This
was an application for bail pending appeal. It was opposed. I
reserved judgment. This now is my judgment.
On
6 June 2017, the Regional Magistrate's Court at Masvingo convicted
the applicant on two counts of rape. Initially they were three. He
had pleaded not guilty to all. The court acquitted him on Count Two.
It convicted him on One and Three. Both counts were taken as one for
the purposes of sentence. The applicant was sentenced to fifteen
years imprisonment. Of those, three were suspended for five years on
the usual condition of good conduct. Thus, twelve years remained
effective. The applicant appealed against both conviction and
sentence. The appeal is pending. He has now applied to this court for
bail pending the appeal.
The
circumstances were these.
The
applicant was fifty-four years old at the time of the trial. He is a
businessman. He operates an electrical engineering shop in Masvingo.
At the time of his arrest he was a student of Masters in Business
Administration [MBA] with Great Zimbabwe University [GZU]. At the
time of the trial the complainant was sixteen years old. The
applicant and the complainant are related through marriage. The
applicant, in a way, is an uncle or grandfather to the complainant.
This is so in the sense that he is married to the complainant's
grandmother's sister. The first two rapes were alleged to have
occurred at the appellant's house in the low density suburb of
Rhodene, Masvingo. The exact dates were, to the prosecutor, unknown,
but, the first rape was alleged to have occurred sometime in August
2012. Then, the complainant was eleven years old [and the applicant
fifty years old]. The second occasion was allegedly sometime in May
2014. Then, the complainant was thirteen years old [and the applicant
fifty-two years old]. On those two counts, the State's case was
that the complainant was still staying at the applicant's house.
[At the time of the trial she was staying with her mother in
Morningside, another suburb in Masvingo]. The complainant's father
had died. Although her mother, sisters, grandmother and some other
relatives were still alive, and were staying in Morningside, the
applicant's family, comprising himself, his wife [of more than
thirty-four years] and their three sons, had taken the complainant
into their own home. This was out of compassion. The complainant's
mother seemed to be struggling financially. Among other things, the
applicant's family was sending the complainant to school. The
applicant paid the fees. He bought her uniforms. From time to time he
assisted the complainant and her family with groceries. At the
applicant's home, the complainant slept in her own separate
bedroom.
In
the first rape, the applicant is alleged to have sneaked into the
complainant's bedroom early around/ or between, 03:00 hours and
05:00 hours. He is alleged to have pulled off the blankets from the
complainant, covered her mouth with one hand and pulled down her
dress with the other. He allegedly removed the complainant's pant,
got on top of her, and had sexual intercourse with her once without
her consent. It was the State's case that on that first occasion
the complainant reported the rape to a maid employed by the
applicant's family at the time, one Dorothy. That was around 05:00
hours or 06:00 hours when Dorothy had come in for her daily household
chores. She had found the complainant weeping.
On
the second occasion, the applicant is alleged to have entered the
complainant's bedroom and asked her for sex. She had refused. He
had forcibly had sexual intercourse with her after he had overpowered
and undressed her. It was also the State's case that the
complainant had also reported this abuse to Dorothy.
It
was common cause at the trial that the complainant did not report
these two rapes to anyone else. The applicant not only denied them in
toto, but he and his witnesses also denied that the complainant could
have possibly reported to Dorothy. Dorothy was not called to give
evidence. The State said she could not be located.
The
third rape was alleged to have occurred on 3 September 2016, inside
the applicant's Mercedes Benz motor vehicle, in some bush road off
the Masvingo–Zvishavane–Bulawayo highway, some nine kilometres
outside Masvingo. The State's case was that a day before, i.e. on 2
September 2016, the complainant had called the applicant on the
cellphone asking for groceries and school uniforms. The applicant had
agreed to meet her in Masvingo town the following day. When the
complainant arrived, the applicant had asked her to get into his car.
He had driven her to the place. On the way, she had enquired where he
was taking her to. His response had been that she should wait and
see. At the scene, the applicant allegedly came to the back seat
where the complainant was. He forcibly had sexual intercourse with
her once without her consent. Afterwards, he had driven her back into
town. She had jumped out of the car at some traffic round-about when
the applicant had slowed down to give way to traffic. The complainant
said the whole experience traumatised her. She went downtown to some
Great Zimbabwe University (GZU) complex and sat down. She sent a
telephone text message to her mother, Sheena, that “Aubrey raped
me.” But the message did not deliver. She had no money in her
cellphone. She eventually walked home but did not enter the main
house. She slept in an out-room till the next morning. When it was
light, she bought air time. The text message then delivered
eventually. At about the same time, Sheena was coming out of the
house. She was going to the police to report that the complainant was
missing. They met. Sheena told the complainant that she had just seen
her message. She ordered the complainant into the car and drove
straight to the police station. At the police station the complainant
reported the rape [in Count Three] to the investigating officer. He,
the complainant and Sheena drove to the scene. On their way back, the
investigating officer assured the complainant that she should feel
safe; that she was now in the hands of the law, and that she would be
protected. He enquired whether apart from that one occasion [i.e.
Count Three] the applicant had had sexual intercourse with her
before. She said yes. She then revealed the other two rapes.
Statements were recorded from the complainant and Sheena. The
applicant was arrested on 3 September 2016 and charged with three
counts of rape. A warned and cautioned statement was recorded from
him in the presence of his legal practitioner. His response to all
the three counts was a bare denial.
Sometime
after 7 September 2016 the applicant was released on bail pending
trial. The trial commenced on 6 March 2017. For the State, the
complainant, her mother, Sheena, the investigating officer, and a
State-registered nurse who had examined the complainant and compiled
a medical report, gave evidence. For the defence, the applicant, his
wife, son and a sister gave evidence. The court a quo held that there
had been insufficient evidence on Count Two. Among other things, it
was satisfied that at the time of the alleged rape, the complainant
had now gone back to her mother and could not have been raped in the
manner alleged. Furthermore, there had been inconsistencies in the
State case whether the rape had occurred inside the complainant's
bedroom or inside the bathroom. The court gave the applicant the
benefit of the doubt and acquitted him on that count. But, it
convicted him on counts One and Three.
The
power of this court to admit a person to bail pending appeal is
governed by section 123(1)(b) of the Criminal Procedure and Evidence
Act [Chapter 9:07]. This section invokes the same bail factors as
listed in section 117 and 117A of the Criminal Procedure and Evidence
Act [Chapter 9:07].
In
this case, one of the factors argued was whether or not there is a
real likelihood of the applicant absconding his appeal if released on
bail. The State conceded that, looking at his personal circumstances
only, the applicant was not a flight risk.
The
concession seemed well made. At fifty-five years of age, the
applicant is not young anymore. He is hardly likely to reinvent
himself abroad if he were to skip bail. He
has firm roots in this country. Among other things, he owns an
immovable property jointly with his wife, albeit indirectly through a
family company. He is established in business. He is the family's
breadwinner. He has more to lose than gain if he runs away. The
applicant did not run away when he was granted bail pending trial. He
waited to see out his trial.
But,
of course, the situation is now very different. He is now a convicted
person. Among other things, the presumption of innocence has fallen
away. Also gone with that is the constitutionally guaranteed right to
liberty. He has now tested the discomfort of prison life, albeit for
less than a month so far. That is not to say that this should
automatically lead to an inference that he may abscond. But it is a
very relevant factor.
There
is also another very relevant factor. In assessing the risk of
flight, the prospects of success of the appeal against conviction
and/or sentence assume considerable importance. In this mater, it was
just about the only relevant factor.
The
assumption is that the greater the prospects of success of appeal,
the lesser the inducement to abscond, and vice versa.
In
this case, despite his firm roots in Zimbabwe, there is the prospect
of the applicant spending twelve years in jail if the appeal does not
succeed. The question therefore is, will the accused risk a lack of
freedom for twelve years? Or will he take his chances and flee?
There
is an additional factor.
Even
if there is an assurance that despite the prospect of losing the
appeal, and of spending twelve years in jail, the applicant will
nevertheless wait to prosecute the appeal, the additional enquiry is;
is it in the interests of the administration of justice that he be
granted temporary liberty in the form of bail pending appeal? Or, is
it not in the interests of justice that he starts serving his
sentence, especially if the appeal against sentence is also unlikely
to succeed?
In
an application for bail pending appeal, the applicant needs not prove
good prospects of success of the appeal beyond any reasonable doubt.
All he needs do is to show that the appeal is free from predictable
failure: see S v Hudson 1996
[1] SACR 431 [W]
and Peter Chikumba v State HH724-15.
If the applicant has a reasonably arguable case on appeal, what I
referred to in Peter Chikumba v State HH724-15
as “some fighting chance”, then all else being equal, bail should
be granted.
I
now turn to consider the applicant's prospects of success on
appeal.
The
bulwark of the applicant's argument, on the appeal against
conviction in Count One, was that the rape report was not made
timeously; that when eventually it was made, a staggering five years
later, it was as a result of persistent probing by the investigating
officer; that the court a quo was wrong to accept that the rape had
been reported to Dorothy, and that there had been such serious
inconsistencies in the evidence of the Sate witnesses as to have made
them unworthy of belief. It was also argued that the court a quo had
misdirected itself in accepting the inference that the complainant
had suddenly been returned to her mother because the rape allegations
had surfaced, especially given that Dorothy had not been called to
give evidence.
This
argument stemmed from the fact that it was common cause that, at some
point in time, the applicant's family had abruptly terminated the
complainant's abode at their home and had returned her to her
mother. Sheena said they had just “dumped” her home and left. Why
and when that had happened was hotly contested. The defence said that
the complainant had been returned after the death of one of the
applicant's sons. It was said the applicant's wife had been so
stressed out that she felt she could no longer cope with children in
the house.
A
further aspect of the applicant's defence to Count One was
allegedly the implausibility that the complainant could have been
raped in the manner alleged, in a home teeming with so many people at
the time. It was said the risk of the applicant being caught in the
act was high as any sounds emanating from the complainant's bedroom
could easily be heard. At any rate, on instructions from the
applicant's wife, the door to the complainant's bedroom was
continuously locked. An additional aspect relevant to the defence in
Count One was that there had been a bereavement in the family at the
same time as the complainant had allegedly been raped. As Moslems,
the family went into mourning for seven days. Every day they would
drive to Mashava, some 40 kilometres west of Masvingo, where the
funeral wake was being held. Both the applicant and the complainant
would be part of the mourners. At no stage during that bereavement
period had the applicant been left alone with the complainant. The
applicant said the State's version should have been rejected
because Dorothy was not called to give evidence. He said it must also
be rejected because at trial there were three conflicting versions of
Count One: one by the complainant herself; the other by Sheena, her
mother, and the third by the investigating officer.
Counsel
for the applicant pressed home the argument that it was in the car,
back from inspecting the scene of Count Three, that the complainant
had disclosed, for the first time, Counts One and Two. His point was,
if the investigating officer and Sheena heard the same thing at the
same time and place, and from the same person, why did they not, all
the three of them, say the same thing during their testimonies in
court?
The
court disbelieved the applicant's versions. Among other things, it
accepted that in Count One the rape had been reported to Dorothy and
that this satisfied one of the requirements for a rape report, which
is that it has to be made at the earliest possible opportunity. The
court also accepted as plausible the argument by the State that the
reason why the complainant had suddenly been returned to her mother
was because the rape allegations had surfaced after the complainant
had reported to Dorothy. If the State's version is discounted, that
would mean that Count One remained unreported for a staggering five
years. That would fall foul of one of the established requirements
for a rape report. A rape report or complaint must be made without
undue delay. It must be made at the earliest opportunity, which,
under all the circumstances, could reasonably be expected, to the
first person to whom the complainant could reasonably be expected to
have made it: see S v Banana 2000 [1] ZLR 607 [S] and S v Nyirenda
2003 [2] ZLR 64 [H].
In
casu, it was common cause that even though the complainant was
staying under the applicant's roof when she said she was raped,
from time to time she would go to her own mother. It was said she was
in good books with her mother. Therefore, the applicant argued, there
was no reason why, for five years, she kept silent. But, that Dorothy
was not called to give evidence, by itself, can hardly be the reason
for discounting the State version, or for saying the complainant did
not report to her. Furthermore, that the complainant might have
concealed the abuse from her mother and other people may also not be
the reason for rejecting the State's version. A complaint in a rape
case, or any other sexual offence, is admitted, not as proof of the
rape or of the sexual offence. It is admitted, not to corroborate the
complainant…,. Rather, it is admitted to show consistency by the
complainant. It is admitted to negative a defence that the sex act
was consensual: see S
v Nyirenda 2003 [2] ZLR 64 [H].
So,
the difficulty that I have had with the applicant's approach on
this particular aspect is that, whether Dorothy gave evidence or not,
the court a quo chose to believe the complainant and chose to
disbelieve the applicant.
Was
that a misdirection?
If
yes, was it so pertinent or so cogent and so outrageous in its
defiance of logic as to warrant interference by the Appeal Court? I
do not think so.
It
is a cardinal rule that the trial court is better placed to assess a
witness' credibility than the Appeal Court. Said GUBBAY CJ in S v
Mlambo 1994 [2] ZLR 410 [S]...,.:
“The
assessment of the credibility of a witness is the province of the
trial court and ought not to be disregarded by an Appellate Court
unless satisfied that it defies reason and common sense.”
See
also S v Soko
SC118-92.
It
is also trite that rape victims react differently. Every case depends
on its own facts. There is no rule of thumb. The complainant remained
steadfast in her response that she felt threatened. She felt
uncomfortable. She said she was conscious she was not staying in her
mother's house. She was very young - only eleven years old at the
time of Count One. The court a quo believed her. That, in my view,
will pause enormous problems for the applicant on appeal.
But,
the applicant also said the State's version in Count One should
have been rejected because the complainant's report to the police
and her mother, five years later, was a result of persistent probing
by the investigating officer.
It
is another trite requirement that for a rape complaint or report to
be admissible, it must have been made voluntarily and not as a result
of questions of a leading and inducing or intimidating character: see
R v Petros
1967
RLR 35 [G]; 1967 [2] SA 497 [R]
and S v Banana 2000 [1] ZLR 607 [S]. In a nutshell, the requirements
for admissibility of a sexual complaint are:
[a]
That it was made voluntarily and not as a result of questions of a
leading and inducing or intimidating nature; and
[b]
That it was made without undue delay but at the earliest opportunity,
in all the circumstances, to the person to whom the complainant could
reasonably be expected to make it: R
v Petros
1967
RLR 35 [G]; 1967 [2] SA 497 [R];
S
v Banana 2000 [1] ZLR 607 [S]
and S
v Nyirenda 2003 [2] ZLR 64 [H].
From
the record of proceedings, especially the portions dealing with the
evidence of the investigating officer, it is debatable whether his
evidence can be impeached on the ground that there was an inducement
or persistent probing by him leading to the complainant eventually
disclosing Count One. But that is all the applicant needs. For as
long as he has managed to show an arguable case, or a fighting
chance, he should be entitled to relief. The enquiry on the prospects
of success of the appeal does not go beyond this. Furthermore, the
court a quo manifestly misdirected itself by accepting the
prosecutor's argument that the reason why the applicant might have
been returned to her mother in 2013 or back then, was because the
rape allegations had surfaced. The complainant did not say that.
Sheena did not say that either. It was mere speculation. The defence
proffered a reason why the applicant was returned. It might have been
implausible but there was no other version contesting it. So, the
Appeal Court may well give him the benefit of the doubt on this
point. Therefore, it cannot be said that the applicant's argument
on Count One is doomed to fail.
But,
regrettably for the applicant, there is still Count Three.
On
Count Three, the mainstay of the applicant's defence was an alibi.
He said on the day in question, he spent the whole day at home with
his family. Evidence was produced that the applicant's wife and son
had arrived from South Africa on that day. The applicant said he had
picked them up from the pick-up point at around 05:00 hours and had
driven them back home. They had brought numerous gifts. Much of the
day had been spent opening and admiring the gifts. At no time had he
ventured outside the gate. The applicant called his wife and son to
support him on this. They did. However, the State argued that the
defence of alibi was an afterthought. It had not been raised in the
warned and cautioned statement. It had been raised for the first time
at trial in the Defence Outline.
The
applicant denied that the defence of alibi was made for the first
time at trial. He said he had raised it, not only as early as
September 2016 when he applied for bail pending trial, but also
during interrogation at the police station on the day he had been
arrested. Therefore, he argued, it had been incumbent upon the State
to have investigated it. That not having been done, he should have
been given the benefit of the doubt, the argument concluded.
The
applicant also picked on some aspect of the State evidence to show
some inconsistencies in Count Three. Part of the complainant's
testimony was that during the tussle in the car, as the applicant
forced himself on her, she had got bruised on the neck. However, the
medical report had made no mention of it. The nurse said she would
have entered the bruises on the medical report had they been shown to
her.
All
in all, the applicant argued that the rape reports were just an
elaborate scheme by the complainant and/or her mother to extort money
and property from him. This argument hinged on the fact that it was
common cause that when the applicant had been arrested, both his
nucleus and extended families had motivated several meetings with
Sheena, her mother, and stepfather to arrange a settlement out of
court. It seemed that the basic approach at those meetings had been
that in return for payment of a sum of money and/or delivery of
certain items of property to Sheena, the complainant would withdraw
the rape charges. Several figures and items of property were
mentioned. They included amounts of R100,000= and $30,000=; six live
cows; a motor vehicle and a house.
Part
of the defence evidence on the alleged extortion was a transcription
of a telephone discussion between the applicant and the complainant's
step-grandfather, one Peddy Young, sometime in November 2016. The
applicant had secretly recorded it on the advice of his lawyers. The
transcription seemed to confirm the narrative that there had been
some arrangement for such a trade-off. The defence said nothing had
come of it eventually because the applicant felt strongly that he or
members of his family should not pay for something that he had not
done. The court a quo dismissed the applicant's defence of alibi.
In
my view, the Appeal Court is unlikely to find fault with that.
Despite
the accused being represented by a legal practitioner when his warned
and cautioned statement was recorded, his response, to all the three
Counts, was a standard bare denial. The record of proceedings
captures part of the applicant's warned and cautioned statement as
follows:
Count
1:
I deny the allegations.
Count
2:
I deny the allegations.
Count
3:
I deny the allegations.
A
crucial aspect of the standard warning and cautioning administered by
the police when someone has been arrested and is having their
statement recorded is the warning, inter alia, that they are not
obliged to say anything in answer to the allegations but that their
failure, at that stage, to mention any facts relevant to their
defence may result in the court drawing inferences against them.
It
is absolutely stunning what strategic benefit, or advantage, the
applicant and his counsel hoped to gain by concealing the
circumstances of the alleged alibi. Counsel for the applicant
conceded that the information should not have been concealed.
At
trial, the applicant and his son claimed the alibi defence had been
brought to the attention of the police during interrogation. The
court disbelieved them.
Additionally,
the son claimed that on the day that the applicant had been arrested,
he [the son] had rushed to the complainant's mother's house to
fetch them to the police station as he felt it had all been a
mistake. He said on his way back to the car, one of the complainant's
sisters had whispered to him that Sheena, i.e. the mother, was doing
it all for the money. Apparently, the court a quo disbelieved him
too.
I
do not see the Appeal Court doing anything to upset the findings of
the trial court on this. Prima
facie, and with all due respect, such evidence seemed such an
infantile assault on intelligence.
Counsel
for the applicant maintained that the alibi defence was raised in the
bail application and that therefore the State ought to have
investigated it from then on. He specifically drew my attention to
the bail statement in September 2016.
But,
I perceive a number of problems.
Firstly,
all that appears in that bail statement relevant to the point is
this:
“16.
In respect of the allegations of the 3rd
of September 2016, Applicant denies ever having seen the Complainant
on the day in question. At
the material time of the alleged rape, he was with his family wife
and son who had just arrived from South Africa that morning.”
Secondly,
other than interviewing the applicant's wife and son to check the
purported alibi, who obviously would stand by the applicant, as they
predictably did in court, it is difficult to understand what sort of
investigations the police needed to have carried out. This alibi was
not like the applicant was saying he had been out of the country or
out of Masvingo town. He was around at the material time. All he was
saying was that he had not gone nine kilometres out of town where the
rape is alleged to have happened.
Thirdly,
the complainant gave a graphic description of all the events before
and after the rape. The applicant himself admitted that the
complainant had indeed called him on the previous day for an
appointment the following day. He admitted they had spoken together.
He admitted she had made a request for uniforms. That had not been
unusual. It was common cause that the complainant would do this from
time to time and that the applicant would oblige. But, on this
occasion the applicant was now saying he advised her to channel her
request through his wife.
Why
now? Obviously because of the rape allegations. The court a quo
disbelieved him.
In
substance, the alleged discrepancies or inconsistencies in the State
case do not, in my view, go to the root of the matter. They are on
the peripheries. In spite of them, the evidence led by the State had
a consistent thread running through, namely, that the complainant was
raped by the applicant. In my view, it is hardly likely the Appeal
Court will interfere with the judgment of the lower court.
That
the rape allegations by the complainant were one gigantic scheme by
the complainant and her mother to fleece the applicant of money and
assets seems difficult to sell. Neither the complainant nor Sheena
called for those meetings where the trade-off between payment of
money and delivery of assets against a withdrawal of the charges was
mooted. It was the applicant, or members of his family who did.
Neither did the complainant nor Sheena attend those meetings. It was
the applicant and members of his family who did.
On
sentence, the applicant's argument was that the sentence was
shockingly excessive given the personal circumstances of the
applicant. He was an elderly person. He was a first offender. No
enquiry had been made whether or not he had been contrite.
There
is no substance in the appeal against sentence. If the appeal against
conviction does not succeed, as it is unlikely to, especially in
respect of Count Three, the Appeal Court is unlikely to interfere
with the sentence, even if Count Three will be the only one
remaining. The sentence passed seems squarely within the general
range of sentences for crimes of this nature. The Appeal Court is
likely to consider that this was a rape within the family by someone
who was a father figure to the complainant. The aggravating
circumstances will militate against any reduction in the sentence.
Therefore,
the application for bail pending appeal is hereby dismissed.
