CHEDA
J: This is an appeal against both conviction and sentence.
The facts of this matter as per the State outline are that
appellant and complainant are neighbours and are aged 18 and 13 years
respectively.
On the 15th May 2011 at around 0700 hours, complainant was playing
outside the gate with other children when appellant came and called
her. She refused and he pulled her by the hand. She resisted
and bit him on the hands but he refused to release her. He took her far
away from other children. At this juncture one Talent remonstrated with
him to leave complainant alone but appellant would not listen. He got to
a secluded spot where he removed complainant's pant and had sexual intercourse
with her without her consent. She felt pain and cried. Appellant
got off her. She wore her pant and ran back to other children. She
was then medically examined and the Doctor who carried out the examination
noted that there was very likelihood of penetration.
Appellant pleaded not guilty, but, was convicted and sentenced to 18 years
imprisonment of which 9 years was suspended for 5 on the customary condition of
good behaviour.
The basis of his appeal against conviction is that:
(1) the state did
not prove its case beyond reasonable doubt as:
1.1 the State witnesses contradicted
themselves
1.2 there was no evidence linking him to
the crime
1.3 the identification parade was not
properly carried out.
The evidence of children has to be carefully weighed as they are generally
vulnerable and are susceptible to regurgitating statements from adults, thereby
turning fiction into facts. It is for that reason that these courts are
extra cautious where children's' evidence is concerned. In S v
Sibanda 1994 (1) ZLR the Supreme Court analysed the possible pitfalls and
gave guidelines in that regard.
The complainant is indeed a very young girl. Her evidence was very clear,
she was playing with her friends where appellant grabbed her hand. This
was in full view of other children. Talent Ncube also witnesses this
incident. Above all the medical report confirms that complainant was
sexually interfered with.
Appellant also attacked the identification parade. The need for a
fairness in the conduct of an identification parade can not be
overemphasised. The courts will always exercise caution where evidence of
visual identification is concerned. The cardinal question is, is it
possible that the witness was mistaken? The relevant questions which the
court should focus on are:
“(1) For what amount of time
did the witness have the accused under observation?
(2)
What was the distance between the witness and the accused at the time of
observation?
(3) What were the
lighting conditions at the time?
(4)
Were there any objects in the way which would have prevented or obscured
observation?
(5)
Does the witness have good or poor eyesight? Does he wear glasses and did
he have them on at the time?
(6) Did the
witness see clearly the accused's face or only the rest of his body?
(7)
Had the witness known the accused previously and if he had, how well had he
known him?
(10)
If the accused has no distinctive facial or other features, how can the witness
be certain of the identification?”
The offence occurred in the morning in view of other children, therefore
complainant cannot be mistaken of the identity of the appellant. She was
very close to him from the time he grabbed her hand, pulling her to a secluded
spot, up to the time he mounted on her. She therefore had a clear view of
his face.
In my respectful view the complainant can not be mistaken about her
assailant. There is therefore no misdirection on the part of the trial
court and I find that the conviction was proper.
With regards to sentence appellant was 18 years of
age. He grabbed complainant's hand in broad day light. Despite
vigorous resistance in protest to an extent of biting him, he was not prepared
to let go. He did this in full view of other children including Talent
Ncube who tried to stop him.
Appellant exhibited beastly conduct which can not be condoned. He indeed
was young but his determination is in tandem with the behaviour of a sexually
mature adult.
This is one of those cases where the appellant deserved to be treated like an
adult.
Order.
The appeal against both conviction and sentence be and are
hereby dismissed.
Messrs Cheda and partners,
appellant's legal practitioners
Criminal Division, Attorney General's Office, respondent's legal practitioners
Cheda J.................................................................
Cheda
AJ agrees........................................................
