Supreme Court of Mauritius, 11 mai 2026, 2026 ROD 20 – Police v Jean Johnley Ernest

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Police v Jean Johnley Ernest

2026 ROD 20

IN THE COURT OF RODRIGUES CN: 1426/2022

Police v/s Jean Johnley Ernest

Judgment

In an information lodged against the accused, the latter stands charged with the offence of “attempt upon chastity” in breach of section 249 (2) of the Criminal Code. As per the particulars of the information, it is averred that on the 15 th of August 2020, the accused willfully and unlawfully committed an indecent act without consent upon a minor, Miss A.M. The accused pleaded not guilty to the charge and he was represented by learned counsel Mr Dayal during the trial. Learned counsel from the DPP’s office appeared for the prosecution.

At the outset of the proceedings, the prosecution produced a birth certificate of the complainant, same stipulating that the latter was born on the 19 th of May 2010. The medical reports of the accused and the complainant were produced to the Court. In the course of the proceedings, a plan and a reference table were also produced to the Court.

PC Raphael stated that on the 22 nd of August 2020, he took 6 photographs of the locus where the alleged offence took place. The said photographs were produced to the Court. Under cross examination, the officer confirmed that no photograph showing the alleged love bites on the complainant were taken.

PC Tan Wee stated that on the 20 th and 23 rd of August 2020, he took two statements from the accused. In the said statements, the accused denied the aforementioned charge.

PC Perrine identified the plan and photos on record and he produced an explanatory statement concerning the said photographs. The officer further stated that after a direct confrontation exercise was made, the complainant positively identified the accused. After a successful competency test was carried out upon the complainant, the latter deposed to the effect that on the 19 th of August 2020, she reported a declaration to the police station of Rivière Coco. After her memory was refreshed as to the date of the alleged offence, she explained that on the 15 th of August 2020, whilst she was sitting down, the accused put love bites on her neck and back. She explained that she tried to defend herself but thereafter she found that the accused, also known as “Sony” inserted a lock on the door. Her testimony further revealed that subsequently her mother came and thereafter the accused released her. After the alleged incident, she stated the she did not feel “good” as she never had love bites in the past. The complainant furnished further details concerning the alleged incident by stating that same took place inside a house at Cité Patate whereby there were other people therein namely “Ton Tikil” and her cousin Olivia. She explained that “Ton Tikil” was putting love bites equally on Oliva and as such they could not help in defending herself from the accused. The complainant further contended that the accused used to come to the house of “Ton Tikil” and that he was very close to her mother.

Under cross examination, she stated that the alleged incident took place during the day at the house of “Ton Tikil”. She further explained that both “Ton Tikil” and Olivia were sitting on the bed when the accused came and grabbed her. She maintained her version to the effect that the accused put love bites on her neck and back. She explained that love bite is given by kissing someone and it is of a purple colour. She further stated that the loves bites allegedly given to her by the accused remained for a few days but after she was medically examined on the 19 th of August 2020, the said love bites already disappeared. She stated that she did not know how the love bites disappeared. She further stated that on the 15 th of August 2020, she did not know that the alleged love bites given to her by the accused were actually love bites until on the next day, her mother saw same on her back at home. She stated that the love bites were on her left neck and left cheek as well. Upon seeing the love bites on her neck, the complainant stated that her mother talked “macro ek moi” and then they went to the police station of Rivière Coco. She clarified the sequence of events relating to the alleged incident and stated that she attended the police station on the 19 th of August 2020.

She further explained under cross examination that her mother did not see the said love bites on her on the 15 th of August 2020 as she was wearing clothes covering her neck. She stated that on the 17 th of August 2020 she attended school and her headmistress noticed the love bites on her neck and thereafter the police was informed. She claimed that on the 19 th of August 2020 when she went to the police station, she felt scared to inform the police about the alleged love bites on her neck. She stated that it was only on the 21 st of August 2020 that she gave another statement to the police mentioning about the love bites as her mother told her not to be scared. Concerning the love bites on her cheek, she stated that her aunt saw same on the 17 th

of August 2020 and thereafter she informed her mother. She explained that her mother did not see the love bites on the 16 th of August 2020 but it was only on the 17 th of August 2020 that her aunt informed her mother of the said love bites.

Mrs Fabrina Marianne, the mother of the complainant testified under oath and she explained that the accused used to come to Cité Patate. She explained that her daughter made a declaration against the accused as the latter, also known as “Sony”, put love bites on her neck. She explained that her daughter was playing with her cousin when the alleged offence took place. She became aware of the incident through the CDU but she also saw the love bites on her daughter’s cheeks and back. She stated that she was shocked upon seeing the love bites on her daughter and after the latter was questioned, she stated that “Sony” gave her the said love bites.

Under cross examination, she stated that she was not present on the locus when the alleged incident occurred. As regards to her statement given to the police, she confirmed that the complainant informed her that the accused did not commit any other act to her. She confirmed that her daughter’s version concerning the alleged offence is a truthful account.

After the prosecution closed its case, the accused was not called to give evidence and the defence equally moved to close its case.

Learned counsel for the prosecution, Mr Jeerasoo submitted that the complainant has at all times during the proceedings maintained that the accused put loves bites on her. It was highlighted that the complainant initially explained that the accused put love bites on her neck and back but she further clarified by giving further details to the effect that the accused gave her love bites on her left cheek as well. Learned counsel laid emphasis on the testimony of the complainant, more precisely as to how the latter was grabbed by the accused and further the description given by her concerning the colour of the love bite. It was further submitted that the complainant did not know about the

love bites on the 15 th of August 2020 until her mother saw same on her on another day. Furthermore, she did not inform her mother of the incident as she feared that she would be beaten up.

It was submitted that though there were few discrepancies in the testimony of Mrs Marianne, however, she maintained her version to the effect that she saw the love bites on the complainant and the latter informed her that it was the accused who committed the alleged act.

Mr Dayal, learned counsel for the accused submitted that the testimony of the complainant has material discrepancies, which as a result have a bearing over her credibility. It was further contended that the version of the complainant was not corroborated by her mother and therefore, her version cannot be relied upon by the Court in view to convict the accused.

In reply, Mr Jeerasoo stated that the mother of the complainant was never present at the material time of the alleged offence and as such, the element of corroboration is not a relevant issue to be considered by the Court.

In the present matter, I have considered the testimonies of the prosecution witnesses, the documentary evidence borne on record and the submissions offered by both learned counsel.

As per the case of Moctee v The State [2024 SCJ 61] it was stated that for the offence of “attempt upon chastity” the prosecution has to prove the following elements of the offence, namely (i) an indecent act amounting to an “attentat à la pudeur”; (ii) the said act was done without the declarant’s consent; and (iii) the accused mens rea.

The evidence on record has revealed that the complainant made a declaration to the police station of Rivière Coco on the 19 th of August 2020 and on the 21 st of August 2020 following the alleged act committed by the accused on the 15 th of August 2020.

It was held in the case of Marday v The State [2000 SCJ 225] 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’’. In the first defence statement dated the 20 th of August 2020, the version of the complainant put to the accused was to the effect that on the 15 th of August 2020 at 10 00 hours, whilst she was at the house of “Ton Tikil”, the accused grabbed and kissed her on her neck, cheek and mouth. In the second defence statement dated the 23 rd of August 2020, the version of the complainant put to the accused was to the effect that on the 15 th of August 2020, the accused put love bites on her right cheek and on her back. As such, the Court takes it that the alleged acts of kissing and putting love bites on the complainant form the basis of the very complaint made by her in the declaration given to the police.

Now in Court, in a very convincing attitude, the complainant explained that on the 15 th

of August 2020 she was at the house of “Ton Tikil” together with the accused when the latter grabbed her and put love bites on her neck and back. Under cross examination without any hesitation, her testimony further revealed that the accused gave her love bites on her left neck and on the left cheek. She explained in a clear manner that the colour of a love bite is purple and it appears by kissing someone. She further stated that she did not know about love bites until her aunt and mother saw same on her cheek, back and neck at home on the 17 th of August 2020.

However, the Court notes that there are inconsistencies between the complainant’s version furnished to the police and her sworn testimony pertaining to the specific spot where the accused gave her the love bites. Firstly, during the inquiry, she stated that the accused allegedly kissed her on the neck, whilst in Court she stated that the accused put a love bite on her neck. Secondly, in the course of the police investigation, the complainant stated that the accused allegedly put love bites on her right cheek and on her back whilst in Court she claimed that the accused put love bites on her left cheek and on her back.

In the case of Rajbally v The State [2016 SCJ 340] it was held that, “It is not uncommon, before our Courts, for witnesses to give a version in court which, upon close scrutiny, is either inconsistent with or contains certain contradictions in comparison to statements made on previous occasions by him or her. This is not an automatic ground to reject the testimony of the witness in toto. Rather, the situation calls for a close analysis by the Magistrate who is hearing the case.”

The same approach was adopted in the cases of Ramcharran v The Queen [1977 MR 226] and Sobha v The State [2011 SCJ 396].

Furthermore, in the case of Andrew Cooper v The King [2023 VSCA 67], the Court of Appeal in Australia held at paragraphs 72 and 96 that, “First, not every discrepancy, inadequacy or inconsistency will necessitate a conclusion that a guilty verdict must be set aside. The issue will always be whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.” (Underlining is mine). The Court finds that the alleged offence took place in the year 2020 and the complainant, aged 14 years old, deposed in Court after 5 years. The inconsistencies regarding the act of kissing rather than putting the love bite on her neck and the side of the cheek as to where the love bite was given, are of a minor nature thereby not affecting the credibility of the complainant. In Court, she persuasively maintained her version to the effect that the love bites were given by the accused on her cheek and on her back. As such, there is no major departure from the original complaint she made to the police and her credible testimony in Court. In that respect, the Court has considered the guidelines explained in the case of Neeroo v The State [2023 SCJ 116].

The Court further notes that as per the testimony of the complainant, the offence took place on the 15 th of August 2020. She reported the matter to the police station on the 19 th of August 2020 and thereafter fully related the sequence of events that took place to the police on the 21 st of August 2020. Based on the evidence borne on record, it is understandable that there was a delay in reporting the matter to the police for the following reasons. Firstly, the complainant was 10 years old at the time of the offence and she stated that she did not know about love bites before. Secondly, she claimed that she used to get beaten up by her mother and when the latter saw the love bites on her, she stated that her mother talked “macro ek moi”. Thirdly, she felt scared to tell the police of the whole incident on the 19 th of August 2020.

Concerning the element of delay, the following was held in the case of Jogeea Sanjay v The State [2002 SCJ 192] namely;

“…Unhappily this Court has had a number of cases in which there has been great delay before offences of sexual abuse, or alleged sexual abuse, within the family context, have been brought to trial. This is not surprising. In L.P.B. 1990 91 Cr. App. R. 359, judge J. at p. 361 said the following: The delay is the result of reticence by the alleged victim in reporting the allegation. Such delay is not uncommon and is wholly

understandable. It takes considerable courage for a young victim of sexual indecency at the hands of a parent or step-parent to report it…”

Furthermore, it was held in the case of Dowlut Bhawoonauth v The State [2008 SCJ 178], that there is no statutory delay in reporting a case of a sexual nature.

As such, in the present matter, the delay in reporting the complaint to the police is verily justifiable and comprehensible in light of the reasons explained above.

As regards to the testimony given by Mrs Marianne, she admitted that she was not present at the house when the alleged offence took place. She was informed by the CDU of the said incident and personally saw the love bites on the complainant’s cheeks and back. When she questioned her daughter about the love bites, the latter told her that it was one “Sony”, that is the accused, who put the said love bites on her. It was the submission of the defence that the version of the complainant was not corroborated by her mother.

Concerning the issue of corroboration, it is undisputed that in an offence of a sexual nature, corroboration is desirable but not required as a matter of law. True it is that as per the version of the mother, she saw the love bites on the complainant and the latter thereafter told her that it was the accused who committed the act. As such, in the present matter, the Court has to determine as whether the complaint made to the mother can amount to corroboration.

In the case of Banshi Dinsor v The State [1994 SCJ 255], it was held that,

“A complaint in relation to a sexual offence is exceptionally admitted to show the consistency of the evidence of the alleged victim and this is a departure from the well established principle that a party cannot rely on a previous consistent statement to strengthen his testimony in court (see R. v. Roberts (1942) 28 Cr. App. R. 102; R. v. Larkin (1943) 1 K.B. 174; Fox v. General Medical Council (1960) 1 WLR 1017 at p. 1025). But the complaint cannot amount to corroboration because it does not come from a source independent of the alleged victim: [see R. v. Christie (1914) A.C. 545; R. v. Whitehead (1929) 1 K.B. 99].” (Underlining is mine).

The same approach was taken in the case of Zephirin Artimer v The State [1998 SCJ 366] whereby it was held that, “We cannot but restate the principle that corroborative evidence must come from a source which is independent of the witness

whose evidence is to be corroborated and which goes to show that the accused committed the offence with which he is charged”. (Underlining is mine).

In the case of Lamoureux v The State [2007 SCJ 52] it was held that for a witness’s evidence to have any confirmatory value of the complainant’s evidence, the said complaint must be recent, voluntary and spontaneous. Conversely, in the present matter, the complaint was reported to the mother on the 17 th of August 2020, that is it was 2 days after the alleged offence and it was after the complainant was questioned by her mother that she stated that it was the accused who committed the act. As such, the Court cannot rely upon such evidence in view to support the version of the complainant. Having seen the complainant depone in a clear and convincing manner, the Court does not have any hesitation to rely on her sole testimony in view to convict the accused. She fully related the sequence of events that took place on the 15 th of August 2020 and explained how the accused grabbed her and put love bites on her cheek and back. She further explained the colour of a love bite. She firmly stood the test of cross examination in the course of the proceedings.

On the other hand, after the prosecution closed its case, the accused was not called to give evidence.

It was stated in the case of McLeod v The Queen [2017 UKPC 1] that; ‘‘The decision whether to give evidence or to make an unsworn statement, or to do neither, is one such decision, important as it certainly is in most trials.’’

In the judgment of R (Dutta) v General Medical Council [2020 EWHC 1974], the Court stated the following pertaining to evidence given under cross examination; ‘‘[44] … (11) ‘‘The general rule is that oral evidence given under cross-examination is the gold standard because it reflects the long-established common law consensus that the best way of assessing the reliability of evidence is by confronting the witness.’’

The accused denied the aforementioned charge in his defence statement. However, he did not depose under oath and his version was not tested under cross examination.

Furthermore, in the judgment of R v Nagi Al – Zubeidi [1999 EWCA Crim 81] [1999 CLR 906] whereby the accused did not depone under oath, the Court observed that;

‘‘He chose not to give evidence, and without evidence there was no foundation for the defence that he was advancing.’’

The following guidelines were expressed in the case of [Annia T v The State] (2006 SCJ 262) to the effect that; ‘‘Where the prosecution adduces evidence which is strong and credible enough to support the charge, it will be open to the trial court to act upon that evidence unless the accused party adduces such evidence as to satisfy the trial court that it should not act on the evidence adduced by the prosecution’’.

In the present matter, the accused did not adduce such evidence to satisfy me that I should not act on the credible evidence adduced by the prosecution.

For the above given reasons and in light of the evidence on record, the Court finds that the prosecution has proved its case beyond reasonable doubt and the accused is found guilty as charged.

Devinash Oozageer District Magistrate 11 th May 2026

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