Vidot v R (7 of 2004) (7 of 2004) [2005] SCCA 20 (24 November 2005);

 

IN THE SEYCHELLES COURT OF APPEAL

 

 

SCA No. 7 of 2004

 

 

In the matter between

 

ROBERT VIDOT Appellant

 

and

 

REPUBLIC Respondent

=========================================

(Before: RAMODIBEDI, P; BWANA, JA; HODOUL, JA)

Heard: 15 November 2005

Judgment delivered on: 25 November 2005

 

Counsel: Mr. C. Lucas for the Appellant

Mr. Chetty for the Respondent

 

 

J U D G M E N T

 

BWANA, JA

 

1. The Appellant was charged with the offence of Sexual Assault contrary to and punishable under section 130(1) of the Penal Code as amended by Act 15 of 1996 and read together with section 130(2) (a) and (c); 3 (b) of the Penal Code. The particulars of offence state that the Appellant, on a date unknown, between 29th and 30th of April 1999, at Le Niole, Mahe, did sexually assault one E M by having attempted to have sexual intercourse with her.

2. At the time when the alleged incident took place, E M, the victim, was 11 years old. Therefore the provisions of section 130 (3) of the Penal Code are applicable. Being a child below the age of 15, E is said to have been of tender age.

 

3. The Appellant pleaded not guilty to the offence. The prosecution called seven witnesses in the Supreme Court (per D. Karunakaran J). The defence called three witnesses, the accused inclusive. The Appellant was convicted of the offence and on 3 December 2004, he was sentenced to serve a prison term of eight years. He now appeals against both conviction and sentence.

 

4. In his grounds of appeal, the Appellant has raised the following matters:-

 

    1. The learned trial judge erred in finding that the evidence of the two child witnesses were cogent and did corroborate each other when both witnesses had been discredited during cross-examination.

 

    1. There was no evidence that the judge could rely on relating to date and time of the offence. The learned judge ought not to have made a finding that the Appellant between 29th and 30th April 1999 sexually assaulted E M.

 

    1. The prosecution failed to disclose the statement given by DW1 to the police but did rely on the same to discredit DW1.

 

    1. The learned trial judge failed to appraise himself of facts relating to the alibi of the Appellant who indeed had successful defence in that several independent witness gave corroborated testimony.

 

    1. In all circumstances of the case, the Appellant’s conviction was unsafe and unsatisfactory.

 

    1. The sentence imposed on the Appellant was harsh and excessive and did not follow the sentencing pattern of the day relating to offences of the same nature.

 

  1. We would like to state, at the outset, this Court’s concern when it comes to offences of this kind. Children, the future of this and every other State, should be protected and given a chance to grow up in a loving environment, peace and hope for the future. It is the duty of parents and all State Institutions to foster the above, the Judiciary and Law Enforcement agencies, inclusive. On our part, this Court has the duty to guarantee the said rights as firmly enshrined in the Constitution of the Republic of Seychelles. The said guarantee becomes more necessary when cases of this kind are brought before it. This gives us the additional responsibility of equally guaranteeing fair trial to litigants as provided under Art. 19 (1) of the Constitution. The relevant parts of the Constitution provide the following:-

 

Art. 31 - “The State recognizes the right of children and young persons to special protection in view of their immaturity and vulnerability and to ensure effective exercise of this right the State undertakes –

 

(c) to ensure special protection against social … and moral dangers to which children and young persons are exposed.”

 

Art. 19 - “(1) Every person charged with an offence has the right … to a fair hearing …

 

(2)(e)… has the right to examine the witnesses called by the prosecution … and to obtain the attendance and carry out the examination of witnesses to testify on the person’s behalf…”

 

  1. We find ourselves obliged to state in very clear terms as in para 5 above because we believe, after reading the record of this case and hearing submissions by both counsel, this case should have been handled in a better way. The investigative aspect of it as well as the evidence produced before the trial court left much to be desired as we shall soon indicate in this judgment.

 

  1. In analyzing the evidence before him, the learned trial judge did make the following observations. For purposes of clarity we do quote him en extenso:-

 

I carefully perused the evidence on record, I meticulously considered the arguments advanced by both counsel … First, on the question of credibility of child witnesses … although of tender age, in my assessment, they are competent, mature, reliable, intelligent and truthful witnesses … Both of them gave clinching, intelligent and unbreakable evidence regarding the alleged act of sexual assault. I believe both of them to be credible in every aspect of their testimony … In fact even corroboration is not required when there is the evidence of an independent eyewitness. On the other hand, I do not attach any credibility to the testimony of the defendant …on the issue of alibi … as none of them appeared to be reliable in the least … On the issue of medical evidence, I find there is no rule of law or of practice, which requires that in all cases of sexual assault, there ought to be medical evidence to corroborate or to prove the offence. In any event, the medical evidence as to the tear in the hymen of the complainant shows that she has been sexually abused …” (emphasis added.)

 

  1. We could quote further from the findings of the trial judge. We are alive to and minded of the long established practice that when it comes to the assessment of the demeanour of witnesses, the trial court is best suited to assess them, as opposed to the appellate court. The latter court would interfere with that assessment only if it considers and/or discovers material irregularities. We intend to show thus in this judgment especially when it comes to the evidence of the two child witnesses, their mother and the Appellant.

 

9. It is also a well established rule of practice that corroboration is necessary in sexual offences. Where a judge, sitting alone, has to determine such a matter, he should warn himself of the danger of convicting on the uncorroborated evidence. We do note that the trial judge did warn himself to that effect. Our observation is whether he sufficiently warned himself as to the danger of relying on the uncorroborated evidence of the two child witnesses. We say so because child evidence in itself requires corroboration. And it is well settled that evidence, which itself requires corroboration cannot provide corroboration for other evidence which also requires corroboration.

 

10. Still on the issue of corroboration, one is minded of the fact that medical evidence, though not conclusive, is preferable in proof of sexual assault related offences. We say it is “non conclusive” if it does not lead to establishing not only that the offence of sexual assault has been committed against the victim but that it is the suspect who committed it. Indeed any corroboration to be relied upon must be independent, reliable evidence which implicates the suspect with the crime. It must irresistibly point to the accused as being one who committed the offence. Corroboration is relied upon, where the giver of such evidence is believed to be a credible and truthful witness. Where a court has doubts as to the creditworthy of the evidence of a given witness, there is no need to look for corroboration in support of his evidence. We will consider this principle in relation to the evidence on record in this case.

 

11. Counsel for the Appellant has raised the issue of the date and time of the alleged incident. While we will consider the matter in due course, one is again minded of the fact that it is not in all situations that date and time of commission of an offence may be established. It is against this background that section 114(f) of the Criminal Procedure Code states the following:-

 

Subject to any other provisions of this section, it shall be sufficient to describe any place, time, thing, matter, act or omission whatsoever to which it is necessary to refer in any charge or information in ordinary language, in such manner as to indicate with reasonable clearness the place, time, thing, matter, act or omission referred to.”

 

This general rule as to description, in our view, is relevant and applicable in this case. Therefore the description as regards the date is sufficiently and clearly given. The same however, cannot be said of the time, as is shortly dealt with herein.

 

12. We would now consider the issues as raised in this appeal. We start by examining the issue of date and time. In this regard, we note that the Appellant relies on the defence of “alibi” – that on both dates (29th and 30th April 1999) he was not present at the scene of the crime during the times given. After considering the evidence of the various prosecution witnesses, we are of the considered view that the alleged incident, if at all it took place, then it was on the 30th April 1999. It is argued in defence that on those dates, the Appellant left very early in the morning for work in the company of the two defence witnesses. The trial judge did assess correctly in our view – the evidence of the two defence witnesses. We have no reason to believe otherwise. The Appellant may have been at home in the morning of 30 April before he left for his other errands as described by the children.

 

13. The crucial point is the time when the sexual assault may have taken place. There seems to be inconsistencies with regards to the time the Appellant allegedly called E into his room. Time given by the two children – the only witnesses to this aspect of the case – differ. At one time it is said to be 8:00 a.m.; then 9:00 a.m.; 9:30 a.m.; “in the morning”; 2:30 p.m.; “it was while M was still asleep”; “it was after M had gone to sleep again,” and so forth.

 

14. In the case of W. Pillay v The Republic 2 SCAR (1983-1987) at p. 235, this Court held:

 

The inconsistencies and contradictions in the complainant’s evidence were such as to be expected from a girl of her age. There was no reason to differ from the trial judge’s acceptance of the complainant as a witness of truth.”

 

With due respect, the same cannot be said of E M evidence together with that of her younger sister. That evidence needs to be considered together with the other evidence. Such other evidence should cover the whereabouts of M at the material time. She was the only “other” adult in the house at the time. We do note that E said that the whole “mal elve” lasted between 1 and 2 minutes. That could be correct when considering the time that may be taken. It is possible, therefore, that the incident took place when M was “out and about” doing her household chores. We cannot expect these children to be exact with the timing of M’s activities, especially when the two innocent children never expected what transpired then. M’s evidence having been discredited during trial, we are left with no clear picture as to her whereabouts at the material time.

 

15. We had considerable difficulties in believing Shamila Evenor’s evidence with regard to the “hole in the door” through which she allegedly peeped and saw E being sexually assaulted by the Appellant. This eight year old girl gave un sworn evidence. She insisted to have watched the “mal elve” through a hole in the door. However, her aunt, Sheila Louange (PW5) testified that there is no such a hole. In cross-examination, this is what Sheila said (at p. 81 of the record):

 

Q: Is there any hole between that door and the door frame that you could see through it?

 

A: There is none.

 

Q: Are you sure about this?

A: Yes.

 

Q: I do not mean the key hole but in the corner, is there a hole over here?

 

A: No.

 

Q: Is there a curtain with the door with Vidot’s bedroom and the sitting room?

 

A: Yes.

 

Q: Does it cover the whole door way?

 

A: Yes.

 

Q: Is it possible for one to see through the sitting room to see Vidot’s room?

 

A: No.

 

If this evidence by PW5 is to be believed then many questions do arise which no answers are provided. The trial judge should have addressed himself to such questions and perhaps made a visit locus in quo in order to remove such doubts. Such questions include inter alia –

 

- On the question of a hole in the door, who was telling the truth – PW4 or PW5?

- If it is true that there is a curtain, how could PW4 see through still? Which side of the door is that curtain fixed?

 

- If it is true that there was a hole and PW4 peeped through, was the hole truly wide enough to see through and watch what was taking place inside the room, in the bed?

 

  • If PW4 was so curious to see what transpired in the room, a child of that age, obviously she would have asked her sister – E immediately when she came out of the room – what happened to her inside? We read on record that S never asked that pertinent question and yet she was inquisitive to see what was going on in the bedroom.

 

16. Together with the foregoing observations, we consider now the issue of the medical examination. Two such tests were taken. The first test by Dr. Jules Gedeon (PW1) who established that E had a discharge, infectious. She was given antibiotics. Since the matter was reported to the police, we would have expected the Appellant to be medically examined as well though belatedly, to establish whether he had a similar infection or not. This was not done and it is our considered view that it was a serious omission.

 

17. Again there is conflicting evidence as to who bathes the two girls daily. Both testified that it is their mother, Samia Evenor, PW5. However PW5 stated that she bathes the two girls only on some days. The other days, they do it themselves. She however, does wash their clothes including their panties. It is on record that on the material day she bathed E but noticed nothing unusual both on her body and pants. It was convincingly argued by the defence case that if indeed the Appellant had sexually assaulted E and ejaculated into her vagina, the mother would have noticed semen either dry or still liquid on E’s private parts or panties. She admitted not to have seen the same either during the bathing of E or when washing her knickers.

 

18. While we would not like to discuss in details the issue of threats, fights and the like, between the parents of Emeline and the Appellant, it is suffice to note here that those threats and fights seem to have been real and did take place. Whether this was before or after the alleged incident, it is our view, that the trial judge should have addressed his mind to that matter as well. He should have considered whether the story is true or that the complainant was now being used to carry out the threat to throw the Appellant into prison.

 

19. Indeed the record discloses disturbing evidence of manipulation and schooling of the prosecution witness by her mother, PW5. Thus, for example, on page 45 of the Record, in cross-examination E M, PW3, reveals the following:-

 

Q: You know that your father and mother have never got on with Robert.

 

A: I know they were on good terms until the incident happened.

 

Q: As a matter of fact it is your alleged incident that is an attempt for them to do what your mother threatened Robert with ‘fer our monte.”

 

A: Yes.

 

Q: Did you discuss that with your mother before going to the doctor at Beau Vallon clinic?

 

A: Yes.

 

Q: Did your mother tell you what to say?

 

A: Yes.

 

Q: Before going to the NCC did your mother tell you what to say?

 

A: Yes.

 

Q: What you are saying today is what your mother told you to say.

 

A: Yes.

 

20. Similarly on page 59 of the Record, the cross examination of S, PW4 discloses the following “killer blow”:-

 

Q: Before you came here to court did any body tell you what to say to this court?

 

A: My mother.

 

Q: Did she ask you to repeat what you have to say?

 

A: Yes.

 

Q: Did she tell you what to say?

 

A: Yes.

 

21. In conclusion, it is our view that had the trial judge considered all those factors in conjunction, no doubt he should have come to an irresistible conclusion that it was unsafe to convict on the evidence as it was before him. The inconsistencies and flaws in the prosecution case, as shown hereinabove, ought to have led him to acquit the accused.

 

22. Therefore on the grounds and reasons fully set out herein, the appeal is upheld. The conviction is quashed and sentence is set aside. We further order that unless the Appellant is held on other lawful orders, he be set free forthwith.

 

 

……………………………………….

S. J. BWANA

JUSTICE OF APPEAL

 

 

 

……………………………………….

M. M. RAMODIBEDI

PRESIDENT

 

 

 

……………………………………….

J. M. HODOUL

JUSTICE OF APPEAL

 

 

 

Delivered at Victoria, Mahe, this 25th day of November 2005