MADELEINE J
- This ruling arises from an application by the Republic for an order to remand the accused person in custody in accordance with section 179 of the Criminal Procedure Code read with Article 18(7) of the Constitution.
- The application is made by way of notice of motion and is supported by the Affidavit of police Inspector Agnes Labiche.
- The Affidavit in support of the application alleges that the virtual complainant is a French national and a sailor by profession, who came to Seychelles sometime in July 2024 and is leaving on 11th September 2024. It is alleged that on 15th August 2024 at around 2130 hours, the virtual complainant was sexually assaulted by the accused person at Beau-Vallon beach in the vicinity of the bar known as the ‘beach shack’. It is further alleged that in assaulting the virtual complainant, the accused threatened, and inflicted, physical violence upon the virtual complainant. The virtual complainant was observed to have scratch marks on her face and her top was observed to be torn after she emerged from the area where the assault had been, allegedly, committed. She was also observed in the presence of the accused person after the alleged assault. After a complaint was made to the police, the virtual complainant was examined by police officers who found that her right side ear was red and swollen, her right side face was swollen with scratch marks, her left side eye was swollen, her right arm and under her neck was swollen with red marks as well as on her right shoulder and on her chest. Her top was observed to be torn.
- The Accused person who is represented by Counsel, opposes the application.
- Objection is firstly taken to the validity of the supporting affidavit and secondly, the grounds for remand.
- It is submitted that the affidavit is based on hearsay evidence and is therefore defective such that it cannot be relied upon for the purpose of the application. Prosecution submits that the said affidavit is in order as it is made by the investigating officer.
- I have considered the submissions of both counsel for the Republic and for the Accused although the same is not reproduced herein.
- Paragraph 1 of the affidavit clearly states the capacity in which the deponent makes the affidavit-
“1. That i am the deponent above named and the investigating officer in this matter and i am competent and duly authorized to swear this affidavit;”
(emphasis added)
- Paragraphs 2 and 17 of the Affidavit states the basis of the investigating officer’s knowledge of the facts stated therein –
“2. That the facts stated herein are within my own knowledge save where I state otherwise.
………………
17. That being the investigating officer acquainted with the facts and circumstances of the case, the statements made in paragraphs 1 to 16 of the Affidavit are true to the best of my knowledge and information and belief and as disclosed by records and evidence in the case.”
(emphasis added)
- Based on paragraph 17 of the supporting affidavit, I find that there are no merits in the Accused’s objection that the affidavit cannot be relied upon for the purpose of the present remand application.
- The grounds on which the application rests are threefold. One, that the offence of sexual assault carries a significant sentence of 20 years’ imprisonment in the event of conviction. Two, in view of seriousness of the offence and severity of punishment, that there are reasonable grounds to believe that the accused will fail to appear at trial and/or do other activities to obstruct the course of justice. Three, given the physical violence and threats to the life of the virtual complainant, there are substantial grounds to believe that if the accused is not remanded and is released on bail, he is likely to interfere with the virtual complainant and or other witnesses and thus obstruct the course of justice.
- In considering the first ground advanced in support of the application, it is trite that although the severity of the sentence ascribed to an offence is not a ground to remand an accused in custody it certainly impacts upon the seriousness of the offence charged. That said, seriousness of the offence is not, on its own, a ground for remand and must be viewed in the light of other grounds: Beharry v R SCA 11 of 2009.
- In terms of section 130(1) of the Penal Code, the offence of sexual assault carries a maximum sentence of 20 years’ imprisonment. I note that the use, and threats, of violence during or for the purpose of committing the said offence and an assault involving penetration of the body orifice of the virtual complainant are likely to affect the sentence to be imposed in accordance with section 130(4) of the Penal Code.
- According to the supporting affidavit, the virtual complainant was, allegedly, also physically assaulted at the time of the offence and threats were, allegedly, also made to her life. Upon examination by police officers on the night of the alleged sexual assault, reddish marks and swellings were observed on the virtual complainant’s arm, face and chest, and her top was observed to be torn. These allegations are serious.
- I find that the second ground for remand – namely the failure to appear at trial and obstruction of the course of justice in view of a likely enhanced sentence - are not sufficiently motivated in the supporting affidavit. I tend to agree with Accused’s counsel that a charge for a serious offence and the severity of sentence does not automatically show that the accused will fail to appear at trial and obstruct the course of justice. There is insufficient evidence at this stage to allow the court to reach this conclusion, but the seriousness of the offence and the severity of penalty remains relevant considerations.
- That said, the risk or likelihood of interference with the virtual complainant necessitates the remand of the accused in custody. I find the following considerations made out in the supporting affidavit to be relevant to the materialization of the risk or likelihood of such interference. The virtual complainant is a foreign national who will remain in the country until 11th September 2024. She allegedly suffered actual physical violence and was subjected to threats of physical and sexual violence and to her life during the perpetration of the alleged offence.
- Based on the above, I find that there are compelling reasons to remand the accused person in custody, and I so order.
Signed, dated and delivered at Ile Du Port, Mahe on 26th August 2024.
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A. Madeleine, J.