The
appellant was tried and convicted of attempted rape as defined in
section 65(1) as read with section 189(1)(a) of the Criminal Law
[Codification and Reform] Act [Chapter 9:23]….,.
The
State's allegations were that, on dates to the prosecutor unknown
but during the period which extended from July to September 2012, and
at Mutize Complex, which is at Murehwa Business Centre in Murehwa,
the appellant did, on several occasions, attempt to have forceable
carnal knowledge of Paidamoyo Munemo, who, at the time, was 16 years
of age.
The
appellant denied having ever attempted to rape the complainant. He
stated, during the trial, that his political foes were using the
complainant with a view to tarnishing his image. He said he was an
aspiring MDC-T candidate for his area and his enemies worked with the
complainant to soil his personal standing in the community ahead of
the elections which were then due. He stated, further, that the
complainant became hostile to him some months before the report of
the alleged attempted rape. The hostility, he said, surfaced when the
complainant started flirting with men who furnished her with goodies
and drove her in their motor vehicles at night as a result of which
the appellant told her that he was no longer able to stay with her at
his home.
The
appellant appealed against both conviction and sentence. He stated,
in his grounds of appeal against conviction, that the trial court:
(a)
Erred in convicting him on a charge of attempted rape when there was
no evidence which showed, beyond reasonable doubt, that he committed
the offence;
(b)
Misdirected itself in convicting him when evidence which the State
led showed that it did not pass the test for admittance of a
complaint of attempted rape; and
(c)
Erred by failing to give due weight to his defence which was probable
in the circumstances of the case which was then before it….,.
The
respondent's attitude to the appeal was that the conviction was
unsafe and should, therefore, be quashed and the sentence set aside.
It stated that the evidence of witnesses for the prosecution was not
only contradictory but was also inconsistent, conflicting and
uncorroborative of each other. It made eight observations of matters
which it said fell into the one or the other or all of the mentioned
categories. It, in this regard, requested that the appeal be dealt
with in terms of section 35 of the High Court Act [Chapter 7:06].
Evidence
which is filed of record showed that the complainant is not an
un-intelligible girl. She gave what may be regarded to have been a
detailed account of what she said the appellant did to her. A cursory
reading of her evidence would convince a non-circumspective judicial
officer that what she alleged against the appellant was what actually
took place. A close analysis of her testimony, however, shows that
the complainant is a very resourceful girl who can easily lay a false
charge against someone, and, with little if any difficulty, pin him
or her on to the case.
The
complainant's evidence was that the appellant made an effort to
have forceable carnal knowledge of her on two consecutive occasions
in July 2012. She said her aunt, who is the appellant's wife, was
in Harare when the incidents occurred. She was candid to inform the
trial court that she did not report the incidents to her aunt on the
latter's return home from Harare. She proffered no reason for not
reporting.
The
complainant's abovementioned conduct is, in the court's view, not
consistent with that of a victim of attempted rape or rape. Such a
victim does, by and large, make every effort to report the crime to a
person she is reasonably expected to do so at the earliest
opportunity which offers itself to her. The remarks of GILESPIE J in
S
v Zaranyika
1997 (1) ZLR 539 are pertinent on this aspect of the case. The
learned judge stated, in the mentioned case, that:
“Both
the promptitude
and the spontaneous or voluntary nature of the complaint are
important elements rendering such a complaint admissible”…,.
The
complainant did not report the alleged attempted rape promptly. She
reported some four months after the event. She reported in November
2012. She did so to one Patricia Zvibate Mupfuti who was Headmistress
of the school where she was attending her secondary education.
The
report which she made to Mrs Mupfuti was substantially at variance
with what she told the trial court during the time that she
testified. This fact, alone, casts a very serious doubt on her
credibility as a witness.
The
complainant, in substance, corroborated the appellant's version of
events. She was asked, in-chief, and she answered as follows:
“X.
Did you share your story with anyone?
Yes.
Mai Andrew, Mai Palmer, Mrs Mupfuti and my brother's child who is
in Bulawayo.
X.
What about your aunt?
I
later told her after my uncle started shouting that he
no longer wanted to stay with me; I should go back to the rural area
where my grandmother was.”…,.
There
is no doubt that the words of the appellant triggered the report
which the complainant eventually made to her aunt. The probabilities
of the matter are that, if the appellant had not uttered the words
which he did, the complainant would have remained mum about the
alleged attempted rape. That fact further supports the view which the
court holds of the matter. The view is that the appellant did not
ever attempt to rape the complainant as the latter alleged.
The
complainant's story, which was to the effect that she did not
report the alleged attempted rape to her aunt because of what the
appellant had told her, is a very far-fetched matter which does not
resonate with reality. She stated that she did not report the
incidents of attempted rape because the appellant told her that what
he had done to her was secret
which should not be disclosed to anyone. She stated, further, that
the appellant used to give her money for her use at school but would
caution her against buying items which her aunt would see.
The
above cannot, by any stretch of imagination, constitute the reason
for not reporting what she said had been done to her against her
will.
The
probabilities of the matter are that she did not report the alleged
attempted rape because such did not ever occur. She reported only as
a way of fixing the appellant who did not subscribe to the idea that
she remained staying at his home. She did so when he arranged that
she return to her communal home area. It was when she was in her home
area that she reported the alleged offence(s).
The
above observed matters should have placed the trial court on its
guard before it proceeded to accept, as it did, the testimony of the
complainant. It misdirected itself in a material way when it accepted
the mere say so of the complainant's evidence without a critical
analysis of the same.
The
cardinal rule which stands out clearly in complaints of a sexual
nature is that the complainant must be believed before any
corroborative is sought. Where the complainant is, as in
casu,
not credible, the matter ends there. The parties are, in this regard,
referred to the case of State
v Mhandu
1985 (1) ZLR 288 (9) in which the rule was succinctly articulated.
The
complainant's evidence left a lot of loose ends to it. It was, at
best, unbelievable, and, at the worst, contradicting the testimony of
other State witnesses. It was indeed difficult for the court to
appreciate the reasons which persuaded the trial court to come to the
conclusion that the appellant's guilt was proved beyond any shadow
of reasonable doubt in circumstances where even a prima
facie
case was not sticking. The respondent's concessions were properly
made and the court associates itself with them.
The
appellant, in the court's view, was erroneously tried, convicted
and sentenced. He established his innocence on a balance of
probabilities. The appeal, therefore, succeeds. It is, in the result,
ordered as follows:
(a)
That the conviction of the appellant be and is hereby quashed and the
sentence set aside;
(b)
That the appellant be and hereby found not guilty and is acquitted of
the charge.
