MUSAKWA
J: The appellant was convicted of contravening s 66 (1) of the Criminal Law
(Codification and Reform) Act [Cap 9:23]
for which he was sentenced to ten years imprisonment of which six years were
suspended on condition of good behavior. He noted an appeal against both
conviction and sentence.
The
appellant is the headmaster of Highfield High School. In 2009 the complainant
was a form four pupil at the school. On 5 December 2009 the
complainant left home for studies at school. It was a Saturday and she was in
school uniform.
Around
5 p.m the complainant was on her way home when the appellant observed her
talking to a man who was holding a beer bottle. The complainant disputed that
the person she talked to was holding a beer bottle. Nonetheless she admitted
that she did talk to this person because she knew him. The complainant
initially described this person as a boy but under cross-examination she seemed
to accept that it was a man.
Irrespective
of the precise description of this person, it is this brief encounter with the
complainant that drew the appellant's ire. It was against school rules for the
complainant to loiter or misbehave whilst in school uniform. The appellant
caused the complainant to appear at his parked vehicle. After initial
resistance the complainant eventually boarded the appellant's vehicle.
The
appellant wanted the complainant to show him her residence as he wanted to
report her purported wayward behavior to her parents. By her own admission the
complainant took the appellant to her home of her friend within the
neighborhood. This she did because she felt she had done nothing wrong. Thus,
according to her reasoning when they arrived at her friend's home the appellant
could verify her home address. The additional explanation given by the
complainant was that as they drove in the appellant's vehicle, the appellant continued
to accuse her of misdirecting her to her residence.
It
is not in dispute that the appellant and the complainant reached the Muchenje
house but then left without them talking to any adults. The complainant said
some children approached the vehicle whereupon the appellant asked if he could
be of assistance. The children in turn replied that this was their home. The
appellant then drove off and suggested that they go to the school from where he
could verify the complainant's address.
After
going up to O.K supermarket the appellant is said to have turned back and
indicated to the complainant that she must show him her residence. The
complainant again led the appellant to the Muchenje house. It is whilst they
drove back that the complainant stated she was ordered by the appellant to part
her legs. In the process of instructing her thus the appellant is said to have
inserted his finger into her vagina. The complainant did not give much detail
about this act during her evidence in-chief. However, during cross-examination
she stated that the appellant inserted his finger thrice and each time he withdrew
his finger he would sniff it.
When
they reached the Muchenje house for the second time the appellant parked by the
gate. Mr Muchenje then approached and sought to know if he could be of
assistance but the appellant told him gruffly that he had nothing to do with
his presence at the gate. Mr Muchenje then told the appellant to leave his
premises.
After
leaving the Muchenje house the appellant did not take the complainant to her
residence. According to the complainant, the appellant dropped her off in the
vicinity of Willowvale Flats after telling her that he had forgiven her. She
then made her way home
Meanwhile,
as soon as the appellant drove off Mr Muchenje left for complainant's
residence. When he arrived there the complainant was already being questioned
by her parents regarding her late return from school. Apparently the evidence
from the appellant's mother was that she arrived home around 7.15 p.m. She was
questioned whether she was still at school up to that time and she confirmed
so.
Mr
Muchenje's motive in seeking the complainant was that he suspected she had been
looking for his daughter on behalf of the appellant. Therefore when he arrived
at the complainant's residence he demanded to know the old man who was in her
company when they visited his house. This incensed the complainant's father who
struck her with a belt. According to Mr Muchenje the father demanded to know
what the headmaster had done to the complainant. The complainant initially said
the headmaster had offered her a lift. She also stated that she had been given
an undisclosed sum of money by the appellant. Mr Muchenje was not present when
the complainant subsequently reported the indecent assault.
In
the grounds of appeal it is contended on behalf of the appellant that the trial
court erred in dismissing the application for discharge at the close of the
state case. In this respect it is contended that the court a quo erred in
stating that the approach to sexual offences as enunciated in S v Mupfudza 1982 (1) ZLR 271 (SC) is no
longer applicable without articulating the new approach. Related to this is the
contention that the complainant was clearly unreliable as she contradicted herself
in material respects. There is also the contention that the trial magistrate
conducted the proceedings in an unfair manner that showed that he was biased
against the appellant.
The
state concedes that the appeal cannot be sustained. In filing the concession
counsel for the state cited Rule 35 of the High Court Rules. This is erroneous
as Rule 35 relates to matrimonial causes. He must have had in mind s 35 of the
High Court Act [Chapter 7:06] which
relates to the procedure where the Attorney-General does not support a
conviction.
The
concession by the state is well made. The trial court completely disregarded a
number of material inconsistencies in the complainant's testimony. A careful
consideration of the complainant's evidence in conjunction with that of the
other state witnesses leaves unresolved doubts which should inevitably be
decided in the appellant's favor.
In coming to this conclusion one cannot
entirely ignore the suspicious conduct of the appellant in the entire episode.
This is particularly so if one considers his failure to verify the
complainant's address with Mr Muchenje despite visiting his residence twice. If
he was so determined to establish the complainant's address why would he
eventually drop her off elsewhere after a reprimand? Then there is Mr
Muchenje's evidence that the complainant told her parents that the appellant
had offered her a lift and that he had given her some money. One cannot
entirely rule out an improper association between the two.
Nonetheless,
the testimony of the complainant was manifestly unreliable. Whilst she told the court that the indecent
assault took place whilst the appellant drove to Mr Muchenje's residence, she
told her own mother that this took place near C.J Hall whilst the vehicle was
stationary. In another vein the complainant told the trial court that the
incident took place whilst she was seated in the front seat as the appellant
drove back to Mr Muchenje's house. Mr Muchenje stated that the complainant was
seated at the back. Mr Muchenje clearly described the complainant's posture
whilst at the back seat. There is nothing to show that he made a mistake in his
observation or that he had a motive to lie. The complainant only made a report
against the appellant after she had been assaulted by her father. This is
despite the fact that she had been questioned by her parents why she returned
home late and had not volunteered the report of sexual assault. In short, there
is no corroboration of the complainant's story.
Both
counsels submitted in their heads of argument that the trial court ought to
have adopted the approach in S v Mupfudza
supra in its assessment of the complainant's evidence. The court in that case
had this to say in respect of a complainant in a sexual offence at 273-275-
“Since
this is only one of several recent cases in which the cautionary rule and its
proper application seem not to have been fully understood, it may be helpful to
deal with the subject in some detail.
There
are several types of witness who, for one reason or another, must be regarded as suspect and whose evidence must
be regarded as suspect and whose evidence must be approached with particular
caution; among the more common are the accomplice, the complainant in a sexual
case and the person found in possession of stolen property or through whose
hands it has passed. In all such cases there is potentially a danger of false
incrimination, and before a trial court can safely convict on the testimony of
such a witness it must satisfy itself that that danger has been excluded. But
before I examine the circumstances in which a court can properly be so
satisfied I must stress a point which is all too frequently overlooked.
The
court looks for corroboration of the evidence of a suspect witness. But -
perhaps precisely because of the search for corroboration - trial courts
frequently forget that the court must first decide whether the suspect witness
is credible; in other words, the court must first decide whether, taking into
account all the circumstances of the case, including demeanour, the
probabilities, and all the other considerations which triers of fact properly
take into account in assessing credibility, it believes the witness. If not,
the matter is at an end, and the question of corroboration of, or support for,
his testimony does not arise; it is only if the court believes the witness that
in cases where a cautionary G rule applies it then proceeds to consider
whether it might still not have been deceived by a plausible witness. LORD
HAILSHAM stressed this point in DPP v Kilbourne [1973] 1 All ER 440 (HL) at
page 452:
"Corroboration is only
required ... if the Witness requiring corroboration ... is otherwise credible.
If his evidence is not credible, a witness's testimony should be rejected and
the accused acquitted, even if there could be found evidence capable of being
corroboration in other testimony. Corroboration can only be afforded to ... a
witness who is otherwise to be believed. If a witness's testimony falls of its
own inanition the question of his needing corroboration does not rise."
This
two-stage approach is very clearly expressed by JAMES, LJ, in R v Turner (1975)
61 Cr. app. R 67; it was argued on behalf of one of the appellants that the
trial judge "fell into error in his direction to the jury as to corroboration
in that he failed to make it clear that the jury had to be satisfied that (the
accomplice) was a credible witness before they considered the question whether
there was ... (corroboration) ... ". In rejecting this submission JAMES,
LJ, said at page 84:
"The judge did not in
simple and precise terms direct the jury to approach B the
question of corroboration in two stages, first, the credibility of (the
accomplice), and secondly - and only if (the accomplice) was found to be
credible - the existence of credible evidence, independent of (the accomplice)
which supported (his) evidence ... The whole tenor of the summing - up was that
the jury would have to be satisfied of the truth of (the accomplice's) evidence
before they could convict and that, even then, they ought not to C
convict unless they found corroborative evidence." (my emphasis).
A
similar approach was adopted in Bekker v Westenraad, 1942 WLD 214 (a paternity
case), where RAMSBOTTOM, J (as he then was), said at page 22:
"[The woman] may be
believed, but she will not succeed in her action unless there is in addition
evidence aliunde to corroborate her. If she is not believed, that is the end of
her case. If she shows herself to be a truthful and credible witness there is
no reason why she should not be believed, though she will not be entitled to
judgment unless there is corroboration. But if in addition to her testimony
which has been believed, there is evidence aliunde which corroborates her, she
is entitled to judgment. There are therefore two elements in the enquiry; is
the plaintiff to be believed, and is there corroboration? In many cases no
doubt these two elements will be intermingled; the corroborating evidence may
induce the court to accept the plaintiff's words; but there are other cases in
which, without corroboration the court is in no doubt as between the parties,
that it is the plaintiff who is speaking the truth, and in such a case the
plaintiff is entitled to succeed, provided there is such corroboration of her
evidence as the law requires. The method of considering first the credibility
of the plaintiff and then whether her evidence is corroborated has been adopted
in a number of cases of which Scholte-meyer v Potgieter (1916 TPD 188), Smit v
Swart (1916 TPD 197), Mackay v Ballot (1921 TPD 430), are examples. This method
appears to me to be logical and satisfactory and I propose to adopt it."
The
importance of this two-stage approach is illustrated in the present case. The
magistrate convicted the appellant because he found him to be an unsatisfactory
witness and he believed the complainant; he does not appear to have appreciated
that believing the complainant was only
H the first stage in the enquiry,
and that, believing her, he must still satisfy himself that he had not been
deceived. His acceptance of and reliance on the complainant's evidence seems to
me to have been based on precisely the same considerations as are taken into
account in assessing the evidence and credibility of a witness in any ordinary
case. Such an approach is clearly incorrect in a case where, for one reason or
another, a cautionary rule must be applied; in all such situations the court
must not only believe the suspect witness but must in addition be satisfied
that the danger of false incrimination has been excluded. If this were not the
position then the cautionary rule would have little meaning all cases would be
reduced to a straightforward assessment of the credibility of the witnesses.”
The
two rung approach was discarded by the Supreme Court in the case of S v Banana 2000 (1) ZLR 607 (SC) in
which GUBBAY CJ had this to say regarding the cautionary rule in respect of
complainants in sexual offences at 613-614-
“There
is a well-established rule in Roman-Dutch jurisdictions that judicial officers are
required to warn themselves of the danger of convicting on the uncorroborated
evidence of certain categories of witnesses who are potentially suspect. One
such category concerns complainants in sexual cases.
In
a long line of cases in this country, of which S v Mupfudza 1982 (1) ZLR 271
(S) is the landmark, the so-called two-stage test has been applied. The first
question to be asked by the court is: "Is the complainant credible?"
If the answer is in the affirmative, the next question is: "Is there corroboration
of or support for the evidence of the complainant?" In other words, the
court must not only believe the complainant, it must in addition be satisfied,
by an application of the cautionary rule, whether it might still not have been
deceived by a plausible witness. It therefore must seek corroboration or
evidence tending to exclude the danger of false incrimination. See also S v Chitiyo
1989 (2) ZLR 144 (S) at 145E-F; S v Chigova 1992 (2) ZLR 206 (S) at 219D-F and
220C-E; S v Makanyanga 1996 (2) ZLR 231 (H) at 241A-C; S v Zaranyika 1997 (1)
ZLR 539 (H) at 555B-C.
However,
in S v D & Anor 1992 (1) SA 513 (Nm) FRANK J (with whom STRYDOM JP agreed),
in the Namibia High Court, took the opportunity to re-examine the need for the
rule in sexual cases. He came to the conclusion
that the cautionary rule in such
cases has no rational basis for its existence. He held that while a trial court
must consider the nature and circumstances of the particular offence, "in
the end only one test applies, namely, was the accused's guilt proved beyond
reasonable doubt, and the test must be the same whether the crime is theft or
rape" (see at 517A-B).
This
decision received the imprimatur of the South African Supreme Court of Appeal
in S v Jackson 1998 (1) SACR 470 (SCA). In the course of a well
reasoned judgment, OLIVIER JA, with the concurrence of Mahomed CJ and three
other Judges of Appeal) said at 476e-f:
"In
my view, the cautionary rule in sexual assault cases is based on an irrational
and out-dated perception. It unjustly stereotypes complainants in sexual
assault cases (overwhelmingly women) as particularly unreliable. In our system
of law, the burden is on G the State to prove the guilt of an accused
beyond reasonable doubt - no more and no less. The evidence in a particular
case may call for a cautionary approach, but that is a far cry from the
application of a general cautionary rule."
He
commended as particularly important the eighth guideline formulated by LORD
TAYLOR CJ in R v Makanjuola; R v Easton [1995] 3 All ER 730 (A) at 733c-d,
which reads:
"In
some cases, it may be appropriate for the judge to warn the jury to exercise
caution before acting upon the unsupported
A evidence of a witness. This
will not be so simply because the witness is a complainant of a sexual offence
nor will it necessarily be so because a witness is alleged to be an accomplice.
There will need to be an evidential basis for suggesting that the evidence of
the witness may be unreliable. An evidential basis does not include mere suggestions
by cross-examining counsel."
Prior
to the decision in the Jackson case supra, 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 on the unconfirmed testimony of a
complainant in such a case. This belief resulted in the courts adopting a fixed
cautionary rule of practice.
In
S v M 1999 (2) SACR 548 (SCA), the Supreme Court of Appeal reiterated that the
application of the cautionary rule to
sexual cases was based on irrational and outdated perceptions. It again pointed
out that although the evidence in such cases might call for a cautionary
approach, this was not a general rule. The State was simply obliged to prove
the accused's guilt beyond a reasonable doubt. And this approach applied to all
cases in which an act of a sexual nature was an element (see at 555a-b).
Recently,
in S v K 2000 (4) BCLR 405 (NmS), the Supreme Court of Namibia followed the
decision in S v Jackson supra. It held that the cautionary rule had outlived
its usefulness. There were no convincing reasons for its continued application.
It exemplified a rule of practice that placed an additional burden on victims
in sexual cases which could lead to grave injustice to the victims involved
(see at 418H-419D).
It
is my opinion that the time has now come for our courts to move away from the
application of the two-pronged test in sexual cases and proceed in conformity
with the approach advocated in South Africa. In so holding, I have not
overlooked the well-researched judgment of GILLESPIE J in S v Magaya 1997 (2)
ZLR 138 (H). But having regard to the abrogation of the obligatory nature of
the rule in such countries as Canada, the United Kingdom, New
Zealand and Australia, as well as by the State of California (see Chaskalson,
et al, Constitutional Law of South Africa at 14-62; Hatchard, 1993 Journal of
African Law 97 at 98; (1983) 4 Canadian Journal of Family Law 173), I
respectfully endorse the view that in sexual cases the cautionary rule of
practice is not warranted. Yet I would emphasise that this does not mean that
the nature and circumstances of the alleged sexual offence need not be
considered carefully.”
In
respect of the single witness the learned Chief Justice had this to say at
614-616-
“It
is, of course, permissible in terms of s 269 of the Criminal Procedure and
Evidence Act [Chapter 9:07] for a court to convict a person on the single evidence
of a competent and credible witness. The test formulated by DE VILLIERS JP in R
v Mokoena 1932 OPD 79 at 80 was that the evidence of such a single witness must
be found to be "clear and satisfactory in every material respect".
In
The South African Law of Evidence 4 ed at 573 the celebrated authors, Hoffmann
and Zeffertt, rightly point out that Mokoena's case concerned the situation of
a single witness claiming to have identified the accused by the B
light of a pocket torch as he ran past in the dark. Accordingly, they
contend that the remarks of DE VILLIERS JP should be related to the context in
which they were made.
Certainly,
in purporting to lay down a general rule the dictum of the learned Judge
President has been criticised as unhelpful and tending to obscure the ultimate
purpose of the court's inquiry, which is whether the guilt of the accused has
been proved beyond a reasonable doubt. See R v Abdoorham 1954 (3) SA 163 (N) at
165; R v Mokoena 1956 (3) SA 81 (A) at 85. In S v Sauls & Ors 1981 (3) SA
172 (A) at 180E-G, DIEMONT JA said:
"There
is no rule of thumb or formula to apply when it comes to a consideration of the
credibility of the single witness.
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 ... It has been said more than
once that the exercise of caution must not be allowed to displace the exercise
of common sense."
In
Zimbabwe, much the same approach has been adopted. In S v Nyati 1977 (2) RLR
315 (A) at 318E-G, Lewis JP warned that the test in R v Mokoena supra is not to
be regarded as an inflexible rule of thumb. There is no magic formula which
determines when a conviction is warranted upon the testimony of a single
witness. His evidence must be approached with caution and the merits thereof
weighed against any factors which militate
F against its credibility. In
essence, a commonsense approach must be applied. If the court is convinced
beyond a reasonable doubt that the sole witness has spoken the truth, it must
convict, notwithstanding that he was in some respects unsatisfactory. See also
S v Nathoo Supermarket (Pvt) Ltd 1987 (2) ZLR 136 (S) at 138D-F.
Where
the evidence of the single witness is corroborated in any way which tends to
indicate that the whole story was not concocted, the caution enjoined may be
overcome and acceptance facilitated. But corroboration is not essential. Any
other feature which increases the confidence of the court in the reliability of
the single witness may also overcome the caution.
And
finally, in respect of reports by a complainant in a sexual offence, he went on
to say at 616-
“Evidence that a
complainant in an alleged sexual offence made a complaint soon after its
occurrence, and the terms of that complaint, are admissible to show the
consistency of the complainant's evidence and the absence of consent. The
complaint serves to rebut any suspicion that the complainant has fabricated the
allegation.
The requirements
for admissibility of a complaint are:
1. It must have been made voluntarily and
not as a result of questions of a leading and inducing or intimidating nature.
See R v Petros 1967 RLR 35 (G) at 39G-H.
2. It must have been made without undue
delay and at the earliest opportunity, in all the circumstances, to C the
first person to whom the complainant could reasonably be expected to make it.
See R v C 1955 (4) SA 40 (N) at 40G-H; S v Makanyanga supra at 242G-243C.”
It
would appear this is the approach the trial magistrate had in mind when he
discarded the approach in Mupfudza's
case in dismissing the application for discharge at the close of the state case.
The only criticism one can direct at the judgment is that he did not properly
articulate the dicta in S v Banana
supra. That notwithstanding, if the trial court had properly applied the
principles of law enunciated in S v
Banana supra it would have acquitted the appellant.
One
other aspect deserves mention. After the prosecutor finished cross-examining
the appellant the trial magistrate questioned the appellant at considerable
length. At some stage he made unnecessary personal references to his history in
school administration or his association with a school situated in Highfield. The
nature of the questions that were put to the appellant went beyond seeking
clarification. It was tantamount to descending into the arena. This should
always be avoided as it may result in an unfair trial.
In
the result the conviction and sentence are hereby set aside.
OMERJEE
J agrees.
Mushonga &
Associates,
appellant's legal practitioners
Attorney-General's
Office, respondent's legal
practitioners
