The
issue in this matter which should have exercised the mind of the
trial court is whether the sexual act between the accused and the
complainant was consensual.
While
the learned Regional Magistrate properly identified this issue she
seemed to have somehow allowed her mind to wander rather aimlessly
and failed to properly analyse the evidence placed before her. The
judgment by the learned Regional Magistrate is rather perfunctory.
After
realizing that there is a potential grave miscarriage of justice in
this matter when the record was referred to me for automatic review I
decided to seek the Prosecutor General's views on the propriety of
the conviction in accordance with the provisions of section 29(1)(c)
of the High Court Act [Chapter
7:06].
It provides as follows;
“29.
Powers on review of criminal proceedings
(1)
For purposes of reviewing any criminal proceedings of any inferior
tribunal, the High Court may exercise any one or more of the
following powers -
(a)…,.
(b)…,.
(c)
Where the proceedings are not being reviewed at the instance of the
convicted person, direct that any question of law or fact arising
from the proceedings be argued before the High Court by the
Prosecutor General or his deputy or any legal practitioner appointed
by the High Court.”
I
am indebted to Mr Zvekare of the National Prosecuting Authority for
his well-researched and presented response. Indeed, my fears were
confirmed. Mr Zvekare believes there is a miscarriage of justice in
this matter.
I
now turn to the matter in question.
The
22-year-old accused was convicted, after trial, by the learned
Regional Magistrate sitting at Masvingo for raping a 20-year-old
complainant in contravention of section 65(1) of the Criminal Law
(Codification and Reform) Act [Chapter
9:23].
The offence is said to have been committed on 23 September 2015 at
Chamakani Village, Chief Chikwanda, Gutu in Masvingo.
The
accused and the complainant are fellow villagers and they fell in
love in July 2015. The complainant, who is an orphan, stayed at her
uncle's homestead but was alone most of the time as the uncle and
his wife would be away at work at some school where the uncle
teaches. The accused had therefore unlimited access to the
complainant except over the weekends when the complainant's uncle
would be at home. The complainant had completed her 'O' level but
it is not clear when this was.
The
State case is that on 23 September 2015, during the night, the
accused visited the complainant in the company of the complainant's
cousin, Denis Nyamukamba, and another boy called Chamuka Majoni at
about 20:00 hrs. After some time the accused remained with the
complainant. The State alleges that the accused caused the two boys
to leave. The accused is alleged to have unsuccessfully requested to
be intimate with the complainant. The complainant remained
dis-interested and told the accused to leave. The accused is said to
have refused to leave, and, instead, followed the complainant who had
gone to her bedroom where he continued to beg to be intimate with the
complainant to no avail.
It
is the State case that after the accused realised he was unable to
convince the complainant otherwise and obtain her consent he resorted
to brute force in order to prevail upon the complainant and satiate
his sexual desires. It is alleged he forcibly removed the
complainant's blouse, bra, and pants. The accused also removed his
trousers and pants. Again, using brute force, it is alleged the
accused separated the complainant's legs and forcibly effected
penile penetration. It is said after the forced sexual act the
accused locked the complainant inside the house, took the keys, and
went to his residence.
It
is alleged that on an unspecified date the complainant fell ill. She
was taken to Harare for medical attention. It was thereafter
discovered that she was pregnant. It is at that stage the complainant
revealed that she had been impregnated by the accused and that the
preceding sexual act was non-consensual on 23 September 2015.
This
resulted in the accused's arrest.
As
per the medical report, the complainant was examined on 4 December
2015 and found to be 3 months pregnant. Needless to state that her
hymen was found to be not intact and that indeed penile penetration
was confirmed. At the time the matter was tried the complainant had
given birth to twins.
The
accused's basic defence, which he maintained throughout the trial,
is that he had consensual sexual intercourse with the complainant who
was his girlfriend. In fact, the accused revealed that he had several
sexual acts with the complainant after 23 September 2015 as the
complainant's relatives who stayed with her would be away. The
accused said what led to his arrest is that when it was discovered
that the complainant was pregnant he declined to marry her. A report
of rape was then made to the police. The accused said on 23 September
2015, when he had consensual sexual intercourse with the complainant,
he never chased away the two boys who were in his company but they
left in order to allow him to have quality time with his girlfriend.
The
issue which should have loomed large in the mind of the trial court
is to exclude the possible danger of false incrimination in this
case.
This
is so because the accused and the complainant were in love. The
matter only came to light when the complainant fell ill and or was
pregnant. No timeous report of rape was made. The date the report was
made is not even clear. The accused gave a possible motive for the
complainant to allege non-consensual sexual act. These are the
critical issues the court should have grappled with to ensure that
the danger of false incrimination was eliminated.
The
State led evidence from two witnesses only, being the complainant,
Melody Matereke, and her aunt, Pettie Tigere who resides in Hopley,
Harare. The accused gave evidence. He intended to call the two boys
who were in his company but it is not clear why these two boys did
not testify.
It
is useful to summarise the evidence placed before the trial court in
order for one to appreciate the deficiencies of the State case.
The
complainant
According
to the complainant, she fell in love with the accused in August 2015.
Most of the time she would be alone at home as her uncle and his wife
would only be available during weekends. The accused would visit her
to while up time as he did in the company of the two boys on the
night of 23 September 2015.
It
is the complainant's evidence that the accused asked the two boys
to leave as the accused wanted to discuss certain issues with the
complainant. She said after the departure of the two boys the accused
asked to be intimate with her but she told the accused that she would
only be intimate with him after marriage. An argument then ensued
between the two until she told the accused to leave as she wanted to
retire to bed. The complainant said she was holding keys to her
bedroom; the accused snatched them and put them in his pocket. She
proceeded to her bedroom to retire leaving the accused outside.
The
complainant said after a while the accused followed her in the
bedroom and locked the door. She said the accused joined her on the
bed and started to caress her. She inquired from the accused what he
was up to.
The
complainant explained how she said the accused raped her. She said
the accused proceeded to tear her skirt as he pinned her down on the
chest. She, in turn, proceeded to bite the accused on his hand but
did not inflict any visible injuries. She tried to push away the
accused but he overpowered her and inserted his penis into her vagina
after pulling down her pants. It was her first sexual experience and
felt pain inside her vagina. She bled from the vagina. The accused
told her not to scream. She did not scream. The accused completed the
sexual act, stopped on his own, and wore his clothes. Thereafter, the
accused locked her inside the bedroom from outside as he went to his
residence and left with the keys. She said the accused later gave one
of the two boys, Denis Nyamukamba, the keys but by then she had used
spare keys to open the bedroom. The next day she said she washed the
blood-stained blankets.
The
complainant explained how the matter came to light. Without giving
dates, she said she fell ill and was taken to hospital where she was
given tablets. She said she only revealed the rape to her aunt in
November 2015 after she had been taken to Harare because of her
illness. She said she was vomiting and after being questioned by her
uncle and aunt in Harare who told her not to waste resources she
decided to reveal the rape.
The
evidence of the complainant is rather unclear on why she did not make
a timeous report. Her explanation is that she was staying alone at
the homestead and the uncle she stayed with only came home with his
wife during weekends. She said when her uncle came home during the
weekends she could not reveal the rape for fear of being chased away
from home as an orphan. She had nowhere else to go. Further, she said
she did not disclose the rape to Denis Nyamukamba, who had been given
the keys by the accused, as she was ashamed. In fact, the complainant
said had it not been for the pregnancy she would not have revealed
the rape since she thought she would be accused of misbehaving. She
disputed that there were any arrangements made for her to marry the
accused.
The
accused, despite being a self-actor and feeble in his cross
examination, did, nonetheless, put pertinent questions to the
complainant. The following exchange took place between the accused
and the complainant;
“Q.
Why
did you not tell others that you had been raped?
A.
I did not tell anyone because my parents passed on and I grew up
being looked after (sic). I would be told that if I misbehaved I
would be left alone. I even wanted to commit suicide.
Q.
If
you had not fallen ill were you going to report the rape?
A.
No.
Q.
Would you have been chased away from home for being raped?
A.
Yes, I could be chased away from home depending with the guardians
who were looking after me (sic).”
The
learned trial Regional Magistrate did not put any questions to the
complainant in order to appreciate her mindset as to why she did not
make a timeous report. No follow up was made to the questions put to
the complainant by the accused.
Pettie
Tigere (Pettie)
Pettie
Tigere is the complainant's aunt who resides in Hopley, Harare. She
is the first person to whom the complainant disclosed the alleged
rape and therefore sheds light on how the matter came to light.
Pettie
testified that she was advised by the complainant's custodians at
the rural home in Gutu that the complainant was ill. A decision was
made that the complainant should proceed to Harare for possible
treatment. Pettie said upon the complainant's arrival her husband
suspected that the complainant could be pregnant as the complainant
would vomit after eating food. This prompted them to question the
complainant. The complainant then disclosed that the accused had
raped her after he had chased away some two boys and locked her
inside the bedroom. In fact, Pettie, contrary to the complainant's
evidence, said she was only rescued by one of the two boys after the
accused had locked her inside the bedroom and later gave the keys to
one of those boys. Contrary to the complainant's evidence Pettie
Tigere said the complainant's report was that she cried out or
called out for help during the rape hoping her neighbours could help
her, but, apparently, no one heard her distress call. As regards why
she had not made a timeous report of the alleged rape the
complainant's explanation to Pettie was that she was afraid that
her uncle's wife would assault her.
According
to Pettie, after the complainant disclosed the alleged rape they sent
her back to rural Gutu where it was confirmed that she was pregnant
at the local hospital. Again, contrary to the complainant's
evidence, Pettie said the complainant was thereafter taken to the
accused's home for possible marriage but apparently the accused was
unwilling to take the complainant's' hand in marriage and the
complainant was returned to her home. It was only after this that a
report of rape was made to the police leading to the accused's
arrest. Again, Pettie Tigere was not probed why the accused was being
asked to marry the complainant if indeed he had raped her.
The
accused
The
accused's version is that indeed he first had consensual sexual
intercourse with the complainant on 23 September 2015 but that sexual
intercourse took place several times thereafter until about 5 October
2015. The accused reiterated that he did not forcefully have sexual
intercourse with the complainant and that none of the complainant's
clothes was torn. In fact, the accused wanted to call the two boys
who were in his company but they were not available at court and he
was asked if the matter could proceed without them. As a lay person
he agreed.
This
was the evidence placed before the trial court.
In
its judgment, the trial court never made any meaningful attempt to
analyze the complainant's evidence. All what the learned trial
Regional Magistrate said is that the complainant gave her evidence
well and that the court would accept her testimony. No basis was
outlined as to why the complainant's evidence was acceptable and
the accused disbelieved. The court went further to accept that indeed
the complainant did bite the accused during the sexual act without
explaining why it accepted such evidence, moreso as no injuries were
inflicted on the accused. Amazingly, the finding by the trial court
was that the complainant made a voluntary report of rape to Pettie
Tigere in Harare and did not bother to analyse the circumstances
under which that report was made. To cap it all, it was the trial
court's view that a timeous report of rape was made by the
complainant since she was allegedly raped in September 2015 and
disclosed the alleged rape in November 2015!!
In
fact, out of the many reasons the complainant gave for not disclosing
the alleged rape timeously the trial court simply picked one reason
and justified her conduct on the basis that as an orphan she was
afraid to be chased away from home by her custodians. The
reasonableness or otherwise of such a reason by a 20-year-old girl
who had completed 'O' level was never considered.
A
proper assessment of the complainant's evidence clearly shows that
it does not meet the requirements of admissibility as espoused in our
law. In a seminal judgment which is the locus
classicus
in a case of this nature GUBBAY CJ, in S v Banana 2000 (1) ZLR 607
(S)…, set out in very lucid and simple terms how the court should
approach complaints made in sexual matters as follows;
“Evidence
that a complainant in an alleged sexual offence made a complaint soon
after the occurrence, and the terms of that complaint, are admissible
to show the consistency of the complainant's evidence and the
absence of consent. The complaint
serves to rebut any suspicion that the complainant has fabricated the
allegations.”
The
learned Chief Justice went on to state as follows;
“The
requirements for admissibility of a complaint are;
1.
It must have been made voluntarily and not as a result of questions
of a leading and inducing or intimidating nature. See R v Petros 1967
RLR 35 G at
39 G–H.
2.
It must have been made without undue delay and at the earliest
opportunity in all the circumstances, to the first person to whom the
complainant could reasonably been expected to make it. See R v C 1955
(4) SA 40 (W) at 40 G–H; S v Makanyanga supra at 242 G–243 C
[1996]
(2) 2LR 231 (H).”
It
is abundantly clear from Pettie Tigere's testimony that the
complainant did not make a voluntary report of rape. The complainant
fell ill in rural Gutu and went to hospital where she got treatment
as per her evidence. She did not disclose the rape. The illness
remained un-abated and still she decided not to disclose the alleged
sexual assault. A decision was then made to take her to Harare for
treatment but she still did not reveal anything. It was in Harare
that Pettie's husband, sensing that she could be pregnant as she
vomited after taking food, who questioned her if she was pregnant and
that she should not waste resources as it were. It was only after
this probing that she then revealed the sexual act between her and
the accused in rural Gutu. In fact, the complainant herself stated
that if she had not fallen pregnant (or ill) she had no intention to
reveal the alleged rape.
There
lies the problem with her testimony. She had to be probed in order to
reveal the alleged sexual assault.
It
is clear that the complainant did not make a timeous report of the
alleged rape. From the evidence led she could have made the report to
Denis Nyamukamba who brought to her the keys she said the accused had
taken that same night. She did not. Her explanation is that she was
ashamed to disclose such an issue to Denis. The next day she did not
disclose the alleged rape to any of her relatives or neighbours.
Again, when her uncle and his wife came home she made no report of
the alleged rape. Even when she fell sick and was hospitalised she
remained mum about what she alleges had been done to her. She had to
travel from Gutu to Harare where she disclosed the alleged rape -
after being confronted that she could be pregnant. A period of about
two months had lapsed. To cap it all, she gave various reasons as to
why she did not make the report without undue delay. These range from
personal shame, fear of assault, and her personal circumstances as an
orphan.
In
my respectful view, the complainant is not a toddler who did not
fully appreciate what the accused had done to her. She is an adult
girl who had long completed 'O' level. The explanations she gave
for not disclosing the alleged rape timeously are not only
implausible but unreasonable in the circumstances.
The
conduct of the complainant leaves much to be desired and negatively
impacts on her credibility. It is not clear as to what she did with
the alleged torn skirt. She decided to destroy the available evidence
by washing the bloodstained blankets.
The
danger of false incrimination on the aspect of consent is very real
in this case. The trial court should not only have been alive to such
inherent danger but should have endeavoured to exclude it: see S v
Zaranyika 1997 (1) ZLR 539 H…,. All what the trial court did was to
accept the complainant's evidence hook, line, and sinker without
appreciating the circumstances of the case that she was in love with
the accused.
How
then was this danger of false incrimination on the aspect of consent
eliminated? Did the complainant not have a motive to misrepresent
facts on the aspect of consent? Why was she taken to a rapist for
possible marriage? Why was the report of rape only made to the police
after the accused had refused to take her hand in marriage?
These
are the questions which should have loomed large in the mind of the
learned Regional Magistrate.
In
my view, this was a poorly prosecuted case aided by the undiscerning
mind of the trial court. The trial court should have been alive to
the fact that this was an unrepresented rural accused person. Crucial
witnesses in this matter were not called. These include the
complainant's custodian who could have shed light on their
relations with the complainant and whether her fears
were indeed well grounded. The two boys who were with the accused and
the complainant on the night of the alleged rape were critical
witnesses. The Investigating Officer was not even called to explain
as to what happened to the torn apparel of the complainant.
The
trial court should have invoked the provisions of section 232 of the
Criminal Procedure and Evidence Act [Chapter
9:07]
which provide as follows;
“The
court –
(a)
May, at any stage, subpoena any person as a witness or….,.
(b)
Shall subpoena and examine or recall and re-examine any person if his
evidence appears to it essential to the just decision of the case.”
The
duty of the court to assist an unrepresented accused was aptly put by
McNALLY JA in the case of S
v Ndhlovu
1992 (2) ZLR 231 (S)…, where the learned Judge of Appeal said;
“One
final point needs to be made. The magistrate held it against the
appellant that he did not put it to the complainant, in
cross-examination, that he never inserted his hand in complainant's
pocket. It is true he did not put it to the complainant. But it was
clearly stated in his Defence Outline. If the magistrate thought the
point should have been put - he should have put it himself…,. Such
an intervention is not taking sides or 'entering into the arena'.
It is simply an attempt to ensure that the accused's case is
properly commented by the witness.”
The
point is made, therefore, that the trial court should not simply draw
an adverse inference from the accused's failure to raise certain
points in cross examination when such points are apparent from the
accused's Defence Outline. The trial court has a duty to assist an
unrepresented accused to ensure that justice is done.
It
is saddening that the trial court went on to convict the
unsophisticated and unrepresented accused instead of giving him the
benefit of the doubt in relation to the issue of consent. The doubt
is created by the complainant's inconsistent and contradictory
actions after the alleged rape. I have no doubt that the trial
magistrate presided over a shoddy trial. This led to a miscarriage of
justice. The danger of false incrimination on the aspect of consent
is very real in this case. The accused ought to be given the benefit
of the doubt in the circumstances. The conviction of the accused is
clearly unsafe as the State failed to prove the rape charges against
the accused to the required standard of proof in criminal matters.
Accordingly,
the conviction of the accused is hereby set aside and the sentence
quashed.
I
have issued a warrant of liberation of the accused.
