CHATUKUTA
J: On 9 June 2009, the applicant filed
an application for bail pending appeal. Submissions
were made on 24 June 2009. The matter
was postponed to 25 June 2009 for my ruling.
The applicant's counsel did not appear in court on that date and the
matter was struck off the roll. The
application was reset for 24 July whereupon I dismissed the application. I gave ex
tempore reasons for the refusal of bail pending appeal. The applicant has requested written reasons
for decision. The following are my
reasons.
The applicant was convicted of
raping his 9 year old daughter. He was
sentenced to 18 years imprisonment of which 5 years were suspended on the usual
conditions of good behaviour. The facts
giving rise to the conviction are that the complainant and her young brother
resided in Chitungwiza with the applicant's sister, one Drapper. When the schools closed in December 2005, the
complainant and her brother went to stay with their father in Epworth. It is during this holiday that the applicant
was found to have raped the complainant.
The complainant returned to her aunt when schools opened.
The applicant appealed
against both conviction and sentence.
The appeal against conviction is based on the main ground that there was
no evidence to support the state's case.
The state had therefore failed to prove its case beyond reasonable
doubt.
It
is trite that in every case where bail after conviction is sought the onus is on the applicant to show why
justice requires that he should be granted bail. In determining an application for bail
pending appeal, the court is required to consider the following factors:
(i)
likelihood of abscondment;
(ii)
prospects of success on appeal;
(iii)
right of the applicant to liberty; and
(iv)
potential of the delay before the appeal is heard. (see S v
Dzawo 1998 (1) ZLR 536)
In determining the prospects of success on appeal, a court is required to
take each ground of appeal and examine the judgment of the lower court to
ascertain whether there is substance in the criticism (see S v Musasa
S-45-02). The following are the grounds of appeal:
“1. The
learned trial magistrate misdirected herself by failing to give consideration
to the fact that the rape complainant was obtained by inducement and
appellant's name was actually suggested to the little complainant as the
assailant.
2.
The learned
trial magistrate erred by failing to be alive to and apply her mind to the fact
that the rape complaint was not prompt and only arose after some probing.
3.
The court a quo erred by failing to give
consideration to the fact that there was bad blood between appellant and Drapper
which would have given rise to the surfacing of these false allegations.
4.
The learned
trial magistrate erred by failing to call the Investigating Officer who is
alleged to have been present when the appellant's name was suggested as the
culprit. She ought to have invoked the
provisions of section 232 (b) of the Criminal Procedure and Evidence Act [Cap 9:07].
5.
The court a quo erred by rejecting appellant's
defence when in fact his story was reasonably possibly true and to that extent
the benefit of doubt should have been resolved in his favour.
6.
The lower
court erred by returning a guilty verdict in circumstances where appellant's
guilt was not beyond reasonable doubt.
I
shall now turn to an examination of the grounds of appeal. Regarding the first ground of appeal, the
applicant submitted that it was suggested to complainant at the police station
that the applicant was the one who had raped her. It was submitted that the paper on which the
complainant wrote his name was not produced in court. In support of these submissions, I was
referred to pp4-5 and p15 of the judgment respectively.
The
relevant evidence on the issue is on pp15 and 17 of the record. On p15, the complainant testified as follows:
“When I went to the police that is
when I revealed that the accused was the culprit. Police Officer asked me to write down the
name of the perpetrator on a piece of paper and give it to aunt. I then wrote down that it was my father.”
Under
cross examination the complainant testified as follows:
“Q. were you not influenced by anyone to
implicate me
A. Noone (sic)” (see p 17)
The
above evidence does not in any way support the applicant's contention that the
complainant was influenced to name the applicant. In my view, the evidence proves
otherwise.
Mr. Tafirei, for the applicant, conceded that the evidence was not
supportive of his submissions. He failed
to direct the court to any other part of the record where one would deduce that
the complainant had been influenced. In
fact, it appears the references given by the applicant appear to have been
intended to mislead the court. The bail
statement indicated, at p4 that the paper on which the complainant wrote the
applicant's name at the police station had not been produced in court. However, at p 15 of the record of
proceedings, it is clear that the piece of paper was produced in court although
it was not part of the bail papers. The
record reads as follows:
“This is the piece of paper I (the complainant) wrote on-exhibit 3. I never
said anything to the counselors.”
Mr. Tafirei again retracted his
submissions that the piece of paper had not been produced. In view of the concessions, it appears to me
that the applicant will not be able to sustain the first ground of appeal.
The
first ground gives rise to the fourth ground of appeal that the learned trial magistrate erred by failing to call
the Investigating Officer who is alleged to have been present when the
appellant's name was suggested as the culprit.
It was contended that the court ought to have invoked the provisions of
section 232 (b) of the Criminal Procedure and Evidence Act [Cap 9:07].
S
232(b) empowers a court to subpoena any person if his evidence appears
to it essential to the just decision of the case. The applicant referred me to S v Todzvo 1997 (2) ZLR 162, S v
Togara HH 165/98 and S v Yusuf
1997 (2) ZLR 102. All three cases are distinguishable from the present
case. The first case related to the
production of medical reports which were not clear. The court ruled that where medical reports
have abbreviations and have no explanations to the nature and extent of
injuries, it is necessary for the trial court to assist an unrepresented
accused by calling the doctor to explain his/her report. In S v Kingstone Togara, the accused had
denied raping the complainant. He had
named one John Paradzayi as the culprit.
When he was summoned by the headman after allegations of rape had been
levelled against him he had advised the headman that he had caught Paradzayi in
the act. The accused had indicated that
he wanted the headman to be called. The Attorney
General conceded in that case that it would have been necessary to call Paradzayi.
GARWE J, as he then was, observed that the complainant was, in view of the
accused evidence that he had caught her in
flagrant delicto with Paradzayi, a suspect witness. The court should therefore have called the
headman and Paradzayi as their evidence might have cast doubt on the
complainant's evidence. In S v Yusuf,
an unrepresented accused had disputed being the author of some documents that
had been produced in court. He had
expressed his intention to call a witness to prove that he had not authored the
documents. The court did not call a
handwriting expert. GILLESPIE J ruled at
p106G-107C that it was a miscarriage of justice that the court had not called
the handwriting expert where the accused had indicated his interest.
In the present case, the accused
did not challenge before the court a quo
the piece of paper that led to his arrest.
He did not state that the paper was not clear. What he stated was that prior to writing the
name and over a period of time, the complainant had been influenced by Drapper
to implicate him. What she wrote on the
paper was as a result of that prior influence.
In the absence of any challenge of the authenticity of the paper it was
not necessary to call the police officer.
The complainant had not testified that she told the police officer that
she had been influenced by Drapper. The police officer could therefore not have
been in a position to testify on the prior influence. It appears that the investigating officer
would not have been of assistance to the court.
Therefore there was no misdirection in not calling him to testify.
I shall proceed to deal with
the second and third grounds jointly as they are interlinked. The second ground was that the court a quo
erred in not making a finding that the rape complaint was not prompt and only
arose after some probing. This
contention is premised on the fact that it took some time and a number of visits
to the clinic and to counselors before the complainant finally implicated the
applicant. The third ground was that the
court did not consider that there was bad blood between appellant and Drapper
which would have given rise to the surfacing of these false allegations.
The record reveals that the
court a quo addressed these concerns. At
p28, the magistrate stated as follows:
“In March 2006
complainant's aunt noticed that the complainant had developed an unusual sleeping
habit. She then took the complainant for
bilharzias and diabetes tests. If it was
Drapper who fabricated these rape charges, why would she take complainant for
bilharzias tests well knowing that they had fabricated the story against the
accused? Why would she wait from March
to August to name the culprit if this was Drapper's plan.
The complainant clearly
implicated the accused. This was
corroborated by:-
(a)
a note she wrote to the police; and
(b)
her evidence was also corroborated by Drapper.
Complainant further explained
that she did not tell anyone because accused had told her not to tell anyone.”
Whilst the complaint was indeed
not prompt, the court a quo's findings
cannot be faulted. The trial magistrate
believed the complainant's evidence that she had been told by the applicant not
to tell anyone. There was no basis to
make a finding that the complaint had been fabricated. Drapper went to the police on two separate
occasions. She sought medical testing
and counseling for the complainant. As rightly observed by the court, Drapper
did not need to go through all these endeavors when she knew that she wanted o
implicate the applicant anyway. It
appears to me she would have, if she had intended to do so, induced the
complainant to report as soon as she noticed that the complainant was not well.
The last two grounds are again
interlinked and I shall deal with them jointly.
The applicant submitted that the appellant's defence was “reasonably
possibly” true and to that extent the benefit of doubt should have been
resolved in his favour. The court
therefore erred by returning a guilty verdict in circumstances where
appellant's guilt was not proved beyond reasonable doubt.
The decision of the court was
based on the credibility of the state witnesses. An appeal court rarely interferes with
the finding of a lower court on the credibility of a witness. The exception is where facts in the record do
not justify or support the findings of fact by that court. (see S v Isolano 1985 (1) ZLR 62 (SC), Edmore Musasa v The State SC 45/02, Bertha
Hollington & Dicko Kaila v The State
HH 125/02, Robert Mugwanda v The State SC19/02 and Chalmers v F Chimbari & 4 Ors SC
59/06).
The
applicant's defence was that Drapper did not like him because their parents had
died and left him in charge of their parent's house. This is the same Drapper who was looking
after the complainant and her sibling.
She is the same person who the applicant accepts was concerned about the
complainant's health and took her to the clinic for treatment and for
counseling. The Drapper's conduct in
this regard is not consistent with a person who did not like his brother. She was willing to bear the responsibility of
looking after the applicant's children, when she did not have an obligation to
do so whilst the applicant resided in the family home. It was
clear from the complainant's evidence that she preferred to reside with her
father as opposed to Drapper whom she alleged ill treated her. Despite her preference to reside with the
applicant, she still identified him as the person who had raped her.
The finding of the
court that Drapper did not influence the complainant to implicate the appellant
cannot be faulted as already alluded to above.
I therefore find that the applicant has no reasonable prospect of
success on appeal.
In
this case the applicant was convicted of a serious offence and sentenced to a
long term of imprisonment. In view of my
finding on prospects of success, the temptation on his part to abscond is
likely to be very high indeed.
In
the result, the application for bail pending appeal is dismissed.
Mushangwe
& Company, legal practitioner for the plaintiff
Attorney General, legal practitioner
for the defendant
