MOYO
J: The
accused person in this matter was arraigned initially appeared before
one magistrate charged with the offence of having sexual intercourse
with a minor as defined in section 70 (1) (a) of the Criminal Law
(Codification and Reform) Act [Chapter 9:23].
Midway
during those proceedings, they were stopped as the evidence led
prompted the state to alter the charge to that of rape as defined in
section 65 of the Criminal Law Codification and Reform Act (supra)
(hereinafter
referred to as the Code).
The
facts of the matter as stated in the state outline point to the
existence of a love affair between the accused and the complainant.
It was alleged there in that the accused person, on an unknown date
between December 2011 and October 2012 fell in love with the
complainant and started having sexual intercourse with her and yet
the complainant was aged 15.
In
his defence outline the accused person stated that he had proposed
love to the complainant who accepted and that he had sexual
intercourse with her by consent. He also told the court that the
only problem was that complainant's aunt caught them having sex in
the bedroom and that is when they were later taken to the police.
The complainant in her evidence accepted that the accused did propose
love to her but that she did not accept his proposal. She told the
court that they lived in the same house with accused who had his own
bedroom.
The
complainant said she shared a bedroom with her other two sisters and
her aunt. She told the court that the accused person would give her
monies to buy lollipops. She said on one occasion, the accused
person raped her in the sitting room. On another occasion the
accused person raped her when she was in the bathroom. And yet on
another occasion the accused person raped her when she was in the
bedroom sleeping on the floor. Her aunt and the other children slept
on the bed. Accused came and slept on top of her whilst she was fast
asleep. Her aunt woke up intending to go to the toilet and she saw
the accused person on top of the complainant. The matter was then
reported to the police.
Crucial
from the complainant's version of events is that the report of the
sexual assault was made after their aunt discovered it and she talks
of several other occasions where accused had forced sex with her.
She says the accused person told her not to tell anyone and that she
was afraid of her aunt.
The
aunt confirms that indeed she discovered accused sleeping on top of
complaint as she was leaving for the toilet. We are not told if ever
complainant screamed or showed any signs of resistance.
It
is my view that complainant's conduct on that night is consistent
with the accused person's defence that he went there on agreement
with the complainant as she was his girlfriend. The aunt also says
she never spoke to accused about the issue until the day she came to
give evidence in court. Why would she not query what the accused
person was doing? She also said she did not know if accused was in
love with the complainant. A crucial question that the court should
have asked itself dealing with an unrepresented accused person is
that why would he sneak into a bedroom that is fully occupied by
other people including an adult to commit an offence of rape? The
second crucial question that the court should have asked itself is
that why would the complainant be raped quietly in a bedroom with
other occupants? The next crucial question that the court should
have asked itself is, does the complainant have any incentive to lie
against the accused person? Which incentive the court would have
found in that they had been caught by adults and she could be denying
the issue of consent to save her own skin. The next crucial question
that the court should have asked itself was if the accused person's
version could safely be dismissed as being improbable, unreasonable
and not possibly true? I do not think the accused's defence can be
found as such in the circumstances I have just queried.
An
accused person's defence should not be disbelieved by the court and
rejected where what the accused person proffers as a defence cannot
be dismissed as improbable, unreasonable and possibly untrue. The
fact that he failed to ask certain questions in cross examination of
the aunt does not in my view render his defence improbable or untrue
as the aunt's evidence did not in my view add much to the state
case. It is the complainant's evidence that was crucial. The
required standard of proof beyond a reasonable doubt was aptly put in
the case of S
v Makanyanga
1996 (2) ZLR 231. The court in that case stated thus:
“A
conviction cannot possibly be sustained unless the judicial office
entertains a belief in the truth of a criminal complaint, but the
fact that such credence is given to the testimony of the
complainant's testimony does not mean that conviction must
necessarily ensue. Similarly, the mere failure of the accused to win
the faith of the bench does not disqualify him from an acquittal.
Proof beyond reasonable doubt demands more than that a complainant be
believed and accused disbelieved. It demands that a defence succeeds
wherever it appears reasonably possible that it might be true.”
(emphasis mine)
The
accused person's version that complainant had consented has not
been shown in the court record to be palpably false in my view. It
is for these reasons that we find that the conviction of rape in
contravention of section 65 of the Code cannot be safe in light of
the factors alluded to herein. A proper conviction would be that of
contravention of section 70 (1) (a) of the Code. The conviction and
sentence are accordingly set aside.
The
accused person is accordingly convicted of the offence of having
sexual intercourse with a minor as defined in section 70 (1)(a) of
the Code.
He
is a first offender. By implication he pleaded guilty to the
appropriate charge as he did not dispute having sex with the
complainant but stated that it was consensual. The sentencing trends
on statutory rape the previous equivalent of contravention of the
current section 700 (c) of the Code. have been dealt with in depth
by the late MUTEMA
J
in the case of S
v Tshuma
HB 70/13.
From
that judgment it is clear that a non-custodial sentence is usually
passed in such offences. In that case the learned judge altered a
sentence of 18 months imprisonment with 6 months suspended on the
usual conditions to a fine of $200 or in default of payment 25 days,
the 25 days being the amount of time the accused person had already
spent in prison. The court in that case held that the accused from
the sentencing trends did not deserve incarceration at all. The
court quoted the following cases:
1) In
S
v Nare
1983 (2) ZLR 135 the accused was sentenced to $750 or 5 months
imprisonment for statutory rape (which was the equivalent for the
current charge then)
2) S
v Mutowo
1997 (1) ZLR 87 (HC). On review a sentence of 24 months imprisonment
with 10 suspended was altered to a fine of $300 or 1 month
imprisonment.
3) In
S
v James
1998 (1) ZLR 424 (SC). The accused was sentenced to $600 or 1 month
imprisonment.
At
the time the accused person in this matter was liberated on automatic
review he had
already
served 21 days and yet from the sentencing trends he did not deserve
to be incarcerated
at
all. It is for these reasons, guided by the Tshuma
case supra
that the accused will be sentenced
to
pay a fine of $200 or in default, 21 days imprisonment (which he has
already served) and is
therefore
entitled to his immediate release.
I
accordingly make the following order:
1) The
conviction on the charge of rape as defined in section 65 of the Code
together with the sentence in this matter be and are hereby set
aside.
2) They
are substituted as follows:
a) The
accused person is convicted of the offence of having sexual
intercourse with a minor as defined in section 70 (1) (a) of the
Code.
b) The
accused person is sentenced to pay a fine of $200 or in default of
payment 21 days imprisonment which imprisonment he has already served
and is accordingly entitled to his immediate release.
Takuva
J agrees……………………………………..
