IN THE SUPREME COURT OF SEYCHELLES
Criminal Side: CN 66/2014
Appeal from Magistrates Court decision 425/2012
[2016] SCSC 788
EC
THE REPUBLIC
Heard: 27 September 2016
Counsel: Mr. N. Gabriel for appellant
Mr. K. Karunakaran , Principal State Counsel for the Republic
JUDGMENT
Akiiki-Kiiza J
[1] The appellant appeals to this Court against both conviction and sentence on the following grounds:-
Appeal Against Conviction
a) That the learned Magistrate failed to consider the defence of the appellant who deposed that he was simply assisting a drunken individual following a party at the beach.
b) That the learned Magistrate failed to consider the medical report from the Ministry of Health laboratory which stated that there was no evidence of Spermatozoa in the vagina of the victim.
c) That the learned Magistrate erred in convicting the appellant on hearsay evidence.
d) That in all circumstances the conviction of the appellant was unsafe and unsatisfactory in all circumstances of the case.
Appeal Against Sentences
e) That the sentence of 7 years is manifestly harsh and excessive and wrong in principle.
[2] At the hearing, Mr. Gabriel appeared for the appellant and Mr. Khalyaan appeared for the Respondent.
As for the first ground of Appeal, Mr. Gabriel contended that the appellant had told Court that the complainant was very drunk while he was assisting her and had carried her home, hence she was not coherent enough to know what was going on.
4] Secondly, Mr. Gabriel urged that the medical report, P1, showed that the complainant had complained about trauma and never complained about sexual assault and that there was no evidence upon examination to show sexual assault on her.
[5] Thirdly, Mr. Gabriel contended that the learned trial Magistrate had relied on hearsay evidence to convict the appellant. Mr. Gabriel further submitted that it was not usual for a rapist to remain at the scene, for as if he was actually a rapist, he should have fled soon after committing the rape, but that his client had remained around at the scene. And Lastly that the reliance on the complaint's knickers falling from the appellants pockets was not proof of the rape.
[6] On the other hand, Mr. Khalyaan who appeared for the Respondent's supported the learned trial Magistrate's findings and judgment.
[7] I have carefully and analytically considered the evidence on record from both sides. I have also carefully perused the judgment of the learned trial Magistrate. The following facts appears from the Lower Court's Record are not contested.
1) Both the complaint and the appellant knew each other well for a long time.
2) They both saw and talked to each other on the material day.
3) The appellant offered to take the complainant home as she was drunk that evening, and the complainant accepted the offer.
[8] What is disputed is what had followed after the appellant had taken the complainant towards her home. The victim claims that the appellant on the way had put her down, pinned her with one hand and removed her knickers with the other hand and proceeded to rape her. She made noise and struggled and she fell in the march. Then people came to her rescue, including her daughter V and one P and others. Then the Police was called and she narrated her story to them.
[9] On the other hand, the appellant gave a dock statement wherein he denied the offence. He stated that he had met the complainant earlier on in the day who had borrowed SR200 for beers from him. That later on that evening he met her again at the shops where she was drinking and she became too drunk and incapable of taking herself home, and he offered to take her. He told the Court further that on the way home at the bridge, the complainant asked him to put her down, and he obliged. That then she removed her knickers to urinate. That she was to drunk and she fell over the bridge into the Marsh. That he rescued her and took her back to the bridge. Then Philomena came and the complaint told her that I raped her.
[10] The learned trial Magistrate reviewed the evidence before him and believed the prosecution side and found the appellant guilty as charged and convicted him of the offence of Sexual Assault and sentenced him to 7 years imprisonment; hence this appeal.
[11] As a first appellate Court, I am entitled to scrutinise and re evaluate the evidence of the Lower Court's Record as the learned trial Magistrate had done and come to my own conclusion.
[12] The complainant was a mature woman aged about 40 years. She says that she had been raped by appellant. Both the appellant and herself had been together on the material day. According to the appellant he gave her a total of about SR350 which she used to buy drinks. There is evidence on record that, when she was at the shops, she was too drunk and the appellant offered to take her home, which offer she accepted.
[13] The complainant stated that while on the way, the appellant put her down then leaned on her and raped her. The appellant agrees with putting her down but told Court that he had put her down upon her request so that she urinates. The complainant had further told Court that, the appellant had removed her knickers before raping her and which were later seen falling from his pocket by her daughter V.
[14] The medical evidence (exhibit P1) shows only injuries on her limbs and body caused by falling. The swab from her vagina however showed no spermatozoa. The question is,
does the absence of spermatozoa conclusively mean that the complainant was never raped? It is my considered view that it does not. First of all, the Complainant E is a mature woman of about 40 years of age. She produced a daughter, V, which means, she knows what sex is all about. She had told Court, that, the appellant had put his penis in her vagina. The learned Magistrate who saw her testifying believed her. The complainant had impressed the Magistrate as a truthful witness and that she was consistent and credible. As he had the opportunity to see her testifying, which opportunity I do not have here, I have no reason to disagree with him regarding her demeanour.
[15] Further, the Lower Court Record is devoid of any grudge or enmity between E and EC to show that she might have framed him. She had knew him very well and they had been together earlier on in the day. He was seen and he had admitted carrying the victim towards her home. He was found with her when she shouted for help.
[16] The mere fact that the medical report (P1) never revealed spermatozoa in her vagina, does not as I have already said, in itself mean she was not raped. First of all, the examination was carried out on the 20th of June, 2012. The offence was committed on the 18th June 2012. This is 2 days earlier on. The second medical examination was conducted on the 21/06/12. This was 3 days after the attack on the victim. Both reports were jointly tendered in as exhibits P1. The first report dated the 20/06/12, was regarding a vaginal swab taken from Ella. It found no spermatozoa. The only purpose of doing this test in my view was to determine whether she had been involved in a sexual activity. This means that she had actually complained of sexual assault hence the sexual examination.
[17] In any case a vaginal swab obtained 2 days after the fact could not reasonably be expected toreveal any spermatozoa given the fact that human beings are likely to bathe every day. Be it as it may, the presence of spermatozoa in the vagina of a victim of an sexual assault is not an essential ingredient of the offence of sexual assault as defined by Section 130 (2) of the Penal Code, which enacts as follows:-
a) An indecent assault
b) The non accidental touching of a sexual organ of another.
c) The non accidental touching of another with one's sexual organ,
d) The penetration of a body orifice of another for a sexual purpose.
This section clearly does not mention sustaining any injuries or a deposit of spermatozoa in the victims private part as a necessary element of the offence of sexual Assault.
[18] As for corroboration in sexual offences, it has been done away in other jurisdiction on the ground that, it is discriminatory to require females to provide corroboration of their evidence contrary to the provision of the Constitution. This is now the law in Australia, Canada, Ireland, and in East Africa.
[18] This also appears to be the view of their Lordships of the Seychelles Court of Appeal in the case of RAYMOND LUCAS VS THE REP SCA NO 17/09 . Their Lordships had the following to say:-
"In the preamble to our Constitution, we have recognised the inherent dignity and the equal and inalienable rights of all members of the human family as the foundation for the freedom and justice and declared to uphold the rule of law based on the recognition of the fundamental human rights and freedom enshrined in the Constitution and on respect for the equality and dignity of human beings"
Their Lordships then cited Article 27 (1) of the Constitution on rights to equal protection of the law, and continued:-
"to say that every complainant in a sexual assault offence case is less worthy of belief than another witness is an affront to their dignity and violates their right guaranteed under Article 27 (14)of the Constitution"
Their Lordships concluded that it was not obligatory on the Court to give a corroboration warning in cases involving sexual offences before convicting an accused person.
[19] The learned Magistrate in this case, believed the complainant as a convincing and credible witness hence there was no need for corroboration of her evidence as per Raymond Lucas casecited above.
[20] Secondly she had shouted and struggled with the appellant when he was raping her and had fallen in march below the bridge. This clearly showed that she never consented to the sex with the appellant. She also immediately complained and informed the first people to the scene, that the appellant had raped her. This was in the testimony of her daughter V and on P. Even the Police Officers who came were told of the same thing.
[21] Also, according to V, when they answered her mother's distress call, they saw the appellant emerge from the place where they found her laying on the ground. Another pointer is V telling Court that she saw E’s knickers fall from the appellants pocket.
[22] It is my considered view that taking all the above evidence, it points squarely to the appellant as the only person who had sexually assaulted the victim, E. The mere fact that she was drunk never diminished her capacity to know what had happened to her and to identify correctly the person who had had sex with her without her consent. There is no evidence on record to show that she was so drunk that she could not understand where she was, or whom she was talking to, or whom she had been with on the material day and time. On the contrary she recounted the events to the satisfaction of the learned trial Magistrate.
[24] All in all I find that appellant was properly found guilty and convicted for sexually assaulting the complainant by the learned trial Magistrate. I accordingly dismiss the grounds on conviction.
[25] As for the sentence being harsh and excessive, the appellant was sentenced to serve 7 years imprisonment. The Maximum possible sentence provided for under Section 130 (1) is 20 years.
The learned trial Magistrate stated in his ruling that he had taken into consideration the mitigating factors raised by the defence though he did not expressly state them on the record. But Mr. Gabriel who also had appeared for the appellant in the Lower Court, prayed for reasonable sentence given the fact that, both E and appellant were friends. However, in my view there was a breach of trust by the appellant against a friend who had relied upon him for a safe journey home. He had also volunteered to take her home when PW2 had offered to accompany her. Perhaps he might have had some sinister plans for her while offering to accompany her home.
[26] In my view, a sentence of 7 years imprisonment was reasonable given the circumstances of the case if not on the lenient side. Otherwise if the learned trial Magistrate had felt that the appellant deserved a heavier sentence than that he is allowed to impose, he should have re sorted to Section 7 (1) of the Criminal Procedure Code and commit him to the Supreme Court.
[27] All in all this appeal fails in toto. I confirm both the conviction and sentence passed on the appellant by the trial Court.
Order Accordingly.
Signed, dated and delivered at Ile du Port on 29/09/16
D Akiiki-Kiiza
Judge of the Supreme Court