The appellant was convicted of rape, as defined in section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], by the Regional Magistrate, Harare, and sentenced to 14 years imprisonment of which four years were suspended for five years on the usual conditions, on 11 July 2016.The appellant ...
The appellant was convicted of rape, as defined in section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], by the Regional Magistrate, Harare, and sentenced to 14 years imprisonment of which four years were suspended for five years on the usual conditions, on 11 July 2016.
The appellant was aggrieved by both his conviction and the sentence. He now appeals against both the conviction and sentence.
Although the notice and grounds of appeal were filed timeously, this court was of the view, that, the grounds of appeal were so general and ambiguous, that, in the courts view, they did not comply with the clarity and specificity requirement in the rules of court: see Rule 22(1) of the Supreme Court (Magistrates Court) (Criminal Appeals) Rules, S.I.504/79.
Additionally, the heads of argument filed in support of the grounds of appeal did not address the grounds of appeal.
The appellant withdrew the appeal and made a fresh application for condonation for the late of filing of notice and grounds of appeal.
In that application, the appellant abandoned the earlier grounds of appeal and raised new grounds of appeal which were congruent with the already filed heads of argument.
The new grounds of appeal recite the following:
1. The court a quo seriously misdirected itself, such misdirection amounting to an error of law in convicting the appellant on the basis of a story whose actus reus is incapable of performance, or is, alternatively, implausible in the circumstances alleged and consequently not susceptible to proof beyond any reasonable doubt as is required by law, more in particular in that;
(a) The allegation that there was penetration of an eleven year old virgin, by adult appellant, whilst seated on a couch, and with the victim's panties brought down to knee level is most inconceivable;
(b) The penetration of an eleven year old virgin, by adult appellant, in a house full of people, without her screaming, is most improbable on the circumstance as to be unbelievable;
(c) The reaction of the complainant, to the act of sexual violence found to have been perpetrated against her, does not comport with reality and with a manner which can objectively be expected under such circumstances.
2. The court a quo seriously misdirected itself, such misdirection amounting to an error in law, in convicting the appellant notwithstanding the many material inconsistencies in the prosecution evidence, such inconsistences arising out of:
(i) Inconsistencies between the statement given by the complainant to the police;
(ii) Inconsistencies between the statement and the evidence given viva voce; and
(iii) Inconsistencies between the general evidence given and the scene report.
3. The court a quo misdirected itself in failing to consider the effect of the substantially similar failed charge of indecent assault on the assessment it had to make of the complainant, her testimony, the conditions under which she made the report, and her general credibility; all these factors considered.
4. The court a quo erred in law in concentrating and getting itself fixated on what it improperly found to have been appellant's suspicious conduct without considering whether there was, against the appellant, an objectively plausible case the existence of which would be the basis for the evaluation of his conduct.
5. The court a quo erred in disbelieving appellant's alibi in the absence of any evidence from the State undermining such defence and so erred in failing to consider and evaluate the quality of the evidence given by the appellant in support of the alibi.
6. Having found the sentence contended for by the State to have been draconian, the court a quo erred in effectively imposing a manifestly excessive sentence which was just as draconian as had been urged for by the prosecution.
On the basis of the above grounds of appeal, the appellant prayed for the setting aside of the conviction and the quashing of the sentence imposed. Alternatively, he prayed, that, should the conviction be upheld, then, the sentence be reduced to 5 years with 2 years suspended on the usual conditions.
The appellant was convicted after a protracted trial in which evidence was led from several witnesses.
As background to the conviction, it is appropriate that the evidence led at trial be restated and analyzed in light of the findings of fact and conclusions of law arrived at by the trial court....,.
The events leading to the allegations were narrated in court by several key witnesses among them the following:
1. Tinashe Taruvinga (“Tinashe”) the complainant in respect of the indecent assault charge. Although the appellant was acquitted on her allegations of indecent assault, he argues that the court's treatment of her evidence ought to have applied in respect of the rape Count.
2. Nicole Tariro Taruvinga (“Nicole”) the complainant in the rape charge. The conviction was based on her evidence.
3. Sally Ndanatseyi Maramwidze (Sally”) the aunt to the two children. She received the initial report on the allegations from Nicole.
4. Francis Maramwidze (“Maramwidze”) the complainant's maternal grandfather and legal guardian of the two children. He took the initiative to make a police report and took up private prosecution when the Prosecutor-General declined it.
5. Edwin Tafadzwa Chanakira, the medical doctor who examined the complainant following upon the allegations.
6. Gresham Muradzikwa (“Muradzikwa”) the Director of Security at the RBZ.
7. Mirirai Chiremba (“Chiremba”) the Director of Financial Intelligence Unit at the RBZ.
8. Monica Kativhu, the investigating officer who was based at ZRP Borrowdale.
The defence, for which the appellant was the main witness, led evidence from the following other witnesses:
1. Patience Muswapadare Taruvinga (“Patience”) the aunt of the two complainants and the wife of the appellant. It was at her residence that the events subject of the trial took place.
2. Alpheus Njodzi Chinhamo or Chief Mukangamwi, to confirm a political plot;
3. Cletos Kereke, a brother to the appellant, to confirm the alibi;
4. Taurai Bwanaisa, a security guard, to confirm the alibi;
5. Norest Ndoro, another security guard, to confirm the alibi;
6. Anna Muswapadare, a step-mother of the complainant's father to deny the rape.
The court called Chiratidzo Lorraine Jeyacheya (“Dr Jeyacheya”) a medical director at Parirenyatwa Hospital, to clarify the authenticity of the hospital duty roster.
The Regional Magistrate analyzed the evidence of the sixteen witnesses. He first isolated the facts which were not in dispute, and then identified the issues for determination.
I will summarize the facts which were not in dispute at the trial.
Factual Findings of the Trial Court
Patience Muswapadare was, at the time, customarily married to the appellant. She testified on his behalf. She is the paternal aunt of the two complainants, Tinashe and Nicole. These two are the daughters to Patience Muswapadare's brother.
Between 20 and 27 August 2010, Nichole was at Patience's house at 11 Tovey Road, Vainona. Tinashe joined her there from 20 August 2010 till the 27th of August 2010.
There is a period during which the two girls were excluded from school over school fees which were in arrears.
On the night of 31 October 2010, Francis Maramwidze (“Maramwidze”) made a telephone call to Patience in which he summoned her to his residence. She indicated, that, as she had no transport, she could only come over the following day. On the following day, Patience went to the Maramwidze's residence. At this point, she was informed of the allegations by the minor children against her husband, the appellant.
It is not in dispute, that, between 20 and 21 August 2010 Anna Muswapadare, Calvin Muswapadare, and one Munyaradzi were present at 11 Tovey Road, Vainona.
During that time, it is agreed that Nicole shared bed and board with Anna Muswapadare.
On 22 August 2010, Nicole was aged 11 years.
The court a quo summarized the evidence of the two complainants in the following manner:
In August 2010, Tinashe and Nicole Taruvinga visited 11 Tovey Road, Vainona, to see their paternal aunt, Patience. On 20 August 2010, Tinashe left Nicole home when she went away for a prayer meeting. She returned on 23 August 2010.
Upon her return, Nicole gave her a report in which she claimed the appellant had raped her on a Saturday.
Nicole pleaded with her not to tell anyone as she feared that the appellant would harm her.
It was only after Nicole had made another report to Sally, in Avondale, that a family meeting was called in October 2010.
In that meeting, Sally had confirmed, that, in fact, Nicole had made a report of rape against the appellant to her a few days before.
On her part, Nicole told the court, that, on Saturday, around 03:00 she had been woken up by her aunt, Patience, who asked her to take care of the baby. She was preparing food for the appellant. She saw the appellant in the lounge and greeted him. She proceeded to the bedroom where she laid the baby on the bed. She sat on the couch.
The appellant followed her into the bedroom.
He said something that she did not understand. He proceeded to fondle her breasts and vagina. He then reached for her pants whilst at the same time producing a pistol. He then told her to comply with whatever he was saying. He pulled down her pants to knee-level and thereafter inserted his male organ into hers.
Only when he heard footsteps did he stop.
She managed to break free and rushed into her bedroom. Although her paternal grandmother was asleep in her bedroom, she did not report to her. Instead, she wept quietly. She did not want anyone to know about this incident.
The next morning, Sunday, she woke up and attended church and came back home.
On Monday, her older sister, Tinashe, came back from the prayer meeting. She confided in her about the Saturday night's event in which the appellant had raped her. She however pleaded with her not to tell anyone. It was later, on 30 October 2010, when she had visited her aunt, Sally, in Avondale, Harare that she reported to an adult member of the family. She asked Sally to advise her mother of the event. Instead, Sally asked her if she could inform other members of the family in Harare. Her mother was in London. The complainant agreed and Sally communicated this information to her sister-in-law, Philippa Maramwidze (“Philippa”).
The information was passed to the patriarch, Francis Maramwidze (Maramwidze). He later on made a telephone call to Patience.
On that same night, the matter was reported at Highlands Police Station, Harare. The complainant was medically examined immediately that night.
Sally Ndanatseyi Maramwidze (Sally) told the court that the two, Tinashe and Nicole, came to her place in Avondale on 30 October 2010. During the night, Nicole narrated to her how the appellant had, in August 2010, sexually molested her at 11 Tovey Road, Vainona. Nicole asked her to inform her mother about it.
She, in turn, asked the complainant if she could share the report with other family members. When the complainant agreed, she told her husband, and, the following day, the parties went to Greendale where the girls maternal grandfather stayed.
She gave this report to Philippa, her sister-in-law. The report was passed on to the patriarch, Maramwidze, her father-in-law.
When the matter was discussed, she told the court how emotional everyone became. The matter was eventually reported to the police at Highlands.
When Nicole repeated her story to Philippa, in Sally's presence, the complainant told Philippa not to tell her sister-in-law or their grandparents or anyone else as she feared that the appellant would use a gun on them.
At this point, Philippa asked Tinashe if she had suffered the same fate at the appellant's hands. Only then did Tinashe relate to other members of the family the inappropriate sexual advances to her which had taken place in March 2012.
Tinashe told them that the appellant had fondled her breast and buttocks and had kissed her against her will.
According to Sally, the complainant had not described to her the details of the rape until the following day in Greendale, because, as she was narrating her story, her husband had walked into the room. She asked him to excuse them. She went out briefly with the husband, and, when she came back, she found the complainant crying. She consoled her.
Given the complainant's emotional state, she was unable to probe her for further details.
By the time the report was made to Mr and Mrs Maramwidze, the rape details were, however, clear.
Maramwidze, the maternal grandfather of the two girls, is also the legal guardian. He confirmed that he had received a report concerning the rape allegations by Nicolle, against the appellant, on 31 October 2010. He had called Patience that same night but Patience could not come as she had no transport. That same night, he made a report to police at Highlands against the appellant.
The court a quo took note of the fact, that, in his evidence, Maramwidze indicated that he did not know the appellant prior to this matter. He therefore denied that he had sent the two girls to ask for school fees from the appellant; or that he personally asked for money from the appellant following upon the report to the police.
It was his evidence, that, the appellant had, on several occasions, visited his residence in order to discuss this matter but he had, on each occasion, refused to discuss the matter with him.
Patience had also brought her mother who wanted to negotiate with Maramwidze on behalf of the appellant. Anna Muswapadare also wanted to talk to the two complainants but Maramwidze denied her access to the children.
The witness gave evidence of how, as a family, they tried to get the appellant prosecuted from 2010 to 2015 - without success. Only after a court order did the private prosecution take off in 2016.
Edwin Chanakira, the medical doctor who examined the complainant, testified that he had reported for duty on 31 October towards midnight. His shift ran from midnight to 08h00. He had, upon examination, noticed a healed hymeneal tear. This indicated that the complainant had been sexually penetrated.
He disputed the contention that he was not on duty on 1 November 2010.
Gresham Muradzikwa, a Director of Security at the Reserve Bank of Zimbabwe (“the RBZ”), testified to events at the Bank.
The appellant was his superior when they were both at the Reserve Bank of Zimbabwe (RBZ).
In 2005, the appellant was issued with a CZ pistol for his personal protection. This firearm belonged to the Bank. When an officer is issued with a firearm, that officer makes an entry in a firearms register for accounting purposes. This would have been done in respect of the pistol issued to the appellant.
Sometime in 2010, the witness was called by his Divisional Head, Mirirai Chiremba. Upon attending at his superior's officers, he was asked if it was possible for him to accept back the CZ pistol previously issued to the appellant and also to backdate the receipt of the pistol beyond a certain date.
He refused.
He explained that such an anomaly would clearly be picked up by an audit inspection. That would create serious problems for him. Mirirai Chiremba (Chiremba) had the pistol with him. He refused to accept it. When he left, Chiremba was still holding the pistol in his hands.
Mirirai Chiremba, the Director of Financial Services Unit at the Reserve Bank of Zimbabwe (RBZ) worked under the supervision of the appellant during the appellant's time at the institution. The appellant was the advisor of the then RBZ Governor.
His evidence was, that, in the morning of 22 August 2010, he had woken up to find a missed call from his superior, the appellant. As would be expected, he returned the call. The appellant asked that they meet outside Bon Marche, Chisipite. They duly met around 06:45 that morning. In that meeting, the appellant, produced a pistol and its magazine as well as the cleaning kit. He handed these items to him with instruction that they be returned to the Security Department. When the witness asked why he was in a hurry to return them, the appellant informed him that there were people who were alleging that he had used the same to commit a crime. He also asked if an earlier date of return could be entered in the firearms registry.
The witness asked the appellant if he had robbed or murdered someone. The appellant told him that he had not done anything of that sort but that it was a minor dispute. The appellant looked worried. He took the pistol and its accessories.
This meeting occurred on a Sunday morning.
He then took the items to his office at the RBZ the following day. On the next day, the appellant came into his office with a memorandum on the rationalization of firearms at RBZ. He asked the witness to sign but the witness refused. The reason why he refused to sign was that the memo bore a back-dated date and required him to acknowledge receipt of the memo using that back dated date stamp.
The appellant was furious.
He threatened him with unspecified consequences if he did not sign and backdate the date stamp. Out of fear of these threats, the witness told the court a quo that he had signed the memorandum. The appellant took his signed copy and left.
At that time, the witness told the court that the appellant wielded a lot of power at the Bank before he resigned.
As soon as the appellant left, he called Muradzikwa, head of security in charge of the firearms registry. He explained to him what the appellant wanted done in respect of the fire-arm and its accessories which the appellant had returned. He specifically told Muradzikwa that the appellant wanted the date of return backdated.
Muradzikwa flatly refused.
He went out leaving him with the pistol which he kept in his safe until this day.
When it was put to him that his evidence was a fabrication meant to fix the appellant in order to conceal some alleged fraudulent activities in which he and Governor Gideon Gono were involved, he dismissed the suggestion out of hand.
Monica Kativhu, the investigating officer, explained that she had not compiled the scene report. She had received the docket with that report inside from police at Highlands. She had recorded statements from the complainant.
According to her, initially, Nicole had not mentioned anything about the gun until after she had given the statement to her guardian, Maramwidze, for him to peruse.
He had pointed out that the reference to the gun had been left out.
When she asked Nicole about a gun, Nicole confirmed that she had indeed omitted to make reference to the gun.
Another statement in which there was reference to the gun was then compiled.
The evidence led by the appellant was that he was away in the USA for the whole month of March 2010. He came back on 4 June 2010.
He denied that he had molested either Tinashe or Nicole. He disputed the evidence of fondling of breast and buttocks given by Tinashe and that of rape given by Nicole.
Instead, he raised the defence of an alibi in both Counts.
He told the court, that, on 20 August as well as 21 August 2010 he had left 11 Tovey Road, Vainona at 20:00pm proceeding to his other residence at 75 Wallis Road, Mandara. He arrived at this address at 21:00. His guards, Norest Ndoro and Taurai Bwanaisa, recorded in their log book his time of arrival as they were duty bound to do. His other wife and children were away at the farm for the week ending 22 August 2010. His brother, Cletos Kereke, had visited him from around 20 August 2010 until around 22:00 on 22 August 2010. From the time Cletos arrived, they were in each other's company till he left.
On the night of 20th and 21st August 2010, he had retired to bed at 21:00 and got up the following at 10:00.
He disputed visiting the Maramwidze residence on any occasion besides the only occasion when, on 1 November 2010, he went there to pick up his wife, Patience Muswapadare. On that occasion, these allegations were raised.
He denied that he has dispatched his mother-in- law, Anna Muswapadare, to plead with the Maramwidze's for an out of court settlement of the issues raised by the two girls.
Similarly, he disputed the truthfulness of the evidence given by the two Reserve Bank of Zimbabwe (RBZ) officials regarding the circumstances surrounding the return of the CZ pistol to his workplace. He denied forcing Chiremba to sign or demanding that the return date entry in the firearms registry be backdated. He maintained that he had returned the pistol on 14 June 2010 as acknowledged by Chiremba. He denied the encounter with Chiremba at Chisipite Shopping Centre or that he had handed over the pistol to Chiremba in that encounter.
Although he acknowledged that he had originated the memorandum in respect of the firearms, exhibit 6B, he denied that he had forced Chiremba to sign it. He denied that he had called Chiremba, and that, as a result of that phone call, they had met around 06:45 on 22 August 2010.
He claimed, that, at that time, he was sound asleep at his Mandara residence.
He told the court that these allegations are an attempt to extort money by the Maramwidzes. They had, before these allegations were raised, sent the two girls to ask him to pay for their school fees which were in arrears in the amount of $8,000. He had refused to give them. For that refusal, they were out to fix him.
He also drew the court's attention to the fact that he had made political enemies who were behind the framing of the allegations because he had exposed their fraudulent activities. These enemies ranged from his immediate boss, Gideon Gono, the head of the Central Intelligence Organisation, one Happyton Bonyongwe, and an officer in that organization, one Jimias Madzingira. The three want to silence him for exposing their fraudulent activities at the Reserve Bank of Zimbabwe (RBZ).
The other political enemies, former Vice President Joyce Mujuru, former Minister Webster Shamu, and David Butau were bent on tarnishing his political career through these allegations.
The trial court took note of the fact that the appellant had developed a new defence. It was this:
The former Member of Parliament, David Butau, was romantically involved with Chipo Maramwidze, the mother of the two complainants. Through Chipo Maramwidze, the complainants, and their grandparents, had concocted these allegations in order to fix him politically.
David Butau allegedly confessed to the plot.
To confirm this plot, and Butau's subsequent confession, the appellant read to court a text message sent by Butau.
Patience Muswapadare Taruvinga (Patience) testified, that, between 20 and 27 August 2010, Tinashe and Nicole were at 11 Tovey Road, Borrowdale, her residence. She, however, disputed the claim, that, in March 2010 Tinashe and Nicole had visited her. Therefore, any claims of sexual harassment by Tinashe against her husband could not be true.
Regarding the events of the period from 21 August 2010 to 23 August 2010 she told the court, that, she had come home around 20:00 on 21 August 2010. She had left some thirty minutes later and did not come back that night. Therefore, she could not have woken up in the early hours of 22 August 2010 to cook for the appellant.
Put differently, her evidence was that Nicole lied to the court in this regard.
She indicated that the two girls had previously asked her to approach her husband with a request that he pays their school fees as well as arrange for their travel to the United Kingdom to visit their mother. Should he fail to do this, they warned, they would fix him.
She believed, then, that this was said in jest but later realized that this was the genesis of her husband's woes.
She confirmed the phone call from Maramwidze on 31 October 2010. She only managed to go there on the next day. There, she learnt of these allegations for the first time.
When the appellant came to pick her up, she noticed that Maramwidze did not respond to her husband's greeting.
The reason she and her mother paid a subsequent visit to the Maramwidzes was to get the full details of the issues involved on her father's instruction.
She disputed the claim that Nicole was raped during the early hours of 22 August 2010.
Alphious Njodzi Chinhamo, the current Chief Mukangamwi, told the court, that, in 2013, they had approached the Vice President Mujuru with a request that the appellant be allowed to stand as a candidate for Bikita West Constituency. When they got to the Vice President's Office they met up with Francis Maramwidze. They were later advised by the Vice President that the appellant was facing rape allegations and therefore not suitable to contest on their party ticket.
Cletos Kereke's evidence was that he visited the appellant at his hospital in Mount Pleasant on 20 August 2010. From the hospital they had gone to 11 Tovey Road, Borrowdale. Since Patience had not yet arrived home, they did not spend time there. They proceeded to 75 Wallis Road, Mandara where they slept. To his knowledge, the appellant did not get out of the house the whole night. The next day, they had both gone to the hospital in Mount Pleasant and spent the whole day there. They had then gone to Borrowdale before proceeding to Mandara where they both spent the night. Accordingly, it is improbable, on his evidence, for appellant to have raped the complainant around 03:00 on 22 August 2010.
The evidence of the two guards was led to establish, as fact, that both the appellant and his brother would arrive at 75 Wallis Road, Mandara, at 21:00 and only left the following morning at 10:00. They said police had taken their Occurrence Book during investigations. This book would have confirmed their evidence....,.
Counsel for the appellant urged this court to find, that, in assessing the complainant, Nicole, as a reliable and credible witness, the court a quo erred in light of the objective reality of her story.
He argued that the court erred in convicting the appellant “on the basis of a story whose actus reus is incapable of performance or implausible on the circumstance alleged.”
He, in essence, invited this court to find, that, penetration of an eleven year old virgin, by an adult person, whilst seated on a couch, was not possible, nor was it conceivable that she could be penetrated without screaming....,.
In my view, the issues raised in the first ground, i.e. that it is inconceivable that an eleven year old virgin could be penetrated by an adult and fail to scream thereby alerting the other occupants of the house, were fairly and adequately explored and dealt with by the learned trial magistrate.
In S v Nyirenda 2003 (2) ZLR 64 (H) this court observed, that, it does not follow that every rape situation should be characterized by the screaming of the victim; tearing of the victim's garments; immediate report to a relative or someone close to the victim; crying after the rape; preservation of the evidence of rape, etc.
Each case has to be considered on its own merits: see Compare: Commonwealth v Berkowitz 641 F 2d 1161 (1994). This case was discussed in LYNN HECHT SCHAFRAN, Criminal Law: What is Forcible Compulsion? THE JUDGES JOURNAL, Winter 1995 at 43.
The language in which the first ground of appeal is couched reminds one of the wise words by the eloquent Justice L'HEUREUX DUBE, in her acknowledgement of criminal justice system failures in relation to crimes of sexual assault and the fact that legal decision-making about sexual law has too often been shaped by sexist biases and myths. She said:
“Complainants should be able to rely on a system free of myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions. The [Criminal] Code was amended in 1983 and in 1992 to eradicate reliance on those assumptions; they should not be permitted to resurface through the stereotypes reflected in the reasons of the majority of the Court of Appeal. It is part of this Court to denounce this kind of language, unfortunately still used today, which not only perpetuates archaic myths and stereotypes about the nature of sexual assaults but also ignores the law.”
See R v Ewanchuk 1999 1 S.C.R 330.
I find that the appellant's grounds of appeal reveals an embeddedness of the male viewpoint of sex in the law of sexual assault which pervades our society.
The problem is that the injury of rape lies in the meaning of the act to its victim, but the standard for its criminality lies in the meaning of the act to the assailant.
I am unable to accept that male lawyers should import their chauvinistic views about sexual assaults on women in such serious issues as an appeal against a conviction of rape.
This, in my view, is what counsel for the appellant has done.
Even assuming, in his favor, that he was articulating his client's viewpoint, his duty, as an officer of the court, is to ameliorate that language to avoid a clearly misogynistic opinion that coloured the grounds of appeal.
What a court of law must consider is whether the threshold of the standard of proof required in a criminal case has been breached.
I am of the view that it has. I reach that decision on the following basis:
The complainant explained, that, due to her immaturity at the time, she felt that she was responsible for what had happened to her. All she wanted was for her mother to know.
The learned magistrate was satisfied, that, by the nature of the graphic details which she gave, the complainant told the truth. He contrasted her evidence with that of the complainant in the indecent assault charge which lacked detail. It was on that basis that he had found that there was no proof beyond a reasonable doubt in respect of the first Count.
This is different from stating that the complainant had not told the truth.
The evidence on that Count did not reach the required threshold of proof beyond a reasonable doubt.
Therefore, I do not find that there was any misdirection in the manner which the credibility of the complainant, on the rape Count, was assessed as opposed to that of the complainant on the indecent assault charge.
The court a quo also considered whether or not the evidence given by the complainant in the rape Count could have been a result of suggestibility.
He was unable to find that she could have been influenced to give that quality of evidence regard being had to the fact that she had no prior sexual experience.
The court also paid due regard to the evidence by Dr Chanakira who testified that there was indeed evidence of penetration.
The appellant's counsel dwelt on the circumstances in this testimony given by complainant in court as compared to her earlier statements to police and to the many people she narrated her ordeal.
The court a quo held, that, although there are variations in regard to certain minute detail, it did not find any material inconsistencies with regard to how the offence was committed.
It gave the example of her initial statement to her sister in which she did not say she was raped. The court reasoned, that, her explanation, in court, that she was confused and embarrassed by the whole experience should account for her indecision on whether to report or not, or, if she were to tell, what detail to tell, to who, and how.
In my assessment, where a child is subjected to sexual abuse, a trial court ought not to nitpick and bear such scrutiny on immaterial detail with a view to cast doubt on the credibility of a witness evidence.
The proper approach always is to assess the merits as well as the demerits of a witness evidence and decide whether, as a whole, the truth has been told.
In this assessment of credibility, it must not be lost to a trier of fact, that, the witness does rarely make a report of abuse with a view to meticulously record it for the purpose of future use in a court of law.
Usually, a witness realizes that she may be required to recall all the minute details when she is called upon to give a statement to police. Even then, that statement may be taken in vernacular and translated by another officer who may or may not have the opportunity to clarify certain of the testimony at the time.
The witness is only required to do so in court when she has had to repeat her statement to many people.
In this situation, a court is entitled to require that credibility be tested against the realm of what the probabilities of the case maybe.
Each case will have to be assessed on its own merits.
The court a quo considered the question of the authenticity of the medical examination report by Dr Chanakira. It correctly concluded that the doctor's findings provide irrefutable corroboration of sexual penetration. The complainant's evidence in this respect is therefore corroborated.
Counsel for the appellant urged this court to conclude that penetration of an eleven year old virgin was a virtual impossibility given the fact that this was said to have happened when she sat in a couch. His argument implies, that, because the appellant is an adult he could not possibly effect penetration on an eleven year old in that situation.
Impossibility as a defence is only available in situations where an accused has a positive duty to act.
The argument of impossibility of the actus reus, in my view, is not sustainable as it is not premised on any evidence of the physiology of either the complainant's or appellant's anatomy. It makes an assumption of what, in reality, constitutes some of the myths of rape to be fact. Such an argument cannot possibly avail the appellant.
As I pointed out, it is based on a wrong premises. I reject it accordingly.
