Supreme Court of Mauritius, 30 mai 2023, 2023 CCT 33 — Police v Louis Westley Fine

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Police v Louis Westley Fine

2023 CCT 33

The Children’s Court of Mauritius (Criminal Division)

In the matter of: CN 147/22

Police

V

Louis Westley FINE

Judgment

1. The Accused is being prosecuted on one count of an information for the offence of ‘sexual intercourse with a minor under the age of 16’ in breach of section 249(4) of the Criminal Code. It is alleged that in or about the month of October 2016 the Accused wilfully and unlawfully had sexual intercourse with Minor K, who was then aged 8 years old. He has pleaded not guilty. He was represented by learned defence counsel K.S.Chetty who appeared informa pauperis and the prosecution was represented by learned counsel Y.Gopaul.

2. The charge under section 249(4) of the Criminal Code reads as follows:

“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.”

3. Hence the prosecution bears the burden of proving beyond reasonable doubt the following elements in order to secure a conviction:

(a) Minor K was under the age of 16 at the material time; and (b) The Accused had sexual intercourse with her on the aforesaid date.

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4. According to the Supreme Court judgment of Macotia V The State [2006 SCJ 189], the consent of a minor is no defence to the above charge.

5. To prove the first abovementioned element of the offence, the prosecution produced the birth certificate (Document A) of Minor K which clearly establishes that she was under 16 at the material time.

6. The prosecution also produced the following documents: (a) Medico-legal report in respect of examination of Minor K (Document B); (b) Medico-legal report in respect of examination of the Accused (Document C); and (c) the out-of-court defence statement given by the Accused (Document D).

7. PC 8040 Hurdyal (W3) explained that a reconstruction exercise was not carried out in this case since Minor K and her mother refused to do so as there were other tenants residing in the house where the alleged offence took place. They did not want the said tenants to become aware of the alleged incident.

8. During the first sitting, Minor K was called to testify under oath in camera by virtue of section 161A of the Courts Act. She was then aged 15 years old. In examination- in-chief, she explained that in 2016 she used to live with her mother, her little sister and the Accused, who was her mother’s concubine. On the material day, her little sister was unwell. So they all went to the hospital where her sick sister was admitted. Her mother stayed at the hospital. Minor K came back home with the Accused. She changed into her pyjama and went to bed whilst the Accused was in the kitchen drinking alcohol. She was sleeping but not in deep sleep. Minor K felt someone coming over her to touch her on her lips. She pushed back the Accused with her hand. He apologised and stated that he thought it was Minor K’s mother. The Accused stopped and Minor K fell asleep. Shortly after she felt that someone was undressing her. The light was off in the bedroom but she knew it was the Accused as he was the only person present at the material time. The Accused removed her clothes and touched her on her private parts. She tried to stop him with her hands but the Accused kissed her all over her body. Then the Accused stopped the indecent

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acts. Minor K stated that she put her pyjama back on and she slept. The Accused went downstairs. In the morning, whilst taking her shower, the Accused went in and touched her again. He told her not to say anything to anyone so as not to get into trouble. Minor K stated that she is aware that on 9 th August 2020 she gave a declaration to the police in relation to a charge of rape. When she was asked what she understood by rape, she explained that it meant ‘attouchement’ of a minor by an adult, that is the touching of her body without her authorisation after removing her clothes. At that particular moment, the prosecution informed court that Minor K was departing from her statement given to the police and the previous inconsistent part was put to her where she had said, ‘li fine met li touni et li fine monte lor moi. Li fine pren so coq et li fine met sa dan mo toutoune. Mo fine gagne bien dimal et mo ti plorer.’ Minor K was asked whether she agreed having said so in her statement to the police at the time of reporting the matter and she replied in the affirmative. She also added that she felt embarrassed to say all that in front of everyone in court following which Minor K started to cry. Proceedings had to be maintained for a short while to allow some time for Minor K to regain her composure. Thereafter, learned state counsel for the prosecution informed court that Minor K would wish to testify through video link as she was feeling anxious to do so in court. She further informed court that some time would be required for psychological assistance to be provided to Minor K pertaining to her anxiety before she can proceed with her testimony. She accordingly prayed for a postponement which was agreed to by the learned defence counsel. The Court considered that, in view of the given circumstances, it was in the best interests of Minor K that she is allowed for some time and the motion for postponement was granted.

9. At the subsequent sitting, after motion made by the prosecution, Minor K testified under oath through video link by virtue of section 13 of the Children’s Act. Minor K reiterated what she had said at the previous sitting as to how the Accused had touched her all over her body whilst in bed on the material night. Minor K then explained that after the Accused had taken off her clothes, he pushed his private part, referred to as ‘coq’, in her vagina. Thereafter she pushed him and felt pain. At that particular moment, Minor K started crying in court and proceedings were maintained

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for a short while. When resuming her examination-in-chief, Minor K said that the Accused was drunk and he went back to the kitchen. At that particular point, the prosecution moved to put the previous inconsistent part to Minor K where she had initially mentioned in her statement to the police that after committing the unlawful sexual act the Accused in fact slept next to her. In reply, Minor K agreed having said so. She explained that she can remember the main incident of unlawful sexual act but she cannot remember every other detail due to the passage of time. On the following morning, she was taking a shower and the Accused came in to touch her again. The latter told her not to say anything to anyone so as not to get into trouble. She felt threatened by him as Minor K considered Accused to be of violent character. Minor K explained that she did not relate the incident to anyone just after it happened since she did not know how to say it and she did not want to talk about it. Moreover, considering that the Accused is of violent character, she felt afraid that he might hurt her if she mentioned it to someone. Minor K went on to say that some time in 2019 or 2020, it was her mother’s birthday. On the following day, she was at her grandmother’s place. Her mother as well as the Accused were present. There was a conversation about boyfriends, sexuality and relationships. She called her grandmother (W5) and related to incident to her. The latter told her cousin as well as her mother. They looked for the Accused but he was gone. The matter was then reported to the police. In cross-examination, Minor K explained that in the house where the alleged offence took place, there was only one bed. Her mother, the Accused, her little sister and herself used to all sleep in that bed. She maintained her version of events. She agreed that when she started attending college, she was rebelling against the Accused since the latter used to hit her mother.

10. The last witness called by the prosecution was Minor K’s grandmother (W5). She explained that on 9 th August 2020 the Accused, her daughter, Minor K and her little sister were present at her place. She saw Minor K crying in the kitchen. When she asked her why, she replied that ‘garson fine pren mo virginité’ and this occurred when her mother was at hospital. She stated that the Accused is referred to as ‘garson.’ The matter was thereafter reported to the police. The case was then closed for the prosecution.

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11. The Accused elected to testify under oath. In examination-in-chief, he admitted to the content of his statement and denied the charge of sexual intercourse with minor under 16. He added that there used to be a lot of complaints from neighbours about Minor K’s behaviour as she would not come home after school. In cross- examination, the Accused agreed that he used to be in good terms with Minor K up till the time when the present matter was reported to the police. He agreed having consumed alcohol on the material night but he denied the allegation of sexual intercourse. He stated that he is never a violent person but later on he agreed that sometimes in a fit of anger he hit Minor K’s mother. The Accused alleges that he was not aware on which topic the family was talking about at Minor K’s grandmother’s place in 2020 but he left as he had friends to meet. Then it was put to him that he had in fact mentioned in his statement to the police that he had left because he was worried about getting into trouble with Minor K’s family. The Accused replied that each time he gets into trouble with them as Minor K complains about him. Later on he stated that he left because every time the said family meets up, some issues crop up and they argue with him. He alleges that a lot of people beat him at Minor K’s grandmother’s place and that he attended medical treatment. However, he failed to produce any medical evidence in court to that effect. He agreed that prior to the said incident, he was in good terms with Minor K. The case was closed for the defence.

12. In a gist, learned counsel for the prosecution submitted that, although corroboration is desirable in a sexual case, Minor K has testified in a clear and consistent manner. Furthermore, Minor K has clearly explained how disturbed she has felt over time following the indecent sexual act. There is no reason whatsoever for her to have concocted such an allegation against the Accused. On the other hand, the defence statement of the Accused contains a mere denial. He added in court that he was beaten up and taken to hospital. No declaration was made by him and no medical evidence was however produced in court. The prosecution invited the court to consider that the Accused knew that the family was talking about sexuality and that is why he thought he would get into trouble before leaving.

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13. In a nutshell, learned defence counsel submitted that there is a gap of 4 years between the alleged offence and the day on which Minor K was medically examined. Hence, relying on the case of DPP v Beeharry [2007 SCJ 89], no weight ought to be attached to the medical reports produced by the prosecution. Learned defence counsel agreed that the Court is entitled to reach a guilty verdict on the basis of uncorroborated evidence. However, in the present matter, he submitted that the evidence of Minor K is far from being straight forward for the following reasons: (a) the inconsistent version of facts as provided by Minor K; (b) the prosecution has had on several occasions moved to put a previous inconsistent statement to Minor K; (c) the failure to report the matter earlier; (d) the evidence of bad blood between Minor K and the Accused; and (e) the failure of the prosecution to adduce any pertinent evidence from other witnesses or potential witnesses. Hence, he invited the Court to dismiss the present charge against the Accused.

14. The Court has duly assessed the evidence on record as well as the respective submissions of both learned counsels. As regards the first element to be proved by the prosecution, the Court is satisfied from the birth certificate of Minor K (Document A) that she was only 8 years old at the material time. The age of Minor K has remained unchallenged and hence the Court concludes that the prosecution has proved beyond reasonable doubt the first element of the offence under section 249(4) of the Criminal Code.

15. The issue left to be determined by the Court is whether the Accused had sexual intercourse with Minor K in or about the month of October 2016. 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”

16. The medico-legal report (Document B) stipulates that the inference drawn from the medical examination of Minor K on 12 th August 2020 is that the hymen was slightly dilated. It is to be borne in mind that the said medical examination was carried out

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some 4 years after the alleged incident. This being said, such findings in themselves and without more, neither lead to the irresistible inference that they had been as a result of the alleged incident nor can it be said with certainty that, had such inference been drawn, there are no other co-existing circumstances which could weaken or destroy any such inference.

17. Hence, the case for the prosecution rests essentially on the testimony of Minor K whereby she stated that the Accused pushed his private part in her vagina and by private part, she meant ‘coq’. The Court is satisfied that the said statement satisfies the definition of sexual intercourse as per Garçon (supra). The rest of Minor K’s testimony mostly relates to what ensued after the alleged offence happened, namely the fact that she had her shower in the morning and the Accused touched her again whilst requesting her not to say anything to anyone about the sexual intercourse as well as the report of the offence by Minor K after a considerable delay of about 4 years. Now, this Court is faced only with the evidence of Minor K in support of the allegations she levelled against the Accused. As such, in view of the nature of the offence, the Court is aware of the desirability of corroboration in such type of cases. However, this Court is alive to the fact that it can nevertheless act on the sole testimony of a complainant in a case related to a section 249 offence, subject to the condition that the complainant is a credible witness whose testimony has stood the test of cross-examination. This Court finds guidance in the case of Saman v The State [2004 SCJ 3] where the Supreme Court held that:

“The general rule is that a Court is entitled to act on the sole and uncorroborated evidence of a witness who is a victim in a sexual offence case where the court finds the witness truthful and has addressed its mind to the danger of acting on uncorroborated evidence”.

18. The Court has assessed Minor K’s testimony with utmost care and is satisfied that an incident did occur on the day, at the time, and at the place in question. The Court is also alive that some inconsistencies have occurred during her testimony. One inconsistency, as highlighted by learned defence counsel, is that during her first testimony in court, Minor K initially stated that the Accused undressed her, touched

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her, kissed her and she tried to stop him. Then she put her clothes back on and she went back to sleep whilst the Accused went back to the kitchen. She confirmed having on 9 th August 2020 given a declaration against the Accused for the offence of ‘rape’ and when asked by the prosecution what she understood by the term ‘rape’, she explained that it meant ‘attouchements.’ However, the prosecution referred to her version of events as given in her statement to the police whereby she had said that, ‘li fine met moi touni et li fine monte lor moi. Li fine pren so coq et li fine met sa dan mo toutoune. Mo fine gagne di mal et mo ti plorer’. She agreed having said so to the police at the time of reporting the matter and she explained that she felt embarrassed in court in front of everyone to relate matters as they happened. The Court considers that the said explanation given by Minor K for being inconsistent is a plausible one and she appeared to be genuine. It is important to take into account the fact that just after confirming that in fact the Accused had sexual intercourse with her at the material time, she broke into tears and proceedings had to be stopped. When at the subsequent sitting Minor K testified through video link, she did so in a clear and consistent manner that the Accused did in fact pushed his private part in her vagina. She pushed him and she felt pain. At that particular moment, when specifically explaining the act of sexual intercourse, Minor K broke into tears anew. Having seen and heard Minor K testify, the Court has no hesitation in considering her to be a witness of truth. The Court is of the view that her testimony, taken as a whole, was consistent with the version put to the Accused in his out of court statement (Document D), more particularly the fact that Accused had sexual intercourse with her in the only bedroom where they usually sleep. She has remained consistent in her version even in cross-examination.

19. True it is that on 3 occasions the prosecution had to put previous inconsistent parts to Minor K. The first one is in relation to the issue addressed in the preceding paragraph. The second one was when Minor K stated that when the Accused was touching her, he had said to her, ‘mo pe zis zouer are toi’ whereas in her statement she had mentioned that Accused had asked her to remain quiet. Minor K agreed having said so in her statement. However, she explained that she remembers the sexual act but she cannot clearly remember the exact words stated in view of the passage of

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time. The third one relates to the fact that in court she explained that after the sexual intercourse, she put her clothes back on and went to sleep whereas the Accused went to the kitchen. In fact in her statement she had said that the Accused had slept next to her after the sexual act. She agreed having said so and explained again that she can remember the main incident but cannot remember every detail due to the passage of time. The Court considers that the explanation given by Minor K for the said inconsistencies are justified and fair in the given circumstances. This Court takes note of the well-established and oft-quoted principle from the case of Saman v The State which states that “inconsistencies must be measured by the yardstick of seriousness and materiality which must be linked with the overall issue of truthfulness.”

20. Despite the abovementioned inconsistencies, the Court is of the view that there is a genuine explanation given by Minor K behind the first inconsistency which deals with the sexual act itself as explained above. With regards to the other inconsistencies, they concern the surrounding circumstances of the present offence and the Court considers that they are not so material and serious so as to affect Minor K’s evidence on the issue that the Accused had sexual intercourse with her on the material night. Furthermore the Court bears in mind that it was held in Vythilingum V The State [2017 SCJ 379] that:

“Giving evidence in Court is not a memory test and failure to recollect with precision all the circumstances and details of an incident is understandable. What is important is for the Court to be satisfied that a witness is speaking the truth in substance”.

21. The Court bears in mind that at the material time Minor K was only aged 8 years old and when she testified in court she was 15, such that there was a gap of 7 years in between. It is perfectly understandable that with the passage of time, some forgetfulness will happen.

22. In his submissions, learned defence counsel stated that one of the reasons why the version of Minor K cannot be believed is the delay of 4 years in reporting the matter.

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In Boudeuse v The State [2003 SCJ 240], the Supreme Court referred to the case of R. v. Valentine (1996) 2 Cr. App. Rep 213 whereby the following was stated:

“What is the first reasonable opportunity will depend on the circumstances including the character of the complainant and the relationship between the complainant and the person to whom she complained and the persons to whom she might have complained but did not do so.”

23. On this issue, Minor K did explain in examination-in-chief that the reason why she did not do so earlier is because she did not know how to say it and she did not want to talk about it. Over and above that, she was afraid that the Accused would hurt her as he was of violent disposition. The Court considers that it can indeed be difficult for a child of 8 years old, having been the victim of a sexual abuse in her own home, to express herself about such an incident as a result of the trauma suffered. Having seen and heard Minor K testified on two occasions in court, relying on her explanations given for not reporting the matter earlier and pertaining to the inconsistencies mentioned above as well as the fact that she broke into tears right at the moment when she spoke about the specific sexual act, this can only lead the Court to conclude that Minor K has indeed been traumatised by what has happened to her. Learned defence counsel also submitted that Minor K portrayed the Accused as violent and fearful and as such it is bizarre that she chose to report the alleged incident at a time where the Accused was within her whereabouts when she could have done so earlier. In fact Minor K explained that the topic of conversation at the time when they were at the grandmother’s place prompted her to relate what had happened to her. The Court considers that at the particular moment, she found herself in a situation where she was surrounded by people with whom she very likely felt safe to relate what had happened to her even though the Accused was in the vicinity. Hence the Court is satisfied that Minor K reported the present matter at the first reasonable opportunity.

24. The Accused has denied the charge against him at all times but the Court does not consider him to be a credible person for the following reasons. In his statement to the police, he admits that on the day in 2020 when they were all at Minor K’s

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grandmother’s place, there was a conversation about sexuality and at that point he left as he thought that he could get into trouble. However, in court under oath, the Accused stated that he was not aware of the topic of conversation and he left to meet up with friends. Then he went on to say that each time he gets into trouble with the family as Minor K complains about him. In court, the Accused stated under oath there used to be a lot of complaints from neighbours against Minor K since she would not come home and this is a matter which the Accused mentioned for the first time in court. On a last issue, the Accused admitted in his statement to the police (Document D) that he hit Minor K’s mother in the following terms, ‘parfois ariver mo batte so mama dans aine moment colere mais pena narien de grave.’ In court, the Accused initially stated under oath in cross-examination that he is never a violent person but later on agreed that sometimes he hit her concubine. This tallies with the version of Minor K when she stated that the Accused is of violent disposition and she was scared to relate the incident earlier.

25. Having assessed the whole of the evidence on record, the Court concludes that it is safe to rely on the version given by Minor K as regards the charge of sexual intercourse with a minor under 16.

26. For all the above reasons, the Court finds that the prosecution has proved its case against the Accused beyond reasonable doubt and therefore the Court finds the Accused guilty as charged.

Z.B.Essop (Ms) Magistrate Children’s Court (Criminal Division) This 30 th May 2023