In court this week
Alleear CONVICTS 31 YEAR OLD STEP FATHER OF SEXUAL ASSAULT ON GIRL OF 12
The Convict was charged and convicted of sexual assault on a girl under the age of 16 in 2003. The facts of the case are that the convict lives in concubinage with the mother of the complainant. At the time of the incident the complainant used to go to the house of the accused accompanied by her mother every weekend. Her mother would drop her at
When the complainant was in P6, she recalled an incident which she recounted to this court. The accused had picked her up from school and taken her to his home. The accused went to his room, sat on his bed and asked the complainant to sit next to him. The accused then lay on his bed with the complainant next to him. Whilst they remained in that position, the acused is alleged to have asked the complainant – “are you okay” Her reply was the affirmative.
The accused then asked the complainant to come on top of him. The complainant said she refused, whereupon the accused who was lying on his back pulled her on top of him and held her by force against his body. The complainant asked the accused to release his grip of her. The accused refused. The complainant said she told the accused – “do not do anything. Take me back to Mont Buxton”. The accused complied with that latter request.
This is the only incident of sexual nature which occurred in the year 2003 as specified in the particulars of offence.
The complainant then spoke of other incidents involving her and the accused in the year 2004. She recalled that on a Saturday morning she was at the accused’s house at
According to the complainant, the aforesaid act of sexual intercourse lasted for about five minutes. She said she did not scream as there was no one in the house. When she asked the accused to stop, the accused refused, she added. The complainant said she did not report the incident to her mother because in her opinion it would have been pointless. Her mother would not have believed her. She went on to add that she was frightened to report the incident to her biological father who is separated from her mother.
Following the first act of sexual assault referred to above the complainant stated that every Saturday morning the accused abused her sexually by having full sexual intercourse with her in his house at
The complainant recalled that even when she was menstruating, the accused would insist on having sexual intercourse with her. The accused even told her that he did it to the complainant’s mother when the latter was having her period.
All the acts of sexual intercourse, according to the complainant, took place when she was in S1.
She spoke to two of her friends at school, about the aforesaid incidents and finally managed to apprise her aunt of what had been going on between the accused and her every Saturday at the house of the former.
The complainant was medically examined by a lady doctor at the
In cross examination, the complainant denied that the accused’s mother was present at
Answering other questions in cross examination, the complainant agreed that the accused treated her well and scolded her and reprimanded her when she had been naugthy. Generally the accused treated her as his child. The complainant admitted that she consumed alcohol only when it was offered to her by the accused and she never drank on other occasion.
The complainant admitted that when the accused mother used to call at the accused’s house, she always remained in the kitchen.
Under cross-examination, she however, admitted contradicting what she had stated in chief that the accused’s mother was always present at the house of the accused when she went there for the weekends.
The complainant conceded that although the accused did treat her well in other ways, he still abused her sexually. She denied that she had made false sexual accusations against the accused person for something which he had not done. She further denied that she had been under pressure to implicate the accused in the offence.
The complainant denied having had any sexual intercourse with any other person. She maintained that it was the accused who had sexual intercourse with her on several occasions.
In re-examination, the complainant corrected herself and stated that the accused’s mother was not always present when she used to call at the accused’s house at
As stated above the complainant was examined by Dr. Julia, a gynaecologist at the
Age 12 years old
According to child she is a victim of child abuse from her stepfather some time ago.
EXAMINATION
PV: Vaginal interoitus seen
Heavy vaginal discharge
No hymen seen
HVS –
The complainant’s friend who was born on the 29th August 1991 testified that she recalled the 26th October because the following day she attended the creole festival. She explained that she was in the classroom during Maths lessons when the complainant told her that she wanted to say something to her on condition that she would not disclose it to anyone. After she received the assurance from her friend that whatever was said would remain a secret between them, the complainant told the witness that her step father, i.e. the accused, was abusing her sexually, even when she was menstruating.
The complainant’s friend subsequently broke her promise of secrecy, and by informing her mother about the incident related to her earlier by the complainant. The Court was of the view that she was right to do so. However, the Court remarked that the evidence of the friend did not corroborate the complainant’s testimony.
When cross examined, the friend stated that besides herself, the complainant had spoken to others and a teacher about the alleged incident involving the accused.
PW3, a resident of Mont Buxton employed as Museum Curator at the
It will be noted that this piece of evidence was admitted by the court not as the truth of what was stated but as a fact that the statement was made in the presence of the complainant.
After receiving that disturbing piece of information the aunt immediately contacted the father of the complainant. She went to the Ministry of Health. She spoke to one Sylvette Belmont, a councellor at the Ministry of Health and she took the complainant to hospital for examination.
Dr. Maxwell Fock-Tave, PW4, Senior Medical Officer employed by the Ministry of health in the Department of Gynaecology and obstetrics produced the medical certificate of Dr. Julia who after medically examining the complainant had left the Republic. Dr. Fock Tave stated in cross examination that there was nothing abnormal with the complainant except for the broken hymen.
The last prosecution witness to depone in this case was the grandmother of the complainant. Her evidence could be disregarded altogether as it does not add anything to the case.
The accused, testified on oath and stated that he is 31 years old and is self employed. He denied that he had abused the complainant adding that he had never been alone with her when the latter visited his home. He said there was always a gardener who would be working outside. The latter normally arrived for work at 7 am even before the complainant did.
The accused further stated that his own mother used to come to his house every Saturday morning to spend time with his three-year-old-daughter. The complainant’s mother normally returned from work at around 1 pm and the complainant spent Saturday night at his home and left on Sunday evening. The accused stated that his relationship with the complainant was that of a father and daughter and nothing more.
The accused said that while he appreciated the seriousness of the allegation made against him by the complainant he understood that she must have been labouring under severe pressure to do that. He could not find any other explanation for the complainant’s action. He added that he was still living with his partner, the complainant’s mother.
The accused’s mother, a day-care operator, confirmed that the mother of the complainant has been the accused’s companion since 2003. This witness stated that she stays at
She said if she had suspected anything wrong with the complainant, she would have noticed it. She did not find that the complainant was in any way disturbed or upset.
It will be recalled that at the close of the prosecution case, learned Counsel for the accused, Bernard Georges, made a submission of no case to answer.
In support of that submission, learned counsel stated that in the present case the commission of the offence has been particularized to have occurred in the year 2003. The evidence led indicated that the offence was committed in a different year and not the one charged.
Learned counsel added that the prosecution chose to make it an element of the offence that the said offence had been committed during the year 2003. Therefore, in his submission, he said that irrespective of what date the offence occurred it was incumbent upon the prosecution, having adopted this wide method of framing its count, to bring evidence to show that the offence had been committed between the 1st January and 31st December 2003.
Learned counsel finally added that in his opinion, the particulars of offence were an essential part of the alleged offence. He cited the Seychelles Court of Appeal case of Krishnamart Pillay & Ors v/s The Republic Criminal Appeal No. 5 and 6 of 1993, in order to substantiate his contention that since the prosecution failed to prove that the offence had been committed in the year 2003 this was fatal to its case. The time frame was an essential element of the offence charged he opined.
The learned prosecuting counsel, cited a passage in the case of Severo Dossi 1998 Criminal Appeal Report where Atkin J, as he then was, made the following observation:-
“The first point taken on behalf of the appellant is that there was no point to amend the indictment, and that when the jury found that the appellant had not committed the acts charged against him on the day specified in the indictment but on some other day or day they found him not guilty and that the verdict must stand. It appears to us that is not a correct contention in law. From time immemorial a date specified in an indicment has never been a material matter unless it is actually an essential part of the alleged offence. Although the day be alleged, yet if the jury finds him guilty on another day the verdict is good, but then in the verdict it is good to set down on what day it was done in respect of the relation of the felony; and the same law is in the case of an indictment.”
The Court concluded thus: “In my judgment, the case of Pillay supra would lend support to the fact that since the prosecution had specified in the particulars of offence that the sexual assault took place in the course of the year 2003, it had to adduce evidence to show that same had indeed been committed in the said year. The prosecution at its peril did not move for an amendment of the particulars of offence, after evidence was led that on several occassions in the year 2004 the accused had sexually assaulted the complainant.
The court having seen and observed the complainant in court has been left in no doubt that she was a truthful and reliable witness. However, the only piece of evidence adduced by the prosecution relates to an incident which occurred in the year 2003 when the accused had pulled the complainant, who was lying in his bed next to him, on his abdomen and held her in that position against her wishes. I believe that piece of evidence as being true and correct. I reject the accused’s allegation that the complainant has falsely accused him of a crime he did not commit.”
The Court went on to consider whether the act of the accused in putting the daughter of his cohabitee on top of him and holding her in that position against her wishes amounts to a sexual assault. Relying on a Canadian case as authority the Court found the Convict guilty of the offence charged. The Court stated: “It is to be wondered why prosecuting counsel never moved for an amendment of the particulars of offence when evidence was led that several acts of indecent sexual assault occurred in the year 2004. Two words would have sufficed for that purpose – “the year 2003 and 2004.”
Was the lapse due to dereliction of duty or on purpose. Only learned prosecuting counsel knows.
In law and on the evidence led, I find the accused guilty of one single act of sexual assault committed against the complainant in the year 2003 and I accordingly convict him as charged.” The Convict was represented by Bernard Georges and the Prosecution by Joel Camille.