Supreme Court of Mauritius, 19 février 2020, 2020 INT 37 – P v Parsad & Another

P v Parsad & Another

2020 INT 37

CN543/19 THE INTERMEDIATE COURT OF MAURITIUS (Criminal Side)

In the matter of:- Police v/s 1. Parsad Marie Shirley 2. Delord Louis Robert Jacquelin JUDGMENT Accused No. 1 (hereinafter referred to as A1) stands charged with one Count, under Count 1, of Child-Ill Treatment, contrary to ss. 13(1) and 18(4) of the Child Protection Act (hereinafter referred to as CPA.

Accused No. 2 (hereinafter referred to as A2) stands charged with one Count of:

1) Under Count 2: Child-Ill Treatment, contrary to ss. 13(1) and 18(4) of the CPA; and 2) Under Count 3: Causing A Child To Be sexually Abused, contrary to ss. 14(1)(a) and 18(5) of the CPA.

The Accused Parties pleaded Not Guilty to their respective Counts, and were not assisted by Learned Defence Counsel.

Learned State Counsel conducted the case for the Prosecution.

The Proceedings were held in Creole.

The Prosecution Case It was the case for the Prosecution that in or about the month of November 2015, in Mauritius: 1) Under Count 1: A1 did wilfully and unlawfully ill-treat a Child, to wit: the said A1 ill- treated her Daughter Minor M. J. K. S. D. (hereinafter referred to as W6) born on 17-09- 10; 2) Under Count 2: A2 did wilfully and unlawfully ill-treat a Child, to wit: the said A2 ill- treated his Daughter W6, born on 17-09-10; and 3) Under Count 3: A2 did wilfully and unlawfully cause a Child to be sexually abused by him, to wit: A2 inserted one of his fingers in the private part of W6 born on 17-09-10.

The Defence Case A1 Count 1 A1, whilst admitting having beaten W6 when she misbehaved, denied the charge in her unchallenged out-of-Court statement (Doc. F).

In Court, A1 elected to exercise her Right to Silence.

A2 Count 2 A2 denied the charge in his unchallenged out-of-Court statement (Doc. E).

In Court, A2 elected to state under Oath inter alia that he had not ill-treated W6, and that the enquiry had not been conducted properly.

Count 3 A2 denied the charge in his unchallenged out-of-Court statement (Doc. E).

In Court, A2 elected to state under Oath inter alia that he had not caused W6 to be sexually abused by him, and that the enquiry had not been conducted properly.

Analysis

Under All Counts The Court has duly analysed all the evidence on Record and all the circumstances of the present matter, and the Court has watched the demeanour of the Prosecution Witnesses and that of A2 with the utmost care.

Learned State Counsel elected to leave matters in the hands of the Court.

The Prosecution bear the burden of proving beyond reasonable doubt all the essential elements of the offence, under each of Counts 1 and 2:

1) That A1 under Count 1, and A2 under Count 2, respectively; 2) Wilfully and unlawfully ill-treated; 3) A Child, i.e. W6.

Given the word ‘ill treat’ has not been defined in s. 13(1) of the CPA, it is trite Law that the said word is to be given its ordinary English dictionary meaning (Low Kwet Chun v The State [2015 SCJ 302] and The State v Puttaroo [2008 SCJ 92]), which is to “act cruelly towards (a person or animal)” as per the Concise Oxford English Dictionary.

And under Count 3, the Prosecution bear the burden of proving beyond reasonable doubt all the essential elements of the offence:

1) A2; 2) Wilfully and unlawfully caused a Child, i.e. W6; 3) To be sexually abused by him, to wit: by inserting one of his fingers in W6’s private parts.

The Court has duly analysed all the unchallenged documents produced in the course of the Proceedings:

1) 01 Birth Certificate (Doc. A) of W6; 2) 01 Medico-Legal Report (hereinafter referred to as MLR) (Doc. B) in relation to W6; 3) 01 MLR (Doc. C) in relation to A1; and 4) 01 MLR (Doc. D) in relation to A2.

W6 “child” means any unmarried person under the age of 18 pursuant to s. 2 of the CPA. As per W6’s Birth Certificate (Doc. A), it has been established that W6 was aged 05 years at the relevant time, and at no point during the Proceedings was it the case for the Defence that W6 was married. The Court is therefore of the considered view that it has been established that W6 was an unmarried person under the age of 18 at the relevant time.

At no point in time was it disputed that W6 was A1 and A2’s Daughter, and this has been satisfactorily established in light of the unchallenged Birth Certificate (Doc. A) of W6, and in light of the respective admissions of A1 and A2 as contained in their respective unchallenged out-of- Court statements (Docs. F and E respectively).

The Prosecution case rested partly on W6’s testimony. W6 being aged about 09 years at the time of the Trial, the Court therefore carried out the Competency Test pursuant to the Authority of Jeetah v The State [2014 SCJ 337], and ruled W6 not competent to give sworn evidence as a Child Victim, for the reasons given on Record, following which the Prosecution moved to take a Stand, and eventually made a statement which is borne out on Record, but which the Court finds unwarranted for the reasons given below.

It is for the Court to determine W6’s Competency to give sworn evidence, applying the principles set out in the Authority of Jeetah (supra), bearing in mind W6, the Child Victim in the present matter, was already aged 09 years at the time of the said Competency test. And it was for the Court to be satisfied that the Child Victim, in the present matter, W6, understood, not the difference between the Truth and a lie, but the nature of an Oath. And the Court is to make that determination based solely on W6’s answers and demeanour in Court at the time of the said Competency test. In determining the said issue, the Court was merely performing its very function, based on the evidence on Record, and the question of “compelling the Prosecution to close its case” simply did not, therefore, arise. In fact, it was the Prosecution, which made a “statement” in Court instead of taking a Stand in Court following the Court’s Ruling as to W6 having been found by the Court not to be competent to give sworn evidence, that was seeking to compel the Court in determining the said issue as to W6’s Competency to depose under Oath, in its favour, going to the extent of asking the Court

to perform the Competency test anew, whilst at the same time conceding it was aware of no legal provision or Authority allowing the Court to do so. Had the Court acceded to the Prosecution’s Motion, and had the Court carried out the Competency test anew, it would have been tantamount to the Court sitting on Appeal on its own decision, which the Court simply was not legally entitled to do, and would further have had the effect of giving the Prosecution a second bite at the cherry, which is not in order. The Court cannot, and will not, allow its process and/or itself to be used to partisan ends. The very essence of the Court’s functions requires total and effective independence and impartiality on the part of the Court in assessing the evidence on Record and in determining the issues at hand. La Cour ne peut être tributaire des souhaits et/ou envies des Parties concernées dans la procédure. Any Party dissatisfied with the Court’s Judgment always retains its fundamental Right of Appeal.

The Court having ruled that W6 was not competent to give sworn evidence, for the reasons set out on Record, there is therefore no direct evidence on Record, and the Court now hence proceeds to determine the present matter based on the circumstantial evidence adduced in the course of the Proceedings.

The Court gives itself the warning as to the dangers of acting on circumstantial evidence and bears in mind the principles set out in the Authority of DPP v Jagdawoo & Others [2016 SCJ 100]: In contrast to direct evidence, circumstantial evidence is evidence of “relevant facts” from which the existence or non-existence of facts in issue may be inferred. Circumstantial evidence “works by cumulatively, in geometrical progression, eliminating other possibilities” (DPP v Kilbourne [1973] AC 729 at p. 758). However, although the weight to be attached to circumstantial evidence is not in any way less than that attached to direct evidence, “It must always be narrowly examined ….. It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference” (Teper v Queen [1952] AC 480 at p. 489).

Furthermore, it is highlighted in the Australian case of Hillier [2007] 233 ALR 634 (22 March 2007) that there is an imperative need to avoid a piecemeal consideration of the evidence in a circumstantial case. “It is of critical importance to recognise, however, that

in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed” [para. 46]. “All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged.” [para. 48].

The unchallenged MLR (Doc. B) speaks volumes about the physical abuse W6 was subjected to. It is to be noted that W6 sustained injuries literally all over her body, including to the face, i.e. the nose, the ears, the cheeks, the chin, the neck, to the torso, i.e. the shoulder, the arms, the elbow, the hands, the chest, the abdomen, and to the legs, i.e. to the thigh, the knees, the buttock, and the feet. Further, the nature of the injuries, including abrasions, bruises, burn injuries, is very telling. Other than the injuries which were mentioned as being old scars, such as to the pinna right ear and over monspubis, W6 bore numerous other injuries all over the body, which could not have gone unnoticed, in particular the ones on W6’s face and head, particularly the “central alopecia” and the “Hematoma over parietal region”.

From all the above, the Court is of the considered view the said injuries sustained by W6 could only be the result of ill-treatment, and that hence it has been established that W6 was ill-treated.

A1 Count 1 PC 9062 Nutobur (hereinafter referred to as W3) deponed to the effect that 14-11-15, at about 19h15, he went to Le Morne Village, where he met W6 alone in a corrugated iron sheet (hereinafter referred to as CIS) house, made up of one room, which was dark, with no light on. W3 went on to state that W6 bore several injuries and scars all over her body, and had hair which had been pulled out. W3 added that W6 had marks on the hands and feet, as if she had been beaten with a “rotin”, and had no hair on part of her head. W3 went to explain that the Child Development Unit (hereinafter referred to as CDU) took W6 to the Police Station as there was no close relative present thereat. W3 also stated that when he questioned the Neighbours, he was told that the Parents had not been present for several days. W3 confirmed W6 had said nothing at the said time.

In cross-examination, W3 stated inter alia maintained that the House was dark, with no light on on the said day, and conceded having taken no photo of W6’s head.

PC 9931 Patel (hereinafter referred to as W4) deponed along the same lines as W3, and corroborated W3’s testimony.

The Court is of the considered view that it can safely act on W3 and W4’s respective testimonies. No doubt was cast on W3’s testimony, who maintained his version throughout the Proceedings. At no point was W3’s testimony challenged inter alia on the issue of W6 being alone in her House at the relevant time, or as to the injuries he saw on W6 at the relevant time, save for the fact that there was no photograph to show W6 had no hair on part of her head. And W4’s testimony remained unchallenged, given A1 and A2 elected not to cross-examine W4. Further, the Court has watched the demeanour of both W3 and W4 with the utmost care. Both W3 and W4 recalled with clear precision the circumstances of the present matter, and were visibly disturbed when recalling same and deponing in Court.

In light of A1’s version she and W6 came to live in Le Morne in November 2015 (Folio 16 / 52844 of Doc. F) and in light of the line of cross-examination adopted by A1 to the effect she had gone to the corner shop (“la boutique”), leaving a candle on (page 09 of 13 of the Transcript of 31-10-19), the Court finds it was not disputed that A1 was on the locus and was present shortly before the Police found W6 on the locus on the day in question.

Further, from A1’s unchallenged out-of-Court statement (Doc. F) she had gone to get W6 from the Shelter when W6 turned 05 years of age, i.e. about 17-09-15, that W6 lived with her, and that she would take W6 with her to Work (Folios 16 / 52843-4 of Doc. F), the Court is satisfied it has been established that W6 was under the care and control of A1, who was the primary caregiver for W6, even taking W6 to work with her. Given the fact that A1 confirmed that she lived with W6 and that she took W6 to work with her, the Court is of the considered view that it left a window of opportunity for a third party to cause such numerous injuries to W6 (Doc. B), so narrow as to be insignificant. At any rate, at no stage was it even remotely suggested by A1 that W6’s injuries were caused by someone else.

The Court finds A1’s explanation that W6 would burn herself with a candle (Folio 16 / 52846 of Doc. F) farfetched, bearing in mind that W6 was barely 05 years of age at the time.

The Court rejects A1’s explanation that W6 would hurt herself with a candle, as it seems surprising, not to say irresponsible, that A1 would have left W6 alone with a lit candle, given A1’s own explanation that W6 would hurt herself with a candle, bearing in mind W6 was barely 05 years of age at the relevant time.

Further, W6 ought to have been under constant adult supervision, by the very fact that W6 was aged about 05 years of age at the relevant time.

The fact of leaving W6 alone in a dark House, with no light on, when she was aged barely 05 years is in itself an indication of the lack of care and adult supervision W6 was given by A1, who admitted W6 was under her care and control.

The lack of concern shown by A1 as to how W6 sustained the said injuries (Doc. B), A1 merely stating she asked W6 how she had sustained the said injuries and explaining that W6 could not explain how she had sustained same, is very telling. Had A1 in fact been genuinely concerned with W6’s wellbeing, and had A1 in fact not caused the said injuries to W6, A1 would have at the very least sought medical treatment for W6.

Further, A1 admitted she used to beat W6 with a “rotin” when W6 would misbehave (Folios 16 / 52845 and 16 / 52847 of Doc. F), and never even remotely suggested that a third party had access to the said House, or had had access to the said House, at the relevant time. This therefore even further narrows down the possibility of the said injuries having been inflicted upon W6 by a person other than A1.

In light of all the evidence on Record and all the factors highlighted above, the Court is of the considered view that the only logical and irresistible inference to be drawn therefrom is that A1 wilfully and unlawfully caused the said injuries to W6, acted cruelly towards W6, and thereby ill- treated W6, and that it has been established that A1 ill-treated W6 at the relevant time and place, for the reasons given below.

The Court also finds that in the present case, there are no other co-existing circumstances on Record which could weaken or destroy such an inference (Teper (supra)).

A2

Count 2 W3 inter alia conceded not having seen A2 on the locus, that he did not know whether A2 lived in the area, and that he did not know A2.

W4’s testimony remained unchallenged, as highlighted above.

The Court has duly considered all the evidence on Record.

In Court, A2’s sworn version to the effect he got W6 out of the Shelter in 2015 and left her in A1’s care, as he was still working as Fisherman on a boat, A2 adding he was not living with A1 and W6 at all, although he was providing for them. At no stage did A2 state that he was for days on end, away on a fishing vessel, nor was any documentary evidence forthcoming to that effect.

In A2’s unchallenged out-of-Court statement (Doc. E), A2’s version was to the effect that in 2015, he removed W6 from the shelter and obtained W6’s custody, and he and A1 started living together as Husband and Wife, with W6, leading a good Life, and that he was sometimes staying in Chemin Grenier and sometimes in Le Morne (Folio 18 / 61159 of Doc. E).

These two versions of A2 are contradictory. The Court has noted that A2 stated he was sometimes living in Chemin Grenier and sometimes in Le Morne. Be that as it may, A2 cannot both have been living as Husband and Wife with A1, together with W6, as per A1’s version in his unchallenged out-of-Court statement (Doc. D), and at the same time have left W6 solely under the care of A1, as deponed to by A2 in Court under Oath.

Further, A2’s version was also to the effect that at the relevant time, when he would take W6 to play, she would refuse to play with other Children saying that the other Children played games of removing their clothes (Folio 18 / 61159 of Doc. E). This necessarily implies that A2 was also looking after W6 at the relevant time, i.e. had W6 under his care, and was hence not away at all times, but rather was involved with W6’s day to day upkeep during the relevant period. This therefore puts in doubt A1’s version given under Oath that he was not living with W6 at all, whom he had left to the sole care of A1.

In Court, under Oath, A2 confirmed that W6 had injuries on her, and contended that W6 sustained at the Shelter. This necessarily implies that A2 was well aware that W6 had sustained injuries during the relevant period. Further, the proximity in time between W6 having been returned to A2, i.e. in November 2015, and the date on which W6 was medically examined, i.e. 17-11-15 (Doc. B), i.e. merely about 17 days after having been returned to A2, taken together with A2’s admission he would take W6 to play with other Children at the relevant time, leads the Court to the reasonable and irresistible conclusion that A2 must have been aware of the injuries sustained by W6 at the relevant time.

In light of the factors highlighted above, the Court is of the considered view that it can safely infer that A2 was involved in W6’s upkeep at the relevant time, that W6 was at times under A2’s care at the relevant time, and that A2 was aware of the injuries sustained by W6 (Doc. B) at the relevant time.

The Court is, nonetheless, of the considered view that there are doubts which remain in the Prosecution case, in the absence of any conclusive evidence linking A2 to the injuries sustained by W6, there being no cogent direct and/or circumstantial evidence, to establish beyond reasonable doubt that A2 wilfully and unlawfully caused the said injuries to W6 (Doc. B), i.e. acted cruelly towards W6, and thereby ill-treated W6, at the relevant time.

Count 3 In light of the unchallenged MLR (Doc. B) of W6, there is evidence on Record suggesting that there was some interference with W6’s private parts, in light of the examination of W6’s genitals, in particular given the observation “hymen well dilated”.

The Court bears in mind that W6 was aged about 05 years at the time of the said medical examination, which took place on 17-11-15, and that it was admitted that W6 was under A2’s care in November 2015 (Doc. D).

However, in the absence of W6’s testimony for the reasons given above, and in the absence of any forensic evidence directly linking A2 to the present matter, the Court finds that there are doubts which remain in the Prosecution case, which doubts go to A2.

In relation to Counts 2 and 3

A2 contended that the Enquiry had been wrongly oriented, with a lack of information, such a “report of SOCO” as to his involvement in the present matter. This can be explained by the very fact that W3 confirmed not knowing A2 at all, and having received a request in relation to A1 only. At any rate, given the fact that A2 was medically examined on 19-11-18, i.e. more than one year after W6 having been taken into care by the CDU, the value of the forensic science evidence, if any, was significantly reduced. A2’s other contention was that W6 sustained the said injuries at the Shelter.

The fact that the Police did not enquire as to whether W6 sustained the said injuries at the Shelter or not can be explained by the fact that there was no reason for the Police to gear its Enquiry in that direction, given the very fact that the said version was raised by A2 for the first time in Court, and was at no stage of the Enquiry mentioned by either A1 or A2.

Other than A2’s contention the Enquiry was not well oriented, no cogent evidence was adduced by A2 to put in doubt the Enquiry.

In light of all the above and all the evidence on Record, the Court is of the considered view that no doubt was cast on the Enquiry, or on its orientation.

Conclusion 1) Under Count 1: In light of all the evidence on Record, all the circumstances of the present matter, and all the factors highlighted above, the Court is of the considered view that the Prosecution has proven its case against A1 beyond reasonable doubt on Count 1, and A1 is therefore found Guilty as charged on Count 1; 2) Under Count 2: In light of all the evidence on Record, all the circumstances of the present matter, and all the factors highlighted above, the Court is of the considered view that there are doubts which remain in the Prosecution, which doubt must go to A2, and A2 is therefore given the Benefit of the Doubt on Court 2 only, and the case against A2 is therefore dismissed on Count 2; and 3) Under Count 3: In light of all the evidence on Record, all the circumstances of the present matter, all the factors highlighted above, and for the reasons given above, A2 is given the Benefit of the Doubt under Count 3 only, and Count 3 only is dismissed against A2.

[Delivered by: D. Gayan, Magistrate] [Intermediate Court (Criminal Side)] [Date: 19 February 2020]