Supreme Court of Mauritius, 5 mars 2020, 2020 INT 53 – POLICE VS BOODHOOA ASHVIN

POLICE VS BOODHOOA ASHVIN

2020 INT 53

POLICE VS BOODHOOA ASHVIN Cause Number: 339/18 THE INTERMEDIATE COURT OF MAURITIUS (Criminal Division) In the matter of:- POLICE VS BOODHOOA ASHVIN JUDGMENT INTRODUCTION

The Accused stands charged under 2 Counts with the offence of sexual intercourse with a minor under the age of 16 in breach of section 249(4) of the Criminal Code. He pleaded not guilty and was assisted by Counsel.

The particulars of the charge against the Accused are that on the 31 st May 2015 and 10 th June 2015, he wilfully and unlawfully had sexual intercourse with the declarant, hereinafter referred as Miss A, who was a minor under the age of 16.

THE FACTS

In the year 2015, Miss A and the Accused met. Miss A testified that on 2 occasions she had sexual intercourse with the Accused. She could not remember the date on which the first event took place but stated that the Accused came in a van and they had sexual intercourse. Then, on the night of the 9 th to 10 th June 2015, Miss A went to stay at the place of Accused’s aunt. She testified that whilst she was in a room, the Accused touched her and they had sexual intercourse. Miss A explained that she was 12 years old at the time and the Accused was unaware of her age.

In 2 statements given to the police, the Accused denied the charges against him. He averred that he met Miss A on the 31 st May 2015 and got acquainted with her, following which they exchanged phone numbers. They only chatted on the phone.

OBSERVATIONS

The Accused is charged under 2 Counts with an offence of having had sexual intercourse with a minor under the age of 16 under section 249(4) of the Criminal Code. Section 249(4) reads that:

Any person who has sexual intercourse with a minor under the age of 16 or a mentally handicapped person, even with his consent, shall be liable to penal servitude for a term not exceeding 20 years.

There is a derogatory section to section 249(4) of the Criminal Code which is found in section 249(7) of the Criminal Code. Section 249(7) reads as follows: “It shall be a sufficient defence to any prosecution under subsection (3) or (4) that the person charged had reasonable cause to believe that the child was above the age of 12 or 16, as the case may be”.

For the Prosecution to prove its case, it must establish the essential elements of the offence which have been defined in the case of MACOTIA P.G. VS THE STATE (2006) SCJ 189 as follows: “that there was sexual intercourse and that the minor was under 16 years of age at the time”.

Sexual intercourse

A sexual intercourse has been defined in Garçon, in Code Pénal Annoté, Tome Premier, Livre III, page 844 at note 15, as : “…l’introduction du membre viril dans les parties génitales de la femme.”

In relation to the present case, the police secured exhibits which were sent to the Forensic Science Laboratory (FSL). After examination of the said exhibits, the FSL officer

drew up a report which was produced in Court. I have noted that an examination of a pair of knickers belonging to and used by Miss A, revealed positive for the presence of semen and spermatozoa. An examination of a pair of trousers belonging to and used by Miss A, revealed the presence of blood, semen and spermatozoa. The DNA extracted from the semen stain was found to match the DNA profile obtained from the reference sample of the Accused.

In light of the above, I can conclude that there was a meeting between Miss A and the Accused. In his statement to the police, the Accused averred that he chatted with Miss A on the phone and never had sexual intercourse with her. In the same breath, I read from the report from the FSL that an examination of the internal vaginal swabs of Miss A was tested negative for blood and semen. This has been confirmed by the medico-legal report of the principal police medical officer, Dr Monvoisin.

In the circumstances, there is evidence of semen stain matching the DNA profile of the Accused on the clothes of Miss A. This in itself is not conclusive evidence of sexual intercourse between Miss A and the Accused as sexual intercourse would require ”l’introduction du membre viril dans les parties génitales de la femme.” (RE : Garçon, in Code Pénal Annoté, Tome Premier, Livre III).

The version of Miss A

I have therefore considered the version of Miss A to determine whether the Accused had sexual intercourse with her on the 31 st May 2015 and the 10 th June 2015. “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). With regards the event of the 31 st May 2015, the version of Miss A to the police is that the Accused had intercourse with her in a van when he came to see her. However, in Court, Miss A clarified in cross-examination that she never had sexual intercourse with the Accused in a van. Hence, there is a major discrepancy in the version of Miss A which goes to the root of the case as couched under Count 1 of the Information because there is a complete uncertainty as to the place and nature of the incident.

With regards to Count 2 of the Information, Miss A told the police that she had intercourse with the Accused in the house of the latter’s relative. However, in the course of a reconstruction exercise, Miss A could not locate the house in question.

Be that as it may, I have taken note that Miss A testified that the Accused did not know her age at the time of the alleged offences. Given the uncertain nature of the version of Miss A, I find that she fails to come across as a reliable witness.

The age of the victim

I deem it to refer to DALLOZ CODE PENAL VO. ATTENTAT AUX MOEURS NOTE 71 where it has been laid down that:

“Puisque l’âge de la victime est un élément constitutive de l’attentat à la pudeur sans violence, il appartient à la juridiction criminelle de déclarer l’âge de la victime ».

In the present case, the certified extract of birth entry has undisputedly revealed that Miss A was born on the 28 th November 2002 and hence was 12 years old at the time of the alleged offences.

At this juncture, I deem it fit to refer to the case of MAHADEEA D VS THE STATE (1997) SCJ 264 where the Court laid down as follows:

“It is settled law that the appreciation of the age of the victim, in cases like the present one, rests on the trial Court, I find in this respect appropriate the following from Dalloz Code Pénal Vo. Attentat aux moeurs note 71:-

“71. Puisque l’âge de la victime est un élément constitutif de l’attentat à la pudeur sans violence, il appartient à la juridiction criminelle de déclarer l’âge de la victime (Crim. 4 mai 1842, Bull. crim. , no. 48). Pour ce faire, la cour et le jury réunis peuvent tenir compte de tous éléments débattus et ils statuent d’après leur intime conviction. La décision est alors souveraine et échappe au contrôle de la Cour de cassation (Crim. 7 avr. 1898, S. 99.1.268; 25 mars 1899, Bull. crim., no 66; 13 janv. 1927, ibid., no 10). La Cour de cassation fait une rigoureuse application de cette règle en décidant qu’il ne lui appartient pas d’apprécier si l’âge de la victime constaté souverainement par la cour d’assises est différent de celui établi par un acte

authentique de naissance (crim 1 er mars 1838, S. 38.1.944; 25 mars 1899, préc.). En revanche, toute incertitude sur la minorité de 15 ans entraînerait nécessairement la cassation (Crim. 16 mai 1924, Bull.crim.,no 213). Toutefois, la question interrogeant la cour et le jury sur des attentats à la pudeur consommés ou tentés sans violence sur une mineure de 15 ans n’est pas viciée par le défaut d’approbation d’un chiffre apposé en surcharge relatif à l’âge de la victime si la date de naissance de la victime est précisée dans la question posée (Crim.7 déc. 1965, Bull. crim., no 264). En pareil cas, il n’existe aucune incertitude sur la minorité de 15 ans.”

In the present case, it is clear from the certified extract of birth entry of Miss A that she was 12 years old at the time of the offence. However, Miss A clearly and unequivocally testified that the Accused was unaware of her age at the material time.

The question which arises is whether the Accused ought to have known the age of Miss A at the time of the alleged offences. The Accused has denied that he had sexual intercourse with Miss A and there is no evidence that he was informed of the age of Miss A. The Court also had the opportunity to assess the demeanour of Miss A and from an objective point of view, would not be in a position to conclude the age of Miss A.

I deem it fit to refer to the case of GORAIAH v R (1989) SCJ 169. In this case, there was unchallenged evidence that “the victim was mentally handicapped, that she could say yes and no, even so, not quite coherently, and that she spoke a language of her own which only those living next to her could understand”. In comparison, in this case, there is no evidence that the Accused ought to have known that that Miss A was under 16 years old at the time of the alleged offences. Therefore, taking the Prosecution case at its best, I find that the uncertainty in relation to the age of Miss A shatters the Prosecution case.

CONCLUSION In light of the above, I find that the present case is an apt one where the benefit of the doubt should be attributed to the Accused. I find that the Prosecution has failed to prove its case beyond reasonable doubt. I dismiss both Counts against the Accused.

Judgment delivered by: M.GAYAN-JAULIMSING, Magistrate, Intermediate Court

Judgment delivered on: 5 th March 2020