HUNGWE J: The appellant was convicted by the Regional
Magistrate, Eastern Division, of rape as defined in s 65 of the Criminal Law
(Codification and Reform) Act, [Cap 9:23] after a contested trial. He
was, on 7 December 2011, sentenced to 14 years imprisonment of which 4 years were
suspended for 5 years on the usual condition. Dissatisfied with both his
conviction and sentence, he now appeals against both conviction and sentence.
The facts upon which he was found guilty of the crime of rape in the court a
quo can be summarised as follows.
Sometime in December 2006, the complainant and her younger
brother stayed at the appellant's residence after they lost their mother.
Appellant, a priest with the Anglican Church, was a family friend of the
complainant's deceased mother. Around 1900 hours on an unspecified day but
during the month of December 2006, complainant was playing outside the
residence with other children when the appellant called her into the house. He
took her into the spare bedroom where he lowered his pair of trousers, laid her
on the bed and ravished her. He warned her against telling anyone of the event.
She did not. Around the same time the following day he repeated the same
predatory behaviour by calling her from where she was playing with other
children, took her into the spare bedroom. He removed her skirt and pants,
lowered his pair of trousers and again ravished her.
In convicting the appellant, the learned magistrate
accepted the evidence of the complainant and rejected that of the appellant and
his witnesses. He analysed the complainant's evidence, her ability to withstand
gruelling cross-examination by counsel for the appellant during the trial and
concluded that she was worthy of belief. He found corroboration of her evidence
in the evidence of Mrs Musara to who complainant had disclosed the abuse.
In his notice and grounds of appeal it appears that the
appellant takes issue with the general findings of facts by the learned trial
magistrate. I say that “it appears” because the grounds set out in the notice
of appeal are incoherent and, as such, do not “clearly and specifically” set
out the grounds of appeal as required by Rule 22(1) of Supreme Court
(Magistrates Courts) (Criminal Appeals) Rules, S.I. 504 of 1979 (“the Rules”).
As an example I recite the first and second grounds verbatim:
“1. The learned Magistrate in court a quo erred in
conceding that the State proved beyond reasonable doubt when it is clear from
the evidence that there are so many possibilities, in particular:
While the doctor, who testified, said that there was
definite penetration, he could not
tell when the penetration took place but the notches
were not fresh. The alleged abuse
could have taken place prior to 2006 or even after
2006.
Apart from sexual intercourse there are other factors which
can stretch the hymen e.g. a finger or a solid object. This applies with more
force considering that the complainant did not see the Appellant inserting his
penis into her vagina.
Any other person other than the appellant could have
perpetrated the abuse. In particular, the complainant's father, Kudakwashe
Fred, was considered a suspect.
2. For the stronger reason, the court did not
appreciate that the mere failure of
the
accused to win the faith of the bench does not disqualify him from an
acquittal. Proof beyond reasonable doubt demands more than that a complainant
should be believed and the Accused disbelieved. It demands that a defence
succeeds whenever it appears reasonably possible that it might be true. This
insistence upon objectivity far transcends mere considerations of subjective
persuasion a judicial officer may entertain towards any evidence. The
administration of justice would otherwise be held hostage of the plausible
rogue whose insincere but convincing blandishments must prevail over the
stammering protestations of the truth by the defendant, frightened or confused
victim of false incrimination. (sic)”
Such grounds of appeal do not make it clear what the basis
of dissatisfaction is, that is, whether it is an error of law or one of fact or
both or a misdirection on the facts or of both facts and law.
The importance of complying with the requirements of the
rules cannot be over-emphasised. Lack of compliance may result in the court
regarding such notice and grounds of appeal a nullity. See R v Emerson
1957 R & N 743; 1958(1) SA 442; S v Jack 1990 (2)
ZLR166(SC); S v Ncube 1990 (2) ZLR 303.
Rule 22(1) of the Rules reads:
"The appellant shall, within ten days of the passing
of sentence, or, where a request has been made in terms of sub-rule (1) of rule
3 of Order IV of the Magistrates Courts (Criminal) Rules, 1966, within seven
days of the receipt of the judgment or statement referred to in that rule,
whichever is the later, note his appeal by lodging with the clerk of the court
a notice in duplicate setting out clearly and specifically the grounds of the
appeal..."
As can be seen from r 22(1) the above grounds of appeal do
not comply with the Rules of this court. The notice of appeal does not set
"out clearly and specifically the grounds of the appeal".
That which the appellant is attacking in the judgment of
the convicting court must be set out in the manner laid down by the Rule. A
generalisation such as set out in the appellant's grounds of appeal against
conviction is not good enough. It does not point out where the magistrate erred
or misdirected himself. See Emerson & Ors (supra); Du
Toit v R 1958 R&N 177 (SR).
A better understanding of what is required can be gleaned
from Rule 51 (7) of the Magistrates Courts' Act 32 of 1944 (South Africa).
RABIE JA (as he then was) in Kilian v Messenger of the Court,
Uitenhage 1980 (1) SA 808 (AD) stated the Rule's requirement in an
extract taken from the official translation of the judgment at 234 (p 815 of
the Report) thus:
"Rule 51(7) provides, in so far as it is relevant, that:
'A notice of appeal or cross-appeal shall state-
(a) ...
(b)
the grounds of appeal, specifying the findings of fact or rulings of law
appealed against.'
Such a notice requires a precise statement of the points on
which the appellant relies, so that the respondent may know on which points he
must prepare a reply, and so that the Court may know on which points a decision
is required. See e.g. Himunchol v Moharom 1947 (4) SA 778 (N) at 780; Harvey
v Brown 1964 (3) SA 381 (E) at 383. The magistrate must also be
properly informed of the grounds on which the appeal is based, so that he can
comply with the duties imposed on him by rule 51(8). Para 1 of the notice of
appeal merely contains an allegation that the magistrate erred in making the
order in question, without stating in what respect he erred, and it cannot be
said that it contains a ground of appeal as required by Rule 51(7)."
Although Rule 51(7) of the Magistrates Courts' Act 31 of
1944 (South Africa) deals with civil proceedings it, in as far as appeals are
concerned, is relevant to criminal appeals. There must be stated in the Notice
of Appeal "a precise statement of the points on which the appellant
relies." A statement that the magistrate "erred in fact and in law in
holding that the State had proved beyond reasonable doubt when it is clear from
the evidence that there are so many possibilities” is not precise enough.
As I have pointed out above, it does not inform the respondent or the
magistrate what it is that is being attacked. The respondent is required to
prepare his answer to the allegations made in the Notice of Appeal. Rule 23(1)
requires a magistrate to reply to the Notice of Appeal. He must set out in a
statement his reasons for judgment and sentence and these reasons must be a
reply to the grounds on which the appeal is based.
The response by the magistrate enables the appellant to
amend his grounds of appeal should he wish to do so. These Rules are for the
benefit of the appellant, the respondent and the court. See S v McNab
1986 (2) ZLR 280 (SC).
At the hearing MrUriri, for the appellant, sought
to amend the grounds of appeal by raising an additional ground framed as
follows:
“9A. The respondent is issue-estopped, in
the absence of an application to withdraw an
admission, from contending to the contrary of concessions made in the bail
cause
in B1354/11, namely that:-
9A.1 It was
imperative therefore that the trial court should have treated the victim's
evidence carefully.
9B.2 Respondent
[the State] does not find comfort in the evidence of the complainant. On p 2 of
the transcribed record the complainant talks of having been effectively
penetrated into her vagina by the applicant once on two consecutive days. She
would thereafter go and bath and later join other children to play.
9B.3 The
complainant, who had opportunities to make a report, did not make a report at
the earliest possible opportunity and “one cannot expect her at that age not to
know that what had been done on her was morally wrong and criminal.
9B. 4 Given her age,
it is strange that no tell-tale signs of abuse were observed on her by the
adults who were present and even the other children she was playing with.
............................................................................................”
In essence the additional ground of appeal is that since
the respondent made submissions which amounted to concessions indicative of
lack of support of the appellant's conviction, the respondent was bound by that
concession and as such the matter the matter must be dealt with in terms of s
35 of the High Court Act, [Cap 7:06].
I need not point out again that I find this way of
drafting grounds of appeal incompatible with the requirement of the Rules of
Court in that it does not set out “clearly and specifically” the basis of
attacking the conviction nor does it set out the basis of impugning the
conclusions of law by the magistrate. I will however proceed to deal with the
appeal as if they complied with the Rules.
The heads of argument filed on appellant's behalf are bulky
and extensive. However the content of the heads does not match the volume upon
which the content is spread. Without wishing to place any limitation upon the
manner in which counsel should prepare heads of argument, it is considered
desirable that the first paragraph of the heads should state clearly and
specifically the submissions upon which reliance will be placed. In the
succeeding paragraphs the separate submissions should be dealt with seriatim;
there should, of course, be a reference in these paragraphs to the relevant
parts of the record giving the relevant page and line numbers, thus: 9/16 - 30,
and where the record consists of more than one volume, thus: 3/29/16 - 30;
there should also be a reference to the authorities upon which reliance is
placed.
I deal first with the additional grounds of appeal advanced
at the hearing of the appeal as these present an interesting submission from
counsel.
The doctrine of issue estoppel has been embraced by the
Supreme Court as part of the law of Zimbabwe under the general rule of public
policy that there should be finality in litigation. The doctrine prevents a
party to civil proceedings, except in certain circumstances, from raising a
contention of fact or of legal consequences of facts, where he raised the
contention as an essential element of his case in previous civil proceedings
between the same parties or their predecessors in title, and the contention was
found by the Court, in a final judgment in those proceedings, to be incorrect,
unless further material which is relevant to the correctness or incorrectness
of the assertion, and could not, by reasonable diligence have been adduced by
that party in the previous proceedings has since become available to him.
See Willowvale Mazda Motor Industry (Pvt) Ltd v SunshineRent-a-Car
(Pvt) Ltd 1996 (1) ZLR 415 (SC); Galante v Galante (2)
2002 (1) ZLR 144 (HC).
English law recognizes that the same issue should not be
open to successive determinations: nemo debit bis vexari pro una et eadem
causa and interest rei publicae ut finis litium sit (“no one
should be disturbed twice in the same matter” and “it is in the public interest
that law suits should have an end”). These maxims underpin the doctrine
of res judicata, which has two main applications, “cause of action
estoppel” and “issue estoppel”. The House of Lords in Arnoldv National
Westminister Bank p.l.c. (1991) 2 W.L.R. 1177 was
concerned only with the latter species of estoppel, but Lord Keith took the
trouble to define both in the following passages (at 1183, 1184:
“Cause of action estoppels arises when a the cause of
action in the later proceedings is identical to that in the earlier
proceedings, the latter having been between the same parties or their privies
and having involved the same subject matter.....(The) bar is absolute in
relation to all points decided unless fraud or collusion is alleged.....
Issue estoppel may arise when a particular issue forming a necessary ingredient
in a cause of action has been litigated and decided and in subsequent
proceedings between the same parties involving a different cause of action to
which the same issue is relevant one of the parties seeks to re-open that
issue.”
Cause of action estoppel binds more tightly than issue
estoppel, since the latter is relaxed where special circumstances require
(which are not confined to fraud and collusion). The House of Lords,
faced with the question whether a change in case law might justify a departure
from issue estoppel, decided to endorse a new exception.
There are two forms of the doctrine of res judicata: cause
of action estoppel and issue estoppel. Both operate where the court has
adjudicated the cause of action between two or more parties and one of them
seeks to re-litigate on the same facts. Where the cause of action is the
same, cause of action estoppel operates to prevent any litigation of any matter
that was raised or should have been raised in the prior proceeding. Where the
cause of action in the two proceedings is different, issue estoppel operates to
prevent any litigation of any issue determined in the prior proceedings.
LORD GUESTinCarl-Zeiss Stifting v Rayner and
Keeler Ltd [1966] 2 AllE.R.536 @ p 551stated the requirements of issue
estoppel as:
“.......(1) that the same question has been decided; (2)
that the judicial decision which is said to create the estoppel was final; and,
(3) that the parties to the judicial decision or their privies were the same
persons as the parties to the proceedings in which the estoppel is raised or
their privies.....”
In Rv Hagan [1974] 2 All ER 142 Justice
Hogan offered a definition of issue estoppel thus:
“Issue estoppel can be said to exist when there is a
judicial establishment of a proposition of law or facts between parties to
earlier litigation and when the same question arises in later litigation
between the same parties. In the later litigation the established proposition
is treated as conclusive between those parties.”
It is clear that issue estoppel is related to but differs
from res judicata. A plea of res judicata asserts that the
cause of action is the same in both the prior and the current proceeding, so
that the current proceeding should not continue, whereas issue estoppel may be
raised where the causes of action in the two proceedings are different, but the
same particular factual issue has arisen in both.
In criminal proceedings, the principles of res
judicata are given effect through the pleas of autrefois acq'uit and
autrefois convict. Where those pleas are not available, issue estoppel
arises where the accused has been finally acquitted of a criminal offence
arising out of certain conduct, is charged with a different offence, and for
some reason the facts surrounding the earlier charge become relevant. Issue
estoppel "prevents the Crown from calling into question issues determined
in the accused's favour in an earlier proceeding". See Martin L Friedland,
Double Jeopardy (Oxford: Claredon Press, 1969), p 117.
It seems settled now in English law that an accused can
invoke the principle of “issue estoppel” against the prosecution. This is the
view expressed by Lord MORRIS, Lord HUDSON and Lord PEARCE in Connolly
vDirector of Public Prosecutions [1964] 2 All ER 40: 1964 A.C.
1254. The position in Zimbabwe seems to be that the plea of issue estoppel in
criminal law may only be raised by the State against the accused in a criminal
trial. However that common law position has been severely curtailed by
statutory limitations placed on that right by such provisions as section 290
and 324 of the Criminal Procedure and Evidence Act [Cap 9:07].
S v Gabriel 1971 (1) SA 646 (RAD); RvKriel 1939 CPD 221.
In light of the foregoing, I respectfully find myself in
disagreement with the contention that the doctrine of issue estoppel is of
application in appeal matters as contented by Mr Uriri. I hold this view
on the basis that the pleas of autrefois acq'uit and autrefois
convict sufficiently deal with the situations for which at common law, the
doctrine of res judicata would have been applicable in civil matters.
In any event, there is ample authority for the proposition that statutory
provisions in procedural law have filled the gap which is dealt with by the
common law doctrine of issue estoppel in England.
Further, applying the civil cases requirements of
issue estoppel viz;
(i) that the same question has been decided;
(ii) that the judicial decision which is said to create the
estoppel was final, and
(iii) that the parties to the
judicial decision or their privies were the same persons as the
parties to the proceedings in which the estoppel is raised or their privies.
The second and third elements are
unproblematic: if the accused was previously acquitted
and either the acquittal was upheld on appeal or the
State's appeal rights expired, the acquittal is final. In casu the
parties - the State and the particular accused person (now the appellant) – are
the same. But the first requirement, whether the factual issue is the same and,
indeed, whether it has been decided, is often difficult to determine. I
observe, however, that counsel for the appellant attached the State submissions
in the bail application hearing rather than that court's determination. No
statutory rule of court nor (was) any rule of evidence was relied upon to
attach the submissions by State counsel in the bail application. The filing of
the submissions is irregular in the extreme as they fall foul of the rules of
court. In any event as I have respectfully demonstrated, no issue
relevant to the present appeal came up for decision in the application for bail
nor was any such issue finally determined. The determination was not on the
same issue for which this appeal was lodged but on a different issue, that is,
whether the appellant is a suitable candidate for bail.
It was contented by Mr Uriri, for the appellant,
that because the respondent had taken a considered view on the guilt of the
appellant, which he expressed before a judicial forum, therefore the respondent
in the present matter, the Attorney-General, cannot now put forward a different
view of the same facts. With respect, I disagree with this contention. Assuming
for a moment that the doctrine exists in criminal law under the guise of autrefois
acquit and autrefois convict my respectful view is that the issue
for determination in casu, is different from the issue for
determination before the application for bail. As pointed out in the article by
Friedland, the doctrine applies in order to prevent the State from calling
intoquestion issues determined in the accused's favour in an earlier
proceeding. The doctrine operates as a shield, during trial, rather than a
sword, so to speak. It would, as such, be of limited application in an appeal.
The reason for the limited application of the doctrine in appeals ought to be
understood in the context thatan appeal is confined to the findings of the
trial court rather than some other post-trial opinions expressed by different
officers under different proceedings. As the question of bail was not before
the trial court, the trial court, therefore, made no determination regarding
bail.
The issue before the bail application was whether the
appellant was entitled to bail pending appeal. Whatever submissions the
respondent made in the bail application, the issues before that forum were far
removed from issues which are now squarely placed before this court as set out
in the grounds of appeal. Presently, the issue before this court is whether
appellant was properly convicted and sentenced. The argument by counsel for the
appellant is, if I may put it rather crudely, that where the Attorney-General
(through his representative) took the view that there are prospects of success
on appeal for one reason or another, then he cannot be heard to argue in favour
of a finding that the appellant was properly convicted in the appeal hearing.
The stronger argument against the appellant under this head is that no
determination of his guilt or innocence was ever made by the court in the bail
application hearing.
The additional ground of appeal is therefore for these
reasons, dismissed.
I now turn to consider the original grounds of appeal.
These grounds boil down to taking issue with the treatment
of the single witness evidence and whether the court a quo unduly
accepted the evidence of a child without requiring further safeguards for such
acceptance. MrUriri, for the appellant, did not dwell too much on
these grounds in his oral submissions before us having expended his energies on
the novel ground which I have disposed of above. He however emphasised that the
conviction is not safe for the reason that the complainant had not confided the
abuse to the nearest person she was reasonably expected to. Otherwise he abided
by his extensive heads of argument which he prepared and filed on appellant's
behalf.
It is permissible for a court to convict, in a sexual case,
even if there is no corroboration of the complainant, but only where the merits
of the complainant and the demerits of the accused are without question. On the
other hand, corroboration will not secure a conviction unless the court is in
any event satisfied that the complainant is credible. In the case of young
children, the degree of corroboration or other factors required to reduce the
danger of relying on the child's evidence will vary with the age of the child
and other circumstances of the case. The court must, in all cases, be satisfied
that the danger of false incrimination has been removed before it may convict.
(See:S v Madzomba 1999 (2) ZLR 214 (HC)). The present
complainant viewed the appellant with respect, firstly by virtue of the trust
reposed in him by her own parents, and, secondly by virtue of his position in
society. As a result of threats offered to her soon after each incident of
abuse, she had not reported the abuse to anyone. There is nothing abnormal in
such conduct by a child of ten years. The court a quo correctly in my view,
properly assessed the difficulties put in her way by the abuse at the time. It
would have been better, of course, had she reported the abuse earlier, as
evidence would have been gathered whilst still fresh, and the attendant recall
processes would have worked more efficiently. This however does not detract
from the fact that she was able to recall the incidents during which she
suffered abuse at the hands of the appellant. There is no suggestion that she
could have mistaken the appellant for someone else. Nor was any factual basis
laid for the allegation that her father was a suspect.
The correct approach in determining the guilt of an
accused is, as pointed out in S vChabalala 2003(1) SACR 134
(SCA) @ p139-140, to weigh up all the elements which point towards the guilt of
the accused against all that are indicative of his innocence, taking proper
account of inherent strengths and weaknesses, probabilities and improbabilities
on both sides and, having done so, to decide whether the balance weighs so
heavily in favour of the State as to exclude any reasonable doubt about the accused's
guilt. See also S v Francis 1991 (1) SACR 198 (A).
There is no rule of thumb test or formula to apply when it
comes to a consideration of the credibility of the single witness (see the
remarks of RUMPFF JA inS v Webber 1971 (3) SA754 (A) at 758).
The trial judge will weigh his evidence, will consider its merits and demerits
and, having done so, will decide whether it is trustworthy and whether, despite
the fact that there are shortcomings or defects or contradictions in the
testimony, he is satisfied that the truth has been told. The cautionary rule
referred to by DE VILLIERS JP in 1932 may be a guide to a right decision but it
does not mean "that the appeal must succeed if any criticism, however
slender, of the witnesses' evidence were well founded"
It has been said more than once that the exercise of
caution must not be allowed to displace the exercise of common sense.
In recent times it has been held that the cautionary rule
relating to witnesses in matters with a sexual connotation must be dispensed
with. (S v M 1999 (2) SACR 548 (SCA)).
In S v M (supra) the court said the
following:
“Prior to the decision in S
v Jackson 1998 (1) SACR 470 (SCA), it had long been accepted that
criminal cases of a sexual nature fell into a special category. It was said
that there was an 'inherent danger' in relying upon the unconfirmed testimony
of a complainant in a sexual case. This resulted in the courts adopting a
cautionary rule of practice. The rule required -
(a)
the recognition of the 'inherent danger'; and
(b)
the existence of some safeguard that reduced the risk of a wrong conviction,
such as corroboration of the complainant in a respect implicating the accused,
or the accused's failure to give evidence or his obvious untruthfulness”.
(See S v Snyman 1968 (2) SA 582 (A) at
585C - H)
In S v Jackson(supra) it
was pointed out that the application of the cautionary rule to sexual assault
cases was based on irrational and outdated perceptions. Although the evidence
in a particular case might call for a cautionary approach, this, it was
emphasised in the judgment, was not a general rule: the State was simply
obliged to prove the accused's guilt beyond reasonable doubt. The factors which
motivated this Court to dispense with the cautionary rule in sexual assault
cases apply, in my view, with equal force to all cases in which an act of a
sexual nature is an element.
In S v Banana 2000 (1) ZLR
607(SC)following the lead set in S v Jackson (supra)
the court held that the cautionary rule in sexual cases is based on an
irrational and outdated perception, and has outlived its usefulness. It is no
longer warranted to rely on the cautionary rule of practice in sexual cases.
Despite the abandonment of the cautionary rule, however, the courts must still
consider carefully the nature and circumstances of alleged sexual offences.
See also S v K 2000 (4) BCLR (NmS).
It is trite law that the evidence of a single witness must
be approached with caution and its merits weighed against any factors that
militate against its credibility. A common sense approach must be adopted.
Where the evidence of a single witness is corroborated in any way that tends to
indicate that the whole story was not concocted, the caution may be overcome,
as it may be by any other feature that increases the confidence of the court in
the reliability of the single witness. Corroboration is not, however,
essential.
The classic statement on the principle of corroboration
comes from a civil case:
"Corroboration may be by
facts and circumstances proved by other evidence than that of a single witness
who is to be corroborated. There is sufficient corroboration if the facts and
circumstances proved are not only consistent with the evidence of the single
witness, but more consistent with it than with any competing account of the
events spoken to by him. Accordingly, if the facts and circumstances proved by
other witnesses fit in to his narrative so as to make it the most probable
account of the events, the requirements of legal proof are satisfied". O'Hara
v Central SMT Co 1941 SC 363, LP (Normand) at 379
The requirement for corroboration was re-stated more
recently inFox v HMAdvocate1998 JC 94, LJG (Rodger) at
100-101in the following, rather different, terms:
"Corroborative evidence is…… evidence which supports
or confirms the direct evidence of a witness….. the starting-point is that the
jury have accepted the evidence of the direct witness as credible and reliable.
The law requires that, even when they have reached that stage, they must still
find confirmation of the direct evidence from other independent direct or
circumstantial evidence…… the evidence is properly described as being
corroborative because of its relation to the direct evidence: it is
corroborative because it confirms or supports the direct evidence. The starting
point is the direct evidence. So long as the circumstantial evidence is
independent and confirms or supports the direct evidence on the crucial facts,
it provides corroboration and the requirements of legal proof are met.".
Evidence can be corroborative even if, taken on its own, it
does not point conclusively towards a suspect's guilt. So, in a case where
identification is in issue, a positive identification by one witness may be
corroborated by a resemblance identification by another. Corroboration is about
the number of witnesses available to prove facts. It is not about number of
facts available to prove guilt. Thus, a single circumstance, such as the
finding of a fingerprint in a particular place, may be sufficient to prove identity
(a crucial fact) provided that the finding of the print and it being from the
accused's finger are each spoken to by more than one witness. Alternatively,
two separate circumstances, each spoken to by separate witnesses, may be
sufficient if both point towards guilt.
In Nivrutti Pandurang Kokate & Ors v State
of Maharashtra, AIR 2008 SC 1460, the Indian Supreme Court dealing with
the evidence of a child witness, observed thus:
“The decision on the question whether the child witness has
sufficient intelligence primarily rests with the trial Judge who notices his
manners, his apparent possession or lack of intelligence, and the said Judge
may resort to any examination which will tend to disclose his capacity and
intelligence as well as his understanding of the obligation of an oath. The
decision of the trial court may, however, be disturbed by the higher court if
from what is preserved in the records, it is clear that his conclusion was
erroneous. This precaution is necessary because child witnesses are amenable to
tutoring and often live in a world of make-believe. Though it is an established
principle that child witnesses are dangerous witnesses as they are pliable and
liable to be influenced easily, shaped and moulded, but it is also an accepted
norm that if after careful scrutiny of their evidence the court comes to the
conclusion that there is an impress of truth in it, there is no obstacle in the
way of accepting the evidence of a child witness.”
In State of Uttah Pradesh v Krishna Master
& Ors, AIR 2010 SC 3071, the Indian Supreme Court held that there is
no principle of law that it is inconceivable that a child of tender age would
not be able to recapitulate the facts in his memory. A child is always
receptive to abnormal events which take place in his life and would never
forget those events for the rest of his life. The child may be able to
recapitulate carefully and exactly when asked about the same in the future. In
case the child explains the relevant events of the crime without improvements
or embellishments, and the same inspire confidence of the Court, his deposition
does not require any corroboration whatsoever. The child at a tender age is
incapable of having any malice or ill will against any person. Therefore, there
must be something on record to satisfy the Court that something had gone wrong
between the date of incident and recording of the evidence of the child witness
due to which the witness wanted to implicate the accused falsely in a case of a
serious nature. Had such incident occurred, there is no reason in logic why a
full blown trial where the appellant was represented by counsel would have
failed to uncover it. These observations, in my view apply to the present with
equal force.
The court a quo had the opportunity to evaluate the issues
of credibility with the able assistance of counsel during trial. The
complainant was subjected to thorough cross-examination. The trial court was
satisfied that despite certain unsatisfactory features of her evidence which
did not go to the gravamen of her evidence, the complainant was worthy of
belief. Such a finding ought not to be lightly overturned unless there are
compelling reasons on the record justifying it. I am unable to say that such
compelling reasons exist in this case. The magistrate carefully considered the
totality of the evidence against the appellant before rejecting appellant's
protestations of innocence as false. I find no fault in his reasoning.
As against sentence, the appellant is a church pastor and a
family friend of the complainant's family. His family volunteered to look after
the complainant and her younger sibling out of the goodness of their hearts as
in a pastor ministering his flock. I find nothing exaggerated in the language
used to describe the treacherous behaviour displayed by the appellant when he
changed from being the good shepherd to being the rapist that he was found to
be by the court a quo. There is nothing unusual in the sentence
imposed on the appellant. The Criminal Law (Codification and Reform) Act [Cap
9:23] permits the imposition of the sentence which the magistrate imposed.
There is no allegation that in assessing the appropriate sentence, the
magistrate took into account factors which he was not entitled to take into
account or that he had disregarded those factors which he was obliged by law to
take into account. The sentence imposed sends the right message to child
rapists in particular and to rapists in general that they should not expect to
be treated with kid gloves when convicted of such heinous crimes. Those persons
who commit this type of crime should not expect leniency when their heinous
crimes finally catch up with them. Society expects that those who stand in
loco parentis (to) take their roles seriously and protect, rather than
abuse, those children in their care and custody. The sentence imposed in this
case is in line with the usual sentences for this type of crime. In the result
therefore I make the following order:
“The appeal against both conviction and sentence be and is
hereby dismissed.”
MAVANGIRA J agrees.
Kantor & Immerman, legal practitioners for the
appellant
Attorney-General's Office,
legal practitioners for the respondent
