MAVANGIRA J: The appellant was arraigned before the
Magistrates Court at Harare on a charge of one count of rape as defined in s.
65 of the Criminal Law (Codification and Reform) Act, [Cap 9:23.] He
pleaded not guilty but was convicted after a protracted trial. Upon conviction
he was sentenced to 12 years imprisonment of which 5 years imprisonment was
suspended for 5 years on condition of future good conduct.
The appellant now appeals against conviction and sentence. He raises thirteen
(13) grounds of appeal against conviction and two against sentence. The
respondent has aptly summarised the appellant's grounds of appeal against
conviction, which summary I find to be a true reflection of the essence of the
same. The summary is in the following terms:
“i) The court a quo erred in
convicting the appellant on the basis of the
complainant's evidence
which was not credible because she gave two
inconsistent and
irreconcilable statements to the police and her evidence in court
was contradictory to
the 2 different statements given to the police.
ii) The court a quo erred in
convicting the appellant where there was no evidence
adduced to
corroborate complainant's evidence.
iii) The court a quo erred in accepting the
evidence of the complainant despite the
inconsistencies
and rejecting that of the appellant when his version of events was
reasonably
possibly true.
iv) The court a quo erred and misdirected
itself by calling Doctor Okwanga as a
witness after the
state and defence case had closed. This was tantamount to
calling evidence to
rebut the defence version.
v) The court a quo erred and misdirected
itself by refusing the defence the right to
reply to the
submissions by the state when it was clear the state had filed its
submissions after the
defence.”
The outline of the State case as presented to the court by
the State was to the effect that on 29 August 2010 at 6.00 hours the
complainant, an 11 year old girl, passed through the appellant's business
premises. She was on her way to Dzivarasekwa in search of her relatives. As she
was walking past, the appellant called her and asked her where she was going.
He asked her if she had bus fare for her journey. She said that she had no
money and he gave her $2.00 for bus fare. This was in the presence of one John,
a security guard at the appellant's business premises.
At Dzivarasekwa the complainant failed to locate her
relatives. She went to Dzivarasekwa police station where she remained until 31
August 2010. She went back to the appellant's place arriving there at about
15.00 hours. She saw the security guard John and asked to see the appellant.
She was directed to the receptionist Emelda who showed her into the appellant's
office. The appellant told the complainant to go and sleep at a cottage behind
the garage. She slept in the room. During the night the appellant came and
joined the complainant in the room where she was. He got into the blankets in
which she was and raped her. In the morning the appellant gave the complainant
US$80 to buy what she wanted. He threatened her not to tell anyone about the
incident or she would be arrested.
The complainant went to Mutare where she made a report at
Dangamvura Police Station from where the matter was referred to Southerton
Police Station.
On a perusal of the evidence adduced before the trial court
as recorded in the record of proceedings the following are discernible as the
circumstances of the alleged sexual offence. These are that the complainant met
the appellant for the first time on 29 August 2010. She spent the nights of 29
and 30 August 2010 at Dzivaresekwa Police Station. On 31 August 2010 she was
taken to Glen View 2 police Station from where she went back to the appellant
at around 1500 hours. She slept at the appellant's company premises on the
night of 31 August and 1 September 2010. She was raped on the night of 1
September 2010. She was given money by the appellant on the morning of 2
September 2010. She arrived in Mutare on the same day and on that same day Mrs.
Jongwe took her to the police and the offence was discovered. A medical
examination conducted the following day revealed a fresh tear on the hymen and
a discharge from her vagina. The doctor concluded from these observations that
the complainant may have been sexually abused and that the discharge may have
been a sexually transmitted disease. He said that his findings were consistent
with her allegations. The complainant named the appellant as the perpetrator.
In his defence outline the appellant denied raping the
complainant or committing any other offence. He stated that the charge is
fabricated and was meant to extort money out of him but because he resisted the
attempts to extort money out of him, this led to his arrest. He rather portrayed
himself as a Good Samaritan who offered assistance to the complainant out of
pity for her dire situation. In his evidence the appellant confirmed or did not
dispute all other events except the alleged spending of the night of 31 August
2010 to 1 September 2010; he also denied the rape.
In its analysis of the evidence placed before it the court a
quo found the following facts to be common cause. The appellant attracted
the complainant's attention on 29 August 2010. He asked the complainant where
she was going. He gave her $2.00 on the first day of their meeting and the
complainant returned to the appellant's company premises on the third day after
their meeting. He gave her money to buy school uniforms. The complainant made a
report of rape in Mutare on the day that she left Harare for Mutare after being
given money by the appellant. The complainant was medically examined the day
after she made the report. The medical report, exhibit 3, stated that
penetration had been effected. The examining doctor also gave viva voce evidence
to the effect that he had noted a fresh tear on the vagina when he conducted
the examination on 3 September 2010.
The applicable law in matters of this nature was enunciated
resolutely in S v Banana 2000(1) ZLR 607(s) where at 613 B
GUBBAY CJ stated:
“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.”
He then stated at 614 E-G:
“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….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.”
and at 614 H to 615 A
“It is, of course, permissible in terms of s.269 of the
Criminal Procedure and Evidence Act. (Cap 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 vMokoena 1932 OPD 79 at 80
was that the evidence of a single witness must be found to be “clear and
satisfactory” in every material respect.”
At 615 E-H he stated:
“In Zimbabwe, much the same approach has been adopted. In S
v Nyathi 1977 (2) RLR 315(A) at 318 E-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 against its credibility. In essence, a commonsense approach must
be applied. If the court is convinced beyond 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 (Z) ZLR 136 (S) at 138 D-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.”
It was also held in theBanana case supra, that the cautionary
rule in sexual cases is based on an irrational and outdated perception and has
outlived its usefulness.
A perusal of the court a quo's judgment shows that the court was alive
to the fact that sexual offences require special treatment. The court found
that the merits of the 11 year old complainant based on her simple and
chronological narration of events were without question. On that basis the
trial court could properly convict the appellant even without corroboration.
However, there was corroborative evidence placed before the court in the form
of the medical report as well as the examining doctor's evidence. The evidence
of Lillian Madzivadondo also corroborated the complainant's in material
respects.
The court has derived much assistance from both counsel's extensive heads of
argument to which they both conscientiously addressed their minds.
The respondent's counsel rightly conceded that the complainant's testimony was
at variance with the state outline appearing in the record of proceedings. She
also correctly highlighted the fact that two statements were recorded from the
complainant pertaining to the rape allegation. One was recorded at Dangamvura
Police Station not by the officer that she initially told about the rape but by
another at about 8:00pm on 2 September 2011. The second statement was recorded
on an undisclosed date at Southerton police Station by yet another officer who
had presumably taken over from a different officer who had been arrested for
extortion. Whereas the complainant's testimony is in line with the statement
recorded at Southerton, the State outline appears to have been prepared on the
basis of the statement recorded at Dangamvura. State counsel also rightly
observed that the major difference between the two statements is the
description of the manner in which she was raped. Furthermore, that what is of
significance is that events which occurred prior to the rape; the place where
the offence was allegedly committed, the identity of the assailant, the
allegation that she was raped and the events after the rape, particularly, that
the complainant was given money by the appellant, all remain unchanged in both
statements. Thus the divergence between the two was not so gross as to warrant
rejection of the complainant's evidence by the trial court on that basis. By
the same reason this court would not interfere with the trial court's decision
to readily accept the complainant's testimony as the truth of what had
transpired. This is particularly so regard being had to the fact that an appeal
court will not readily interfere with a trial court's findings on credibility
such being the trial court's domain. It also of significance that in her
testimony the complainant said that she was raped at gunpoint. Although he
denied the charge the appellant confirmed that he owned a pistol which at one
point the complainant saw.
The trial
court's acceptance of the complainant's evidence as reflecting the truth is
justified on the evidence adduced before it. Before 29 August 2010 the 11 year
old complainant was a total stranger to the appellant. She was properly warned
by the court to tell the truth. She gave a simple and straightforward narration
of what she said transpired, most of which events were confirmed by the
appellant. She was positive and unequivocal about her assailant's identity. She
exhibited no motive to lie against him neither was any attributed to her. The
appellant had extended generosity to her in her hour of need. The court a
quo consequently posed the following, somewhat rhetoric, question: “The
court would ask if accused is denying sexually abusing her; why complainant
would be so evil to betray a Good Samaritan in the accused's standing who had
rescued her?” (sic).
An examination of the appellant's defence on the other hand reveals the
following. The contention in his defence that the charges against him were a
fabrication by the police who were bent on extorting money from him does not
hold especially when regard is had to the fact that the police in Mutare got to
know of the allegations first before the police in Harare were made aware of
them. The appellant also claimed in his defence that he was impotent. Although
his doctor testified inter alia that the appellant could not perform
any sexual act, he was unable to explain how the appellant had fathered a child
some 4 years before, a child that the appellant initially said was his. Another
curious aspect of the defence case is that although the defence outline stated
that the night watchman was one Itayi Tom, it was one Remember Chiripanyanga, a
bus cleaner, who testified and claimed that he was the guard on duty on the
night of 1 September 2010.
For the above reasons the first three grounds of appeal as summarised above do
not hold. As regards the trial court's decision to call Doctor Okwanga, it
cannot in the circumstances be construed as an attempt to adduce evidence to
rebut the defence version. Section 232 of the Criminal Procedure and Evidence
Act, [Cap 9:07] empowers a court to mero motu subpoena a
witness whose evidence is essential to the just decision of a case. Doctor
Okwanga was subpoenad by the court mero motu for the purpose of
ascertaining the effects of diabetes insofar as issues of sexual intercourse
are concerned.He was meant to give a second independent opinion on the subject.
The doctor who had testified earlier had been non committal on the subject and
there had not been produced any proof of any tests conducted by the doctor on
the appellant. In any event, it is common practice by the courts where expert
medical opinion is required on a disputed or unclear point, to call a neutral
party in the form of a registered government medical practitioner to assist the
court. At the end of the day the trial court analysed the totality of the
evidence and not merely the subpoenad doctor's evidence. The trial court then
proceeded to justifiably convict the appellant.
The last of the grounds of appeal against conviction as summarised is that the
trial court misdirected itself by refusing the defence the right to reply to
the state's submissions. With regard to this ground state counsel has rightly
observed that on a perusal of the record of proceedings there is no indication
that the appellant intended to exercise that right and was denied the
opportunity to do so by the court. On an overall consideration of the evidence that
was adduced before the trial court it would appear that the trial magistrate's
conviction of the appellant cannot be faulted as it is supported by the
evidence. The appeal has no merit and cannot succeed.
With regard to the appeal against sentence, the first ground raised is that
taking into account the personal circumstances of the appellant the sentence
imposed is unduly harsh and severe. Secondly, that the sentence is out of line
with sentences imposed in similar circumstances. Though brief, the trial
magistrate's reasons for sentence show that he took the relevant considerations
into account in arriving at the sentence that he did. Furthermore, it has not
been shown how the sentence is not in line with sentences passed in similar
circumstances. On the other hand state counsel cited the case of S vNyaminda
2002 (2) ZLR 607 wherein it was held that a rape perpetrated on a young
girl should attract a sentence of at least 10 to 12 years imprisonment. In casu
by reason of the appellant's personal circumstances, a sentence within the
expected range was imposed but a substantial portion thereof was suspended on
condition of future good conduct. There is no merit in the appeal against
sentence which appeal must also fail.
In the circumstances the appeal is
dismissed in its entirety.
HUNGWE
J agrees
