Supreme Court of Mauritius, 10 juillet 2020, 2020 INT 93 – POLICE v MOHAMMAD ABDOOL SHEZAD BOOTUN

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POLICE v MOHAMMAD ABDOOL SHEZAD BOOTUN

2020 INT 93

IN THE INTERMEDIATE COURT OF MAURITIUS (CRIMINAL DIVISION)

Cause Number 352/2018

In the matter of:

POLICE v MOHAMMAD ABDOOL SHEZAD BOOTUN

Judgment 1. Mohammad Abdool Shezad Bootun (the accused), was, in January 2014, an inmate, at the New Wing of Beau Bassin Central Prison, serving a sentence of imprisonment. Another inmate (to whom the Court shall refer as AD), also serving a custodial sentence since 23 December 2013, has made a complaint to the Prison Authorities and has given a declaration to the police to the effect that, whilst he was allegedly sharing cell no.16 of Block D with the accused during the evening of 23 January 2014, the accused had attempted upon his chastity when he was forced to ‘perform an act of fellatio’ (sic) on the accused.

2. It is against such factual background that the accused stands charged under one count of an information with having willfully and unlawfully committed an indecent act by force on the person of AD, in breach of Section 249(2) of the Criminal Code. He pleaded not guilty to the charge and was not assisted by counsel at the trial.

3. Besides documentary evidence, namely, photographs and plan of the locus, 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 AD and the then Assistant Commissioner of Prison who confirmed that the accused and AD were both serving custodial sentences and were sharing the same cell on 23 January 2014.

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4. The accused, has, for his part deposed under solemn affirmation and has, since the very beginning when his statement was taken extra-judicially, maintained having neither shared a cell with AD on the day of the alleged incident nor having sexually assaulted him as alleged or at all. Analysis 5. This Court is essentially faced with the version of AD under solemn affirmation against that of the accused.

6. Notwithstanding the nature of the complaint and its surrounding circumstances, AD did not depose in a straightforward and open manner. He was hesitant when questioned on the salient issues and his responses guarded.

6.1. His first response when he was asked to describe and give details of the alleged incident was that he could not remember the day and date of the occurrence, leading to his memory being accordingly refreshed. The unfolding of his testimony indicates that he did not give in to the untoward things which the accused was forcing him to do; he described such untoward behaviour as the accused trying to remove the underwear of AD whilst the accused was in his birthday suit; he however neither knew the nature of such acts nor the intention of the accused behind such behaviour; and nothing else happened.

6.2. The unfavourable replies of AD which were ostensibly at variance both with his previous version to the police and the one put to the accused when recording his out of court statement, led the prosecution to impugn the credibility of its own witness by putting inconsistent part of such previous statement to him. Without waiting for the completion of the question which followed, AD hastened to add that he did not wish to proceed with the present matter. AD thereafter acknowledged that his version found in his out of court statement was in fact the correct one; namely, that the accused had allegedly lowered his (the accused) underwear; threatened AD by holding a ‘pique demon’ at the nape of his neck; pressed the head of AD and forced him to fellate the accused; AD was so frightened that he complied silently. When AD was confronted anew, during cross examination, with the fact that he had given two different versions, AD renewed his wish not to proceed with the present complaint.

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6.3. The manner in which the accused had allegedly assaulted AD just before threatening him with the ‘pique demon’ as described by AD in Court is at variance with the version, which is presumably the very complaint made by AD, put to the accused when recording his defence statement. AD has without any justification departed from such a material aspect of his testimony in order to come up with a new version in Court and such inconsistency has remained unexplained away.

6.4. It also appears that AD came up with the version that the accused was allegedly under the influence of methadone for the first time when he deposed in Court, such version not being found in the one put to the accused when his out of court statement to the police was being recorded.

7. The Court observes that the evidence on record is silent as to any independent witness to the alleged incident. Indeed, there is nothing on record to show whether cell no.16 was subject to any forensic examination; the evidence led by the prosecution is silent as to whether the ‘pique demon’ allegedly used by the accused to threaten AD had been secured; the plan shows only one bunk bed in cell no.16 and the total number of inmates sharing cell no.16 on the material night was not clearly established, the then Assistant Commissioner of Prison having only confirmed that the accused and AD were indeed sharing cell no.16. AD has mentioned having reported the alleged incident at the reception the following morning; the testimony of the person to whom such complaint was allegedly made has however not been ushered in evidence.

8. The accused has on the other hand maintained throughout and since the very beginning that he is innocent and he did not share a cell with AD on the evening the offence is alleged to have been committed. He has also stated that AD had a motive to lay a false charge against him on account of the problems they have had in the past. Such version has remained unshaken in cross examination.

Conclusion 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 that the

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

10. It is well established that the Court will not outright reject the evidence of a deponent merely because it contains inconsistencies; allowance being made for minor contradictions, the natural failures of memory and inconsistencies on peripheral issues. In that respect, the Court has analyzed the testimony of AD as a whole taking into consideration, inter alia, the lapse of time between the alleged offence and the time he gave evidence in Court, his age, his apparent mental state, and his demeanour in Court.

10.1. “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.”

10.2. The disquieting features in the evidence of AD 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 AD to the police and his version in Court. AD has without justification departed on important aspects from his previous statement to the police and he came up with a different version in Court.

10.3. Bearing in mind that the evidence of AD must be viewed with extreme caution in the absence of any credible corroborative evidence, this Court finds that it is most unsafe in the circumstances of the present matter to rely on his sole testimony to find it established to the standard required in a criminal matter that the accused is the author of any assault and/or has attempted upon the chastity of AD as alleged.

10.4. The Court finds that the prosecution has failed to prove the charge against the accused beyond reasonable doubt.

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

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10.5. 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: 10 July 2020]