Supreme Court of Mauritius, 30 juin 2020, 2020 INT 91 – POLICE v KENNY EDOUARD

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POLICE v KENNY EDOUARD

2020 INT 91

IN THE INTERMEDIATE COURT OF MAURITIUS (CRIMINAL DIVISION)

Cause Number 99/2019

In the matter of:

POLICE v KENNY EDOUARD

Judgment

Factual Background 1. Kenny Edouard, the accused, a welder, then seventeen years old, had, on the morning of 22 April 2016, received four persons at his place of residence, including a girl aged 14, to whom the Court shall refer to as L.

1.1. On 03 May 2016, L gave a declaration to the police alleging in essence that the accused had brought her to his room where they had sexual intercourse. She was examined by a police medical officer on 05 May 2016; such examination revealed inter alia a ‘hymen with small healed tear at 8 o’clock position’; and she was found to be non-virgo intacta.

2. It is against this background that the accused pleads not guilty to a charge of having on or about 22 April 2016, wilfully and unlawfully had sexual intercourse with a minor under the age of 16, in breach of Section 249(4) of the Criminal Code.

2.1. The accused was not assisted by counsel in the course of the trial. The case for the prosecution was conducted by State Counsel.

3. Besides documentary evidence, namely, the certified extract of birth entry of L, the medico-legal reports for L and the accused, a report from the Forensic Science

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Laboratory concluding that items of clothing sent for examination were tested negative for the presence of blood and semen; photographs and plan of the locus where the offence is alleged to have been committed and a statement explaining the spots shown therein, and the out of court statement of the accused to the police wherein he denied the charge against him, the case for the prosecution rests essentially on the testimony of L.

4. The accused, has, for his part elected to make an unsworn statement from the dock and has maintained his denial of the charge levelled against him.

Analysis 5. This Court is essentially faced with the sworn version of L coupled with the conclusions of the police medical officer consistent with the fact that she was not virgo intacta and bore a healed hymen tear, against the unsworn version of the accused denying, since the very beginning, the allegations levelled against him.

5.1. No independent witness has come forward in the present matter.

6. L was 17 at the time she deposed in the present matter. Her version of events in Court is substantially to the effect that two to three years ago, she allowed her friend to convince her to skip school whilst they were at the bus stop at Grand Bel Air; they both took a bus to Mahebourg and went to Plein Bois in a house occupied by the accused. There were five persons present there on that day, namely, the accused, L, her friend, and two boys. She narrated that they were talking in the living room when at a certain point in time, the accused went to the shop to buy some wine, which they all partook. L had about three glasses of wine; L’s friend went to a room on the ground floor with one of the boys; the accused invited L upstairs in his bedroom; L sat on the bed whilst the accused smoked a cigarette; and once the accused had finished his cigarette, he forcefully took hold of L. L refused but the accused kept holding her; kissed her all over her body; undressed her; held her hand; and raped her. She thereafter kept quiet when she went back downstairs as she was afraid in view of the fact that the house was surrounded by sugarcane fields. Her aunt was the first person she had reported the alleged incident to about one or two weeks after.

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7. In assessing the weight to be attached to the testimony of L, the Court has considered the following shortcomings in the evidence led by the prosecution, namely,

7.1. L has come up with the allegation of rape for the first time whilst deposing in Court.

7.1.1. The Court observes that the version that is put to an accused party when recording his or her statement to the police is presumably the very complaint that was made by the victim. In the present matter, the charge put to the accused suggests consensual sexual intercourse and neither was mention made of anything suggestive of force having been used nor was lack of consent raised.

7.1.2. L explained that the accused had been holding her hands when she tried to prevent him from sexually abusing her; hence some force on the one hand and resistance on the other must have doubtlessly been exerted by the parties. Her testimony is however terse on this aspect; she made a general statement that the accused held her hands without any further details and she has remained silent as to whether she was injured and/or bore any marks of injury on her body. The findings of the doctor to the effect that no injury was noted on her body when she was medically examined about two weeks later, is not of much assistance in the present matter, bearing in mind that, medical evidence would usually be relevant if obtained very shortly after the alleged incident, else ‘either there is nothing to see or what there is to see may be attributable to matters which have arisen since the alleged offence’ 1 .

7.2. L mentioned in Court that she had been crying during the alleged incident and her account of events in Court suggest that she had been through a traumatic experience, namely, she had been raped by someone she had met for the first time. Yet, it would appear that she had remarkably maintained her poise and composure thereafter by chit chatting with her friend in the living room; she does not seem to have shouted or sought for help in any manner whatsoever at any

1 Director of Public Prosecutions v S. Beeharry [2007 SCJ 89] wherein reference to Lord Taylor CJ in 1995 CA 81 made.

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given moment in time; and she did not disclose anything to her friend even after they had left the place of the accused. L has also remained silent as to the circumstances, if any, which prompted her to report the matter to her aunt. None of the above were addressed in the course of her testimony.

7.3. She tried to explain her failure to report the matter forthwith to her friends on account of being afraid in view of the surroundings of the area where the offence allegedly took place. The Court however notes that unchallenged indications shown on the plan produced in the present matter do not fully support her version that the house was surrounded by sugarcane fields. The house where the offence is alleged to have been committed borders a public road which is just one road off the main road; there is a ‘Centre Culturel Creole’ opposite not far from the locus and there habitations in the area.

7.4. The delay (a) to report the matter to her aunt and/or (b) of about ten days to report the matter to the authorities, has remained unjustified. This Court is alive to the fact that victims of sexual offences often need time before they can bring themselves to tell what has been done to them. This being said, the nature of the offence, in itself, is not a substitute for the lack of evidence to explain the delay in reporting the matter to a person in authority and it cannot fill the gap in the absence of any admissible evidence on that score.

7.5. Although both L and the accused referred to the presence of another boy besides the friend of the accused, the charge put to the accused makes no mention of him. Furthermore, the identity of the said boy is disputed; whilst L said he was the brother of the accused, the accused stated he was the brother of the friend of L. L has remained silent during her testimony in Court as to the whereabouts of the said boy when the two couples allegedly each went to a room.

8. The accused has on the other hand, since the very beginning, denied the charge levelled against him.

8.1. The unfolding of events as can be essentially gauged from the unchallenged out of court statement of the accused to the police are these. The accused was

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alone at home when two boys and two girls came over; one of the boys was his friend and he had met the two girls and the other boy (who was the brother of one of the girls) for the first time on that day. The girls had bunked school; L was wearing a pair of jeans and a black T-shirt and she had a school bag with her; they had nowhere to go; and the accused invited them to spend some time at his place. They all sat in the living room; the friend of the accused went to the shop to buy food and soft drinks; they listened to some music; and at some point in time they all went upstairs to the accused’s bedroom. The accused had thereafter accompanied all of them to the bus stop at about 13 00 hrs.

9. The accused has chosen not to submit his story to the test of cross examination as he was entitled to do. His version in Court is not totally free from defects either. He has been economical with the truth when he denied in Court having ever brought L to his room; he only mentioned having served juice to his guests; and he remained silent as to the presence of the other boy (the brother of the friend of L). He was also inaccurate regarding his age at the material time.

Conclusion 10. I have duly considered all the evidence placed before this Court. 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.

11. 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 L 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.

11.1. The Court is satisfied that the cumulative effect of the disquieting features in the evidence of L as assessed at paragraphs 7.1 to 7.5 above, when taken as a whole and considered in their entirety, adversely affect the credibility of L and shed doubts on the veracity of her evidence.

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11.2. The medical evidence in the present matter consistent with the fact that L could have been sexually active prior to her being examined, is of itself, insufficient to lead to the irresistible inference that the accused is the author of the healed tear noted at the hymen. 11.3. Bearing in mind that the evidence of L must be viewed with extreme caution, 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.

12. The prosecution bears the burden of proving its case beyond reasonable doubt; the testimony of L is tainted with flaws, the cumulative effect of which, are material enough to impugn her credibility; and the apparent defects in the version of the accused highlighted at paragraph 9 above, neither cure the defects in the testimony of L nor are such as to make his version inherently implausible.

13. For all the above reasons, 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: 25 June 2020]