IN THE SUPREME COURT OF SEYCHELLES

THE REPUBLIC

VERSUS

BENJAMIN LAIRA ACCUSED

Criminal Side No 50 of 2005

Mr. J. Camille for the Republic

Mr. S. Freminot for the Accused

JUDGMENT

Perera CJ

The accused stands charged with the offence of committing an act of indecency with a child, contrary to, and punishable under Section 135(1) of the Penal Code, as amended by Act No. 15 of 1996. According to the particulars of the offence, the accused, Benjamin Laira, between 2001 and 2002, at Anse Aux Pins, committed an Act of Indecency towards another person, namely by having non accidental touching of the vagina of one RF, a girl under the age of 15 years. According to the birth certificate filed (P1), this girl was born on 2^nd February 1999. Hence at the time of the alleged offence, she should have been between 2-3 years of age. However, her mother MCF testified that the child was 3½ to 4 years old, and was attending the crèche. If the actual date of the alleged offence was after August 2002, there is no discrepancy in the period alleged in the charge. Be that as it may, when the child testified in Court on 21^st February 2007, she was 8 years old.

It is trite law that in determining the competency of a child witness the Court should not enter into inquiries as to his or her religious belief or as to knowledge of the consequences of falsehood in this world or the next. The pre-evidence inquiry should be limited to determining, in the best way possible, the child’s intellectual capacity and understanding of the nature of the oath. In that respect, questions by Court should seek to elicit the ability of the child to give a rational and intelligent account of what he has seen, heard or done on a particular occasion, or in a sexual assault case, whether such child is able to testify as regards the alleged incident.

The Court questioned the virtual Complainant whether she could tell exactly what happened, and she answered in the affirmative. However, when she was asked whether she remembered everything that happened, she replied in the negative. Thereupon when she was asked whether she knew the difference between telling the truth and telling lies. She stated that she did not know the difference. Thereupon the Court decided to take her unsworn evidence.

Section 38 of the children and young persons Act 1993 of the United Kingdom provides that a child may give unsworn evidence in criminal cases if it is of sufficient intelligence and understands the duty of speaking the truth. However the proviso to that Section states-

“Where evidence admitted by virtue of this Section is given on behalf of the Prosecution, the accused shall not be liable to be convicted of the offence unless the evidence is corroborated by some other material evidence in support thereof implicating him.”

Hence the corroboration of unsworn evidence of children is a necessary condition precedent for conviction. However there is no requirement that the sworn evidence of a child should be corroborated as a matter of law. It is on the basis of these principles that I proceed to consider the evidence of the virtual complainant.

The virtual complainant, RF testified that during the time of incident she was living in a flat at Anse Aux Pins with her mother MCF, grandmother Claire Fanny, sister and her uncle. Mother worked the night shift at the Barbaron Hotel from 5 p.m to midnight.

Rania testified as follows-

“I was playing outside. He pretended he was playing with me. He locked the door of the verandah. There was a bed outside. He placed me on the bed. He took off his shorts and he got on top of me. Then he placed his penis in my vagina. Then he got on top of me and did it to me. Then at night he washed me. He dried me. Then he pushed his hand in my vagina. Then he put his big toe in my vagina. Then he gave me sweets and chocolates.”

She stated that these incidents happened on the same day. However she later stated that the incident regarding inserting the big toe happened on another day. Testifying further regarding that incident, she stated that that day she was on a bed inside the house.

Questioned by Counsel for the Prosecution whether anyone else had done anything to her, she replied that two small boys, Steven and Yanice, had done “bad thing” to her. At first she stated that those “things” were done before the accused committed the alleged acts. However she later stated that it was the accused who did them first. She further stated that she did not tell her mother about any of these incidents and also that she was not taken to hospital for any examination.

On being cross examined she stated that she made a statement to the Police regarding the incidents involving the accused. Counsel for the defence questioned her thus –

“Q. Would it not be possible that one Yanice, one Steven, one Danielson, did those things to you before, and then you are putting the blame on the accused?

1. Yes.

Counsel for the accused also told Rania that she had made the statement to the Police on 6^th April 2004, but she was taken to the doctor for examination five months later on 31^st August 2004. She was unable to give any reason for the delay. However she stated that when the accused inserted her finger in her vagina it was painful, but she did not bleed. She told her mother about the pain but did not tell her about the incident with the accused. She maintained that the accused committed those acts on her.

MCF, the mother of the Complainant testified that during the period of the incidents she was employed at Berjaya Beau Vallon Bay Hotel as a bar waitress. She was on the night shift. So, Rania was looked after by her grandmother Claire Fanny who lived with them. The accused is a cousin of her mother. She further stated that Rania complained that her vagina hurts, so she took her to a doctor suspecting some infection. After examination the doctor told her that the child had been abused sometime back. Thereafter Rania told her that the accused had put her on a bed in the verandah and inserted his finger in her vagina, and then gave her sweets.

MCF further testified that Rania was usually bathed by her or by her mother. She quarrels with her mother on hearing that she had allowed the accused to bath her. She also stated that after the incident with the accused, some boys has done indecent acts with Rania. One boy had giver her Rs.2 for such an act, but nothing happened. Then there was one Nelson and Stephen. Stephen had taken her to an abandoned house and got on top of her. But when she screamed he had run away. Those matters were reported to the Police, and there was a case filed against Stephen Lesperance. She also testified that the child told her about all those incidents only after returning from the doctor.

Ina Marie is a niece of MCF, and therefore a cousin of Rania. She was living with her sister and step father at Anse Aux Pins, but lived with the Fanny family off and on. One day she saw Rania with the accused on a bed in the verandah. They were facing each other. The accused was pushing his big toe of his foot into Rania’s vagina several times and asking her to make pushing movements (“pike”). Upon seeing her, he stopped. She later informed Rania’s mother after complaints were made.

RF had been examined by one Dr. Julia a Cuban National on 31^st August 2004 (P2). However as she had left the Republic for good, the report was produced through Dr. Dilip Harjanis a Senior Gaenecologist of the Victoria Hospital. He had worked with Dr. Julia and was familiar with her signature on the report. The report is as follows-

“According to the mother the child is a victim of abuse.

Complained of abdominal pain.

Examination

• No evidence of any external lesion

• Vuval intoitus – no vaginal discharge

• No hymen insitu – (seen)

Dr. Julia”

Dr. Dilip explained that the term “no hymen insitu” means that the hymen was not intact. That happens after sexual intercourse or manipulation by fingers or some other object. In such instances, the hymen gets perforated, hence the term “not intact”.

On being cross examined, he stated that if such perforation had occurred much earlier, the damage will remain and if the victim had been subjected to further abuse, further damage will depend on the severity and nature of such abuse.

At the end of the Prosecution case, the defence made a submission of no case to answer. For reasons given in the ruling of 5^th March 2009, that submission was dismissed. Thereupon, when the accused was called upon to present a defence, he exercised his option to make a statement from the dock. He stated thus-

“I was living at Anse Aux Pins with MCF and the grandmother. One day I came from work and the children was playing outside and the little girl she was inside under the verandah. I was working at GS Pillay at that time and I received some clothing materials and some sweets. I gave the clothing materials to the mother of the little girl and I went to the verandah and gave the sweets to the little girl. I sat on the bed with her. I was talking on the bed with the little girl there was nothing wrong with that.

The next day the mother was going to work at 2 p.m and ask the grandmother to bathe the little girl. The grandmother was drunk and she asked me to bathe the little girl. At the moment I took the little girl, brought her to the bathroom and put hot water for me to bathe her. When I finish bathing the girl I put my hand and pass on the vagina of the little girl. I did not put too deep or nothing like that. Then I took some clothes I put her the clothes and then we went under the verandah and sit there in the verandah. That is all”.

As a statement from the dock is made without an oath or affirmation, and is not tested by cross examination, such statement has little evidentiary value compared with sworn testimony. A statement of the nature may contain admissions of fact against the accused or allegation of facts in his favour. As was held in Green v. R (1972) S.L.R. 54, whether the accused adduces evidence or makes an unsworn statement from the dock, the trial Court must weigh all the evidence before it as a whole, and decide whether guilt has been proved beyond reasonable doubt”. In the case of R v Frost and Hale (1964) 48 Cr. App. Rep. 284 at 290 – 291, Parker L.C.J explained the effect of an unsworn statement as follows-

“It is clearly not evidence in the sense of sworn evidence that can be cross-examined to; on the other hand, it is evidence in the sense that the jury can give to it such weight as they think fit”.

In the present case, the Court must primarily find corroboration of the unsworn evidence of the child complainant. The child testified regarding three incidents. (1) The incident in the verandah when, allegedly, the child was put on bed and the accused removed his shorts and inserted his penis in her vagina. (2) The incident when after giving her a bath, the accused dried her and allegedly put his finger in her vagina. (3) The incident when, allegedly, the accused inserted his big toe in the vagina of the child. The sequence of these incidents is however unclear.

In the case of R v. Baskerville (1916) 2. K.B. 658, it was stated as a principle, that no piece of evidence amounted to corroboration unless it came from a source independent of the witness to be corroborated, and confirmed not merely the general truthfulness of the child’s evidence, but also the truth of that part of its evidence which implicates the accused with the offence. However, medical evidence that the child has been sexually assaulted does not usually amount to corroboration where someone other than the accused could have committed the offence. But where the accused admits that he was with the child, but denies committing any offence, the medical evidence would be very relevant.

In the present case, considering the evidence as a whole and weighing them, I find no corroboration of the first incident. However there is corroboration of the second and third incidents complained of by the child. As regards the incident relating to the insertion of a finger in the child’s vagina after the bath, the accused admits passing his hand over the vagina of the child after bathing her. But he is careful to state that he did not put it too deep. That, in any event implies that he inserted the finger in the vagina. Here the medical evidence that the hymen was not intact, and Dr. Dilip’s evidence that it could be ruptured by inserting a finger weighs heavily against the denial of the accused. As regards the third incident, there is corroboration in the evidence of Ina Marie, who saw the accused inserting his big toe in the vagina of the child, when both of them were lying on a bed. The child testified that she was given sweets and chocolates. The statement of the accused also mentions the giving of such items to the child. The child testified that she was given sweets asking her not to tell others about the incidents. In fact she obeyed him, but about one year later, she had to confess to her mother when she developed pain in her vagina and abdomen.

Hence the Court is satisfied beyond a reasonable doubt that the accused committed acts of indecency with the child by inserting his finger, and on a subsequent occasion, his big toe, in the vagina of the child, for his sexual gratification. Hence he is convicted as charged.

………………………..

A.R. PERERA

CHIEF JUSTICE

Dated this 29^th day of April 2009