MUSAKWA
J: The appellant was convicted of two counts of contravening s 65 (1) of the
Criminal Law (Codification and Reform) Act [Cap
9:23]. He was sentenced to sixteen years imprisonment of which four years
imprisonment were suspended on condition of good behaviour. He now appeals
against conviction and sentence.
The
charges alleged that at an unknown date during 2005 and at number 23 Creswick Road,
Eastlea, Harare
the appellant unlawfully had sexual intercourse with J. A girl then aged nine years knowing that she
had not consented or realizing that there was a real possibility that the
complainant might not have consented to it.
The complainant and the appellant are related
as the appellant is a young brother of the complainant's father. At the
material time the complainant was staying with her aunt who happens to be a sister
of the appellant and the complainant's sister.
In November 2006
the complainant told her former teacher that she had been sexually abused. She
did not disclose the name of the perpetrator. The teacher in turn reported the
matter to Police leading to the appellant's arrest.
The
complainant testified that the first incident took place in the afternoon in
the appellant's bedroom after she had returned from school. She had requested
the appellant to assist her with homework. The appellant first asked her to
bring him some water. He then drank the water whilst holding the complainant's
hand. Thereafter he threw her on the bed, covered her face with a pillow and
raped her. The complainant stated that no one else was present at home.
The
second incident took place in the morning after the aunt had gone to work.
Whilst the complainant was still in bed the appellant removed her panties and
licked her vagina. It was not clarified in relation to the first incident this
took place.
Although
the complainant told her teacher and the investigating officer that she was
raped on three occasions no evidence was led in respect of the third count
which in any event had not been preferred against appellant. The only reliable
evidence adduced against the appellant relates to the afternoon rape incident
and the morning incident of indecent assault.
The appellant admitted that he used to assist
the complainant with her homework but denied the charges. He claimed to have
been at work when it was said he raped the complainant. He also claimed that he
could not have raped the complainant because the maid and his cousin were
always at home.
The
thrust of Mr Koto's submissions was
that the complainant was not a credible witness. He singled out the delay in
making a report against the appellant. He also cited inconsistencies in the
number of times the complainant claimed to have been raped. He also sought to
suggest that the complainant's mother had sought to falsely incriminate the
appellant. This attack on the complainant's mother was in the context of the
information supplied to the doctor who examined the complainant whose report
noted that the rape and medical examination fell between eight and thirty days.
In
our view the issue for determination is whether the trial court was correct in
convicting the appellant on the evidence of a single witness. In S v Banana 2000 (1) ZLR 607 (SC) GUBBAY
CJ had this to say regarding single witness evidence-
“It is, of course, permissible in
terms of s 269 of the Criminal Procedure and Evidence Act [Chapter 9:07] for a
court to convict a person on the single
evidence of a competent and credible
witness. The test formulated by DE VILLIERS JP in R v Mokoena 1932 A OPD
79 at 80 was that the evidence of such a single witness must be found to be
"clear and satisfactory in every material respect".
In The South African Law of Evidence
4 ed at 573 the celebrated authors, Hoffmann and Zeffertt, rightly point out
that Mokoena's case concerned the situation of a single witness claiming
to have identified the accused
by the light of a pocket torch as he ran past in the dark. Accordingly, they
contend that the remarks of DE VILLIERS JP should be related to the context in
which they were made.
Certainly, in purporting to lay down
a general rule the dictum of the learned Judge President has been criticised as
unhelpful and tending to obscure the ultimate purpose of the court's inquiry,
which is whether the guilt of the C accused has been proved beyond a reasonable
doubt. See R v Abdoorham 1954 (3) SA 163 (N) at 165; R v Mokoena 1956 (3) SA 81
(A) at 85. In S v Sauls & Ors 1981 (3) SA 172 (A) at 180E-G, DIEMONT JA
said:
"There is no rule of thumb or
formula to apply when it comes to a consideration of the credibility of the
single witness.
The trial judge will weigh his
evidence, will consider its merits and demerits and, having done so, will
decide whether it is trustworthy and whether, despite the fact that there are
shortcomings or defects or contradictions in the testimony, he is satisfied
that the truth has been told ... It has been said more than once that the
exercise of caution must not be allowed to displace the exercise of common
sense."
In Zimbabwe, much the same approach
has been adopted. In S v Nyati 1977 (2) RLR 315 (A) at 318E-G, Lewis JP warned
that the test in R v Mokoena supra is not to be regarded as an inflexible rule
of thumb. There is no magic formula which determines when a conviction is
warranted upon the testimony of a single witness. His evidence must be
approached with caution and the merits thereof weighed against any factors which militate against
its credibility. In essence, a commonsense approach must be applied. If the
court is convinced beyond a reasonable doubt that the sole witness has spoken
the truth, it must convict, notwithstanding that he was in some respects
unsatisfactory. See also S v Nathoo Supermarket (Pvt) Ltd 1987 (2) ZLR 136 (S)
at 138D-F.
Where the evidence of the single
witness is corroborated in any way which tends to indicate that the whole story
was not concocted, the caution enjoined may be overcome and acceptance
facilitated. But corroboration is not essential. Any other feature which
increases the confidence of the court in the reliability of the single witness
may also overcome the caution.”
The
trial court acknowledged that the complainant's story was difficult to tell. By
this is meant that she was reticent. This is understandable taking into account
her age. In addition, her former teacher described her as quiet. The trial
prosecutor appeared not to have been patient enough or skill in leading her
evidence in chief in order to lead all the relevant evidence. This is
particularly the case in relation to the sequence of events and the commission
of the second count. What might also have compounded the situation was the fact
that victim friendly facilities were not used for this trial.
There
appears to be sufficient corroborative evidence of the complainant
notwithstanding that her mother and aunt denied that she reported the rape to
them. The complainant's former teacher confirmed receiving a report from her.
She in turn reported the matter to Police.
The
medical examination conducted by Doctor Choto confirmed that the complainant
was raped. There is nothing to suggest that the doctor was incompetent or made
incorrect findings. The criticism leveled against his notation that the rape
occurred between eight and thirty days before the examination cannot be
sustained. His explanation was that he got this information from the
complainant's guardian. He further explained that the injuries to the
complainant were neither fresh nor healed.
In
addition there is nothing to suggest that the complainant had any ill motive to
incriminate the appellant. Her report, though made late was voluntary. Her
explanation for the delay is plausible. Apart from the appellant's claim, there
was no other evidence to confirm that there was never a time he was alone with
the complainant.
It
is clear though that the second count was not proved beyond a reasonable doubt.
However, in light of the evidence of the complainant it was incumbent upon the
trial court to convict the appellant of the lesser charge of contravening s 67
(1) (a) (i) of the Code.
As
regards sentence in light of the lesser charge in respect of the second count,
the sentence imposed by the trial court would have to be interfered with. This
is because the maximum punishment under that provision is imprisonment not
exceeding two years.
In the result,
it is ordered as follows-
a)
The appeal against conviction in respect of the first
count is hereby dismissed.
b)
The conviction in respect of the second count is set
aside and in its place is substituted the following verdict
“Guilty of
contravening s 67 (1) (a) (i) of the Criminal Law (Codification and Reform) Act
[Cap 9:23].”
c)
The sentence imposed by the trial court is set aside
and in its place is substituted the following-
“Count One
Eight years
imprisonment.
Count Two
One year
imprisonment.
Of the total
sentence of nine years imprisonment two years imprisonment is suspended for
five years on condition during that period the accused is not convicted of any
sexual offences as defined in the Criminal Law (Codification and Reform) Act [Cap 9:23] for which he is convicted and
sentenced to imprisonment without the option of a fine.”
d)
Appellant's bail is hereby immediately revoked and the
Registrar is directed to issue a warrant for his committal to custody.
Omerjee J agrees
Koto & Company,
appellant's legal practitioners
Attorney-General's
Office, respondent's legal practitioners
