Viol collectif à Bassin: condamnés à 24 ans de prison… deux suspects blanchis…sévères critiques contre la juge Premila Balgobind…



Ils avaient été condamnés par la cour d’Assises en 2011 à 24 ans de prison pour le viol d’une quadragénaire. Govinda Narain Carpenen et Géraldo Reine de Carthage avaient fait appel. Et ils ont été blanchis en Cour suprême, ce mardi 11 novembre. Selon les juges, des contradictions ont été notées dans les témoignages de la victime lors de ses comparutions en cour.

CARPENEN G. N. v THE STATE

& REINE DE CARTHAGE G. v THE STATE

2014 SCJ 382

IN THE SUPREME COURT OF MAURITIUS

(COURT OF CRIMINAL APPEAL)

In the matter of:

SCR 220 – 6A/14/11

Govinda Narain Carpenen Appellant v. The State Respondent

And in the matter of:

SCR 219 – 6A/13/11
Geraldo Reine de Carthage Appellant v. The State Respondent

JUDGMENT
The appellants along with two other persons were jointly prosecuted before the Criminal Division of the Supreme Court for the offence of rape upon the person of one Mrs. Florisse Sirope in breach of Section 249(1) (1B) & (1C) of the Criminal Code. They all pleaded not guilty and were assisted by counsel. After hearing evidence the Learned Judge dismissed the case against the then accused Nos. 3 & 4 finding it unsafe to rely on the complainant’s sole evidence to convict them. She however found the case against the two appellants (then accused Nos. 1 & 2), proved beyond reasonable doubt and found them guilty as charged. She sentenced each one of them to undergo twenty four years penal servitude.

The case for the prosecution rested essentially upon the evidence of the complainant.
The gist of her version was to the effect that in the early hours of the 1 June 2009, she was sleeping in her bedroom with her partner, Philippe Albert, sleeping next to her. Her door was unlocked inasmuch as her son, Marcus, had gone out and had not yet returned home. At a certain moment, a group of about ten persons who lived in the neighbourhood and whom she knew by sight, barged into the room looking for Marcus, they were armed with sticks and a metal dog leash. The complainant was threatened with a knife at her throat whilst some of the group dragged Albert outside and assaulted him; the others started smashing the objects in the house.

Appellant No. 1 pulled down her knickers and raped her whilst the appellant No. 2 held her thighs down on the bed. She struggled and begged them to stop. Appellant No. 2 then raped her whilst the then accused No. 3, Joyce Jason Vicky Sookloll, held her thighs down and the appellant No. 1 watched her being raped. The said Sookloll then forced her to have oral sex with him and then raped her. She heard one Jean Vythilingum who slept in the room adjacent to hers, calling her but she could neither shout nor escape from the grip of her assailants because of the knife at her throat. Thereafter the then accused No. 4 held her thighs and she felt him inside her. None of them ejaculated. She managed to escape wearing only her blouse and sought refuge a short distance away at the place of her sister in law, Vanessa Verte. The gang pursued her and she hid under Vanessa’s bed. She managed to sneak out barefoot, hid under a tree for a while and then headed to Quatre Bornes police station. As she was scantily dressed and upon her request, the police accompanied her to her house where she changed her clothes. She noticed that the place was wrecked and all the furniture damaged. In his statement to the police the appellant No. 1 admitted having called at the place of the complainant during the night of the 31st of May till the early hours of 1 June together with his friends. He stated that he had been drinking in company of his friends when they were informed that Marcus, the complainant’s son, had slapped their friend’s sister. At some time during the evening they called at the complainant’s place to beat Marcus up but had to go away as he was absent. They went back to look for Marcus during the early hours of the 1 June armed with sticks, cutters and a dog leash; Marcus was still absent. They however saw the complainant and her partner Philippe Albert in bed. Some of the group assaulted Albert and pulled him outside while the others sexually abused the complainant on the bed. At some point both the complainant and Albert managed to escape and the group pursued the complainant next door to 3 the place of Vanessa Verte. Accused No. 1 denied having raped the complainant and stated that he had only forced her to perform oral sex whilst she was being raped by his friends.

Appellant No. 2, who was then a minor, aged seventeen, gave a statement in the presence of one Mr. Lione. He admitted having been among the group of persons present at the complainant’s house. He stated that along with some of his friends he caught hold of Albert who was trying to run away and assaulted him in the yard. He then went back to the room and saw the complainant being raped whilst two of the group were holding her thighs down. He also took his turn, went on top of her and raped her.

The two appellants challenged the admissibility of their respective statements. Accused
No. 1 challenged the admissibility of the three statements given by him on the ground that the first statement given on 1 June 2009 was recorded as a result of threats and acts of violence by the enquiring officers, the second statement dated the 5 June 2009, concerned a reconstruction exercise relating to the statement of the 1 June and the statement of 6 June 2009 contained hearsay matters which were so prejudicial that in fairness, it ought to have been excluded.

Accused No. 2 who had given two statements, challenged his statements on the ground that they had been obtained as a result of oppression and further, that they had not been recorded in presence of his parent or guardian. A voir dire was held in the course of which both appellants adduced evidence. The Learned Judge found that both appellants had given their statements voluntarily and ruled that they were admissible. She then proceeded to hear evidence on the merits. In her judgment the Learned Judge found the charge against the appellants proved beyond reasonable doubt and convicted each of them to undergo 24 years penal servitude. Both appellants have lodged separate appeals challenging their conviction and sentence. Before us Counsel for appellant No. 2 dropped the ground of appeal relating to sentence. Both appeals being connected, they were on a joint motion made by counsel, consolidated and we will give a single judgment in the first appeal SCR 220 – 6A/14/11, a copy of which, will be filed in the second appeal (SCR 219 – 6A/13/11).

We will deal with each appeal separately although as will become obvious, some of the
grounds raised by both appellants, overlap. We will not necessarily follow a chronological order nor will we follow the grouping exercise carried out by counsel on each side.

The first appeal – Govinda Narain Carpenen (Appellant No. 1) v/s The State –
SCR 220 – 6A/14/11.
Grounds 1, 9 and 10 challenge the admissibility and weight of the statements given by
the appellant No. 1. They read as follows:
Ground 1:
“The Learned Judge was wrong to admit the statements of appellant (then accused No. 1) when the evidence on record clearly demonstrates that the statements were obtained through the use of violence and/or oppression.” Ground 9: “The Learned Judge erred in attaching weight to the statements of the appellant when in fact no weight should have been attached as the evidence on record establishes that such evidence was not given voluntarily and further the evidence from the police officers was so riddled with inconsistencies and contradictions as to make them worthy of belief.”

Ground 10:
“The Learned Judge failed to address the issue raised by the defence as regards to the marks of physical violence borne by appellant which marks in fact supported his version that he was subjected to physical violence prior to the recording of his statements and further to the fact that the marks of physical violence have remained unexplained by the prosecution. This issue was squarely raised by the defence and supported by the edical evidence.”

In relation to the above grounds, we need to observe that in his statements to the police, the appellant No. 1 did not make any confession to the offence of rape. Whilst he agreed that he had called at the place of the complainant in the company of his friends, on the night in question, he stated that he never raped her, he only forced her to perform oral sex whilst she was being raped by his friends. The Learned Judge when going through the evidence, correctly set out the appellant’s participation as related in his statement.

There was as such no confession of rape on the part of the appellant and the case for the prosecution against him rested essentially on the evidence of the complainant. Indeed in her judgment, the Learned Judge relied solely upon the complainant’s evidence to convict the appellant.

For the reasons which will become clear, there is no need for us to go into the merits of grounds 1, 9 and 10. We will first tackle ground 7. It reads as follows: “The Learned Judge erred in ascribing confusion as the reason for the material discrepancies as regards the identification of the appellant by the complainant when the evidence does not disclose any alleged confusion on the part of the complainant nor did the complainant at any point in time complain of any such confusion.”

Under this ground, counsel submitted that the Learned Judge erred when she ascribed the discrepancies in the complainant’s evidence regarding the appellant’s identification to an alleged confusion on the part of the complainant, when the evidence does not disclose any such confusion.

According to the evidence the complainant identified the appellant No. 1 as being the first person who had raped her. However her evidence regarding his identification, is tenuous and is riddled with discrepancies. The complainant stated that all the persons charged for raping her lived in the same neighbourhood as her at some 200 metres from her place. She knew them by sight but did not mix with them. In her statement to the police she described the appellant No. 1 as being of “teint clair” with “cheveux bouclés bouclés” – a description which the Learned Judge herself found “evidently did not fit the physical appearance of accused No. 1” (now appellant No. 1). The Learned Judge also found that the complainant had wrongly described the clothes worn by the appellant no. 1 at the time of the alleged offence stating that he had been wearing black jeans whereas in fact he had been wearing white cotton trousers on that night.

The Learned Judge addressed the issue and was of the view that these discrepancies in the identification could be ascribed to her confused mind. She wrote: “… Her description evidently did not fit the physical appearance of accused No. 1. She even wrongly described his clothes stating that he was wearing black jeans whereas in fact he was wearing white cotton trousers. I bear in mind that the complainant gave these wrong descriptions of accused No. 1 only hours after having lived a traumatic experience which in my view would explain her confused mind at that time.”

She went on to say that –
“On the other hand, in her statement of the 3rd June, she straightaway referred to accused No. 1 by his name Popo and most importantly she also identified him at
the police station as having raped her.”

We agree with counsel that the complainant’s identification of the appellant was not
satisfactory. In her statement the complainant herself stated that she knew the appellant by sight. She knew his nickname Popo and she knew that he was the son of “Mamou bleu”. She claimed that she had a proper view of the appellant at the time of the offence. “Premier la so cheveux ti bouclé bouclé so la tête mone trouve li bien”. In court under cross examination when the description that she had given of appellant No. 1 was put to her, she denied having given such details as she stated that she was not familiar with the persons charged. At any rate the description that she gave to the police was found by the Learned Judge to “evidently not fit” the appellant as was her description of the clothes that he had been allegedly wearing at the time of the alleged offence.

In view of the above inconsistencies in the complainant’s description and given that there was a group of ten persons in the room, that there was a lot of commotion at the time and that there was no electricity in the room which was only lit with a candle, the complainant’s identification of the appellant, does not appear reliable and does not meet the guidelines in R. v. Turnbull [1977] QB 224. This, the more so given that the complainant could not have observed the appellant for a long time given that according to her, the whole incident during which four persons allegedly raped her successively, lasted for some fifteen minutes.

We agree that the Learned Judge erred in attributing the discrepancies regarding the appellant’s identification to confusion inasmuch as that there was no evidence to indicate that the complainant was confused at the time she identified the appellant to the police. Indeed Dr. Jankee who examined the complainant on the same day and who assessed her by asking “her questions about the time, space, the person, the history, all personal questions as well as history of what happened on that day”, found her mental state to be normal.

We accordingly find that there is substance in ground 7 which therefore succeeds. Grounds 15 and 16 will be considered together. They concern the comments made by the Learned Judge in her judgment in connection with the appellant No. 1’s silence upon being identified by the complainant and read as follows: “15. The Learned Judge was wrong to come to the conclusion that the appellant ought to deny or make any other response upon being identified by the complainant when in fact the appellant had already denied having raped the complainant.”

“16. The Learned Judge erred in equating silence on the part of the appellant upon being identified as proof of guilt on the part of the appellant.” The relevant extract of the judgment reads as follows: “On the other hand, in her statement of the 3rd of June, she straightway referred to Accused no.1 by his name Popo and most importantly, on the very day she also identified him at the police station as having raped her. This is admitted by the accused himself when he related in his statement that “quand Florise fine guette moi, li fine dire li meme ti risse moi lor lilit ti viole mo ti ” and that he kept
quiet. One would have expected him to react had he been innocent…”
(Emphasis added)

Counsel submitted that the Learned Judge proceeded on the erroneous premise that the appellant had an obligation to reply to an accusation put to him in presence of the police and that his failure to do so, was synonymous with him accepting the accusation as true. She erred in equating the appellant’s silence upon being identified as tantamount to guilt on his part. We need in the first place to emphasise the constitutional right enshrined under Section

10(7) of the Constitution that – “No person who is tried for a criminal offence shall be compelled to give evidence at the trial.” The purport of this provision was expressed in the case of R v. Shummoogum & Ors [1977 MR 1] – “It should be noted that s. 10(7) is couched in negative terms: it does not say that the accused has a right to silence, but that he shall not be compelled to give evidence. In our view, all that the enactment requires is that the judge must not suggest to the jury that from the silence of the accused they may infer his guilt, or that his silence corroborates the evidence for the prosecution…” (Emphasis added) In deciding whether the accused’s guilt had been proved beyond reasonable doubt, the court referred to the need for a balancing exercise weighing the evidence on each side and added:

“…In so doing, the judge is perfectly entitled to point out that there is no evidence for the defence, or that such evidence is slight or incomplete: there is a great difference between suggesting to a jury that silence implies guilt, and explaining that a protestation of innocence would have greater weight if it gave adequate particulars…” R v Shummoogum (supra).

In the present case we do not accept the contention of the prosecution to the effect that the Learned Judge’s comment, “one would have expected him to react had he been innocent” was in relation to the appellant’s attitude and conduct rather than the issue of his guilt. In our view the tenor of the above comment reveals that the Learned Judge drew an inference of guilt from the appellant’s silence upon being identified by the complainant. Further we do not agree that the Learned Judge’s comment was a mere passing remark to which she did not attach importance in her assessment of the evidence. Such a comment is a serious misdirection and constitutes a clear breach of the appellant’s constitutional right under Section 10 (7) of the Constitution not to be compelled to give evidence at the trial. We read the following from the case of Hall v The Queen [1971] 1 WLR 298: “… silence alone on being informed by a police officer that someone else has made an accusation against him cannot give rise to an inference that the person to whom this information is communicated accepts the truth of the accusation.” The following comment in the case of Abdullah v. R [1980 MR 161] is also pertinent:

“…If the magistrates drew an adverse inference from the fact of the appellants silence at the identification parade, as they appear to have done, they were clearly wrong (See Archbold, Criminal Pleading, Evidence and Practice, 39th Ed. para. 1401). When a person makes a statement in the presence of an accused party to the effect that he has committed an offence, it is the latter’s perfect right to say nothing…”

The abovementioned comment made by the Learned Judge with respect to the appellant’s silence upon being identified, clearly amounts to a serious misdirection on the part of the Learned Judge, which misdirection on its own, renders the appellant No. 1’s conviction unsafe. We need to add that in the present case, there is no evidence that the appellant had been specifically cautioned at the time of the confrontation with the complainant. However even if he had been reminded of his right, this would be no ground for inferring that his silence was not in exercise of that right but was rather an acknowledgment of the truth of the accusation.

We find that grounds 15 and 16 are also well taken and must succeed. Ground 14 addresses the complainant’s failure to report the case of rape at the first available opportunity – “The Learned Judge failed to give any weight to the fact that the complainant did not report any case of rape when she first went to the police to seek assistance and erred in ascribing confusion and trauma for such an omission when in fact there is no evidence of confusion or trauma.”

Under this ground counsel pointed out that the complainant’s failure to report the alleged rape on the first occasion that she called at the station, impacts on her credibility. According to the evidence when the complainant called at the station on the first occasion on 1 June at 4.22 hours, she requested for police assistance because some persons were trying to assault her sister in law with sabres.

Counsel referred the court to the diary book entry of Quatre Bornes Police Station at
4.22 hours on the 1 June which reads as follows: “Florise Sirope of Bassin Road, Quatre Bornes calls in and requests police assistance as some male persons got access in her house and trying to assault her sister in law as they are armed with sabres.” (sic)

According to the evidence it is only subsequently during the day at 7.10 hours, that there
is another entry inserted by WPC Naiken which is to the effect that upon interviewing Mrs. Sirope, the latter stated that on 1 June at about 4 hours in the morning, she was sleeping in her bedroom when eight persons entered the room and three of them, whom she could identify, raped her.

On this issue the Learned Judge wrote: “… although the complainant did not make a declaration to PC Toolsee of having been raped when she reached the police station at 04.20 a.m., there is evidence that she did at that time make a verbal complaint and was immediately taken to the locus. A declaration was recorded from her on her return …”

We agree with the submission made by counsel for the appellant that The Learned Judge failed to give due weight to this matter which casts doubt on the veracity of the complainant’s version. The complainant in this case called at the station at about 4.22 in the morning when she did not make any complaint of rape but merely reported a case of assault whereas one would expect a victim of rape to report the matter to the police upon the first available opportunity. Regarding the verbal complaint of rape allegedly made by the complainant to PC Purahoo, we note that the latter did not insert any entry in the diary book to this effect.

We find that there is merit in ground 14 which must accordingly succeed. Grounds 5, 6, 17 reproduced hereunder will be taken together inasmuch as they all relate to the Learned Judge’s selective treatment of the complainant’s version with respect to the participation of the different accused parties in the commission of the offence. Ground 5:
“The Learned Judge erred in coming to the conclusion that the complainant’s testimony was reliable to convict the appellant when the Learned Judge herself accepted that the latter’s testimony was riddled with such inconsistencies so as not to be worthy of belief quoad accused No. 3 and No. 4 and when such inconsistencies were also present as regards the appellant.”

Ground 6:
“The Learned Judge erred by the inconsistent treatment she accorded to the evidence of the complainant in relation to accused No. 3 and No. 4 and the treatment she accorded to the same evidence as regards the appellant.”

Ground 17:
“The Learned Judge erred in law when deciding to accept part of the complainant’s testimony quoad the appellant and rejecting the rest as unreliable. In fact, the Learned Judge ought to have assessed the testimony of the complainant as a whole and therefore, after coming to the conclusion that the complainant’s testimony is unreliable quoad accused Nos. 3 and 4 should have also come to the same conclusion as regards the appellant.

In his submissions counsel pointed out that in her version to the police, the complainant implicated all the four persons who were charged with committing rape upon her person. During her examination in chief she identified all the four accused in the dock as the perpetrators of the rape. The evidence with respect to all four accused was interlinked and could not be dissociated. Counsel submitted the Learned Judge’s treatment of the evidence quoad all the parties was however not consistent inasmuch as she rejected the complainant’s evidence quoad appellants Nos. 3 & 4 as being unreliable and acquitted them and proceeded to convict the appellants Nos. 1 & 2 on that same evidence.

We find that these grounds are well taken. The version of the complainant implicated all the accused parties brought on trial. All four parties charged were alleged to have entered her bedroom in the early hours of the 1st June and gang raped her. Each in turn raped her in the course of one single incident and the case against all the accused parties rested solely on the complainant’s evidence.

The Learned Judge dismissed the charge against the then accused Nos. 3 and 4 on the
ground that the complainant’s evidence with regard to accused No. 3, was tenuous in view of the changing versions that she gave regarding his participation in the alleged rape, the complainant even stating under cross examination that she did not know if she had levelled a false charge against him and under re-examination, that she could not remember if Accused No. 3 had raped her.

The Learned Judge found that:
“In the light of the self-contradictory parts of the complainant’s evidence in relation to material facts against accused No. 3, I find it unsafe to rely on her sole evidence and her identification of the accused to convict him.” With respect to the then accused No. 4, the Learned Judge again found that the complainant’s version was confused and that she had given conflicting versions with respect to his participation. As such she had found that it was not safe to rely on her sole evidence that accused No. 4 was in fact the fourth person who had raped her.

She wrote: “Being given the confused state of the complainant’s version against accused
No. 4 I do not find it safe to rely on her sole evidence that accused No. 4 was in
fact the fourth person who raped her.” Regarding appellant No. 1, however the Learned Judge found that: “when it came to accused No. 1’s participation, she did not at any moment show signs of uncertainty and this despite the scathing cross-examination she was subjected to by learned counsel for accused No. 1 who left no stone unturned to
probe for truth.”

She found it safe to act upon her testimony quoad appellant No. 1 and proceeded to convict him. Whilst we agree that the testimony of any witness need not necessarily be accepted or rejected in toto and that some parts of that evidence which are found to be credible may be accepted whilst other parts not worthy of belief, rejected, we find that the Learned Judge’s treatment of the complainant’s evidence regarding the participation of each accused party, was not coherent and consistent in the circumstances of this particular case. The four accused
stood charged with respect to one specific incident involving a gang rape. The defence of all
the persons charged had been along the line that they had been involved in a fight with the
complainant’s son and that the complainant had levelled a false accusation against them for that
reason. The case for the prosecution against all the accused parties rested solely on the
uncorroborated evidence of the complainant and there was no supporting scientific or medical
evidence against anyone of them. The Learned Judge found the complainant’s testimony
unsafe, unreliable and confused with respect to two of the accused (Nos. 3 and 4) whilst in the
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same breath, convicting the appellants Nos. 1 & 2 on that same evidence which was equally
riddled with inconsistencies notably on the crucial issue of appellant No. 1’s identification. Whilst
finding that the complainant’s testimony was not credible with respect to accused Nos. 3 & 4,
she found it safe to rely on that same evidence to convict appellants Nos. 1 & 2.
We find that the disparate treatment of the complainant’s evidence by the Learned
Judge with respect to accused Nos. 3 & 4 and the appellant No. 1, renders his conviction
unsafe. We note that there was no additional evidence other than the testimony of the
complainant regarding the incident against the appellant No. 1 and the Learned Judge having
found her testimony doubtful quoad the two other accused (Nos 3 and 4), could not proceed to
rely on that same testimony to convict the appellant.
In the circumstances Grounds 5, 6 and 17 must also succeed.
Grounds 3 & 11 read as follows:
“3. The Learned Judge was wrong to find the appellant guilty of rape when there was
no scientific evidence whatsoever to connect the appellant with the alleged rape
specially in the light of the unsatisfactory nature of the evidence which had been
amply demonstrated before the Learned Judge.”
“11. The Learned Judge failed to take into consideration the evidence of the Police
Medical Officer who accepted that the lack of seminal fluids on the complainant
could be explained by the fact that there was no rape at all.”
Under these grounds, counsel laid stress upon the fact that the scientific reports did not
reveal any evidence linking the appellants with the offence, there was notably an absence of
seminal fluid or DNA belonging to the appellants on the complainant’s body. As such counsel
contended that the complainant’s version that she had been raped by the appellants was not
credible.
In her judgment we note that although the absence of scientific evidence had been
raised before her, the Learned Judge did not address this issue at all. The evidence of the
Forensic Scientist Goodur indeed revealed that there was no DNA matching the appellants
indicating their presence at the spot nor was there any scientific evidence such as semen and
biological fluid at the locus. In the circumstances we agree that the absence of such scientific
evidence is significant and raised at least a doubt as to the veracity of the complainant’s
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version, the more so in the light of the evidence of the Police Medical Officer who did not rule
out the possibility that the absence of semen could be due to the fact that there was no rape at
all.
Grounds 3 and 11 must also succeed.
Ground 4 is worded as follows:
“The Learned Judge erred in failing to give any weight to the fact that the
complainant bore no external and/or internal signs of physical violence either to
her body or her vagina as would have been the case had the rape occurred in
the manner described by her despite the fact that this was brought to her
attention. In fact a lack of such evidence should have tilted in the favour of the
appellant.”
Under this ground counsel submitted that the complainant’s version was not credible
inasmuch as if she had indeed been raped by the accused parties in the manner described by
her, she ought to have borne marks of physical violence both internally and externally. The
absence of such signs could only create a doubt in favour of the appellants.
We note that although the absence of injury both externally and internally was deeply
probed into during the trial and had been the subject of extensive submissions, in the judgment
the Learned Judge addressed the issue cursorily in one sentence:
“I do not have the slightest doubt that although she did not bear any physical
marks or injury, she was effectively raped in the night by some of the group that
erupted in her bedroom looking for Marcus.”
We agree with the submission that the Learned Judge failed to address the significance
of the absence of both external and internal signs of violence upon the complainant. The
Learned Judge did not explain the reason why in her view the complainant bore no injuries
whatsoever be it externally or internally, despite her description of the incident to the effect that
she was immobilised, with a knife placed at her throat, her thighs were held down with force and
she was successively raped by four young men for some fifteen minutes whilst she struggled
and resisted. The Learned Judge did not expatiate upon her conclusion that despite the
absence of marks of violence on her body, the complainant had nevertheless been raped.
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We agree that the absence of external or internal marks of physical violence on the
complainant’s body, did not tally with the description and the manner in which the offence
occurred according to the complainant’s version i.e. that she was immobilised on the bed, her
thighs were being pressed down with force while each one of the four persons charged took
turns at raping her whilst she struggled and offered resistance to them. Indeed one would
expect that an assault in such circumstances would leave traces of pressure or bruising on the
complainant’s body. We further agree that the absence of such physical signs of violence
raises a serious doubt as to the veracity of the version given by the complainant.
Ground 4 must accordingly also succeed.
Grounds 2 & 18 can be dealt with together and read as follows:
“2. The Learned Judge erred in accepting the uncorroborated evidence of the
complainant to find the appellant guilty when such evidence was in fact riddled with
inconsistencies and discrepancies on all material aspects.”
“18. The Learned Judge erred in not giving at least the benefit of the doubt to the
appellant when in fact the only evidence which was capable of allowing the Learned
Judge to convict the appellant was the uncorroborated evidence of the complainant
against the denial of the appellant and the evidence of the complainant was
inconsistent, inaccurate and incapable to be the basis of a conviction in the
circumstances, the more so that the same conclusion was reached by the Learned
Judge with regards to the evidence of the complainant as regards accused No. 3
and No. 4.”
Under this ground it was argued that the Learned Judge erred in acting upon the
complainant’s uncorroborated evidence given the numerous inconsistencies in her version.
On the issue of corroboration, the Learned Judge duly gave herself the requisite warning
regarding such evidence but nevertheless found it safe to act on the complainant’s sole
evidence. She wrote:
“I have fully borne in mind that special caution is called for before relying on the
uncorroborated evidence of a victim of a sexual offence. I have, therefore,
considered all the evidence before me with great care and watched the
demeanour of the complainant in the witness box with particular attention in
order to assess her uncorroborated testimony. I have also taken into account
the submissions of learned counsel for the prosecution and for the defence.”
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She took note that the complainant had been thoroughly and searchingly crossexamined
by the defence and at the end of the day she found it safe to act upon her sole
testimony and convict the appellant inasmuch as she did not entertain “the slightest doubt” that
the complainant had been “effectively raped by the group that erupted in her bedroom looking
for Marcus”
The complainant’s version stood alone. It was indeed unsupported by any other witness
on the material issue or by any scientific or medical evidence. She bore no injuries be it
internally or externally although she claimed that she had been successively raped during some
15 minutes by no less than four strong young men whose conduct was at the sentencing stage
described by the Learned Judge to have been “wild” involving “the use of extreme violence and
sexual abuse”. Her clothes did not reveal any trace of violence. The examination of the
complainant as well as the exhibits secured notably the bed sheet covering the bed at the time
of the offence, the clothes she had worn were negative and did not reveal the presence of
semen, seminal fluids or DNA belonging to any of the accused parties. Nor did the examination
of the appellants and their clothes reveal any evidence of contact between the appellants and
the complainant.
In her assessment of the evidence, the Learned Judge found that the complainant was
occasionally uncertain and hesitant and gave answers which the Learned Judge described as
“neither here nor there”. The Learned Judge referred to the issues raised under cross
examination and the inconsistencies in the complainant’s version.
She found that the complainant was indeed “not quite consistent in her version to the
police and in court as highlighted by the defence but this, to my mind, is understandable.
Allowances must be made, in relation to non-essential facts, for the imperfection of human
memory especially on the part of a witness who has been a victim of a traumatic experience.
What is important is that, in relation to the essential facts, her evidence should be credible and
reliable”.
We note that there were indeed numerous inconsistencies in the version given by the
complainant to the police and in court. Initially in her first statement of the 11 June she stated
that she had been raped by 3 persons whom she could identify. Subsequently in her statement
of the 3 June, she stated having been raped by 4 persons. In court she gave confusing
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evidence as regards the participation of each accused and the sequence of events. Further
whereas in her statements to the police she had never mentioned having been threatened with
a knife, in court she maintained that a knife had been placed at her throat whilst she was being
raped. She also gave conflicting evidence regarding a dog leash brought by her assailants, at
some point stating that her hands were tied with the leash at other times stating that the chain
was placed around Albert’s neck.
She also gave conflicting evidence regarding Albert’s presence at the time of the
offence. In her statement to the police she had stated that when the rape was over, Albert was
still in the room and was being slapped by some of the group whilst he struggled. In court
however she stated that when her assailants caught hold of her to rape her, the others took
Albert outside. Further the complainant’s evidence regarding the assailants, especially her
description of appellant No. 1, is inconsistent.
As highlighted above the complainant’s evidence contained inconsistencies not only with
respect to non-essential facts but also on material issues such as the identification of the
appellant No. 1.
We agree that there is no legal impediment for a court to act upon the uncorroborated
evidence in a sexual offence provided the court has addressed its mind to the dangers of acting
on the uncorroborated evidence of such a witness and the witness is found to be truthful and
reliable.
In the present case, the Learned Judge did give herself the appropriate warning
regarding the dangers of acting upon the uncorroborated evidence of the complainant but
nevertheless found that she was reliable and credible and that it was safe to act upon her sole
testimony.
We do not agree with the Learned Judge’s conclusion on this issue. In the light of the
material inconsistencies highlighted above, we are of the view that corroboration of the
complainant’s evidence was called for and that it was not safe for the Learned Judge to rely on
the complainant’s sole evidence to convict the appellant No. 1.
Grounds 2 and 18 must also succeed.
18
We now turn to ground 8:
“The Learned Judge was wrong to set aside the motion made on behalf of the
appellant for the tendering of Mr. Philippe Albert, witness No. 1 on the additional
list of witnesses for the prosecution, for cross examination while his evidence
would have been material in the interests of justice. The more so as the evidence
discloses that he was apart from the complainant present in the room where the
alleged rape occurred. The prosecution, having failed to call the said witness
who would have been able to assist the court in deciding on the circumstances of
the alleged rape, the Learned Judge was wrong in refusing the motion that the
said witness be tendered for cross examination. This refusal deprived the court
of materially relevant evidence.”

Under this ground counsel argued that Philippe Albert was an eye witness to the incident inasmuch as at the time of the alleged rape, he was lying next to the complainant. He pointed out to the complainant’s evidence in chief to the effect that when the appellant had started raping her, Albert was on the bed next to her and was allegedly being restrained by her attackers. As such he contended that Albert could have given direct evidence on the material issue and his evidence would not have been limited to marginal issues. Further there was nothing to suggest that the evidence of Albert would have been unworthy of belief or would have confused the court.

Counsel also submitted that the prosecution having chosen not to call Mr. Albert, the
Learned Judge should, in fairness, have acceded to the defence motion to have the witness tendered for cross-examination.

At the trial the prosecution had objected to the tendering of witness Albert for cross examination on the ground that he might confuse the court and that he was a “marginal witness who would have deposed on collateral issues as opposed to primary facts”.

The Learned Judge refused to interfere in the prosecution’s decision not to tender witness Albert for cross examination. She gave the following ruling: “… the prosecution has chosen to rely essentially on the complainant’s version and has given its reasons why it does not intend to call the witness. I find no improper motive in the prosecution’s decision and, therefore, see no reason to compel it to do so. Furthermore, no prejudice or miscarriage of justice will be caused to the defence in view of the fact that the prosecution has undertaken to secure the attendance of the witness in court in the event that the defence wishes to avail itself of the opportunity of calling him to give evidence”.

The principles regarding the calling or tendering of witnesses by the prosecution was expressed in the following terms in the case of The State v. Fangamar [2008 SCJ 105]:
“… The prosecution enjoy a discretion whether to call or tender any witness they require to attend. The discretion of the prosecution not to call a witness is theirs only but should be exercised fairly and judiciously. The prosecution must always act in the interests of justice and to promote a fair trial. They should not refuse to call a witness merely because his evidence does not fit exactly with the case the prosecution are seeking to prove or for what has been described as ‘some oblique motive’ in Adel Muhammed El Dabbah v A.G. for Palestine [1944 AC 156]. Prosecution Counsel has a discretion not to call a witness whose name appears on the list of witnesses, if the witness does not appear to counsel to be a credible witness worthy of belief (R v Oliva [1965 1 W.L.R. 1028]). If the prosecution feel that a witness will confuse, deceive or mislead the court or his evidence is inconsistent with, or contrary to the prosecution’s case, they are not bound to call or tender such a witness whose evidence will be unworthy of belief if the prosecution’s case be correct (R v Brown [1997 l Cr App. R. 112]).”

As can be seen from the above, the prosecution enjoys a discretion whether to call or tender a particular witness whose name appears on the list of witnesses. However such discretion is not unfettered and must be exercised in the interests of justice and to promote a fair trial. The prosecution is under no obligation to call a witness whose evidence is inconsistent with or contrary to its case since such evidence will be unworthy of belief, if its case were correct.

Further we read the following from R v Russel-Jones [1995] 3 All ER 239 at page 245:
“A prosecutor properly exercising his discretion will not therefore be obliged to proffer a witness merely in order to give the defence material with which to attack the credit of other witnesses on whom the Crown relies. To hold otherwise would, in truth, be to assert that the prosecution are obliged to call a witness for no purpose other than to assist the defence in its endeavour to destroy the Crown’s own case. No sensible rule of justice could require such a stance to be taken.”

Unless the prosecution has acted unfairly or its decision not to call a witness is
motivated by an improper or “oblique motive” – see Adel Muhammed El Dabbah v. Attorney-General for Palestine and Russel-Jones (supra), the court will not interfere with its discretion and order it to tender a particular witness for cross-examination.

What constitutes an oblique motive was explained in the case of Russel-Jones at page
245 in the following terms:“…the prosecution must call his mind to his overall duty of fairness, as a minister of justice. Were he not to do so, he would have been moved by a consideration not relevant to his proper task – in that sense, an oblique motive.”

We are of the view that in the particular circumstances given the conflicting versions of
the complainant as to whether Mr. Albert was present at the time of the alleged rape and in the absence of any evidence to suggest that he was unworthy of belief or that he would have confused, deceived or misled the court or that his evidence would have been inconsistent with or contrary to the prosecution’s case, the Learned Judge ought, in fairness, to have exercised her discretion and ordered that the witness be tendered for cross-examination, the more so in view of the fact that there was no corroboration of the complainant’s version which contained several disquieting features.

The fact that the witness was made available by the prosecution and could have been
called by the defence if it so wished, does not address the issue of fairness. At this juncture we find it apt to reproduce the following from the case of Regina v. W [2003] EWCA Crim 1286 at para. 22. In that case upon a suggestion made by counsel for the prosecution that the defence could call the witness which the prosecution had decided not to call as its own witness, the court made the following observation:

“… We do not consider that is an adequate response. If the defence calls a
witness, they cannot ask her leading questions or cross-examine her while the Crown can do so. That gives the Crown an advantage which might well, of itself, adversely affect the fairness of the proceedings.”

We accordingly find that ground 8 must also succeed.

Ground 12 is to the following effect:
“The Learned Judge was wrong to accept the testimony of witness Vythilingum, witness No. 21 on the list of witnesses for the prosecution, whilst the latter admitted that he was drunk at the material time”.

We find no merit in this ground inasmuch as regarding witness Vythilingum, we note that in her judgment, the Learned Judge simply set out his evidence which was to the effect that on the material night at about 2 a.m. he was sleeping in a room adjacent to that of the complainant when he heard the complainant calling him and shouting the words “ayo, ayo, assez, assez”. A group of persons then entered his room, smashed everything and hit him with a bottle on the head whereupon he fell unconscious. The Learned Judge did not at any time in her judgment assess the weight of that evidence nor did she rely on any part of witness Vythilingum’s testimony to convict the appellant.

As such we find that ground 12 is factually incorrect and must fail.

Ground 19 –
“The Learned Judge erred in finding the prosecution’s case proved beyond reasonable doubt quoad appellant when in fact the evidence of the prosecution against appellant was so tenuous and of such a nature as not being capable of proof beyond reasonable doubt.”

For the reasons which have been spelt out above in connection with the other grounds
of appeal, we agree that the case for the prosecution was tenuous. It rested upon the evidence of the complainant which proved to be riddled with inconsistencies and implausibilities and which furthermore stood alone, unsupported by any scientific, medical or other evidence. There existed serious doubts in the case for the prosecution against appellant No. 1 notably with regard to his identification by the complainant and at the very least, he was entitled to the benefit of the doubt.

Ground 19 must also succeed.
Second appeal – Geraldo Reine de Carthage (Appellant No. 2) v/s The State –
SCR 219 – 6A/13/11
We shall now deal with the second appeal. At the outset we need to observe that the
issues raised in grounds 3, 4, 7 and 8 which we are reproducing hereunder in this appeal, are the very same issues raised respectively in grounds 3 and 11, 4, 8 and 14 of the first appeal. Ground 3 (grounds 3 and 11 of the first appeal):

“The Learned Judge was wrong to find the appellant guilty of rape when therewas no scientific evidence whatsoever to connect the appellant with the alleged rape specially in the light of the unsatisfactory nature of the evidence which had been amply demonstrated before the Learned Judge”.

Ground 4 (ground 4 of the first appeal):
“The Learned Judge erred in failing to give any weight to the fact that the complainant bore no external and/or internal signs of physical violence either to her body or her vagina as would have been the case had the rape occurred in the manner described by her despite the fact that this was brought to her attention. In fact a lack of such evidence should have tilted in the favour of the appellant”
.
Ground 6 (ground 7 in the first appeal): “The Learned Judge erred in ascribing confusion as the reason for the material discrepancies as regards the identification of the appellant by the complainant when the evidence does not disclose any alleged confusion on the part of the complainant nor did the complainant at any point in time complain of any such
confusion”.

Ground 7 (ground 8 in the first appeal):
“The Learned Judge was wrong to set aside the motion made on behalf of the appellant for the tendering of Mr. Philippe Albert, witness No. 1 on the additional list of witnesses for the prosecution, for cross examination while his evidence would have been material in the interests of justice. The more so as the evidence discloses that he was apart from the complainant present in the room where the alleged rape occurred. The prosecution, having failed to call the said witness who would have been able to assist the court in deciding on the circumstances of the alleged rape, the Learned Judge was wrong in refusing the motion that the said witness be tendered for cross examination. This refusal deprived the court of materially relevant evidence”. For the reasons which we have already given in the first appeal, regarding grounds 3 and 11, 4, 7 and 8, we are of the view that grounds 3, 4, 6 and 7 in this appeal, must also succeed.

Turning to the other grounds raised in the present appeal, ground 1 reads as follows: “The Learned Judge was wrong to admit the statements of appellant (then accused No. 2) who was then a minor whereas the evidence on record clearly indicates that his confession was obtained through oppression and/or that there is considerable doubt whether it was obtained voluntarily in the presence of an adult who was really his responsible party when in fact there is on recordunchallengeable evidence that the said adult was not and had never been the responsible party of appellant to whom he was not related even though the Learned Judge wrongly considered the said adult to be appellant’s “brother in law” as she wrote at the bottom of page 7 of her judgment.”

The appellant No. 2 had challenged the admissibility of the 2 statements given by him on
01/06/2009 and 06/06/2009 at the C.I.D Office of Quatre Bornes on the ground that they had been obtained as a result of threats and acts of violence exercised upon him and causing him injury and also, on the ground that the statements had been recorded in breach of the Judges Rules and the provisions of the Juvenile Offenders Act inasmuch as his sister, who was his responsible party, was not present either during his interview or the recording of his statements.

The Learned Judge found that it was “the accused’s sister herself who admittedly had
the charge of the accused, both their parents having passed away who decided to send Eric Lione, the father of her child, to assist her brother during the questioning and the recording of the statements”. She concluded that “the allegations made by the Accused No. 2 and his witnesses to be unfounded and held that there had been no breach of the Judges Rules and that the accused had given his statements voluntarily in presence of his responsible party/guardian”.

Section 9(4) of the Juvenile Offenders Act provides as follows:
“No statement shall be recorded from an apprehended person below the age of
18 outside the presence of his parent or guardian unless the parent or guardian cannot be contacted within a reasonable time or the parent or guardian, afterbeing contacted, fails to call at the police station where the statement is to be recorded within a reasonable time fixed by the police officer in charge of the station”.

By virtue of the above provision the statement of a juvenile must be recorded in
presence either of his parent or guardian unless neither of them can be contacted within a reasonable time. In the present case the appellant’s statement had to be recorded either in the presence of his father or his sister. Although there was no evidence as to the whereabouts of the father, the evidence revealed that the sister was available and had called at the station where appellantNo. 2 was being detained.

The sister who at the relevant time had the charge of the appellant No. 2 would have
qualified as a “guardian” under the Juvenile Offenders Act, which term “includes any person who has for the time being the charge of or control over the juvenile or young person”. However the police recorded the statement in presence of one Mr. Lione, who was not related to the appellant but was merely his sister’s employer. The appellant insisted that Mr. Lione was a stranger to him and Mr. Lione in turn maintained that although he had had a child with appellant No. 2’s sister, he was a married man and he had no relationship with the appellant No. 2, a fact which he had imparted to the police. He was however forced to witness and sign the appellant’s statements and even threatened that he would be handcuffed if he did not comply.

In the circumstances we are of the view that the Learned Judge’s finding that the
appellant’s statements had been recorded in presence of his parent/guardian, namely, Mr. Lione, is factually incorrect and is not substantiated by the evidence on record. Similarly in the judgment the Learned Judge relied on the statements given by appellant No. 2 to find the case against him proved beyond reasonable doubt on the wrong premise that these had been recorded in presence of his “brother in law”.

We accordingly find that the statements given by the appellant No. 2 were not admissible for having been recorded in breach of the Judges Rules and the provisions of
Section 9(4) of the Juvenile Offenders Act.

Ground 1 is well taken and must succeed. Ground 2 reads as follows:
“The Learned Judge, even if she found that the statements of appellant were
admissible, should not have attached any weight to them since, when assessed
in the context of the unsatisfactory evidence from the complainant and from
police officers, the contents of his alleged confession are hardly plausible.”
Regarding this ground which concerns the weight to be attached to the appellant’s statements we need to say that since we have already found under ground 1 that the statements given by appellant No. 2 were not admissible, the question of weight does not arise and there is accordingly no need for us to consider this ground.

Ground 6 is worded as follows:
“The Learned Judge erred in ascribing confusion as the reason for the material discrepancies as regards the identification of the appellant by the complainant when the evidence does not disclose any alleged confusion on the part of the complainant nor did the complainant and the prosecution attempt at any point in time to explain away these discrepancies as being the result of “confusion” caused by a “traumatic experience”. This ground refers to confusion with respect to the complainant’s identification of the appellant No. 2.

We note in fact that in her analysis of the evidence the Learned Judge at no time found that there was confusion in the complainant’s identification of the appellant No. 2.
Indeed in his address counsel in fact did not refer us to any confusion in the complainant’s identification of appellant No. 2. He instead referred us to inconsistencies in the complainant’s testimony such as the time of the alleged rape, the number of persons involved, the sequence in which she was raped and the acts committed by each accused party.

The Learned Judge’s comment regarding a confusion on the part of the complainant with respect to her identification of the perpetrators, are in relation to the appellant No. 1 and do not relate to appellant No. 2 as is clear from the following extract of the judgment:
“… I bear in mind that the complainant gave these wrong descriptions of
Accused no.1 only hours after having lived a traumatic experience which in my
view would explain her confused mind at that time.”
Regarding appellant No. 2 the Learned Judge relied on his confession to the effect that
following the appellant No. 1, he was the second one to rape the complainant. The relevant part of the judgment reads as follows:

“With regard to Accused no.2, there is his admission in the presence of his
brother in law that he was the second one to rape the complainant, that he had subsequently been identified by her, and that he had thereafter voluntarily shown
the bed where the rape took place. Besides it is also the complainant’s version
that Accused no.2 was the second one to rape her. I find beyond reasonable doubt that Accused no.2 committed the sexual act of rape on the complainant on the night in question.”

The ground of appeal is therefore factually incorrect inasmuch as at no time did the
Learned Judge make any finding of confusion on the part of the complainant with respect to her identification of the appellant No. 2.

Ground 6 must accordingly fail.

We now turn to ground 5:
“The Learned Judge erred by adopting a highly selective approach in assessing the testimony of complainant by occasionally speculating that her serious discrepancies were due to “confusion” whilst on the other hand deducing that her evidence was reliable as far as what the Learned Judge arbitrarily deemed to be “essential” facts whereas the evidence on record shows that the complainant’s account of the various incidents was so improbable and unreliable that the Learned Judge herself decided prudently to reject her testimony in respect of accused No. 3 and No. 4.”

The Learned Judge was alive to the fact that the complainant’s evidence was riddled
with inconsistencies. She highlighted the issues raised in cross examination of the complainant notably the different versions given by the complainant in her statements to the police and in court the inconsistencies regarding the number of the persons involved, their identity, the sequence in which she was allegedly raped, the precise actions of each accused and the time at which the various events occurred.

She made the following finding: “Indeed, she was not quite consistent in her version to the police and in court as highlighted by the defence but this, to my mind, is understandable. Allowances must be made, in relation to non-essentials facts, for the imperfection of human memory especially on the part of a witness who has been a victim of a traumatic experience. What is important is that, in relation to the essential facts, her evidence should be credible and reliable”.

With respect to appellant No. 2, she found that the complainant had identified him as
being the second person who had raped her and further given that the appellant himself had, in
27 his statement to the police, admitted that he had been the second one who raped the
complainant, she found the case against him proved beyond reasonable doubt.
The relevant part of the judgment reads as follows: “With regard to Accused No. 2, there is his admission in the presence of his brother in law that he was the second one to rape the complainant, that he had subsequently been identified by her, and that he had thereafter voluntarily shown the bed where the rape took place. Besides it is also the complainant’s version that Accused No. 2 was the second one to rape her”.

We agree with the submissions made by counsel for the appellant. We note firstly that
the complainant’s version indeed contained serious discrepancies which indicated her confusion regarding the alleged rape. These discrepancies were in our view, material. Such discrepancies and confusion in the complainant’s evidence had led the Learned Judge to conclude that her evidence was unsafe and could not be acted upon with respect to the then accused Nos. 3 and 4.

Given that all the accused had been involved in the same incident and the evidence against all of them rested essentially on the complainant’s evidence, we agree that this evidence which had been found unsafe quoad the two other accused, was equally unsafe quoad the appellant No. 2.

Further the Learned Judge’s finding of guilt with respect to appellant No. 2 cannot stand
for another reason. The Learned Judge had also based herself on the admission made by the appellant in his statements, which statements we have ruled, cannot be acted upon inasmuch as appellant No. 2 was a juvenile at the relevant time and his statements had not been recorded in presence of his parent or guardian. Ground 5 must therefore succeed.

For the reasons which we have given, we allow both appeals and quash the convictions
and sentence of both appellants.

E. Balancy
Senior Puisne Judge
R. Mungly-Gulbul
Judge
P. Fekna
Judge
11 November 2014
Judgment delivered by Hon. R. Mungly-Gulbul, Judge

For Appellant in the 1 s t appea l: Mr. N. Ramburn, of Counsel
Mr. Attorney O. Bahemia
For Appellant in the 2 nd appea l: Mr. J. C. Bibi, of Counsel
Mrs. Attorney B. Kaniah
For Respondent in both appeals: Mrs. J. Moutou-Leckning, Ag. Sr. Asst. DPP
Senior State Attorney

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