IN THE COURT OF APPEAL OF SEYCHELLES
Reportable
[2025] (22 April 2025)
SCA CR 15/2024
(Appeal from CO 20/2022)
In the matter between
T L Appellant
(rep. by Mr. Joel Camille)
and
The Republic Respondent
(rep. by Mrs Gulmette Leste)
Neutral Citation: T.L v R (SCA CR 15/2024) [2022] (Arising in CO 20/2022)
(22 April 2025)
Before: Fernando President, Robinson, Andre, JJA
Summary: Appeal against conviction for sexual assault and the sentence imposed.
Heard: 7 April 2025
Delivered: 22 April 2025
ORDER
Appeal against conviction and sentence dismissed.
JUDGMENT
FERNANDO, PRESIDENT
The Appellant has appealed against his conviction for two counts of sexual assault contrary to section 130 (1) of the Penal Code and the sentence of 15 years’ imprisonment imposed on him on such convictions.
The Appellant had been charged as follows:
Count 1
Statement of offence
Sexual assault contrary to Section 130 (1) read with Section 130 (2) (d) of the Penal Code (Act 5 of 2012) and punishable under Section 130 (1) as read with Section 130 (4) of the Penal Code (Act 5 of 2012).
Particulars of offence
T.L, a 33 years old Police officer of Castor Road, Mahe, while he was living at Pointe Larue, Mahe, on a date unknown to the Republic in 2019, at his residence at Pointe Larue, Mahe, sexually assaulted his step-daughter namely Ms. K. M, a student of P2 at the time by penetrating the body orifice namely vagina and anus of the said Ms. K. M with his finger and his penis for sexual purpose.
Count 2
Statement of offence
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 of the same (Act 5 of 2012).
Particulars of offence
T.L, a 33 years old Police officer of Castor Road, Mahe, while he was living at Pointe Larue, Mahe, on a date unknown to the Republic in 2019, inside a car at Takamaka, Mahe, sexually assaulted his step-daughter namely Ms. K. M, a student of P2 at the time by penetrating the body orifice namely vagina of the said Ms. K. M. with his finger for sexual purpose.
The Appellant had been sentenced to 15 years’ imprisonment in respect of each of the counts 1 and 2 but the sentence imposed on count 2 was ordered to run concurrently with that imposed on count 1.
The Appellant has raised the following grounds of appeal against the conviction:
The learned trial judge erred in law and on the facts in failing to appreciate and assess sufficiently that the sexual complaint against the Appellant was made over an inordinate period of time, after the alleged incident, which period of time did not amount to a recent complaint by the complainant, as accepted in law.
The learned trial judge erred in law on the facts in failing to appreciate and assess sufficiently that a lurking doubt exits as to whether the Appellant did actually sexually assault the complainant, especially given the fact that the prosecution’s own evidence, through the testimony of the virtual complainant remained ‘shaky’ before the Court and hence casts doubt on the complainant’s own evidence as being credible.
The learned trial judge erred in law and on the facts by drawing the wrong inference from the defence’s evidence particularly, in failing to appreciate and assess sufficiently the case of the Appellant before the trial court.
As against the sentence of 14 years on both counts, the Appellant has urged that it is manifestly harsh and excessive in that the trial judge failed to take into consideration the factors the Appellant presented in his mitigation.
The minimum sentence that could have been imposed in respect of each of the charges according to section 130 (1) of the Penal Code was 14 years and the maximum was 20 years.
The Appellant although filed his grounds of appeal on an extension granted by Court, failed to comply with rule 24(1) of the Court of Appeal of Seychelles Rules, which states: “Unless the President otherwise directs — (a) The appellant shall lodge with the Registrar five copies of the appellant's main heads of argument within one month from the date of service of the record. A copy of such heads of arguments shall be served on each of the respondents at the same time.” According to the interpretation provision in rule 2(1) in the computation of time, ‘month’ means a calendar month inclusive of Saturdays, Sundays and Public Holidays. Rule 24(2)(i) of the said Rules states: “Where the appellant has not lodged heads of argument in terms of this Rule, the appeal shall be deemed to be abandoned and shall accordingly be struck out unless the Court otherwise directs on good cause shown.”. Rule 26 which speaks of ‘Extension of time’ states: “The times fixed within these Rules may, on good cause shown by notice of motion supported by affidavit, be extended by the President or the Court.” At a sitting of the Court on the 18th of February 2025, Counsel for the Appellant had undertaken to file the Appellant's main heads of arguments by the 11th of March 2025. This was after the Court extending the time for the Appellant to file his main heads of arguments in view that the record had been served on his Counsel appointed under legal aid on the 11th of February 2025. The record had been served on the Appellant personally on the 24th of January 2025. The Appellant filed his main heads of arguments on the 3rd of April 2025, and on the 4th of April 2025 Counsel for the Appellant filed a Notice of Motion with a supporting affidavit seeking an extension of time under rule 26. The cause shown therein for the delay by the Appellant’s Counsel in filing the main heads of arguments, is that he had decided to move his chambers to another location and the delays associated with that. According to him, he had given notice to his earlier landlord on the 22nd of January 2025 and had virtually closed his practice for the entire month of February. What is surprising and contradictory of this averment is that on the 18th of February when he appeared before the Court as stated earlier, there was no mention whatsoever of Counsel moving his chambers to another location or any difficulties associated with such moving. In fact, Appellant’s Counsel undertook to file the Appellant's main heads of arguments by the 11th of March. Further, it had taken Counsel for the Appellant more than 3 weeks to file the Appellant's main heads of arguments and seek an extension of time from the date he had undertaken to file it, namely 11th of March. We cannot tolerate this type of erratic behaviour of Counsel for the Appellant. This Court has therefore decided not to hear the Appellant’s Counsel, but taking into consideration the seriousness of the charge and the 15-year jail term imposed on the Appellant consider the defence of the Appellant based on the Record and after giving a hearing to the Respondent. The Respondent has filed the heads of arguments on the 31st of March 2025, in compliance with rule 24(1)(b) despite not receiving the Appellant’s heads of arguments. We also make order that the Appellant’s Counsel is not paid under the Legal Aid Scheme for breaching rules 24(1) and 26 of the Court of Appeal of Seychelles Rules and the disrespect shown to Court by trying to mislead the Court.
The entire prosecution case rested on the testimony of the victim K.M. whose evidence the learned Trial Judge had believed. K.M. was 10 years old at the time she testified before the Court and 7 years at the time of the alleged incidents. K.M. had testified through the assistance of a video link circuit television. The learned Trial Judge after a voire dire having satisfied himself that K.M. knew the difference between speaking the truth and speaking a lie and the necessity to speak the truth had proceeded with the trial.
K.M. testifying before the Court had correctly given her age and full name as stated in her birth certificate. She had given the names of the persons whom she was living at the time she testified before the Court. She had then in her examination-in-chief gone on to state that when the incident referred to in count 1 of the indictment happened she had been living with her mother, little brother and step father at Pointe Larue in a bedsitter. She had given the name of her stepfather as T.L, who is the Appellant in this case. K.M. in describing the incident had stated that one night in the year 2019 (the year had come out in cross-examination) when her mother was away at work the Appellant had, while she was sleeping taken her to his bed, while her 2-year-old brother slept on the other bed in the room. He had then removed her clothes including her shorts, lifted her T-shirt and got on top of her. The Appellant had caressed her under her neck and according to K.M. “He placed his penis inside my vagina” and went “up and down on me”. She had asked the Appellant what he was doing and he had not answered. She had tried to scream but could not. K. M. had also said that the Appellant “put his private part to the side … my thighs” and she had seen a white liquid coming out. K.M. had said that the Appellant had also put his penis in her anus. Thereafter K.M. had gone to the toilet and she found it difficult to urinate. K.M. had stated that on another day at Takamaka while she, her mother, her little brother and the Appellant had gone to visit her grandmother, the Appellant had, while the others had got out of the car in which they had travelled, locked the door of the car and “he sat me on top of him”. He had thereafter put his fingers inside of her shorts and “inside my vagina”. She was afraid when this happened. The Appellant had let her go when her mother called her. She had only told her cousin Raphaella, aged 17 years, about what happened to her and Raphaella, in turn had told D.J. D.J is Raphaella’s mother and K.M.s aunt. D.J had then spoken to her and taken her to the Social Services.
Under cross-examination, K.M. had stated she was 7 years old when the incidents complained of happened and she had been living with her mother at that time. K.M. had gone to live with her father after the incidents happened. Prior to the incidents that happened with the Appellant, K.M. had said that when she was 6 years’ old there was an incident that happened with her uncle R.D, her mother’s brother, where R.D took of her shorts but, soon thereafter her mother had come to where they were and had hit R.D with a broom and chased him off. K.M under cross-examination had earlier said that the “same thing happened but with one of my uncle”. K.M. had admitted that she had also spoken to Raila who is of her same age and D.J about the incidents. That was around 2-3 years after the incident. K.M. had not told her mother or father about what happened to her. She had not told the mother as her mother was at that time with the Appellant and her father, as he “would be mad”. Strangely the Counsel for the Appellant at the trial, as if playing the role of a Prosecutor, had got K.M., on more than six occasions, in cross-examination, to repeat what K.M. said in her examination-in-chief as to what the Appellant had done to her on the night when her mother was away at work, and elicit details which further confirmed the identity of the Appellant and the happening of the incidents. This line of cross-examination is contrary to the Appellant’s defence of denial. Defence Counsel had gone further to get K.M. to describe the clothing she and the Appellant were wearing at the time of the incident. K.M. had said that the Appellant “placed his private part inside mine” and turned her around. K.M. had admitted that she usually does not use words such as ‘penis’ and ‘vagina’, but no one helped her to narrate what happened. It is to be understood that she was making these statements two years after the incidents and having been subjected to sexual assaults. K.M. had said that she was not afraid of the Appellant after the incident, as she had not told anyone about it. In cross-examination, K.M. had said when the Appellant had sex with her, his legs were outside her legs and not in between her legs as her legs were pressed together. The Appellant had tried to force open her legs but did not succeed because according to K.M. she “was squeezing her legs so he won’t be able to open it”. To the question “But he didn’t open it” K.M. had said “No”. Counsel for the defence at the trial had attempted to highlight this as a contradiction with K.M.’s evidence in examination-in-chief where she said that the Appellant had placed his penis inside her vagina. In the absence of any medical or other evidence to state that these two positions cannot be understood to mean a challenge to the evidence that the Appellant had penetrated K.M., it cannot be treated as a contradiction. However, K.M.’s evidence that “when he finished going up and down on me he turned me around and then he placed his private part inside my anus, holding on to my waist”, and continued to move to and fro until her brother cried, shows there is no contradiction. Thereafter the Appellant had let K.M. to leave and she had gone to the bathroom. Counsel for the Defence had questioned her about the statement she made to the Police wherein she had said that the Appellant had put some white thing on her vagina when “he was going up and down on me”, which she had not said to Court, but admitted that it happened. It is very strange that the Defence Counsel had gone on to get out some sordid details of the Appellant getting K.M. to lick his penis when it was not even part of the charge, thus confirming that the Appellant in fact had sexually assaulted her. Counsel for the defence by trying to contradict K.M. with the statement she made to the Police in relation to minor and irrelevant matters had in fact established the consistency of the evidence of K.M. in Court in relation to the happening of the incidents, which goes against the Appellant’s denial. At what stage the Appellant got K.M. to lick his penis is not a material contradiction from her evidence in Court, so long as this had happened at the time, the Appellant sexually abused her that night. I am surprised that the Defence Counsel had been permitted by Court to go on with this line of cross-examination, taking into consideration that K.M. was a small girl of 10 years and when such cross-examination had no relevance; was disgusting in nature and was in fact detrimental to her client. I must however state, that in fairness to the Counsel who appeared for the Appellant under a Legal Aid Certificate before us and who had appeared for the Appellant only after the close of the Prosecution case at the trial stage, is not the same counsel who had appeared up to the stage of the close of the Prosecution case. The defence position was a denial of the allegations and the reason for K.M. to fabricate a case against the Appellant was at the instance of Raphaella. There is no reason adduced as to why Raphaella had instigated K.M. to fabricate a case against the Appellant.
Raphaella in her testimony to Court had said that during a conversation she had with K.M. about puberty, K.M. had told her that T.L, the Appellant, who was living in a bedsitter at Raphaella’s house, had assaulted her and she had been waiting to tell someone about it for some time. Raphaella had then told her mother, what K.M. had told her. Thereafter her mother had gone to the police and Raphaella too had made a statement to the police. The Prosecuting Counsel had not elicited from Raphaella as to what K.M. had told her but Counsel for the Defence in cross-examination had questioned her about it. Raphaella testified to the effect that K.M. had told her that one day when her mother had gone to work the Appellant had put his finger and private part inside her private part and narrated how it had happened, which is consistent with the evidence of K.M. in her examination-in-chief. Raphaella had said that she did not have any problems with the Appellant and had never instigated K.M. against the Appellant.
D. J, the aunt of K.M. testifying before the court had stated that her daughter Raphaella had told her about what K.M. told her. D.J had then reported the matter to the police and K.M.’s father, who was her brother. K.M. had also told her that ‘uncle L’ (the Appellant) had sexually abused her. The Appellant had been renting a bedsitter at her house at a certain time and was living there with K.M.’s mother P.V, K.M. and K.M.’s little brother. In cross-examination, D.J was questioned about what Raphaella had told her, as to what K.M. had told Raphaella in relation to the incident. Her answer had been that K.M. had told Raphaella that the Appellant had done naughty things to her. When D.J questioned K.M. after receiving this information from Rapaella, K.M. had said that the Appellant had inserted his finger inside her vagina. D.J had said that the Appellant had denied when D.J questioned him about what K.M. had told her.
The mother of K.M., P.V, who was a police officer, had said that she came to know of the incident only when the police called her and up to that time K.M. had not told her anything. She had said that at the time the incident had taken place she had been living with the Appellant, who was also a police officer, her daughter K.M. and her little son in a bedsitter at Pointe Larue. K.M. was 7 years old at that time. She had said when she had night shift she left her two children with the Appellant. P.V’s evidence is in line with K.M.’s evidence so far as the circumstances connected to the incident.
I am of the view that the medical evidence in this case does not throw any light on the prosecution or defence case, save the fact that K.M was not a virgin at the time the doctor examined her in March 2022. This is because it appears that K.M. had been subjected to sexual assault from the time she was 5 years of age and in a prior medical examination that was conducted in July 2020 it was found out that her hymen was not intact. Unfortunately, there is no record of what happened in relation to those incidents.
The Appellant’s defence while testifying before the Court is one of a denial. He had said that that in 2019 P.V, K.M.’s mother, K.M. and her little brother moved into the bedsitter he was renting at Pointe Larue. The bedsitter belonged to D.J, the aunt of K.M. There were two beds in it, one in which he and P.V slept and the other small bed in which K.M. and her little brother slept. K.M. at that time was 7 years old and her brother a few months. They had lived with him for about a year. He had taken care of P.V’s children when she was at work. His evidence is in line with K.M.’s and P.V’s evidence on these matters. The Appellant had denied K.M.’s allegation that he had sexually assaulted her one night when P.V was at work. He had said that when he was with P.V he used to go with P.V, K.M. and her brother to visit P.V’s mother, K.M.’s grandmother at Takamaka. He had denied that in one of the visits to K.M.’s grandmother, he had, while the others had got out of the car in which they had travelled, locked the door of the car and got K.M. to sit on top of him and put his fingers inside of her shorts and inside her vagina. The Appellant had said that K.M. and her little brother were not his children. He had however treated K.M. as his own, as he had a daughter of the same age. The Appellant had not even suggested to P.V while she was giving evidence in regard to the manner he treated K.M. P.V and her children had left him when she found out that he was seeing another woman. The Appellant when asked why K.M. has made these allegations against him had said, “I would not know”. The Appellant had also said that he knew Raphaella, D.J’s daughter, while he was residing there, but had not said anything to the effect that Raphaella had any reason to instigate K.M. to make a false allegation against him, which was the suggestion made to K.M. by the defence in cross-examination. Under cross-examination, the Prosecuting Counsel had put all the allegations as averred in the two counts to the Appellant and he had denied them.
At paragraph 7 above, I had stated that the entire prosecution case rested on the testimony of the victim K.M. which the learned Trial Judge had believed. The learned Trial Judge had cautioned himself at paragraph 36 and 43 of his judgment of the inherent risk of unreliability of the evidence of K.M. who was a child witness due to her impressionableness and tender age and the fact that there are no eyewitnesses and no independent evidence that directly implicates the Appellant save that of her evidence. The learned Trial Judge at paragraph 43 of his judgment having placed reliance on the guide to approaching the evidence of young children in the cases of Woji V Sanlam Insurance Co Ltd 1981 (1) SA 1020 and R V Manda [1951 (3) SA 158 (A); stated that “Having carefully considered the totality of her evidence, especially tested in cross-examination, I am satisfied that she has given credible, consistent and a very intelligible account of how, when and by whom the offences were committed. I have also carefully observed her demeanour and candour and I find that despite the understandable inconsistencies as highlighted, she was a witness of truth. Moreover, she clearly had no motive to lie and falsely implicate the accused.” According to the learned Trial Judge “On the other hand, the defence testimony has not impressed the court, the accused whether in his evidence under oath or through the cross examination of the virtual complainant and her witnesses has not brought up any issues that would have served to cast a doubt in the court’s mind.” It is clear that the learned Trial Judge had believed K.M. and acted on her singular evidence to convict the Appellant. He had the advantage of seeing, hearing and assessing the evidence of K.M., which we do not have as we have only the record of proceedings. There is no basis for us to disturb his finding on facts. It is only in exceptional cases that this Court will be entitled to interfere with a trial Court's evaluation of oral testimony. It has been held by this Court in the case of Raymond Lucas V R (SCA 17/09) that corroboration of the evidence of the prosecutrix is not a legal requirement for judicial reliance on the testimony of the prosecutrix but a guidance of prudence under given circumstances.
The ground of appeal at (I) is that the learned trial judge failed to appreciate and assess sufficiently the inordinate delay in making the sexual complaint against the Appellant, which period did not amount to a recent complaint by the complainant, as accepted in law. In this case, there had been a delay of about 2 to 3 years before the complaint of sexual assault was made. This Court held in Louise v R (SCA CR 10 of 2020) [2021] SCCA 72 (17 December 2021) the delay of 4 years in making the complaint of sexual assault needs to be viewed, taking into consideration the circumstances of the case and it is not in all cases that a recent complaint is a must and there is no law of prescription or time limit in registering a criminal complaint against sexual abuse in Seychelles. The matter of recent complaint only goes to the issue of credibility and consistency of the complaint.
In the case of Raj V The State 92014) FJSC 12: CAV 3 of 2014, 20 August 2014 the Supreme Court of Fiji said citing, Basant Singh & Others V The Crim App 12 of 1989; Jones V The Queen (1977) 191 CLR 439 and Vasu V The State (2006) FJCA 69, AAU 11U of 2006, 24 November 2006: “Recent complaint is relevant to the question of consistency, or inconsistency, in the complainants conduct, and as such was a matter that went to her credibility and reliability as a witness.” Delay is a typical response of sexually abused children, because of confusion, denial, self-blame, embarrassment, powerlessness and overt and covert threats by offenders. This was a case where the victim K.M. was only 7 years at the time of the alleged incidents and therefore may not have been in a position to comprehend the gravity of what happened to her; came from a broken family where the family dynamics were unhealthy, namely where her father and mother were separated and K.M. had been subjected to sexual assault from the age of 5 years. Further K.M. was not in a viable environment to talk about what happened to her at the hands of the Appellant, until Raphaella spoke to her about puberty and the risks associated if she allows boys to touch her. Had this conversation between Raphaella and K.M. not taken place this incident would have added on to the many unreported crimes of sexual abuse of young children. She had not told the mother as her mother was at that time with the Appellant and her father, as he “would be mad”. Thus, the delay in making the complaint does not in my view cast any doubt on K.M.’s evidence. In the Irish case of PC V DPP [1999] 2 IR 25 it was said: “It appears that rational consideration of abusive events is frequently suppressed for complex personal, family and social reasons.”
It was not the Appellant’s complaint before the Trial court that delay in prosecuting him, has caused him irreparable prejudice in making his defence, for example irretrievable loss of evidence due to unavailability of witnesses who could testify to prove his innocence, destruction or loss of crucial documents or exhibits that were relevant. His position before the trial court is one of a total denial and that K.M. should not have been believed by the Trial Judge in view of her delay in complaining against him. Had the Appellant’s position been that he was unable to prepare a proper defence in view of the delay, that may have been a matter for the consideration of the court as stated in United States case of Barker v Wingo, [1972] USSC 144; 407 U.S. 514 .
The judgment in Sanderson v Attorney-General, Eastern Cape [1997] ZACC 18, Constitutional Court of South Africa; points out that in determining delay it is not only the interests of the accused that must be borne in mind. In making a value judgment, courts must be constantly mindful of the profound social interest in bringing a person charged with a criminal offence to trial, and resolving the liability of the accused. In Zanner v Director of Public Prosecutions, Johannesburg, [2006] ZASCA 56; 2006 (2) SACR 45 (SCA) it was held “The right of an accused to a fair trial requires fairness not only to him, but fairness to the public as represented by the State as well. It must also instil public confidence in the criminal justice system, including those close to the accused, as well as those distressed by the horror of the crime.” The Supreme Court of Ireland in the case of B V DPP [1977] 3 IR 140 held that the defendant’s right to a trial with reasonable expedition was to be balanced against the right of the community to have offences prosecuted.
21.In the case of Bothma V Els & Others (CCT 21/09) [2009] ZACC 27 it was held that the specific nature of the offence should be considered in considering whether the lapse of time (37 years) was unreasonable. Sexual abuse is one of the most humiliating and embarrassing complaints to make by any victim. The Court in Bothma stated: “Society demands a degree of repose for its members. People should be able to get on with their lives, with the ability to redeem the misconduct of their early years. To prosecute someone for shoplifting more than a decade after the event could be unfair in itself, even if an impeccable eyewitness suddenly came forward, or evidence proved the theft beyond a reasonable doubt. Everything will depend upon the circumstances. All the relevant factors would have to be weighed on a case-by-case basis. And of central significance will always be the nature of the offence. The less grave the breach of the law, the less fair will it be to require the accused to bear the consequences of the delay. The more serious the offence, the greater the need for fairness to the public and the complainant by ensuring that the matter goes to trial. As the popular saying tells us “Molato ga o bole” (Setswana) or “ical’aliboli” (isiZulu) – there are some crimes that do not go away.” The Court in Bothma went on to say: “Complainants should be encouraged rather than deterred when, breaking through feelings of fear and shame, they seek to bring to light past abuses against them. A notable feature of recent decades has been the manner in which adult women have through newly discovered insight found themselves suddenly empowered to come to grips with and denounce sexual abuse they had suffered as children.”
22.In Van Zijl v Hoogenhout, 2005 (2) SA 93 (SCA), (Supreme Court of South Africa); the victim, at the age of forty-eight, sued her uncle for sexual abuse during eight years of her childhood and court held that delay was not a bar to the prosecution of the abuser. The Supreme Court of Appeal accepted that rape had the inherent effect of rendering child victims unable to report the crime, sometimes for several decades, and that the policy was not to penalise them for the consequences of their abuse by blaming them for the delay. In S v Cornick and Another 2007 (2) SACR 115 the rapes for which the appellants had been convicted occurred in 1983, some nineteen years before the complainant laid charges against them. The complainant was then a child of fourteen and the appellants some four years older. The complainant testified that she did not realise until her mid-twenties that she had been raped. She attempted to bury the ordeal in the back of her mind, though she said that she had become even more withdrawn a child than she had been before. She said that she had “lived a lie”.
23.In the Supreme Court of Canada case of R. v. D.D., [2000] 2 S.C.R. 275, where the facts were similar to the instant case, the complainant alleged that the accused had sexually assaulted her when she was 5 to 6 years old. The complainant told no one about these events for two and a half years. At trial, defence counsel cross‑examined the complainant, who was 10 years old at the time, on the lengthy delay in reporting the incidents and suggested that she had fabricated the story. It was held that: “The doctrine of recent complaint in sexual assault cases as a principle of law no longer exists in Canada and a failure to make a timely complaint must not be the subject of an adverse inference based upon rejected stereotypical assumptions of how persons react to sexual abuse. A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.”
In R v L (W.K.) [1991] 1 R.C.S. at 1091 the Supreme Court of Canada held that a stay of prosecution should not have been issued by the trial court in a matter where a man was charged with having sexually assaulted his step-daughter and daughters over a period that had started thirty years before. A unanimous Court held:
“It is well documented that non-reporting, incomplete reporting, and delay in reporting are common in cases of sexual abuse. The 1984 Report of the Committee on Sexual Offences against Children and Youths (the Badgley Report), vol. 1, explained at p. 187 that:
‘Most of these incidents were not reported by victims because they felt that these matters were too personal or sensitive to divulge to others, and because many of them were too ashamed of what had happened. . . . For three in four female victims and about nine in 10 male victims, these incidents had been kept as closely guarded personal secrets.’
For victims of sexual abuse to complain would take courage and emotional strength in revealing those personal secrets, in opening old wounds. If proceedings were to be stayed based solely on the passage of time between the abuse and the charge, victims would be required to report incidents before they were psychologically prepared for the consequences of that reporting”
In New Zealand the Court of Appeal in W v Attorney-General [1999] 2 NZLR 709 observed:
“Approaching the question whether she made the connection between her sexual abuse and adult behaviour, or ought to have discovered that connection, as if it were an exercise akin to that of discovering cracks in a house foundation, does not demonstrate any great understanding of the subject or sensitivity to the psychological and emotional problems suffered by a woman in Ms W’s position. . . Some women never complain. Others delay complaining for many years, if not decades. The reasons why women refrain from or delay in making a complaint may be subtle and difficult to comprehend, forming part of the rape trauma syndrome suffered by many women in the aftermath of rape or sexual assault…While there may be a public interest in granting certain classes of defendant statutory immunity from being sued after a defined time, there cannot be any public interest in protecting the perpetrators of sexual abuse from the consequences of their actions …the patent inequity of allowing these individuals to go on with life without liability, while the victim continues to suffer the consequences, clearly militates against any guarantee of repose.”
In R v Smolinski, [2004] EWCA Crim. 1270 the Court of Appeal in England upheld an appeal on the facts against the conviction of a man who at the age of sixteen (twenty years earlier), had allegedly indecently touched two sisters aged six and seven when acting as their babysitter. Lord Chief Justice Woolf concluded:
“We hope we have made clear two things in the course of hearing this appeal. One is that we discourage applications [for stay of prosecution] based on abuse of process] in cases of this sort. Secondly, where evidence is given after so many years, the court should exercise very careful scrutiny at the end of the evidence to see whether or not the case is safe to be left to jury. If there is an appeal, then this court will scrutinise the situation with care. We are certainly not indicating that it is not right to bring prosecutions in the appropriate circumstances merely because of the period that has elapsed. As this Court appreciates, it is sometimes very difficult for young children to speak about these matters and therefore it is only many years later that they come to light. Justice must be done of course to a defendant, but the court must also be mindful of the position of the alleged victims.”
Several Irish cases have held that that there was no specific prejudice caused by delay. In SF V DPP [1999] 3 IR 235, it was held that there was no specific prejudice caused by the delay of almost 8 years, where a Roman Catholic curate charged with 66 counts of indecent assault or gross indecency against eight boys aged 11 or 12 years. In RC V DPP [2005] IEHC 97 the court refused to grant an order on prohibition of prosecution where the charges pertaining to the incident dated back 21-23 years. In the Irish cases of PJC V DPP [2005} IEHC 98, JO’C V DPP [2000] 3 IR 478 and SA V DPP [2005] IEHC 262, the court held that delay in making the complaint of sexual abuse was not a bar to the prosecution of the accused.
For the reasons enumerated above, I dismiss ground (I) of appeal.
At ground (II) of appeal, the Appellant has complained K.M.’s evidence was ‘shaky’ and hence casts doubt as to her credibility. The Appellant has not explained why K.M.’s evidence is ‘shaky’, and therefore this ground is vague and should not be entertained by the Court in view of the provisions of rule 18(7) of the Court of Appeal of Seychelles Rules which states: “No ground of appeal which is vague or general in terms shall be entertained, such as, that the verdict is unsafe or that the decision is unreasonable or cannot be supported by evidence”. Whatever the Appellant may have meant by stating that K.M.’s evidence was ‘shaky’, the learned Trial Judge had stated at paragraph 15 in his judgment that he has carefully observed K.M.’s demeanour and candour and found that despite the understandable inconsistencies, she was a witness of truth. I have perused K.M.’s evidence carefully and find there are no material inconsistencies in her evidence as to cast any reasonable doubt as to the truthfulness of her evidence, taking into consideration the age at which she had been abused and the age at which she testified before the court. In the case of Trevor Zialor V R (SCA 10 of 2016) [2017] SCCA 42 (December 2017) this Court said, “Inconsistencies must, therefore, be measured by the yardstick of seriousness and materiality which must be linked with the overall issue of truthfulness. Not every inconsistency is serious and material, and inconsistencies need not affect per se the appreciation by a trial court that a particular witness’s testimony is true.” I therefore dismiss ground (II) of appeal.
Ground (III) of appeal is flawed, since the Appellant’s evidence before the Trial Court was a mere denial of the two charges levelled against him and there was nothing “to appreciate and assess sufficiently the case of the Appellant before the Court”. The fact that the Appellant had said that he treated K.M. as his own, as he had a daughter of the same age, is a mere statement that the Appellant had said in his defence. As stated at paragraph 14 above, the Appellant had not even suggested to P.V, the mother of K.M., while she was giving evidence about the manner he treated K.M as claimed in his defence. It is for this reason that the learned Trial Judge had stated at paragraph 43 of his judgment, as referred to at paragraph 15 above, “the accused whether in his evidence under oath or through the cross examination of the virtual complainant and her witnesses has not brought up any issues that would have served to cast a doubt in the court’s mind.” and that the “defence testimony has not impressed the court.” I therefore dismiss ground (III) of appeal.
As regards ground (IV) which is against the sentence of 14 years on each of the two counts ordered to run concurrently, the Appellant had urged that it is manifestly harsh and excessive in that the trial judge failed to take into consideration the factors the Appellant presented in his mitigation before the Trial Court. In mitigation of sentence at the trial, Counsel for the Appellant had stated that he is “a first time offender with no previous records of any sort, an exemplary Police Officer, is a man of 36 years of age, has 3 dependent children aged 15,12 and 8 years who relied on him.” As regards the prescribed minimum sentence of 14 years that could have been imposed in respect of each of the two charges according to section 131 of the Penal Code referred to at paragraph 6 above, Counsel for the Appellant has placed reliance on section 26(1) of the Penal Code to argue that the Court has power to consider a sentence even below that period. Section 26 (1) states: “A person liable to imprisonment for life or any other period may be sentenced for any shorter term.” Counsel for the Appellant has also relied on three 2008, 2014 and 2016 cases to show the sentencing pattern of the Court in relation to offences of sexual assault.
The learned Trial Judge has at paragraph 5 of his Sentencing Order, contrary to what the Counsel for the Appellant has argued, taken into consideration all the personal circumstances stated in mitigation. In my view, family circumstances of the Appellant outlined by his Counsel should not be taken in his favour, as he ought to have thought about this. Further, there is no proof of this. Even the Appellant had not testified to the effect that he has three children who are dependent on him when he testified. 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: Provided that where the victim of such assault is under the age of 15 years and the accused is of or above the age of 18 years and such assault falls under subsection (2)(c) or (d), the person shall be liable to imprisonment for a term not less than 14 years and not more than 20 years…” The Appellant had been convicted of offences under section 130 (2) (d). In my view because of the proviso, it should only be in exceptional circumstances, like that of the Appellant suffering from a terminal illness, the Court may place reliance on section 26(1) and pass a sentence below 14 years. I am conscious that Court is not bound by minimum mandatory sentences as stated by this Court in Poonoo V Attorney General 92011) SLR 424.
The facts and circumstances of this case do not show that there are any of the widely accepted grounds for an appellate court to disturb the sentence imposed by the Sentencing Court. The learned Trial Judge had in passing sentence placed reliance on the 2024 decision in R V GB (CR 51 0f 2020) where it was stated: “Much as the Court should be guided by a pattern of previous sentences in similar cases, it must be acknowledged that time and circumstances do often combine to make cases dissimilar for the purpose of sentencing.” As stated at paragraph 24 above the cases referred to by Counsel in mitigation before the Trial Court are those that had happened over a decade ago. Counsel for the Appellant had also relied on three 2008, 2014 and 2016 cases to show the sentencing pattern of the Court in relation to offences of sexual assault. In doing so, he had failed to mention the case of Morel V R SCA CR 18/2019, whereby this Court upheld a sentence of 14 years in December 2020 against the appellant, for sexual assault of his stepdaughter who was 12 years at the time of the sexual assault. In the case R V N.A CO 29/21, the Supreme Court on the 26th of March 2025 had imposed a sentence of 14 years on the accused for sexual assault of a 9-year-old girl. It was stated, in R V D.S. (2019) SCSC 55, that lenient sentences in cases of sexual assault of young children by paedophiles: “do nothing more than to accentuate such degenerate behaviour, perpetuate the suffering of victims and perniciously normalise such deviant behaviour in an already dysfunctional society.” This Court has seen an increase in crimes of this nature, namely sexual assault of young children by paedophiles. Accused persons convicted of such offences shall not expect leniency from the Courts. A society that fails to protect its children is a society in terminal decline.
The learned Trial Judge had at paragraph 8 of his sentencing order stated as follows, with which I agree:
“In reaching its decision, the Court considered not only the circumstances that could mitigate the sentence but also those that could aggravate it. With regard to this case, the Court found the following facts to be particularly relevant:
The victim was very young.
The convict was a stepfather and a guardian.
The convict was a person of trust over the victim and abused that trust.
The convict was a police officer.
The victim was sexually penetrated on more than one occasion.”
In my view the sentences of 14 years imposed on the Appellant in respect of both counts is certainly not “manifestly harsh and excessive”.
I therefore have no hesitation in dismissing the appeal against both conviction and sentence.
Counsel Camille is not to be paid any legal aid fees for this appeal.
_________________
Fernando President
I concur: _________________
F. Robinson JA
I concur: _______________
S. Andre JA
Signed, dated and delivered at Ile du Port on 22 April 2025.
8
Cited documents 3
Judgment 2
| 1. | Trevor Zialor v R (SCA 10 of 2016) [2017] SCCA 42 (6 December 2017) | 8 citations |
| 2. | Louise v R (SCA CR 10 of 2020) [2021] SCCA 72 (17 December 2021) | 1 citation |
Act 1
| 1. | Penal Code (Amendment) Act, 2012 | 20 citations |