Supreme Court of Mauritius, 9 juin 2020, 2020 INT 62 – POLICE v V. SHAMLOLL

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POLICE v V. SHAMLOLL

2020 INT 62

POLICE v V. SHAMLOLL CN: 884/2017

THE INTERMEDIATE COURT OF MAURITIUS [CRIMINAL DIVISION]

In the matter of:-

Police

v/s

Vishwajeet SHAMLOLL

JUDGMENT: The accused stands charged with the offence of: Sexual intercourse with a minor under the age of 16, in breach of Section 249 (4) of the Criminal code, under Counts 1, 2, 3, 4 and 5 of the information. He has pleaded NOT Guilty to all Counts and he was assisted by Learned Counsel, Mr. N. Dulloo at the Trial. Ms. A. Sunglee, Senior State Counsel, appeared for the prosecution.

The Prosecution’s case: SI Rengasamy, who recorded the statement of the accused, dated 08/04/15, read and produced same (vide: Doc A). PC Kathapermal, who had proceeded to Royal Road and the public beach of Poste Lafayette in the company of witness No.5, that is the complainant, took three photographs (vide: Docs B, B1 to B3).

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PC Mohun went to Poste Lafayette, where the complainant indicated spots and he took measurements, following which he drew up a plan (vide: Doc C). PS Bhugaloo put up a statement in which he has explained the photographs and the plan (vide: Doc D). Witness No.5, the complainant, testified as follows: On 6 th of April 2015, she gave a declaration against the accused to the police in relation to the present case, inasmuch as she had problem with her paramour and was brutally assaulted due to the fact that the accused spoke to her paramour about intimate details and matters relating to the time when she and the accused were in love. At the time they were in love, the accused forced her to engage in sexual intercourse with him. In view of the fact that she was a minor and there would have been a police case, their parents agreed that they would get married. At the time when they were seeing each other, accused’s behaviour started to change. Thereafter, her love for him waned and she related this to her family. Her parents advised her that there was no need for her to be forced into getting married with the accused if she did not want to do so. Then, on a Sunday, she told the accused that she would not get married to him and there would be no police case against him; following which he left. Since then, she did not cross his path. However, he has spread rumours everywhere about intimate things which happened between them and of which her paramour was not aware. Her paramour was accused’s friend. As a result, he tarnished her reputation and she was beaten to the extent of nearly losing her life. She has a child. Initially, when she met the accused, they were contacting each other through the phone and, then, they decided to spend some time talking at the beach. But, instead, the accused took her to a bungalow at Poste Lafayette. They entered the room and the accused started kissing her. He removed her clothes and had sexual intercourse with her without being aware and realising that this happened. She did not consent to that and she was 14 years old at that time. Given that she lost her virginity, he told her to have a shower, which she did. Thereafter, he approached her and again had sexual intercourse with her. Later, he dropped her near her house. She kept thinking about that and she had pain, following which she divulged to her brother what had happened. Her brother contacted the accused, who, subsequently, brought his parents to her place and they decided to get married. Then, the accused joined the SMF and went to her place on Sundays. However, the accused’s attitude changed. At that time, she did not love him as much as she had loved him initially. She informed her parents that she no longer wanted to get married to the accused. Thereafter, the latter was told accordingly. She had sexual intercourse with accused on two occasions in a van, at the beach. She was born on 14/02/89. At that time, she was less than 16 years old and the accused was aware of same. She lost her virginity due to the fact that accused had sexual relationship with her. In cross- examination, she answered the following: She got married to her paramour after having given the declaration against the accused. She reported this case, because she had problem with her paramour. She did not have any objection that accused had joined the Police Force. The accused and her husband are no longer friends. Everything she has stated is true. The case of the accused:

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In his out-of-court statement, dated 08/04/15, the accused has mentioned the following: In the year 2003, he was undertaking the Higher School Certificate and he was selected in the volley ball team to participate in the Jeux des Iles. On the day of the opening ceremony, held in Anjalay stadium, at Belle Vue Harel, he made the acquaintance of witness No.5. At that time, he was 18 years old and witness No.5 was 14 years old. Subsequent to the day they had met each other, they started communicating through mobile phone and they met quite often after school hours. Thereafter, he was employed as Security Officer at Star Knitwear in Rivière du Rempart. On 14 th of February 2005, when witness No.5 reached the age of 16, in the company of his parents, he went to her place at Roche Noires and he proposed her marriage. On that day, her parents agreed to this proposal and he started to visit her at her place. At that time, he was earning a monthly salary of Rs.15,000 to Rs.20,000. In the month of June 2005, he joined the Police Force and he received training in the SSU for ten months. He was, then, earning Rs.6,125 per month. During that training course, he did not have much time to go to witness No.5’s place and they communicated through the phone. In the month of March 2006, he went to witness No.5’s house and the latter asked him about his salary. On hearing the amount of his salary, witness No.5 told him to quit the job as she would not be able to live with him, otherwise she would leave him. He allowed her one month to think it over. After about two weeks, witness No.5 told him through the phone that she had met another person and she would cease their love relationship. On the same day, he went to her house and she returned all the gifts he had given to her. In 2008, he learnt that witness No.5 had got married to one Jowata. In 2009, he made the acquaintance of one Pooja Gopaul and they got married in 2011. In the year 2012, he was informed that witness No.5’s husband had committed suicide for a reason unknown to him. After a while, he learnt that witness No.5 started living with one K. Gobin, who is known to him as Raja. The latter has been his friend for a long time. He has not seen witness No.5 since the year 2006. He does not agree that on a Saturday at 10.00 hours, in the month of October 2003, he had sexual intercourse with witness No.5, in a bungalow at Bras D’eau, Poste Lafayette. He further denies that on four occasions he had sexual intercourse with witness No.5 in his van at the public beach of Poste Lafayette. He wanted to get married with witness No.5, but he did not have the intention of having sexual intercourse with her before the marriage. He cannot say as to why witness No.5 has levelled a charge against him. His parents are aware of the reason their relationship has ended. He told his wife that he never had sexual intercourse with witness No.5. In Court, the accused testified as follows: The content of his out-of-court statement, dated 08/04/15, is the truth. He denied the allegations levelled against him by the complainant; he never had sexual intercourse with witness No.5. In the course of cross-examination, he answered the following: He met witness No.5 in the year 2003 and they were communicating through the phone. In 2005, they started meeting each other. In between the years 2003 and 2005, they met only once or twice. On 14/02/05, the complainant had reached the age of 16 and his parents went to her place. He again denied having sexual intercourse with witness No.5. He did not mention in his statement given to the police that, in the company of his parents, he went to witness No.5’s place to get engaged on the latter’s birthday, which happens

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to be St. Valentine’s day, and about other issues for the sake of protecting his marriage. His wife was working at CID Port Mathurin at that time. Unfortunately, however, due to the complainant’s declaration, his wife has parted from him and during that period, his child passed away by drowning. His behaviour did not change and it is witness No.5 who decided not to get married to him. He was working in Rodrigues at the time he allegedly told rumours to her paramour.

Determination: After having taken due consideration of the whole evidence on record, the Court has noted the following: To start with, the relevant provision of the law in this case is Section 249 (4) of the Criminal Code, which stipulates 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.’ Also of relevance is Section 249 (7) of the Criminal Code, which provides that, ‘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.’ Whilst it is trite law that the consent of the minor is no defence to the charge (vide: P. G. Macotia v The State [2006 SCJ 189]), it is incumbent on the prosecution to prove beyond reasonable doubt two essential elements of the offence (vide: P.Guya v The State [2000 SCJ 069]), namely, (1) The complainant was under 16 years of age at the material time; and (2) The accused had sexual intercourse with the complainant on the relevant date. The Court shall now deal with the constitutive elements of the offence: 1.The complainant was under 16 years of age at the time: As regards the first element of the offence, witness No.5 testified that she was less than 16 years of age on the alleged occasions in question. It is expedient to note that the certified extract of the birth certificate of witness No.5 has not been produced; but it is not disputed by the defence that the complainant was still under the age of 16 in the years 2003 and 2004. It was laid down in the case of Mahadeea v The State [1997 SCJ 264] that once the prosecution has established the age of the victim, the evidential burden shifts on the accused to prove that he had reasonable cause to believe and did in fact believe that the victim was above the age of sixteen. This legal reasoning was followed in Cerveau v The State [2009 SCJ 15], where the Supreme Court reiterated that,

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“Once the prosecution had established the complainant’s age, it was open to the Appellant to prove that he had reasonable grounds to believe that the complainant was sixteen years old or older. We note that the Appellant made a complete denial of the charge, and did not adduce any evidence as to any such reasonable belief thus failing to discharge this eventual burden.” As mentioned above, given that the age of the complainant has not been challenged and the accused did not adduce any evidence as to any such reasonable belief that the complainant was sixteen years old or older, the Court finds that the Prosecution has proved the first component of the offence under Counts 1, 2, 3, 4 and 5 of the information.

2.Did the accused have sexual intercourse with the complainant on the occasions as averred in the information? The case for the prosecution rests mainly on the testimony of the complainant. Hence, the Court has to analyse witness No.5’s version to determine whether the latter’s testimony is reliable. The credibility of witness No.5: As far as witness No.5 is concerned, the Court wishes to point out, at the ouset, that she did not appear convincing for the following reasons: (1) In Court, she related that, in October 2003, the accused allegedly had sexual intercourse with her and she had a shower, and immediately after, the accused anew had sexual intercourse with her. But, when the defence statement was recorded, it was never put to the accused that he had sexual intercourse twice with the complainant on that day. And, it is well established that in a criminal case it is normal to assume that the version that is put to an accused when recording his or her defence is the very complaint that was made by the victim (vide: P. Marday v The State [2000 SCJ 225]). In addition, she testified that she had sexual relationship with accused on about two occasions in the van and she indicated to the police the spot on the beach where the alleged incident took place on two Sundays (vide: Doc D). However, it was put to the accused at the time his statement was recorded that he allegedly had sexual intercourse with the complainant in a van, at the beach on four occasions. It is plain that there are material discrepancies in the prosecution’s case which ultimately cast doubt on witness No.5’s version, inasmuch as on the basis of the pronouncement in the case of P. Marday v The State (supra), seemingly, there are serious contradictions between the complaint made by witness No.5’s and the facts she imparted to the police at the two spots. True it is that the alleged incident occurred quite a long time ago, but the Court cannot turn a blind eye to those serious and unexplained discrepancies as regards witness No.5’s version.

(2) When she was asked during examination-in-chief with regard to the number of times she allegedly had sexual intercourse with the accused, she replied

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vaguely, “Environ deux fois.” On a serious issue such as this, that is obviously not a definite answer and this, unquestionably, renders her version doubtful.

(3) She testified that she had sexual intercourse with accused on two occasions on the beach in the same year that she had sexual intercourse in the bungalow, that is, in the year 2003. It is only when she was told in the course of the trial that she had sexual intercourse with the accused on the beach in 2004 that she agreed to same. Apparently, she even contradicted herself in respect of the year she allegedly had sexual intercourse with accused in a van. Such contradiction, inevitably, impinges on her credibility.

(4) The age of the accused is not material for the purposes of this case. But, witness No.5 testified that at that time they decided to get married, their parents were aware of their wish and yet, quite surprisingly, she answered that she did not know the age of the accused at the time they allegedly had sexual intercourse in a van, that is, after they had taken the decision to get married. The Court finds it strange that she did not know the age of the accused to whom she had agreed to get married at that time and this makes the Court wonder whether she is telling the truth.

(5) She showed to the police the bed in the bungalow on which the accused allegedly had sexual intercourse with her twice (vide: Doc D) and according to her version in Court, they had sexual intercourse also in a van, at the beach. Therefore, the offence was allegedly committed at two places. However, quite surprisingly, in Court, she testified that accused disclosed to her paramour the truth, that is, they had sexual relationship at three spots, namely, “… dans la salle, dans lasam couma ti été, la plage …”. After a considerable stretch of time of 11 years, a complainant’s recollection, in this type of case, may have grown somewhat dim, but not to the extent of forgetting the exact place or even adding new locus where the incident allegedly occurred. Conspicuously, that contradiction has the effect of undermining her credibility.

(6) She testified that when the accused had sexual intercourse with her, she was not aware and did not realise that this happened. Taking into account that she was allegedly a virgin before the alleged act of sexual intercourse, her account seems rather far-fetched. When considering all the various discrepancies, which have emerged in witness No.5’s testimony, as a whole, this renders her testimony doubtful and which makes her version unsafe to be relied upon. Of relevance here is the case of P. Roussety v The State [2018 SCJ 150], where the Supreme Court held that, “Even if it is argued that, taken in isolation, none of the imperfections highlighted above, would justify reversing the judgment, their cumulative effect, in our view, is such that it was unsafe to convict the appellant on such evidence.”

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In the case of R.D.S. Teeluck v State [2014 SCJ 398], the Supreme Court pointed out the following criteria which have to be considered by a Court before acting on the sole testimony of a complainant in a sexual case: “True it is that, in law, a Magistrate can act on the sole testimony of a complainant in a sexual offence case. But that is subject to the condition that the complainant is a credible witness whose testimony has stood the test of cross-examination. Some allowance can be made for minor contradictions, the natural failures of memory and inconsistencies on peripheral issues. But, on the whole, the witness has to be convincing to such an extent that a court can safely act on her testimony without any real risk of a miscarriage of justice occurring. …, it is apposite that we should remind Magistrates that it is not sufficient for them to quote the principles relating to acting on the sole testimony of complainants in sexual cases as a cliché. They must address their minds to the real risks of a miscarriage of justice and the rule relating to the requirement of corroboration must not be rendered nugatory because of an over-readiness to act on the uncorroborated evidence of complainants in sexual cases. The circumstances surrounding the commission of the alleged offence, the motivation of the complainant, her past conduct, her propensity to lie or to invent as evidenced by contradictions and inconsistencies, her psychological make-up and her previous involvement in sexual behavior are only a few of the matters that may have to be probed into before a pronouncement can be made as to whether the court can or cannot act on her uncorroborated testimony.” Of relevance also is the case of Botte & Ors. v The Queen [1968 MR 80], where the Supreme Court had this to say: “This Court has on many occasions reiterated the well-known principle that unless the law makes it imperative, corroboration is not in every case indispensable; and a court may well act on the uncorroborated evidence of a witness found to be entirely reliable. But where the evidence of the sole witness called on a particular issue is not entirely satisfactory, … , this court will not be prepared to make any assumption in favour of the prosecution.” In the present matter, given those serious disturbing features regarding witness No.5’s version as enumerated above, the Court takes the view that her sole testimony cannot be acted upon and that corroborative evidence is called for in the circumstances. And, that is a sufficient reason alone in seeking for corroboration. However, there is one additional reason to look for corroborative evidence and it is the following: The delay in reporting the matter: The delay in reporting the matter to the police was made a live issue in the course of the proceedings. Interestingly, in B. Dowlut v The State [2008 SCJ 178], the Supreme Court remarked that “under our law there is no statutory delay for reporting a case of a sexual nature.”

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In D.P.P v S. Beeharry [2007 SCJ 89], the Appellate Court was of the opinion that an opportunity must be given to a complainant to explain why the latter had delayed in reporting the matter and it is for the Court to decide whether such delay was justified. In D. Domun v The State [2011 SCJ 227], the alleged insult was reported on the day following the utterance of the filthy words to the address of the complainant. His explanation for this late report of the case to the police is two-fold: he did not have the opportunity to go to the police station on the same day and he wanted to give his declaration “a tête reposée”. The Appellate Court was “of the view that the delay in reporting the matter promptly to the police and the reasons given for such delay should have alerted the Magistrate on the credibility of the complainant and the possibility that he may have concocted the words “a tête reposée” as he himself said.” [Emphasis added] Hence, a delay in reporting an incident will, undoubtedly, have an adverse effect on the credibility of a complainant, unless the latter has furnished a plausible explanation for doing so. In the present matter, witness No.5’s complaint had not been made at the first reasonable opportunity but several years later. She has explained that what prompted her to report the matter is the fact that accused had spread a rumour, causing a blot on her character, and she was brutally assaulted by her paramour as a result of that rumour. In other words, she levelled the present charge in retaliation to what accused allegedly recounted to her paramour. Hence, her declaration stems from vengeance. Be that as it may, one cannot lose sight of the fact that there has been a substantial delay of more than 11 years in reporting the matter. Similarly, in D.P.P v S. Beeharry [2007 SCJ 89], the complainant had taken 13 years to report the alleged incident and the Appellate Court considered that “there had been considerable delay in reporting the alleged offence against the respondent.” Also of note, is the judgment of the Intermediate Court in Police v J.R.B. de Labauve D'Arifat [2018 INT 168], which is, although not binding, but a persuasive one. In that case, the accused was charged with sexual assault upon the declarant, in relation to events which occurred more than 30 years ago. The Learned President of the Intermediate Court had this to say in her judgment: “The Court cannot close its eyes to the fact that A’s testimony comes with an exceptional delay of 30 years after the event/s … The lateness in reporting the matter is not questioned by the Court. The Court has nothing to say as regards the perfectly justifiable fears, reluctance, trauma and apprehensions of victims of sexual abuse in reporting the matter to the police and finds nothing sinister in same. In its quest to ensure that Accused benefits from a fair trial so that the ends of justice can be considered as being safely met, it is indeed these circumstances and these circumstances alone that lead the Court to seek some corroborative evidence – which would have been eminently desirable but which is sadly lacking in this case…

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The concern of this Court in this particular case is that after the passage of time and after A’s testimony has been viewed in the context of all the evidence on record and in absence of any independent/supporting/corroborative evidence/witness brought forward by the Prosecution which would have been desirable, the Court cannot safely rely on same without doing injustice to Accused. … this Court is of the considered opinion that in these particular circumstancesm [sic] the Prosecution’s case falls short of a very desirable element – that of corroboration.” As a result, the Intermediate Court in that case granted the benefit of doubt to the accused and dismissed the relevant counts due to the lack of any corroborative evidence. Quite naturally, in the present case, the Court is of the considered view that the legal reasoning in the above-cited case finds its application into the present matter, whereby the lapse of time of more than 11 years is viewed as a “considerable delay in reporting the alleged offence” against the accused and, as such, the present circumstances require corroborative evidence. Thus, it is manifestly obvious that in view of the disturbing features which have surfaced in this case in relation to witness No.5’s version and compounded with the considerable delay in reporting the matter, corroboration is highly desirable in the present matter. The accused’s version: Turning to the accused’s version, in his statement given to the police, he has denied having sexual intercourse with the complainant on all occasions as averred in the information. At the trial, he reiterated and maintained all throughout that he never had sexual intercourse with the complainant. Furthermore, he has not contradicted himself on any material issue, save that, during cross-examination, it came out that he had not mentioned some facts in his out-of-court statement. But, he explained that he acted in such manner, inasmuch as he tried to protect his marriage. Self- evidently, those omissions by him cannot amount to lies, which could have constituted corroboration and there is, therefore, no need for ‘Lucas directions’ (vide: S. Ramen v The State [2013 SCJ 215]). All in all, there is no evidence to confirm and corroborate witness No.5’s testimony that the accused did indeed have sexual intercourse with the former on the occasions as stated by the complainant in her testimony. Hence, the Prosecution has not proved beyond reasonable doubt the second constitutive element of the offence under all five counts of the information.

CONCLUSION: In the light of the foregoing observations, the Court finds that the prosecution has failed to adduce sufficient evidence to establish its case against the accused beyond

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reasonable doubt under all Counts. The Court is of the considered view that the accused is at least entitled to the benefit of the doubt and the Court, therefore, grants to the accused the benefit of the doubt. The Court, accordingly, dismisses Counts 1, 2, 3, 4 and 5 of the information.

Mr. P. SEWPAL Ag. Vice-President Intermediate Court Date: 09/06/2020