Supreme Court of Mauritius, 12 juin 2020, 2020 INT 92 – POLICE v FRANCOIS MICHAËL LUDOVIC CONSTANCE

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POLICE v FRANCOIS MICHAËL LUDOVIC CONSTANCE

2020 INT 92

IN THE INTERMEDIATE COURT OF MAURITIUS (CRIMINAL DIVISION)

Cause Number 293/2017

In the matter of:

POLICE v FRANCOIS MICHAËL LUDOVIC CONSTANCE

Judgment 1. Francois Michaël Ludovic Constance, the accused, is a cook in his mid-twenties, residing at Eau Coulée. He stands charged with having had unlawful sexual intercourse with a minor under the age of 16, in breach of Section 249(4) of the Criminal Code under Counts 1, 2, and 3 of an information and with sodomy under Count 4, in breach of Section 250(1)(2) of the Criminal Code.

2. The accused changed his plea of not guilty under the first three counts of the information to one guilty when the case came for trial for the first time and he has pleaded not guilty to Count 4. He was represented by counsel in the course of the proceedings.

3. The case for the prosecution was conducted by State Counsel.

4. In a nutshell the undisputed facts of the case are these. The accused was eighteen years old at the time he started to have consensual sexual intercourse with his then girlfriend, to whom the Court shall refer as ‘M’, who was a 15-year-old girl. Their sexual activity, which started in September 2013, took place on several occasions at different places, including the residence of M, in the car of her grandfather, and in abandoned houses. M eloped with the accused on 30 September 2014 as her parents did not approve of their relationship. They ended up in an abandoned building used as a refuse depot in Mahebourg where they were sexually intimate. M however alleges that their sexual activity which took place on two occasions that day included anal intercourse

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once. The accused has from the very beginning, since his out of court statement to the police was recorded, denied having committed the crime of sodomy on M.

Analysis Count 4 5. This Court is essentially faced with the sworn version of M coupled with the conclusions of the police medical officer that she bore spasms and tenderness at her anus against the sworn version of the accused denying the allegation of sodomy levelled against him since the very beginning.

5.1. There was no independent witness to the alleged incident.

5.2. M was examined by a police medical officer on 03 October 2014. Such examination revealed inter alia love bite on her right breast, old tears at 3, 7 and 9 o’ clock position at her genitals, and anal spasm and tenderness.

5.2.1. The doctor explained that the most probable cause of the spasm and tenderness noted was, an injury, which could have been either internal consistent with piles for example, and/or external in which case compatible with any trial penetration or any sexual activity. She did not note any external injury at the anus but clarified that if a person has had anal intercourse for the first time, the possibility of having sustained microscopic injuries could not be excluded but any such injuries would not be visible with naked eyes.

5.2.2. Hence, the above findings neither lead to the irresistible inference that the tenderness and anal spasm noted were as a result of the alleged sodomy nor can it be said with certainty that, had such inference been drawn, there are no other co-existing circumstances which could weaken or destroy any such inference. Moreover, the fact that no external injury was noted does not of itself exclude anal intercourse.

6. M, now mother of two toddlers, was 21 at the time she deposed in the present matter. Notwithstanding the fact that she has maintained throughout that the accused had sodomised her, in assessing the weight to be attached to her testimony, the following shortcomings have been noted in her evidence, namely:

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6.1. M gave incoherent versions as to the place where they had sexual intercourse on the material night and she displayed some confusion as to place she had actually indicated to the police in the course of the investigation and the pictures which were shown to her. Her narration of events in chief and the version that was put to the accused when recording his out of court statement, which is presumably the very version of M, suggest that they had sexual intercourse twice whilst being in one and same abandoned building and such sexual activity included vaginal and anal intercourse successively. However, in cross examination, she explained that the vaginal intercourse occurred in one place (in a ‘poubelle’ (sic) which she had described as a building used as a refuse depot) and the anal intercourse at another, i.e. the building shown on the photos produced and shown to her in Court. Now two sets of photographs have been produced in the present matter; the first one depicts only one building in Mahebourg shown by M and the accused and the other show another building in Eau Coulée, presumably the dwelling place of M. When the booklet of photographs depicting the building in Mahebourg was shown to her during cross examination, M acknowledged that this was the place where the sodomy allegedly took place. She however appears to have overlooked the fact that she had referred to the place where the vaginal and anal intercourse took place as a ‘poubelle’ which she further described as a building made of rock and used as a waste depot. She was regrettably neither shown the photographs during examination in chief nor re-examined on this issue, so that the inconsistencies raised have remained unexplained away.

6.2. She has also not come up with a straightforward version as to the circumstances in which she returned back to her parents’ place. Whilst she mentioned in chief that people in the neighbourhood had alerted the authorities by bringing her to the police station and her parents were accordingly informed therefrom, she came up with a totally different version in cross examination by explaining that she had called her father from her mobile phone and the latter waited for her at the bus station in Curepipe. When such contradictions were put to her, she replied that it was true that some people had brought her to the police station and two questions after whilst she was being cross examined as to what was the truth

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she was accepting, she replied that her father had picked her up at the bus station.

6.3. The inarticulateness in the answers she gave became further apparent when she was questioned about whether her parents had not looked for her since she had run away. She replied that it was difficult to say as her parents did not care for her to such an extent and few questions down she conceded that her parents had actually called her five to six times but she rejected their call.

7. The defence has raised other issues in cross examination which relate essentially whether the accused used to stay at the place of M and the reason M had not run away after the alleged sodomy and/or reported the same to third parties when the opportunity arose. The Court does not propose to deal with the same as they are superfluous in the light of the answers given by M to such questions and bearing in mind that it is not the case for the prosecution that any of the sexual activities, including the alleged sodomy, were not consensual.

8. The accused has on the other hand, since the very beginning, denied the charge of sodomy levelled against him. He has deposed under oath and his version has remained unshaken in cross examination.

8.1. Although the accused could not explain the reason M would level such a serious allegation against him when his statement was recorded extra-judicially, he explained five years later that such false allegation was an act of revenge from the family of M and was used as a means to force him to marry her.

Conclusion Counts 1 and 2 : Sexual Intercourse with a minor under the age of 16 9. On the own admissions of the accused in his out of court statement which have remained voluntary, direct, and positive coupled with the unchallenged evidence regarding the age of M and the unequivocal guilty plea of the accused under Counts 1 and 2 of the information, the Court accordingly finds the accused guilty as charged under Counts 1 and 2.

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Count 3 : Sexual Intercourse with a minor under the age of 16 10. The date and place the offence is alleged to have been committed as averred under Count 3 of the information was amended on two occasions upon the motion of Learned State Counsel; the date was on the first occasion substituted by September 2013 and it was amended the second time to bring it back as it originally stood, namely, September 2014.

10.1. The guilty plea of the accused cannot be said to be an unequivocal one under this Count in view of the fact that the offence is alleged to have been committed on or about September 2014 and M had already turned 16 since February 2014. It is settled law that an offence under Section 249(4) of the Criminal Code is committed if the sexual intercourse involved a minor under the age of 16.

11. Count 3 of the information cannot stand in the circumstances and is accordingly dismissed.

Count 4 : Sodomy 12. I have duly considered all the evidence placed before this Court including the submissions of learned counsel for both parties.

13. Mindful of the nature of the charge against the accused and the desirability of corroboration, this Court is 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.

14. It is well established that the Court will not outright reject the evidence of a deponent merely because it contains inconsistencies. In that respect, the Court has analysed the testimony of M as a whole taking into consideration, inter alia, the lapse of time between the alleged offence and the time she gave evidence in Court, her age, her apparent mental state, and her demeanour in Court.

14.1. “Inconsistencies are often understandable and are likely to occur when, for example, the testimony is given in Court long after the event, or for that matter

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the witness is a young person who may be shy or overpowered by the strange Court surroundings or by the delicate nature of the testimony itself. Inconsistencies must therefore be measured by the yardstick of seriousness and materiality which must be linked with the overall issue of truthfulness.”

14.1.1. The Court is satisfied that the disquieting features in the evidence of M as highlighted above, when taken as a whole and considered in their entirety, adversely affect her credibility.

14.1.2. Bearing in mind that the evidence of M must be viewed with extreme caution in the absence of corroborative evidence, this Court finds that it is most unsafe in the circumstances of the present matter to rely on her sole testimony to convict the accused.

14.2. The Court therefore holds that the prosecution has failed to prove the charge of sodomy against the accused beyond reasonable doubt.

14.3. The accused is given the benefit of the doubt and Count 4 the information against him is accordingly dismissed.

A.HAMUTH (Miss)

[Delivered by: A.HAMUTH (Miss), Magistrate, Intermediate Court] [Delivered on: 12 June 2020]

1 G. Saman v The State [2004 SCJ 3]