[2] The brief facts of the case as related by the prosecution witness are that on the 2nd

December 2017, whilst DJ was on an errand for her mother, she came across the

accused who is the father of a boy(name withheld). The accused told DJ to tell the boy

[1] The accused, stands charged with one count of sexual assault contrary to

section 130(1) read with section J30(2)(d) and 130(3)(b) of the Penal Code. The

particulars of the offence are that on the 2nd December 2017, at Les Mamelles, Mahe,

the accused who is 45 years old, sexually assaulted DJ (name withheld) a minor girl

aged II years old by penetrating her vagina for sexual purpose.

DODIN J

RULING

The Prosecution has adduced sufficient evidence to establish a prima facie case against theaccused. The submission of no case to answer is dismissed. The accused is called upon to makehis defence accordingly.

ORDER

Delivered:

Heard:

Offence of sexual assault contrary to section 130(1) read with section130(2)(d) and 130(3)(b) of the Penal Code - child aged II years old -submission of no case to answer.22 March, 6,13,20 May, 13 September, 25 November 2019, 16January,and 10 February 2020.3 April 2020.

Summary:

Neutral Citation: R v (CR7312017) [2020] SCSC~~:s.-ApriI2020).Before: Dodin J

D S(rep. by Clifford Andre)

versus

THE REPUBLIC(rep. by Evelyne Almeida)

Reportable[2020] SCSC .M2CR 73/2017

SUPREME COURT OF SEYCHELLES

[5] Learned counsel for the prosecution submitted that the prosecution has established a

prima facie case against the accused in that all the elements of the offence have been

[4] At the close of the case for the prosecution learned counsel for the accused moved the

Court to rule that the accused has no case to answer considering that the evidence

adduced by the prosecution, particularly the virtual complainant's (OJ) had not been

corroborated at all. There is no supporting evidence that it was the accused who caused

the breach of OJ' hymen or how she contracted the sexually transmitted disease (STO)

because the prosecution did not adduce any evidence to establish that OJ did not have

the STO before the date of the alleged incident and that the accused had the STDs on

the date of the incident. Learned counsel further submitted that OJ's version of what

happened on the 2nd December 2017 was not corroborated or supported by any other

evidence and the boy who allegedly accompanied OJ was never called to testify.

Learned counsel submitted that the complainant (OJ) was not telling the truth before

the Court as she gave different versions of the same events. Learned counsel moved the

Court to find that the accused has no case to answer and to acquit the accused

accordingly.

[3] After the incident, OJ went home but did not tell anyone what had happened until she

fell ill and noticed boils around her private parts. She then told her mother who took

her to the police and to hospital. OJ was diagnosed with genital herpes and was admitted

in paediatric ward for 7 days for treatment. The accused was also tested for sexually

transmitted diseases and diagnosed with herpes virus I and 2 as well as Chlamydia. At

the time definitive integrity of OJ's hymen could not be established due to the lesions

and swollen state of her vagina. OJ maintained in her testimony that she had never had

any sexual encounter other than with the accused on the 2nd December 2017.

to come and get his money. After returning home OJ informed the boy of his father's

(accused) message and the boy asked her to accompany him to his father's (accused)

place. Arriving there the accused called OJ into a room whilst the boy was watching

movies in another room. Reluctantly, OJ went into the room where the accused was and

there the accused removed her clothes despite her objection and after also removing his

shorts and boxer he pressed her on the bed and had sexual intercourse with her for about

15 minutes. After it was over he gave OJ and the boy a lollipop each and one hundred

rupees to share by 50 rupees each.

"How then should a judge approach a submission of 'no case '?If there has been no evidence that the crime alleged has been committedby the defendant, there is no difficulty. Thejudge will of course stop thecase. The difficulty arises where there is some evidence but it is of atenuous character, for example, because of inherent weakness orvagueness or because it is inconsistent with other evidence. Where thejudge comes to the conclusion that the prosecution evidence, taken at itshighest, is such that ajury properly directed could not properly convictupon it, it is his duty, upon a submission being made, to stop the case.Where however the prosecution evidence is such that its strength orweakness depends on the view to be taken of a witness' reliability, orother matters which are generally speaking within the province of the

[7] In the case of R v Galbraith [1981 1 1 WLR 1039 Lord Lane CJ had this to say in

respect of a submission of no case to answer:

II. Whether the available evidence has been so compromised by thedefence or by serious inconsistencies in the prosecution'stestimonies that such evidence taken as its highest would notproperly secure a conviction.

I. Whether all the elements of the offence have been established bythe prosecution and therefore a prima facie case against anaccused has been established; or

[6] When determining whether an accused person has a case to answer the Court has to

make an assessment of all the evidence adduced by the prosecution and make a

determination on:

no issue with about whether OJ's hymen had been breached or not because the same

could not be examined due to the lesions and swollen state of OJ's vagina. As to the

STO, leaned counsel submitted that the medical evidence established clearly that herpes

had an incubation period of up to 10 days and DJ was examined 8 days after the

incident. According to the evidence of Doctor Morel, the accused had herpes infection

at the time although he was not showing acute physical symptoms. Learned counsel

further submitted that the Court can convict on the uncorroborated evidence of a victim

after warning itself of the danger of such a conviction. Learned counsel moved the

Court to find that a prima facie case has been established by the prosecution and

therefore the submission of no case to answer should be dismissed.

proved. Learned counsel submitted that it is unlikely that an II year old child would

have the capability to fabricate evidence and that any misunderstandings during cross­

examination were cleared in re-examination. Learned counsel submitted that there was

[I I] The evidence presented by the prosecution is consistent in that the victim, DJ, was 11

years old at the time. She had been infected by a STD namely herpes within the previous

10 days of her medical diagnosis. The accused was at the relevant time a carrier of

herpes virus 1 and 2 which although was asymptomatic could be transmitted by sexual

intercourse. Although the son of the accused was not called as a witness, DJ testified

that she went with the boy to his father on the 2nd December 2017 and that the accused

[10] Where the available evidence has been so compromised by the defence or by serious

inconsistencies in the prosecution's testimonies, the Court must determine whether the

evidence adduced taken as its highest would not properly secure a conviction. If the

Court determines that in such a circumstance a conviction could not be secured, the

submission of no case to answer would also succeed. The question to be asked in this

case is whether at the close of the case for the prosecution, the prosecution has presented

sufficient evidence upon which a reasonable court, acting carefully, might convict the

accused. See also the cases of Green v. R [19721 No 6, R v. Stiven [19711 No 9 and R

v. Olsen [19731 No 5.

unconvincing, the matter is better left for the end of the trial where the evidence would

be weighed and the Court would reach a verdict after assessing the witnesses'

credibility together with all available evidence.

or must have committed the offence but for some reason such evidence seems

[9] Where the prosecution's evidence fails to address any particular element of the offence

at all, no conviction could possibly ensue and the Court should allow the application of

no case to succeed. Where there is some evidence to show that the accused committed

[8] A submission of no case to answer would be upheld where there was no evidence that

the accused committed the offence charged or any other offence of which he might be

convicted thereon. The test to be applied to determine the sufficiency of the evidence

is not whether there was evidence upon which a reasonable court should convict but

whether the evidence presented by the prosecution is of such a nature that a reasonable

tribunal offact, properly instructed, might convict the accused.

jury and where on one possible view of the facts there is evidence uponwhich a jury could properly come to the conclusion that the defendantis guilty, then the judge should allow the matter to be tried by the jury... There will of course, as always in this branch of the law, be borderlinecases. They can safely be left to the discretion 0.1thejudge. "

Dodin J

Signed, dated and delivered at lie du Port on 3 April 2020.

[13] Consequently I find that the accused has a case to answer. The submission of no case

to answer therefore fails and is dismissed accordingly. The accused is called upon to

make his defence.

[12] The Court can certainly convict without requiring corroboration in a case of sexual

assault if the evidence of the victim/complainant is cogent and has not been discredited

by cross-examination. However at this stage it is not a question of conviction but

whether there is sufficient evidence establishing a prima facie case against the accused.

By going on the evidence adduced particularly the evidence of DJ, Doctor Balesteros

and Doctor Morel, I find that the evidence adduced has established a prima facie case

that the accused had the opportunity on the day in question to sexually assault the

complainant and infected her with the STD.

called her into a separate room whilst the boy was watching movies in another room.

In any event, the defence can call the boy to testify if his evidence would be of

assistance to the accused's defence and the Court.