Criminal
Appeal
MAVANGIRA
J:
The
appellant was charged with rape as defined in section 65 of the
Criminal Law (Codification and Reform) Act, [Cap
9:23].
He pleaded not guilty but was convicted after a trial. He was
sentenced to 20 years imprisonment of which 6 years was suspended for
5 years on condition of future good conduct.
The
allegation against the appellant was that he had, on 8 May 2009,
unlawfully had intercourse with the complainant, a female juvenile,
without her consent, knowing that she had not consented to it or
realising that there was a real risk or possibility that she might
not have consented to it.
The
State led evidence from the complainant, her mother, her grandparents
and the medical doctor who examined her. The sum effect of the State
evidence is to the following effect:
The
complainant and her family were co-tenants with the appellant and his
family at a house in Glen Norah A, Harare. The complainant was aged
11 at the time of the commission of the offence, having been born on
20 February 1997. It is noted that when she testified before the
trial court a year later, she was 12 years old and was in Grade 7 of
her primary school education.
On
8 May 2009, the complainant's mother went to attend a funeral at
their rural home. She failed to return home on the same day as had
been her intention. At about 6.00pm on that day the complainant was
preparing supper for her seven year old twin brothers and herself.
The appellant arrived and asked if her mother was around, the
question having apparently been prompted by the fact that the
complainant was doing the cooking. The complainant answered that her
mother was away after which his next question to her was whether she
was the mother that day. The complainant said that she was.
The
complainant left for church returning home around 8.00pm in the
company of her two brothers who she then fed and put to bed. She
washed up the dishes and swept the house. She locked the kitchen door
and went into the bedroom and started praying. The appellant entered
the bedroom. She stood up. The appellant said that he wanted to sleep
with her. She did not answer. The appellant who was by the doorway
started taking off his clothes. The complainant pushed the appellant
who held her and gagged her mouth when she tried to scream. The
appellant removed the complainant's pair of jeans. When the
complainant tried to scream no one heard her. The appellant pushed
onto the bed where he raped her and thereafter fell asleep while
lying on top of the complainant. When she tried to shake him off he
would hold her down. The complainant said that she felt pain and that
she bled. The appellant only left the room about 4.00am.
The
complainant's mother returned home on a Sunday. There was no
electricity. On the Monday the complainant went to school. On her
return from school her mother asked her what had transpired in her
absence. The mother's questions were prompted by her observation on
how the complainant was walking. The complainant did not divulge the
rape to her mother. The complainant's mother examined her on the
Tuesday morning after her bath. She observed a swelling. The
complainant was referred to her grandmother who also examined her
asked her if she had had sexual intercourse. The complainant said
that she had not. The grandmother indicated that she would take the
complainant to the doctor the following day. The complainant
thereafter opened up to her grandfather, in the presence of the
grandmother, and divulged that the appellant had raped her.
The
complainant said that she had not divulged or reported the rape
earlier or to her mother or grandmother because the appellant had
threatened to kill her with a knife. She was later examined by a
doctor who commented on his medical report regarding the
complainant's emotional state that she was “very traumatised”
and also that her labia majora were “very swollen”. He also
observed that her hymen was swollen shut and torn and bleeding. On
her behaviour the doctor's comment was “severely traumatised.
Raped all night starting just after say (sic) bedtime prayers.”
The
appellant's defence was an alibi, namely, that he was not at home
at the material time having only arrived home in the early hours of 9
May 2009. He said that he had otherwise spent the whole night
drinking with his friends. He denied raping the complainant. He
called as defence witnesses his father and one Brian Madzivanyika who
he said he was out drinking with.
The
appellant raised four grounds of appeal against his conviction.
The
first is that the lower court erred in finding that the complainant
was a credible witness as she did not mention the number of times
that she was raped yet the State Outline indicated that she was raped
throughout the night. Secondly, that the lower court erred by not
taking into account the fact that a period of more than seven days
had elapsed before the complainant was medically examined; yet her
injuries were said to be fresh thereby giving rise to a possibility
that the offence may have been committed by a person other than the
appellant and on a day other than the alleged date. Thirdly, that the
lower court erred by not taking due consideration of the fact that
the medical report was inconsistent with the doctor's viva
voce evidence.
The fourth is that the lower court erred by not giving reasons as to
why the appellant's defence should be dismissed.
As
against sentence the ground raised by the appellant is that the lower
court erred in not observing that no evidence was adduced as to the
number of counts allegedly committed and thus did not properly
reflect on the appropriate sentence.
In
his oral submissions before this court Mr Nyamupfukudza
submitted
that the fact that the complainant was sexually abused is not and was
never in dispute in view of the medical evidence. He further
submitted that it was not for the appellant to prove his defence of
an alibi. Rather, it was for the State to disprove it. In this regard
it is noted that all that was said on behalf of the appellant, who
was legally represented at his trial, in his defence outline is:
“On
the day in question he went out with friends and was drinking until
the early hours of the following day.”
Notably,
no specific mention is made therein of the place or places where the
drinking took place; nor of the names of his drinking companions; nor
of the specific times when the appellant says that he was away from
the shared residence. Notably also, besides repeatedly stating that
the appellant had not committed the offence, all that was put to the
complainant specifically on this aspect of his defence by way of
cross examination was:
“He
did not commit the offence, but in fact he was out. The accused will
say he was out with his friends at the time”;
to
which the complainant answered:
“The
accused was present.”
The
case authorities are clear that where the accused raises the defence
of alibi, it is not for him to prove it but for the State to disprove
it. See S
v Mutandi 1996
(1) ZLR 367 (HC); S
v Musakwa 1995
(1) ZLR 1 (SC); S
v Masawi & Anor 1996
(2) ZLR 472 (SC).
In
S
v Musakwa McNALLY
JA stated:
“What
no-one seems to have realised is that the defence raised was that of
an alibi. The appellant was saying that he had only just arrived when
he was accused. So he was not there when the confidence trick was set
in motion.
The
appellant said so right from the beginning. So why did the police not
check whether he was being truthful when he said he worked for “Heat
and Systems” who make pressure pipes? Why did they not check his
story that he left there at 4.30pm? Why did they not check how long
it takes to walk from there to the spot where the offence was
committed? Why did they not ask the complainant what time it was when
the two young men approached her?
The
court should have been alive to the importance of these matters. It
was not simply a matter of the reliability of the young woman's
powers of recognition.”
In
casu,
the
appellant did not, as already noted above, give specific details of
his alleged alibi to allow for investigation thereof. He only
purported to do so after he went on the witness stand when he said
inter
alia:
“I
did not rape her. In a nutshell on that evening, I left work around
1800 hours. I boarded a bus and dropped at Specimen (Spaceman)
Shopping Centre. I found my friends around 1900 hours at Dollar Power
pub. We started drinking until the early hours of the following day.
It was around 0100 hours when we went home. We were three of us, i.e.
myself, Brian Madzivanyika and Charles. Brian lives near the shops.
So we parted ways and I proceeded with Charles. When I got home
everyone was asleep. I then knocked at my father's window. Charles
proceeded to his place. My father woke up to open the door for me. I
got into the house. My father locked the door and I went into my room
and slept.”
There
is no evidence that the appellant gave this full story from the very
beginning, i.e. from the time of his arrest. The police could not
have been expected to check the truthfulness of a story that was not
furnished to them.
At
trial the appellant opted to give these details at an advanced stage
in the proceedings. The trial court cannot therefore also be faulted
for dismissing the defence of alibi in the circumstances and on the
evidence adduced before it. This is so despite the calling of
evidence intended and purporting to support or confirm the
appellant's version. Significantly, whilst in his evidence under
oath the appellant said that Brian lived near the shops and it was
Charles in whose company he was when he got home, the appellant did
not call Charles but rather called Brian.
Significant
note is also taken of the complainant's mother's evidence to the
effect that the appellant was arrested in the evening because he had
changed his time of coming home. He used to come home around 6.00pm
before going out for a drink but after the commission of the offence
he would go to the bar for a drink first before coming home.
McNALLY
JA further stated in S
v Musakwa (supra), at
p3:
“I
have spoken, often enough of the boxing ring approach to criminal
trials. It is not good enough simply to throw the complainant and the
accused into the ring and decide the matter on credibility. ...”
and
further down:
“The
alibi defence is referred to in section 158 of the Criminal Procedure
and Evidence Act and in Hoffmann and Zeffertt South
African Law of Evidence 4
ed at p619. The onus is on the State to disprove the alibi: R
v Biya 1952
(4) SA 514 (A); S
v Khumalo & Ors 1991
(4) SA 310 (A) at 327 H.
The
State made no effort to disprove the alibi in this case. Mistakes in
identification can happen. The police should know this. They should
have checked.”
I
do not understand the law to accord an accused the option, when he
relies on or claims that the defence of alibi is or should be
available to him, to keep his cards close to his chest until the very
end. For, how else would the State be afforded the opportunity to be
able to discharge the onus on it if it is not furnished with the
material details of such defence of alibi as the accused relies on,
at the outset or at a stage that allows the police or the State to
investigate its veracity.
In
casu,
as
already stated, the trial court was dealing with a legally
represented accused. The appellant's legal practitioner before this
court is the same counsel who represented him at the trial. In
explaining the belated narration or furnishing of these details of
the appellant's alibi, he said that that was so because he had not
been furnished with the relevant instructions before that stage. This
also tends to be supported by the fact that the details of the
appellant's alibi were not put to the complainant during her cross
examination by the appellant's counsel.
In
S
v Mutandi 1996
(1) ZLR 367 (HC) GILLESPIE J, as he then was, said at p369 – 370,
after reviewing some authorities regarding the treatment of the
defence of alibi:
“As
the extracts above show, the true enquiry is whether or not the
accused is the person who accosted and cheated the complainant. That
is to say the real issue is whether or not the complainant's
evidence of identification of the accused was reliable. The extract
from his judgment shows that the magistrate was obviously prepared to
believe the complainant and indeed good reasons are given tending to
show the genuineness of her belief and the truthfulness of her
evidence. It is not enough however, to be able to find that the
complainant honestly believes that she has correctly identified the
accused. She might be honestly mistaken. This is the true danger
which the magistrate, although he uttered the words of caution to
himself, failed to appreciate or to consider.”
The
learned judge proceeded further:
“As
was said by HOLMES JA in S
v Mthetwa 1972
(3) SA 766 (A) at 768 A – C (and approved by DUMBUTSHENA CJ in S
v Dhliwayo & Another 1985
(2) ZLR 101 (S) at 107 A –D:
'Because
of the fallibility of human observation, evidence of identification
is approached by the courts with some caution. It is not enough for
the identifying witness to be honest: the reliability of his
observation must also be tested. This depends on various factors,
such as lighting, visibility, and eyesight; the proximity of the
witness; his opportunity for observation, both as to time and
situation; the extent of his prior knowledge of the accused; the
mobility of the scene; corroboration; suggestibility; the accused's
face, voice, build, gait, and dress; the result of identification
parades, if any; and of course, the evidence by or on behalf of the
accused. The list is not exhaustive. These factors, or such of them
as are applicable in a particular case, are not individually
decisive, but must be weighed one against the other, in the light of
the totality of the evidence, and the probabilities; ...'”
GILLESPIE
J further continued:
“The
present Chief Justice of this country, GUBBAY CJ, drew attention to
the same need for caution when, in S
v Ndlovu & Others 1985
(2) ZLR 261 (S) at 263G – 264E, he said:
'Confidence
and sincerity are not enough. The possibility of a mistake occurring
in the identification, especially where the witness has not known the
person previously, demands that the greatest circumspection be
employed.”
In
casu,
the
appellant was well known to the complainant as they had been resident
at the same house for about three months prior to the commission of
the offence. On the night in question the complainant saw the
appellant firstly at 6.00pm and later at around 8.00pm. On both
occasions he spoke to her. Although it was evening and therefore dark
outside the room in which she was when she saw the appellant was lit.
The appellant was not at a distance far from where she was; he was at
close range. The appellant spent the night in the complainant's
room, leaving only at 4.00am. The appellant had learnt earlier that
the complainant's mother was away. In addition, the complainant who
hitherto always used to sleep in the same bedroom with his sister, on
this day was in the same bedroom with her two seven year old brothers
in their parents' bedroom. The appellant accepted that the
complainant knew him and would thus not fail to identify him. He
suggested that the allegations against him were fabricated by the
complainant's mother as there was bad blood between him and her.
In
the first place, this allegation was not put to the complainant's
mother when she was in the witness box. In addition the complainant's
mother fairly stated that she did not know who had raped the
complainant and that it was only the complainant who could say who it
was. Secondly, this was also said for the first time only in the
appellant's evidence after the close of the State case.
On
a consideration of such of the factors as are applicable in this case
to test the reliability of the complainant's identification of the
appellant, it appears that for the reasons discussed above, the
evidence by and on behalf of the appellant is so highly improbable as
to be unworthy of belief.
Regarding
the attack that it is not clear as to who the complainant eventually
opened up to between her grandparents, the trial magistrate's
comment that in the circumstances of this case, that aspect is
irrelevant and misplaced finds support on a perusal of the evidence
on record. It is clear therefrom that it was only when the
grandmother examined the complainant that the grandfather was not
also present. After the examination both grandparents were present
during their talk with the complainant and particularly when she
opened up about the rape. There is no inconsistency to talk about on
this part of the State's evidence; contrary to what the appellant's
legal practitioner sought to urge the court to find.
The
appellant's contention that there is also inconsistency in the
State case by reason of the fact that no specimens were taken from
him to try and connect him with any infection that the complainant
may have contracted is not based on any evidence on record. There is
no evidence that the complainant contracted any infection and
therefore this contention, as eventually and properly conceded by the
appellant's legal practitioner, makes no sense on the facts of this
case.
In
casu,
it
is of significance that the offence came to light a couple of days
after its commission. The complainant, 11 years old at the time of
the offence, said that the appellant threatened her with a knife
hence her failure and/or reluctance to report the offence to her
mother and initially to her grandparents as well. It is also
significant to note that it came to light as a result of the
complainant's mother's observation of the manner of the
complainant's walk or gait after her return from the funeral. The
medical examination confirmed the sexual abuse; the complainant had
been raped.
The
details of the medical report are disturbing.
The
doctor observed that the complainant was “very traumatised” or
“severely traumatised” and that her labia majora were “very
swollen”. Furthermore, that her hymen was “swollen shut – torn
and bleeding”. She was also found to have sustained various
injuries as chronicled by the doctor at p.48 of the record of
proceedings, including tears on the hymen; one at 1200 hours, a small
tear at 1000, a medium sized tear at 4.00 o'clock, a deeper tear
than the one o'clock tear at 5.00; then at 6.00 a tear between the
vagina and the anus, the tear continuing through the hymen into the
vagina; another tear at 7 o'clock and a small one at one o'clock.
The doctor's evidence or expert opinion was that all these injuries
and tears were caused by the force of penetration or attempted
penetration.
Although
the doctor's report states that the complainant was raped all
night, it is true, as submitted by the appellant's legal
practitioner, that on the record, no evidence was adduced from the
complainant as to how many times she was raped that night. That,
however, is of no material consequence as the appellant was charged
with only one count of rape. There is no effect therefore, on the
conviction of the appellant. It may be that this may be a
consideration relevant for purposes of the appeal against sentence
but certainly not in relation to the charge and/or conviction. The
appellant's conviction is therefore supported by the evidence on
record and there is no basis for quashing it. The concession by State
counsel with regard to conviction does not find favour with this
court as it is not supported by the evidence.
With
regard to sentence, it is trite that sentencing discretion is
generally the trial court's. The authorities are clear that an
appeal court may only interfere in circumstances where the lower
court has misdirected itself or where the sentence appealed against
is unduly harsh or so severe as to induce a sense of shock.
In
his comments to the notice and grounds of appeal, the trial
magistrate said that he agreed that the appellant's sentence be
reduced. He opined that another court may reduce the sentence by 2 or
3 years imprisonment. That in itself is not a ground entitling an
appeal court to interfere. It is however noted that in casu,
the
HIV tests conducted on the complainant fortunately produced a
negative result.
It
is true that justice must always be tempered with mercy.
Mr.
Masamha
for the State submitted that a sentence in the region of 12 to 13
years would meet the justice of the case and suffice. There is no
doubt however on the facts of this case that a custodial sentence is
called for. At the time of the trial the appellant was said to be 30
years old. He would thus have been 29 at the time of the commission
of the offence. The complainant was only 11 years old. As the learned
trial magistrate stated in his reasons for sentence the appellant was
brutal to a defenceless minor towards whom he should have assumed a
protective role. He cannot escape a lengthy term of imprisonment. Any
other sentence would send the wrong message abroad.
In
the result, for the above reasons the appeal against conviction fails
and is hereby dismissed. The appeal against sentence succeeds. The
appeal against sentence is allowed to the extent that the sentence of
the lower court be and is hereby set aside and is substituted with
the following:
“16
years imprisonment of which 3 years imprisonment is suspended for 5
years on condition the accused is not during that period convicted of
an offence involving sexual abuse on the person of another and for
which he is sentenced to imprisonment without the option of a fine.”
HUNGWE
J agrees. ……………………………
