The
accused's conduct in counts one and three constitutes an attempt to contravene
section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
In
terms of section 189 of the Criminal Law (Codification and Reform) Act [Chapter
9:23] one can be convicted of attempting to commit an offence.
Section
189 of the Criminal ...
The
accused's conduct in counts one and three constitutes an attempt to contravene
section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
In
terms of section 189 of the Criminal Law (Codification and Reform) Act [Chapter
9:23] one can be convicted of attempting to commit an offence.
Section
189 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] provides
as follows –
“(1)
Subject to subsection (1), any person who –
(a) Intending to commit a crime,
whether in terms of this Code or any other enactment; or
(b) Realising that there is a real
risk or possibility that a crime, whether in terms of this Code or any other
enactment, may be committed;
does
or omits to do anything that has reached at least the commencement of the
execution of the intended crime, shall be guilty of attempting to commit the
crime concerned.
(2)
A person shall not be guilty of attempting to commit a crime if, before the commencement
of the execution of the intended crime, he or she changes his or her mind and
voluntarily desists from proceeding further with the crime.”
In
this case, the accused had, in counts one and three, gone beyond the
preparatory stages to rape the complainant. He had exhibited an intention to
have sexual intercourse with the complainant without her consent. He had
removed his shorts and the complainant's pants. He had, in count one, placed
his penis outside the complainant's vagina near the hole. In count three, he
had placed his penis just outside the complainant's vagina. He had, in both
counts, gone beyond the commencement of the execution of the intended rapes. If
the complainant had not resisted him he would have raped her. He therefore
attempted to rape the complainant in counts one and three.
The accused's convictions for rape on counts one
and three are set aside and are substituted by those of attempting to
contravene section 65 of the Criminal Law (Codification and Reform) Act
[Chapter 9:23].
