PATEL JA:
This is an appeal against a judgment of the High Court confirming the
conviction of the appellant by the Harare Magistrates Court. The
appellant was charged with the rape of an 11 year old girl. After a
protracted trial, he was convicted on 14 November 2011 and sentenced to a term
of 12 years imprisonment with 5 years suspended on condition of good behaviour.
On appeal to the High Court, his appeal against conviction was rejected
and the sentenced imposed upon him was upheld. He now appeals against that
decision.
The court a
quo summarised its findings of fact as follows. The complainant, who
had left her home in Glen View, was on her way to Dzivarasekwa in search of her
relatives. She met the appellant for the first time outside his business
premises on 29 August 2010. He called her and, after speaking to her, he
gave her $2 for bus fare. She then spent the nights of 29 and 30 August
at Dziravasekwa Police Station. On 31 August she was taken to Glen View II
Police Station. At about 3.00pm she returned to the appellant's premises
and slept there on the nights of 31 August and 1 September. She was raped
on the second night. On the morning of 2 September the appellant gave her
$80 to spend. She arrived in Mutare on the same day and met a
Mrs Jongwe who took her to the police. The offence was then
discovered at the police station and the complainant named the appellant as the
perpetrator. A medical examination conducted on 3 September 2010 revealed
a fresh tear on her hymen and some discharge from her vagina. The doctor
concluded from his observations that there was definite evidence of penetration
and that the discharge may have been a sexually transmitted disease.
The
appellant denied raping the complainant or committing any other offence.
His defence was that he was merely a Good Samaritan assisting a young
girl in dire circumstances and that the charge against him was fabricated by
her in collusion with the police in order to extort money from him. In
his testimony, he either confirmed or did not dispute most of the complainant's
evidence. However, his position was that the complainant had only spent
one night at his business premises.
In his
notice of appeal, the appellant noted nine grounds of appeal against
conviction, some of which grounds tended to overlap. He also appealed
against the sentence imposed upon him as being unduly harsh and severe so as to
induce a sense of shock. At the hearing of the matter, counsel for the
appellant concisely and quite properly confined himself to four salient grounds
of appeal, as follows:
(i)
The court a quo failed to place due weight on the material
inconsistencies in the complainant's evidence.
(ii)
The complainant's version of events was not credible.
(iii)
On the complainant's version, the essential element of penetration was not
established.
(iv)
The court a quo erred in holding the appellant capable of rape
despite his medical condition.
INCONSISTENCIES IN COMPLAINANT'S EVIDENCE
According to
the record, the State's evidence consists of the following: the complainant's
statement at Dangamvura Police Station, dated 2 September 2010 (the Dangamvura
statement); the later undated statement made at Southerton Police Station (the
Southerton statement); the undated outline of the State Case; and the
complainant's evidence-in-chief and under cross-examination. According to
Adv. Girach, these together constitute four different versions of the
State case. However, Ms. Fero takes the view that there were two
versions before the courts below, i.e. the Dangamvura statement as
read with the State outline on the one hand, and the Southerton statement
coupled with the complainant's evidence on the other. Whichever position
one adopts, there are several notable inconsistencies as between the Dangamvura
statement, the State outline, the Southerton statement and the complainant's testimony
in court.
Firstly, there is the complainant's evidence that
she spent two nights in the appellant's cottage and was raped on the second
night. Her statements to the police and the State outline indicate that
she only spent one night in the cottage. I do not think that this
inconsistency is particularly significant in light of the probability that she
did not divulge as much detail in her statements as she did in her testimony,
particularly under cross-examination. On balance, having regard to all of
the evidence adduced at the trial, it seems to me that her version of having
slept in the cottage on two nights was properly accepted by the trial court.
The second
set of inconsistencies arises from the manner and circumstances in which the
alleged rape was carried out. The complainant's evidence was that the
appellant entered the cottage holding a firearm and threatened her with it. The
act of rape involved him placing his penis on her vagina rather than inserting
it. After she was raped, he forced her to lick his penis. He then
left at some later stage and did not spend the whole night in the cottage.
The
Dangamvura statement and the State outline make no mention of any firearm
having been used on the night in question, whereas the Southerton statement is
consistent with the complainant's evidence in this respect. Again, the
Dangamvura statement and the State outline are silent as to the licking of
appellant's penis. The Southerton statement does refer to the eating of
appellant's penis but indicates that this occurred before instead of after the
alleged rape. As regards penetration, the State outline avers sexual
intercourse, while both the Dangamvura and Southerton statements clearly indicate
that the appellant inserted his penis into the complainant's vagina.
Lastly, the State outline and the Dangamvura statement are to the effect
that the appellant spent the whole night in the cottage, while the Southerton
statement accords with the complainant's evidence at the trial.
The question
of penetration, in my view, is a particularly difficult aspect of this case.
It is an aspect that I will revert to later in this judgment. As
for the inconsistencies in the evidence generally, it is clear that the State
outline was drawn from the Dangamvura statement, which is relatively thinner in
its coverage. The Southerton statement, on the other hand, is somewhat
more detailed and, in essence, broadly consistent with the complainant's
testimony. In this regard, I am inclined to agree with Ms. Fero
that, in the Southerton statement and her evidence in court, the complainant
was adding flesh to her earlier report at Dangamvura Police Station. She
gave the latter statement soon after the alleged rape, at a time when she was
probably not in full control of herself, and only made full disclosure at
Southerton Police Station. On that basis, it seems to me that the trial
court and the court a quo cannot be faulted for having placed greater
reliance on the Southerton statement coupled with the viva voce
evidence, as opposed to the Dangamvura statement as read with the State
outline.
Generally
speaking, as was held in S v Mandwe 1993 (2) ZLR 233 (S) at
237, a State outline is crucial to criminal proceedings. If the
divergence between the outline and the evidence of the complainant is gross and
irreconcilable, it may be proper and necessary for an appellate court to set
aside the conviction as being unsafe. However, it was also observed in
that case that a State outline is usually compiled by police officers without
the requisite legal training. As was highlighted by Korsah JA at 237C-E:
“It is, however, incumbent to caution that, as the
State outline is often a précis of the testimony of the State's witnesses,
often compiled by a poiceman with no legal training (as opposed to the defence
outline being a categorical assertion by the accused person of facts upon which
he relies for his defence), the divergence between the State outline and the
testimony of a State witness must be so gross as to be utterly irreconcilable,
so as to invite an adverse conclusion. As Squires J clearly stated [in S
v Seda 1980 ZLR 109 (G) at 110H], the departure by a witness in his
evidence from the outline must be significant and unexplained to be deserving
of an adverse conclusion.”
In
the instant case, I take the view that the inconsistencies as to the specific
manner in which the alleged rape occurred are largely attributable to the
youthfulness of the complainant. Having regard to the record of
proceedings as a whole, the complainant's detailed evidence in court could not
possibly have been concocted. She did not implicate anyone else and there was
no ulterior motive for her to implicate the appellant. Indeed, she might
not have raised any complaint of rape at all had she not been thoroughly
interrogated at Dangamvura Police Station. Furthermore, many material
aspects of the complainant's testimony are clear and were not challenged at the
trial. These relate to the events prior to the rape, the place where the
offence was committed, the identification of the alleged assailant, and the
events that occurred after the rape. All in all, I am inclined to agree
with Ms. Fero that the inconsistencies alluded to, apart from the
element of penetration, are not so gross as to be utterly irreconcilable or
unexplained in material respects as to vitiate the credibility of the
complainant's evidence in court.
CREDIBILITY OF COMPLAINANT'S VERSION OF EVENTS
Adv. Girach
submits that both the trial court and the court a quo misdirected
themselves in accepting the complainant's version of the alleged rape.
That version, so he argues, is clearly not credible in light of its
cumulative inconsistencies. In particular, it was not possible for the
complainant to have entered the appellant's premises unnoticed. The
appellant's evidence in this regard was corroborated by that of his night
guard. Again, it is not probable that the fifty-four (54) year old appellant
would have used a firearm to coerce the eleven (11) year old complainant or
that he would have given her a sizeable sum of money in full view of his
employees. The complainant then went shopping and did not report the
matter to anyone until the complaint was coaxed out of her at Dangamvura Police
Station. Her failure to report the alleged rape was clearly unusual in
the circumstances of the case.
Bearing in mind the complainant's tender age and dislocation from her
home and family, it seems to me that her initial reticence was obviously
induced by a mixture of fear, confusion and extreme anxiety. The very
fact that the complaint had to be coaxed out of her demonstrates the distress that
she would have experienced in her predicament. Accordingly, having regard
to all the events preceding the complaint lodged at Dangamvura Police Station,
I do not think that it was particularly unusual for the complainant not to have
reported the rape at the earliest opportunity.
The
appellant's version of events was that he did not commit any offence and that
the police colluded with the complainant to extort money out of him.
However, the evidence shows that the allegation of rape first emerged at
Dangamvura Police Station, where the complainant was taken by Mrs Jongwe, and
after she was interrogated by the police. The complaint was then referred
to Southerton Police Station. The attempted extortion only occurred much
later, through a police officer based at Southerton, and the culprit was duly
apprehended and dealt with. What all of this shows is that the alleged
rape could not have been fabricated when it was initially reported at
Dangamvura simply in order to extort money from the appellant. The
appellant's contention in this regard is clearly untenable.
With respect
to the evidence corroborating the appellant's version of events, his Defence
outline identifies several witnesses, members of his staff, none of whom saw
the complainant entering or leaving his premises. In particular, the
outline refers to Itayi Tom, being the night guard on duty, and Remember
Chimpanyanga, one of the bus cleaners. However, Itayi Tom was not called
as a witness at the trial. Instead, Chimpanganya was called to testify
and his evidence only relates to the events of the morning of 2 September 2010
as distinct from what occurred on the night of the alleged rape, i.e.
1 September 2010. In effect, his evidence does not serve in any way to
support the appellant's denial of having been present at the premises on the
night in question.
In the final
analysis, I take the view that the trial court and the court a quo did
not misdirect themselves in preferring the complainant's version of events to
that proffered by the appellant.
WHETHER EVIDENCE OF PENETRATION ESTABLISHED
It is trite
that penetration is an essential element of the offence of rape. See S
v Banda 2002 (1) ZLR 156 (H). In the words of Kamocha J at
158D-G:
“What has now come to be known as legal penetration
is where the male organ is in the slightest degree within the female's body: ….
the slightest penetration establishes the necessary element for liability of an
accused person. The slightest penetration …. being entry (in the sense of res
in re) into the labia (the anterior of the female genital organ).
…. The mere contact of the male organ with the
female genital organ without any slightest penetration does not amount to legal
penetration.”
As I have already noted, both the Dangamvura and Southerton statements
explicitly aver that the appellant inserted his penis into the complainant's
vagina. However, the evidence adduced in court appears to contradict this
position.
In her
evidence-in-chief, the complainant states that the appellant “removed his
trousers and lay on top of me and put his thing on to my thing”.
After demonstrating what happened with the use of dolls, she then states
“He put it on my vagina. I felt pain. I advised him that I was
in pain but he said I was lying. He said I should lick his penis which I
did by holding it and licked it. He then took a white sheet/cloth and
told me to wipe my private parts. He used it to wipe his penis. I
noticed some white substance looking like mucus on my vagina. There was
some blood”. When asked to clarify her evidence under
cross-examination, she insists that “I told the police that he placed it on
my vagina. I did not say or tell them of inserting it into my vagina”.
She then seems to accept that the allegation of insertion was untrue.
Immediately thereafter, however, when asked “So how did you know it
was a penis he put in your vagina?” she replies “It was after raping
me that he wiped his penis”. When questioned further as to what she
did during the alleged rape, she states “I only told him that I was in pain
and he said I was lying. I did not cry”.
The
complainant is clear in her evidence that she felt pain when the appellant lay
on top of her and that there was blood on her vagina after he withdrew.
However, she is evidently confused about the significance of actual insertion
and the degree of penetration required to establish such insertion.
Nevertheless, the medical evidence, following her examination two days
after the alleged rape, categorically indicates that there was a tear on her
hymen constituting definite evidence of penetration. There can be no doubt,
therefore, that the complainant's vagina was penetrated, at least to the
minimal extent necessary to establish legal penetration.
In this
respect, Adv. Girach accepts that the torn hymen shows evidence of
sexual activity and penetration but disputes that such penetration was necessarily
effected by the appellant. In my view, however, the overwhelming effect
of the complainant's detailed testimony coupled with the undisputed facts is to
emphatically dispel and negative any reasonable doubt as to the identity of the
alleged perpetrator. I am accordingly satisfied that that the trial
court and the court a quo did not misdirect themselves in finding that
it was the appellant who effected the penetration in question.
RELEVANCE OF APPELLANT'S MEDICAL CONDITION
One of the
appellant's principal defences is that he was impotent. Adv. Girach
submits that neither of the doctors called by the State gave any clear evidence
on this aspect, while that given by Dr. Boskovic clearly shows that the
appellant was impotent and therefore incapable of sexual intercourse.
Accordingly, the conclusion of the trial court as to penetration cannot
be supported.
It is
necessary and instructive to recall the testimony of Dr. Boskovic in this
regard. He states, firstly, that the appellant is a long-term diabetic
whom he has treated for 15 years. Secondly, he asserts that all diabetic
people suffer sexual weakness and impotence after 7 to 10 years and that
impotent men lose their libido and capacity to have erections. He then
proceeds to mention the availability of treatment through medication, such as
Viagra or Cililis, and, rather confusingly, the possibility of ejaculation
without erection or penetration leading to actual pregnancy. Finally, he
states that the appellant has been diabetic for 27 years and is therefore
absolutely impotent and incapable of sexual intercourse with a woman.
Apart from
the startlingly contradictory nature of this evidence, no documentary exhibits
were adduced to support it. More critically, the witness did not furnish
any evidence of recent tests conducted on the appellant or of the treatment
prescribed for his condition. Although his testimony was not adequately
ventilated under cross-examination, I do not perceive it as affording a
sufficiently reliable basis for buttressing the appellant's defence.
The trial court rejected the appellant's claim of impotence and sexual
incapacity. Its reasoning was that it was not impossible for a non-erect
penis to penetrate a woman's vagina and that the slightest penetration is
sufficient. Having regard to the concept of legal penetration as
explained in Banda's case (supra), I am unable to find any
fault with this reasoning or any convincing basis for setting aside the
resultant findings of the trial court.
SEVERITY OF SENTENCE
The appeal
against the sentence imposed in casu is premised on the personal
circumstances of the appellant, i.e. that he is an elderly first
offender and a respectable businessman whose trial received considerable
publicity. It is averred in the notice of appeal that the sentence
confirmed by the court a quo was unduly harsh and so severe as to
induce a sense of shock. However, at the hearing of the appeal, Adv. Girach
did not proffer any submissions in this regard.
The
Magistrates Court imposed a sentence of 12 years imprisonment of which a period
of 5 years was suspended on condition of good behaviour. In imposing this
sentence, the court took into account all the relevant mitigatory
considerations, including the appellant's age and diabetic condition and the
fact that he was a first offender. It also had regard to the aggravating
features of the offence in casu, in particular, that the appellant
took advantage of a poor young girl.
The High Court confirmed the sentence imposed. In so doing, the
learned judges relied on the decision in S v Nyaminda 2002
(2) ZLR 607 (H) at 611F-G, where it was held that a rape perpetrated upon a
young girl should attract a sentence of at least 10 to 12 years imprisonment.
The court noted that in this case a sentence within the expected range
was imposed with a substantial portion being suspended on condition of future
good conduct.
I am unable to perceive any misdirection in the sentencing discretion
exercised by the trial court or the court a quo. Accordingly,
there is no merit in the appeal against sentence.
In the result, the appeal against both conviction and sentence is
hereby dismissed in its entirety.
ZIYAMBI
JA: I
agree.
GARWE
JA:
I agree.
Dondo & Partners, appellant's legal
practitioners
Attorney-General's Office,
respondent's legal practitioners
