen asleep in a stranger’s car. The victim had never seen the Appellant before. That was the reason to hold an Identification Parade. She had said that no sooner she got into the car she had fallen asleep as she had taken a few drinks and was tired since she had started working that day early in the morning, and that is the reason why she did not notice in which direction the car was being driven. She denied the defence allegation that after she had got into the car, she had drinks with the Appellant at La Louise. When questioned as to whether she consented to buy alcohol after she got into the car of the Appellant, the victim had said that she did not recall as she was drunk and tired. She had said that a breathalyzer test had not been conducted on her nor was she subjected to any alcohol test when she was taken to the hospital after the incident. She had said that at the hospital she had been examined by a gynecologist. It had been the defence position that was put to the victim in cross-examination, that within the confined space of the front seat of the Appellant’s small car and taking into consideration the fact that the Appellant is a person with a large body, it was not possible for the Appellant to have had sex with the victim without her consent. The victim had said that she does not know whether the doctor had found any marks on her neck when she was examined. The victim had stated that her panties got lost that night but had not been able to explain how her panties were removed by the Appellant without her realizing it. The victim had not spoken of her clothing being torn. She had stated that she is not aware how the seat of the car was put into a reclined position or how she was pushed up, for the Appellant to have sex with her. It has been the defence position that the victim’s legs normally would have been on the footpath under the dashboard, indicating that it is difficult to have penetration of the vagina in that position. The victim had stated that on the next day when her sister rang one of her phones, that had got lost during the incident, namely the Alcatel one, according to the sister, the Appellant had, answered the phone. The phone had been later returned by the Appellant.

 

12. PW 4, the victim’s sister testifying before the court had stated that the victim had come home around 4 or 5 am, on the 3^rd of October 2015 morning (incident was on the previous night) and wanted her to wake her up at 7 am. When the victim woke her up the following morning PW 4 had asked her where she was going and it was only then, that the victim had told her that she has to go to the hospital to get some pills and the police station, as she had been raped. The victim’s sister had accompanied her to the hospital and police station. Thereafter the victim’s sister had called the Alcatel number of the victim, which had got lost during the incident on the previous night. She then had said a man’s voice had answered from the other end. The person had told her that the phone had got lost when he was driving around and he does not know for whom that phone belongs. When asked how she could get back the phone, she had been told that he lived at Port Glaud behind the police station and that she could come and pick it up. A little later he had called to ask her whether she could wait as he was coming to town around 3 or 4 o’clock. She had promised to call him back but instead passed on the information to the police.

 

13. PW 6, a general helper working at Golden Plate Restaurant, Roche Caiman had corroborated the victim’s evidence of her having come running towards the restaurant and seeking assistance. According to PW 6 around 10.30 to 11 on the night of the 2^nd of October, the victim had come from the left side of Stad Linite screaming, towards where she was with two others, and fallen in front of them. When they raised her up she had been crying and had told them that she had been raped. Her hair had been messy. The victim had also told her that she came from the Amusement Centre, that she took a ‘taxi pirat’ to bring her to Sansousi but the driver had brought her to Roche Caiman and that the driver had taken her mobile. She had given PW 6 her phone number to call but the phone had rung but had been cut off. The victim had also given her boyfriend’s number to PW 6 to call, but there had been no response. PW 6 had then called the police, who arrived and took the victim away. PW 6 had not said that the victim was or appeared to be drunk.

 

14. PW 7, was a police officer who came to Golden Plate on the night of the 2^nd of October on receipt of the call from PW 6. The victim on being questioned by her had said that she had been sexually abused. She had then taken the victim to the Mont Fleuri police station. On examining the victim she had seen two ‘red marks’ under the right side of her neck. There was no evidence before the Trial Court as to what these ‘red marks’ were and what possibly caused them. She had then issued her with a paper to go to the doctors. PW 6 had not said that the victim was or appeared to be drunk.

 

15. PW 8, the Gynecologist, who had examined the victim in the early hours (1.10 am) of the 3^rd of October 2015 had stated that he had seen a scratch on the right side of the neck of the victim and that there had been inside her vagina, a white discharge. Although a vaginal swab had been taken, no report had been produced. The gynecologist had not been questioned as to what could have possibly caused the scratch marks found on the neck of the victim. The doctor had not spoken of any other injuries, inflammations, abrasions or scratch marks on the body of the victim, her thighs or in the region of her vagina. The gynecologist had not stated that the victim was under the influence of liquor when he examined her. The doctor under cross-examination had categorically stated that he was unable to confirm any sexual activity, leave aside rape.

 

16. PW 5, was a doctor at the Victoria Hospital. He had examined the Appellant at the hospital on the 3^rd of October 2015 at 2.25 am at the Casualty. He had noted that he had found multiple superficial abrasions over the right and left area on the back of the shoulder and over the scapula. According to the doctor the abrasions could have been caused by scratching or could have been inflicted during love making but unable to give a time as to when the abrasions had occurred. In cross-examination he had stated that he referred the Appellant to a Surgeon. There is some anomaly or confusion regarding the evidence of PW 5, as the Appellant had not been arrested or even identified at the time the doctor had claimed he examined the Appellant. Unfortunately, this has gone unnoticed by the prosecutor, the defence counsel and the learned Trial Judge and no attempt had been made to have the matter clarified and corrected. Since it is not clear whom PW 5 had examined we cannot place any reliance on the evidence of PW 5.

 

17. The cautioned statement of the Appellant, namely P 6, had been led in as part of the prosecution case. According to the Appellant: “I want to say to the police that I was already consuming alcohol me and that woman and we went to buy more beer at the Baba’s shop at Plaisance, we continue to drink me and that woman in the car. And that woman agreed for doing sex with me and then I gave that woman Rs 400. Then we continue to ride and we were taking some drinks and then I took her off that woman at the Barrel Trading. I want to say that before I took her off she vomit in the car. I want to tell the police that I did not tell that part before because I will have problem with my lady. The evidence that I gave with the police, I was being told that I can change, add and correct what I want and the evidence is true and I gave it voluntarily.”

 

18. If as the Appellant states that he had dropped off the victim at the Barrel Trading, which is quite a distance from Stad Linite, Roche Caiman, the question arises how was it possible, at around 10.30 to 11 on the night of the 2^nd of October, the victim came to be found at the Golden Plate Restaurant at Roche Caiman by PW 6 in a distressed state, complaining that she had been raped by a ‘taxipirat’ driver, the Appellant. The learned prosecutor in his examination-in chief had not questioned the victim about the SR 400.00 given to her by the Appellant for having sex with him as stated in the Police statement of the Appellant, which was led in as evidence by the prosecution as part of its case. In consequence this has to be taken as an admitted fact by the prosecution.

 

19. The Appellant had in exercise of his rights under article 19(2) (h) of the Constitution remained silent at his trial without giving evidence on oath or making dock statement. Article 19(2) (h) of the Constitution states: “Every person who is charged with an offence shall not have any adverse inference drawn from the exercise of the right to silence either during the course of the investigation or at the trial.”

 

20. There are two fundamental questions that necessarily arise for determination on the facts of this case. Did the victim, as claimed, not consent to having sex with the Appellant and was the Appellant aware that the victim was not consenting? An answer to the first question can be found only on the basis of the evidence of the victim and the corroboration of her evidence by that of PW 6, who had stated that the victim came running to them in a distressed state and with disheveled hair, complaining that she had been raped. The only inference that can be drawn from disheveled hair of a person after sexual intercourse is not necessarily that she had been raped especially taking into consideration that the act had taken place within the confines of a small car. The medical evidence in this case is inconclusive in view of the gynecologist’s evidence that he was unable to confirm any sexual activity, leave aside rape and that of PW 5, the doctor at the casualty who was obviously mistaken about the time of the examination had stated that abrasions found on the back of the Appellant could have been caused by scratching or could have been inflicted during love making but unable to give a time as to when the abrasions had occurred. The victim had been examined within 2-3 hours after the incident and the question therefore arises as to the absence of any injuries, inflammations, abrasions or scratch marks on the body of the victim, the thighs or in the region of her vagina, save that of the scratch marks on the neck of the victim and especially in view of her evidence that this was a case of non-consensual and forcible sex and she had to put up some sort of a struggle to escape from the Appellant.

 

21. The victim’s evidence has to be examined in the backdrop of the evidence that she did not know what was happening to her, until she found the Appellant on top of her and the defence position that was put to the victim in cross-examination, that within the confined space of the front seat of the Appellant’s small car and taking into consideration the fact that the Appellant is a person with a large body, it was not possible for the Appellant to have had sex with the victim without her consent. Further there is no evidence that the victim was intoxicated at any time that evening. The victim’s evidence that she got in to a stranger’s car and fell asleep no sooner she sat down, her inability to explain how her panty came to be removed and how the front passenger seat came to be put into a reclining position, if that was the case, casts doubts on her version.

 

22. As regards the answer to the second question, namely was the Appellant aware that the victim was not consenting, we have only the evidence of the Appellant who in his statement to the police had said that the victim consented to having sex with him. There is no evidence to indicate that the victim was so drunk that she was incapable of giving consent due to her inability to understand or have knowledge of what was happening to her at the time of the alleged incident. The evidence of PW 6 and 7 referred to at paragraphs 13 and 14 above do not indicate that the victim was in an intoxicated condition and that was within minutes of her having escaped from the Appellant as stated by the victim. The only remaining question being had the victim got into such a deep slumber from the time she got into the car up to the time she saw the Appellant on top of her as not to understand or know what was happening to her to the extent that she was incapable of giving consent. The victim had not stated that she is one who normally falls into a deep sleep, as to be totally oblivious as to what is happening around her. In the absence of any evidence in this regard, she has to be viewed from the standard of a normal person.

 

23. Under our Penal Code there is no evidential presumption as under section 74 of the Sexual Offences Act 2003 of UK that if the defendant knew that the complainant was asleep the complainant is taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it. There is no evidence to bring this case under section 130(3) (c) referred to at paragraph 5 above.

 

24. Counsel for the defence in his submissions to the Trial Court had drawn the attention of the court to the fact that there were no injuries or torn clothing suggestive of forcible sexual intercourse. The Appellant according to PW 4, the victim’s sister, had told her that the phone had got lost when he was driving and he does not know for whom that phone belongs. When asked how she could get back the phone, she had been told that he lived at Port Glaud behind the police station and that she could come and pick it up. A little later he had called to ask her whether she could wait as he was coming to town around 3 or 4 o’clock. It had been the submission that this behavior is not consistent with a person who had raped the victim the previous night in the circumstances described by the victim, and especially one who had been hit by the victim with the phone before she escaped.

 

25. The learned Trial Judge had convicted the Appellant on the basis of the following facts as stated by him at paragraphs 13 -15 in his judgment:

• The distress state in which PW 6 found the victim soon after the alleged incident and the victim’s prompt complaint of rape to both PW 6 and PW 7, indicative of consistency of the victim’s evidence. The learned Trial Judge himself had taken note of the judgment in R VS Romeo [2004] Crim L.R where it had been held that subsequent distress conduct of the victim could possibly be feigned, but concluded that the victim’s distress conduct was spontaneous.

• The victim’s evidence that she was strangled is supported by the evidence of PW 7 and PW 8 who saw scratch marks on her neck, indicating trauma in that region. This is a wrong basis for the learned Trial Judge to have relied upon as there is no evidence what those scratch marks were and how they had been caused, leave aside the scratch marks being indicative of trauma. Certainly there is no evidence to support the victim’s allegation of strangulation with the hands of the Appellant.

• That the Appellant had posed off as a ‘taxipirat’ - There is no evidence that the Appellant posed of as a ‘taxipirat’ as stated by the learned Trial Judge.

26. It is not that we totally disbelieve the victim’s version or believe the version of the Appellant, as found on the recorded proceedings, but we find that both parties are hiding something and not coming out with the whole truth. This is one of those cases that there certainly are doubts in the prosecution case, that have been highlighted below, which both the learned Prosecutor and the learned Trial Judge have failed to deal with.

• Is it possible that the victim fell into a deep slumber no sooner that she got into the car of a stranger, the Appellant, a ‘taxipirat’, even without telling him where in Sansousi she had to be dropped?

• Is it possible that the victim realized that she was being raped only after her panty had been removed, the seat in that small car having been put to a reclining position and the victim been placed in a position where vaginal penetration was made easy?

• Is it possible that the victim got into such a deep slumber so as to be oblivious to all these happenings? The victim had not said that she is one who goes into a deep slumber when she sleeps, nor is there any evidence to say that she was intoxicated to such an extent as not to know what was happening and the Appellant took advantage of the position he found her in.

• Is it possible that had she been intoxicated to such an extent as not to know what was happening to her when the appellant raped her, and PW 6 , 7, and 8 who saw her thereafter failed to notice it?

• Is it possible that the victim could have coherently narrated to PW 6 the alleged incident and the events that led up to it if she was asleep or intoxicated at the time of the incident?

• Is it possible that her clothing remained intact, without being torn and there were absolutely no injuries or scratch marks on her body especially her thighs and no inflammation in her vagina suggestive of forcible and non-consensual sexual intercourse as alleged by the victim?

• Had the prosecution offered any evidence as to the possibility that the two red marks found on the right side of the neck of the victim by PW 7 and the scratch mark found by the Gynecologist on the right side of the neck of the victim could possibly have been as a result of the Appellant attempting to strangle the victim as alleged by her and or not as a result of a love bite?

• It was the prosecution evidence that the Appellant answered the mobile phone of the victim with which the victim claimed she had hit the Appellant and that had fallen inside the Appellant’s car and identified himself giving his address and later showing his willingness to bring it along and hand it over to her in town, when PW 4, the victim’s sister called him on the day after the incident. Is this not consistent with his innocence?

27. The Prosecution has not offered any evidence to dispel these doubts nor has the learned Trial Judge dealt with these doubts. The learned Prosecutor has failed to question the doctor as to whether the scratches found on the neck of the victim are consistent with her being strangled, which would have helped the court to make a correct determination in this case. We are reluctant to disturb the findings of a Trial Judge on facts and credibility, but when there has been no evaluation or critical analysis of the evidence by the learned Trial Judge but a mere reliance on the evidence and that mainly of the complainant, we are compelled to intervene. The learned Trial Judge had failed to consider the version of the victim as regards the alleged incident of rape as described by her, as probable and can be relied upon without a reasonable doubt, vis-a vis the version of the Appellant as being reasonably possible. The reasons set out in the judgment by the learned Trial Judge as referred to at paragraph 23 above, for convicting the Appellant are insufficient and unsatisfactory as he had overlooked certain facts and improbabilities.

 

28. Factual errors may be errors where the reasons which the trial judge provides are unsatisfactory or where he overlooks facts or improbabilities. When evaluating or assessing evidence, it is imperative to evaluate all the evidence and not be selective in determining what evidence to consider. In the South African case of S V Van der Meyden 1999 (1) SACR 447 (W) 450 it had been stated: “What must be borne in mind, however, is that the conclusion which is reached (whether it be to convict or to acquit) must account for all the evidence. Some of the evidence might be found to be false, some of it might be found to be unreliable, and some of it might be found to be only possibly false and unreliable, but none of it may simply be ignored”.

 

29. We cannot close our minds to the well-known principle that the benefit of any doubt has to go in favour of the accused, especially when the overall picture arising from those doubts creates a reasonable doubt as to the guilt of an accused person. This Court had held in Raymond Lucas VS The Republic SCA 17/09 that it was not obligatory on the Court to give a corroboration warning in cases involving sexual offences before convicting an accused person, but when as in this case there are doubts in regard to the victim’s evidence and the case in its entirety and which cannot be resolved and which leads up to a reasonable doubt we have no option but to give the benefit of that reasonable doubt to the Appellant.

 

30. It was held in the South African case of in S V Van der Meyden 1999 (1) SACR 447 (W) that: “The onus of proof in a criminal case is discharged by the State if the evidence establishes the guilt of the accused beyond reasonable doubt. The corollary is that he is entitled to be acquitted if it is reasonably possible that he might be innocent. These are not separate and independent tests, but the expression of the same test when viewed from opposite perspectives. In order to convict, the evidence must establish the guilt of the accused beyond reasonable doubt, which will be so only if there is at the same time no reasonable possibility that an innocent explanation which has been put forward might be true. The two are inseparable, each being the logical corollary of the other.”

 

31. In the Canadian case of R VS Lifchus [1997] 3 SCR 320 it was held: “Even if you believe the accused is guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt….”

 

32. In the United States Supreme Court decision in Re Winship [1970] 397 US 358, the court held that the reasonable doubt rule has constitutional force under the due process provisions of the United States Constitution. The same could be said in regard to article 19(1) of our Constitution which states that “every person charged with an offence has the right to a fair hearing” and under article 19(2) (a)“is innocent until the person is proved or has pleaded guilty”. Brennan J said in Re Winship: “Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.”

 

33. The Supreme Court of India said in B. N. Mutto & Another v. Dr. T.K. Nandi [1979] 1 SCC 361: “It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him.” (emphasis added)

 

34. The Supreme Court of India said in the case of State of Punjab v. Jagir Singh [1974] 3 SCC 277: “A criminal trial is not like a fairy tale wherein one is free to give flight to one’s imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged…………. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts……”

 

35. In the South African case of S v T 2005 (2) SACR 318 (E):“The State is required, when it tries a person for allegedly committing an offence, to prove the guilt of the accused beyond a reasonable doubt. This high standard of proof – universally required in civilized systems of criminal justice – is a core component of the fundamental right that every person enjoys under the Constitution and under the common law prior to 1994, to a fair trial. It is not part of a charter for criminals and neither is it a mere technicality. When a court finds that the guilt of an accused has not been proved beyond reasonable doubt, that accused is entitled to an acquittal, even if there may be suspicions that he or she was, indeed, the perpetrator of the crime in question. That is an inevitable consequence of living in a society in which the freedom and the dignity of the individual are properly protected and are respected. The inverse – convictions based on suspicion or speculation – is the hallmark of tyrannical systems of law….”

 

36. In the South African case of Ricky Ganda vs The State [2012] ZAFSHC 59, it was held: “…………….. The proper approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and having done so, to decide whether the balance weigh so heavily in favour of the state as to exclude any reasonable doubt about the accused’s guilt.”

 

37. Also in the South African case of Zulman JA in S v V2000 (1) SACR453 (SCA): “It is trite that there is no obligation upon an accused person, where the State bears the onus, “to convince the court”. If his version is reasonably possibly true he is entitled to his acquittal even though his explanation is improbable. A court is not entitled to convict unless it is satisfied not only that the explanation is improbable but that beyond any reasonable doubt it is false….”(emphasis added)

 

38. In the Zimbabwe case of S V Makanyanga 1996 (2) ZLR 231 the court observed: “A conviction cannot possibly be sustained unless the judicial officer entertains a belief in the truth of the criminal complainant, but the fact that such credence is given to the testimony does not mean that conviction must necessarily ensue. Similarly the mere failure of the accused to win the faith of the bench does not disqualify him from an acquittal. Proof beyond reasonable doubt demands more than that the complainant be believed. It demands that a defence succeeds wherever it appears reasonably possible that it might be true.”

 

39. In R V Cooper [1969] 1 All ER 32 at 34 it was said an appeal court: “must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the court experiences it…”In this case there is a lurking doubt in our minds as to whether the conviction should stand based on an analysis of the evidence of both the victim and the Appellant, but the general feel of the case.

 

40. For the reasons enumerated above we have decided to allow the appeal, quash the conviction and acquit the Appellant forthwith.

 

A. Fernando (J.A.)

 

I concur:. ………………….

F. Robinson (J.A)

 

Signed, dated and delivered at Palais de Justice, Ile du Port on31 August 2018

 

M. Twomey (J.A)

 

1. I have not had the opportunity to read my learned brother’s decision in this appeal. He has however indicated his views to me, which views I respectfully dissent with for the reasons I have expressed herein.

 

2. The Appellant in this case was charged with the offence of sexual assault contrary to section 130 (1) read with section 130 (2) (d) of the Penal Code and punishable thereunder.

 

3. The salient facts of the present case are the following:

The complainant’s version of events

 

4. The complainant, A.L., alleges that on the night of 2^nd October 2015 she went to the Amusement Centre in Victoria with friends. Before leaving, she asked a man parked outside in a white car if he offered taxi pirat services. The man confirmed that he did and the complainant asked him to take her home to Sans Souci. She sat in the front seat and, feeling tired and a bit drunk, fell asleep. When she woke up, she was in the same car which was parked behind the Stad Linite at Roche Caiman, and the Appellant was having sexual intercourse with her. She screamed and tried to escape but the accused physically restrained her by strangling her and told her to shut up. She hit him with her mobile phone and managed to flee, heading towards the sound of music playing and asked a woman for help. The police were alerted shortly after the incident and the complainant was medically examined. According to the complainant, she did not consent to have sexual intercourse with the Appellant.

 

The Appellant’s version of events

5. The Appellant chose to exercise his constitutional right to remain silent, from which no adverse inference shall be drawn. One out of court statement to the police was admitted by the Prosecution in which the Appellant admits having consensual sexual intercourse with the complainant. It was further alleged in the closing submissions by his counsel that the lack of evidence showing that force was used during intercourse, the lack of torn clothing, and the fact that the Appellant never disposed of the complainant’s mobile phone, which was left in his vehicle, point towards consensual intercourse.

 

Conviction and sentence

 

6. The learned trial Judge concluded that there was no evidence to support the Appellant’s contention that the sexual intercourse had been consensual. The Appellant in this case was accordingly convicted of the offence of sexual assault contrary to section 130 (1) read with section 130 (2) (d) of the Penal Code and punishable thereunder and sentenced on 29 November 2017 to 7 years’ imprisonment for sexually assaulting A.L. without her consent. The Appellant is challenging both the conviction and sentence in this appeal.

 

Grounds of appeal summarised

 

7. The Appellant is appealing against conviction on the following grounds:

 

• That the learned trial Judge erred in convicting the Appellant without properly taking into account the fact that the Appellant had a valid defence in the form of the consent of the victim.
• The learned trial Judge erred in convicting the Appellant on insufficient evidence.
• In all circumstances the conviction of the Appellant was unsafe and unsatisfactory.

 

8. It is clear that the grounds of appeal are interlinked and that in essence the appeal hinges on whether the complainant consented to having sexual intercourse with the Appellant on the night in question. The facts of this case raise two issues linked to consent: one is whether the victim had the cognitive capacity to consent at the material time, and the other is whether the allegation of use of force by the Appellant against the complainant would serve to vitiate consent. For this reason, the grounds of appeal against conviction will be taken together.

 

9. The Appellant is also appealing against sentence on the ground that the sentence of 7 years imposed on him was manifestly harsh and excessive and wrong in principle.

 

10. The Respondent has rejected each ground of appeal, stating that the Appellant’s analysis of evidence is misconceived and contrary to the evidence adduced during the trial. The Respondent maintains that the sexual intercourse was not consensual, as evidenced by the complainant’s physical struggle with the Appellant during her attempt to flee, her distressed state following the incident and the fact that she disclosed the alleged sexual assault to a witness and to the police immediately following the incident. It seeks therefore a dismissal of the appeal.

 

Definition of consent

11. Historically, the offence of rape was defined as ‘the carnal knowledge of a woman forcibly and against her will’ (See St G Tucker, Blackstone’s Commentaries (William Young Birch and Abraham Small, IV, 1803) 210) and was originally silent on the mental element required. This has remained subconsciously the jurisprudential basis of the offence of sexual offences despite redefinitions. Essentially, the person engaging in the carnal knowledge (the penetration, mostly penis-in-vagina) is a man forcibly and against the will of a woman, that is, to be proven by her, and that she tried to fight him off. The mental element, as will be seen, also remains problematic.

 

12. Seychelles amended the traditional rape provision in 2005 and introduced gender neutral language. Section 130 of the Penal Code now provides in relevant part:

“130. (1) A person who sexually assaults another person is guilty of an offence and liable to imprisonment for 20 years…

2) For the purposes of this section “sexual assault” includes-

(a) an indecent assault;

(b) the non-accidental touching of the sexual organ of another;

(c) the non-accidental touching of another with one’s sexual organ, or

(d) the penetration of a body orifice of another for a sexual purpose.”

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

(a)        the person’s consent was obtained by misrepresentation as to the character of the act or the identity of the person doing the act;

(b)        the person is below the age of fifteen years; or

(c)        the person’s understanding and knowledge are such that the person was incapable of giving consent.

 

13. Jurisprudentially,however, the approach has remained more or less fixated on the old traditional attitudes to sexual offences. Consent remains a problematic yet integral element of the offence of sexual assault, as sexual activity is only legal if both parties consent to it. As I stated in the recent case of Republic v Stephen Enow [2017] SCSC 413 at parag [30], section 130 (3) of the Penal Code of Seychelles establishes what amounts to the absence of consent, but fails to provide a useful definition of consent. I reiterate therefore that this provision has the merit of permitting Judges to look beyond the strict wording of the enumerated categories of lack of consent when it is necessary to do so. I add that it is also time to look beyond the traditional male perspective as the prism through which sexual offences must necessarily be viewed.

 

14. The Seychellois Penal Code is circuitously derived from the Queensland Code and I have on many occasions sought helpful comparison to both its provisions and the precedents of that jurisdiction. In section 348 of the Criminal Code of Queensland (1899), the proscribed means vitiating consent are force, threat or intimidation, fear of bodily harm, exercise of authority, misrepresentations about the nature or purpose of the act, and impersonations of the victim’s sexual partner. An expression of consent induced by one of the proscribed means provided by this section is simply treated as no consent at all, even if there has been an outward expression of consent (Colvin & McKechnie, Criminal Law in Queensland and Western Australia – Cases and Commentary, 6^th ed, LexisNexis Butterworths Australia, 2012, pg 153). The provisions relating to consent or rather lack of consent of the Criminal Code of Queensland and the Seychellois Penal Code are similar to the traditional common law interpretations of consent.

 

15. The common law tradition which has been followed in Seychelles generally acknowledges that consent or non-consent is difficult to prove by way of evidence. Sexual offences are in their nature conducted in private, and consequently independent witnesses are unlikely. However, what is unacceptable is that despite the adoption of gender neutral language in the legal provisions which I have explained above, a jurisprudential male dominance orientation to consent is adopted to the exclusion of a female perspective. Such an approach fails to consider a more holistic approach of what legal sex actually is.

 

16. In respect to what must be proven by the prosecution for a conviction of the offence rape, the court for example in R v Malone (1998) Cr.L.R 834, held that there was no requirement that absence of consent be demonstrated or communicated in order to establish that element of rape; in other words, the actus reus of rape did not import a requirement that the complainant demonstrate by words or conduct that there was lack of consent. All that was required for the jury to decide on the issue of consent was some evidence of lack of consent.

 

17. In R v Hysa (2007) EWCA Crim 2056, the Court determined that issues of consent and capacity to consent to sexual activity should normally be left to the jury to decide.

 

18. In R v Olugboja (1982) QB 320, Dunn LJ of the Court of Appeal held that:

“The jury should be directed that consent, or the absence of it, is to be given its ordinary meaning and if need be, by way of example, that there is a difference between consent and submission; every consent involves a submission, but it by no means follows that a mere submission involves consent.”

19. In Seychelles, the Judge a quo is the Judge of law and fact and it is he/she who adjudicates on the issue of consent. In my view in such adjudication and in the appreciation of the facts, adopting the modern and holistic view of sex is imperative.

 

20. Feminist critique argues that the absence of a useful statutory definition of consent in rape or sexual assault has “allowed gender myths and stereotypes to expand the space for male subjectivity and allowed the defendant to read off consent from the complainant’s demeanour, body and sexual reputation at the expense of her voice” (Georgina Firth, ‘Not an Invitation to Rape: The Sexual Offences Act 2003, Consent and the Case of the Drunken Victim,’ [2011] 62 (1) Northern Ireland Legal Quarterly 99 at 102).

 

21. Former Supreme Court of Canada, Justice Claire L’Heureux-Dubé, defines myths and stereotypes as “irrational, non-scientific narratives used by human beings to explain what they do not fully understand” (Claire L’Heureux-Dubé, “Beyond the Myths: Equality, Impartiality, and Justice” (2010) 10:1 Journal of Social Distress and the Homeless 87 at 89). She further asserts that “myths and stereotypes divorce the law from contemporary knowledge because they have more to do with fiction and generalization than with reality [and] they are therefore, incompatible with the truth seeking function of the legal system” (supra). They serve to shift the blame from the rapist to the victim. The process of explaining their antiquated origins enables us to confront these attitudes, expose the way they inappropriately “inform our conscious reasoning processes.”

 

22. In Seychelles, it is only recently that the Court of Appeal has asserted that “rape and sexual assault are never the victim’s fault – no matter where or how it happens” (Pascal Fostel v The Republic CR SCA No. 19 of 2012).

 

23. Of more serious concern is the fact that the focus on consent may not adequately protect women. As has been pointed out, “an undesirable consequence of making the consent of the victim the central question in sexual assault cases has been that trials tend to focus on the conduct and sexual history of the victim rather than on the behaviour of the accused. Another criticism is that ‘the ordinary use of the term “consent” does not sufficiently distinguish between cases in which the accused submits out of fear and cases in which she is willing to engage in sexual intercourse’. Finally, it has been argued that the notion of consent cannot be determined fairly while jurors and Judges rely on their stereotypical views about sexual roles in their assessment of consent (such as, put bluntly, ‘yes’ means ‘no’; that women fantasise about being raped; or that women could resist if they really wanted to)” (See Thomas Crofts, ‘Rape, the mental element and consistency in the codes’ (2007) 7(1) QUTLJJ 1).

 

24. I have gone to a considerable extent to critique the prosecution of the offence of sexual assault if only, in the absence of statutory intervention, to require a moral and professional shift on the part of the legal profession in Seychelles on the appreciation of the difficulties faced by sexual assault victims (so far always women) and the necessity to orientate ourselves away from the traditional male focus in sexual offences accompanied by the demeaning of woman’s sexuality in the language used and the accompanying stereotyping underscoring the belief that in Seychelles, as in most other countries, it is the complainant of a sexual assault case who is on trial and not the accused, despite liberal platitudes to the opposite effect.

 

25. In my examination of the law on sexual assault and the examination of the evidence in the present case, I advocate a shift from the stereotype discussions, such as the subconscious justification that the assaulted person was consenting, was not wearing knickers, should have felt her knickers being pulled off, was too drunk, was not drunk enough, was inappropriately asleep in the front seat of a small car, should not have been in a taxi pirat, should not have gone to the Amusement Centre, should not have worked too early so as to feel too tired on a Friday night; in fact, should not have been there at all.

 

26. By adopting and requiring affirmative conduct in sexual assault cases, and through the limitation of situations in which consent can be lawfully obtained, the Court would be necessarily equipped and properly restricted in focus on the distinct and integral difference between legal sex and sexual assault, which invariably hinges on the absence of consent.

 

27. In this endeavour I am guided by and adopt Lois Pineau’s communicative criterion to challenge both the contractual and aggressive seduction models of sexuality, to shift the burden of proof from the person who is assaulted to the person who assaults, and to establish a standard that is not dependent on masculine perspectives. Pineau argues for sex that is based on the mutual agreement of both parties as is expressed in communication from both sides for the purpose of mutual enjoyment. Hence, it is the communication of consent and not of non-consent that is crucial. It is a model advocating the pleasure of both partners in whatever form they so choose and expressed mutually without pressure and coercion (See Lois Pineau, Date Rape: A Feminist analysis (Law and Philosophy

 

28. The challenge remains in finding how best to infuse these principles into the definition of sexual assault and in particular in the notion of consent within the statutory provisions of the Penal Code of Seychelles expressed as it is in a male orientated language. In my view, such an approach is not incompatible with the relevant provisions of the Penal Code on this issue.

 

29. Admittedly, the notion of consent extends across a wide range of mental states, from actual desire to reluctant acquiescence (Devereux & Blake, Kenny Criminal Law in Queensland and Western Australia 8th Ed, LexisNexis Butterworths Australia, 2013, at 323). In Holman [1970] WAR 2 at 6, Jackson CJ held that a victim’s consent to intercourse may be:

“… hesitant, reluctant, grudging or tearful, but if she consciously permits it (providing her permission is not obtained by force, threat, fear or fraud) it is not rape.”

30. However, in R v Ewanchuk [1999] 1 SCR 330, the Supreme Court of Canada rightly shifting the focus on the accused’s comportment, held that implied consent is not sufficient for legal consent; an accused cannot rely on the complainant’s silence or ambiguous conduct to initiate sexual contact. Furthermore, it was held that:

“In order to cloak the accused’s actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question”.

 

31. In the Australian case of Case Stated by DPP (No 1 of 1993) (1993) 66 A Crim R 259 at 278, Duggan J held:

“Whether or not consent has been freely given is a question of fact for the jury to determine, having regard to all the circumstances. The question is not concluded against the accused simply by reason of the fact that there was an initial refusal to consent to intercourse. Even following such a refusal there may be a freely given consent after further dealings between the parties.”

 

Cognitive capacity to consent

32. Consent will not be freely and voluntarily given if the victim lacks cognitive capacity to give consent. In Canada, the jurisprudence has consistently maintained that consent requires a conscious, operating mind which is capable of granting, revoking or withholding consent to each and every sexual act (Sweet & Maxwell, Archbold, Criminal Pleading, Evidence and Practice, 2013, Thomson Reuters, at 2054). In R v Ashlee, 212 C.C.C. (3d) 477, the Alberta Court of Appeal held that consent must be given to a particularly sexual activity and at the time of that activity, and that consent is a continuing state of mind which does not remain operative after a person has become unconscious and incapable of consenting (See in this context “Tea and Consent” https://www.youtube.com/watch?v=oQbei5JGiT8).

 

33. Supervening unconsciousness causes an inability to agree or consent (Saibu v R [1993] 10 WAR 279). In the Queensland case of Francis [1993] 2 Qd R 300, it was held that rape would be committed where a man had sexual intercourse with a woman who, by reason of sleep or a drunken stupor, was incapable of deciding whether to consent. Similarly, one cannot consent in advance to future sexual activity when he or she would be unconscious (R v J.A. 2011 SCC 28).

 

34. In the UK case of R v Bree [2007] 2 All ER 676, although it was established that drunken consent may well amount to consent in some cases, the Court held that if, through drink, a woman had lost her capacity to consent, sexual intercourse would be rape. Conversely, an alleged victim who had drunk “substantial quantities” could still consent to sex. It was reminded in that case, however, that the capacity to consent could evaporate before sexual intercourse took place.

 

35. In the present appeal, the Appellant’s contention that the sexual assault could not have happened because the complainant should have woken up when the vehicle came to a stop or when her seat was being reclined (note that there was no evidence to that effect as the Appellant neither testified nor adduced any evidence; rather the point was made by defence counsel and by a member of the bench hearing the appeal) is untenably speculative and in my view should be dismissed out of hand. The complainant consistently maintained in her evidence that she was a bit drunk and was very tired following a long day, and had fallen asleep in what she believed to be a taxi pirat after she had asked the driver to take her to Sans Souci.
36. In the circumstances, as stated in EC v R [2016] SCSC 788:

 

“The mere fact that [the complainant] was drunk never diminished her capacity to know what had happened to her and to identify correctly the person who had had sex with her without her consent. There is no evidence on record to show that she was so drunk that she could not understand where she was, or whom she was talking to, or whom she had been with on the material day and time. On the contrary she recounted the events to the satisfaction of the learned trial Magistrate.”

37. Similarly, in Mousmie v The Republic (1978-1982) SCAR 543, this Court held that:

“…it was unthinkable that the account given by the complainant had been concocted and there was no indication that the complainant was suffering from delusions or hallucinations. The part of the prosecution case which dealt with the commission of the offence could have been believed on the uncorroborated evidence of the complainant.”

38. More to the point, there is nothing to suggest from the evidence led at the trial in this case, that the complainant was so drunk that her recollection of the material events was patchy or uncertain. Her account of the incident during her testimony and during cross-examination was consistent. I agree with the learned trial Judge that there was no reason to doubt her version of events in this case, particularly given that her account was corroborated by the testimonies of multiple other witnesses. Therefore, it is reasonable to believe that the complainant was asleep at the material time and that she lacked the cognitive capacity to consent to any sexual activity by virtue of her being unconscious.

 

Need for corroboration

39. There were two diametrically opposed accounts of events in this case. The complainant had impressed the learned trial Judge in the present case of her credibility, and he believed her evidence. The trial Judge was entitled to that conclusion as he had the chance to see the complainant testify and observe her demeanour on the stand, particularly while her evidence was being tested through cross-examination, a benefit which the appellate Court does not have (Vidot v R [2005] SCCA 20). This Court hason various occasions and most notably in Akbar v R (SCA 5/1998), held that in appeal:

“The accepted approach to findings of fact which turn largely on the credibility of witnesses is to uphold such findings if they are supported by the evidence believed by the trial court and if there is nothing perverse in the trial ascribing credibility to such evidence”.

            In my view, to do otherwise would subject this Court to the same accusation of perversion.  

 

40. The ineluctable journey towards dispensing of the need for corroboration in sexual assault cases was slow in Seychelles. In Re a Minor (No 2) (2008) SLR 348, it was held that corroboration is only required if the testimony of the complainant is credible; if the testimony is not credible and there is no other cogent evidence, then the accused should be acquitted even if corroborative evidence is capable of being found.

 

41. Finally, in Raymond Lucas v The Republic SCA 17/2009 (2011) SLR 313, this Court cited Article 27 (1) of the Constitution on rights to equal protection of the law and stated:

"…to say that every complainant in a sexual assault offence case is less worthy of belief than another witness is an affront to their dignity and violates their right guaranteed under Article 27 (14) of the Constitution."

 

42. In EC v R [2016] SCSC 788, the Court of Appeal held that :

“As for corroboration in sexual offences, it has been done away in other jurisdictions on the ground that it is discriminatory to require females to provide corroboration of their evidence contrary to the provision of the Constitution. This is now the law in Australia, Canada, Ireland, and in East Africa.”

 

43. Yet, even if corroboration was required there was plenty of it in this case. Stella Agathine gave evidence that she found the complainant in an obviously distressed state immediately following the incident, and was informed by the complainant that she had been raped. The complainant further informed her that the driver of the vehicle had not taken her home as she had intended, but had instead taken her to Roche Caiman. The witness was asked to telephone the complainant’s phone, then the complainant’s boyfriend, before notifying the police.

 

44. The complainant’s account of strangulation was corroborated by the testimony of Yanna Dupres, the responding police officer, who testified that she saw two red marks on the right side of the complainant’s neck shortly after the incident. Dr. Alejandro Ballester confirmed the presence of external scratches on the right side of the complainant’s neck in his medical report dated 3^rd October 2015 (Exhibit P5).

 

45. Dr. Mohamed Amad Alla confirmed the presence of multiple superficial abrasions on the back and shoulder of the Appellant, which he opined could have been nail scratches. The Doctor agreed that the scratches could have been inflicted during love making at the suggestion of the Defence counsel. I find little credence with this suggestion, given that the evidence led at trial would indicate that the sexual intercourse was not consensual, and proceed to uphold the Trial Judge’s rejection of it.

 

Reporting incident at the first opportunity

 

46. Because of the seriousness of the crime of rape, there has been attempts to introduce an element of objectivity into the determination of the question of whether the victim consented, which is achieved in some circumstances by considering the behaviour of the victim shortly after the alleged assault and particularly whether the victim made an early complaint about the assault (Devereux & Blake, Kenny Criminal Law in Queensland and Western Australia, 8^th ed, LexisNexis Butterworths Australia, 2013, at 328).

 

46. Archbold Criminal Pleading, Evidence and Procedure, (supra) at para 20-12 provides that recent complaints in common law are admissible as evidence of consistency of the conduct of the complainant and would tend to negative consent.

 

47. The complainant testified that she told Stella Agathine immediately following the incident of the alleged sexual assault, before the police were telephoned. The witness corroborated the complainant’s version of events, giving evidence that she was working at Golden Plate Restaurant at Roche Caiman near the Stad Linite, when the complainant approached her in a clearly distressed state; the complainant was screaming, falling to the ground and crying. The complainant informed her that she came from the Amusement Centre and that she had been raped.

 

48. The complainant further told the witness that the driver of the vehicle had not taken her home at Sans Souci as she had intended, but had taken her instead to the Roche Caiman stadium car park. The witness was asked by the complainant to call the complainant’s mobile phone, which had been left in the Appellant’s vehicle, and her boyfriend, before calling the police. The complainant was immediately thereafter taken to the Hospital for a medical examination and then proceeded to give a formal statement to the Mont Fleuri police.

 

49. PW4, the complainant’s sister, was also informed by the complainant the morning after the incident that she had been raped.

 

50. Therefore, the complainant’s reporting of the incident immediately following the alleged sexual assault would tend to negative consent. This further satisfies the Trial Judge that there is ample corroborative evidence to support the complainant’s account that the sexual intercourse was not consensual. I see no reason to disagree with him.

 

The evidence of Dr. Alejandro Ballester (PW 8)

 

51. The Appellant submitted that the doctor could not say with certainty whether sexual intercourse had taken place. I fail to see the relevance of this submission. It is reminded that it is not in dispute that sexual intercourse occurred, nor specifically that the sexual encounter had involved penetration; whether or not there was consent by the complainant to the sexual intercourse is the only fact in issue.

 

52. It would be unreasonable and albeit fanciful to expect under such circumstances for a doctor to say with absolute and unequivocal certainty that the scratches were due to strangulation or use of force during intercourse, unless the markings on the victim’s neck were elaborate and obvious. The doctor could only reasonably be expected when faced with two red marks on one side of a patient’s neck to opine as to whether he believed it possible for the scratches to be the result of a use of force or strangulation, those options being amongst many likely causes of the injury. Even Dr. Mohamed Amad Alla, when asked during cross-examination how the scratch marks on the Appellant’s body could have been occasioned, replied that this is a “common sense subject”. Therefore, although the prosecution did not further question the doctor in this regard, the presence of the scratches on the complainant’s neck immediately following the alleged sexual assault serves to corroborate, if nothing else, the complainant’s account of a physical struggle between herself and the Appellant.

 

53. It is reminded at this juncture that it is trite that there is no requirement for physical injury by the victim in sexual assault cases.

 

54. The doctor’s expert report was not challenged during the trial, nor was its admission into evidence objected to by defence counsel. Therefore, the Report was admissible as evidence under section 17 (1) of the Evidence Act (Cap 74), which provides as follows:

 

“In any trial a statement, whether of fact or opinion or both, contained in an expert report made by a person, whether called as a witness or not, shall, subject to this section, be admissible as evidence of the matter stated in the report of which direct oral evidence by the person at the trial would be admissible.”

 

Use of force negates consent

55. The complainant alleged that the Appellant had used force against her during the sexual intercourse. In Lespoir v R Cr. A 3 /1989 CA 9/1989, LC 13, this Court held that it was trite law that fraud, force or threats vitiate consent. It was reiterated in Pascal Fostel v Republic SCA 19/2012 (per Msoffe JA) that consent to a sexual act obtained by force is not consent.

 

56. The complainant gave sworn evidence during the trial that the Appellant was strangling her and was forcibly preventing her from leaving the vehicle. Furthermore, when she screamed, he told her to shut up. Her version of events was corroborated by that of Yanna Dupres, the responding a police officer who saw two red marks on the right side of the complainant’s neck, and by Dr. Alejandro Ballester, who reported that he had noted external scratches on the right side of the victim’s neck during her medical examination on 3 October 2015. As previously stated, the medical report was admitted into evidence as exhibit P5 in the absence of any objections from the Defence.

 

57. Furthermore, the complainant alleged that she had hit the Appellant with her mobile phone and dropped it in his vehicle before she was able to escape. It was not disputed by the Defence that the phone was left in his vehicle. Nevertheless, the complainant’s account was corroborated by the testimonies of PW4 and Yanna Dupres. Moreover, such evidence was in no way controverted by the accused. I am therefore satisfied that there is sufficient independent evidence to support the complainant’s account that force was used against her at the material time, which effectively negates consent.

 

Police statement of the Appellant

 

58. The production by the prosecution of the out of court statement of the Appellant was impugned not on the grounds that it implicated the Appellant, but rather on the ground that it served to show the innocence of the Appellant. Well before this jurisdiction accepted that no corroboration of a credible complainant was necessary in sexual assault cases, the Court had established in R v Pierre [2007] SLR 200 that when

 

• The lie is deliberate;
• The lie relates to a material issue;
• The motive for the lie is realisation of guilt and fear of the truth; and
• The statement is clearly shown to be a lie by evidence from an independent source.

 

59. The Appellant’s statement dated 12 October 2015 (exhibit P6), which was given to the police 10 days following the alleged incident, consists of numerous claims which would suggest that the Appellant and the complainant went to drink alcohol together at Plaisance then continued to drink together in the vehicle. After alleged consensual intercourse, it is the Appellant’s averment that he paid her SCR400 and dropped her off at Barrel Trading. He also claimed that she vomited in his car, and that he failed to disclose these details to the police earlier because he would have problems with his lady.

 

60. That, in my view, is weak evidence of consent. In the tradition of Woolmington v DPP [1935] AC 462, and the golden thread principle it is too often conveniently forgotten that evidential burdens shift throughout a case. While undoubtedly the burden of adduction of evidence to show lack of consent rests on the prosecution, when as in this case there is unambiguous evidence by the prosecution, an evidential burden (to show or lead some rebuttal evidence) is cast on the accused to show his belief of consent. In my view he failed in this duty. The complainant specifically denied in her testimony each allegation levelled by the Appellant in his police statement. On the basis of all the evidence led at the trial, the truthfulness of the Appellant’s statement to the police is highly questionable and the contents in my view improbable and self-serving.

 

Conclusion regarding appeal against conviction

61. The Republic has the burden of proving the charge proof beyond reasonable doubt. If the Court has a doubt as to proof of guilt that fairly arises out of the evidence and that appears to be a reasonable doubt, and if it relates to one of the essential elements of the charge, then the Court should dismiss the case and set the accused free.
62. Lord Denning J in Miller v Minister of Pensions [1947] 2 All ER 372, 373 held as follows on the standard to be met in this respect:

 

“It need not reach certainty, but it must carry a high degree of probability.  Proof beyond reasonable doubt does not mean proof beyond the shadow of a         doubt… If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”

 

63. I am, like the Trial Judge, satisfied that the Prosecution succeeded in proving the charge of sexual assault against the Appellant beyond reasonable doubt. May I add that any arguments raised during the hearing on appeal concerning the physical size of the Appellant in relation to the complainant and whether or not he would be able to have intercourse with her in the front passenger seat of the vehicle, or concerning the type of underwear that she was wearing for her allegedly not to notice its absence, or whether the complainant ought to have awoken while the Appellant was reclining her seat, or concerning the lack of torn clothing, apart from being devoid of deference to the female perspective, would not be sufficient to create a remote possibility in the Appellant’s favour.None of these issues would be relevant for the purposes of establishing whether or not there had been consent. If nothing else, the argument concerning the victim’s underwear may well go to the heart of the stereotypical rape myths discussed above.

 

64. On appeal, the burden is on the Appellant to show that the findings of the trial court were unreasonable or could not be supported having regard to the evidence (Naiken v The Republic ). This has not been discharged.

 

65. For all the aforementioned reasons, I see no merit in the Appellant’s grounds of appeal against conviction and dismiss them.

 

Appeal against sentence

66. The Appellant is also appealing against his sentence of 7 years’ imprisonment. A sentencing decision should be overturned only if it is clearly wrong in principle or manifestly excessive (Labiche v R SCA 1 (a)/2004, LC 288).

 

67. In Francis Crispin v R SCA 16/2013,  the Honorable President of the Court of Appeal held the following:

“The guiding principles in sentencing are summed up in four words: retribution, deterrence, prevention and rehabilitation ... [The appellant] ignores the mental and physical pain and damage he causes his victims. The society abhors such actions. The Court must add an element of retribution in punishment of this crime to express the pain and disgust of the society when it convicts an accused with such crime.”

 

68. He further stated:

 

“To deter offenders and likely offenders, the court must also mete a severe punishment to the offenders. This is considering that given an opportunity, there is nothing to show that the offender would not repeat his earlier actions.  A severe sentence also ensures that the offender is kept away from the victims and likely victims, to prevent him from repeating his heinous actions.”

 

69. For the offence of sexual assault under section 130 of the Penal Code, the Appellant is liable to imprisonment for 20 years. I am of the view that abusing one’s position of trust as a taxi driver, albeit a taxi pirat driver, to take advantage of a passenger who has fallen asleep in one’s vehicle, is an aggravating factor in this case. Furthermore, the use of force against the victim is also an aggravating factor. For these reasons, and based on the current trend in sentencing, I reject the Appellant’s ground of appeal against sentence.

 

70. The appeal is dismissed accordingly.

 

M. Twomey (JA)

 

Signed, dated and delivered at Palais de Justice, Ile du Port on 31 August 2018.