Supreme Court of Mauritius, 10 juin 2020, 2020 INT 63 – POLICE v A. SUNNOO

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POLICE v A. SUNNOO

2020 INT 63

POLICE v A. SUNNOO CN: 678/18

THE INTERMEDIATE COURT OF MAURITIUS [CRIMINAL DIVISION]

In the matter of:-

Police

v/s

Ajaykumar SUNNOO, also known as Ajay Kumar

JUDGMENT: The accused stands charged with the offence of: Sexual intercourse with a mentally handicapped person, in breach of Section 249 (4) of the Criminal Code. He has pleaded NOT Guilty and he was assisted by Learned Counsel, Mr. B. Marie at the Trial. Ms. N.R. Patten, the then State Counsel, and Mr. R.G. Bookhun, State Counsel, appeared for the prosecution.

The Prosecution’s case: At the outset, the following documents were produced by the prosecution: – A Medico-Legal Report, dated 15/12/14, in relation to the examination of witness No.7, that is, the complainant (vide: Doc A); and – A Medico-Legal Report, dated 31/05/16, with regard to the examination of the accused (vide: Doc B).

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PC Ramroch, who had proceeded to Allée Brillant, Vacoas, in the company of accused, took one photograph at the spot [vide: Docs C (the booklet) & C1 (the photograph)]. PC Pyneeandee, went to the locus on 07/05/16, where the complainant indicated spots, in the presence of latter’s father and, on 12/05/16, the accused also showed certain spots. PC Pyneeandee took down notes and measurements, following which he drew up a plan (vide: Doc D). In cross-examination, he replied that it took him five minutes to take down notes and measurements on both occasions. Inspector Nauthoo, the main enquiring officer, produced one booklet containing two photographs, taken by PC Assenjee at the locus (vide: Doc E). He had put up a statement in which he has explained the photographs and the plan (vide: Doc F). Then, he read and produced four statements which he had recorded from the accused (vide: Docs G, G1, G2 & G3). Thereafter, he stated the following: An identification exercise was carried out, whereby the complainant identified the accused positively. As regards a mentally handicapped person, it is mentioned on the bus pass that the person is disabled. The purpose of holding such pass is to allow the person in question to travel free of charge. In the course of the enquiry, he has secured the complainant’s bus pass (vide: Copy of same – Doc H). When he put questions to witness No.7, he did not notice that she is mentally handicapped, save that she stammers. When one looks at her, she does not appear to be normal. No difficulty was encountered in recording her statement. During cross-examination, he answered as follows: It is not mentioned ‘mentally disabled’ on the bus pass. There was no difficulty in taking snaps of witness No.7 and accused. The complainant stutters slightly and she is not physically normal. Her face and the manner she speaks indicate that she is not normal. He did not mention in his statement that the complainant did not appear to be normal. Dr. Bharathi Goorah-Deenoo, psychiatrist, testified as follows: Following a request by the PMO for a mental state examination of the complainant, on 15 th October 2014, she examined witness No.7, following which she put up her findings in a document, dated 22/10/14 (vide: Doc J). The complainant has low intelligence and the latter is a case of mental retardation. She concluded that the complainant was fit to depone as a witness. She examined witness No.7 also on 16 th of October 2014, at Victoria Hospital and she drew up another Report, dated 14 th May 2018 (vide: Doc J1). The term ‘mental retardation’ is no longer used now, although it is currently used in Mauritius. It is a learning disability; it is characterized by incomplete development of the mind and it is assessed by carrying out an IQ test. A mild learning disability is when the IQ test result is 50 to 69 and the complainant falls in the category of mild mental retardation. The term ‘mentally handicapped’ was used long ago and that term includes the case of mental retardation. In the course of cross-examination, Dr. Goorah-Deenoo answered as follows: It took her 45 minutes to one hour to examine witness No.7. During the examination, she put questions to the complainant, who was, then, referred to the psychologist. The latter carried out the IQ test. A layman would know that witness No.7 is not a normal person like others, in the way she interacts and talks. She will use simple terms and she is different from others. If somebody is staying with the complainant, knows the latter for long, that person will know that witness No.7 is different from others. However, if somebody just comes

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across witness No.7 and talks to the latter, that person may not know about the complainant’s illness. In her Report (Doc J), she has mentioned that witness No.7 is well groomed, appears to be calm, is cooperative, replies to questions coherently, is well oriented in time, place and person, has low intelligence and the latter’s memory is not impaired. Those characteristics can be found in a normal person as well. In re- examination, she stated as follows: One does not necessarily have to live with witness No.7, but, at least, spend some time with the latter to know that the complainant is different from others. Five minutes will not be enough for that purpose. Witness No.7 testified as follows: She stays with her father and daughter, who is 4 years old. She does not know how to read and write. On 27/04/16, she gave a declaration at Vacoas police station, in the presence of her aunt, against the accused. She met the accused in the bus, whilst the latter was working as bus conductor. She showed to him her bus pass, which he examined. She does not pay for the bus fare, because of her mental illness. Then, he gave to her his phone number on a piece of paper and told her to call him as soon as she reached her house. When she called him, he requested her to meet him on the following day. On the next day, accused waited for her in Curepipe. After that day, she talked to him several times over the phone. The accused requested her to meet him near the SMF. It was the first time she went to meet him after she had seen him in the bus. He threatened her that if she did not follow her he would kill her with a cutter. The accused asked her about the reason she was using the bus pass, to which she answered that that is due to her illness. Thereafter, they had sexual relationship. The accused told her not to give any declaration to the police and, then, she left. It was the first time that she had sexual relationship. When she called him and informed him that she was pregnant, he stated that the child is not his. The child was born on 13 th December. She was not aware that she was pregnant until she was conveyed to the clinic from her place of work. Then, she gave the declaration. She did not report the matter swiftly, inasmuch as she was frightened, given that the accused threatened that he would kill her. In cross-examination, she replied as follows: On the first day she met the accused, the latter did not ask her about the bus pass; he tried to know about that pass over the phone. She told him that she had an illness, but she did not tell him the type of illness she was suffering from. During re- examination, she stated as follows: The accused had asked her about her illness and she told him that she had mental illness. Before the act of sexual relationship, the accused was aware that she was mentally ill. The case of the accused: In his out-of-court statement, dated 09/05/16, recorded at 10.00 hours, the accused has mentioned the following: He met witness No.7 for the first time in a CNT bus whilst he was working as a bus conductor. Frequently, they conversed through the phone. In the month of May 2014, he met her for a second and last time in a bus. On that day they alighted near the SMF, in Vacoas, and they walked till they reached Allée Brillant road. Then, they went to a wasteland, which was enclosed with concrete wall. They remained there for about 10 to 15 minutes. They started kissing and they had sexual relationship at that place. He did not force witness No.7 to do so. As far as he could remember, he did not ejaculate at all. He had sexual

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relationship with her for about five minutes. He is quite sure that she was not a virgin. Witness No.7 told him that, in the past, a man was courting her at her place. It is true to say that on the occasion that he was working as a bus conductor in the CNT bus, she showed to him her disable person’s bus pass in order to be able to travel free of charge. He checked that bus pass, after which he found that it was a valid one and it was meant for disabled persons. It is also true to say that he had written his phone number on a bus ticket and gave it the complainant, who called him numerous times. He phoned her and told her that he wanted to befriend her. He admits having had sexual relationship with witness No.5 at the material time, but denies having ejaculated in the complainant’s vagina. After that event, they kept contacting each other by phone. On 08/04/16, witness No.7 informed him that he got her pregnant and he disagreed. He knows the complainant well, but he was not aware of her illness. He finds that witness No.7 is a normal person. She never told him about her illness despite that he had asked her on several occasions. He finds it weird that she is mentally handicapped, given that her reasoning is sound, she has a good memory, they never had any quarrel and she never got angry. He agrees having had sexual relationship with witness No.7 and the latter consented to that, but he is sure that he did not ejaculate and the child is not his. In his second statement, dated 09/05/16, recorded at 13.15 hours, he has confirmed that he had sexual relationship with witness No.7. In Court, the accused testified as follows: The content of his defence statement is the truth. On the material date, he went to Allée Brillant, in the company of witness No.7. They talked to each other and he kissed her, but he did not have sexual relationship with her. He has mentioned in his statement given to the police that he had sexual relationship with the complainant. But, he denied to the police that he had sexual intercourse with witness No.7. They only chatted up each other and kissed. Then, he went away. On the day he was working as bus conductor in the CNT bus, witness No.7 showed to him her bus pass. He only looked at the complainant’s photo featuring on it and the date of expiry. The type of illness the complainant is suffering from was not mentioned on that bus pass. At that time, witness No.7 was smiling at him. Thereafter, she took his phone number. Subsequently, they conversed through the phone. She told him to meet her. He previously asked her how she had obtained the bus pass and she replied that the Government had given it to her, but she never imparted to him the reason this had been given to her. She never told him that she is mentally ill. He never had sexual intercourse with her. In cross-examination, he answered as follows: The content of his statement, dated 09/05/16, is true. The word ‘disabled’ was not mentioned on the bus pass at that time. Witness No.7 is well known to him, but he was not aware of her mental illness. He talked to her 2 to 3 times in a week and he met her only twice. He asked her twice or thrice the reason she had a bus pass for disabled persons, but she never answered. During re- examination, he stated as follows: The words sexual relationship means touching and holding of the body. He did not have sexual intercourse with the complainant and the latter never told him about her illness.

Determination:

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After having taken due consideration of the whole evidence on record, the Court has noted the following: To start with, the relevant provision of the law in this case is Section 249 (4) of the Criminal Code, which stipulates that, ‘Any person who has sexual intercourse with a minor under the age of 16 or a mentally handicapped person, even with his consent, shall be liable to penal servitude for a term not exceeding 20 years.’ Whilst it is trite law that the presence or absence of consent of the mentally handicapped person is not an essential component of the offence (vide: A. Rama v The State of Mauritius [2010 SCJ 249]), it is incumbent on the prosecution to prove beyond reasonable doubt the following essential elements of the offence: (1) The accused had sexual intercourse with the complainant; (2) The complainant was a mentally handicapped person; and (3) The accused had the relevant mens rea, that is, he knew that the complainant was a mentally handicapped person at the time of the alleged offence. The Court shall now consider the constitutive elements of the offence: 1.Did the accused have sexual intercourse with the complainant on the occasion as averred in the information? The act of sexual intercourse: It is noteworthy and clear that after having seen in Court that witness No.7 did not explain the meaning of the words ‘relation sexuelle’, the accused came up with a new line of defence, namely, he did not have sexual intercourse with the complainant. He testified that he and the complainant only chatted up each other and kissed. He added that he denied to the police that he had sexual intercourse with witness No.7. However, he has mentioned in his statement given to the police that he had sexual relationship with the complainant. It is amply clear that he has contradicted himself in respect of this material issue. Strangely, he tried to make the Court believe that according to his interpretation, the words ‘relation sexuelle’ has nothing to do with the physical activity of sex. For instance, when he was asked to explain those words, he stated “Relation sexuelle, comment dire ene draguer. Mone embrasser, line jouer jouer ar moi.” When further probed by learned counsel for the defence into the meaning of the words “jouer jouer”, the accused answered, “Toucher partout. Trappé mais jamais mone faire ene zafaire sexuelle qui mone mette endans ou soit décharge endans, jamais.” [Emphasis added]. It is plain in the case-in-hand that the accused is not telling the truth for the following reasons: (a) If he never did “ene zafaire sexuelle”, he would never have used the word “sexuelle” in his statement to the police in the following terms: “… mo fine gagne relation sexuelle avec li sa li vraie sa.” [Emphasis added]. (b) The following extract of his first out-of-court statement shed lights further into the matter: “Nou fine reste endans, nous fine cause cause, Nou fine embrassé et nou fine gagne relation sexuelle. Mo pas fine force [witness

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No.7] et li ti volontaire. tant ki mo rappelle mo pas fine decharge ditout.” [Emphasis added]. It can easily be deduced from that excerpt, especially when he mentioned “nou fine gagne relation sexuelle” and “mo pas fine decharge ditout”, that he knows full well the meaning of the words ‘relation sexuelle’. (c) Another instance to show that he is not telling the truth about this issue is when he mentioned in his said statement that “Mo sure et certain ki li [the complainant] ti pas vierge …”. This also indicates that he had sexual intercourse with witness No.7. (d) He stated that he has studied till Form 5, he is 50 years old and married. Therefore, it is quite difficult to believe and disingenuous of him to claim that he does not know the exact meaning of the words ‘relation sexuelle’. It is blindingly obvious that the Court cannot believe his altered version to the effect that he did not have sexual intercourse with witness No.7. As regards witness No.7, she confirmed that accused had sexual relationship with her. True it is that, in re-examination, she did not explain the meaning of ‘relation sexuelle’, despite that the same question was put to her numerous times, but the fact remains that there is a crystal clear admission by the accused in his first out-of-court statement that he indeed had sexual intercourse with the complainant on the day in question. Therefore, on the basis of the accused’s admission in his first out-of-court statement, the Court finds that, it has been established beyond reasonable doubt that he had sexual intercourse with the complainant on the occasion as averred in the information.

2. The complainant was a mentally handicapped person: Does the complainant fall within the meaning of ‘mentally handicapped’ as provided by Section 249 (4) of the Criminal Code? As regards the second element of the offence, there is undisputed evidence on record that the complainant is a person who suffers from a mental handicap. There is the unchallenged testimony of Dr. Goorah-Deenoo to the effect that the complainant falls in the category of mild mental retardation and the term ‘mentally handicapped’ includes the case of mental retardation. Therefore, on the basis of that evidence, witness No.7 falls within the meaning of ‘mentally handicapped’ as provided in the provision of the law and, hence, the prosecution has established beyond reasonable doubt that the complainant was a mentally handicapped person at the material time.

3. Did the accused know that the complainant was a mentally handicapped person at the time of the alleged offence? The next issue in line for consideration is whether the accused was aware that witness No.7 was a mentally handicapped person at the time of the alleged offence.

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In other words, could accused as a reasonable person be considered to have known of witness No.7’s mental condition? The accused testified that on the first occasion he met the complainant in the CNT bus, he only looked at her photo featuring on it and the date of expiry. He added that the word ‘disabled’ was not mentioned on the bus pass at that time. However, in his first statement given to the police, he has mentioned the following: “Si sa tifille [the complainant] dire ki première fois dans Bus CNT mo ti pe travaille cotte [sic] controleur et li fine montré moi ene passe bus pour li capave voyage gratis et passe bus li pou banne dimoune invalide. Sa li vraie et mo ti check passe la et li ti valable et ti pou banne dimoune invalide meme .” [Emphasis added]. Consequently, it is plain that, in Court, he has been economical with the truth. Therefore, he knew that witness No.7 was a ‘disabled’ person. However, that is not sufficient, inasmuch as the word ‘disabled’ in no way automatically and conclusively means that the person is mentally handicapped, as the person may otherwise be physically disabled. Indeed, the word ‘disabled’ has such a wide definition to the extent of encompassing both physical and mental illness that the specific or type of illness of the disabled person concerned remains shrouded in mystery. Of note, in this case, is that Section 249 (4) of the Criminal Code criminalises the act of sexual intercourse which is perpetrated solely and specifically against a mentally handicapped person. Thus, it is important to determine whether as a reasonable person he ought to have known that witness No.7 was mentally retarded. On that score, the evidence of Dr. Goorah-Deenoo and the police officers are crucial. To start with Dr. Goorah-Deenoo stated this is a case of mild mental retardation. She explained it took 45 minutes to one hour, plus an IQ test had to be carried out in order to assess whether witness No.7 is mentally handicapped. She added that a layman may not know that the complainant is not normal like others in the way she interacts and talks. The latter will use simple terms and a layman also may know that she is “a bit different”. Dr. Goorah-Deenoo further stated that if somebody is staying with the complainant, knows her for long will know that the latter is different from others. The psychiatrist testified that if somebody comes across witness No.7 and talk to her, that person might not know of her mental illness. It is noteworthy, in her Report, Dr. Goorah-Deenoo has mentioned the following with regard to the complainant’s mental state examination: – “The subject is well groomed – She appears calm and is cooperative – She replies to questions coherently – She is well oriented in time, place and person – She has low intelligence – Memory is not impaired” Dr. Goorah-Deenoo agreed during cross-examination that one can find those above- mentioned characteristics in a normal person. She explained that, at least, one must spend some time with the complainant to know of the latter’s mental illness and five minutes will not be enough. Indeed, PC Pyneeandee stated that witness No.7 did not have any problem in showing certain spots at the locus and it took five minutes, including the time he took

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down notes and measurements. This shows that the complainant had all her mental faculties. Similarly, the same exercise was carried out again for five minutes when the accused was taken to the locus. Therefore, the time taken to carry out that exercise with the complainant is a pointer that there was no impediment, in any manner whatsoever, encountered from her by the police. Furthermore, Inspector Nauthoo testified that if someone talks to witness No.7, one will not know whether she is mentally disabled and that is quite revealing. He stated that he did not have difficulty in conversing with the complainant, save that she slightly stutters. Obviously, it does not necessarily mean if somebody stammers a little that the person is mentally retarded. The main enquiring officer further stated that witness No.7 looks slightly abnormal physically, but the police did not have any problem to record her statement or in respect of any other exercise. Again, if somebody’s physical appearance is slightly abnormal, it is not in any manner conclusively indicative that the person is mentally retarded. To put it another way, any physical abnormality of a person in appearance cannot constitute an absolute clue or hint that the person is mentally handicapped. Inspector Nauthoo added that it is the psychiatrist who said that witness No.7 is mentally handicapped. Thus, it transpires from the evidence given by the police officers that it is not easy to know if witness no.7 is mentally retarded. The Court had the opportunity to watch the complainant testifying and it is, indeed, difficult to discern that she suffers from a mild mental retardation. As learned counsel for the defence rightly submitted, it took the psychiatrist 45 minutes and with the help of the IQ test results that she concluded witness No.7 is slightly mentally retarded. Accused making acquaintance with witness No.7: The accused met witness No.7 once in the CNT bus. However, that in itself is not sufficient for the accused to detect the complainant’s mental illness. Although he was aware that she is disabled, there was no indication given in the bus pass that she has a mild mental retardation. The phone conversations: In relation to the phone calls between the accused and witness No.7, the Court cannot come to the conclusion that through those phone conversations the accused ought to have known that the complainant is mentally ill, as no evidence has been adduced with regard to the length of those phone conversations . In the circumstances, it cannot be said that the numerous phone calls to the complainant would have revealed her mental illness, especially when taking into account the observations made by Dr. Goorah-Deenoo as cited above and confirmed by the Medico-Legal Report, in which the Police Medical Officer has mentioned the following: “On examination Average built Fully conscious, well orientated. Calm and cooperative.

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Speech coherent. Memory good.” All these characteristics would deceive somebody into believing that the complainant is a mentally normal person and no one would doubt of her mental illness. Equally, the accused, like any other person would not be aware of her mental illness. Clearly, on the basis of that Report and that of the psychiatrist, it will not be possible for a reasonable person to notice witness No.7’s mental illness over the phone. The second time accused met witness No.7: As regards the second time as well when accused met the complainant, similarly, it would have been quite difficult for a reasonable person to have been aware of her mental illness. It is plain from the testimony of the psychiatrist that only if somebody lives in the same house with witness No.7 or spends considerable lapse of time with the latter that the person will become aware of the complainant’s mental illness. Therefore, given the circumstances of the present case, there is no evidence to suggest that a reasonable person would have detected a mental problem with the complainant before or at the time of the alleged offence or ought to have known that witness No.7 had a mental handicap before and during the time of the alleged offence. Now, the only way that accused could have known of the complainant’s mental illness is if the latter divulged it to him. In his first out-of-court statement, he has mentioned that he was not aware of her illness. According to him, witness No.7 is a normal person, who never told him about her illness despite that he had asked her on several occasions. In Court, he maintained that he did not know about the complainant’s mental illness. He stated that two to three times he had asked her the reason she had a bus pass for disabled persons, but she never answered. By the way, it is worth noting that even in examination-in-chief, the complainant was hesitant to reveal that she has a mental illness. Moreover, in cross-examination, witness No.7 agreed that although she told accused she is ill, she did not inform him of the fact that she was mentally retarded. However, in the course of re-examination, she contradicted herself on this material issue by stating the contrary. In Rawoteea v The State of Mauritius [2014 SCJ 85], the court referred to the case of R v Bellamy (1985) Cr App. R 222, where the competence of the victim of an alleged rape who suffered from a mental disability was investigated by the trial judge and it was held that one of the principles which emerged is that, “It would ultimately be incumbent upon the Court, where the witness is found to be competent and admitted to give evidence, to determine what degree of credit is to be given to his testimony, taking into consideration the mental state and level of intellect of the witness.” [Emphasis added] In the present case, the Court bears in mind that the complainant has low intelligence, she is a case of mild mental retardation, as stated by the psychiatrist, and also the time lapse between the time of the alleged offence and the trial. But one cannot lose sight of the fact that she has contradicted herself with regard to the material issue in hand and this has introduced enough uncertainty as whether she

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told accused about her mental illness. Thus, she cannot be relied upon by the Court on this aspect. Turning to the issue of corroboration, in K.O. Kassim v R [1988 SCJ 70], it was held as follows: “The evidence of witness A. Mohamedally was simply worthless. The question of corroboration simply did not arise. The rules relating to corroboration do not exist so that the evidence given by a witness who is confused, forgetful, dishonest or lying, should be improved. If a witness is found not to be credit worthy then his testimony should not be acted upon and that is the end of the matter.” [Emphasis added] Hence, first of all, a witness must be found to be a credible one before the Court embarks on relying on corroborative evidence. The prerequisite test is, therefore, whether the witness is a credible one. As already mentioned above, witness No.7 has contradicted herself on a crucial issue, in relation to a key element of the offence, which has led to confusion and, additionally, she testified that accused had threatened to kill her, an important fact which she has not mentioned in her statement. Those serious discrepancies have, inevitably, chipped away at her credibility and, thus, the Court does not find her to be creditworthy. Hence, her version cannot be safely relied upon by the Court. The Court is alive that a lie told by an accused in certain circumstances may be relied upon “to support evidence of guilt as opposed to merely reflecting on the defendant’s credibility” (vide: S. Ramen v The State [2013 SCJ 215]), but in the present case, the Court finds that the lie of the accused cannot constitute corroboration. Thus, there is no evidence to confirm and corroborate witness No.7’s version that she told accused about her mental illness. As a result, in view of the evidence which have unfolded, it will not be safe for the Court to impute any knowledge on the accused for having known the mental disability of witness No.7 at the material time and, therefore, the Court has no alternative but to give him the benefit of the doubt in respect of this element of the offence. Hence, the guilty intent to abuse a mentally handicapped person has not been proved. In other words, the requirement to prove the wilful and unlawful sexual intercourse with a mentally handicapped person has not been satisfied. True it is that the accused has not told the truth on certain issues as highlighted above, but it is trite law that the burden is on the Prosecution to prove the guilt of the accused and not the latter to prove his innocence as stated by the Supreme Court in Ah Pat Lee Kive Fong v The Queen [1959 MR 62] as follows: “The onus thus remains throughout upon the prosecution to prove the guilt of the accused, and if, upon a review of all the evidence, the trial Court (or jury as the case may be) is not satisfied, even if the accused's explanations are not accepted, that he is guilty, then he is entitled to be acquitted.” [Emphasis added] All in all, the Prosecution has not established beyond reasonable doubt that the accused knew the complainant was a mentally handicapped person at the time of the alleged offence.

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CONCLUSION: In the light of the foregoing observations, the Court finds that the Prosecution has failed to prove its case against the accused beyond reasonable doubt. The Court, accordingly, dismisses the present case against the accused.

Mr. P. SEWPAL Ag. Vice-President Intermediate Court Date: 10/06/2020