BHUNU
J: The accused was employed by the complainant's parents as a domestic worker
residing at Gwari Village under chief Zimuto in Masvingo Province. He is
alleged to have raped his former employer's 11 year old daughter sometime in
April 2009. The offence only came to
light more than a year later in August 2010 when it was discovered that she had
contracted a sexually transmitted disease.
The
complainant did not lodge a voluntary complaint immediately or within a
reasonable time to anyone. Upon discovering that the complainant had developed
an itchy condition on her genitals her mother suspected sexual abuse but the
complainant refused to disclose the culprit. She was then taken to a local
clinic where the nurses confirmed that she had been sexually abused resulting
in her contracting a sexually transmitted disease. Despite close questioning by
her mother and the nurses she consistently refused to disclose her
paramour
In
her desperate bid to uncover the identity of her child's molester the mother
threatened not to take her to hospital for treatment. It is only after such
threats that the child succumbed and alleged that it was the accused who had raped
her in 2009. The complainant was allegedly raped in April 2009 and the accused
left her fathers employment at the end of January 2010 and yet the complainant
was not prepared to voluntarily disclose the identity of her molester 5 months
after the accused had left employment and gone away.
The
accused denied the charge. The onus therefore, fell squarely on the state to
prove its case against the accused beyond reasonable doubt. The Courts have
sounded a warning time without number that sexual offences ought to be treated
with special care and due diligence in order to avert the danger of convicting
an innocent person. The inherent danger of convicting an innocent person in
cases of this nature in the past prompted the courts to adopt the now discredited
cautionary rule of practice which went rather too far in trying to give undue
protection to the accused person. Despite the disuse and abandonment of the
archaic cautionary rule there is however, still need to handle sexual offences
with extreme care and due diligence.
This
prompted me to remark in the case of Lawrence
Katsiru v The State HH - 36-07 that:
The
proper modern approach in handling cases of a sexual nature was laid down
in the well
known case of S v Banana 2000 (1) ZLR 607 (S) at pp 613 - 614 where the Supreme
Court, the highest court in the land had occasion to remark that:
".the cautionary
rule in sexual cases is based on an irrational and out dated perception, and
has outlived its usefulness. It is no longer warranted to rely on the
cautionary rule of practice in sexual cases. Despite the abandonment of the
cautionary rule, however, the courts must still carefully consider the nature
and circumstance of alleged sexual offences." (Emphasis added)
Thus
on the basis of the ratio laid down in the Banana
case (supra) the abandonment of the
cautionary rule did not mean a wholesale relaxation of the court's ordinary
standard of proof beyond reasonable doubt which is meant as a safeguard against
condemning the innocent together with the guilty in the difficult course of the
due administration of justice. On the contrary the courts must exercise special
care and diligence when presiding over sexual cases for the reasons given in
the case of R v W 1949 (3) SA 772 at 780 where WATERMEYER J had this to say:
"In rape cases for instance, the established
proper practice is not to require that the complainant's evidence be
corroborated before a conviction is competent. But what is required is that
the trier of fact should have clearly in mind that cases of sexual assault
require special treatment, that charges of this kind are generally difficult to
disprove, and that various considerations may lead to their being falsely laid.(My
emphasis).
The required
standard of proof beyond reasonable doubt was succinctly
expounded
in the case of S v Makanyanga 1996 (2) ZLR 231 where the
court observed that:-
"A
conviction cannot possibly be sustained unless the judicial officer entertains
a belief in the truth of a criminal complaint, but the fact that such credence
is given to the 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 the accused disbelieved. It
demands that a defence succeeds wherever it appears reasonably possible that it
might be true".
The
complainant's conduct in this case instills a measure of doubt in the mind of a
reasonable court acting carefully. She did not make a report within a
reasonable time to a person she would reasonably have been expected to make the
report. She only made the report more than a year later after being subjected
to extreme pressure and coercion. Her explanation for her failure to make a
voluntary report is that she had been threatened with assault by the accused.
In her evidence in chief she had this to say:
"I felt pain as
he did it. I did not cry because he had threatened to assault me He got off me
after I had told him that I was feeling pain. I rose and wore my pant. I
noticed nothing on my thing. The accused also wore his trousers. He threatened
to assault me if I would tell anyone. I then went out of the house. Accused
remained inside for a while and later came out".
I
did not tell anyone about what had transpired because I had been threatened.
The matter came to light when I was feeling pain and I was scratching I did not
know what I was producing from my vagina. I was producing whitish staff. My mother
took me to the clinic.
Q. When did you start producing whitish staff?
A. I don't recall but it was in the same
year in 2009. Mother took me to the clinic in 2009. Mother got to know about
the discharge when she saw me scratching myself. At the clinic the nurses
examined me. Gurajena Clinic in Zimuto. We were told there was no medicine. We
went back home but we had been referred to Masvingo General Hospital
I did not disclose to the nurses about the rape. I didn't disclose to mother
either. When we went to the clinic the accused was no longer employed at our
home. I did not report to anyone because I had been threatened. I finally
reported the rape on 30 August 2010 to my mother. We were seated near Masvingo General Hospital I wanted to be treated and
given medicine. I still had the same problem. My vagina was itching again and
mother noticed me scratching."
According to her mother when the
nurses at the clinic discovered that she had been sexually abused they
questioned her in her presence and she flatly refused to disclose her molester.
This is what she had to say in her evidence in chief:
"I took her to
Gorejena Clinic, the nurses asked what the problem was. I told them that she
was scratching herself. She was invited to lie on the bed. Later on they called
me back into the room. They told me that complainant had had sex with a man.
They tried to ask her but they failed to get an answer. They said that
complainant had totally refused to open up. They advised me to go home with her
and talk to her nicely so that she can freely disclose what happened. They said
that if she refused to open up I should take her to the general hospital."
The
complainant's explanation for her refusal to disclose the identity of her
molester sounds hollow and unconvincing because, she did not reside with the
accused. She resided in town whereas the accused resided in the rural areas and
had already left her parents' employment. She was allegedly raped when she had
paid a casual visit to their rural home
Even
long after the accused had left her father's employment she was still not
prepared to name the person who had sexually abused her. She only came up with
a name in a desperate attempt to get treatment for the horrible sexually
transmitted disease that she had contracted. Her mother had placed her in an
invidious position where she had to come up with a name of the person who had
sexually molested her or else she was not going to get medication for the
serious disease that she had contracted.
The
mere fact that the complainant vigorously attempted to shield the culprit who
had sexually molested her, gives room to a reasonable suspicion that she might
have tried to shift the blame to the accused in a bid to protect the real
culprit. It would have been helpful to find out the incubation period of the
disease she was suffering from. Could the incubation period have taken more
than one year before the symptoms were noticeable? Without expert evidence
there is no way of knowing but this introduces some doubt in the mind of the
proverbial reasonable man.
A
perusal of the record of proceedings shows that the accused challenged the
production of the medical report and yet the court accepted it without calling
the doctor. The doctor's evidence was critical in establishing when the
complainant could have possibly contracted the sexually transmitted disease
because the accused had put this fact in issue.
Having
regard to the paucity of evidence, inconsistencies and questionable behaviour
of the complainant in the circumstances of this case, I am of the firm view
that it was wholly unsafe to convict the accused.
It is
accordingly ordered:
1.
That the conviction and sentence be and are hereby quashed
and set aside.
2.
The accused is found not guilty and acquitted.
3.
The registrar be and is hereby directed to tissue a
warrant of liberation of the accused from prison forthwith.
DUBE J: agrees.............
