Supreme Court of Mauritius, 5 mars 2020, 2020 INT 52 – POLICE VS FELICITE EDDY

POLICE VS FELICITE EDDY

2020 INT 52

POLICE VS FELICITE EDDY Cause Number: 701/16 THE INTERMEDIATE COURT OF MAURITIUS (Criminal Division) In the matter of:- POLICE VS FELICITE EDDY JUDGMENT INTRODUCTION The Accused stands charged with the offence of attempt upon chastity upon a child of male sex under the age of 12 in breach of section 249(3) of the Criminal Code. He pleaded not guilty and was assisted by Counsel. The particulars of the charge against the Accused are that in the month of October 2014, he wilfully and unlawfully committed an indecent act upon a child of male sex under the age of 12. The declarant will be hereinafter referred to as Master E.

THE FACTS Master E was born on the 11 th December 2006 and was at the time of the offence 7 years old. He lives with his parents on the same road as the Accused. He testified that in the year 2014, he levelled a declaration against the Accused because the latter asked him to put his penis in his mouth when he was walking on the road. Consequently, he went to speak to some men who were on the road and these men went to speak to his father. He narrated that, in the past, he usually went to the residence of the Accused where they would sit and watch the television. Master E averred that one day, the Accused asked him to put his penis in his mouth

but he did not allow the Accused to do so. According to Master E, the Accused never touched him. The version of the Accused is contained in his statement to the police wherein he denied the charge against him. He averred that he is on good terms with the family of Master E and the latter has never come to his place. OBSERVATIONS The Law I have assessed the evidence on record. The Accused is charged with the offence of attempt upon chastity upon a child of male sex under the age of 12. It is clear from the act of birth of Master E that he was born on the 12 th December 2006 and hence was under 12 at the time of the alleged offence. The Accused is charged with the offence of attempt upon chastity, an “attentat a la pudeur”. An ‘attentat a la pudeur’ has been defined in Dalloz Repertoire Pratique, V Attentat aux moeurs, section 2, Attentat a la pudeur, note 32 as follows: “un acte contraire aux moeurs exerce directement sur une personne de l’un ou l’autre sexe. Le mot ‘attentat’ implique une action immediate, contraire aux moeurs meme exercee publiquement”. The act constituting “un attentat a la pudeur” is an act “d’un attouchement, d’un geste provoquant des l’instant que cet acte est impudique et qu’il a ete commis sur un individu de l’un ou de l’autre sexe”. It is explained in Dalloz Op Cit, as: “L'attentat à la pudeur est donc tout acte exercé directement sur une personne déterminée, dans le but de blesser sa pudeur, et qui est de nature à produire ce résultat”. French jurisprudence has laid down that “l'attentat est constitué toutes les fois que l'acte impudique a été commis malgré la volonté et sans consentement de la victime,” which appears to be the same in effect as the corresponding section in our own code. (RE: A SINNASAMY vs THE QUEEN (1952) MR 303).

The version of the declarant. It is trite law 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”. (RE: P MARDAY VS THE STATE (2000) SCJ 225). I have noted that the charge put to

the Accused is that he asked Master E to receive his penis in his mouth when they were in his house. I find that the testimony of Master E that the Accused approached him on the road to ask him to receive his penis in his mouth, causing him to speak to people on the road, to be in total contradiction to his declaration against the Accused. He only spoke about an incident in the Accused’s house when his memory was refreshed. Moreover, Master E told the police that the Accused pulled down his trousers and boxer short and put his penis in the mouth of Master E, hence committing the act constitutive of the attempt upon chastity. However, in Court, Master E unequivocally and unhesitantly stated that the Accused never put his penis in his mouth, never touched him in any way and he never allowed the incident to happen. Although I have made allowances for the passage of time and the tender age of Master E at the time of the alleged offence, I find that Master E failed to come to proof in relation to the charge against the Accused. In the circumstances, I find that according to the testimony of Master E, the offence of attempt upon chastity never occurred. The Court is also alive to the fact that the present matter is of a sexual nature, hence corroboration is desirable. (RE: SAMAN V THE STATE [2004] SCJ 3). In the present case, I find that the evidence of Master E is not reliable and there is no corroboration. In addition, the report from the Forensic Science Laboratory (FSL) produced in Court showed that after examination of 2 pairs of shorts belonging to the Accused, they were tested negative for blood and semen, such that there is no incriminating evidence against the Accused. I find that the Prosecution has failed to establish the charge against the Accused.

CONCLUSION I find that the Prosecution has failed to prove its case beyond reasonable doubt. I dismiss the case against the Accused.

Judgment delivered by: M.GAYAN-JAULIMSING, Magistrate, Intermediate Court Judgment delivered on: 5 th March 2020