MAVANGIRA J: in this matter the Attorney-General has, in
terms of s 35 of the High Court Act, [Cap 7:06], filed a
notice conceding that the conviction of the appellant cannot be supported. The
section provides:
35 Concession of appeal by Attorney-General
When an appeal in a criminal case, other than an appeal
against sentence only, has been noted to the High Court, the Attorney-General
may, at any time before the hearing of the appeal, give notice to the registrar
of the High Court that he does not for the reasons stated by him support the
conviction, whereupon a judge of the High Court in chambers may allow the
appeal and quash the conviction without hearing argument from the parties or
their legal representatives and without their appearing
before him.
As the concession was properly made the case was withdrawn
from the roll to be dealt with in chambers. Below appear the reasons why the
Attorney-General's concession is proper and consequently why the appeal must
succeed.
The appellant was charged with one count of having
extra-marital sexual intercourse with a young person in contravention of s 70
(1) (b) of the Criminal Law (Codification and Reform) Act, [Cap 9:23]
(the Act). The appellant who was not legally represented at the trial initially
pleaded guilty to the charge. When the facts and essential elements of the
offence were put to the appellant his plea was altered to one of not guilty in
view of his responses. He was then convicted after a trial and sentenced to 30
months imprisonment of which 6 months imprisonment was suspended on condition
of future good conduct. He now appeals against both conviction and sentence.
A medical report that was produced in evidence showed that
the complainant was 18 weeks pregnant.
The grounds of appeal against conviction are firstly, that the lower court erred
in failing to appreciate that the facts surrounding the commission of the
offence and the subsequent events leave room for the possibility that the
complainant had represented to the appellant that she was over 16 years of age.
Secondly, that the lower court erred by arriving at a decision which is not
supported by the evidence led in that the proved facts are consistent with the
appellant's defence, thus entitling the appellant to the benefit of the doubt.
Thirdly, that lower court erred in that the manner in which the trial was
conducted was less than fair to an unrepresented accused person. As the
concession that the conviction of the appellant was not proper is justified on
the evidence on record, it will not be necessary to spell out the grounds of appeal
against sentence.
The appellant admitted having sexual intercourse with the complainant but said
that he was in love with her and that she had told him that she was 16 years of
age. Before then, he had also inquired from his friend's wife who resided at
the same homestead with the complainant and who was also the one who initiated
the idea that he meets with the complainant, whether the complainant was not a
minor. He said that his friend's wife told him that she had seen the
complainant's birth certificate and that the complainant was not a minor. A
birth certificate produced in evidence showed that the complainant was born on
27 August 1995. This would mean that when the appellant had sexual intercourse
with her on 19 December 2010 and 9 January 2011, the complainant was about 15
years and 4 months old.
In S vHove 1992 (1) ZLR 70 (S), “the appellant admitted
having intercourse with the complainant but stated that he was in love with her
and that she had told him that she was nineteen years of age. A dentist's
report produced in evidence showed her to be between the ages of fourteen and
fifteen years of age.” Commenting therein at p. 71C, EBRAHIM JA said:
“In order for him to escape conviction it was incumbent
upon him, therefore, to prove on a balance of probability:
(i)
that he bona fide believed
the complainant to be above the age of sixteen years; and
(ii)
that he had reasonable cause for such
belief. See R vCarmody 1969 (2) RLR 525 (AD) at 527E.”
and further at 71E:
“ … only in rare instances is there room for a finding that
the belief, though not reasonable, was nevertheless bona fide.”
More importantly, at 71F the learned judge stated:
“The appellant was not legally represented at his trial and
there is nothing on the record to indicate that he was advised of the onus
which rested on him in terms of the proviso to s 3(a) of the Act. It seems to
me that where there is an onus placed upon an accused person a trial court
should advise him accordingly, see R vHenstock 1950 SR 252.”
In casu the appellant was not legally represented. Subs 3 of s 70
section in terms of which he was charged and convicted provides:
“(3) It shall be a defence to a charge under subsection (1)
for the accused person to satisfy the court that he or she had reasonable cause
to believe that the young person concerned was of or over the age of sixteen
years at the time of the alleged crime:
Provided that the apparent physical maturity of the young
person concerned shall not, on its own, constitute reasonable cause for the
purposes of this subsection”.
There is nothing on the record to indicate that the lower
court advised the appellant of the provisions of s 70(3) of the Act. That was a
misdirection on the part of the lower court.
The appellant maintained his defence that he believed that
the complainant was 16 years old and he stated the reasons for his belief. The
appellant's wife's friend, one Mai Tinevimbo also referred to as Mrs Kajese,
was therefore a crucial and material witness. She was never called to testify.
Whilst the lower court was entitled to convict the appellant on the single evidence
of the complainant, this was a proper case for it to approach her evidence with
caution and look for corroboration. In S vHove (supra)
the following was said at 72D – E:
“The court a quo was entitled to convict the
appellant on the single evidence of the complainant: S vZimbowora 1992
(1) ZLR 41 (S) and the cases cited therein. But here the complainant was a
witness with an interest to serve and therefore there was need to approach her
evidence with caution and to produce corroborative evidence, if available: S
vZimbowora supra. The failure by the prosecutor to lead evidence
of a corroborative nature seriously weakened his case and does not inspire
confidence leading to the acceptance of the evidence of the complainant, a
single witness.”
The above remarks hold true for the present case and Mai
Tinevimbo was a crucial evidence for the lower court to arrive at the truth of
what happened. The prosecutor having not called Mai Tinevimbo, the lower court
ought to have, in terms of s 232 of The Criminal Procedure and Evidence Act, [Cap
9:07], mero motu subpoenaed Mai Tinevimbo in the interests of
justice. The section provides:
“232 Subpoenaing of witnesses or examination of persons in attendance
by court
The court—
(a)
may at any stage subpoena any person as a witness or examine any person in
attendance though not subpoenaed as a witness, or may recall and re-examine any
person already examined;
(b)
shall subpoena and examine or recall and
re-examine any person if his evidence appears to it essential to the just
decision of the case.”
Despite the fact that it was not disputed by the State that
Mai Tinevimbo had engineered the meeting between the two and the appellant's
evidence as to what Mai Tinevimbo told him about the complainant, in addition
to and in agreement with what the complainant also told him, neither the
prosecutor nor the court found it necessary to call her to testify. The need
for Mai Tinevimbo's evidence is called into greater focus regard being had to
the provisions of s 70(3) of the Criminal Law (Codification and Reform) Act (supra).
The lower court would then have been in a position to determine whether or not
the appellant had a reasonable cause for the belief that the complainant was
not a minor. Sight is not lost in this regard that the appellant's evidence
that he had been advised that the complainant was repeating Form 3 and that the
complainant's behaviour also led him to believe that the complainant was 16 was
never challenged.
A further unsatisfactory feature of this matter is the fact
that the learned trial magistrate merely said that there was nothing in the
complainant's physical appearance that would have justified a belief that she
was over 15 without giving his reasons for making such a conclusion. In S v
Ryce S – 138-88 at p 11 GUBBAY JA as he then was, stated:
“the magistrate was entitled to take into account his
estimation of the complainant's age from her appearance in deciding whether or
not the appellant had reasonable cause to believe that she was of the age of
sixteen years or above. But it is unfortunate that he did not record what
caused the impression in his mind that she was between fourteen and fifteen
years old. Was she small of stature and of slight build? Was her body not fully
developed? Was her face childlike? Was she an unsophisticated and timid girl?
These are matters of which this court should have been advised, for without any
reference being made to them there is merely a personal opinion of appearance
without the factual evidence in support of it. Regrettably therefore, little
weight may be attached to the magistrate's estimation of the complainant's
age.”
In casu the learned trial magistrate did not state
the basis for his conclusion that the complainant was under the age of sixteen
years of age. Little weight may therefore be attached to his estimation of the
complainant's age.
For the reasons discussed above I agree with the concession made by the
Attorney-General and I accordingly quash the conviction and set aside the
sentence.
HUNGWE J agrees.
Kantor & Immerman, appellant's legal
practitioners
The Attorney General,
respondent's legal practitioners
