In court this week

In court this week

JUDGE RENAUD ACQUITS MAN CHARGED WITH RAPE!

The Supreme Court presided over by Judge Renaud has unsually acquitted a man charged with rape this week. It is very rare that the Courts in Seychelles acquits someone of a criminal offence as the prosecution enjoys a 99% conviction rate. The decision to acquit has therefore surprised, if not shocked, many in the community. The offence of sexual assault is a very serious one and anyone convicted is liable to a maximum of 20 years imprisonment.

The accused, Gerard Kate, was charged with the offence of sexual assault (the old statutory offence of rape) the particulars of which were that the accused on 24th of April, 2004 at Port Launay, Mahe, sexually assaulted a young girl by penetrating her vaginal and anal orifices for a sexual purpose. The accused pleaded not guilty and the case proceeded to trial.

The facts of the case which was presented before the Courts were as follows: The girl who was allegedly raped by the accused was 17 years old at the time of the commission of the offence and was living at Takamaka at the material time. She had left school, had attended a tailoring class for sometime and was not employed at the material time. On 24th April, 2004 she had joined her friend who lived with her boyfriend at Cascade and together they went to watch a film in Victoria. After the film show the two of them took a public bus to return to their respective homes. Arriving somewhere at Mont Fleuri, from where they were sitting in the last row of seats in the bus, they noticed a small pick up following their bus. The driver of the pick up was the accused, accompanied by his friend Selby. They were waving at the girls in the bus. The girls waved back. The pick-up followed the bus up to Les Mamelles where it stopped and both girls alighted from the bus and joined the accused and his friend in the pick up and were all sitting in front. They turned round and drove to Les Mamelles, then down to a Restaurant in town where they bought Take Away Food and drinks. They then drove back towards Cascade where they stopped and the accused went to buy some soft drinks for them. Betty did not alight to go to her place but continued with them in the pick-up. At this point Betty and Selby went to sit at the rear of the pick up whilst the complainant and the accused were sitting in front and talking. They stopped again at Pointe Larue where the accused went to buy beers whilst the others waited in the pick-up. They proceeded and later stopped at a shop at Au Cap where the accused bought some beers and soft drinks. The accused showed the complainant a plastic bag containing some beautiful clothes which he promised to give her. The accused proposed the complainant to have sex with him and she will be rewarded with the bag of clothes and SR500.00. The complainant did not agree but consented to SR1000.00 instead. They all proceeded to Anse Boileau via Montagne Posee and arriving at the Anse Boileau junction, the accused wanted to know where to go and the complainant suggested the Anse Boileau Community Centre. The accused observed that there was too much light there. All four of them continued toward Grand Anse and stopped by the school near the Grand Anse beach. They stopped for a little while and noticed that there was someone there. The accused turned the pick-up and went towards Port Launay. They then parked the vehicle by the road side. Betty and Selby stayed in the pick-up whilst accused and the complainant went to the beach using a small path where there were rocks and roots. The accused assisted the complainant by holding her by her arm. The hipster, knickers and blouse of the complainant were removed either by herself or by the accused.

The judge found that no force or violence were used when removing these items of clothing because these clothing were of delicate materials and when produced in Court the Judge commented that he noticed that they were intact with no sign of being violently or forcefully handled.

The complainant however kept her bra on whilst on the beach. The complainant had scratch marks on her back which she testified she got when lying with her back on a rock whilst on the beach. At a point in time the complainant told the accused that she was asthmatic and the accused left her to get her inhaler in the pick-up. By that time it had started to rain, and the complainant followed the accused to the pick-up by the road side. She was completely naked at that time. She talked to Betty and Selby who were then still sitting in the pick-up. She then threw all her wet clothing at the back of the pick-up and went completely naked with the accused in front of the pick-up. The accused had sex with her whilst she was made to sit on the passenger’s seat with her legs on the dashboard. The rain stopped and the accused opened the door by the passenger’s seat and stood there whilst the complainant slept face down on the front seat with her face near the steering wheel looking out of the driver’s door. The complainant claimed that at that moment the accused was engaged in anal sex with her whilst she was either calling or talking with Betty who was by then holding her hand at her request. The complainant said that the accused got her to then turn and sleep face up on the seat and the accused continued to have vaginal sex with her.

The evidence of the Doctor indicated that the accused ejaculated in her. Thereafter, all four of them got in the pick up and the Accused drove towards Anse Boileau. All the way the complainant sat naked and was chatting with the accused in front of the pick-up. The two others were sitting at the back. The complainant had agreed with the accused that she will sleep at his place that night. Whether that was actually her true intention or not, is not clear. The Judge stated “I note however that when the accused had parked his vehicle near the Community Centre, at Anse Boileau, the complainant had initially stayed therein naked waiting for the accused to come back. That give me the impression that the party was continuing on their way to another destination.” When they arrived at the Anse Boileau Community Centre the accused and Selby went inside to buy drinks. The complainant, still naked, and Betty were still sitting in the pick-up waiting. Betty noticed her cousin, whom the complainant said was her friend, and had been previously introduced to her by Betty. The complainant came out of the pick-up and put on her clothes whilst Betty shielded her. Both Betty and the complainant went towards Betty’s cousin. When the accused and Selby came with the drinks they found the complainant and Betty with Betty’s cousin. There was an altercation between them and the accused made certain remarks to the complainant. The accused then left together with Selby and went in the Community Centre. Apparently the accused gave the complainant neither the bag of clothes nor any money. At the insistence of Selby, the complainant reported the matter to a Police Officer who was on the scene. The Police Officer arrested the accused and Selby and took them to Anse Boileau Police Station. Selby was released but the accused was remanded at Port Glaud Police Station where necessary procedures ensued, including medical examination of the accused. The complainant was also taken for medical examination.

The examining Doctor confirmed that there were pressure marks under the neck and on the breast of the complainant. He opined that it was possible these could have been done by sucking, hence it is possible that they were love bites. The Doctor also confirmed that there was a slight scratch mark on the complainant’s back. There were slight lacerations at the vagina of the complainant and the Doctor opined that sexual intercourse had actually taken place. From the examination of vaginal swab, spermatoza were also present. No other marks were noticed on the complainant. The medical examination of the accused revealed no scratch or other flesh marks on the accused. From the time the complainant had come from Cap Ternay to the time she was examined by the Doctor there is no evidence to show that she had the opportunity to have engaged in sexual intercourse with a person other than the accused. The Doctor made no observation as to anal intercourse. The Judge was of the view that the evidence of the Doctor provides sufficient corroboration that the accused did indeed had sexual intercourse with the complainant.

Lawyer, Anthony Juliette, had raised the defence of consent throughout the trial and had argued in his submissions that although the accused had admitted having sexual intercourse with the complainant, she had consented. The Judge concluded that the evidence was shaky and there was “…a substantial and serious doubt as to whether the virtual complainant did not consent to have sexual intercourse with the accused or that her consent was obtained by misrepresentation as to the character of the act or identity of the accused. I find on the evidence that the complainant was over 15 years old at the material time and that her understanding and knowledge were and are not such that she was incapable of giving consent. It is my conclusion and considered judgement that the virtual complainant did indeed all along knew that the accused intended to have sexual intercourse with her and that she voluntarily consented to do so without any threat, force or violence exhibited by the accused towards her.” The Judge accordingly acquitted the accused. The prosecution was represented by Mr. Ronny Govinden.