VIDOT J
The Charges
- The Accused stands charged with the following offences;
Count 1
Statement of Offence
Prohibited Recordings of Private Acts contrary to Section 157A (a) of the Penal Code and punishable under section 157A(c) of the Penal Code
Particulars of Offence
EP, during his sexual relationship with a person namely Ms. JD of 42 years of [REDACTED], Mahe, visually recorded their private acts and stored those recordings in his black mobile phone, make Samsung, model SM-A206G/DS without the consent of the said JD.
Count 2
Statement of Offence
Particulars of Offence
EP, on 22nd September 2020 at the premises of the STC Hypermarket, Mahe, was found in possession of prohibited visual recordings relate to a person namely Ms. JD of 42 years of age of [REDACTED], Mahe, which were recorded and stored by him in his black mobile phone, make Samsung, model SM-A206G/DS without the consent of the said JD.
Count 3
Statement of Offence
Threatening violence contrary to and punishable under section 89 (a) of the Penal Code.
Particulars of Offence
EP, on 22nd September 2020 at Mahe, with intent to cause alarm, constantly threatened a person, namely Ms. JD of 42 years of [REDACTED], Mahe with assault, and informing her that he will circulate the private photos of her in public by the WhatsApp social network.
The Evidence
(a) Prosecution
[2] WPC Karine Derjacques was on duty on 22 September 2020 when JD, the virtual complainant, registered a case at the Beau-Vallon Police Station. The report was made to Sgt. Eulentin, officer in charge of investigation at that time. So, they mounted an operation whereby they went to the parking of the STC Hypermarket. They went there because whilst JD was at their office, she was receiving calls from the Accused. When they got there, they located the Accused’s vehicle, he was in the vehicle and they blocked it. Sgt. Fred approached the vehicle first and Sgt. Eulentin instructed her to conduct a search of the car. That is confirmed by the latter. She found a phone which the Accused confirmed was his and she confiscated the same. It was a black Samsung mobile phone. Later the same was produced in court. Officer Esparon was given the phone in order to do some extractions.
[3] In fact, Detective Sgt. Mariana received the complaint from JD on 22nd September 2020. She had been shown WhatsApp messages and videos which confirmed the complaint. The video was that of a sexual act. JD had confirmed that the videos were filmed at [REDACTED] and at a house at [REDACTED]. Whilst JD was at the station and a statement was being recorded from her, the Accused was calling her, that is when a decision was made to mount the operation. He had asked that JD meets up with him. The operation is described by WPC Derjacques in her testimony. She adds that the Accused was arrested by Sgt. Fred. The normal and approved legal protocols were then adopted in dealing with the Accused. On 29th September 2020, she met with one [REDACTED] who showed her a message sent to him by the Accused.
[4] JD was in a relationship with the Accused. She described themselves as being partners. She testified that she had been in a relationship with him for 6 years before she received two WhatsApp videos as harassment from the Accused. That was in September 2020. That was video of them being intimate and another of her filmed at the Accused then residence. She explained that it was only in the video that was shot at [REDACTED] that she was engaged in sexual act with the Accused and the one at [REDACTED] was merely harassment. She explained that she was not forced to engage in sexual acts with the Accused and that she was drunk. She went to the Police. The Accused had threatened to share the videos on social media. She had accompanied the Accused to [REDACTED], where the sexual acts is alleged to have taken place. She was shown photos of the place at [REDACTED] which she identified as the place where the Accused was staying. She confirms that the video in that house was recorded by the Accused.
[5] She explained that at [REDACTED] [REDACTED], the Accused’s friend was in their company but not when they were having sex. Nonetheless, [REDACTED] testified that he and the Accused used to send each other videos via WhatsApp. The Accused had sent him videos and immediately after asked him to delete them but he had answered that if he wanted them deleted, he should do so himself. He gave the Accused his phone and he deleted them. He confirms that the Accused had a relationship with JD. JD was also adamant that it was the Accused who recorded the video. She recounted that when police were recording her statement, the Accused contacted him. He had asked her to meet him at the STC Hypermarket. The police then proceeded to the hypermarket.
[6] Cpl. Stephanie Agathe is attached to Scientific Support Unit of the Police force. On 29th September 2020 he took photographs of two scenes, that is at [REDACTED] and [REDACTED]. She was instructed by Sgt. Eulentin to attend to these scenes. She took pictures by following applicable police protocol. The same approved procedure was followed for developing the photos which was done at Photo Eden. The album of photographs was produced as exhibit P1. The photos depicted a house at [REDACTED] and the interior of the house too was photographed. It was later established by JD that that house at [REDACTED] was being rented by the Accused and that she used to meet with him at that residence since they were engaged in a sexual relationship. A lady opened up the house for them to have access. Then there were photographs shot at [REDACTED] among some bushes whereat JD testified she and the Accused had sex. She showed the Police those places where the allegedly incidents relating to the charges occurred.
[7] Officer Ivan Esparon has several years of experience in digital forensic and inter alia performs extraction on digital devices such as mobile phones, surveillance cameras, GPS devices and computers. He extracted videos and text conversation between the Accused and JD had.
[8] On 22nd September 2022, he received a request from WPC Karine Dick to perform WhatsApp conversation extraction from the phone of EP in respect of a particular number. That is call log and SMS messages to telephone number [REDACTED]. It was a Samsung phone model SM-A206G/DS. That phone contained two SIM cards. First slop was Airtel card number [REDACTED] and the second a Cable and Wireless card number [REDACTED]. He used a forensic PC to assist with the extraction. He explained the other tools used for the extraction. Once the extraction is done, he compiled a report and converted all the extracted conversation, videos and report on a CD which was produced to Court.
[9] Mr. Maxime Morel from Airtel produced the call log and text records coming from phone number [REDACTED] and [REDACTED] which according to Airtel’s record belong to the Accused and JD respectively. They showed that around the time of the incident, there were contacts between those two numbers. These contacts were through voice calls and WhatsApp messages. What is clear is that the owners of these phones were in regular contacts.
(b) The Defence’s Case
[10] The Accused decided to give testimony under oath. He described the relationship he had with JD which he says was an on and off relationship. The two had met in 2014. However, JD was involved in another relationship with another man at the same time. In 2019 he stopped seeing JD and he took up a job with North Island. However, he acquired a Cable and Wireless telephone number to allow him to continue have contact because his Airtel number could not be operated from that island. Despite being in the island the two would still meet whenever he came to Mahe. At times he would facilitate for her to have bed night on North Island
[11] He explained that he had little knowledge as to how to operate some features on his mobile phone and that it was JD who taught him how to operate certain applications. He denies that the videos shown in Exhibit 6 were recorded by him. He notes that his face is not seen in any of the videos. Through cross-examination Counsel for the Accused attempted to discredit the extraction of the videos and text messages that was performed by Officer Ivan Esparon. In his submission, in trying to cast doubts, he states that the software system used for extraction should have produced before court so that a demonstration of the same could be performed. Counsel also tried to cast doubt as to Airtel system of storing its digital data.
The Law
[12] Section 157A of the Penal Code provides:
“A person who observes or visually records another person in circumstances where a person would expect to be afforded privacy –
(a) without the other person’s consent; and
(b) when the other person is—
(i) in a private place; or
(ii) engaging in a private act; and
(c) the observation or visual recording is made for the purpose of observing or visually recording a private act, commits an offence and is liable on conviction to imprisonment for a term of 20 years.”
[13] Private act is defined under the Penal Code as; (a) bathing and showering, (b) using a toilet (c) any other activity where the person is in a state of nudity and (d) intimate sexual activity that is not ordinarily done in public. A private place is defined as a place where a person might reasonably be expected to be engaging in a private act.
[14] Section 157 C of the Penal Code provides that “a person who possesses a prohibited visual recording of another person having reason to believe it to be a prohibited visual recording, without the other person’s consent, commits an offence and is liable on conviction to imprisonment for a term of 20 years.”
[15] The definition section of the Code describes ‘prohibited visual recording of another person” as a visual recording of;
-
- the person in a private place or engaging in a private act made in circumstances where a person would expect to be afforded privacy;
- a visual recording of the person’s private parts when bare made in circumstances where a person would expect to be afforded privacy in relation to his or her private parts.
To my mind such prohibited visual recording can be by means of photography, film or videos.
[16] The offences under sections 157 A and 157 C followed amendments made to the Penal Code in 2012. This, I suppose was due a rise in similar offences, particularly with increase use of mobile phone devices; the amendment to the Penal Code was necessary to accommodate such offences. However, despite that there appears to be very little jurisprudence in respect of such cases. Nonetheless, there has been such offences prosecuted but in most of them the accused had pleaded guilty; see R v EH (CR52 of 2019) [2021] SCSC 853 and R v ML & Ors (CR38/2019) [2020] SCSC 491
[17] Nonetheless, it is trite that in order to establish the offences, the Prosecution bears the onus of discharging the burden of proof beyond reasonable doubt.
[18] Section 89 of the Code states;
“Any person who—
(a) threatens another with any injury, damage, harm or loss to any person or property with intent to cause alarm to that person, or to cause that person, to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as a means of avoiding the execution of such threat; or
(b) discharges any loaded firearm or commits any breach of the peace with intent to alarm any personis guilty of a misdemeanour and is liable to imprisonment for five years.
[19] Harm in this context means any bodily harm, disease, disorder whether permanent or or temporary. This suggests that when a person threatens another with violence, that threat must either be of a physical nature or harm to that person’s property.
Discussion
[20] In his submission, Counsel for the Accused addressed a point which has already been argued in a submission of no case to answer. A Ruling has been given and the Court stands by its decision. This concerns JD’s initial reluctance to testify in this case. It was obvious to the Count that that reluctance to testify happened because she did not want to face the Accused and knowledge that the compromising videos would be viewed in court. JD was informed by the Court that when one is called as a witness before Court, that person has to answer questions put to him. The Court drew Counsels’ and JD’s attention that such refusal amounted to a contravention of section 131(b) of the Criminal Procedure Code. Counsel submits that the evidence cannot be considered valid and genuine and therefore the Accused did not receive a fair trial. Article 19(1) of the Seychelles Constitution guarantees that “[E]very person charged with an offence has the right, unless the charge is withdrawn, to a fair hearing within a reasonable by an independent and impartial court established by law.” A fundamental element of fair trial is the right that a person is innocent until that person has pleaded or proven guilty; see Art. 19(2)(a) of the Constitution. Counsel for the Accused failed miserably to establish that the Accused was not allowed to exercise that right or that Rule of Law was not observed.
[21] Fair trial is an internationally recognised human right. It helps to establish the truth is vital to everyone involved in a case. It is the cornerstone of democracy, helping to ensure fair and just societies, and limiting abuse of state authorities. In order to ensure that the right is followed, there should be considerations of arguments of both sides in a case. Protecting the right to fair trial is not just about ensuring that the process leading up to and following a trial protects an individual fundamental rights. It is also about ensuring that our criminal legal system and the societies we live in are fair, equal and just.
[22] The essential elements of a fair hearing include:
(a) equality of arms between the parties to the proceedings, whether they be administrative, civil or criminal;
(b) equality of all persons before any judicial body without any distinction whatsoever as regards race, colour, ethnic origin, sex, gender, age, religion, creed, language, political or other convictions, national or social origin, means, disability, birth, status or other circumstances;
(c) equality of access by women and men to judicial bodies and equality before the law in any legal proceedings;
(d) respect for the inherent dignity of the human persons, especially of women who participate in legal proceedings as complainants, witnesses, victims or accused;
(e) adequate opportunity to prepare a case, present arguments and evidence and to challenge or respond to opposing arguments or evidence;
(f) an entitlement to consult and be represented by a legal representative or other qualified persons chosen by the party at all stages of the proceedings;
(g) an entitlement to the assistance of an interpreter if he or she cannot understand or speak the language used in or by the judicial body;
(h) an entitlement to have a party’s rights and obligations affected only by a decision based solely on evidence presented to the judicial body;
(i) an entitlement to a determination of their rights and obligations without undue delay and with adequate notice of and reasons for the decisions; and
(j) an entitlement to an appeal to a higher judicial body
[23] I do not agree with the position of Counsel for the Accused that any of the above elements as applicable to the present case was breached. Counsel for the Accused had the opportunity to cross-examine the concerned witness as he did in respect of all witnesses. The Court merely informed the virtual complainant that it could invoke a statutory provision in the event that a person refuses to answer when being questioned in Court. The statutory provision is essentially section 131(b) of the Criminal Code. That section of the Penal Code has never been challenged as being unconstitutional on allegations that it violates Art.19(1)(a) of the Constitution. I believe that Learned Counsel for the Accused is competent enough to recognise that. Therefore, that objection was merely a distraction of the proceedings and with wisdom should not have been raised again as it was killed in the Ruling of No Case to answer delivered by this Court. That argument has no merits. It could not have been revived at this stage of proceedings.
Count 1
[24] In addressing Count 1, Counsel for the Accused has yet again revisited arguments that the Accused had no case to answer. He quoted R v Galbraith [1981] 73 Cr. App. 124 in arguing that the prosecution had not adduced sufficient cogent evidence on which the Court could convict the Accused. Making that argument at this point in time is absolutely futile. There is a confusion on the part of the defence. The Court has already made a Ruling that the Accused had a case to answer following a submission of no case to answer. It ruled against that submission. That matter is now closed. Raising the same argument now is like asking that the Court reconsiders its own decision. This is a matter for an appeal. At present the Court is functus in respect of that matter. This should have been obvious to Counsel for the Accused.
[25] The first count regards prohibitive recording of private acts contrary to section 157(A) of the Penal Code. From the particulars of offence, this act is in regards of the alleged recording of private acts which concerns a sexual act. This is the act that is alleged to have happened at [REDACTED]. This private act was shown on video (exhibit P6). The sexual act involved two persons. Sexual acts can be considered to be a private act within the definition above mentioned, even if it was being done outside, not within the confines of a home or private room. It is a private act as the persons involved in the act are in the nude and that satisfies section 157 A of the Penal Code.
[26] The video does not show the faces of the persons involved in the sexual act in the bushes allegedly of [REDACTED]. However, the woman involved in that act would not have been the one filming due to the sexual position she was in. Due to her position in the act, the act could be filmed without her knowledge. The act could only have been filmed by the man involved in the act or by a third person, but that again though not impossible, is unlikely due to the position of the filming devise. This is one of the reasons that in dealing with the second count, the defence argued that this was not the Accused in the act. However, the virtual complainant, JD, was adamant when giving evidence that the video depicts her and the Accused having sex. I am sure that someone from looking at a video, even if his or her face is not shown in the video can safely identify if she was the person in the video. The Accused has also argued that it would be unsafe to convict on such evidence without corroboration.
[27] It is not always that corroboration is needed. Corroboration is not an absolute necessity. A case will not necessarily fall because of lack of corroboration. Actually, it almost always impossible to have corroboration when people are involved in private acts, that is because such acts involve nudity and is an act that is normally intimate. More and more Courts have moved away from a position that corroboration was necessary but what might be needed is the requirement that in some cases, the judge should give a corroboration warning, the discretion to grant a corroboration is left to the Judge; see Rv Makanjoula; R v Easton [1995]Cr. App R 469 AC. Similar position was adopted in Lucas v R (SCA 17 of 2009) [2011] SCCA 38 and EC v R (CN 66 0f 2014) [2016] SCSC788. Nonetheless, I hereby give myself a corroboration warning.
[28] The Accused denies filming such videos. Counsel at times through cross examination was suggesting that the phone was not the Accused’s. He argues that the Police just confiscated the phone from the vehicle being driven by the Accused without first ascertaining ownership. On the other hand, I note that there is no evidence that suggests that the Accused objected when the Police seized the phone claiming that ownership belonged to someone else. The extraction of such visual private act was extracted from that telephone. Mr. Maxime Morel of Airtel, a telecommunication company, confirmed that there were exchanges being made from that telephone number [REDACTED] registered in the name of the Accused and telephone number [REDACTED] registered in the name of JD during that period.
[29] The Accused’s testimony that due to his limited knowledge in the use mobile phone devices, it was JD who would at time send pictures and videos from his phone. That suggestion does not find favour with this Court. [REDACTED], the Accused’s close friend testified that he and the Accused used to send videos to one another and these would normally be comical videos. [REDACTED] testified that once the Accused send him a video and immediately asked that he deletes it. Obviously, that could not have been a comic video. The video must have been sensitive in nature. [REDACTED] had asked the Accused that if he wanted the video deleted, he should do it himself, which he did.
[30] The Court also takes note and believes JD’s testimony that the Accused threatened that he was going to have the video published on social media. From the evidence adduced I suspect that that was because the Accused and JD was encountering difficulties in their relationship. He was using pornographic blackmail. It is my view that JD would not have gone to seek Police assistance if there was nothing going on. Even when JD was at the Police Station the Accused was calling to harass her and in particular wanting to meet up with her.
[31] I find that the prosecution has discharged the burden of proof for this Count. I hold no reasonable doubt that the Accused whilst engaged in sexual act with the Accused filmed such private act without her consent. That took place at [REDACTED] Therefore, I find the Accused guilty as charged.
Count 2
[32] Under count 2, the Accused stands charged with the offence of possession of prohibited visual recording contrary to section 157C of the Penal Code. For similar reasons as explained under Count 1 in regards to the video captured at [REDACTED] at the then residence of the Accused, that video will not be considered under Count 2. So, we are only concerned with the video of the private sexual act that took place between JD and the Accused.
[33] I have already explained that I do not hold any doubts that the mobile phone seized from the car of the Accused prior to his arrest belongs to the Accused. There is no reason to conclude otherwise. I have also found that the visual recording would have been filmed by the person who was engaged in the sexual act with JD.
[34] I am satisfied that the methods used for extracting and downloading the phone records and videos was done using recognised and approved methods. This was the evidence of Police Officer Ivan Esparon. He is a recognised expert in that field. He explained that he used devices called ‘cellebrite’ which is a software. There was no evidence of any fault with the software. The foundation was laid that the devices was under his full control and tampering with was impossible.
[35] Counsel for the Accused submit that the equipment used should have been presented to court and there should have been demonstration of the operation of such equipment in court. I do not think that that was necessary. If Counsel in his cross-examination had raise doubts on the balance of probabilities that the equipment was faulty then there would possibly have been a need to examine the equipment and maybe have a demonstration. By way of analogy, in a murder case, the pathologist is not required to produced all the equipment used to perform a post mortem. So, the argument put forward is without merit.
[36] I find that the Accused was in possession of prohibited visual recording. JD made it clear that she did not give consent to the Accused to record their private act. Therefore, I find that the offence proved beyond reasonable doubt and convict the Accused of the second count.
Count 3
[37] Count 3 is one of threatening violence contrary to and punishable under section 89(a) of the Penal Code. Counsel for the Accused submits that in was indeed JD who harassed and threatened the Accused. With respect to Counsel, there is no evidence of that. Section 89(a) makes it clear that the threat of violence should cause alarm as to injury, damage, harm or loss to any person or property in order to alarm that person. In this case, there is no evidence of such threat of violence perpetrated by the Accused against JD. The only threat was to publicize on social media the prohibited video of their private sexual act. As I said this is what some jurisdictions call revenge pornography. It does not cause any physical harm to a person or property but at best it could cause harm to her reputation or modesty.
[38] JD never testified to the Accused threatening her with violence. Therefore, in the absence of any evidence to support the charge, I am left with no option but to dismiss the charge and acquit the Accused of the same.
Determination
[39] Finally, as above stated, the Accused is found guilty and convicted of Counts 1 and 2 and is acquitted of Count 3 as the prosecution has failed to prove the elements of the offence beyond reasonable doubt.
Signed, dated and delivered Port 05 February 2024
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Vidot J
Cited documents 3
Judgment 3
| 1. | Lucas v R (SCA 17 of 2009) [2011] SCCA 38 (2 September 2011) | 4 citations |
| 2. | R v EH (CR 52/2019) [2021] SCSC 853 (4 March 2021) | 1 citation |
| 3. | R v ML & Ors (CR 38/2019) [2020] SCSC 491 (16 April 2020) | 1 citation |