CHEDA J: This is an appeal against both
conviction and sentence which was imposed by the Regional magistrate sitting in
Bulawayo on the 14th January 2011.
The
state case as outlined by the respondent, is that appellant was aged 14 years
at the time of the alleged offence. The
complainant was aged 4 years at the time and is appellant's neighbour.
The
allegations are that on the 25th December 2010 in the afternoon, but,
before 1600 hours complainant was playing alone at the gate when appellant
called her outside to play with him. When she got to him appellant ordered her to
lie down facing upwards. He then proceed
to remove her pants and removed his too.
He inserted his penis in her vagina, thereby having sexual intercourse
with her. The question of consent does
not arise as she is legally incapable of making such consent.
Appellant
pleaded not guilty to the charge, but, was convicted of rape and was sentenced
to receive corporal punishment of four (4) strokes.
His
grounds of appeal as amplified in his heads of argument are that he was not in
that vicinity of the scene of crime at the time and that there was lack of
direct or conclusive evidence to prove the commission of the offence beyond
reasonable doubt.
It is appellants' contention that on
the day in question, he was at home in the morning. In the afternoon he went to a party and was
there between 1400 hours and 1800 hours, therefore, he was nowhere near the
scene of the crime.
The issues here are that of
appellant's identity and his alibi. One
of the tenets of the attainment of justice in a trial, especial a criminal
trial is fairness to both the complainant and accused. These courts have on time without number bemoaned
the increasing trend of paying lip-service by the triers of facts in
determining the guilt or otherwise of accused persons in general and in
particular the unrepresented accused. It should be borne in mind that for many
people, appearance in court is intimidating and may result in the loss of their
defence or explanation of their conduct, which if properly articulated could lead to an acquittal. The courts should always bear in mind the
need to adhere to the requirements of conducting a fair trial and avoid the
bias against the accused even if the complainant is vulnerable by reason of
age, sex or some such other disability.
Appellant was consistent and
persistent in his plea of not guilty. He
queried the manner the four year old complainant implicated him. Complainant's father assaulted him, which he
viewed as undue pressure to extract an undeserved and unwarranted
confession. He also raised an alibi
which was not followed.
The correct legal position is that
in criminal trials, conviction should only be returned when the state has
proved its case beyond reasonable doubt.
In casu appellant's challenge that he did not rape the
complainant as he was not present at the relevant period was not discredited by
the state, which should have been the case as it is the state which has the
burden of proving the commission of an offence beyond reasonable doubt. The learned trial magistrate seems to have
accommodated the supposed date of the commission of the offence which was not
proper. She further went on to express
an opinion on medical matters when she was not qualified to do so. This court has previously decried the
temptation by judicial officers to express medical opinions when they are not
qualified to do so. Again this practice
is discouraged.
She, together with the state seem to
have fallen in the trap that, it is appellant who should prove his alibi yet it
is the state which should have done so, by calling witnesses whom appellant
suggested he was with at the relevant time.
It is my considered opinion that
there were a lot of loopholes in this matter which made a conviction unsafe.
There is an understandable tendency
amongst some judicial officers to unnecessarily sympathise with complainants,
particularly in matters where a suspect is said to have unlawfully acquired carnal
knowledge of the female species, even before the trial commences. Such a stance unfortunately prejudices the
suspect thereby depriving him of his constitutional right to a fair trial. This seems to have been the position in casu.
Appellant was sentenced to four
strokes. This punishment has already
been carried out, in circumstances where this should not have been. This, can only point to one factor and one
factor alone, being that judicial officers should approach trials with the
highest degree of diligence, objectivity and professionalism so as to avoid the
danger of falling in the emotional trap clothed with the name of justice.
It should be remembered that the
amount of power they weild, if improperly used can easily be viewed as abuse by
society. This, however, is not to say,
was the case in casu.
There was a serious miscarriage of
justice in this matter
In light of the above the conviction
and sentence is set aside.
Mathonsi
J agrees...................................................................
Messrs James, Moyo-Majwabu
& Nyoni appellant's legal practitioners
Criminal
Division, Attorney General's Office, respondent's legal practitioners
