[4] Statement of Offence.

[3] Count 1.

[2] The accused stands charged with the following offences;

[1] The Charges.

R.Govinden, J

JUDGMENT

22 October 2018Delivered:

Heard: 5th, 6thand 9th of April 2018

Mrs Lansinglu Assistant Principal State Counsel for the RepublicMrNichol Gabriel for the accused persons

Counsel:

BENNY MARCUS SAVY & ORSAccused

versus

THE REPUBLIC

[2018] SCSC 968'

CriminalSide: C029/2017

IN THE SUPREME COURT OF SEYCHELLES

2

[17] Benny Marcus Savy, 24 years old, unemployed residing at Anse Aux Pins and Aaron

Freminot, 23 years old unemployed residing at Copolia, with common intention, on the

17th of June 2017, at Michel Joseph Bonne's house at Green Estate, Au Cap, Mahe,

without consent, video recorded an act of the said Aaron Freminot a private act namely

[16] Particulars of Offence.

[15] Prohibited recording of private act contrary to Section 157 (A) read with section 157 (E )

and Section 23 of the Penal Code and punishable under Section 157A.

[14] Statement of Offence.

[13] Count 3

[12] Aaron Freminot, 23 years old, unemployed, residing at Copolia, on the 17thof June 2017,

at Green Estate, Au Cap, Mahe, without consent, does an indecent assault by way of

touching the breast of 19 year old female Kimberly Confiance.

[11] Particulars of Offence.

[10] Sexual assault contrary to Section 130(1) of the Penal Code read with Section 130(2) (a)

ofthe said Act and punishable under Section 130(1) of the same.

[9] Statement of Offence.

[8] Count 2

[7J Benny Marcus Savy, 24 years old, unemployed, residing at Anse Aux Pins, on the 17th of

June 2017, at Green Estate, Au Cap, Mahe, without consent, sexually assaulted 19 year

old female, namely Kimberly Confiance by the penetration of the body orifice, namely

the vagina of the said Kimberly Confiance for a sexual purpose.

[6J Particulars of Offence.

[5] Sexual assault contrary to Section 130(1) of the Penal Code read with Section 130(2)(d)

of the said Act and punishable under Section 130(1) of the same.

3

[25] Inspector Esparon testified that he was on duty on the zo" of June 2017 and that he was

requested by ASP Hendrick Leon to extract a video from a mobile phone. This request

was repeated on the zs" of June 2017 in respect of another mobile phone.

The Prosecution first witness was Inspector Ivan Esparon. He was called as an Expert

Digital Analyst, specialising in mobile forensic; computer forensic and GPS technology.

His competency and expertise in those fields were not objected to any objection by the

Defence.

[24] The Prosecution's case

[23] The original Information contained two additional charges, filed against Michel Bonne.

The said charges were withdrawn by the prosecution on s" of April 2018. Michel Bonne

was thereafter called as a witness for the Republic.

[22] Benny Marcus Savy, 24 year old, unemployed residing at Anse Aux Pins and Aaron

Freminot, 23 years old unemployed residing at Copolia, with common intention on the

17th of June 2017, at Michel Joseph Bonne's house at Green Estate, Au Cap, Mahe,

without consent, video recorded private part namely whole naked body of 19 year old

female, namely Kimberly Confiance for the purpose of observing or visually recording

the person's private body parts.

[21] Particulars of Offence.

[20] Prohibited recording of private parts contrary to Section 157B read with Section 157E

and Section 23 of the Penal Code and punishable under Section 157B.

[19] Statement of offence.

[18] Count 4.

touching the breast of 19 year old female namely Kimberly Confiance for the purpose of

observing or visually recording the said act.

4

[30] ASP Hendrick Leon testified next. He was the appointed as the investigating officer in

the case. He started his investigation on Monday the 19th of June 2017. His investigation

led him to Green Estate at Michel Bonne's place. He took a statement from Michel

Bonne, it was at that time that the latter handed him over a J7 Prime Samsung phone. The

mobile phone contained a video that was being circulated on a social media platform

showing the virtual complainant naked together with and the second accused in this case.

On Tuesday the 20th of June 2017 he handed over the phone to Inspector Ivan Esparon

for analysing and retrieving the video footage. The witness testified that he cautioned the

[29] The phone belonging to the first accused was produced and marked as P5. The phone

belonging to Michel Bonne was produced and marked as P6.

[28] The Report indicated that on zo" of June 2017 the witness received one gold coloured

phone make Samsung, model GSMSMlG610F, which ASP Leon said belonged to Benny

Marcus Savy. The phone contained 2 SIM Card with number 2610647 and 2599192.

According to the witness the video that he retrieved was dated 1ih of June 2017 at

around 06100 hr and that the said video was recorded and created by the same phone.

According to the Report, Inspector Esparon received the second phone on the 26th of

June 2017, it was one gold coloured mobile Samsung, model number SMG610F/DD, the

phone belonged to Michel Bonne. On the phone he found a downloaded video. The

downloading took place on the 17th of June 2017 at around 15.36 hours. The said video

footages were backed up on a CD and was labelled as FSL 324-17. The CD was

produced as exhibit P17. The video footages was played in Court and the Court viewed

its content in the presence of the accused, his counsel and counsel for the Republic and

the witnesses.

[27] The witness produced a Digital Forensic Examination Report dated the 151 of July 2017,

which was composed by the witness following an analysis of the phones.

[26] The officer said that when he received the mobile phone on the zo" of June 2017 he

analysed its content. He extracted a video footage from it and handed it over to ASP

Leon. He did the same extraction from the mobile phone that he received on zs" of June

and handed the video footage on a CD to ASP Leon.

5

[35] Michel Bonne testified next for the Republic. His evidence is that on the date of the

commission of the offence we was living at Green Estate, Au Cap. On the n" of June

2018, he tried to get into his house but he could not as the locks were changed.

According to him the first accused had the key to his door and he assumed that the latter

did the change. Mr Bonne claimed that he was in a relationship with the first accused for

4 years and that it appears that Mr Savy had changed the locks because of a problem that

they had before. He left his house without entering as he was advised not to stay in the

house by the police. Itwas only on the 17thof June 2018 that he entered the house. When

he went in he noticed that most of his personal belonging had been taken and where

missing, including electronic items. He saw the first accused sleeping inside the house.

He phoned the police and the police came and arrest the said accused. He then took a

phone from the first accused and which was in the possession of the first accused before

[34] A statement under caution witnessed by officer ASP Leon and taken down in writing by

Police officer, Sheila Amephy, was not admitted in evidence by the Court.

[33] Witness Leon claimed that he received both phones back on the 14th of July 2017 and

along with that he received a CD and also a Report. All were handed over to him by

Inspector Ivan Esparon. He identified all those exhibits in Open Court. The officer was

shown the video footage in court and in it he identified the virtual complainant Kimberly

Confiance and the second accused Aaron Freminot.

[32] According to ASP Leon, Michel Bonne had informed him that he had gone to the Central

Police Station with exhibit P5 and had informed the Police that he had seen a video of a

girl being molested on it, but the Police did nothing, that is why he later put data on the

phone and he uploaded the video on his own phone.

[31] On the 23rd of June ASP Leon witnessed a statement under caution being taken by

Corporal Sheila Arnephy from the second accused. He gave the 17 Prime Samsung phone

to Inspector Ivan Esparon for analysis on the 24thof June 2017.

give a witness statement, following the caution.

first accused on the 22nd of June 2017 at 11.33 a.m at the CID Office. The latter choose to

6

[38] The witness admitted that he was charged by the police in this case. He said that he was

charged because of the video that he had sent to some people from his inbox. He said

that he had sent them in order for the receiver to inform him of the identity of the girl in

the video.

[37] The video retrieved on P(5) was played in Court for witness Michel Bonne to be able to

view its content. The witness identified the voice of the first accused on the video talking

to the second accused and laughing and he identified the room in which the video was

shot as his bedroom. The witness identified the male person in the video as Aaron

Freminot, the second accused in this case. The witness claimed that the first accused had

changed the locks on the doors so that he could get the chance to steal from the house and

that several times in the past he had brought cases against Mr Bonne but had withdrawn

his complaint as a result of the first accused asking him for forgiveness.

[36] According to this witness ASP Leon came to take his own personal phone on the 24th of

June 2017. Mr Bonne testified that he gave the police the phone number of the girl in the

video which he had obtained from the latter's sister. In court the witness identified the

P5,the gold coloured Samsung phone that was formerly in the possession of the first

accused. He also identified (P6) being his phone that he had prior to handed over to ASP

Leon for the purpose of his investigation.

he was arrested. When he looked in the phone content he saw a video of a girl who look

like someone who was dead. According to him as that video was filmed in his house he

was scared and he immediately phoned the police and was asked to go to the Central

Police Station. According to Mr Bonne when he arrived in town he put data on the phone

and as a result pending messages were sent to other people from the first accused phone.

The witness claimed that he failed to get police assistance until the 18th of June 2018,

when ASP Leon, came to his house. The video at that time was on the Facebook. The

witness was of the view that the video ended being posted on the Facebook because when

he put data on the phone the pending messages including the video were forwarded. He

said that he gave to ASP Leon the phone of the firs accused on the 19th of June 2017.

7

[41J Corporal Sheila Amephy testified next. She took a statement under caution from the

second accused, following cautioning this suspect in this case. The statement was

witnessed by Asp Leon.After the court conducted a "voire dire" on the admissibility of

the document in evidence, this court ruled that the Statement Under Caution was

admissible. It was admitted as (P8). In the statement the second accused state as follows

;"I want to say to the police that I am staying at Anse Aux Pins with my concubine

Eveline Sauzier and my three children, two girls aged 6 years and a boy of 9 years. It

was 2014, I don't remember which month, that I was sent to Prison for the offence of

stealing and Iwas released from Prison on the 6'hApril 2017. It was on Friday 16'hJune

2017, at around 2p.m, when I was at Chetty Flat at Anse Aux Pins. 1saw Marcus Sary

whom I have known for a long time when we were staying at Copolia. Marcus went to

bring drug for me and we used it. Marcus injected his using syringe. Marcus had some

[40] After seeing the video footage the witness said that she felt discouraged and wanted to

kill herself. The witness testified that she went to the police to report the incident on the

24th of June 2017 and that she was aware that it was Michel Bonne who posted the video

on Facebook.

[39] Kimberly Nadine Confiance, herein after also referred to as "the virtual complainant",

testified in favour of the Republic. She said that she is 20 years old and she live with her

mother and brother at Brilliant. She said that she was at the Barrel discotheque on the 16th

of June 2017 at about 8.00 p.m onwards. She was having a beer outside the Barrel

discotheque when the first accused gave her a ride in a car. She took the ride with the

first accused and the second accused was also present. She passed out in the car. When

she woke up the next morning she saw herself naked in bed in a house at Aux Cap. The

first and second accused were there and they told her to hurry up because they were about

to leave. She left and help them carry some bags. She then went to sleep at her mother's

place and on Monday her mother informed her that she was on the Facebook. She

watched the video retrieved from the first accused phone. She testified that it's her that is

in the video. The witness identified the second accused and the first accused in Court in a

dock identification. She said the second accused as the person that is seen in the video

with her touching her private parts whilst she is unconscious.

8

notes of SRI 00 with him and I didn't have any money. Around 6pmMarcus left and then

came again to Chetty Flat where he bought more drugs and used it using his syringe.

When he had finished, Marcus put his syringe in his pants pocket. It was around 7pm

when we left Chetty Flat and walked to the airport where we hitched a ride in a pick-up

and we went to the Amusement Centre. Marcus was playing. When the Amusement

Centre was closed we went to Barrel Discotheque, in the early hours on Saturday. When

we got there I sat outside on the wall. There were times when Marcus would leave me

alone but he would later come back. At one point Marcus came back with a girl, who

was wearing a blue blouse and a blue jeans, and they were talking. The girl appeared to

be a bit drunk as there were other men who were sitting nearby who were touching her

on her body and she even sat on them. After that she came to us. When the disco closed

around 4am we looked for a pirate taxi which paid for. I sat in thefront and Marcus sat

in the back with the girl whom I don't know her name. When we got to Mont Fleuri,

Marcus asked the driver to take us to Corgat Estate where he bought powdered drugs.

We used it right there but I don't know if Marcus used all of his. After that we went

straight to Au cap to a house where Marcus said that he was staying. The girl disembark

and she was talking. There was nobody at the house. We went straight to a room where

I saw [he girl fell face up on the bed. Marcus and I tried to wake her up but she did not

respond. Marcus removed all the clothes on the girl. I told Marcus to take the girl to the

shower but he took everything for afarce. I was in only my boxer across the bed and the

girl was lyingface up. There I started toplay with her lipsfor a while and I also pressed

her breast while telling Marcus that her breast is hard. At the time Marcus was with his

mobile filming. I don't know for how long Marcus has been filming but I told him that

this not a game and to delete it. After that Marcus, who was only in his boxer, hold the

girl below her breast and dragged her to the shower. They were there for about IO

minutes. I want to say that the girl's head was lowered. When they were finished in the

shower, the girl was walking to go to the room. After that I went to the shower. The

bedroom door was shut but not locked. When I went in the room the girl was lying face

up naked on the bed. I only heard her asked Marcus if he had filmed her. After that we

helped Marcus pack his in bags as he was he was leaving the place to go. After that

around 6 am we walked to the bus-stop where we got a lift in a car. We got off at the bus

9

[43] The first and second counts in this case are sexual assaults contrary to s 130 (1) as read

with s 130 (2) (d) and punishable under s 130 (1) of the Penal Code The first count is

charged against the first accused and the second is charged against the second accused. In

order to prove these charges the Prosecution has to prove beyond a reasonable doubt that

Benny Marcus Savy and Aaron Freminot committed the actus reus of the offences by

penetrating the vagina of Kimberly Confiance, being the complainant. The Prosecution

(42] Essential elements of offences charged

At the closed of the prosecution case the accused decided to exercise their rights to

remain silent after their constitutional and legal rights were read to them. This Court is

not going to draw any adverse inference on the accused decisions to exercise this right.

The Court is aware of the fact that they are both innocent until the Prosecution proves the

case against the beyond a reasonable doubt.

The Defence case in respect of the first two counts is that there is nothing in law which

says that an unconscious person cannot give consent, especially given the facts of this

case where the virtual complainant is seen as one in which she gave implied consent.

Whilst in respect of the other counts it is submitted that there is no evidence of who did

the prohibited recording, established by the prosecution.

The Defence case

Sgd. AFreminot"

terminal at Anse Aux Pins. The girl continued on her way as the driver was going

towards the airport. I went to my place and Marcus went on his way. Later, on Sunday

1EfhJune 2017 around 12 noon people told me I was on Facebook. I want to say that I

accept that it is me in the video. With the girl as I have seen it with people at theflat but

I haven't had sexual intercourse with that girl. I don't know ifMarcus have had sex with

that girl. I want to point out that on that day Marcus and I didn't consume any alcohol,

but only drugs.

10

[47] In order to establish the mens rea for the first two counts the Prosecution has to establish

beyond a reasonable doubt that the accused could not have been under the belief or

impression that they had the necessary consent to engage in the sexual act. If in assessing

the evidence it appear to the court that the virtual complainant's capacity was unimpaired

(2) Video recorded the whole naked body of Kimberley Confiance.( the actus rea ).

(1) That both Benny Marcus Savy and Aaron Freminot, with common intention, without

consent and for the purpose of observing or visually recording the whole naked body

of 19 year old Kimberly Confiance (means rea).

[46] The 4thCount is one of prohibited recording of private palts contrary to Section 157 (B)

read with Section 157(E) and Section 23 of the Penal Code and punishable under Section

157(B). The essential element to be proven in this Court beyond a reasonable doubt by

the Republic are as follows;

2. Video recorded the act of Aaron Freminot touching the breast of Kimberley Confiance

(the actus rea).

1. That both Benny Marcus Savy and Aaron Freminot, with common intention, without

consent and for the purpose of observing or visually recording the private acts of the

19 years old Kimberly Confiance (the mens rea).

[45] The essential elements to be proven in this Count, beyond a reasonable doubt by the

prosecution, is as follows:-

[44] The 3rd Count is one of prohibited recording of private act contrary to Section 157 (A)

read with Section 157 (E) and Section 23 of the Penal Code and punishable under Section

157(A). In this Court both accused person are charged with common intention.

has also to prove the mens rea beyond a reasonable doubt, that is, that the sexual

penetrations was for a sexual purpose and was done without the consent of the said

Kimberly Confiance. These are the essential elements of the offences in Count (1) and

(2).

11

[51] Aaron Freminot gave a statement under caution that has been admitted as exhibit P8. In

there he makes no admission of any a sexual acts between the fust accused and the virtual

[50] The first count is one of sexual assault by the first accused upon the vital complainant

Kimberly Confiance. At the outset I find that there is no evidence to prove that the first

accused singly or jointly carried out a sexual act upon the virtual complainant. The

virtual complainant does not recall any facts related to or associated to the scene of the

video footage. She does not know what happened to her that night .She was unconscious

at the material time. What she can inform the Court is what she sees in the footage. In

the video she saw the second accused next to her on a bed. She was naked and Aaron

Freminot was fondling her mouth and then her breast. She claimed that she had passed

out in the car in the company of the two accused on the way from Barrel discotheque to

the house where the video was recorded and she woke up in the morning she was on the

bed in the presence of the two accused. The first accused is not seen in the said video

footage.

I have meticulously examined and considered all the evidence led before this court and

the submissions of both counsels in the light of the applicable law and I shall now

proceed to examine these evidence bearing in mind the charges in question. Before doing

so I am of the view that all the witnesses who testified for the Prosecution in this matter

appeared to be trustworthy and credible. I believe all aspects of their testimonies. The

Prosecution evidence is reliable, cogent and consistent.

[49] Determination

[48] The Court note that consent to a sexual act obtained by threat or force is not consent -

Lespoire vis R SCA 311989 and an act given by misrepresentation is also not consent, R

vis Pierre (2007) SeA 200. It is also noted in Raymond Lucas vis R SCA 17109 that it is a

matter for the Judge's discretion whether any corroboration warning is appropriate in

sexual offence cases, depending on the facts of the case.

and the accused had the legitimate belief that she was consenting to the sexual acts, then

the mens rea of the two counts of sexual assault would not be proven.

12

[55] I hence find that the actus rea of the offence of Sexual Assault, as charged, proven

beyond reasonable doubt. The virtual complainant was completely naked and her bra

appeared to have been pulled up above her breast. The 2nd accused was playing with her

breast. This could only have been done by the second accused, given the state of

consciousness that the virtual complainant was in.

[54] Evidence on record shows Aaron Freminot fondling the breast and the mouth of

Kimberly Confiance whilst the latter was unconscious and naked on the bed at the Michel

Bonne place. This is clearly evident in the video recording produced as P8. Moreover, in

his Statement under caution, Aaron Frerninot, stated. "I was in my boxer across the bed

and the girl was lying face up. There I started to play with her lips for a while and also

pressed the breast.

First of all the COUlthave noticed that the particulars of this charge is infelicitous, instead

of "does an indecently assaulted", it should have read "did indecently assault ". However

this said it appears that the phrase has been sufficiently understood by both the court and

all parties to mean "did indecently assault ", therefore I would proceed on that basis.

[53] The second count is one of sexual assault by the second accused upon Kimberly

Confiance

[52] There is evidence that the phone that video recorded the scene between Aaron Freminot

and the virtual complainant belongs to the first accused and Michel Bonne testified that

when the video was being filmed he could hear the voice of the first accused and that it

appeared that it the first accused who did the filming. However this is insufficient to

prove this offence on the burden of proof in this case. Hence there is no evidence to prove

the first count. Accordingly, I find that the prosecution has adduced no evidence of a

sexual penetration by the first accused on the virtual complaint. The actus rea is not

proven. J dismissed the first count and acquit the first accused of this count accordingly.

complainant. At any rate such admission would have been admissible only against the

maker of that statement and not the first accused.

13

{61] Inpursuant to this section, if two or more persons form a common intention to commit an

offence, each individual whose will contributed to the wrong doing in law is responsible

for the whole. Common intention to commit the offence may be tacit and may be inferred

from the circumstances. R vis Payet (2009) SLR p 148. Further, the court can consider a

{60] Section 23 of the Penal Code read as follows:- "when two or more persons form a

common intention to prosecute an unlawful purpose in conjunction with one another, and

in the prosecution of such purpose an offence is committed of such a nature that its

commission was a probable consequence of the prosecution of such purposes, each of

them is deemed to have committed the offence. "

[59] The third Count, is one of Prohibited recording of private act contrary to Section 157(A)

read with Section 157(C) and Section 23 of the Penal Code and punishable under Section

157(A). This count jointly charged both accused. Both the first and the second accused

are charged with having common intention to commit this offence under Section 23 of

the Penal Code.

[58] Moreover, whilst I understand that there is no longer the need for the COUlt to look for

corroborative evidence of sexual assault in law, I find that the video evidence

independently prove in a material particular not only that Kimberley was indecently

assaulted, but that it was the second accused who did the assault.

[57] In this case the virtual complainant had no understanding as to what was happening to

her. She was in a state of unconsciousness. Having no capacity to understand what was

happening to her she could not have consented to actions of the second accused person.

[56] Section 130(3) (c) of the Penal Code provides that "A person does not consent to an act

which if done without consent constitutes an assault under this Section if the person'sunderstanding and knowledge are such that the person was incapable of giving consent"

As to the mens rea, I fmd that the action of the second accused was intentional and not

accidental, it was done deliberately and for the sexual pleasure of the second accused. I

find that the virtual complainant was in a state of unconscious at the time of this act. She

had been in that state since she had left town in the company of the two accused.

14

[66] The victim was unable to consent to the act given her sate of consciousness. She had no

knowledge as to what was happening to her. She could therefore not have been in a

position to have consented to the video recording of the private act.

[65] Both accused assisted, through their joint enterprise, and their co-ordinated efforts in

video recording the private act of the victim, without her consent. The private act

consisting of the second accused acts of fondling of the breast of Kimberley and the

video recording being done by the first accused whilst acting in concert with the first

accused.

[64] I also find as proven that the phone that filmed the video was retrieved from the first

accused. When the video was played in court, Michel Bonne, who is very familiar with

the first accused voice, could hear the voice of the first accused speaking to the second

accused on the audio of the video. There being only three persons in the bedroom it is

evident that it was the first accused filming the scene. To my mind this concerted effort to

fondle the virtual complainant and to video recorded the virtual complainant by the two

accused prove common intention to carry out the prohibited recording of the private act.

[63] Regarding the presence of the first and second accused at the scene of the offence. I

accept the evidence of the virtual complainant that she and the two accused were in a car

and proceeded from the Barrel discotheque to Michel Bonne's house at Aux Cap, during

the journey there she passed out in the car. I also accept her evidence that both of the

accused were in the bedroom where the video was filmed when the three of them woke

up the morning after. The virtual complainant in court identified the second accused as

the person that was in the video, fondling her breast and mouth.

[62] I would therefore have to examine the evidence and see whether the prosecution have

managed to prove beyond a reasonable doubt that the two co-accused acted with common

intention.

number of factors when determining whether the accused acted with common intention,

including the manner in which the accused arrived at the scene and the way in which the

alleged crime was executed. R vis Aden (2011), SLR p 30.

15

[72] I would therefore have to examine the evidence as presented by the prosecution in order

to determine whether the prosecution have managed to prove beyond a reasonable doubt

that the two accused had with common intention and without the consent of the virtual

complainant, video recorded the private parts of the latter, namely her whole nude body

for the purpose of observing or visually recording her. Whatever I have said regarding the

law and the application of section 23 of the Penal Code to the facts of this case would

person.

[71] It is to be noted that the difference between the charge in the third count and this count

consist of the prohibitive acts. The third count penalising the act of filming the private

acts of a person, whilst the fourth count penalise the act of filming the private parts of a

[70] The fourth count is one of prohibited recording of private parts contrary to section 157

(B) as read with section 157 (E) and section 23 of the Penal Code and punishable under

section 157 (B) of the Penal Code.

[69] I therefore find beyond a reasonable doubt that both accused form a common intention to

commit the offence of Recording of a private act contrary to s 157(A) as read with s 157

(E) as read with s23 of the Penal Code, as charged in the third count. I convict them

accordingly.

[68] At Michel Bonne's place he is seen fondling the bear breast of the virtual complainant

whilst she lay unconscious. When he did this act the first accused voice is heard and

identified whilst he is holding his phone and filming the scene

[67] In his statement under caution Aaron Freminot, shows that he had the prerequisite actus

rea and mens rea as called for by section 157 (A) and 157(E) and Section 23 Ofthe Penal

Code. According to him on the 17th of June 2017, early in the night, from the Chetty Flat

at Anse Aux Pins, he went to the Amusement Centre and from there to the Barrel

discotheque. After that he picked up the virtual complainant in a pirate taxi and

proceeded to the Corgat Estate and then Aux Cap at Michel Bonne place. This Statement

under caution is admissible only against the first accused.

16

[75] I therefore fmd beyond a reasonable doubt that both accused form a common intention to

commit the offence of prohibited recording of private act contrary to s 157(B) as read

[74] I find further that it was the first accused telephone that did the prohibited recording.

Evidence revealed that it was Michel Bonne who gave the first accused the said phone

and that the phone was in the sole custody of the first accused on the date; time and place

that the video was recorded. It was found by Michel Bonne in his house after the latter

had vacated his house. Nobody else other than the first accused and Michel Bonne is

shown to have accessed that phone until the video was retrieved from it. The two other

persons being the Investigating Officer and the Police Phone Analyst, who all preserved

the chain of evidence regarding this exhibit.

[73] I accept the evidence of Kimberley Confiance regarding the presence of both the first and

second accused at the scene of the video recording. I accept the evidence of Michel

Bonne identifying the first accused through his voice recording, as the person who did the

video recording using his phone. The virtual complainant might have passed out at the

time that the video of her nude body was being filmed. However, she testified that both

the first accused and the second accused were in the car with her going to the place where

the filming was done on the 17th of June 2017, when she passed out. It is her evidence

that when she woke up the morning after she saw herself totally naked in the bedroom

where the video was recorded in the presence of the first and second accused. The virtual

complainant identified the second accused as the person fondling her mouth and breast,

she further identified her naked body next to the second accused. Though she could not

say categorically that it was the first accused who did the video recording, I find that her

evidence placed the first accused at the scene of the offence at the material time that it

was committed. There being only the three persons at the scene of the offence, one was

recording and the two others were being recorded. I find that therefore that there is strong

circumstantial evidence that the first accused did the recording.

also be relevant to this charge as both accused are once again charged with common

intention in this count.

17

with section 157 (E ) and section 23 of the Penal Code and punishable under Section 157

(B) of the Penal Code.