MOYO J:
This is an application for bail pending appeal. The applicant was
convicted of rape. In contravention of Section 65 of the Criminal Law
(Codification & Reform) Act Chapter 9:23. He was sentenced to 15
years imprisonment of which 23 years was suspended on the usual
condition.
Applicant avers that he has prospects of success on appeal in that:
1)
the court a quo grossly misdirected itself in convicting the applicant
without applying the law regarding the manner in which the report of rape was
made. He avers that it was not made freely and voluntary.
2) the
court a quo averred in convicting the applicant without applying the law on the
causes of the delay in making the report of rape. He avers that the
report was only made after an interrogation by the victim's parents concerning
her pregnancy.
The complainant alleges that she was raped sometime in July and the beginning
of August 2013. The complainant is a 13 year old minor. She said
she did not tell anyone about the alleged rape. She said that the offence
came to light when her mother and aunt noticed changes on her and that she was
no longer active. Complainant said she did not report to her mother as
applicant had told her not to tell anybody. The aunt who discovered the
offence stated that she noticed through observation that complainant was not
happy and that she had bodily changes on her, she became suspicious and decided
to ask complainant about it. At the same time she consulted complainant's
mother.
She said she asked complainant if she was alright and complainant said
No. She further asked complainant what was the matter with her and
complainant. The complainant then mentioned applicant by his nickname of ''Dot
com''.
This witness said it was on 30 August 20113 at 0830 am. She further
explained that the applicant had sexual intercourse with her without her
consent. The trial magistrate dealt with the issues surrounding the
making of the report. It is common course that the complainant and the
applicant knew each other well prior to the commission of the offence and that
they were close and complainant referred to the applicant as ''Dot –Com''.
Applicant also referred to the complainant as ''Petty'' in the
proceedings. The complainant itself was made on the 30th of
August 2013, a few weeks or at most about a month after the alleged rape.
There is seemingly nothing that turns on such a period of time warranting that
the complainant should then be thrown out. Again on the issue of the
circumstances under which it was made, nothing turning on that as the
complainant's aunt upon observing that something was wrong with complainant simply
asked her if she was ok and complainant said she wasn't, she then asked her
what was wrong and she mentioned ''Dot-com'' meaning the
applicant. There is nothing that can be said to be interrogative,
suggestive or probing in nature to warrant a finding that such a complaint was
not made freely and voluntarily.
I accordingly find that there is nothing anomalous with the circumstances in
which the complaint was made and I accordingly find that there are no prospects
of success on appeal. The application for bail pending appeal is
accordingly dismissed.
Mcijo, Dube and Partners,applicant's
legal practitioners
The
Attorney General's Office,respondent's legal
practitioners
