Republic v Padayachy (103 of 2003) [2005] SCSC 4 (26 May 2005);

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IN THE SUPREME COURT OF SEYCHELLES

 


THE REPUBLIC

 


VERSUS

 

BALATHANDAYATHEPANI PADAYACHY …............................. ACCUSED

 

Criminal Side No 103 of 2003

………………………………………………………………………………………………………………..

 

Ms. Jumaye for the Republic

Mr. Bonte for the Accused
 
JUDGMENT

 


B. Renaud
 

The Accused stands charged with the offence of “sexual assault contrary to Section 130(1) read with Section 130(2) of the Penal Code as amended by Act No. 15 of 1996 and punishable under Section 130(1) of the Act.” The particulars of the offence is that the Accused “on days unknown between the month of May 2003 and the month of July 2003, sexually assaulted E V (her full name withheld for the sake of anonymity) a girl under the age of 15 years, namely that he had sexual intercourse with her.”

 


The Accused pleaded not guilty to the charge and the matter proceeded to trial..

 


The virtual complainant stated that she is 15 years old. After having been examined by the Court as to whether she understands the purport of an oath, the Court ruled that the witness is mature, intelligent and understand very well the purport of an oath, hence the witness was allowed to testify under oath.

 


The witness testified that she is 15 years old and was previously living at Anse Lazio, Praslin, but presently lives in Australia. When she was living in Praslin she was in S3 and was in S4 at the time of testifying. She knows the Accused and had known him for 4 years. She met him a few times at his father’s store where she used to rent movies at his video rental shop. She used to know him casually. The only time she got to know the Accused better was when she met the Accused on a plane on 3rd December when she was traveling with her parents and sisters going to Australia passing through Singapore. She was sitting in the same row on that plane and she asked him if he wanted to play cards because she had nothing else to do. After playing cards, dinner was served and afterwards she watched a movie. Whilst watching the movie the Accused whispered to her about the problems he was encountering with his parents, his wife and a lot more which she did not recall. She listened to him and did not pay much attention. The Accused then started to kiss her around her neck and ears and on her cheeks. Upon her return to Seychelles, 2 days after the New Year she went with her parents to the shop, when the Accused gave her parents a box of prawns, and a CD to her sister. Her parents rented a movie. The Accused shook her hands and wished her happy New Year. She did not see the Accused again after that apart from seeing him once at a distance at a Petrol station. Another time she saw the Accused was when she and her parents went there to dispute the high rental charge for a movie which she had rented. After that she only saw the Accused again at the beach on more than 3 occasions. She also saw him, accompanied by his friend Kevin, when he came to pick her up after school nearly every Wednesday (when he is not in Mahe) and he took her to her home and nowhere else. When the Accused picked her up, she was accompanied of her school friends including Helza Andre who lives next door to her. Helza came with her in the same vehicle with the Accused. On 16th May, not remembering what time, the Accused called her and told her that he wanted to see her because he needed to speak to her. The witness said that she was accompanied by her friends Helza Andre and Bryan Savy and they took a bus and traveled to the Accused at a house near Hotel Marechiaro. She had changed the top of her normal school uniform on that day. Upon reaching the house, the witness said that Helza and Bryan went to the beach and she went with the Accused to the house and once inside they went upstairs. The Accused testified thus –

 


We started talking, and he started kissing me, and a few minutes later my clothes were off me and, I do not know, if he was naked in front of me, and I just looked at him in shock, and I did not know what to say, or, just, you know, embarrassed. I thought of running away. He moved closer to me and he started kissing me again and actually pushing me back, but, I do not know, I felt too weak next to him, I just did not want, you know, I did not know what to do. He started kissing me. He told me that we should have a shower. I was there, in shock. During the time we were having a shower he started kissing me again, and I just let him. I just let him. We were taking our towels and he asked me to lie down. I said, I would be better to stay up. We stayed on the bed and he started kissing me again, you know, and he was on top of me, I said get off, I mean, not now. Because, being so confused, I did not want to do anything. But, he just stayed on me, and it all happened. He put his thing in me. He made sex with me. While he was doing this to me I told him to stop, get off, I am not ready yet. He got off. After about 15 minutes later he let me go to answer my phone and he went to the bathroom. I stood by the mirror when he was in the bathroom. He came out and put his arms around me, and said, oh, what a wonderful couple we look like. He started kissing me again, and, we went to the bed and it started all over again. Then I said, well, I should be getting back to school. When I tried to get up, he wanted to remain there. So, he let me get up. So, I went into the shower, and then he followed, he went into the shower with me and he started washing himself as well. He got out, and got changed after that, and I started washing myself. I got out and got changed and he was on the phone. And then he turned and said, this will be our secret, no one should know what happened. Just wait for a while, so I can sell a few things down, and then, then maybe we could tell someone. I just listened, and I just ran out on the road. He went downstairs too, but Helza and Bryan was around. I told them to get ready, I will not be leaving with him. He pleaded with me. So, I went back, up, we went upstairs, and he said, if he can explain, saying, I did not mean to hurt you, and then, when I looked on the bed, there was blood. I took the tail of the bedsheet and started dragging it, and he told me, no, I would do it, and I said no, I would do it. So, I left him and went outside. Then he came out and said, there is no one that will be able to come and pick us up. That we should just catch a bus, or, walk. So, I fight with him, telling him that it was wrong of him to do such s thing, that to ring me and make me and my friends walk. Then, I walked up on the beach, me, Bryan and Helza, we walked to the beach. I met my uncle, Mr. Gardette and he gave us a ride back to where we were supposed to take a bus. He asked me where I have been, and I said that I have gone shopping in Grand Anse.”

 

The witness further testified that she did not tell anybody what happened. Not until a few weeks, or month later, she told her best friends, Brigitte Lesperance, Helza and Melissa Lablache. After that the Accused used to call her and talked to her, be it at home, at school, anywhere. After one week of what happened she saw the Accused because she was getting threats from one Onila Brioche who was the girlfriend of the Accused at the time and with whom she had a baby. Ms Onila Brioche told her friends to tell her (the witness) to watch because if she sees her she swore that she will kill her (witness). When she heard that, she called the Accused and told him that Onila was threatening her and that Onila said she is going to kill her if she (witness) did not stop talking to him (Accused) and seeing him. A week later the witness saw the Accused who told her that they need to talk to each other. She also told the Accused to have a blood test for HIV, or any kind of diseases. When the witness saw the Accused, he was totally drunk and was smoking together with friend Seanor. The witness and the Accused started talking within the sight of Helza who was talking to Seanor. She walked with the Accused further towards the beach and they were talking. She told the Accused that she cannot live her life like that, being threatened to be killed, she just wanted a normal life, like any other people would have. The Accused was very upset. Accused told her that why she wanted to leave him now after what happened between them. I told him because Onila was threatening her. The witness saw the Accused again in October when she was in the company of her friend Marie-Michelle and Lisa. It was during school time. The Accused came to pick her and her friends up in a rented jeep after school and took her to the shop. Her friends were choosing some movies. The Accused went to pay some bills. She got out and stayed in the corridor. When she went to see her friends they were watching a “blue movie” and she could not stand it and went outside. The Accused came back and she stood next to door. The Accused together with Seanor took them to a house and they went inside. Inside the house were, the witness, the Accused, Seanor, Marie-Michelle and Lisa. She and the Accused went to a room and she locked the door and took the door key with her. The witness and Accused were talking and she told him that she cannot be with him anymore, she wants a future, she wants to get married, have kids, live her life, she cannot live with him. The Accused started putting up a sad face and tears were coming from his eyes. She told him again that she cannot live like that, they will be friends, she cannot love him. She tried to open the door three times and the Accused said no each time. He started kissing her and pressed her on the bed. She told him to get off and he did not want. He pushed her pants aside and he pushed his thing into her. I kept on saying no and while he was doing sex she scratched him on his arms and he kept going on even Seanor was calling them. After they have finished having sex she got off and fixed herself and they went outside. She was in her school uniform at the time. She went outside and was talking to her two friends. She did not tell them what she had done with the Accused. They were both smiling and they knew that she had done something. Seanor drove them off to Anse Lazio. She saw the Accused again after that when she was working at Coco de Mer Hotel. After work she was near Barclays Bank and the Accused came and gave her a lift which she took. They eventually went to the house of the Accused and talked the same kind of talk as before. The Accused brought her a glass of water and she sat down. The Accused closed the door. The Accused told her that if she did not have sex with her he will kill her. She let him have sex with her in the room, on the bed just like before. He took off his shirt and this time she scratched him on his back and told him to let her go while they were having sex. After that the Accused arranged for her to be taken to her home, but at her request she was taken to Paradise Sun Hotel. The Accused gave her a new mobile phone as a gift as her parents had taken her phone because she was making too many phone calls. She took the phone. At the Hotel he phoned her father to come and collect her. She gave the new phone to her friend Tessa Lablache to hide it for her. She told Tessa that she got the phone from the Accused. She did not want anyone to know what were really happening between her and the Accused. She just wanted things to stay as it is. She did not want anybody to get annoyed. She saw the Accused again on a Sunday when she went to Church on the occasion of her cousin’s confirmation. She was accompanied by Melissa, Beverley, her auntie, her uncle, Marie-Michelle and Francesca. It was nearing the school exams in July. On that Sunday she got a phone call from the Accused inviting her to meet him. She told Beverley about it. After church service, as her parent’s car was full, she and Beverley decided to take the bus to go and have lunch at the Casino. Instead they, the witness, Melissa and Beverley walked and on the way they saw the car of the Accused parked at the Accused shop and movie base. They went up to his shop and asked him if they can come in. The Accused open the door for them and they went inside and they asked the Accused whether he can take them to the Casino. The Accused agreed but he asked Melissa and Beverley to leave them (witness and Accused) for a while as he needs to talk to her. Melissa and Beverley got out and left them talking. The Accused insisted that they should stay together which the witness did not agree. The Accused started kissing her but she did not agree. The Accused hit her across her face and pushed her against the door and told her to keep her hands up where they were. She tried to free her hands but the Accused gave her another slap. The Accused then let go her hands. He pulled up her skirt and put her legs on the side of the table and tried to get inside her, and on and again. Melissa was outside calling to her asking why it is taking her so long, over 15 minutes. The Accused pushed her pants aside. She let him because she was afraid she would get another slap. She kept her hand up above her head and the Accused kept doing sex to her at the same time whispering in her ears. All the time the penis of the Accused was inside her vagina. The Accused then let her go and she ran out in shock because she believed someone was coming and would see them. She tried to look for Melissa and Beverley but they had gone and were already walking down the road. She ran up to them as normal. They got a ride with a friend of the Accused up to Anse Possession. From there Tessa took them to the Casino. The accused then came along in his car and started talking to them when her aunt came and saw him and the Accused took off. Her aunt Mardia looked at her with big eyes but did not say anything because the Priest had come to have lunch with them and Seanor was also there. They had lunch and thereafter herself, Melissa and Beverly walked home. She did not tell anyone about the incident. She did not see the Accused again until when he saw him in Court regarding the present case. She never told anyone about what happened. She did not want anybody to know. She did not want anything. Her parents found out when, on the following Monday after school and was at her aunt’s place together with her mother, sister. Her aunt told her mother that she does not want her to sleep at her place anymore because she saw her talking to the Accused and most people had been talking about her and the Accused together, seeing them both together, and that she does not want her to get around with her daughter anymore also. She never told her parents anything and always maintained that she did not know the Accused. Her parents got suspicious and insisted to know. It was the Wednesday following that her mother and sister went again to her aunt’s house and when they came back they started searching in her wardrobe looking for everything he (Accused) gave her, including a teddy bear. She denied having any teddy bear. Two hours later seeing how her parents were so angry, she started telling them and for hours related to them what really had happened. She went to the Police the next day and at the same time her parents called someone from Mahe, by the name of Ruby, for those kinds of things that happen. Her parents sent her to see a Doctor on the following Friday of the same week. The Doctors did blood test, pregnancy test to see if there is any bruise on her or anything like that, but they did not do other test, the main test, until a week later. She said that she told the Accused how old she was when they were on the plane when they were joking about passport. She was laughing on the plane about the long name of the Accused who kept on asking her if she is only 14 this year to which she said yes and that she would turn 15 in September.

 


Under cross-examination, the witness was presented with a bundle of letters (16 pages) by Learned Counsel for the Accused. These letters were written by the witness and addressed to the Accused. The witness confirmed that she wrote all the letters tendered and she claimed that these were only poems that she wrote not necessarily for the Accused. The bundle of 16 letters was admitted and marked as Exhibit P.1.

 


Upon re-examination, the witness testified that she wrote those “poems” during the month of February 2003 and the last one in May 2003 after the incident. She was a “poet” for these 4 months only. It was the Accused who asked for them. She had a book and she used to write poems about friends and her life. She said that these were poems she used to like, it was all about what she felt inside and all that she had.

 


The witness further testified that she is 1.7 metres high and weighs 70 kilograms.

 


Mrs. Jeanne Vargiolu testified that she lives at Anse Lazio, Praslin, and that she is the mother of the virtual complainant who is 16 years having been born in Australia in 1988. She attempted to produce a photocopy of what she said is the birth certificate of the virtual complainant (E. V) but the Learned Counsel for the Accused objected to the production of that photocopy and the Court upheld the objection.

 


Miss Helza Andre of Anse Lazio, Praslin testified that she is 15 years old and is at school at Praslin Secondary School. She had known the virtual complainant (E.V.) at school since 2002 for one and a half years. E.V. is now in S4 and is 16 years old and she was born on 27th September, 1988. The witness goes to places with E.V. sometimes and they socialized together. She knows the Accused Bala Padayachy who also socialized with them as E.V. brought him too when they went to places, like Marechiarro after school hours and on sports day sometimes during the month of May and at the end of June. On that sports day she went to E.V’s house in the morning and her (E.V.) father brought them to school. She changed at the house of E.V. and E.V. changed at the field where the sports were being held and they walked to take the bus to Grand Anse to the house near Marechiarro and there they waited for the Accused. The house is near the beach and they went along the beach where they met the Accused there. The Accused came, then they went into the house which was a storey one, and Ryan and the witness went to the beach. E.V. was wearing her uniform skirt and a bare back top. She does not know for how long E.V. was with the Accused at the house. Then the Accused went by the road and they went by the beach. E.V’s uncle gave them a lift back to the sports field. On other days when they are supposed to go by bus, instead of taking the bus they go to meet the Accused at the same house.

 


Mr. Bryan Savy testified that he is 15 years old, lives in Praslin and was attending S5 at Grand Anse, Praslin school. He attended that school since primary. He knows the Accused through his brother and Helza, the previous witness. They sometimes socialized together at Anse Lazio, Praslin and at some other places after school hours, including the house of the Accused near Marechiarro, with the Accused, E.V. and Helza. When they (witness, E.V. and Helza) go to the house of the Accused, the Accused did not always come together with them, but they waited for him at the house. On the sports day when he was at the sports field, E.V. and Helza came to him and told him that they were going to that house. They all walked together, from the sport field at Anse Kerlan, up to the Airport where they took a bus and went to the house near Marechiarro which is situated on the other side of the road. Upon reaching the house the Accused was not there and they waited for him and he came after some times. The Accused and E.V. talked and the witness then left them in the house and he went to the beach with Helza. The Accused and E.V. were in the house for about 30 minutes. When they came out they were like as usual and E.V. looked happy like he used to see her. After that, they all went to the beach and the Accused went the other way.

 


There being no objection from the Learned Counsel for the Accused, a medical report dated 22nd July, 2003 of E.V. signed by Dr. Jesus was admitted and marked as Exhibit P.2.

 


After the close of the case for the Prosecution the Accused elected to give a statement in the dock. He stated that he is aware that he had been accused and charged with the offence. He does not accept this being done to him because he was friendly with the virtual complainant as well as many other people. He has a video shop and there are a lot of people that communicate with him. E.V. contacted him a lot when he was working or when he was at home. He was having some problems with his wife and he told her not to come to his house or call him. She was writing letters to him. He did not do the thing that they say he did to the girl.

 


That concludes the evidence.

 


The Accused has been charged with the offence of Sexual Assault contrary to section 130(2) of the Penal Code as amended by Act 15 of 1996 and punishable under section 130(1) of the same Act.

 


The onus is on the Republic to prove beyond reasonable doubt that:

 


  1. there was sexual intercourse, meaning penetration of a body orifice for a sexual purpose; and that

  2. at the time of the offence, the victim was below the age of 15 years.

 


In support of the first limb of the offence, the Learned Counsel for the Prosecution submitted that it has adduced the evidence of the victim herself who stated that the Accused had sexual intercourse with her on several occasions. This took place at the house near Marechiarro, at the house of the Accused and in the video shop of the Accused. A medical report goes to show that the victim has no presence of hymen. As to the second limb of the offence the Prosecution submitted that it has adduced the evidence of the mother of the victim who stated that her daughter was born in September 1988. Also, another witness, Helza Andre who is a friend of the victim, stated that at the time of the offence the victim was below 15 years.

 

Learned Counsel for the Accused submitted that the evidences of the Prosecution with regard to the first limb of the offence are merely uncorroborated testimony of the virtual complainant without any independent and weighty support. The medical certificate indicating that the hymen of the virtual complainant was not present cannot in any way go to prove that the Accused had sexual intercourse with the girl, but rather that the girl was sexually active for only she knows for how long. Learned Counsel further submitted that the medical report states that the girl was being examined for numerous incidents of rape whereas the charge is for a different matter. Learned Counsel added that the evidence of the virtual complainant was not akin to rape and nor was that borne out by any other piece of evidence. It was further submitted that, in the light of all her love letters to the Accused, the evidence of the virtual complainant could only show that she was dangerously seducing the Accused and when she failed to get her own way, this resulted in the present case as her revenge. It was also submitted by the Learned Counsel for the Accused, that the case for the Prosecution is full of doubts, and that the benefit of such doubts should be viewed in favour of the Accused. Finally, it was submitted that the evidence of the other witnesses who were always there, did not in any way inculpate the Accused other than he was their friend even so for the sports day incident.

 


I have carefully observed the virtual complainant when she was testifying in Court as well as all the other prosecution witnesses. I meticulously analyzed all the evidences adduced in support of the charge. This being a very serious offence, hence I am of the view that the evidence ought to be cogent and reliable for this Court to uphold the charge against the Accused. I bear in mind that the witnesses for the Prosecution are either the mother of the virtual complainant and/or her close friends. I warn myself that, in the particular circumstances of this case, the evidence of sexual intercourse must be corroborated by other independent and reliable testimony.

 


After careful analysis of the evidences, I am of the view that I should address the second limb of the offence, that is, - has the Prosecution proved beyond reasonable doubt that the virtual complainant was indeed below the age of 15 years at the time of the offence? I bear in mind the case of Republic v Barra SLR 1987 (42) where it is stated that evidence of a victim’s age can be proven by means of ‘lawful evidence’ and not necessarily by the production of a birth certificate. In my view, that is indeed possible, but it must be in circumstances where it is impossible to produce a birth certificate. In this particular case, I believe that it would have been possible to produce a birth certificate had this been wanted. The offence allegedly happened in 2003 and was tried by this Court two years later. Proof of age is a crucial element of such offence. Hence, I am of the view that no efforts should have been spared in obtaining a birth certificate. The virtual complainant is supposed to have been born in Australia, communication between that county and Seychelles is not that difficult. Australia is a country with a level of development that lead me to believe that it could not be that difficult or impossible to obtain a certified copy of a birth certificate. The Prosecution attempted to produce a photocopy of such a birth certificate but giving no indication as to where is or what has happened to its original. The virtual complainant testified that she has a passport which, it is common knowledge, must contain date of birth of its holder. No attempt whatsoever was made to produce to this Court even the passport of the virtual complainant. I have also considered the evidence of the other witnesses as to the age of the virtual complainant. In particular the evidence of her alleged mother, who herself did not adduced any evidence to prove that she is really the mother of the virtual complainant, to start with. There is also the evidence of the friends of the virtual complainant. I observed that these witnesses were all born in Seychelles and had known the virtual complainant after the latter had joined them at school. There is no evidence that they knew her early childhood, or that they grew up together as small children. Moreover, I observed the physiognomy of the virtual complainant when she was testifying. She is well built, appearing with fully developed bosom, standing 1.7 metres tall weighing 70 kilos. I read the so-called poems she had written and the contents of which shows that the person who wrote it possesses a wide knowledge of love life and a mature experience in relation to what a woman want in life. I do not believe that the approach indicated in the case of Republic v Barra (supra) is appropriate in this case to prove an essential element of a serious offence.

 


I find than an essential element of the offence, that is, the age of the victim has not been proved to the standard required by law. As such, I find no necessity to consider the other element of the offence. In the circumstances, I find the Accused not guilty and proceed to dismiss the case and acquit the Accused. This Accused is accordingly acquitted and discharged before this Court

 


 


……………………….

B.RENAUD

JUDGE

Dated this 27th day of May 2005