Supreme Court of Mauritius, 10 juin 2020, 2020 INT 64 – POLICE v B. DUSSYE

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POLICE v B. DUSSYE

2020 INT 64

POLICE v B. DUSSYE CN: 1013/18

THE INTERMEDIATE COURT OF MAURITIUS [CRIMINAL DIVISION]

In the matter of:-

Police

v/s

Bardwaz DUSSYE, also called Dassye and Garҫon

JUDGMENT: The accused stands charged with the offence of: Rape, in breach of Section 249 (1) (1A) of the Criminal Code. He has pleaded Not Guilty to the charge and he was assisted by learned counsel, Mr. L. Servansingh. Learned State Counsel, Miss Tiwari appeared for the Prosecution.

The Prosecution’s case: At the outset, the following documents were produced by the prosecution:

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– A Medico-Legal Report, dated 02/04/15, in relation to the examination of witness No.7, that is, the complainant (vide: Doc A); and – A Medico-Legal Report, dated 21/09/17, with regard to the examination of the accused (vide: Doc B). CPL Ramroop produced a booklet, containing four photos (vide: Docs C, C1 to C4) in relation to a reconstruction exercise. In cross-examination, he answered as follows: An incomplete building features on Doc C1 and there is a door at the front part of the building. However, there is no door in the first room. During re- examination, he stated that Doc C1 does not provide a full picture of the house. PC Naicken testified as follows: On 30/09/17, he attended to the present case of rape at Morcellement Rouillard, Pavillon, Cap Malheureux, where in the presence of witness No.7, he took down notes and measurements, following which he drew up a plan of the locus (vide: Doc D). Under cross-examination, PC Naicken replied that there are no doors in the prayer room and room ‘B’ as per the plan. In the course of re-examination, he stated that the space between the prayer walls is an opening to have access to the room. There is also an opening in the adjacent room. SI Sewtohul stated as follows: The complainant’s house is found at the front and that of accused is located at the rear. The access to the accused’s house is on the left side and at the rear of the first house. The house is comprised of, inter alia, three rooms and one kitchen. The entrance to the prayer room is on the left side when entering at the main entrance. The bedroom at point ‘B’ is next to the prayer room. Then, he produced his statement (vide: Doc E), in which he explained the photos and the plan. This witness was not cross-examined by Mr. Servansingh. PS Haurdhan read and produced the statement of the accused (vide: Doc F). In the course of cross-examination, PS Haurdhan replied as follows: He did not recover either the clothes which the complainant was wearing on the day of the alleged offence or the knickers allegedly given by the accused to witness No.7 as gifts, as she did not produce any such underwear. Witness No.7 testified as follows: At the time of the alleged incident, she was staying with her husband and two children at Pavillon, Cap Malheureux. The accused, who resides close to her house, is her husband’s uncle. In the distant past, she was solely using the toilet and the bathroom found in the house of the accused and only her husband went to the accused’s place frequently. When the alleged incident arose, she stopped going to the accused’s house. In the month of December 2014, the accused told her that a prayer should be done in order that her husband would continue to stay with her. He required her underwear and that of her husband to perform the prayer. After the prayer, the accused told her to undress herself so as to go to the bathroom. Then, he tried to pull her into a room. She tried to set herself free from his grip. Subsequently, he dragged her into a room, which was adjacent to the prayer room, and pushed her on a bed. She struggled and escaped. But, when she tried to open the door, it was closed. The accused had closed the two entrance doors of the house, including the one leading to her house. He pulled her once again into the room. She struggled anew. On that day, the accused was wearing only a short and he removed same. At that time, she was wearing a long dress, of colour

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grey. The accused did not remove her dress, but lifted it. Then, he removed her underwear. She struggled, but to no avail. Subsequently, he inserted his penis into her vagina. At that time, he grabbed her hand and she could not struggle. The accused had sexual intercourse with her for about 30 minutes and she felt ill at ease. She could neither report the incident to anybody nor sleep with her husband. The accused threatened her that he would cause the death of her husband if she were to divulge this incident to anybody. Thereafter, her husband informed her that the accused had told him that the accused had slept with her. She imparted to her husband the truth, following which her husband requested her mother to fetch her and her two children. On that day, her husband went to the police station. She stayed with her parents for one year and, then, her husband started to live with her anew. She was not on good terms with the accused before the alleged incident. The accused tried to contact her, but she is oblivious to the reason he was doing so. On a Sunday, that is, 7 th March 2015, her husband had a discussion with the accused’s wife, because on the 15 th of July, the accused had given to her underwear, which the latter had placed on the windowsill. However, she did not wear it. It was the sole occasion when the accused had given her underwear. As a result, her husband had a row with her and had beaten her black and blue. She did not reveal the alleged incident to any member of her family, inasmuch as she was frightened. On 7 th of March 2015, at 20.30 hours, she did not threaten the accused’s wife. She received phone calls from her mother-in-law and husband, who blamed her of having been in the accused’s company in Port Louis. She retorted to the accused’s wife and swore at the latter for having told a lie. In cross-examination, she replied as follows: On 16 th

March 2015, she gave a statement to the police wherein she has mentioned the following: On 7 th March 2015, at about 11.00 hours, there was a discussion. On 11 th

March 2015, she returned to her husband’s house and on 13 th March 2015 she had a quarrel with her husband. On 15 th July 2015, the accused placed an underwear on the windowsill. She could not remember the date of the alleged incident, because she had headache, but, the offence was allegedly committed on a weekday. Quite often, she has discussions with her husband because of the accused and the latter’s wife.

The case for the defence: In brief, the accused, has mentioned the following in his out-of-Court statement: He works as fisherman during the day and security officer at night. He goes out fishing at about 06.00 hours and he returns at about 15.00 hours. He is married to his wife for 27 years and he has four children. His wife works as maid in a bungalow on weekdays. There is another house in the same compound which belongs to his stepbrother, who lives together with latter’s wife, son and daughter-in-law. He was on good terms with them, but due to a problem which arose in the month of March 2015, he does not see them quite often. He prays in a room and outside his house. His stepbrother’s son, daughter-in-law and two grandchildren used to come over to his place for prayers. However, since the month of March 2015, they have ceased to do so, as they are no longer on good terms. He denies that in the month of December 2014, at about 13.00 hours, he called his stepbrother’s daughter-in-law,

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that is, the complainant to his place in order to do prayers. He never prays at this hour; the more so as at that time he was fishing and was not at home. It is false to say that he told the complainant to bring her underwear and that of her husband so as to conduct prayers. He does not understand what prayer has got to do with underwear. It is also not true to say that after the prayer, he told the complainant to go into a bedroom, as he had to speak to her. She never came to his house when he is alone. He denies having raped her in that room and he never gave her knickers as gifts after the alleged incident. He is a religious person and he considered her as his daughter-in-law. He does not know the reason witness No.7 has levelled a false charge against him, but he thinks that that is due to a discussion which arose between his wife and the complainant on 7 th March 2015. Since the said discussion, he has ceased to talk to the complainant and the latter’s husband. Briefly, in Court, the accused testified as follows: Everything he has mentioned in his statement is true; he did not commit the present offence. Under cross-examination, he replied as follows: He denies the charge of rape and he is of the opinion that the complainant has levelled the present charge against him out of vengeance, because she previously had a discussion with his wife. He was in a state of shock when he learnt about the charge from the police. Mrs. R. Dussye, the wife of accused testified as follows: She works as maid on weekdays, from 08.00 hours till 12.00 hours, after which she returns to her house. The accused does not come back before 16.00 hours. The complainant is her daughter-in-law and the latter’s husband is her sister’s son, whom she considers as her son. On 7 th March 2015, she heard witness No.7 discussing with the latter’s husband. After she intervened, witness No.7 reproached her for being the cause of the state of affairs and threatened her in a manner which foreshadowed that harm would be done to members of her family. In short, under cross-examination, she answered as follows: She works at Grand Bay and it takes about 30 minutes to reach to her place of work by taxi. She is at home at 13.00 hours.

ANALYSIS: The offence of rape is defined in M. Garraud, as follows: “Le viol est le coït illicite avec une femme qu'on sait n’y point consenter” and “le viol est le fait de connaitre charnellement une femme sans la participation de sa volonté” Garr. IV, 452, IV 1816. The elements which constitute the crime of rape are enumerated in Garçon Code Penal Annoté, note 14 as follows: “(a) La conjonction sexuelle normale et illicite; (b) L'emploi de la violence ou plutôt l'absence de consentement de la femme; (c) L'intention criminelle de l'agent.” The Court shall now consider the evidence adduced by the prosecution.

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The Medico-Legal Report, in relation to the examination of the complainant: The alleged incident occurred in the month of December 2014 and the Report is dated 2 nd April 2015. Thus, the Report is not of much assistance to the Court in respect of the first element of the offence, save that it shows the complainant is not a virgin. In Director of Public Prosecutions v S. Beeharry [2007 SCJ 89], the court referred to the extract from William Wilkinson [1995 CA 81], where Lord Taylor CJ, with regard to absence of medical evidence, had this to say: “It is said there was no medical evidence available. However, that unfortunately occurs even if there is a comparatively short delay after the alleged events and before the matter is reported. Medical evidence can only be relevant if it is obtained very shortly after the alleged incident, otherwise either there is nothing to see, or what there is to see may be attributable to matters which have arisen since the alleged offences …” [Emphasis added]

Is the complainant a credible witness? As far as the accused is concerned, he denies having sexual intercourse with the complainant in the first place. The prosecution is relying upon the sole testimony of witness No.7 to prove both elements of the offence. In G. Saman v The State [2004 SCJ 3], the Court stated that “The general rule is that a Court is entitled to act on the sole and uncorroborated evidence of a witness who is a victim in a sexual offence case where the Court finds the witness truthful and has addressed its mind to the danger of acting on uncorroborated evidence.” [Emphasis added]. Mindful of the nature of the charge against the accused and the desirability of corroboration, the Court is, thus, alive to the fact that it can nevertheless act on the sole testimony of a complainant in a sexual offence case, subject to the condition that the complainant is a credible witness whose testimony has stood the test of cross- examination. Therefore, the Court has to determine whether witness No.7 is a credible witness. At the outset, the Court wishes to point out that witness No.7 has not been a convincing witness for the following reasons: 1. When the defence statement was recorded, it was put to the accused that after the prayer, he allegedly told witness No.7 to go to the bedroom as he had to talk to her. And, it is well established that “In a criminal case it is normal to assume that the version that is put to an accused party when recording his or her defence is the very complaint that was made by the victim.” (vide: P. Marday v The State [2000 SCJ 225]). However, in Court, witness No.7 gave a different version by testifying that after the prayer the accused allegedly told her to get undressed and to proceed to the bathroom.

2. It was additionally put to the accused whilst recording his statement that after the prayer, he told witness No.7 to go into the bedroom and as soon as they were there, he pushed her on the bed. But, witness No.7 gave a different

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sequence of events by testifying that after the accused told her to go to the bathroom, he pulled her into the bedroom. Hence, there is a discrepancy in witness No.7’s version regarding the circumstances in which the alleged incident occurred. Such contradiction undermines her credibility.

3. She testified that after the accused pulled her to the bed, she managed to escape, went to the door and was dragged anew by him to the bedroom. But, this fact was never put to the accused at the time his statement was recorded. Again, there is a contradiction by witness No.7 in the manner the offence was allegedly committed.

4. She added that the first time the accused pulled her to the bedroom, he was not successful in removing her knickers and that the accused removed her underwear only on the second occasion she was dragged to the bedroom. But, this fact was not put to the accused at the time the defence statement was recorded.

5. She testified that the accused took off his short and at that time she was still wearing all her clothes. However, according to her initial version, which was put to the accused when the latter’s statement was recorded, the accused removed her knickers and, then, took off his short. Hence, she has again related a different sequence of events in Court.

6. She further stated that the accused had sexual intercourse with her for about 30 minutes. But, according to her version, which features in accused’s statement, the accused allegedly had sexual intercourse with her for only 15 minutes. Clearly, she has contradicted herself on this issue. The Court notes that there is a difference between 15 and 30 minutes.

7. At first, she testified that she does not know where accused went after the alleged incident. However, in the blink of an eye, she contradicted herself by, thereafter, answering that accused went to the bathroom.

8. She testified that she did not have a close relationship with the accused before the alleged incident. She further stated that she did not also speak to him before the alleged commission of the offence. Therefore, the Court finds it strange that in spite of that she allegedly went to the accused’s place in respect of a prayer, putting her trust in the latter, especially being fully aware that accused was alone in the house. When such implausibility was put to her during cross-examination, she altered her version by stating that they were on speaking terms long time ago.

9. She stated that on 7 th March 2015, her husband had a discussion with accused’s wife, inasmuch as on 15 th July, the accused had given her underwear and she also added, in the course of her testimony, that that was the only occasion the accused did so. But, under cross-examination, she contradicted herself by agreeing that on 15 th July 2015, the accused gave her

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that gift. Hence, she has given a confused account of the timing of the alleged events. Such incoherent narration of events renders her version quite implausible and doubtful.

10. She further stated that if she were to reveal the alleged incident to anybody, the accused threatened her that her husband would be killed and she maintained that she imparted same to the police. However, that is not found in her statement to the police.

11. In her statement, she has mentioned that, at the material time, in order to subdue her, the accused grabbed her right hand with his right hand. But, in Court, she testified that accused seized her with his left hand. When this discrepancy in her version was put to her in cross-examination, she chose not to answer. Witness No.7’s contradiction in relation to details, which are related to the offence, cannot be minimized (vide: I. Naeck v The State [2009 SCJ 435]).

12. Another discrepancy which popped up in her testimony is when she testified that on the material day, her knickers was of colour black. However, she had told the police that on the day in question, she was wearing an underwear, of colour red. When faced with this contradiction in cross-examination, she ingeniously explained that her underwear was black with red dots. Her testimony is in stark contrast with the version she has given to the police. Moreover, she stated that, on that day, she was wearing a dress, of colour grey. But, she had told the police that her dress is black and when this discrepancy was put to her, her testimony took another odd twist at this point. Strangely, she answered “Li ene robe tic noir.” When it was put to her that, in fact, she had told the police that her dress is of two colours, namely, black and white, surprisingly, she replied that the dress is multicoloured. She was making her evidence up as she went along in response to the perceived difficulty in answering the questions in a manner consistent with her version.

13. She denies that on 7 th of March 2015, at 20.30 hours, after she had a discussion with her husband, she quarrelled with the accused’s wife when the latter intervened. However, later she agreed having had a row with the accused’s wife at that time. Thereafter, she again contradicted herself by stating that she did not quarrel with the accused’s wife. Hence, she kept altering her version at her pleasure.

14. When the defence statement was recorded, it was put to the accused that after the alleged incident, he allegedly gave to the complainant “banne culotte en cado” on several occasions. But, in examination-in-chief, she testified that on the 15 th of July, it was the sole occasion when the accused had given her underwear. However, in the course of cross-examination, she agreed that she received underwear on numerous occasions from the accused. When she was again asked whether the accused gave her underwear, she sidestepped the question by answering “Mo pas reste la bas astere.” To make matters

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worse, she replied under cross-examination that accused gave her bra as well.

15. Lastly, the fact that the complainant was severely beaten up by her husband and the accused’s wife, being allegedly the root of her troubles, the possibility of the complainant levelling a false charge against the accused is real and cannot be excluded. Hence, a scrutiny of the Court record has revealed that witness No.7 has been inconsistent on numerous issues. True it is that almost five years have elapsed since the time of the alleged offence and witness No.7’s testimony, but the court cannot lose sight of the fact that she has contradicted herself on the manner and with regard to the surrounding circumstances in which the offence was allegedly perpetrated by the accused. Of note, some of these contradictions concern matters of substance. When considering all the various discrepancies as a whole, the Court finds that this renders her testimony doubtful, adversely affects her credibility and makes her version unsafe to be relied upon. It is extremely difficult to rely on her sole testimony, which is incoherent and riddled with contradictions. Of relevance here is the case of P. Roussety v The State [2018 SCJ 150], where the Supreme Court held that, “Even if it is argued that, taken in isolation, none of the imperfections highlighted above, would justify reversing the judgment, their cumulative effect, in our view, is such that it was unsafe to convict the appellant on such evidence.” [Emphasis added] Similarly, in the present case, the cumulative effect of all the contradictions, taken as a whole, is such that the uncorroborated version of the complainant cannot be safely acted upon. As far as the accused is concerned, he testified in a categorical manner and he maintained vehemently that he did not commit the present offence. Furthermore, he withstood the test of cross-examination. All in all, the Court finds that all the elements of the offence have not been established beyond reasonable doubt.

CONCLUSION: In light of the foregoing observations, the Court is of the considered view that the accused should, at least, be given the benefit of the doubt. Therefore, the prosecution has been unable to prove its case beyond reasonable doubt against the accused. The Court, accordingly, dismisses the present case against the accused.

Mr. P. SEWPAL Ms. A. HAMUTH

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Ag. Vice-President Magistrate Intermediate Court Intermediate Court Date: 10/06/2020