Criminal
Appeal (Reasons for Judgment)
MWAYERA
J:
The
appellant was convicted for Rape as defined in section 65 of the
Criminal Law (Codification and Reform) Act [Chapter
9:23].
The
State alleged that on 29 January 2019 and at House number 2172
Messenger's Camp, Nyanga, the appellant unlawfully had sexual
intercourse with Vincencia Mundida without her consent or realising
that there was a real risk or possibility that Vincencia Mundida
might not have consented to it.
He
was sentenced to 14 years imprisonment of which 4 years imprisonment
was suspended for 5 years on the usual condition of future good
behaviour.
Appellant
noted an appeal on 15 October 2019 and outlined grounds of appeal
against conviction as follows:
“Ad
Conviction
1.
The court a
quo
grossly misdirected itself at law by convicting the appellant in
circumstances where Appellant's guilt had not been proved beyond
reasonable doubt given Appellant's defence that the sexual
intercourse was by consent.
2.
The court a
quo
grossly misdirected itself at law by convicting the Appellant of rape
in circumstances where the report was not made freely and
voluntarily.”
Background
Appellant
was aged 33 years and employed as a soldier stationed at All Arms
Battle School, Nyanga. Complainant was aged 30 years and appellant
was her ex-husband although the marriage was not registered.
During
the time they were still together appellant borrowed US$470-00 of
which he made part payment back leaving a balance of US$270-00. On 26
January 2019 appellant invited complainant to his house so that she
could collect her money. On 28 January 2019 complainant proceeded to
the appellant's house and found appellant out. She waited for his
return.
Appellant
later on that day arrived home at around 2300hrs and he invited the
complainant into his bedroom to collect the balance outstanding to
her.
Whilst
in the bedroom appellant attempted to fondle complainant's breast
but complainant told him that she did not like that. Appellant did
not relent, he forcibly made complainant to lie on the bed on her
back. The complainant tried to scream for aid but appellant closed
the complainant's mouth using his palm and went on to press her
down. The appellant overpowered the complainant and pulled her dress
up, tore her pant and forcibly had sexual intercourse with her once
without her consent.
After
the rape complainant and the appellant slept on the same bed
overnight.
On
29 January 2019 that is the following morning the complainant
reported the matter to ZRP Nyanga Police leading to the appellant's
arrest.
In
his defence outline appellant's version is that on the fateful day
when complainant arrived at appellant's house from Harare, the two
proceeded to appellant's bedroom. The complainant initiated and
agreed to have sexual intercourse, however, before the intercourse
the complainant bathed her private parts. After the sexual
intercourse they both retired on the same bed sharing same blankets.
Appellant
denied forcing himself upon the complainant, according to the
appellant, complainant participated in the sexual intercourse holding
the appellant's body tightly. Appellant was surprised to hear rape
allegations.
The
question for determination by the court is whether the sexual
intercourse between the parties was consensual. Secondly whether
complainant did not freely and voluntarily report the matter?
It
is necessary to look at the evidence of the complainant.
On
29 January 2019 complainant does not deny going into the appellant's
bedroom but did so upon the invitation of the appellant who had
invited her there to collect the balance. Complainant told appellant
that she intended to board the 12 midnight bus for Harare but the
appellant dissuaded her.
Appellant
tried to fondle complainant's breasts and she protested. Appellant
proposed to use condoms but complainant told appellant that condoms
or no condoms she was not interested in the sexual adventure with the
appellant.
Appellant
got up from the bed, procured a condom from the wardrobe and returned
to where complainant was seated, still complainant clearly told
appellant that she did not want. Appellant locked the bedroom, when
the complainant was about to get up, appellant pushed her onto the
bed, she fell on her back, and appellant got onto her top. She
screamed, appellant gagged her, pressed the right leg, got between
her legs took a pillow and placed it between complainant and himself
and then tore complainant's pant on the left side and raped her.
All
this was uncontroverted evidence and the court a
quo
held the complainant a credible witness.
On
the following morning she managed to escape from the appellant's
house when he visited the toilet. She texted appellant's young
brother on his mobile phone, she also informed the appellant's
younger brother's wife. She made a further report to her elder
sister and her husband and then went to the police.
At
the police she intimated that she initially did not want to report
the matter but she had resolved to do so. She also admitted that
aspect on the date of trial but insisted that she did not consent to
the sexual act.
The
appellant submitted that the complainant was advised by the police
that she will not be assisted unless she has made a police report.
Would
one then say that report was not freely and voluntarily made?
On
her way to the police station to make a report about the rape, she
told four different people, her sister and husband, appellant's
brother and his wife informing them about the abuse. Those were the
first complaints consistent with the absence of consensual
intercourse. Why would complainant sneak out of appellant's house
to go and lodge a complaint of rape? From the evidence of complainant
whilst in the bedroom of the appellant it was apparent that she was
not cooperating with the appellant's desire to have sex with her.
She did so both through body conduct and verbally, appellant ought to
have realised that the complainant was not willing to engage with
appellant in the sexual act.
We
are satisfied that the sexual complaints were freely and voluntarily
made. It was made without undue delay and made to close contacts to
the complainant and accused. Complainant's evidence of what
transpired is clear.
Previous
concession when appellant had an affair with her cannot be said to
have been given for future uncontemplated violation. The complainant
on the day in question did not consent to sexual intercourse.
The
court a
quo
dealt with the aspect of complainant's credibility exhaustively and
we see no legal basis to interfere with her findings on the aspect of
credibility. The conviction is proper in our view and the appeal
against conviction has no merit.
The
appeal is dismissed.
MUZENDA
J agrees ________________
Mupindu
Legal Practitioners,
appellant's legal practitioners
National
Prosecuting Authority,
State's legal practitioners
1.
Pages 34-38 of the record of proceedings
