This is an application for bail
pending appeal.
The appellant was convicted of rape
in contravention of section 65 of the Criminal Law (Codification and Reform)
Act [Chapter 9:23].
The appellant was sentenced to 15
years imprisonment of which 3 years imprisonment was suspended on the usual
conditions.
The appellant avers that he has
prospects of success on appeal in that:
(1) The court a quo grossly misdirected itself in
convicting the appellant without applying the law regarding the manner in which
the report of rape was made. He avers that it was not made freely and
voluntarily.
(2) The court a quo erred in convicting the
appellant 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changes on her and that she was no longer active. The complainant said she
did not report to her mother as the appellant had told her not to tell
anybody. The aunt who discovered the offence stated that she noticed,
through observation, that the complainant was not happy and she had bodily
changes on her; she became suspicious and decided to ask the complainant about
it. At the same time, she consulted the complainant's mother.
She said she asked the complainant
if she was alright and the complainant said “No.” She further asked the
complainant what was the matter with her and the complainant then mentioned the
appellant by his nickname of “Dot com.”
This witness said it was on 30
August 2013, at 0830am, when the complainant told her about the alleged
rape. She further explained that the appellant had sexual intercourse with
her without her consent. The trial magistrate dealt with the issues
surrounding the making of the report. It is common cause that the complainant
and the appellant knew each other well prior to the commission of the offence
and that they were close and the complainant referred to the appellant as “Dot
com.” The appellant also referred to the complainant as “Petty” in the
proceedings. The complaint 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 a period of one month
warranting that the complaint be thrown out. Again, on the issue of the
circumstances under which it was made, nothing turns on that as the
complainant's aunt, upon observing that something was wrong with the
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”, referring to the
appellant. 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.
In such cases, the court has to
adopt a common sense approach and be satisfied that the evidence of the
complainant is the truth. All that is required is for the court to be
satisfied that the complainant is a credible and reliable witness. Refer
to the case of State vs Banana
2000 (1) ZLR 607 (SC).
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.
