Criminal
Appeal
HUNGWE
J: This
is an appeal from the Regional Magistrate's Court, Bindura. The
appellant was convicted of rape as defined in section 65 of the
Criminal Law (Codification & Reform) Act, [Chapter
9:23].
He was sentenced to 20 years imprisonment. He appeals against both
conviction and sentence. The appellant raises six grounds of appeal
against conviction and a further four grounds against sentence.
The
first ground of appeal is that “the court a
quo
misdirected itself in failing to give a conscious consideration of
the likely risk of false incrimination and ensure that false
incrimination is excluded before exposing its complete confidence in
the complainant.”
The
second ground put forward on appellant's behalf is that the court
“erred in failing to discern that the version given by the
complainant was fabricated by a spiteful young child and her
custodian with a hidden malice for revenge after complainant had been
assaulted by appellant's wife on the day in question.”
The
third ground recites that “the learned magistrate erred and
misdirected himself in holding that the bruises on complainant's
labia were caused by the accused yet the tendered medical report did
not rule out any previous genital sexual experience (sic)
nor state whether the lesions were fresh or healed.”
The
fourth ground states that the “the learned magistrate fell into
error by being moved by a subjective and unduly sympathetic
acceptance of the testimony of this eleven year old girl who was
healthy and walked properly with a normal emotional state and who did
not show any signs of distress and shock a day after the alleged rape
upon examination thereby failed to discern that that version could
not establish beyond reasonable doubt the guilt of the accused.”
In
the fifth ground it is said that “the court a
quo
erred in failing to give due regard to the need for special caution
in scrutinizing and weighing the evidence of a young complainant in a
sexual case especially where the accused was unrepresented.”
Finally,
it is said that “the court a quo misdirected itself in failing to
call for the evidence of the examining medical officer to support his
findings of legal penetration in a matter where the appellant
insisted that he did not rape the complainant and the medical report
indicating that no penetration was noted.”
The
trial court convicted the appellant after a contested trial.
The
State alleged that the rape occurred under the following
circumstances. On the day in question the complainant was coming from
school in the afternoon. Her way passed through the appellant's
homestead. When she got there the appellant lured her into his
kitchen hut with buns and mangoes. Once inside, the appellant grabbed
her, removed her pants, laid her on a bench and raped her once. After
this act, the complainant dressed herself up but soon thereafter, the
appellant's wife entered the hut. After asking the complainant what
she wanted, the appellant's wife slapped the complainant twice.
Complainant left this homestead. She reported the rape that same day
to her aunt who, in turn, alerted the complainant's parents. The
next day, 12 February 2014, a report of rape was made to the police
leading to the appellant's arrest. In the medical examination
report compiled on the same day, the nurse noted that there were
bruises on the complainant's private parts. He also noted that
there was no penetration noted.
In
his judgment the trial magistrate remarked that the complainant gave
an impressive account of the events leading to the allegations of
rape against the appellant in a manner that hamstrung the appellant
from meaningfully challenging her during cross-examination. Indeed, a
reading of her evidence on the record justifies this conclusion. The
aunt, Sarah Mbauya, who is the first responsible person to whom the
complainant made a report of rape, gave evidence which in essence,
corroborated to detail the nature of the report that complainant gave
to her. In the end, the trial court rejected as false the bare denial
given by the appellant in his defence.
In
our view, the dangers of false incrimination were remote in this
matter. First, the appellant himself does not say he was falsely
implicated in the offence. His defence is that he did not do anything
to the complainant when she came round to his homestead. He states
that complainant had knocked and entered and sat on the bench where
she remained until his wife came from church. He says his wife
insulted the complainant and she left weeping. The appellant under
cross-examination says that the complainant may have been influenced
to lay these charges against him. He does not say who by or why that
person would have done so. It is only when the matter was on appeal
that he claims that the complainant's friend may have influenced
her to lay the charges of rape as revenge for the assault on her by
his wife. This, so the argument went, was done to fix both him and
his wife for the assault upon her person when she found her inside
the kitchen. But this argument begs the question; why in the first
place did the wife assault the complainant anywhere?
In
our view, appellant's wife's reaction was actuated by a suspicion
of some liaison of sorts between the two. She vented her frustration
on the complainant.
The
appellant alleges malice and revenge as the motivation for the
report. A fair assessment of the evidence does not in any way suggest
that prior to this encounter there may have been a source of malice
between the appellant and the complainant. In any event the older
appellant was unable to controvert or cast doubt on the version of
events as given to the trial court by the complainant. That, on its
own, does not in any way render complainant's evidence suspect. She
told her friend what the appellant had done to her and her fears
regarding how she would report to her elders, hence the friend
offered to accompany her to her aunt to make the report.
In
short, the first and second ground of appeal must, for those reasons
fail.
The
existence of bruises inside the complainant's private parts confirm
her claim that she was ravished. Who did so? She says it is the
appellant. The appellant confirms for good measure the fact that on
the day she claims this incident occurred, the complainant and
himself were at some point alone inside his kitchen. There is in our
view sufficient corroboration of the complainant's claim that the
appellant raped her. That corroborative evidence also confirms her
version of events so as to discount any possibility of false
incrimination. As such the need for special caution is obviated in
the process. In our view, the overwhelming nature of the available
evidence is such that there is no possibility of the appellant being
falsely accused by the 11 year old girl. Thus it is unfair to label
the findings of credibility by the trial court as “subjective and
unduly sympathetic acceptance.” The record does not support this
type of criticism.
No-one
adverted to the complainant's emotional state nor her gait soon
after the incident. In our view, the finding of credibility is beyond
reproach.
The
third and fourth grounds of appeal cannot be sustained on the
evidence on record. The need for caution appears to have been
exercised from the reasoning of the court a
quo.
In
sexual assault cases there is already one well-known exception to the
rule against hearsay which holds that evidence of a complaint is
admissible to show the consistency and therefore support the
credibility of the person who gives evidence of being sexually
assaulted. (See S
v
Banana
2000 (1) ZLR 607 (S)). This general rule is of course subject to
certain conditions, namely that the statement was reasonably
contemporaneous with the event in question and was not induced by
improper interviewing techniques.
The
complainant reported the rape promptly. The evidence was gathered
quickly. The conviction is proper. The appeal against conviction must
fail.
As
for the appeal against sentence, we believe that in all matters where
a first offender is sentenced to imprisonment, he ought to enjoy the
benefit of a suspension of a portion of the sentence as a salutary
recognition to his status as a first offender. Any offender is
capable of reform. He must benefit from the usual and time-honoured
practice of our courts to suspend a portion of a term of imprisonment
in spite of how the court assesses the usefulness of this approach. A
failure to observe this salutary practice may, in certain
circumstances, such as here, constitute a misdirection entitling this
court to interfere with sentence. Further, a court must always pay
due regard to the language it uses in giving reasons for any
decision. To use what might be termed “extravagant language” may
lead to a conclusion that the court was swayed by considerations
extra-judicial. I make mention of this because, in the present case,
the learned trial magistrate remarked that this crime was committed
for ritual purposes.
Nowhere
is this suggestion made. He states that “the evidence in these
courts is that all the cases that we deal with are influenced by
rituals for how else can we explain a man of 57 years raping an 11
year old child?”
As
pointed out above there is no evidence that the appellant committed
the crime in pursuance of a ritual. There is therefore, no
justification for reference to rituals as having motivated this
crime.
It
cannot be ruled out that the court may well have been subconsciously
swayed, in its assessment of sentence, by this factor.
It
is true that where a fairly long effective sentence is determined to
be appropriate, there may be no point in suspending a portion of such
a sentence. However, while there is no rule which requires that in
such cases no portion of such a sentence should be suspended, it is
practice to suspend a portion of any such sentence where the offender
is being sentenced for the first time.
Further,
the statement that “if the accused cannot repent after serving a
long term of imprisonment he cannot repent even after suspending a
portion of it…” cannot, in my view, be justification for not
suspending any portion of a term of 20 years imprisonment. Clearly,
this approach to assessing sentence constitutes a misdirection.
The
usual considerations, when assessing sentence, is the gravity of the
crime, the personal circumstances of the offender and the interests
of society. It has been held repeatedly that the sentence must suit
both the crime as well as the interests of society. Needless to say,
a court will give due weight to all the mitigating factors in the
matter and weigh against those factors which constitute aggravating
features in the matter.
We
note that the appellant was 57 years old at the time. He was a first
offender with the usual family responsibilities. On the other hand,
his victim was only 11 years old and a neighbour. The psychological
trauma she must have suffered is immeasurable. She must have been
taken by surprise totally by the accused's sexual assault as she
least expected this to happen. Having applied our mind to both the
mitigatory factors as well as the aggravating ones we assess the
sentence of 20 years imprisonment as befitting. However we are of the
strong view that like any first offender, the appellant ought to
enjoy the discount of a suspension of his custodial term. Therefore
the sentence imposed in the court a quo will be altered to read as
follows:
“20
years imprisonment of which 5 years imprisonment is suspended for 5
years on condition that the accused is not, during that period,
convicted of any offence of a sexual nature for which he is sentenced
to imprisonment without the option of a fine.”
CHIWESHE
JP agrees ………………………….
Magaya
Mandizvidza,
appellant's legal practitioners
National
Prosecuting Authority,
respondent's legal practitioners
