R v GL (CO 74 of 2021) [2023] SCSC 427 (9 June 2023)

DODIN J.

 

1. The Accused, GL, stands charged with the following two counts:

Count 1

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 (4)(b) of the same Act.

 

Particulars of offence

GL, 38 years old, currently resident at [____], Mahe, on the 4th July 2021, at the residence of SC in [____], Mahe, sexually assaulted SC, a person incapable of giving consent by being a mentally handicapped person, by penetrating the body orifice namely vagina of the said SC with his penis for a sexual purpose.

Count 2

Statement of offence

Burglary Contrary to Section 289 (a) of the Penal Code and Punishable under Section 289 of the same Act.

Particulars of offence

GL, 38 years old, currently resident at [____], Mahe, on the 4th July 2021 at around 10 o’clock in the evening, at the residence of SC in [____], Mahe, broke and entered into the said building and sexually assaulted SC, a person incapable of giving consent by being a mentally handicapped person therein, by penetrating the body orifice namely vagina of the said SC with his penis for a sexual purpose. 

2. The prosecution called 6 witnesses. Wpc Karine Derjacques testified that she took an undercaution statement from the Accused. The statement was admitted as an exhibit and read as follows:

STATEMENT BEFORE FORMAL CHARGE OF GL OF [____]

 

States:

Started at 1628 hours

 

I am living at [____] with my partner VS and also my four children, [____] aged 17 years old, [____] aged 11 years old, [____] aged 4 years old, [____] aged 15 months.  I would like to say that there is about two months that I met a woman namely SC who lives at [____] not far from where I live.  I have seen that woman but I have never had any conversation with her.  About two months ago I met her on the road, it was around 10 o’clock in the morning and I started talking to her.  Very often when I would see her on the road we would speak to each other.  Then we started a sexual relationship but nobody knew about it.  We had sex amongst the casuarinas trees, in that “Short cut” road [____]at [____].  That road leads to the other side where there are flats at [____].  In the beginning I used condoms but then I did not.  I would like to say that S had never told me to stop or not to have sex with her.  She had always agreed.  I treated her well and I never did anything wrong with her.  I cannot remember which day or date during this month of July; I remember I was drinking earlier.  Then, I cannot remember the exact time, but I believe that it was after 10 o’clock at night, I went to S’s house.  I went the windows of her bedroom and knock on the window blades.  I would like to say that S lives in a flat on the ground floor in a block of flat and I know where her bedroom is because she had told me before.  When I had knocked on the window blades, S pulled aside the curtains and when she saw me, I told her to open the door.  But she told me that the key is with the old man who lives with her.  She then told me to remove the window blades.  I removed two window blades and I went inside.  In that bedroom there were no beds, only a mattress on the floor.  We sat down on the mattress and we spoke like we usually do when we meet.  Then we had sex just like we usually do amongst the casuarinas trees.  We have always had sex in her vagina and never in her backside.  We also kiss.  When we finished having sex, I told S I have to go because it was getting late.  She then told me to wait and she went out of the bedroom and went towards the kitchen.  She then came back and told me that the key is on the door on the kitchen door.  So I went out of the bedroom and into the kitchen.  S unlocked the door and told me to go.  I went out and told her bye.  When I was outside the door, I heard S locking the kitchen door.  I then went to Rochon at my mother’s.  I went by foot and tried to hide on the way as it was passed the time that one should one the road.  I would like to say that I did not go to my partner that night because a couple of days before we have had an argument and I went to stay with my mother.  I would like to state that that night that I went over to S’s place; I was wearing a white t-shirt and black or blue “Puma” short.  The bag that I go to work with was not with me when I was going to S because I had placed it amongst the casuarinas trees, in a “parking”.  It is a black bag same as a laptop bag except that it is a backpack.  After the day that I left S’s place I did not come again at [____] except last weekend when I came to bring some items for my children.  I cannot recall if it was Friday or Saturday that when I was at [____], I went to the shop to buy beer and I met a man whom I know him as “S” who was at the shop.  He called out to me and told me that he has heard that I have raped somebody in [____].  I told him that if I have done something wrong then the police shall come and get me and that I am still working at the port.  I then left him and went back to my partner at [____].  Later on I went back to my mother’s place at Rochon.  The night before yesterday, my partner called me and told me what is happening, as people are saying that I am hiding and that “S” had told her that I have raped somebody at [____].  So I told her, how come I have raped somebody but the police have not come to get me yet.  I told him that they know where I live and where I work so why is it that the police had not come to look for me.  I told her that this is a bad charge that they are putting on me and that is a false accusation.  I would like to add that “S” and my partner had never told me who is that person that I had raped there at [____].  Yesterday, Wednesday 14th July 2021, I was at my partner the whole day and I slept over there as well.  Today, Thursday 15th July, I was still at [____] during the day.  I do not recall what time was it but it was past noon and I received a phone call.  It was from a number which I do not know and the voice as well.  When I answered the call, the male voice told me that they are trying to get in contact with my partner, V.  So I gave V the phone number that the person had said he is CID, called me from.  At that time, V was at work at the [____] School.  Then the same person called me again and told me to come to the police station to clarify something.  When I arrived at the [____] police station, I saw three officers in civil clothes who told me they are arresting me on a sexual assault charge registered against me.  I would like to say that the accusation against me is not true because I was in a relationship with S and it is true that I went over at her place that night but I have not abused her and we had sex same as we usually do when we meet.  I did not let anyone know that I am having relationship with S because I have my partner also.

Ended at 1804 hours.”

 

3. Sergeant Chirelle Lau-Tee, a forensic psychiatrist, testified that she examined SC, the alleged victim and virtual complainant. She testified that after the examination of SC she concluded that SC suffered from paranoid schitzophrenia and she found that she was already receiving anti-psychotic treatment from Seychelles Hospital. SC had limited ability to understand questions as she is mentally impaired and has difficulty to relate or explain events. However SC gave the impression that she knew the Accused. The witness testified that she concluded that SC was not competent to give informed consent but she gave the impression that she understood what sexual intercourse is not about rather than what it was about. The witness was further of the opinion that SC would not be able to understand and participate in the court process as it could leave her confused and distressed. However she did not direct the Prosecution not to bring her to court.
4. Aaron Telemaque testified that he saw the Accused at the door of SC’s house on the night in question between 10.30 and 11 pm. Corporal Jean-Phillipe Lucas tesfified rha he took photographs of the inside of the house of SC and lifted fingerprints which he delivered to Inspector Ralph Agathine for analysis. Inspector Agathine testified that the fingerprints were those of the Accused.
5. Doctor Leonel Guerra Rosales, a gynacologist,  testified that he examined SC and found no skin marks and her genital both internal and external to be normal. She was not a virgin but there was no sign of recent sexual activity and no discharge from her vagina.
6. At the close of the case for by the Prosecution, learned counsel for the Accused made a submission of no case to answer. Learned counsel filed the following written submission which is reproduced in full hereunder:

“Absence of Complainant

The Prosecution deliberately refused to call the complainant to testify, on the pretext that she is mentally disabled and cannot give evidence in court.  For unknown reasons the other occupants of the complainant’s home were also not called as witnesses despite the fact that all of them including the main complainant gave statements to the Police.

A request to produce the witnesses via skype was also turned down by the prosecution.

The other witnesses who were mostly Police Officers failed to adduce any evidence to support allegations either of the complainant being sexually assaulted or that the Accused committed the offence of burglary.

Non-appearance of complainant at hearing

Section 176 of the Criminal Procedure Code stipulates as follows:-

If, in any case which a Court has jurisdiction to hear and determine, the accused person appears in obedience to the summons served upon him at the time and place appointed in the summons for the hearing of the case, or is brought before the Court under arrest, then if the complainant, having had notice of the time and place appointed for the hearing of the charge, does not appear the Court shall dismiss the charge, unless for some reason it shall think it proper to adjourn the hearing of the case until some other date, upon such terms as it shall think fit, in which event it may, pending such adjourned hearing, either admit the accused to bail or remand him to prison, or take such security for his appearance as the Court shall think fit.

Support for the defence may stem from any of the evidence before the Court, including the Prosecution case-in-chief and the testimony of the complainant.  However, as a practical matter, this defence will usually arise in the evidence called by the accused.

If this evidence raises a reasonable doubt as to the accused’s mens rea, the charge is not proven.

The Prosecution called other witnesses and no evidence was adduced to connect the Accused to any of the offences above-mentioned. 

No Case To Answer

Section 183 of the Seychelles Criminal Procedure Code (SCRC) stipulates that “if at the close of the evidence in support of the charge, if it appears to the court that a case is not made out against the accused person sufficiently to require him to a make a defence, the Court shall dismiss the case and shall forthwith acquit him.

Burden Of Proof - Proof beyond reasonable doubt

Under the above provision (SCRC) the Accused is entitled to be discharged if there is no evidence that he committed the offences charged.  When considering whether to discharge the accused, the Court must be satisfied that the Prosecution has not made a prima facie case against him.

In our system of law all persons accused of crimes are presumed innocent until their guilt has been proven beyond reasonable doubt.  The rule in our system of law is that the burden of onus of proof is on the Prosecution to prove the guilt of the Accused who does not have to prove his innocence.

Proof beyond reasonable doubt

In our system, the State has to prove the guilt of the Accused beyond reasonable doubt.  Proof beyond reasonable doubt cannot be subject to exact measurement.  It is a matter of degree.  Proof beyond reasonable doubt does not mean proof to an absolute degree of certainty.  It means that there should be such proof as leaves no reasonable doubt in the mind of an ordinary man capable of sound judgment and of appreciating human motivations.  It means a high degree of probability, not proof beyond a shadow of a doubt.  To be a reasonable doubt, the doubt must not be based on pure speculation but must be based upon a reasonable and solid foundation created either from the positive evidence or gathered from reasonable inference not in conflict with or outweighed by the proved facts.  It is sometimes said that the Accused should not be convicted unless there is moral certainty as to his or her guilt.  However, it is not necessary for the prosecution to prove every single individual fact in a criminal case beyond reasonable doubt although the Prosecution must prove beyond reasonable doubt a fact which is particularly vital and upon which the while State case hinges.  The question which needs to be asked is: do all the facts taken together prove guilt reasonable doubt?  Even a number of lines of inference, none of which would be decisive, may in their total effect lead to there being proof beyond reasonable doubt.

In R vs. Lepere (1971) SLR 112, R vs. Stiven (1971) SLR 137, R vs. Olsen (1973) SLR 188, R vs. Marengo (2004) SLR 116 and R vs. Matombe (No. 1 (2006) SLR 32, it was held that:

1. There is no case to answer when there is no evidence to prove an essential element in the alleged offence or
2. The evidence adduced by the Prosecution has been so discredited as a result of the cross-examination, or is so manifestly unreliable, that no reasonbale tribunal could safely convict upon it.
3. If a submission is made that there is no case to answer, the court should make a decision based on whether the evidence is such that a reasonable court might convict the accused and not whether the court, if compelled to do so, would at that stage convict or acquit the accused.
4. Where a court comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is the duty of the court, upon a submission being made, to stop the case.
5. Where the prosecution evidence is such that its strength or weakness depends on the view to be taken on the reliability of a wintess or other matters within the province on of the jury, and where no one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.
6. Before making a decision on a submission of no case to answer, the judge must wait until the conclusion of the prosecution’s submissions.

Discharge At The End Of Case For The Prosecution

In Tsvangirai & Ors HH-119-03, the judge stated that the court shall return a verdict of not guilty if at the close of the State’s case the court considers that there is no evidence that the accused committed the offence charged (or any other offence with which he could be convicted on that charge).  Thus, the court must discharge the accused at the close of the case for the prosecution where there is no evidence to prove an essential element of the offence; there is no evidence on which a reasonable court, acting carefully, might properly convict; the evidence adduced on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it.  Instances of the last such cases will be rare; it would only in the most exceptional case where the credibility of a witness is so utterly destroyed that no part of his material evidence can possibly be believed.

The Accused must obviously be discharged if the State has been unable to lead any evidence whatsoever of the commission of the crime charged.  If the entire case against the Accused has collapsed, one would expect the prosecution to withdraw the charge.

Usually, some evidence will have been advanced by the State.  The test to be applied is whether a reasonable court might convict the Accused on the basis of that evidence.  In Hartlebury & Anor 1985 (1) ZLR 1 (H), McNally J elaborated further on the application of this test.  He said that a court may order discharge where there is no evidence on which a reasonable court may convict.  It may also order discharge where the evidence adduced by the prosecution is so discredited or manifestly unreliable that no reasonable court could safely act upon it or where there is no evidence to prove an essential element of the offence.  These latter two grounds for discharge seem only to be particular illustrations of where the evidence adduced would not allow a reasonable court to convict.  A reasonable court could not convict where the evidence led is totally unreliable or the State has failed to prove one of the essential elements of the crime charge.

In Attorney-General vs. Bvuma 1987 (2) ZLR 96 (s), the Supreme Court decided that if the evidence led by the State is insufficient for a reasonable Court to convict, the trial should not refuse to discharge the Accused at the close of the State case because it thinks that if the Accused is put to his defence he could possibly provide a missing link in the State case.  In other words, the onus is on the State to prove the guilt of the Accused.  If the State fails to produce evidence upon which a reasonable court could convict, the court should discharge Accused.  It should not speculate on the possibility that the gaps in the State case might be plugged during the course of the defence case.

In the light with the above arguments the Defence prays the Honourable Court to dismiss all charges against the Accused.

 

7. Learned counsel for the Prosecution made the following submission in reply, which is also reproduced hereunder:     

ABSENCE OF COMPLAINANT/NON-APPEARANCE OF COMPLAINANT AT HEARING

Section 176 of the Criminal Procedure Code states as follows:

“If, in any case which a Court has jurisdiction to hear and determine, the accused person appears in obedience to the summons served upon him at the time and place appointed in the summons for the hearing of the case, or is brought before the Court under arrest, then if the complainant, having had notice of the time and place appointed for the hearing of the charge, does not appear, the court shall dismiss the charge, unless for some reason it shall think it proper to adjourn the hearing of the case until some other date, upon such terms as it shall think fit, in which even it may, pending such adjourned hearing, either admit the accused the bail or remand him to prison, or take such security for his appearance as the court shall think fit.”

This section that the defence is relying on the say that the case should have been dismissed because the alleged victim did not come to give evidence is being misinterpreted by the defence.  First of all, in a criminal case the complainant is the Republic of Seychelles.  The prosecution when filing the charge on behalf of the complainant is the Republic of Seychelles.  In the present case it is no different.  The prosecution filed the charge together with a complaint dated 16th July 2021.

Secondly, section 176 of the Criminal Procedure Code relates to the time that an accused person appears in court because he has been served with a summons or is brought under arrest, and if at that time the complainant (which is the prosecution) does not appear in court having had notice of the case, then the court shall dismiss the case, unless for some reason it sees it fit to adjourn the matter to another date.  Therefore, it is clear from the reading of the section that this section is relating to the prosecution but not the alleged victim.  The prosecution’s duty before the court is to prove all the elements of the offences that the accused is being charged with beyond a reasonable doubt and they will have to bring witnesses to testify and give evidence to prove the charges.  There is no obligation on the prosecution to bring the alleged victim as a witness to testify if the prosecution feels that there is other independent evidence in the case that can be used to prove the charges against the accused person like in the present case.  The other cases that the alleged victim cannot come to give evidence but still can be proved without them are murder, manslaughter or other related cases where the victim has passed away or is unable to come to court to testify.

No Case To Answer Application

In the case of R vs. Stiven 1971 SLR No 9 at page 137 it was held what the court has to consider at the stage of a no case to answer application are whether:

a.         There is no evidence to prove the essential elements of the offence charged.

b.         Whether the evidence of the prosecution had been so discredited or is so manifestly unreliable that no reasonable tribunal could safely convict.

Archbold in Criminal Pleadings Evidence and Practice 2008 edition at page 492  sets out the principle in a no case to answer application.

“A submission of no case should be allowed where there is no evidence upon which, if the evidence adduced were accepted, a reasonable jury, if properly directed, could convict.”

In David Sopha & Anor vs. Republic SCA2/1991 the Seychelles Court of appeal held:

“In considering a submission of no case to answer, the judge must decide whether the evidence, taken at its highest, could lead to a properly directed jury convicting the accused.  If so, the case should be allowed to go to the jury.”

In the submission of the defence counsel for an application of no caset to answer, it is unclear on what grounds that they are basing their application on.  It is not clear as to whether the application is based on the lack of credibility or non-proving of an essential element of the offence.  It appears to be the latter as the submission has lengthily narrated about the burden of proof and that the prosecution need to prove its case beyond reasonable doubt.  Even then, in the submission defence counsel did not relate the law with the facts of the case that he is stating has not been proved by the prosecution beyond a reasonable doubt.  The submission of the defence is more like an academic writing about the law than proving why the prosecution case does pass the test in Stiven (supra) to prove that there is no case to answer for the defence in the case.

The prosecution has managed to prove a prima facie against the accused person for the offences charged.  In applying the test in Stiven (supra) the prosecution had managed to prove:

There is evidence to prove the essential elements of the offence charged.

The accused person did not object for his statement under caution to be marked as an exhibit and therefore be used as evidence.  In his statement under caution he confessed that he went to the house of SC on the night of the 4th July 2021 at [____] at her residence and that he had sexual intercourse with the said SC.  He also stated that he entered the house on that night through the window by removing the louver blades.  The evidence of the forensic expert through the photographs taken and the fingerprint lifted at the scene matching that of the accused person corroborates the confession that he was present at the residence of SC and that he entered the house through the window.  There is also the evidence of Aaron Thelemaque a witness who saw a man fitting the description of the accused revoring around the house of SC and later heard a scream from the said house around the same time on that date.  It appears from the defence of the accused although not clear, that he is not contesting that the act of sexual intercourse tok place but rather that the act was consensual.

The prosecution admitted into exhibit a detailed mental health assessement report prepared by a forensic psychologist who also testified in court to prove that SC was suffering from a mental condition and therefore was incapable of providing informed consent to the act of sexual intercourse.  It is to be noted that defence did not challenge the expertise of the forensic psychologist nor managed to discredit her evidence.

The prosecution managed to bring sufficient evidence before the court to prove all the elements of the offence.

Whether the evidence of the prosecution had been so discredited or is so manifestly unreliable that no reasonable tribunal could safely convict

The defence did not manage to discredit or prove in any way in their submission how the evidence of the prosecution is so manifestly unreliable that no reasonable tribunal could safely convict. 

In conclusion, the prosecution has managed to prove a prima facie case before the Court and there is a case to answer, therefore the accused person should be called to make a defence for the case brought against him”.

8. It is now trite law that there are two main reasons that would allow the Court to uphold a submission of no case to answer:
   1. 1. Whether all the elements of the offence have been established by the prosecution and therefore established a prima facie case against an accused.
      2. Whether the available evidence has been so compromised by the defence or by serious inconsistencies in the prosecution’s testimonies that such evidence taken as its highest would not properly secure a conviction.
9. It is true that learned counsel for the Accused did not specify which limb the Accused was relying upon in his submission of no case to answer. However, reading the submission filed for the Accused it is clear that learned counsel’s argument is that the Prosecution has not brought sufficient evidence to establish a prima facie case against the Accused because there was no direct evidence that there was lack of consent. It must be kept in mind that the offences with which the Accused has been charged occurred in the presence of only the Accused and the virtual complainant SC.  
10. At this stage of proceedings, in a submission of no case to answer, the Accused must convince the Court that the prosecution has failed to establish a prima facie case against the Accused. The prosecution still retains the burden of proving that it has established a prima facie case which would result in the Accused being called upon the present a defence. Hence in order to determine whether an accused has a case to answer, the Court must make an assessment of the evidence by considering the elements of the offence that need to be established by the prosecution and determine whether a prima facie case has been made by the prosecution against the Accused.
11. The assessment made must be of the evidence as a whole and not just focus on the credibility of individual witnesses or on evidential inconsistencies between the witnesses. Nevertheless where the prosecution’s evidence fails to address a particular element of the offence at all, then no conviction could possibly be reached and the Court must allow the application of no case to succeed. Where there is some evidence to show that the Accused committed or must have committed the offence but for some reason such evidence seems unconvincing, the matter is better left for the end of the trial where the evidence would be weighed and the Court would reach a verdict after assessing the witnesses’ credibility together with all available evidence.
12. Further, where the evidence before the Court has been so compromised by the defence or by serious inconsistencies in the prosecution’s testimonies, the Court is entitled to consider whether the evidence adduced taken as its highest would not properly secure a conviction. If the Court determines that in such a circumstance a conviction could not be secured, the submission of no case must also succeed.
13. The case of R v Galbraith [ 1981 ] 1 WLR 1039 is considered to be the leading case where Lord Lane C.J. summarised the principles to be considered in considering a no case submission:

“How then should a judge approach a submission of ’no case‘?
 If there has been no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence. Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’ reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury ... There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.”

The above principles have been well reflected in the cases of Green v R [1972] No 6, R v. Stiven [1971] No 9 and R v. Olsen [1973] No 5.

14. Both learned counsel have set down the principles to be applied by the Court in determining whether a submission of no case to answer should succeed. Both are not disputing the fact that the Accused on the night in question entered the house of SC through a window after removing some louver blades and had sexual intercourse with her and later in the evening left through the kitchen door. The Accused also stated as much in his statement maintaining that all was done with the consent of SC with whom he had been having an intimate and sexual relationship for sometime. The only contention is whether all the acts of the Accused was with the consent of SC, the virtual complainant.
15. The case for the Prosecution is that whether there was consent given by SC, it was not valid consent since the evidence showed that SC was incapable of giving consent due to her mental disability. The evidence of Sergeant Lau-Tee is relied upon heavily by the Prosecution. That evidence does not rule out that SC might have actually and vocally consented to the Accused removing the louver blades to enter the house and agreed to engage in sexual intercourse with the Accused. The Prosecution relies on section 130(3)(c) which states:

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

However in all criminal cases unless it is a strict liability offence, the Prosecution must also establish that the Accused had the necessary mental element to be made responsible for the crime.

16. The Prosecution seems to have failed to appreciate that whilst valid consent is indeed important, it must also establish that the Accused had at least reasonable or sufficient opportunity to know that SC could not give valid consent. To go with the Prosecution’s argument would lead this Court down the route to establish that a person with mental disability should not engage in any sexual relationship or act since the other party to the relationship or act would automatically commit an offence. I do not think the law intended that to be the case.
17. In the case of D Borough Council v AB  [2011] EWHC 101 the Court in considering the issue of capacity and consent to have sex maintained that:

“the only information relevant to giving consent which the person must understand and retain is (a) the mechanics of the act, (b) that there are health risks involved including STIs, and (c), for heterosexual relations only, that sex between a man and a woman may result in pregnancy.”

The same test has been maintained in the case of LB of Southwark v KA [2016] EWHC 661 (Fam).

18. The case of Republic v Elvis Cesar : Crim Side 14/2013 judgment delivered on 13 October 2017 is also enlightening on the aspect of consent by a person suffering from the same mental illness as the virtual complainant SC in this case. The conclusion reached by the psychiatrist who was actually treating the virtual complainant in that case is starkly contrary to the finding of Sergeant Lau-Tee in the present case. As the virtual complainant SC did not testify, the Court was unable to assess her level of the above understanding. The evidence of Sergeant Lau-Tee was not far-reaching enough to take into account the above test. I accept Sergeant’s Lau-Tee’s testimony and report as to SC’s disposition or lack thereof to attend and testify in court, but there was no evidence of her treatment for schitzophrenia which was being treated by the Seychelles Hospital and how such actually affected her knowledge of what sex is about.  
19. In conclusion, I agree with the Prosecution that the requirement for a virtual complainant to testify need not equate to the failure of proof that the offence was committed. However, the Prosecution needs to establish the mens rea of the Accused and that SC actually did not understand the mechanics of the act of sexual intercourse and the risks involved. Thus, the Prosecution failed to establish a case at all and hence failed to make out a prima facie case against the Accused on the first count of sexual assault.
20. In respect of the count of burglary, along the same line as the above findings, the Prosecution could not establish to the satisfaction of the Court that SC did not give consent to the Accused to remove the louver blades and enter the house. There is also lack of evidence to show that the Accused had the mental element that the consent was not valid. Since a person who is allowed to enter another person’s house through a window by the house owner cannot cannot be said to have committed a burglary by the mere aspect that he entered the house through the window, I must also find that the Accused has no case to answer on that count as well.  
21.  Consequently, the submission of no case to answer succeeds and is upheld for both counts. I therefore rule that the accused has no case to answer. The accused is therefore acquitted of both charges against him. 

 

Signed, dated and delivered at Ile du Port, Victoria on 09th day of June 2023

 

____________

C G Dodin

Judge