R v DS (CR 73/2017) [2020] SCSC 232 (02 April 2020);

Flynote: 
Headnote and Holding: 

Offence of sexual assault contrary to section 130(1) read with section 130(2)(d) and 130(3)(b) of the Penal Code - child aged II years old - submission of no case to answer.

DODIN J

  1. The accused, DS stands charged with one count of sexual assault contrary to section 130(1) read with section 130(2)(d) and 130(3)(b) of the Penal Code. The particulars of the offence are that on the 2nd December 2017, at Les Mamelles, Mahe, the accused who is 45 years old, sexually assaulted DJ (name withheld) a minor girl aged 11 years old by penetrating her vagina for sexual purpose. 
  2. The brief facts of the case as related by the prosecution witness are that on the 2nd December 2017, whilst DJ was on an errand for her mother, she came across the accused who is the father of a boy (name withheld). The accused told DJ to tell the boy to come and get his money. After returning home DJ informed the boy of his father’s (accused) message and the boy asked her to accompany him to his father’s (accused) place. Arriving there the accused called DJ into a room whilst the boy was watching movies in another room. Reluctantly, DJ went into the room where the accused was and there the accused removed her clothes despite her objection and after also removing his shorts and boxer he pressed her on the bed and had sexual intercourse with her for about 15 minutes. After it was over he gave DJ and the boy a lollipop each and one hundred rupees to share by 50 rupees each.
  3. After the incident, DJ went home but did not tell anyone what had happened until she fell ill and noticed boils around her private parts. She then told her mother who took her to the police and to hospital. DJ was diagnosed with genital herpes and was admitted in paediatric ward for 7 days for treatment. The accused was also tested for sexually transmitted diseases and diagnosed with herpes virus 1 and 2 as well as Chlamydia. At the time definitive integrity of DJ’s hymen could not be established due to the lesions and swollen state of her vagina. DJ maintained in her testimony that she had never had any sexual encounter other than with the accused on the 2nd December 2017.     
  4. At the close of the case for the prosecution learned counsel for the accused moved the Court to rule that the accused has no case to answer considering that the evidence adduced by the prosecution, particularly the virtual complainant’s (DJ) had not been corroborated at all. There is no supporting evidence that it was the accused who caused the breach of DJ’ hymen or how she contracted the sexually transmitted disease (STD) because the prosecution did not adduce any evidence to establish that DJ did not have the STD before the date of the alleged incident and that the accused had the STDs on the date of the incident. Learned counsel further submitted that DJ’s version of what happened on the 2nd December 2017 was not corroborated or supported by any other evidence and the boy who allegedly accompanied DJ was never called to testify. Learned counsel submitted that the complainant (DJ) was not telling the truth before the Court as she gave different versions of the same events. Learned counsel moved the Court to find that the accused has no case to answer and to acquit the accused accordingly.     
  5. Learned counsel for the prosecution submitted that the prosecution has established a prima facie case against the accused in that all the elements of the offence have been proved. Learned counsel submitted that it is unlikely that an 11 year old child would have the capability to fabricate evidence and that any misunderstandings during cross-examination were cleared in re-examination. Learned counsel submitted that there was no issue with about whether DJ’s hymen had been breached or not because the same could not be examined due to the lesions and swollen state of DJ’s vagina. As to the STD, leaned counsel submitted that the medical evidence established clearly that herpes had an incubation period of up to 10 days and DJ was examined 8 days after the incident. According to the evidence of Doctor Morel, the accused had herpes infection at the time although he was not showing acute physical symptoms. Learned counsel further submitted that the Court can convict on the uncorroborated evidence of a victim after warning itself of the danger of such a conviction. Learned counsel moved the Court to find that a prima facie case has been established by the prosecution and therefore the submission of no case to answer should be dismissed.
  6. When determining whether an accused person has a case to answer the Court has to make an assessment of all the evidence adduced by the prosecution and make a determination on:
      1. Whether all the elements of the offence have been established by the prosecution and therefore a prima facie case against an accused has been established; or
      2. Whether the available evidence has been so compromised by the defence or by serious inconsistencies in the prosecution’s testimonies that such evidence taken as its highest would not properly secure a conviction.
  7. In the case of R v Galbraith [ 1981 ] 1 WLR 1039 Lord Lane CJ had this to say in respect of a submission of no case to answer:

“How then should a judge approach a submission of ’no case‘?
If there has been no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence. Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’ reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury ... There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.”

  1. A submission of no case to answer would be upheld where there was no evidence that the accused committed the offence charged or any other offence of which he might be convicted thereon. The test to be applied to determine the sufficiency of the evidence is not whether there was evidence upon which a reasonable court should convict but whether the evidence presented by the prosecution is of such a nature that a reasonable tribunal of fact, properly instructed, might convict the accused. 
  2. Where the prosecution’s evidence fails to address any particular element of the offence at all, no conviction could possibly ensue and the Court should allow the application of no case to succeed. Where there is some evidence to show that the accused committed or must have committed the offence but for some reason such evidence seems unconvincing, the matter is better left for the end of the trial where the evidence would be weighed and the Court would reach a verdict after assessing the witnesses’ credibility together with all available evidence.
  3. Where the available evidence has been so compromised by the defence or by serious inconsistencies in the prosecution’s testimonies, the Court must determine whether the evidence adduced taken as its highest would not properly secure a conviction. If the Court determines that in such a circumstance a conviction could not be secured, the submission of no case to answer would also succeed. The question to be asked in this case is whether at the close of the case for the prosecution, the prosecution has presented sufficient evidence upon which a reasonable court, acting carefully, might convict the accused. See also the cases of Green v. R [1972] No 6, R v. Stiven [1971] No 9 and R v. Olsen [1973] No 5.
  4. The evidence presented by the prosecution is consistent in that the victim, DJ, was 11 years old at the time. She had been infected by a STD namely herpes within the previous 10 days of her medical diagnosis. The accused was at the relevant time a carrier of herpes virus 1 and 2 which although was asymptomatic could be transmitted by sexual intercourse. Although the son of the accused was not called as a witness, DJ testified that she went with the boy to his father on the 2nd December 2017 and that the accused called her into a separate room whilst the boy was watching movies in another room. In any event, the defence can call the boy to testify if his evidence would be of assistance to the accused’s defence and the Court.
  5. The Court can certainly convict without requiring corroboration in a case of sexual assault if the evidence of the victim/complainant is cogent and has not been discredited by cross-examination. However at this stage it is not a question of conviction but whether there is sufficient evidence establishing a prima facie case against the accused. By going on the evidence adduced particularly the evidence of DJ, Doctor Balesteros and Doctor Morel, I find that the evidence adduced has established a prima facie case that the accused had the opportunity on the day in question to sexually assault the complainant and infected her with the STD. 
  6. Consequently I find that the accused has a case to answer. The submission of no case to answer therefore fails and is dismissed accordingly. The accused is called upon to make his defence.

 

Signed, dated and delivered at Ile du Port on 3 April 2020.

 

 

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Dodin J