Supreme Court of Mauritius, 30 janvier 2020, 2020 INT 27 – POLICE v CHRISTIO BEGUE

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POLICE v CHRISTIO BEGUE

2020 INT 27

IN THE INTERMEDIATE COURT OF MAURITIUS (CRIMINAL DIVISION)

Cause Number: 394/2017

In the matter of:

POLICE v CHRISTIO BEGUE

Judgment

1. Christio Begue, the accused, is the biological father of a girl, to whom the Court shall refer as ‘M’, born on 07 October 2009, from his extra conjugal relationship with a cousin of his. The lovers parted ways and M had been living with her mother at Grand Bay until she reached the age of four. She then moved to Bois Cheri at the place of her paternal grandmother and resided there until 27 July 2015, when her mother took her back to Grand Bay.

1.1. It is alleged that, two days later, M complained of pain at her vagina whilst her mother was giving her a bath and upon being questioned M disclosed that her father had on one occasion introduced his finger into her vagina causing her pain.

1.2. The matter was consequently reported to the authorities; a statement under warning was recorded from the accused on 03 August 2015; the latter has since then denied having ever attempted upon the chastity of M as alleged or at all; and averred that the mother of M has levelled a false charge against him so that she may be entrusted the custody of M.

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2. It is against this background that the accused pleads not guilty to a charge of having on a day between the years 2013 and 2015, willfully and unlawfully committed an indecent act upon a specified person, in breach of Section 249(5)(b), (c)(i) of the Criminal Code.

2.1. The accused was represented by counsel at the trial and the case for the prosecution was conducted by State Counsel.

3. The case for the prosecution rests essentially on the oral testimony of (a) the police officers involved in the enquiry which ensued following the declaration made by the mother of M, including the main enquiring officer, the recording officer of the out of court statement of the accused to the police, and (b) M. Besides the documents which have been produced by the abovenamed witnesses, the prosecution has also relied on other documentary evidence consisting of the certified extract of birth entry of M 1 , the medico legal report following the examination of M and the accused by the Chief Police Medical Officer 2 , photographs and a plan of the locus 3 .

4. The accused deposed under oath.

Analysis of Evidence 5. This Court has duly considered all the evidence that has been placed before it including the submissions of learned counsel for both parties. It is essentially only faced with the sworn testimony of M against that of the accused.

5.1. The prosecution has chosen not to call the mother of M to depose.

5.2. The medical examination of M, two days after she had complained to her mother, did not reveal anything supporting the allegations levelled against the accused. The genitals of M were normal and no injury was noted to her hymen.

1 Doc A 2 Docs B and C respectively 3 Docs D to D2 and Doc F

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6. M was 09 at the time she deposed. A competency test was carried and she was found to have sufficient appreciation of matters and the responsibility to tell the truth. Her testimony was given in camera and via live television link; and she was not subjected to a confrontational cross examination.

6.1. In essence, the version of M in Court is to the effect that her father had touched that part of her body which she described as ‘en bas’ (sic) whilst she was watching television at the place of her father. She painfully expatiated on what she meant by ‘en bas’ (sic) and even burst into tears before timidly explaining that it referred to that part of her body which she uses to urinate.

6.2. M gave straightforward and non-hesitant answers to introductory matters relating to her personal circumstances, including her address, her schooling, and her family situation. She acknowledged forthright having told her mother that her father had touched her and having talked about the incident with her mother prior to her court appearance; she knew to which police station the matter was referred to; and she unhesitatingly denied that her mother had coached her about what to say to the police.

6.3. She was however less outspoken regarding inter alia the reason she had gone to the police; whether her mother was on good terms with her father and/or the latter’s wife; whether her mother used to visit her whilst she was staying at the place of her paternal grandmother; the reason her mother had visited there her in July 2015 and why M was taken back to the place of her mother in Grand Bay following such visit; and what she had told the police in her out of court statement. She could furthermore not give any details as to the time and/or period of the year and/or who was present, when the incident allegedly took place.

7. The accused deposed under oath and has since the very beginning denied the allegations levelled against him. In a gist, his version is to the effect that M was living at the place of the mother of the accused whilst the accused, his wife, and children born to his marriage were living on different premises. He had not visited M whilst the latter’s mother came and stayed for a week at the place of M’s

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paternal grandmother because the wife of the accused was not agreeable to him having any contact with M’s mother. He has also explained that the mother of M had levelled a false charge against him and she had instigated M to do the same so that she may be granted the custody of M.

7.1. The prosecution had initially chosen not to cross examine the accused, so that his version had remained unchallenged. The motion to tender the accused for cross examination made at a subsequent sitting on the ground that the prosecution had overlooked certain matters raised in the defence statement was not objected to and the prosecution was allowed to test the veracity of the accused’s version. The version of the accused was not shaken during what can be described as a very short cross examination consisting of two broad questions.

8. I observe that the version put to an accused party when recording his or her version to the police is presumably the very complaint that was made by the alleged victim.

8.1. In the present matter, the unrebutted version of the enquiring officer suggests that a statement under warning was recorded from the accused after the mother of M had reported the matter to the police and the statement of M was recorded about three months later.

8.2. The tenor of the complaint made by M to her mother suggests that the alleged indecent act had been committed only once and it was presumably recent. Hence, her testimony, if credible and admissible, would have buttressed the case for the prosecution bearing in mind the nature of the present offence. Yet the mother who was on the list of witnesses and whose testimony was potentially admissible as an exception to the rule against the inadmissibility of previous consistent statements, namely as being ‘recent complaint in sexual cases’, was for reasons best known to the prosecution not ushered in evidence.

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8.3. Furthermore, the alleged complaint of pain in her vagina suggests that either the alleged act was a recent one or if it lacked the element of recency, it was significant enough to cause pain over an extended period of time, bearing in mind that it is alleged to have been committed only once. Yet, medical examination two days after the complaint did not reveal any such pain and/or injury.

8.4. The charge that was put to the accused is to the effect that, he had, on one occasion, allegedly lowered the knickers of M and introduced his finger into her vagina thereby causing her pain. The testimony of M as to what had happened as set out at paragraph 6.1 above is terse and such evidence is limited to the broad fact that the accused had allegedly touched her private part with his hand.

8.5. The version of M in Court as to the place the offence is alleged to have taken place is also very vague. This aspect of the case was not merely a collateral issue given that the accused had stated that he did not see M and had not been to the place of his mother whilst the mother of M was staying there. M mentioned that she was watching television downstairs at the place of her father without being able to give further details on account of a deficient memory. The photographs taken in presence of M however indicate that the incident allegedly took place on a bed and no evidence was led as to whether there was a television in that room. Furthermore, the charge put to the accused is to the effect that the offence was committed at the place of the grandmother.

8.6. The vagueness as to the alleged date of the offence is in itself not fatal to the case for the prosecution. This being said, it does have a bearing on the recency of the complaint made and possibility of fabrication.

Conclusions 9. 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

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that the complainant is a credible witness whose testimony has stood the test of cross-examination.

9.1. 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 analyzed 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.

9.1.1. “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 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.”

9.1.2. Now, true it is that the disquieting features in the evidence of M as highlighted at paragraphs 8.4 and 8.5 8.6 above, when considered in isolation, can be said to be minor ones, allowance being made to natural failures of memory with the passage of time and inconsistencies on collateral issues; and as such, would on their own, not be such as to discredit M to such an extent as to render her whole testimony unworthy of belief.

9.1.3. This being said, such unsatisfactorily explained shortcomings, when taken as a whole and considered in their entirety, tend to give an overall different picture of the circumstances surrounding the occurrence of the alleged incident as appeared from the version of the mother of M to the police and the version of M in Court; hence adversely affecting the veracity of her testimony in Court and making the possibility of a false and malicious accusation a real one.

9.1.4. This Court is alive to the young age of M and the intrinsic difficulty for a child victim to relive her experience in public and recall it in words. This being said,

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

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the prosecution nevertheless bears the burden of proving its case beyond reasonable doubt and no attempt was made to probe the child witness further and elicit additional details, to give sufficient material to the court to enable it to make a proper assessment of credibility of M and the weight to be attached to her testimony. The more so taking into account that the offence is alleged to have been committed sometime between the year 2013 and 2015; M did not make any complaint to her grandmother; the mother of M did not seem to have regular contact with her daughter until a week prior to the declaration being made; it was following her recent visit and stay at M’s grandmother place which preceded her taking M to her place, that such complaint was allegedly made to her; and the sworn and unchallenged version of the accused regarding the underlying motive to lay a false charge against him.

9.1.5. Bearing in mind that the evidence of M must be viewed with extreme caution in the absence of any or credible 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.

9.2. The Court finds the unshaken version of the accused equally plausible and therefore holds that the prosecution has failed to prove the charge against the accused beyond reasonable doubt.

9.3. The accused is given the benefit of the doubt and the information against him is accordingly dismissed.

A. HAMUTH (Miss) [Delivered by: A.HAMUTH (Miss), Magistrate Intermediate Court] [Delivered on: 30 January 2020]