R v RB (CO 69 of 2021) [2025] SCSC 5 (24 January 2025)

R v RB (CO 69 of 2021) [2025] SCSC 5 (24 January 2025)

BURHAN J

[1] The accused in this case RB stands charged as follows:

Count 1
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) (a) & (b) of the same (Act 5 of2012)


Particulars of offence are that RB resident of ..............., on a date 02nd July 2021 at ............, sexually assaulted one namely SS, aged 15years old at the time of incident, by penetrating the body orifice namely vagina of the said SS with his finger for a sexual purpose without her consent.

[2] The accused denied the charges and the case proceeded to trial. The first witness for the prosecution, Mr Ivan Esparon an Inspector attached to the digital forensic at the Scientific Support and Crime Record Bureau, testified that his duties are to extract digital evidence from digital devices such as mobile phones, computers, GPS, and CCTV footage. He stated that he has been in the police force for a period of 16 years and attended training overseas and locally. His evidence as an expert has previously been accepted by the Court on various occasions.

[3] He stated that on 07 July 2021, he was requested formally by PC Sultane Amice to extract video footage from a shop at Quincy Village in relation to an incident that happened on the 02 July 2021. Witness had extracted footage from the shop and proceeded to his office at Bois De Rose where he had processed the footage extracted. He had observed some events which he recorded and later made his own report based on the events seen in the footage and submitted it to the investigating officer for investigation purposes. Witness backed up all the video footage on a DVD which he produced in court as an exhibit. Witness also identified his report which was produced as Exhibit P1. He described the footage in the DVD, which was produced as Exhibit 2, which shows the accused wearing a black and white shirt and grey shorts leaving the shop. The video showed the accused thereafter standing near the shop. Soon thereafter the victim enters the shop wearing black clothes and thereafter leaves the shop. The accused also leaves the shop and walks in the direction as the victim. At 18.00 the accused is seen going away from the shop towards the direction of the victim. Around 13 minutes later, the accused is seen seated by the road near the shop. The difference in terms of the time when the victim left and the time when the accused follows her is about 13 seconds apart.

[4] Under cross examination the witness admitted he did not see the accused talk to the victim. He did not see the accused touch the victim in any way in the video nor outside the video. He admitted that he did not see the accused communicate with the victim in any way in the video nor outside the video because he was not there at that time.


[5] The next witness Sergeant Dagerah Cussion testified that she has done local training, in the field of fingerprinting, crime scene examination, and photography. She stated on Friday the 02 July 2021 around 9:40pm, the witness had gone to the hospital where she met Sergeant Amice who briefed her about a sexual assault case, the victim being SS. Sergeant
Amice was with the victim, a 15-year-old girl from Quincy Village. She also met with the victim's mother SD at the hospital. Witness thereafter received from Dr Shanna Esticot at the hospital, one vaginal swab and one introital swab. She labelled, packaged, and sealed it at the hospital. Witness then received from the victim one light pink panty with a red coloured substance which she suspected to be blood and at around 10:25pm she received a coloured dress from the victim. Witness labelled, packaged, and sealed it at the hospital. On that same day the witness photographed the victim at Central Police Station.


[6] Thereafter, they had proceeded to the scene at Quincy Village where the alleged incident occurred. The scene was shown to the witness by the victim which she labelled and photographed with the numerical number 1. The next day she had photographed the alleged suspect in the case of sexual assault at Central Police Station. At around 13:05, she received
from Corporal Lucas of SSCRB four packaged exhibits sealed in the name of RB, who is the alleged suspect in the case. These exhibits were one swab from the right-hand fingers of RB, one swab from right hand fingernails of RB, one swab from the left-hand fingers of RB, and one swab from left hand fingernails of RB. Witness stated she placed all these exhibits along with the other exhibits at the SSCRB office that same day on Saturday and placed them in her cabinet and locked it and kept the keys with her at all times. She then
downloaded the photographs she took on her office computer and saved and labelled them. On Monday the 05 July 2021, she received from Corporal Lucas around 10:41am, one mouth swab of the accused, at the Scientific Support and Crimes Record Bureau. It was a sealed and labelled package. On the 14 July 2021, she received from Sergeant Amice two exhibits in the name of RB which was one T-shirt coloured black and white and one short
coloured grey. All these exhibits were also labelled, packaged, and sealed by herself, then was placed in the cabinet at the SSCRB office along with the other exhibits. On Thursday 15 July 2021, the witness collected a buccal swab from the alleged victim in the same alleged case of sexual assault in the presence of her mother SD at Central Police Station which was packaged, labelled, sealed and also placed in the same cabinet. The photographs witness Sergeant Dagerah Cussion took was downloaded and placed on her office computer.

[7] The witness had thereafter mounted the 12 photographs into an album. The 12 photographs were marked as Exhibit P3 (1–12). Witness thereafter explained each and every photograph taken by her and went on to explain each of the photographs which included photographs of the victim and the accused and of the scene where the incident had occurred. Witness stated that when she collected the exhibits she prepared an exhibit chart which was marked as Exhibit P4. The exhibit chart was showing all the nine exhibits that was sent to Mauritius for analysis. Witness identified her signature on the chart. On 07 November 2021, the witness handed the exhibits over to Inspector Oblime packaged, labelled, sealed to be taken to Mauritius for analysis. She received the exhibits back on the 27 May 2022 from Corporal Alissop repackaged but sealed. The exhibits that were sent were then placed in her cabinet and she locked them. She stated she was the only one who had access to them. Witness then proceeded to identify the Exhibits in open court from her exhibit chart and produced them as Exhibit P5 to P17. Under cross-examination witness testified that the exhibits she took had to be sent to Mauritius because the analysis is not done in Seychelles.

[8] The next witness Constable Karine Derjacques testified that when she joined the police force she was assigned in the Family Squad Unit. She too had assisted in the investigations of the said incident of sexual assault on SS. Witness had met the victim at the scene who stated that the incident had occurred about 30 feet from her house. She had observed that the victim was crying, traumatised and confused after the incident. She had been with the victim when she was taken to hospital for examination. She had noticed a reddish stain on the thigh of the victim and blood soaked on the panty worn by the victim. The victim was asking the witness about what was written in the doctor's report, about the medication being given to her and whether she was still a virgin.

[9] Constable Derjaques had thereafter recorded the statement of the victim and had prepared a request letter for the birth certificate of the victim from the Director of the Civil Status and identified the letter which was exhibited as P18. In response to the letter she had received the birth certificate of the victim which she produced as exhibit P19 which confirmed that the victim was born at Victoria, Mahe on the 21 April 2006. It is also apparent from her evidence that the mother of the victim had passed away on the 9 May 2022, after the date of the incident.


[10] The prosecution next called the virtual complainant and victim SS. She stated at present she is living with her father since her mother had passed away. Before her mother had passed away she lived with her mother at Quincy Village. During the time she was living with her mother at Quincy Village, the incident in question had occurred.


[11] On Friday the 2 July 2021, closer to 6:00 pm her mother had asked her to go to the shop to buy a light bulb. She went to buy the light bulb then went back home with the bulb. The bulb was not working so her mother asked her to return and change it. The second time when she was on her way to change the bulb, she met the accused at the shop called Nadesen. The accused was standing and talking to one of his friends. When she was coming out of the shop, on her way home, he called her and told her to wait for him. One of his friend asked him where he was going. He said that he would be back. Witness continued on her way and the accused came behind her and called her. She did not turn back to look at him. He continued calling her. To get home she had to go down a slope. When she was going down the slope, the accused continued to call her name. SS stated she knew the accused from before as her mother was a friend of his grandma for around two years. Witness used to see him as he would regularly come to his grandmother's place. Witness waited for him as she was going down the road as there was a bus that was passing by. Witness told him that if he has anything to tell her, it is best that they go into the alley, as people would have false perception about her talking to boys by the road side. He came down and asked her where she was going that night. Witness told him that she was going nowhere.

[12] The accused then asked her for her phone number and forced her to give the telephone number. It was then that she put her phone number on his phone. As she was leaving, the accused pulled her and put her near a wall. Witness informed him that she needed to go because her mother would look for her. He put her against the wall and then placed his hand in the middle of her thighs and into her vagina, it was then that the assault happened. He took both of his hands and placed it in between her legs and put it in her vagina. Witness
asked him not to do it. As he placed his hands in her vagina she felt very sad because at that time she did not know what was going on and did not know why he was doing what he was doing to her. She felt some pain. Witness asked the accused not to do this because her mother would be looking for her and that she needed to go. Even the bulb had fallen. Witness did not recall for how long he did this. The first time he was trying, his hand did not enter, and the second time when he tried his hands entered. The accused stopped doing
it to her when he saw the blood coming out, which was on his hand.

[13] SS stated that she felt very sad. She went to her mother and upon arriving at the house she was crying. Her mother inquired from her why she was crying. She did not say anything and as her mother persisted to tell her what was happening, she told her what had happened. Her mother was talking to a man and the man asked her what had happened. Her mother did not want to tell the man what had happened because she was afraid that the witness's
father would get to know. Witness's mother had a cousin named EA who was in the police force, so her mother phoned the cousin to tell her what had happened. Her cousin asked her to keep the clothes she had on and she would make the necessary arrangements for the social workers to come and see her. Then the social services came and took her things and took her to the hospital for a test to see if her hymen was intact.


[14] At the hospital they told her to go on the bed and open her legs so that they could conduct the test to see if the hymen was intact. Witness stated that she was very scared because she did not know whether she had caught a sickness. After conducting the test, they gave her an injection on her bottom to prevent infection. After that the Police Officers were waiting
outside and asked the witness the name of the person who did that to her. She gave them the name RB to whom they made a search on Facebook and showed her. Witness was asked to identify the accused in court and she identified him. She said it was not the first time she had seen him, as he comes to his grandmother's house and also meets him on the street.

[15] Witness testified that around 6:00pm when she went to the shop it was still a bit clear outside. The Nadesen shop is about 5 to 10 minutes walking distance to where the incident happened. Witness was shown exhibit P3 photograph number 1. She stated that this was a photograph of her taken the Friday night at 11 :00 pm. Photograph number 3 and 4 is the
alley that she passes through to go home as she mentioned earlier. Photograph 5 and 6 shows where she was standing labelled by a small yellow card. In relation to the photograph, her back was against the wall, the accused was standing in front of her and his hands were on the wall. Witness stated she had shown the officers this place when they came with her. She identified Photograph 12 which shows the accused RB wearing a black t-shirt. Exhibit P7(a) was shown to witness who testified that she was wearing these clothes on the Friday, the day the incident happened and she had given this dress to a women CID
officer who informed the witness that an investigation needed to be done with the dress. Exhibit P14 (b) was shown to witness and she identified the panty she was wearing when the accused was putting his finger inside of her in between her legs and blood was coming out. After the incident she was taken to the Police Station. They took a mouth swab from
her mouth in the presence of her mother and said that they would be sending it to Mauritius.


[16] She admitted she knew RB, the accused because her mother used to go to his house and she used to see him there. Witness was asked whether she liked seeing the accused there. She stated no, she did not like to see him, he has never been her friend. When the accused
called her that night she had stopped to talk to him because she thought his grandmother had sent him to tell something to her mother since they were friends. The bus was passing by and witness did not want people to think that she was doing something bad by the road and did not think that he would do something bad to her, this is why she went down to the little track. She stated under cross examination that she had told him not to do that to her
because she had to go, as her mother was looking for her. If her mother was not looking for her she would have not let him continue. She did not ask him to do this to her nor did she tell him that he could do this to her. She showed him physically that she did not want him to do this to her by going towards her mother's house and telling him that she needed to go. The accused however had pulled her. There was nobody coming by the road so she was a bit scared.


[17] Officer Dean Decommarmond was called as a witness in respect of the chain of custody of the exhibits. He testified that he had received the exhibits from Sergeant Cussion and kept it in his custody and then returned it to her. The purpose was for DNA analyst in a Lab in Mauritius but he had not gone. When he received the exhibits they were packed, sealed and
labelled. During the time he had the exhibits no one had access to them except him. There were 10 exhibits handed over to him. Witness Terence Padayachy stated he was known to the accused for three years as they rode bikes. WPC EA stated on the 02 July 2021 she was contacted by her cousin who informed her that a boy had sexually touched her daughter when her daughter went to the shop. She had spoken to the victim on the phone. She asked her how she was feeling and told her to make sure that she does not bathe herself. The victim had told her that blood was dripping down her legs. She had called Command Centre and spoken and thereafter accompanied Sergeant Amice to the house of the complainant as there was a network problem. She also stated that when she spoke to SS, she sounded very frightened and was crying after she gave the statement.


[18] Inspector Oblime gave detailed evidence of how he took the exhibits in the possession of Sergeant Cussion to Mauritius. He identified the exhibits P5 to P14 he had taken to Mauritius which he received in a sealed state. Once witness reached Mauritius he had gone directly to the Forensic Lab and submitted the evidence to the desk liaison officer one Mr.
Boulakee. The exhibits were all in the sealed envelopes.


[19] Detective Corporal Joachim Alissop testified that in relation to this case on the 20 April 2022 at around 09:56 am, he received from Liaison Officer Mr. E. Boulakee at the Mauritius Forensic Science Laboratory, nine sealed exhibits with CB30107/2021 for Central Police Station. All the exhibits were sealed. Witness also received a report for the examination of the exhibits. The Examination report he received from Mauritius was marked as Exhibit P21. After he received the report and the sealed exhibits, on the 27 May
2022 at 10:45 am, witness handed all these sealed exhibits to Sergeant Cussion. The exhibits were sealed and it was safe. During the times when the exhibits were with him it was under lock and key. He identified the exhibits he collected. They were all sealed and nobody had access to them during the time they were with him. Witness was asked whether he was the author of exhibit P2I. He stated that he was not. He was not the one who did the tests.


[20] Next witness Doctor Maxwell Fock-Tave testified that he is a gynaecologist at the Seychelles Hospital for 25 years. He had been working closely with Dr Shanna Estico, he produced the report of Dr Estico as Exhibit P22 and P23 after identifying the signature of Dr Estico. The report indicated that both inner thighs of the patient were blood stained, the panty soaked in blood, and stated there was small laceration seen at the fourchette which he described is the back at the entrance of the vagina. The inferior rim of the hymen was also lacerated. There was no active bleeding. Indications were that forceful penetration would have caused the hymen to be lacerated. He further described that forceful penetration means usually, ifthere was a sexual intercourse going on, in preparation, the woman would be well moist and lubricated by a gland which is situated just at the entrance of the vagina and ifthis is not the case, she is not well prepared and there is penetration, especially ifthat
person is still a virgin or is not used to having sex, an injury will be caused.


[21] The next witness Sergeant Sultane Amice testified that she is based at the child protection unit. On the 02 July 2021 she was on duty. She had conducted investigations into the complaint and arrived at the scene at 07:30 pm. She had met the victim who had stated she
was sexually abused and thereafter procedures were made for her to be medically examined. The victim was crying and her mother was there with her. Witness then examined the scene located at a trail but witness found nothing. They then transported the victim to the hospital. When they left the hospital, they headed for the Central Police Station. There were officers there with a boy named RB and the witness informed him that there was a report against him and informed him of the offence. He was informed that he was being arrested for this offence and he was informed him of his rights. Witness pointed
to the accused and identified him in court. After arresting him, the witness recorded a statement under caution from the accused on the 03 July 2021. Witness then read the statement back to the accused.


[22] The next witness Ms Asha Auckloo, senior forensic scientist posted at the Mauritius government forensic science laboratory testified that her field of expertise is serological and forensic DNA analysis. Witness described her qualifications and was admitted as an expert in her field. She also described the duties and procedure involved in testing DNA and conducting of the Kastle-Meyer test for iron in blood.


[23] In respect of this case, the witness made a report and confirmed her signature on exhibit P21, indicating that she is the maker of the report. She compiled all the contents but the template is a standard template as per the lab's requirement. The second page of her report contains her signature. Her report is dated the 04 of April 2022. The CB number is, CB30/07/21 Central Station. The exhibits when received to the lab were intact and were in
the right condition to be received for examination at the forensic science laboratory. They were sealed and they were not tampered with. Once the exhibits are accepted at the laboratory, they are given a unique FSL number, which in this case is FSL 6174/2021. The exhibits are stored under lock and key at the liaison desk of the Mauritius forensic science laboratory.


[24] In her report dated 04 April 2022, she states DC/01 was 1 vaginal swab taken from SS. DC/02 was one introital swab said to have been taken from SS. Exhibit DC/03 was pink coloured knickers which tested negative for semen. No DNA was obtained from samples recovered for the presence of epithelial cells from exhibit DC/03. After the Kastle-Meyer test was done on Exhibit DC/03 it tested positive for the presence of blood at the crotch region. DNA extracted from the bloodstains generated a female DNA profile that was found to match the DNA profile obtained from the reference sample of one SS.


[25] In her report she explains that exhibit DC/05 was a swab stated to have been taken from left hand finger of one RB. DC/06, a swab stated to have been taken from left hand fingernail of one RB. DC/07, one swab stated to have been taken from right hand finger of one RB. DC/08, one swab stated to have been taken from right hand finger nails of one RB. DNA extracted from exhibit DC05 to DC08, generated mixture male/female DNA profiles with at least two genetic contributors. The DNA profiles obtained from one SS and
one RB could be read in this mixture DNA profile at corresponding loci and she explained that when they obtain a DNA profile, it can be from a single source i.e., only one person or it can be a mixture of DNA profile which means that there is more than one person, minimum two persons who contribute to the mixture DNA profile. In this particular case from exhibit DC05 to DC08, when the DNA analysis was done they obtained mixture of DNA profile and that was a malelfemale mixture DNA profile. When this DNA mixture profile was analysed, they could see that the victim; SS, DNA and the suspect, RB, DNA were both in this mixture. In her report too it is clearly stated that the DNA extracted from
exhibits DCI05 to DCI08 generated mixture male and female DNA profiles with at least 2 genetic contributors. The DNA profiles obtained from SS and RB could be read in this mixture DNA profile at corresponding loci. There is no explanation from the accused on how the DNA profile of SS got onto his fingernails as determined by the forensic expert.

[26] She further explained that when they talk of corresponding loci, witness was referring to
the 16 locations that they analysed in forensic DNA. In relation to where DC05 to DC08
was collected it can be said that, there has been contact between the suspect and the victim,
meaning to say that, when they were both in contact, there has been exchanged of genetic
material, i.e. the cells of the victim was transferred to the cell of the suspect. In this
particular case when you are referring to the fingernails and the fingers, this would mean
that, at a certain point in time, the fingers and the fingernails of the suspect were in contact
with the victim. It is clear from her evidence that the swabs which were sterile would
become dirty during the taking of the swab.


[27] Witness Crime scene officer Jean Philippe Lucas testified to the taking of swabs from the finger of the accused and sealing it and identified the said swabs collected by him in this case. He stated that he collected four swabs in the case of sexual assault by RB on the 03 July 2021 at the Central Police Station. After he had collected the swabs they were packaged, labelled and sealed and then handed over to Sergeant Cushion. He identified DC/05, a swab taken from the left hand finger of RB (P8a). He identified DC/06 as the
swab taken from the left hand fingernails of RB (P9a). He identified DC/07 a swab taken by him from the right hand finger of RB (P10a). He further identified DC/08 as the swab taken from right hand fingernails ofRB (P11a) and DC/09 (P12b) as the mouth swab taken from RB by him. He also identified the consent form (P12c). This is the sample collected from the accused. After he had collected this mouth swab from RB it was packaged, labelled and sealed and handed over to Sergeant Cussion. It is evidence that Sergeant Cussion took DC1 (Vaginal swab P5a), DC/02 (introital swab P6) from SS and DC10 mouth swab (P13b) from the victim.

[28] Thereafter, the prosecution closed its case. The rights of the accused were explained to him and he opted to remain silent. It should be borne in mind that in terms of Article 19 (2)(h) of the Constitution of the Republic of Seychelles, no adverse inference should be drawn from the fact that the accused decided to remain silent in his defence.


[29] Thereafter Counsel for prosecution filed her submissions and Counsel for the accused opted for oral submission while the prosecution filed written submissions.


[30] Having thus carefully analysed the evidence before Court giving due consideration to the evidence of the virtual complainant and victim in this case SS, it is clear that on the evening of the 2 July 2021 around 6.00 pm she had gone to the shop to buy a light bulb but on bringing it home as it was not working she had gone back to the shop to change the bulb. The accused had seen her when she had left the shop and was returning home with the new bulb, he had called her but she had ignored him and proceeded. The accused then started
to follow her and spoke to her. It is clear from the evidence before Court that the accused and the complainant knew each other as the mother of SS was friendly with the grandmother of the accused and both of them would meet at the grandmother's house when her mother visited his grandmother.


[31] Whilst following her on the 02 July 2021, he had called her and witness had told him that if he has anything to tell her, it is best that they go into the alley as people would have false perception about her talking to boys by the road side. The accused then asked her for her phone number and forced her to give the telephone number. It was then that she put her phone number on his phone. As she was leaving, the accused pulled her and put her near a wall. Witness informed him that she needed to go because her mother would look for her. He put her against the wall in the alley and then placed his hand in the middle of her thighs and into her vagina. He took both of his hands and placed it in between her legs and put it
in her vagina. Witness asked him not to do it. As he placed his hands in her vagina she felt very sad because at that time she did not know what was going on and did not know why he was doing to her. She felt some pain. Witness asked the accused not to do this because her mother would be looking for her and that she needed to go. During this assault she had even dropped the bulb.

[32] SS states she did not recall for how long he did this. The first time he was trying, his hand did not enter, and the second time when he tried his hands entered. She stated the accused stopped doing that to her when he saw the blood coming out which was on his hand. She
went home and upon arriving at the house she was crying. Her mother inquired from her why she was crying. She did not say anything and as her mother persisted for SS to tell her what was happening, she told her what had happened. Thereafter her mother had contacted a relative in the police for advice and after the social workers came and they had taken her
to hospital for a medical examination and then had proceeded to take a statement. The police investigations had continued.


[33] As she knew the name of her assailant the police had arrested him and taken swabs form his left and right fingers and finger nails. The swabs taken for his fingers and finger nails were sent for DNA testing to Mauritius together with mouth swabs from the victim SS and the accused RB. According to the evidence of the Forensic Analyst, Ms Auckloo when testing the finger and finger nail swabs of the accused, she obtained mixture of DNA profiles and that was a male/female mixture DNA profile. When this DNA mixture profile was analysed, they could see that the victim's DNA and the accused's DNA were both in this mixture DNA profile. The DNA profiles obtained from SS and RB could be read in this mixture DNA profile at corresponding loci. There is no explanation from the accused how the DNA profile of SS got onto his fingernails as determined by the forensic expert. The scientific evidence and video footage corroborates the evidence given by the victim. It is clear from the evidence of the victim that the accused had forcibly inserted his fingers into her vagina, the force resulting in lacerations in her hymen and fourchette as stated in the P23 medical report and the evidence of Dr Fock-Tave.

[34] Having thus analysed the evidence in the absence of any other explanation from the accused, the Forensic Analyst report, the medical report and footage confirm and corroborate the evidence of the complainant that it was the accused who had inserted his fingers and done so using force that resulted in injuries and bleeding to the victim.


[35] There is an implied defence of consent which could be inferred from the cross examination. Witness explains in her evidence that when the accused called her that night she had stopped since they were friends. The bus was also passing by at the time and witness did not want people to think that she was doing something bad by the road and she did not think that he would do something bad to her, this is why she went down to the little track into the alley. She had also shown him physically that she did not want him to do this to her by going towards her mother's house and telling him that she needed to go. The accused however had pulled her. The implied defence of consent bears no merit.


[36] I also observe on taking into consideration the evidence of all the police officers set out above that the chain of evidence in respect of the Exhibits from the time of taking into custody, sampling, analysis and handed over to Court has been firmly established beyond reasonable doubt. I am satisfied beyond reasonable doubt the exhibits had not been tampered with from the time of being taken into custody, analysed and produced in court.


[37] I am satisfied for the reasons stated above that the evidence of the complainant stands corroborated by scientific evidence DNA analysis and video footage referred to above. I therefore proceed to accept the evidence of the prosecution. I am satisfied on consideration of the evidence of the prosecution that all the essential elements of the offence set out in the charge contained in Count 1 including penetration have been proved beyond reasonable
doubt.

[38] I proceed to find the accused guilty on Count I and proceed to convict him of same.


Signed, dated and delivered at lie du Port on 24 January 2025

____________

M Burhan J

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