Indecent assault https://old.zimlii.org/taxonomy/term/10102/all en S v Moyo (HB 1-21, HCA 168/19 XREF PT 563/19) [2021] ZWBHC 1 (11 March 2021); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2021/1 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HB 01/21</p> <p>HCA 168/19</p> <p>XREF PT 563/19</p> <p> </p> <p><strong>THANDANANI MOYO</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>THE STATE </strong></p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAKONESE AND MOYO JJ</p> <p>BULAWAYO 23 NOVEMBER 2020 AND 11 MARCH 2021</p> <p> </p> <p><strong>Criminal Appeal</strong></p> <p><em>Ms A Masawi,</em> for the appellant</p> <p><em>T Muduma,</em> for the respondent</p> <p> </p> <p><strong>MOYO J</strong>:       The appellant was convicted of indecent assault as defined in section 67 (1) of the Criminal Law Codification and Reform Act Chapter 9.23.</p> <p>The facts of the matter are that the appellant indecently assaulted the complainant then a 14 year girl by fondling her breasts and touching her thighs.  The complainant was a Form 1 pupil at the material time and the appellant was her English teacher.  The appellant was sentenced to 36 months imprisonment of which 12 months imprisonment was suspended for 5 years on the usual conditions and the remaining 24 months was suspended on condition the appellant completed 840 hours of community service at Ntenjaneni Police Post.  Dissatisfied with both conviction and sentence the appellant approached this court.</p> <p><strong>The State Case</strong></p> <p>            Ntombizondile Sibanda told the court that she regarded herself as complainant’s mother and that complainant told her when she went to a school visit on 16 June 2017 that a teacher was proposing to her.  Complainant did not tell her about breast fondling and the removal of tights.  The parents then phoned the school head.  She said she heard about the fondling of the breasts and the removal of the tights when the statement was being recorded.  She said complainant seemed shocked and scared when she told her of the proposal and she believed the complainant because she was sincere about it.  She said she did not question complainant about her failure to tell her about the fondling of breasts and the removal of the tights because she thought maybe it happened after she had left the school since she saw the complainant only on visits.</p> <p>            Chantell Masuku told the court that appellant was her English teacher and that he sexually abused her.  She gave a series of encounters with the teacher that made her uncomfortable and that sometimes he told her he loved her but the material aspects of her testimony are where she states that on a Tuesday night during studies appellant called her.  They left the class and went to Beit Hall.  He closed the door with one hand and held her by the left hand and fondled her breast using the right hand.  He then tried to pull her skin tight and the siren rang.  He then said he would see her the following day.  She said she did not consent to the fondling and she tried to push him away whilst crying.  She said she never thought of screaming but she was crying.  The siren then rang and she found that other girls had left the classroom and she went to the dormitory.  She was crying.  She later told Leeanne and Mitchell Pfumo.  They then went to sister Makumbe in the evening.  After 2 weeks her parent came for the visit and she told her mother.  The appellant later apologized and asked the complainant if she had told anyone and she said no.  Complainant denied that she had a crush on the appellant and that most students just liked appellant because he was interesting and she said it is not true that she was bitter because he did not date her, since she did not go to school to date and accused had a wife at the school.  Responding to this question the court noted that complainant’s eyes were tearing up.</p> <p>            She was quizzed under cross-examination on the information she gave to the District Education Officer and she said she may have missed some of the things because she was being called a lot and called over the same thing and that she was traumatized.  Complainant under cross-examination explained that she could not be precise on dates.  She said she did not want to fall in love with the teacher she was at school to learn and she did not want him to destroy her future and she also did report the case for future students who might not have the courage to do so.  She refuted that she ever told Form 3s that she had a crush on the appellant and that if any students come to court to state that they would have been bribed.  She said it is a lie that she had a crush on him and was fabricating the charges because he did not reciprocate.  She denied ever telling other girls that she liked the appellant’s suit.  She even asked why she would lie about a teacher and when she was told that it was because he did not love her back she said she did not see him that way and he was her teacher and she would not wish to date a teacher.  She further denied that she was an attention seeker and that if she really had a crush on the appellant as alleged, he should have cautioned her as a teacher or even told the female teachers to talk to her.    She confirmed to the court that she first told either Mitchell or Leeanne.  She said she was traumatized after making the report as other students said bad things about her and her family and that they even wrote on the walls.  She also told the court she wrote a suicide note because she wanted to commit suicide because of the way people treated her after she made the report.  Those were the material respects of complainant’s testimony.  She was not shaken under cross-examination, in fact she answered many questions relating to her relationship with the teacher so well.</p> <p>            She stated that she could not refuse when he called her because he was a teacher and she was a student.  She stated that it is not true that she had a crush on the teacher, that she had gone to school to learn and would not destroy her future by being in love with a teacher and that the teacher in fact had a wife.  She also refuted that she misbehaved towards the teacher and that she was not happy because of his failure to reciprocate her overtures, she stated that that was not true and that if the teacher felt she misbehaved he could have reigned her in or asked the female teachers to talk to her.  She refuted that she ever told other girls that she liked the teacher and had a crush on him and that if any student came to testify in favour of that they would have been bribed.  She also explained the differences in statements to the Education Officers and the Police saying she had been asked many times about the same issue and that she was traumatized.  In my view the complainant was credible, stood her ground, explained any shortcomings in her testimony well and no holes where poked on her version during cross-examination which was lengthy and touched on many peripheral issues like several encounters between complainant and the appellant which had nothing to do with the incident being complained about.</p> <p>            The incident at the centre of the complaint is the one that complainant alleges occurred at the Beit Hall where the teacher allegedly fondled her breasts and tried to remove her tights.</p> <p>            Buhle Moyo was the next to testify.  She told the court that she is a teacher at complainant’s school and that as she marked Agriculture books she came across a note in Chantell’s book saying she wanted to kill herself because of problems that she had at the school.  The complainant then told this witness and another teacher that the appellant was proposing to her and that at some point he even called her to his office during evening studies and he held her waist tried to undress her by lifting her tunic and also tried to remove her tights then the siren rang. (emphasis mine)  She said she observed complainant’s demeanor as she reported the alleged assault initially she was quiet but towards the end she started crying. (my emphasis)  Nothing much arose during cross-examination as this witness was being asked numerous issues that did not pertain to the report that complainant had made to her about the incident when appellant had tried to remove her tights or tunic and the siren rang.</p> <p>            Catherine Makumbe was the next to testify.  She said that she is a Convent sister and a teacher at Empandeni Mission.  She said sometime in June the complainant came to the convent accompanied by a prefect called Mitchell.  She said the complainant told her that the appellant had called her out during studies and proposed to her.  He held her by the back and her chest.  Then he asked to kiss her.  She said he had also grabbed her tunic and pulled it up.  She said complainant appeared nervous as she narrated her ordeal but her voice was very confident.  She also told the court that the complainant did not give her exact dates and she did not press her about them as complainant was disturbed.   The cross-examination of this witness again centered on peripheral issues, not on the crux of the matter, which is the gist of the report of a sexual assault by the complainant.  This witness was asked about her own reaction to news, what advice she gave to the appellant and whether she once told appellant that complainant had a bad family background as well as whether other teachers threatened to handle the matter if she did not and also about whether she had heard a number of rumours around the school.</p> <p>            Mitchell Pfumo was the next to testify.  She said that she was an upper 6th student at complainant’s school and that complainant came to her and told her that appellant was always proposing and at some point he held her hands from the back.  She then took complainant to sister Makumbe.  She said complainant seemed to be scared and she was shaking.  When asked under cross-examination if she went to report that complainant was held by accused and he had proposed to her, she said she accompanied complainant to go and make a report.  She said she read the note where complainant had written but she only read part of it.  She said she did not have time to read it all up.</p> <p>            After the testimony of Mitchell Pfumo the state closed its case.</p> <p><strong>The Defence Case</strong></p> <p>            The appellant told the court that he is a teacher and Acting Deputy Head Master at complainant’s school and that he used to teach complainant as well.  He confirmed that complainant did borrow an unnumbered book and he called her for it to be numbered.  He also confirmed that he asked the complainant for a book that complainant said she could not find.  He said that on that day it was the 2nd of June.  He said complainant then followed him and asked about the book’s price as the appellant had been angry and told her that it needed to be replaced.  He said he would give complainant the price the following day since the price would be in United States dollars.  He said at that time the siren rang and a girl called Vacacy came, that is when complainant left.  He denied any personal interactions with the complainant.  He denied staring at the complainant and said that in class he looked at everyone.  He told the court that complainant had a crush on him because she kept on coming to his office and that she once complained that he gave so much attention to the Form 4s.  He said that he ignored her after noticing that she had feelings for him.  He denied sending Chantell and other girls to collect chairs and that he sent any messages to students via the prefects.  He denied telling the complainant that he loved her on that particular day.  He   denied the allegations of lifting complainant’s tunic and touching and asking for a kiss when he heard them from sister Makumbe and he dismissed them as a fabrication.  He said after the allegations complainant and other girls came crying saying he must not stop teaching them.  He said complainant told many people about appellant proposing love to her.  He said that later there was a demonstration at the school in solidarity with complainant.  He also stated that he suspected that a third force was behind the sexual complaint.  He said 2 teachers did not like his strict management style and the fact that he told on them after they were caught drinking beer in the evening hours.  He said he was later called whilst on bail about an issue that complainant had missed her period and he asked the ladies to make her write a report.  The report allegedly stated that she felt something entered her body when appellant touched her and complainant was not sure if it was a finger or what.  Asked why the complainant being a child would go to such lengths in fabricating against him the appellant said she liked him a lot and told the other girls about it and that she was attention seeking towards the appellant and that so she wanted to save face and say bad things about the appellant and that she got angry when she realised he was taking the other classes.  That she was showing her disgruntlement through the report.</p> <p>            Asked under cross-examination he confirmed that complainant fabricated the allegations because she had a crush on him he answered in the affirmative and asked further to explain why he concluded that she had a crush on him he said she would come to his office a lot and she was very possessive of him and was unhappy that he did not give her time.  He said a group of girls told her that complainant had a crush on him.  He confirmed that on a date he refers to as the 2nd of June complainant followed him to his office and he was alone and that that was contrary to standards as the students should have come being 2 but complainant just followed him.  He agreed that when complainant followed him, he was alone with complainant then Vacacy came.  At page 79 of the court record he was asked the following question</p> <p>            Q.        Vacacy came and found you with complainant</p> <p>A.        I called complainant at 8 so all the activities could happen at 8.  The siren rang and Vacacy came.  (my emphasis)</p> <p>Asked if he was allowed to entertain students at 8 pm he said after study time they can move around and about.  He confirmed under cross-examination that as a teacher he did not take any steps about the alleged crush that complainant had on him.  Those were the material respects of appellant’s testimony.</p> <p>Next to testify was the Headmaster Mandla Ndlovu who confirmed receiving the report from 3 teachers.  He called the accused and questioned him and he denied the allegations.  He confirmed that students consult teachers at night but that he tells teachers to be wary of being with the students alone at night.  He confirmed that it is a school rule that they can consult teachers even at night because some lessons are done at night.  Those were the material respects of Mandla Ndlovu’s testimony.</p> <p>Given Moyo was the next to testify.  He said he is a guard at the school.  He told the court about his duties and how they control student movement after 8 pm and that they lock gates and do not allow the students in.  He said early June to about 15th of June he was not at the school.  He said he does not know anything about the incident being mentioned and he knew nothing about the matter before court.  He was told under re-examination that he had been called as a guard and that they wanted to know if in the generality of his duties was it possible for a Form 1 student to be at a teacher’s office at 9 pm.  He then said it has not happened because by 9 they would have knocked off.</p> <p>In assessing this case, I will start with the notice of appeal.  The notice of appeal itself does not have brief and concise grounds of appeal.  It reads like heads of argument and is in fact argumentative rather than simply giving the concise grounds on where the court <em>a quo</em> erred.</p> <p>Ground number 1 talks of fairness and due process lacking in the entire trial.  On this aspect counsel attacks the manner in which proceedings are held in court in Zimbabwe and laments the lack of recording of court proceedings by either machines or independent personnel.  However, it is clear from the appeal record cover that counsel did certify the record of proceedings as correct on 26 November 2019.  One clearly then fails to appreciate the import of the preliminary point raised in the heads of argument in support of the first ground of appeal.  Counsel, further in her heads, seems to have issues with the recording related to the objections that were made by the state and sustained by the court.  However, counsel should have objected to the record of proceedings, decline to sign it and present her own version of notes to challenge the court’s recording.  She should have simply declined to certify the proceedings as a true reflection of the proceedings conducted in the court <em>a quo</em>.  It presents a contradiction that on one hand she certifies the record as correct then on the other, she challenges the contents of the record on appeal.  The very purpose of certifying the record of proceedings by all interested parties is so that a record of proceedings that is correct is referred to the appellate court.  Appellant’s counsel also submits that they failed to cross-examine the complainant on the statements she allegedly wrote at the school, 4 of them.  This aspect is captured at page 31 of the court record.  The complainant said she made one statement to the Police and that at school she wrote a report.  It was put her that she made 4 statements and that they would be read to her.  Complainant agreed that they be read.  Defence counsel then asked her if she made some audios and she answered by saying she made 2 audios.  At that juncture, the prosecutor said “I object” Then the court stated “Question not to be answered”  Defence counsel then proceeded to question the complainant.  It is not clear what the objection was to and what question the court was saying should not be answered.  The objection and the sustenance seem to be about a question that complainant had been asked and the last question she had been asked she had already answered.  If the transcribed record did not capture that event correctly counsel for the defence should have objected to signing it so that a clearer picture of what the objection was about and its sustenance would be clear to the appellate court.  Counsel nonetheless proceeded to cross-examine complainant about what the defence perceived were different statements and reports that she had made and she explained that in writing these reports she may have missed some things because she was being called a lot over the same things and that she was also traumatized.</p> <p>It is this court’s view that the issue of the different statements was canvassed with complainant explaining why that was so.  However, at the end of the lengthy cross-examination complainant maintained that the incident did occur wherein the teacher, handled her, touched her breasts and tried to remove her tights.  In my view, that is the crux of the matter.  The complainant stated that it was on a Tuesday night during studies he came and called her.  They left the classroom and went to Beit Hall.  That is when the indecent assault is alleged to have occurred.  She told Mitchell Pfumo about the incident and they then went to sister Makumbe to report in the company of Mitchell.  The 2 witnesses also testified and confirmed receiving the sexual complaint.  I have already alluded to their testimonies herein.</p> <p>It is trite that issues of credibility obviously lie in the dormain of the trial court and I have to mention that of all the witnesses that gave evidence for the state no one seemed to be bent on telling the court a fabrication and none had their evidence was poked during cross-examination.  The complainant gave a vivid account of what transpired and answered the challenges thrown at her during cross-examination very well.  For instance, she agreed that she left out certain information in some of the statements she had made at school but she gave a valid explanation of having been subjected to questions many times about the same incident and that she was traumatized.  She was traumatized by the incident as she even thought of committing suicide per the note found by the other teacher in her exercise book.  Certainly, this is a valid explanation.  Again, she explained that she never had any crush on the appellant and that appellant was generally liked by most students as well as that she had gone to school to learn and she would not date a teacher.  She further explained that if the teacher really felt that she had a crush on him and was therefore behaving inappropriately he could have reigned her in through the usage of female teachers.  In a nutshell, complainant explained away the issues related to the statements and she also successfully challenged the issue of the crush she is alleged to have had on the appellant.</p> <p>The trial court could not be faulted for accepting her version and it is clear that she did make a report at the earliest possible opportunity.  That she never gave her mother the fuller details, cannot be held against her so as to vitiate the complaint because she did tell sister Makumbe the fuller details.</p> <p>The accused person himself admits to having been alone at some point with the complainant and that he was under the impression that complainant loved him and had a crush on him.  He further states that the allegations were as a result of unreturned love wherein the complainant loved him and he did not reciprocate.  He said complainant had a crush on him because she would frequent his office and she also told other girls.  He further stated that he thought there was a third hand in the allegations presumably by teachers who did not like his strict management style.  He however, does not go deeper in this theory and conspiracy to show how then the allegations of the sexual assault come about as a result of the third force.  It is not clear whether his defence is that complainant was angry about the unreturned love and the 2 teachers then hijacked that and made her frame him.  It is either complainant had a crush on him and out of lack of reciprocation she fabricated the allegations or the other 2 teachers out of their hatred for his management style called complainant and asked her to join them in their mission to discredit him.  The defence is elusive in that clearly the 2 teachers who testified in court were not shown to be part of any project to discredit him and in fact sister Makumbe seemed not to have wanted the complainant’s allegations to go far.  The other teacher simply found a suicide note by the complainant in her exercise book.  The defence by the appellant in the court <em>a quo</em> has problems in the following respects:</p> <p>1)         Not only is it fanciful, it is elusive in that the so called crush was not based on any factual basis save that accused read into complainant’s frequent visits that she had a crush on him.  He says other students told him as well but they never testified to that effect.  The crush seems to have been in the accused’s own perception as complainant vehemently denied same.</p> <p>2)         The appellant being a Deputy Headmaster alleges that a student had a crush on him and that she frequented his office but surprisingly he did not do anything about it.  He says he just ignored it and he says this was left until a time that she got angry and decided to fabricate allegations of an indecent assault against him.  His position, and his inaction and his allowing the complainant to frequently visit him in the circumstances is not consistent with the conduct of a person in authority and in a <em>loco-parentis</em> position.  His conduct of leaving such an undesirable state of affairs smacks of a person who liked the set up.</p> <p>3)         That complainant may have liked the teacher, or frequented his office, if true, cannot serve as a defence because it then shows that the appellant did have an opportunity to abuse the child as alleged most probably after misreading her intentions.</p> <p>4)         The appellant also comes up with another theory which was seemingly plucked from the air as there is absolutely no fact stated to sustain it.  The theory that the 2 teachers who he caught on a beer drinking spree could be responsible for fabricating the allegations together with the complainant.  This is what appellant terms a third force.  We are not told how this theory came about and how the 2 teachers are linked to the report by the complainant.  It is just a bare statement with no flesh at all that appellant throws in as a defence.</p> <p>The learned Magistrate cannot be faulted for rejecting the defence case as other than appellant’s testimony, the other 2 defence witnesses did not assist the defence case in any way as their evidence had absolutely nothing to do with the allegations appellant was facing they could not vouch for either side of the case, they simply did not know anything about the allegations.  The guard gave a general outlook of what would happen after hours but he did not tell the court that as a matter of fact what complainant alleged happened did not happen.  He in fact also told the court that he was away early June until the 15th of June.</p> <p>The appellant attacks the manner in which the trial court reasoned the judgment, however, the crux of the matter is whether, with the evidence in the court record appellant’s guilt was proven beyond any reasonable doubt?  I have already shown herein that the complainant gave her evidence well and explained away any inconsistencies in her statements as well as standing her ground during cross-examination to deny any crush on the appellant and in fact to challenge the appellant’s conduct as a teacher who thought that a student was behaving inappropriately towards him.  Appellant himself came up with a fanciful defence and in fact admitted that complainant used to come to his office and even admitted that there is a time when he was alone with the complainant, a situation that he said was in fact not allowed.  He allegedly further sat back and did nothing as a teacher faced with a student misbehaving towards him and even if this version could be accepted for arguments sake, one would be inclined to believe that he just waited for an opportunity to pounce.</p> <p>The state in this case had to prove that complainant was physically touched or handled by the appellant in a manner she did not accede to and which was of an indecent nature.  Whether breasts were fondled or not, what comes out clearly is that accused did touch complainant and attempted to remove her tights.  That is consistent in all the accounts she gave.</p> <p>Indecent assault is defined in section 67 of the Criminal Law Codification and Reform Act Chapter 9:23 as:-</p> <p>“1)       A person who</p> <p>(a)        being a male person-</p> <p>(i)         commits upon a female person any act involving physical contact that would be regarded by a reasonable person to be an indecent act, other than sexual intercourse or anal sexual intercourse, or other act involving the penetration of any party of the female person’s body or of his own body.”</p> <p>In this matter the accused is alleged to have handled complainant and tried to remove her tights.  There is also in some instances a mention of fondling of breasts.  Although, the issue of breasts seems to be left out by some witnesses the allegations regarding the handling of thighs and attempt to remove her tights are consistent throughout the testimony of all the witnesses although there is also a mention of a tunic.  The touching of thighs and attempt to remove the tunic or tights, even without the fondling of breasts fit squarely on the definition of the charge in section 67 of the Code.  The defence counsel seemed to concentrate on the issue of the fondling of breasts but with or without the fondling of breasts the state would have managed to prove its case on the inappropriate touching of the thighs and an attempt to remove the tights.   There is also the aspect of complainant having missed her period.  She however explained that under cross-examination where at page 45 of the record of proceedings she was asked whether it was not correct that she said she missed her period because of him and she refuted that saying she was just confused and maybe it had been an issue with the diet.  Counsel for the defence did cross-examination on many issues and had ample time to do so but clearly from the court record she dwelt on rumours that were going around the school, what the witnesses thought or what other people had said or done about the incident she then lost focus on the crux of the matter, which was a simple question whether the offence of indecent assault could have been committed on the complainant and instead of just keeping to that point, defence counsel brought in numerous facts which did not assist the court in any way in resolving the matter at hand.  For instance a lot of questions were asked about what other people did or said which had absolutely nothing to do with what could have happened between complainant and the appellant on the alleged incident.  Defence counsel submits that the court did not use the evidence of the defence witnessed but such evidence tendered by the second defence witness Mandla Ndlovu (the Headmaster) and Given Moyo ( the guard) did not advance the accused’s defence in any manner.  Even defence counsel told the witness Given Moyo that they had called him as they wanted to know in the generality of his duties if it was possible for a Form 1 student to be at a teacher’s office at 9 pm. And he said it has not happened before because by 9 they would have knocked off.  Such an answer would not be used to refute the specific allegations made by the complainant against the appellant for the obvious reasons that the evidence had to zero in on the specifics of the day in question for it to be relevant to the allegations the appellant faced.</p> <p>The defence counsel also seemed to have issues with the information the complainant told her mother, however it is clear from the court record that she expressed her dissatisfaction with appellant’s conduct to her parents who then without asking for further details referred the matter to the school authorities.</p> <p>It is our considered view that the alleged inconsistencies do not go to the root of the complaint so as to vitiate it for the simple reason that any fears of fabrication were dispelled by the complainant herself during cross-examination.  The other 2 witnesses that were called that is sister Makumbe and Mitchell Pfumo corroborated her evidence.  Seemingly, Mitchell Pfumo upon receipt of the complaint did not seek for further details but decided to accompany the complainant to sister Makumbe where she would report the matter.  In fact at page 62-63 of the court record she tells the court that she read only part of the statement that the complainant wrote when she accompanied her to sister Makumbe and she said she did not have time to finish reading the statement.  She however confirmed reading the part about the appellant handling the complainant and trying to pull her tunic.</p> <p>It is trite that where there are contradictions in the state case, it depends on the explanations given for the contradiction and the sum total of the evidence before the court.  In this case there was consistency in the state case about appellant holding complainant and trying to remove her tights or tunic.  There is absolutely no contradiction on this respect and the court <em>a quo</em> would not have a reason to reject the evidence of the state witnesses in that aspect.  Proof beyond reasonable doubt does not entail perfection in the state case.  It entails proof that beyond a reasonable man’s questions and doubts, a set of facts have been proven to have occurred at the behest of an accused.  It means that the crux of the matter as per the charge the accused faces, has indeed been established beyond any reasonable doubt.  Juxtaposing the evidence of the state witness and the fanciful defence given by the appellant in the court <em>a quo</em>, and also considering whether the defence proffered is reasonable and possible in the circumstances, the court <em>a quo</em> cannot be faulted in finding that indeed the guilt of the appellant in this matter was proven beyond a reasonable doubt.</p> <p>Proof beyond a reasonable doubt is explained in Reid Rowland’s Judges handbook for Criminal cases at page 97 as follows:-</p> <p>“In our system, the state has to prove the guilt of an accused beyond reasonable doubt.  Proof beyond reasonable doubt cannot be subject to exact measurement.  For Judges and Magistrates it becomes a matter of experience and intuition rather than analysis.  It is a matter of degree.  Proof beyond a reasonable doubt does not mean proof to an absolute degree of certainty.  It means that there should be such proof as leaves no reasonable doubt in the mind of an ordinary man capable of sound judgment and of appreciating human motivations.  It means a high degree of probability not proof beyond a shadow of doubt.  The state does not have to close every avenue of escape, and fanciful or remote possibilities can be discounted as these do not lead to reasonable doubt.”  (my emphasis)</p> <p>The author therein then refers to the case of <em>Isolano v the State</em> 1985 (1) ZLR 62 (SC).  In the matter at hand, the fanciful theories that complainant was bitter about unreturned love and that a third force had a hand in the form of disgruntled teachers, are remote theories that indeed have to be discounted.  Whilst the accused person bears no onus to prove the truthfulness of his defence, he however still has to come up with a defence that is reasonably possibly true in the circumstances.  In other words accused must come up with a version sufficient to raise a defence and all that is required is that there be sufficient material evidence to make the defence a realistic issue.  It is not realistic that complainant fabricated allegations because of unreturned love, neither is it realistic that because there are some teachers that the appellant once told of their wrongdoing then they could be the third force in the case.  The defence proffered is a matter of surmise and conjecture, it cannot be held to be reasonably, possibly true in the circumstances.  This is juxtaposed with appellant’s own evidence that complainant did frequent his office.</p> <p>Reid Rowland further states at page 97 of the Judges handbook in criminal cases that:-</p> <p>‘To be a reasonable doubt, the doubt must not be based on pure speculation but must be based upon a reasonable and solid foundation created either from the positive evidence or gathered from reasonable inferences not in conflict or without weighed by proven facts.  (It is sometimes said that accused should not be convicted unless there is moral certainty as to his guilt).  However, it is not necessary for the state to prove every single individual fact in a criminal case beyond a reasonable doubt although the state must prove beyond a reasonable doubt a fact which is particularly vital upon which the whole state case hinges.  The question which needs to be asked is: do all facts taken together prove guilt beyond a reasonable doubt?”     </p> <p>On the other hand Reid Rowland further states that accused must be acquitted if there is a reasonable possibility that his story is substantially true and that his explanation might be reasonably true.  We have already found that appellant’s defence is fanciful and more of a theory than the established facts.  The appellant’s counsel in the heads of argument and the grounds of appeal attacks the learned Magistrate’s reasoning and it is clear from the learned Magistrate’s reasoning that she just chose to believe complainant’s story without assessing if the accused’s defence is reasonably, possibly true, which in itself is a misdirection however, at the end of it all, the appellate court should consider the sum total of the evidence before the court <em>a quo</em> and satisfy itself either that the accused’s guilt was proven or was not proven looking at the evidence in the court record.  It does not necessarily follow that every misdirection vitiates a conviction.  Regard should be had to section 38 (2) of the High Court Act which provides thus:</p> <p>“Notwithstanding that the High Court is of the opinion that any point might be decided in favor of the appellant, no conviction or sentence shall be set aside or altered unless the High Court considers that a substantial miscarriage of justice actually occurred.” (emphasis mine)</p> <p>The Act further provides in section 38 (3) that:-</p> <p>“If any point raised is decided in favour of the appellant and it consists of a misdirection by the trial court or tribunal of itself on a question of law or a question of fact or a question of mixed law and fact, the High Court shall dismiss the appeal if it is satisfied that the evidence which has to be considered has not been substantially affected by the misdirection and that the conviction is justified having regard to the evidence.” (my emphasis)</p> <p>It therefore follows that even if the learned Magistrate’s reasoning fell short of the required standard <em>vis a vis</em> eliminating accused’s defence, this court will not, where evidence led proves the state’s case beyond a reasonable, doubt simply allow the appeal on that sole basis.  The appellate court can still in terms of the aforestated sections of the High Court Act, make its own findings on the reasonableness, possibility or otherwise of the defence proffered as shown herein</p> <p>On the other hand, the totality of the facts, that is considering the following issues:-</p> <p>1)         Complainant’s vivid explanation of what transpired.</p> <p>2)         Complainant’s explanation on pertinent issues during cross-examination which I have already alluded herein.</p> <p>3)         The consistency of the report relating to the touching of thighs and the attempt to remove tights or the tunic.</p> <p>4)         The appellant’s perception that complainant loved him and therefore wanted a sexual relationship with him when there is no specific conduct or mention of complaining communicating as such to the appellant.  This is coupled with the fact that he failed to tell the court where this theory emanated from as clearly complainant never told him as such and he says he read from her conduct of being always at his office which in itself is mere conjecture.  He also says some other students told him.</p> <p>5)         His conduct of not acting like a teacher who is in <em>loco parentis</em> and reporting or dealing with complainant’s alleged inappropriate conduct.</p> <p>6)         The fact that clearly form the totality of the evidence, complainant would sometimes be alone with accused a situation that was not permitted in the school.</p> <p>7)         Appellant using mainly unproven rumours to rely on in his defence.  Rumours are just that, they are not facts neither can they be material to a determination that has to be made in a court of law.</p> <p>8)         The theory of the third force is inconsistent with complaint’s anger over unreturned love, we are not even told if the 2 teachers appellant alleges had issues with his strict management, even got involved with the complainant’s cause at any stage.  This clearly is a desperate attempt by the appellant to throw in everything with the hope that something somehow might hold.  It is thus our finding that the conviction of the appellant by the court <em>a quo</em> as charged is satisfactory as the state did prove its case beyond a reasonable doubt in the circumstances.</p> <p><strong>Ad Sentence</strong></p> <p>            On the sentence, sentencing is the province and dormain of the trial court and this court will only interfere if there is a misdirection.  The penalty provision provides for a fine not exceeding level 7 or imprisonment not exceeding 2 years or to both such fine and imprisonment.  The learned Magistrate erred and misdirected herself when she sentenced the appellant to 36 months imprisonment of which 12 months imprisonment was suspended on the usual conditions with the remaining 24 months suspended on condition accused performed 840 hours of community service at Ntenjaneni Police Station.</p> <p>            The sentence will accordingly be altered so as to remain within the permitted penalty provision.  Accordingly it is ordered as follows:-</p> <p>            1)         The conviction is confirmed.</p> <p>            2)         The sentence by the court <em>a quo</em> set aside and substituted with the following:-</p> <p>The accused is sentenced to 24 months imprisonment of which 6 months imprisonment is suspended for 5 years on condition the accused does not during that period, commit any offence involving indecency whereupon conviction he shall be sentenced to imprisonment without the option of a fine.  The remaining 18 months imprisonment is suspended on condition accused completes 630 hours of community service at Ntenjaneni Police Post on the following conditions;</p> <p>            a)         Community service starts on 15th March 2021</p> <p>b)         It shall be performed on weekdays between 8 am – 4 pm on conditions set out by a probation officer.</p> <p> </p> <p>Makonese J………………………I agree</p> <p><em>Abigail Masawi Law Chambers</em>, appellant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> <p> </p> <p> </p> <p> </p> <p>             </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/1/2021-zwbhc-1.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=34179">2021-zwbhc-1.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/1/2021-zwbhc-1.pdf" type="application/pdf; length=362832">2021-zwbhc-1.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-matter-appeal">Criminal matter (Appeal)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-magistrates-court">appeal from magistrates court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-high-court-0">appeal to High Court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/indecent-assault">Indecent assault</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure-sentence-general-principles">CRIMINAL PROCEDURE (SENTENCE) General Principles</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/alteration-sentence">Alteration of sentence</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-sentence">Appeal of sentence</a></li></ul></span> Fri, 18 Jun 2021 07:26:52 +0000 Sandra 10064 at https://old.zimlii.org S v Muronda (HH 679-20, CRB 406/20) [2020] ZWHHC 679 (30 October 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/679 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>THE STATE </p> <p>versus</p> <p>TAKUDZWA MURONDA</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUSAKWA &amp; MUZOFA JJ </p> <p>HARARE, 30 October  2020</p> <p> </p> <p> </p> <p><strong>Criminal Review </strong></p> <p>                        </p> <p> </p> <p>            MUZOFA J: On 12 March 2020 the complainant, a married woman retired to bed around 23:00 hours. Her husband was away. So she was alone. The accused who is related to the complainant was aware of the absence of the complainant’s husband stealthily entered the room. He was naked.  He crept into bed, and slept on top of the complainant. The complainant who was fast asleep by then, was startled and to realize that someone was on top of her. The complainant pushed the accused who resisted. During the struggle the appellant forced his hand into the complainant’s skirt and grabbed her panty. The complainant fought harder until she set herself free and rushed to the door. The accused tried to sweet talk her to calm down so that he could have sexual intercourse with her. He tried to grab her again, she fought him off and ran outside.</p> <p>            The complainant immediately reported to her brother in-law who was sleeping in the tobacco barn. </p> <p>            The accused was subsequently charged with indecent assault in contravention of s 67 (1) (a) of the (Criminal Law Codification and Reform Act) [<em>Chapter 9:23</em>] ‘the Code’. He pleaded guilty. A sentence of 12 months imprisonment was imposed of which 4 months’ imprisonment was suspended on condition the accused did not within that period commit an offence involving indecent assault. The remaining 8 months’ imprisonment was suspended on condition of community service.</p> <p>             The learned Regional Magistrate who scrutinized the matter, raised issue on the propriety of the charge. In a detailed letter citing relevant case law, which I  will revert to later in this judgement, he requested the trial magistrate to comment whether in the circumstances of this case a charge of attempted rape would not have been appropriate.</p> <p>            The trial magistrate stood his ground and referred to case law that, in his perception justified the charge. A reading of the case law does not support the learned Magistrate’s view on this issue.</p> <p>            Having reached a stalemate, the Regional Magistrate referred the matter on review and guidance.</p> <p>            The engagement between the two magistrates demonstrates the fine line between some acts of indecent assault and attempted rape. However reverting to the provisions that create the offences and decided cases should be able to settle the issue.</p> <p>            The issue for determination is whether the accused’s conduct constitutes attempted rape or indecent assault.</p> <p>            All attempts derive from s 189 of the Code which creates this type of offences and provides</p> <p>            “189     Attempt </p> <p>            …………</p> <p>            Two requisites have to be met the <em>mens rea</em>to commit the offence and the attempt to commit the offence. The accused must have reached at least the commencement of the execution of the intended crime”<a href="//DCD79BB2-17CF-462A-84F1-62A1B38F2045#_ftn1" name="_ftnref1" title="" id="_ftnref1">[1]</a></p> <p> </p> <p>            The difficulty lies in the determination of when “the commencement of execution” begins. This has been subject of debate as far back as 1921<a href="//DCD79BB2-17CF-462A-84F1-62A1B38F2045#_ftn2" name="_ftnref2" title="" id="_ftnref2">[2]</a>where the court said the act charged as an attempt must</p> <p>            “…reach far enough towards the accomplishment of the desired result as to amount to a   commencement of the consummation.”</p> <p> </p> <p>Consummation is what is referred in the Code as “commencement of the execution” which the court in <em>Rex</em>v <em>Sharpe<a href="//DCD79BB2-17CF-462A-84F1-62A1B38F2045#_ftn3" name="_ftnref3" title="" id="_ftnref3"><strong>[3]</strong></a></em>describes as the beginning of the final series of acts which complete the crime. The beginning of the acts of the final series depends on the circumstances of each case. It also involves a value judgment by the court. This principle has been applied in numerous judgments in our jurisdiction. A case in point that I believe the Regional Magistrate relied on is <em>S</em>v <em>Dube<a href="//DCD79BB2-17CF-462A-84F1-62A1B38F2045#_ftn4" name="_ftnref4" title="" id="_ftnref4"><strong>[4]</strong></a></em>where the Supreme Court emphasized value judgment of a practical nature based on proximity and remoteness to the commission of the offence. In other words, it is an exercise of common sense. In the <em>Dube</em>case (supra) the court dismissed an appeal against conviction on a charge of attempted rape. The appellant had made sexual overtures to the complainant, had seized her, thrown her on the ground and tried to remove her panty, but then got up and refrained from further attacking her because he discovered that she was menstruating. The court held that the appellant’s conduct had gone beyond the preparatory stage to commit the offence when some external factor caused him to change his mind.</p> <p>            In<em>S </em>v <em>Kuwizha<a href="//DCD79BB2-17CF-462A-84F1-62A1B38F2045#_ftn5" name="_ftnref5" title="" id="_ftnref5"><strong>[5]</strong></a></em>the accused was charged with indecent assault. The accused met the complainant along a road. He blocked her way and expressed his intention to have sexual intercourse with her. He grabbed her arm and dragged her to a nearby bush where he pushed her to the ground. The complainant fell on her back and her dress moved up to her thighs. The accused sat on her legs. The complainant bit the accused’s thumb and he let her go. The review judge declined to confirm the proceedings to be in accordance with real and substantial justice. The court relied on the Attorney General’s opinion that it sought, which referred to the <em>dicta</em>in <em>R</em>v <em>B <a href="//DCD79BB2-17CF-462A-84F1-62A1B38F2045#_ftn6" name="_ftnref6" title="" id="_ftnref6"><strong>[6]</strong></a></em>where the court noted,</p> <p>            “In my view, which I believe accords with the general practice, the stage of attempted rape is       reached as soon as the assault takes place and before any direct effort is made to effect penetration.     Of course, if what the man did was through an assault, equivocal, it may not be possible to affirm beyond reasonable doubt that his purpose was to effect penetration. In such a case, the proper       verdict may be one of indecent assault or common assault. But once the acts prove that the purpose         was to achieve forcible intercourse, they constitute in my view an attempt to rape'....”</p> <p> </p> <p>            The court held that attempted rape occurs when the assault takes place aimed at having sexual relations with a woman without her consent and his conduct had gone beyond mere preparation.</p> <p>            In<em>S</em>v <em>Mkandla<a href="//DCD79BB2-17CF-462A-84F1-62A1B38F2045#_ftn7" name="_ftnref7" title="" id="_ftnref7"><strong>[7]</strong></a></em>the appeal court dismissed an appeal against conviction on a charge of attempted rape where the appellant threatened the complainant with a knife, dragged her to a nearby bush, fell her to the ground, removed her skirt, got on top of her and muffled her mouth.</p> <p>            The above cases demonstrate the approach the courts take. Indeed, there is no one size fits all or mathematical formula to determine whether the acts by the accused have advanced beyond the preparatory stage to be classified as substantial steps towards the commission of the offence.</p> <p>            In this case it is not only about the attempt but whether indecent assault was the appropriate charge. It means if the accused’s conduct was anything short of attempted rape it then becomes indecent assault. Invariably some, if not all attempted rape matters involve some indecent assault.</p> <p>            Indecent assault by a male person involves physical contact on a female person that would be regarded as an indecent act by a reasonable person.<a href="//DCD79BB2-17CF-462A-84F1-62A1B38F2045#_ftn8" name="_ftnref8" title="" id="_ftnref8">[8]</a>A case in point is <em>S </em>v <em>Makaya<a href="//DCD79BB2-17CF-462A-84F1-62A1B38F2045#_ftn9" name="_ftnref9" title="" id="_ftnref9"><strong>[9]</strong></a></em>. In a review judgment, the reviewing Judge declined to confirm a conviction on a charge of attempted rape. The accused and complainant were at their workplace. The accused approached the complainant in the kitchen carrying a pack of condoms. He expressed his intention to be sexually intimate with the complainant. The complainant refused. The accused held her by the hands, but she pushed him away. He staggered backwards. The complainant ran into another room. The accused followed her. This time armed with a kitchen knife demanding to have sex with her. She texted her employer but the phone fell. The accused threatened to kill her for not submitting to his demands. For some reason he then left her.</p> <p>            The review judge set aside the conviction of attempted rape in that there was intention as expressed by his word of mouth. However, there were no acts towards the commission of the Act. The charge was set aside and substituted with threatening the complainant under s 186 (1) (b) of the Code.</p> <p>            In my view the judge in the <em>Makaya</em>case (<em>supra) </em>found that the acts by the accused were merely preparatory. The accused did not touch or access any private part of the complainant’s body. His conduct could not be classified as substantial steps towards the commission of the offence.</p> <p>            In the present case the intention was expressed. The accused took substantial steps towards the commission of the offence. He entered the room already naked. He took steps to undress the complainant, not only of the skirt but her panty. Obviously his hands had contact with her private parts. Had the complainant not overpowered him, he could have raped her.</p> <p> </p> <p>            In my opinion the appropriate charge should be attempted rape.</p> <p> </p> <p>            For the above reasons, the proceedings are not in accordance with real and substantial justice. I accordingly withhold my certificate.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>MUSAKWA J AGREES:………………………………....</p> <p>            </p> <p> </p> <p> </p> <p> </p> <p><a href="//DCD79BB2-17CF-462A-84F1-62A1B38F2045#_ftnref1" name="_ftn1" title="" id="_ftn1">[1]</a> Section 159 (1) (b) of the Code</p> <p>2 .Rex v Nhovo 1921 AD 485</p> <p><a href="//DCD79BB2-17CF-462A-84F1-62A1B38F2045#_ftnref3" name="_ftn3" title="" id="_ftn3">[3]</a> 1903 TS 868</p> <p>4. 1996 (1) ZLR 77 SC</p> <p> </p> <p><a href="//DCD79BB2-17CF-462A-84F1-62A1B38F2045#_ftnref5" name="_ftn5" title="" id="_ftn5">[5]</a>1992 (1) ZLR 156 (HC)</p> <p>6.R v B 1958 91) SA 199 (A)</p> <p><a href="//DCD79BB2-17CF-462A-84F1-62A1B38F2045#_ftnref7" name="_ftn7" title="" id="_ftn7">[7]</a>HB 143/04</p> <p><a href="//DCD79BB2-17CF-462A-84F1-62A1B38F2045#_ftnref8" name="_ftn8" title="" id="_ftn8">[8]</a>S 67 of the code</p> <p><a href="//DCD79BB2-17CF-462A-84F1-62A1B38F2045#_ftnref9" name="_ftn9" title="" id="_ftn9">[9]</a>HH 525/15</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/679/2020-zwhhc-679.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24069">2020-zwhhc-679.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/679/2020-zwhhc-679.pdf" type="application/pdf; length=115598">2020-zwhhc-679.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/indecent-assault">Indecent assault</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/charge">Charge</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/amendment-charge">amendment of charge</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/r">R</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/review-0">REVIEW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/civil-and-criminal-review">Civil and criminal review</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2015/525">S v Makaya (CRB NO. 5818/15) [2015] ZWHHC 525 (09 June 2015);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Wed, 25 Nov 2020 09:07:14 +0000 Sandra 9951 at https://old.zimlii.org S v Zinhumwe (HMT 62-15, CA 41/19) [2019] ZWMTHC 62 (01 August 2019); https://old.zimlii.org/zw/judgment/mutare-high-court/2019/62 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>LAWRENCE ZINHUMWE</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MWAYERA AND MUZENDA JJ</p> <p>MUTARE, 24 July 2019 and 1 August 2019</p> <p> </p> <p> </p> <p><strong>Criminal Appeal </strong></p> <p> </p> <p> </p> <p><em>T. T Sigauke</em>, for the appellant</p> <p>Ms <em>T. L Katsiru</em>, for the respondent</p> <p> </p> <p> </p> <p>            MWAYERA J: Irked by the conviction and sentence imposed by the court <em>a quo</em> the appellant approached this court on appeal. The appellant was convicted of indecent assault as defined in s 67 (1) (a) of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>]. He was sentenced to 18 months imprisonment of which 6 months imprisonment was suspended for 5 years on conditions the appellant does not within that period commit any offence involving sexual abuse for which he is sentenced to imprisonment without the option of a fine. It is contented by the state that sometime in August 2018 at house number 10109 Greenside Extension, Mutare the accused person Lawrence Zinhumwe with intent and knowing that Kirsty Zinhumwe had not consented made her touch his penis realising that there was a real risk or possibility that Kirsty Zinhumwe may not have consented to it. The state’s case was that sometime in August 2018 the appellant asked Kirsty Zinhumwe his biological daughter aged 22 to touch and massage his penis which he alleged was painful. It was the state’s case that the complainant messaged the penis shortly after an epileptic attack.</p> <p>            The appellant raised two grounds of appeal against conviction.</p> <p>“1.       The court <em>a quo</em> erred when it failed to consider that due to the acrimonious relationship between the appellant and the complainant’s mother it was possible that the report was only made to fix the appellant.</p> <p> </p> <p>2.         The court <em>a quo</em> erred when it relied on character evidence which was inadmissible and also its prejudice outweighed its probative value.</p> <p> </p> <p>Against sentence</p> <p>“1.       The court <em>a quo</em> did not give sufficient weight and value to the strong mitigatory factors, the appellant is an old family man who was convicted as a first offender.</p> <p> </p> <p>2.         The court <em>a quo</em> erred when it did not consider community service as a real option to a custodial sentence. Rather the court over emphasised the issue of deterrence and ended up passing a sentence not proportionate to the offence.”</p> <p> </p> <p>            The appellant’s defence was basically that the allegations were fabricated by his wife with whom he had an acrimonious relationship. He suggested that his wife, the mother of the complainant manipulated the complainant into laying false allegations. A close look at the record of proceedings reveals the evidence of both the complainant and accused’s wife. The complainant’s mother was not taken to task on the issue of infidelity being the cause of matrimonial problem between the couple causing the false allegations of indecent assault. The alleged infidelity and manipulation of complainant to give a false report was not placed before the court as an issue. To then seek to criticise the court <em>a quo</em> for not taking into account or not considering the acrimonious relationship between appellant and his wife as the source of allegations is expecting the court to base its decision on speculation moreso considering the appellant did not meaningfully place this assertion before the court either through the complainant’s mother or through the complainant herself. The complainant’s mother’s evidence was clear that upon observing the complainant’s bulging stomach she questioned the complainant who alleged witchcraft on the mother. This prompted the parties to go to chief Zimunya’s court. It was while there that complainant disclosed accused had requested her to caress or touch his male organ once after an epileptic attack. That the complainant was epileptic and that whenever she had an attack accused would attend to her in her bedroom and give medication is not in contention as both state witnesses and appellant attested to that in the court <em>a quo</em>. The appellant was also responsible for taking the complainant to prophets for help. The complainant fell pregnant and at the time of trial had given birth to a child was common cause although the author of pregnancy who fathered the child was not known. The complainant’s testimony was to the effect that on the day in question the appellant gave her medication after an epileptic attack and caused her to touch and caress his manhood which he said was painful. She without knowing what she was doing or in that state of confusion caressed the penis. The complainant’s evidence was not challenged by the appellant. This was despite the fact that the complainant and appellant enjoyed cordial relationship. Infact complainant looked up to the appellant for her wellbeing and welfare. The complainant had no reason to falsely incriminate the appellant. She infact denied having been raped and testified to one incident of being made to touch the appellant’s manhood. The court <em>a quo</em> considered the complainant as credible in material respects. To that extent the factual findings by the court <em>a quo</em> in respect of credibility cannot be faulted. Moreso given appellant did not challenge complainant’s version. I am alive to the fact that this is a case of a single witness’s testimony and the court <em>a quo</em> could have done better by having detailed analysis showing elimination of dangers of false incrimination and also detailing that caution was applied. However lack of mention that the court was wary and cautious does not spell out lack of appreciation of the legal requirements where evidence assessed speaks volumes of how the court arrived at the conclusion.  </p> <p>            In this case the court <em>a quo</em> exercised special care and diligence to the sexual offence by taking heed of complainant’s evidence and that of the mother, the recipient of the report. There was no evidence that the complainant was manipulated to falsely incriminate the appellant her father. The pregnancy and inquiry led to allegations surfacing. The complainant had no reason to falsely incriminate her father with whom she is in good books in fact she denied having been raped when it was suggested to her. This shows she was not being manipulated and infact even appellant himself did not challenge complainant’s evidence on indecent assault. It is appreciated the appellant was not legally represented. The record reflects the court <em>a quo</em> explained proceedings to assist the appellant where appellant alleges allegations are as a result of matrimonial problems between himself and his wife and when she testified and complainant testified appellant did not pursue the issue with the witness. To then seek to blame the court <em>a quo</em> for appellant’s omission would be expecting the court to prosecute the matter for and on behalf of appellant. That would be requesting the court to descend into the arena. I am mindful to the fact that the court has a duty to assist unrepresented accused but surely such assistance should not amount to descending into the arena so as to be the prosecutor, defence counsel and adjudicator. There is simply nothing from the appellant on the taking issue with complainant and the mother’s evidence of indecent assault as having been fabricated for the court to urge on and clarify the issue. It is settled the appellate court can only interfere with the trial court’s findings in circumstances where the findings of the court are not anchored on the record or amount to a misdirection. See <em>San’anza v State</em> HH 590/10 see also <em>S v Mpetha and Others </em>1983 (4) SA 262. It is only where the findings of the trial court are outrageous and irrational the appellate court he can justifiably interfer with the findings of the trial court.</p> <p>In the present case the trial court made a factual finding based on credibility of witnesses. The complainant’s account tallied with the mother’s account of the report of indecent assault as recounted by the complainant not only to the mother but to Chief Zimunya. That the complainant, the appellant and the complainant’s mother went to Chief Zimunya’s court when complainant’s stomach had bulged was not put in contention. Further that complainant stated appellant caused her to touch his manhood was not challenged. The complainant was consistent that the appellant did not rape her but caused her to touch his manhood after an epileptic attack. The fact that she recounted what transpired during her mother’s presence clothes the mother as a recipient of report. Such evidence is admissible and in this case it was corroborative of the complainant’s version. The first ground of appeal does not bring out anything meaningful to dent the conviction. The complainant and her mother’s evidence was not challenged. That the appellant and his wife were having a turbulent relationship on its own does not render complainant’s assertion about how appellant approached her after an epileptic attack and caused her to touch his manhood. The trial court could not be expected to semice and speculate that the allegations were fabricated in the absence of a challenge to what was said to have happened. The first ground of appeal in the circumstances cannot be sustained.</p> <p>Turning to the second ground that the court erred by relying on character evidence to convict equally crumbles for the obvious reason that the court’s decision was not based or pinned on character evidence. The trial court did not rely on character evidence to convict but noted as common cause that the appellant has a history of incestuous relationship. This emanated from the appellant’s own admission during cross examination by the prosecutor that he impregnated his niece (sister’s daughter). The court commented on a common knowledge or undisputed fact given by the appellant himself. This was not the basis of conviction as reflected from the judgment. The appellant was not convicted of raping or impregnating the complainant but of indecently assaulting the complainant by causing her to touch his male member. The court made a finding on only one issue, whether the allegations were true or a fabrication. The court relied on the complainant’s evidence and made a finding that complainant who was very close to the appellant, her father had no reason to falsely incriminate him. Similar fact evidence is inadmissible to the extent that it is prejudicial to the accused person. In this case the appellant is the one who informed the court of impregnating a niece and that evidence was not the basis of conviction. By commenting or noting a common cause aspect one cannot say the court relied on character evidence to convict. The court took complainant’s evidence to be credible as there was no reason for her to fabricate allegations against the appellant her father whom she was close to.</p> <p>            The appellant only raised two grounds of appeal in a manner which given possible legal issues one could take as lack of diligence amounting to a disservice to client. Both grounds cannot be sustained and thus the conviction stands. Turning to sentence during the hearing Mr <em>Sigauke</em> conceded that in the event of conviction being proper, then the indecent assault not being ordinary a custodial sentence would be appropriate. He suggested 12 months imprisonment of which 6 months imprisonment is suspended on the usual conditions of good behaviour. Sentencing is the domain of the sentencing court which has a wide sentencing discretion. Only in circumstances where the discretion is injudiciously and improperly exercised should the appellate court interfere with sentence imposed. In this case considering the nature of indecent assault, a natural father causing his own daughter to touch his manhood, the offence is deserving of an effective prison term. The sentence imposed even though it falls within community service grid considering the sentencing principles of matching the offence to the offender it would be improper to consider community service as a suitable sentence. Sexual violation of this nature within a prohibited degree of relationship is not only criminal but immoral and indeed an abomination. An effective prison term is appropriate. It is not a matter of what sentence the appeal court would have imposed but whether or not the sentencing discretion was properly exercised by the sentencing court. In this case the sentencing discretion was judiciously exercised. There is no justification in interfering with the sentence as such the appeal against sentence cannot be sustained.</p> <p>            Accordingly, the appeal against both sentence and conviction is dismissed.</p> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>Gonese &amp; Ndlovu</em>, appellant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners     </p> <p>           </p> <p>      </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2019/62/2019-zwmthc-62.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24132">2019-zwmthc-62.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2019/62/2019-zwmthc-62.pdf" type="application/pdf; length=163074">2019-zwmthc-62.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/indecent-assault">Indecent assault</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-see-appeal-criminal-matter">Appeal See APPEAL (Criminal matter)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/evidence-1">Evidence</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/mental-disorder">Mental disorder</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure-sentence-common-law-offences">CRIMINAL PROCEDURE (SENTENCE) Common Law Offences</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/indecent-assault-sentence">Indecent assault (Sentence)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Fri, 09 Aug 2019 10:57:00 +0000 Sandra 9371 at https://old.zimlii.org S v Banda (HH 217-18, B 326/18) [2018] ZWHHC 217 (13 March 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/217 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p>NORMAN BANDA</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>NDEWERE J</p> <p>HARARE, 13 March 2018</p> <p> </p> <p> </p> <p><strong>Application For Bail Pending Appeal</strong></p> <p> </p> <p><em>J. Zuze</em>, for the applicant</p> <p><em>R. Chikosha</em>, for the respondent</p> <p> </p> <p>                  NDEWERE J: This is an application for bail pending appeal against both conviction and sentence. The application is opposed by the respondent.</p> <p>The applicant appeared before the Magistrate Court on a charge of performing indecent acts with a young person as defined in s 70 (1) (a) (i) of the Criminal Law (Codification and Reform) Act, [<em>Chapter 9:23</em>]. After a contested trial the applicant was convicted and sentenced to 24 months imprisonment, 6 months of which were suspended for 3 years on the usual conditions of good behaviour. The conviction and sentence was on 19 February 2018. He lodged his appeal with this court on 26 February 2018.</p> <p>The guiding principles in an application of this nature were clearly outlined in <em>S</em> v <em>Dzawo</em> 1998 (1) ZLR 536 @ 539 as follows:</p> <p>“(a)  Whether there are prospects of success on appeal</p> <ul> <li>The risk of abscondment</li> </ul> <p> </p> <ul> <li>The right of an individual to liberty taking into account the delay that may be</li> </ul> <p>encountered in finalising appeals.”</p> <p>These were the main factors enunciated in the earlier cases of:</p> <p>The <em>State</em> v <em>Kilpin</em>, 1978 RLR, 282 (AD)</p> <p><em>S</em> v <em>Williams</em> 1980 ZLR 466</p> <p><em>S</em> v <em>Benatar</em> (2) ZLR 205 (HC)</p> <p> </p> <p>Mr <em>Zuze</em> for the applicant stated in the bail statement and advanced oral argument  that there are high prospects of success on appeal against both conviction and sentence in that:</p> <p>“The trial magistrate erred in accepting fictitious and false evidence of the complainant.</p> <p>The evidence of the complainant was not meaningfully corroborated.</p> <p>It was highly unlikely and unbelievable that the complainant was indecently assaulted in the presence of some adults in the same house.</p> <p>The court relied on its observation of the applicant that he did not look vegetative in one of his hands.</p> <p>The court was speculative in its analysis of evidence to the extent of imposing a sentence which induces a sense of shock.</p> <p>The court did not justify in its reasons for sentence why a custodial sentence was appropriate.</p> <p>The court <em>a quo</em> erred in not considering community service or at least a fine. The case of <em>S</em> v <em>Tshuma</em> HB 70/13 was referred to.</p> <p>That s 70 (1) (a) (i) of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>] is non-existent.</p> <p>It was argued the above were serious misdirections on the part of the trial court which warranted the appeal court to intervene.</p> <p>In response Mr <em>Chikosha </em>for the respondent admitted that the section under which the applicant  was charged was wrong in that the correct paragraph under s 70 (1) was (b) not (a) as cited and that there is no sub para (i). He however argued that the defect was curable under s 203 of the Criminal Procedure and Evidence Act, [<em>Chapter 9:07</em>]<em>.</em></p> <p>It is important to note that despite the wrong citation the details of the charge, the state outline and the evidence led at trial were all for a charge of “<strong>performing indecent acts with a young person</strong>.” The question is what prejudice did the applicant suffer as a result of this wrong citation? Certainly none. While there is need for trial magistrates to be diligent in ensuring that correct sections are cited, in the present case, the omission is not as fatal as to cause the proceedings to be set aside.</p> <p>The rest of the attacks by Mr <em>Zuze</em> are based on factual findings by the magistrate. I was not persuaded that the magistrate erred in her findings of fact.  I did not see anything from the reading of the record of proceedings suggesting complainant’s evidence to be fictitious and false. I will in brief summarize the critical path of her evidence:</p> <p>“She knew the applicant and respectfully addressed him as daddy</p> <p>That he entered the kitchen where she was and fondled her breasts and buttocks.</p> <p>He later came back and did the same to her and also asked if she could kiss him but she refused and by then had asked her if she had seen his small key.</p> <p> </p> <p>Before he left he asked her if she did not love him.</p> <p> </p> <p>While she confirmed the presence of some people in the lounge, she said she could not report the matter to them because they were drinking alcohol and were drunk and playing music and feared further abuse from them.</p> <p> </p> <p>She reported the matter to her mother immediately when she arrived from church.”</p> <p>It is also important to note that the offence was committed on 24 December 2017 and the trial started hardly a month later on 19 January 2018.  The findings of fact by the trial magistrate visa vis the evidence of the complainant in my view cannot be faulted.</p> <p> I find no basis for classifying the evidence of the complainant as fictitious. There was nothing to suggest that the evidence was fabricated. No meaningful reason was advanced by the applicant at trial why a young child of 9 years who respectfully addressed him as daddy would turn against him to fabricate a detailed story such as this. In my view, the appeal against conviction has no prospects of success. On the sentence, it was said to induce a sense of shock. Reference was made to the Tshuma case cited <em>supra</em>. A reading of that case, which was a criminal review, shows that it is not relevant to the present case. The facts and ages are different. Even the relationships are different.</p> <p>Mr <em>Zuze</em> made emphasis that the trial magistrate was obliged to inquire into the suitability of community service and referred the court to the case of <em>Leonard Silume</em> v <em>The State</em>, HB 12-16. Where the learned Judge said the sentencing court has a discretion in assessing the appropriate sentence which sentence an appeal court will not interfere with unless there is misdirection or the sentence is manifestly excessive. The Judge also referred to a number of other decided cases which showed that where a court settles for imprisonment of 24 months or less then the court must inquire into the suitability of community service.</p> <p>The trial magistrate stated that in a bid to protect the girl child, a fine or community service will be too lenient and a custodial sentence was necessary. But she did not go into an inquiry as to why community service is inappropriate given the level of the period of imprisonment that fell within the range where the court was obliged to consider community service as an alternative. This was a misdirection.</p> <p>There is therefore  prospects of success on appeal against sentence.</p> <p> It has also not been shown that the applicant is likely to abscond if granted bail pending appeal. Mr <em>Chikosha</em> argued that the offence for which the applicant was convicted is a very serious one. However, despite the serious nature of the offence, the circumstances do not suggest that the applicant is likely to abscond.</p> <p>In the Williams case (<em>supra</em>), at 468 G-H, the court said that: </p> <p>“….the proper approach should be towards allowing liberty to persons where that can be done without any danger to the administration of justice.”</p> <p>In the present case I do not see any danger in releasing the applicant on bail pending the determination of his appeal.</p> <p>In the result the application for bail pending appeal succeeds and the applicant is admitted to bail pending appeal on the following conditions:</p> <ol> <li>He deposits $100-00 with the Registrar of the High Court, Harare</li> <li>He resides a No. 5011 Dzivaresekwa Extension, Harare</li> <li>He reports once a week every Friday at Dzivaresekwa 2 Police station</li> </ol> <p> </p> <p> </p> <p><em>Zuze law Chambers</em>, applicant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners                  </p> <p>    </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/217/2018-zwhhc-217.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=23087">2018-zwhhc-217.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/217/2018-zwhhc-217.pdf" type="application/pdf; length=120132">2018-zwhhc-217.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/indecent-assault">Indecent assault</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/bail">BAIL</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-bail">application for bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/conditions-which-bail-granted">conditions on which bail granted</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/grant-bail">grant of bail</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/pending-appeal-bail">pending appeal for bail</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/principles-be-observed-bail">principles to be observed (bail)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure-sentence-common-law-offences">CRIMINAL PROCEDURE (SENTENCE) Common Law Offences</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/indecent-assault-sentence">Indecent assault (Sentence)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure-sentence-general-principles">CRIMINAL PROCEDURE (SENTENCE) General Principles</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/community-service-sentence">Community service (Sentence)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Thu, 24 May 2018 10:38:38 +0000 admin 8868 at https://old.zimlii.org S V Baloyi (HMA 14-18 , HCA 11/17) [2018] ZWMSVHC 14 (14 February 2018); https://old.zimlii.org/zw/judgment/masvingo-high-court/2018/14 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>GILBERT BALOYI                                                  </p> <p>versus</p> <p>THE STATE</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAWADZE J &amp; MAFUSIRE J</p> <p>MASVINGO: 2 August 2017 &amp; 14 February 2018</p> <p> </p> <p> </p> <p><strong>Criminal appeal</strong></p> <p> </p> <p>Mr <em>J. Makiseni</em>, for the appellant</p> <p>Mr <em>B.E. Mathose</em>, for the respondent</p> <p> </p> <p>MAFUSIRE J:</p> <p>[1]     There has been an inordinate delay in delivering judgment in this matter. It was a criminal appeal from the magistrates’ court. We heard argument on 2 August 2017 and reserved judgment. My Brother, MAWADZE J, was the lead judge in the case. It was hoped to deliver judgment in the forthcoming weeks. It was not to be. A dreadful family tragedy struck and scuttled all the work in progress, leaving the station somewhat disoriented for some considerable time afterwards. A horrific traffic accident claimed the lives of the Judge’s beloved wife; his driver and his sister-in-law. May the souls of the departed rest in eternal peace.</p> <p> </p> <p>[2]     The appeal was against both conviction and sentence in count one, and against sentence only in count two. The facts were these. The appellant, thirty eight [38] years of age at the time of his arrest, was a father of six children from two customary law wives. On 15 February 2017 he was convicted of the two counts by the Provincial Magistrate’s Court sitting at Mberengwa in the Midlands Province.</p> <p> </p> <p>[3]     Count one was indecent assault, in contravention of s 67[1][<em>a</em>][i] of the Criminal Law [Codification and Reform] Act, <em>Cap 9:23</em> [“the <strong><em>Criminal Code</em></strong>”]. The appellant was alleged to have indecently assaulted his own biological daughter, Anesuishe Baloyi [“<strong><em>Anesu</em></strong>”]. She was seventeen [17] years old at the time. The incident happened at the family’s village homestead in rural Mberengwa. The appellant allegedly smeared and applied some foul smelling and bitter tasting herbs onto her breasts and privates. This allegedly followed advice from a traditional healer, or <em>n’anga</em>, who had supplied the herbs. The whole gory business was so that the appellant could amass untold wealth.</p> <p> </p> <p>[4]     Count two was physical abuse, in contravention of s [3][1][1][<em>a</em>], as read with s 4 of the Domestic Violence Act, <em>Cap 5:16</em>. The appellant was alleged to have assaulted his first wife, Susan Sibanda [“<strong><em>Susan</em></strong>”] so severely that she fell unconscious. She was pregnant at the time. He beat her all over the body with clenched fists, booted feet and a switch. The reason for the assault was said to be her adamant refusal to share their matrimonial home with the appellant’s new wife.</p> <p> </p> <p>[5]     The appellant pleaded not guilty to both counts. But after a full trial he was convicted of both. In count one he was sentenced to thirty six [36] months imprisonment. In count two he was sentenced to six [6] months imprisonment. Thus, the total period of imprisonment was forty two [42] months. Nothing was suspended. No periods of imprisonment were ordered to run concurrently.</p> <p> </p> <p>[6]     Certain facts were agreed or were common cause. The offence in count one occurred on the evening of 29 November 2015. The one in count two occurred on 6 January 2017. Both offences were reported to the police either on 6 January 2017 or so soon thereafter. Thus for count one, the report was being made fourteen months after the event.</p> <p> </p> <p>[7]     Anesu was the single witness for the State in count one. In a nutshell, her evidence was this:</p> <p> </p> <ul> <li>She was very close to her father. He sometimes confided certain secrets in her. For example, he would from time to time entrust her with his money without Susan’s knowledge.</li> </ul> <p> </p> <ul> <li>On the day in question, Susan had been away from home attending some agricultural show elsewhere. In the afternoon, the appellant informed Anesu that he would be coming to her in the evening. In the evening, at around 21:00 hours or 22:00 hours, whilst she had already retired to bed, the appellant called her to his bedroom. Everyone else had gone to asleep. Inside his bedroom, the appellant urged her to sit on the bed. She was hesitant. He lifted her up and sat her on the edge of the bed. He was wearing a navy-blue short. Lighting inside the room was from a single candle.</li> </ul> <p> </p> <ul> <li>From underneath the bed the appellant took out a black bag. It had different kinds of herbs inside. They looked like stale potatoes. He mixed them together to produce some fluids. He asked her if she was menstruating. She said yes. He ordered her to stand up. She did. He lifted up her blouse, leaving her breasts exposed. He applied the herbs all over her body from top to bottom. Afterwards, he produced some more herbs and ordered her to drink. They tasted sour. He then gently instructed her to get into his bed and sleep. She hesitated. She sat on the bed. He pushed her down into a lying position. He had lowered his shorts, leaving his genitals exposed. She freed herself, bolted from the room and went back to her bedroom.</li> </ul> <p> </p> <ul> <li>After about thirty minutes, the appellant followed her. He bade her to keep her silence over the issue and never to tell Susan or else he would rot in jail. He gave her $2 which he said she was to clutch onto as she slept. He went back to his bedroom.</li> </ul> <p> </p> <ul> <li>Anesu said she reported the matter only in January 2017 because after she had gotten married, she was continuously thinking about the appellant. Her marriage was collapsing. The incident was tormenting her. She said she did not “enjoy” her husband.</li> </ul> <p> </p> <p>[8]     The appellant’s cross-examination of Anesu was meaningless. In fact, it bolstered the State’s case.</p> <p> </p> <p>[9]     When she gave evidence in count two, Susan was also asked to say what she knew of count one. She gave several anecdotes that corroborated some aspects of Anesu’s evidence. She said Anesu had married but that the marriage was facing turbulence. Anesu’s husband had implored them, his in-laws, to assist. Anesu had come back home. They kept forcing her to go back. They also consulted some prophets. Anesu eventually disclosed what the appellant had done to her.</p> <p> </p> <p>[10]   Anesu had narrated to Susan the intrinsic details of the incident concerning the appellant, namely:</p> <p> </p> <ul> <li>that the appellant had asked her about her menstruation;</li> </ul> <p> </p> <ul> <li>that the appellant had liftedher blouse and applied herbs all over her body;</li> </ul> <p> </p> <ul> <li>that the appellant had made her drink the remnants of the concoctions;</li> </ul> <p> </p> <ul> <li>that the appellant had forced her to lie on the bed;</li> </ul> <p> </p> <ul> <li>that the appellant had lowered his shorts and exposed his privates to her;</li> </ul> <p> </p> <ul> <li>that she had fled from the room and gone back to her bedroom; and</li> </ul> <p> </p> <ul> <li>that the appellant had given her $2 to hold onto as she slept.</li> </ul> <p> </p> <p>[11]   Susan confirmed the appellant kept some herbal concoctions the ingredients of which included chameleon tails. In cross-examination, the appellant asked Susan not a single question in respect of count one.</p> <p> </p> <p>[12]   In respect of count two, Susan said the appellant had severely assaulted her for a prolonged period extending for about two hours from around 17:00 hours to around 19:00 hours. The reason for the assault was to break down her perceived stubborn resistance to the appellant’s resolve to bring into the single matrimonial household another woman as a second wife.</p> <p> </p> <p>[13]   Susan said the assault was so brutal that she lost consciousness. The foetus inside her womb stopped moving.</p> <p> </p> <p>[14]   As with Anesu, the appellant’s cross-examination of Susan was not only incompetent, but it also bolstered the State’s case. She stuck to her story. She was unmoved.</p> <p> </p> <p>[15]   To both counts, the appellant’s defence was basically a bare denial. In respect of count one; he confirmed a <em>n’anga</em> from Beitbridge town had given him herbs to administer on his daughter so that he could get rich quickly. The idea to visit the <em>n’anga</em> had been planted in his head by friends. He admitted calling Anesu to his bedroom. However, he denied he had himself administered the herbs on her body. He said he had given them to her to do it by herself. He admitted this ritual had to be done in the evening when nobody else was watching. He denied the allegations by the prosecutor that he fondled her breasts and private parts and that he intended to sleep with her.</p> <p> </p> <p>[16]   In respect of count two, the appellant claimed he and Susan had been fighting and that he had merely overpowered her. They had been fighting over the issue of his second wife. He conceded that it was him who had started hitting Susan, who was pregnant at the time.</p> <p> </p> <p>[17]   In its judgment, the trial court accepted the evidence of Anesu and Susan in its entirety. On the question of the delay in count one, the court said Susan’s objective in divulging the incident after that long, was not so that the appellant could be arrested. It was so that she could be assisted in her troubled marriage. On count two, the court found that the appellant assaulted Susan to force her to accept the appellant’s second wife into the household and for her [Susan] to leave.</p> <p> </p> <p>[18]   As against conviction in count one, the grounds of appeal were that the trial court erred in failing to appreciate:</p> <p> </p> <ul> <li>that Anesu had not made her complaint freely and voluntarily;</li> </ul> <p> </p> <ul> <li>that there had been an undue delay between the date of the offence and the time the report was eventually made;</li> </ul> <p> </p> <ul> <li>that in making that report, Anesu had been influenced by Susan whose design had been to fix the appellant for having married a second wife;</li> </ul> <p> </p> <ul> <li>that the court should not have convicted on the evidence of a single and unreliable witness.</li> </ul> <p> </p> <p>[19]   As against sentence in both counts, the grounds of appeal were that the trial court had misdirected itself:</p> <p> </p> <ul> <li>by not giving sufficient weight to the appellant’s status as a first offender and to the other mitigating features;</li> </ul> <p> </p> <ul> <li>by regarding imprisonment as the only punishment that is appropriate for all purposes.</li> </ul> <p> </p> <p>[20]      We find the appeal devoid of merit. The State witnesses’ evidence was robust, straightforward and thoroughly incriminating. The grounds of appeal and Counsel’s submissions bore no relationship to the reality on the ground. The trial court dealt competently with the relevant issues. For example, it is not true that the court convicted on the evidence of a single witness, even though this would not have been a misdirection in itself. Both Anesu and Susan gave evidence on count one.</p> <p> </p> <p>[21]      The appellant argued broadly about the delay of fourteen months in count one. It was said Anesu’s report was not made freely and voluntarily or timeously. Inevitably, the cases of <em>R v Petros</em> and <em>S v Banana</em>, and the general principles espoused in them, were quoted liberally. Basically, these principles are that a complaint in sexual assault cases must be made freely and voluntarily, and without undue delay, to the first person to whom the complainant could reasonably be expected to have made it.</p> <p> </p> <p>[22]      Plainly, the appellant was misapplying those principles. In a sense, Anesu’s report was not made immediately or voluntarily. But the circumstances under which it was made actually vindicate her sincerity. But for the turbulence in her marriage, the result of the trauma she was suffering by reason of the appellant’s macabre conduct, she would not have reported the incident. As the court <em>a quo</em> correctly noted, her disclosure was not so that the appellant could be arrested. It was so that she could be assisted.</p> <p> </p> <p>[23]      In fact, it is our considered view that some legal practitioners misconstrue the true import of the principles laid out in such cases as <em>Petros</em>; <em>Banana</em>, <em>supra</em>, and <em>S v Nyirenda</em>, to mention just but a few. An early complaint in a rape case, or any other sexual offence, is admitted, <em>not</em> as proof of the rape or of the sexual offence. It is admitted, <em>not</em> to corroborate the complainant [<em>our emphasis</em>]. Rather, it is admitted to show consistency by the complainant. It is admitted to negative a defence that the act was consensual: see <em>Nyirenda</em>, <em>supra</em>, at p 75E.</p> <p> </p> <p>[24]      In this case, there was not much in the form of a defence that the appellant himself proffered. He admitted virtually everything else surrounding the commission of the crime, except the intrinsic part forming the essential ingredient of the offence, namely his smearing of the herbs on Anesu’s breasts and private parts. He said he merely gave Anesu the herbs to apply them on her body herself. But this was at night; with just himself and the vulnerable girl present; in the privacy of his own bedroom; when everyone else had gone to asleep; on a day Susan was sleeping out, and for the furtherance of some occult ritual prescribed by some dubious practitioner of the nether world.</p> <p> </p> <p> [25]     Anesu’s evidence was quite graphic. It left nothing to imagination. Evidently, the appellant’s singular intention was to rape her. The charade about smearing herbs on her body and asking her to drink some of them was evidently to numb her psyche and make it easy for him. Defence Counsel said, on the authority of <em>R v Difford</em>, no onus rests on an accused person to convince the court of the truth of any explanation given by him. That is too sweeping. Not when the State has led such damning and incriminating evidence as to allow no other inference to be drawn, except that of guilty as charged. The evidential onus shifts to the accused. For him to fool around with a fanciful; whimsical; far-fetched, and inherently implausible explanation is to play Russian roulette.</p> <p> </p> <p>[26]      Only the appeal against sentence made sense. But surprisingly, in the court below, it seems neither the parties nor the court itself paid attention to the prescribed sentences. In count one, the sentence passed was incompetent, incidentally, a point not forming part of the appeal. As the State correctly concedes now, the penalty provision for indecent assault in the Criminal Code, namely s 67[1][<em>a</em>][i], prescribes a sentence of a fine not exceeding level seven [i.e. $400], or imprisonment for a period not exceeding two years, or both. The court imposed thirty six months imprisonment. This was a manifest misdirection. As such, this court can interfere.</p> <p> </p> <p>[27]      Defence Counsel pressed for twenty months imprisonment for count one, not because of the above misdirection, but on the grounds that the appellant was a first offender whose mitigatory circumstances the court <em>a quo</em> allegedly failed to take into account.</p> <p> </p> <p>[28]      In count two, Defence Counsel pressed for three months imprisonment wholly suspended on condition he performs community service. The sentence of the court <em>a quo</em> was six months imprisonment. The penalty provision in the Domestic Violence Act, namely s 4, prescribes a sentence of a fine not exceeding level fourteen [$5 000], or imprisonment for a period not exceeding ten years, or both.</p> <p> </p> <p>[29]      Since the court <em>a quo</em> did not treat the two counts as one for the purposes of sentence, it ought to have considered such sentences as would have been appropriate for each individual count. It seems the court’s paltry six months imprisonment for count two was influenced by the relatively staggering thirty six months imprisonment for count one. Apparently the court did not appreciate that, from the perspective of the prescribed sentences, count two was the more serious offence of the two.</p> <p> </p> <p>[30]      In our view, the mitigating circumstances of the appellant can be summed up in two short sentences. He was a first offender. He was a married man with heavy family responsibilities. But the aggravating circumstances far outweighed those mitigating factors. The appellant is self-centred. Both offences were committed for selfish benefit. He wanted to get rich quickly. So he got herbs to abuse his own flesh and blood. He wanted a second wife. So he pummelled his first wife to breakdown her resistance. He was not contrite. So he put forward a maladroit defence. His actions in count one had far reaching effects. They destroyed, or threatened to destroy, his daughter’s marriage. His actions in count two must also have left nothing of what had been his marriage with Susan.</p> <p> </p> <p>[31]      We consider that the appropriate sentence for count one should have been twenty four months imprisonment, of which four months could have been suspended on condition of good behaviour. In count two, the appropriate sentence also ought to have been twenty four months imprisonment, four of them also being suspended on condition of good behaviour. Both counts could have been made to run concurrently, leaving an effective twenty months imprisonment.</p> <p> </p> <p>[32]      We reiterate that unless the circumstances militate against it, judicial officers should not, out of impulse or whim, or caprice, or otherwise, depart from the sentencing practice of suspending portions of prison sentences on conditions of good behaviour. In <em>Zunidza v State</em>, HUNGWE J, sitting with CHIWESHE JP in a criminal appeal, said:</p> <p> </p> <p>“…, we believe that in all matters where a first offender is sentenced to imprisonment, he ought to enjoy the benefit of a suspension of a portion of the sentence as a salutary recognition of his status as a first offender. Any offender is capable of reform. He must benefit from the usual and time-honoured practice of our courts to suspend a portion of a term of imprisonment in spite of how the court assesses the usefulness of this approach. A failure to observe this salutary practice may, in certain circumstances, such as here, constitute a misdirection entitling this court to interfere with [the] sentence.”</p> <p> </p> <p>[33]      In <em>S v Gadzai</em>, a judgment by myself, with which my Brother MAWADZE J agreed, I said suspending portions of prison sentences is a very useful tool at the disposal of a sentencing court to salvage multiple benefits out of a situation of criminality. Among other things, a suspension on condition of good behaviour is both deterrent and rehabilitative. For that period that the suspension order is operative, the accused knows that a sword is hanging over his head, and that it will strike if he should step his foot wrong again.</p> <p>[34]      I also said in that judgment, drawing on the case of <em>S v Mugwenhe &amp; Anor</em>, that for that period that the accused is kept out of jail, the pressure on the fiscus is necessarily reduced, for the State does not have to concern itself with his upkeep. The accused regains his responsibility or privilege to feed himself and his family. He avoids the full wrath of prison life, and the exposure to dangerous elements inside prisons.</p> <p> </p> <p>[35]      In the final analysis therefore, we make the following orders:</p> <p> </p> <p>i/          The appeal against conviction in count one is hereby dismissed;</p> <p> </p> <p>ii/         The appeal against sentence in count one is hereby allowed;</p> <p> </p> <p>iii/        The appeal against sentence in count two is hereby dismissed;</p> <p> </p> <p>iv/        The sentence of the court <em>a quo</em> in count one is hereby set aside and substituted with the following:</p> <p> </p> <p>“<strong>Twenty four months imprisonment of which four months imprisonment is suspended for five years on condition that during this period the accused is not convicted of an offence of a sexual nature for which he is sentenced to imprisonment without the option of a fine</strong>.”</p> <p> </p> <p>v/         The sentence in count two shall run concurrently with the sentence in count one.</p> <p> </p> <p>14 February 2018</p> <p>Hon Mawadze J:         I agree ________________________</p> <p> </p> <p><em>H. Tafa &amp; Associates</em>, legal practitioners for the appellant</p> <p><em>National Prosecuting Authority</em>, legal practitioners for the respondent</p> <p>1967 RLR 35</p> <p>2000 [1] ZLR 607 [S]</p> <p>2003 [2] ZLR 64 [H]</p> <p>1937 AD 370</p> <p>HH 778-15</p> <p>HMA 51-17</p> <p>1991 [2] ZLR 66 [SC]</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2018/14/2018-zwmsvhc-14.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=63673">2018-zwmsvhc-14.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2018/14/2018-zwmsvhc-14.pdf" type="application/pdf; length=225826">2018-zwmsvhc-14.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/indecent-assault">Indecent assault</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2015/778">S v Zunidza (CA 216/14 Ref CRB BNR 73/14) [2015] ZWHHC 778 (06 October 2015);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div><div class="field-item even"><a href="/zw/legislation/act/2006/14">Domestic Violence Act [Chapter 5:16]</a></div></div></div> Fri, 13 Apr 2018 10:53:26 +0000 admin 8732 at https://old.zimlii.org S v Leach (HB 94-18, HCA 83/14 X REF BYO REG CRB 294/13) [2018] ZWBHC 94 (29 March 2018); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2018/94 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>NEAL CEGRIM LEACH</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>THE STATE</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>BERE &amp; MAKONESE JJ</p> <p>BULAWAYO 19 OCTOBER 2015 &amp; 29 MARCH 2018</p> <p> </p> <p><strong>Criminal Appeal</strong></p> <p> </p> <p><em>T.A. Cherry with T. Masiye-Moyo</em> for appellant</p> <p><em>K. Ndlovu</em> for the respondent</p> <p>            <strong>BERE J:         </strong>After hearing argument in this matter, both the conviction and sentence were set aside.  The court indicated that its written reasons would follow.  Here they are.</p> <p>            The appellant in this case was convicted by a Regional Magistrate sitting at Bulawayo on 21st February, 2014 of three counts of contravening section 66 (1) (a) (i) of the Criminal Law (Codification and Reform) Act, Chapter 9:23.  After conviction the appellant was sentenced to serve a cumulative sentence of 25 years five years of which were conditionally suspended leaving an effective sentence of twenty (20) years imprisonment.</p> <p>            Aggrieved by both the conviction and sentence the appellant lodged this appeal to this court against both.</p> <p>            As against conviction the grounds of appeal were framed as follows:</p> <p>“1.       The learned magistrate in the court <em>a quo</em> erred in fact and consequently in law when he held that the complaint by the complainant was made without undue delay at the earliest opportunity which under all circumstances would reasonably be expected, to be made to the first person to whom the complainant would be expected to make it given that the complainant had had all the opportunity to make the complainant to her mother who was close to her and in any event to her boyfriend way earlier than at the time the complainant was made.</p> <p>2.         The learned magistrate in the court <em>a quo</em> misadvised himself and therefore misdirected himself when he held that the question before him was “whether or not the accused committed the alleged offence” when in fact the question is whether or not the State has proved its case beyond reasonable doubt.</p> <p>3.         The learned magistrate in the court <em>a quo</em> misdirected himself in that he failed to note the significance of the unsatisfactory evidence of the complainant under cross-examination …</p> <p>4.         The learned magistrate in the court <em>a quo</em> erred in law in that he failed to analyse the evidence count by count and instead wrongly treated all the counts as one.</p> <p>5.         The learned magistrate in the court <em>a quo</em> misdirected himself in that, he failed to understand, analyse and properly evaluate the medical evidence that the placed before him.</p> <p>6.         The learned magistrate in the court <em>a quo</em> misdirected himself in basing his conviction on the finding that the appellant “must have done something to her” which misdirection resulted in the learned magistrate losing sight of where the onus lay.</p> <p>7.         The learned magistrate completely abdicated his duty to properly analyse the evidence of the complainant for credibility and instead chose to make a bold assertion that he found her to be credible.</p> <p>8.         The learned magistrate in the court <em>a quo</em> erred in law by completely ignoring the evidence of Laura Pinkney who testified that she would always come home for lunch on Mondays and would only leave at 3.00pm for afternoon activities.</p> <p>9.         The learned magistrate failed to make a proper or any assessment of evidence of the appellant and his witness on its merits choosing instead to rely on possibilities for his findings in a criminal case.”</p> <p>            As against sentence the ground of appeal were basically that by failing to treat all counts as one for purposes of sentence, the learned magistrate ended up with a sentence that was so excessive as to induce a sense of shock.</p> <p>            Upon being served with the appellant’s notice of appeal and the elaborate heads of argument the respondent declined to support both the conviction and sentence.</p> <p>            In arriving at this position the respondent’s counsel was swayed by the inconsistencies in the complainant’s evidence which negatively coloured her credibility.  Counsel was of the firm view that in all the probabilities of this case, the complainant dismally failed to pass the credibility test which incidentally the lower court had triumphantly concluded had been established and used it was the main basis of the appellant’s conviction.</p> <p><strong>The background</strong></p> <p>            The complainant, a 16 year old girl and a student at Girl’s College, Bulawayo had been given accommodation as a border together with four other girls from the same college at the accused’s residence.</p> <p>            The complainant then alleged that on diverse occasions stretching from February to March 2013 the appellant had indecently assaulted her by inserting his fingers inside her vagina and that on one occasion the appellant was alleged to have forced the complainant to suck the appellant’s erect penis.</p> <p>            The appellant strenuously denied the allegations in the lower court.  However, despite this and after a protracted trial the appellant was convicted and sentenced as already highlighted.</p> <p><strong>The legal position on sexual matters</strong></p> <p>            The position of our law was authoritatively laid down in the much celebrated case of <em>S</em> v <em>Banana</em> as follows:</p> <p>            “The requirements for admissibility of a complainant are:</p> <ol> <li>It must have been made voluntarily and not as a result of question as a leading and inducing or intimidating nature.See <em>R</em> v <em>Petros</em> 1967 RLR 35 (G) at 39G-H.</li> <li>It must have been made without undue delay and at the earliest opportunity, in all the circumstances, to the first person to whom the complainant could reasonably be expected to make.See <em>R</em> v <em>C</em> 1955 (4) SA 40 (N)_ at 40G; <em>S</em> v <em>Makanyanga </em>1996 (2) ZLR 231 at 242G – 243C”</li> </ol> <p>A simple perusal of the judgment of the court <em>a quo</em> clearly shows that the learned magistrate was fully alive to the correct applicable legal position in sexual matters.  However, the shortcomings of his judgment were exposed when he failed to apply the legal position to the evidence which was accepted by the court, or that evidence which was not in dispute.</p> <p>Three cardinal errors which were made by the court <em>a quo</em> can be summarised as follows:</p> <p>The first error that screams loudest was the magistrate’s stout effort to try and determine the outcome of this case by relying on evidence based on a balance of probabilities as opposed to being guided by proof beyond a reasonable doubt.  It is trite that in criminal proceedings, and in order for the court to find against an accused person, the proof required is proof beyond a reasonable doubt.  There is no room in a criminal matter for the court to be guided by the balance of probabilities.</p> <p>The second error made by the trial court was its apparent failure to appreciate that the complainant’s conduct looked at in is totality did not satisfy the requirements outlined in the <em>Banana </em>case (<em>supra</em>).</p> <p>Thirdly, the court <em>a quo</em> failed to appreciate that the inconsistencies in the complainant’s evidence heavily militated against a finding of credibility in her favour.  It is quite telling that despite all these highlighted issues having been presented to the court <em>a quo</em> during cross-examination of the complainant and during court addressed by the appellant’s counsel the court chose to disregard same on uninformed basis.</p> <p><strong>Proof beyond a reasonable doubt</strong></p> <p>            It is a time honoured principled of our law that in order for the court to convict an accused person the state must have proved its case beyond a reasonable doubt.  All an accused person is expected to do is to merely cast doubt on the state case.  GILLESPIE J in the case of <em>S </em>v <em>Makanyanga </em>eloquently puts the position as follows:</p> <p>“Whilst it is axiomatic that a conviction cannot possibly be sustained unless the judicial officer entertains a belief in the truth of a criminal complaint, still, the fact that such credence is given to testimony for the state does not mean that conviction must necessarily ensue.  This follows irresistibly from the truth that the mere failure of an accused person to win the faith of the bench does not disqualify him from an acquittal.  Proof beyond a reasonable doubt demands more than that the complainant should be believed and the accused disbelieved.  It demands that a defence succeeds whenever it appears reasonably possible that it might be true.  The insistence upon objectivity far transcends mere considerations of subjective persuasion which a judicial officer may entertain towards any evidence.  If it were not so then the administration of criminal justice would be the hostage of the plausible rogue who’s insincere but convincing blandishments must prevail over the stammering protestations of truth by the diffident, frightened or confused victim of false incrimination.”</p> <p> </p> <p>            In <em>R</em> v <em>Henry</em>, the learned Judge made a very critical observation when he remarked as follows:</p> <p> </p> <p>“Human experience has shown that in the courts girls and women do sometimes tell an entirely false story which is very easy to fabricate but extremely difficult to refute.  Such stories are fabricated for all sorts of reasons … and sometimes for no reason at all”.</p> <p>            In the instant case, one notes in the court <em>a quo’s</em> judgment a blind determination to religiously accept the whole story told by the complainant without critically analyzing her evidence.  The apparent shortcomings of the judgment are clearly demonstrated by the magistrate’s total failure or neglect to analyse the evidence of the appellant.  The appellant maintained throughout the proceedings that the allegations against him did not take place and that he had no idea about the complainant’s motive in bringing the charges against him.</p> <p>            If the court <em>a quo</em> had commended on the evidence of the appellant and analysed same in the same manner that it did with the complainant’s testimony, the court would probably have agreed with the consistent position maintained by the appellant.  In these cases, it is not sufficient to blindly whitewash the complainant’s testimony and using the same to condemn an accused because that is not what the law dictates.  The analysis and critic of evidence must be done in respect of both the complainant’s evidence and that of an accused or appellant to remove any traces of bias.  The judgment of the court a quo failed to achieve this and it therefore comes nowhere nearer to establishing the accused’s guilt beyond a reasonable doubt.</p> <p><strong>The inconsistencies in the ………………………….</strong></p> <p>            It is quite telling that the evidence on record suggests that the complainant was reluctant to bring the allegations of abuse to her boyfriend Kevin Lombard, her closest friend Danielo and event to her parents.  The closest she came to was with particular reference to the threat of kidnapping by the appellant.  If it is true that the appellant had sexually abused her not once, not twice but thrice, why would she not have reported such serious violations to any of these individuals?  The complainant’s case gets complicated if one considers the existence of other girls with whom she stayed, her teachers at Girls’ College, the domestic helpers, her friend’s parents, to whom she could have reported.  As observed by appellant’s defence counsel the complainant’s accessibility to social media and her failure to use same further complicates her situation.</p> <p>            To further compound her case, when she eventually decides to take things out of her breast, she talks about kidnapping and not sexual abuse.  It is not safe to trust such complainants.  They can easily lead one astray like what happened in this case.</p> <p>            All these observations could not possibly have supported the credibility of the complainant’s story.  It remained far from convincing.</p> <p><strong>The delayed report</strong></p> <p>            If there is anything that put the final nail in the complainant’s case was her unexplained delay in reporting the sexual abuse.</p> <p>            As correctly observed by the appellant’s defence counsel, here, the court <em>a quo</em> was dealing with a mature and intelligent complainant who had already started dating her boyfriend Kevin, at whose place she was putting up on a number of occasions.</p> <p>            The delay in reporting which goes against the court’s position in the <em>Banana</em> case remained inexplicable in the judgment.  The evidence suggests that having been abused on three separate occasions with his assailant using the same <em>modus operandi</em>, the complainant took close to three months to report the abuses.  Even when the reports were eventually made, the complainant was not forthright – she started reporting some threat of kidnapping by the appellant before the sexual assault came out.  The judgment of the court <em>a quo</em> does not adequately explain either the delay in reporting or the reluctance by the complainant to report such a serious assault at the numerous opportunities that presented themselves to her.</p> <p>            This judgment will not find space to exhaustively deal with the conduct of the complainant which militates against the finding of credibility on her part which would justify a finding of the appellant’s guilt beyond a reasonable doubt.</p> <p>            In conclusion of this judgment, let me recall the observation I made in a recent review case on sexual assault where I remarked as follows:</p> <p>“When everything has been said about this case, one cannot help but come to the conclusion that the conviction n this case was arrived at more out of sympathy of the victim than borne out of the evidence led.  Clearly the magistrate fell into error.”</p> <p>            This was a poor conviction and the concession made by the state against supporting that conviction was well made.</p> <p>            Having taken this stance it is not necessary for this court to consider the appeal against sentence because that sentence is standing on nothing.</p> <p>            In the result, the appeal succeeds.  The conviction is quashed and the sentence is set aside.  The appellant is found not guilty and acquitted.</p> <p> </p> <p> </p> <p> </p> <p>                                                Makonese J ……………………………….. I agree</p> <p> </p> <p><em>Messrs Hwalima Moyo &amp; Associates</em>, appellant’s legal practitioners</p> <p><em>National Prosecuting Authority,</em> respondent’s legal practitioners</p> <p> </p> <p>2000 (1) ZLR 607 (S) @p 616B-C</p> <p>1996 (2) ZLR 231 (H) at p 235E-G</p> <p>(1968) 53 Cr App R 150</p> <p>The State vs Kevin Moonsammy HB-325/17 at p 11</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/94/2018-zwbhc-94.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=23456">2018-zwbhc-94.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/94/2018-zwbhc-94.pdf" type="application/pdf; length=179494">2018-zwbhc-94.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/indecent-assault">Indecent assault</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/evidence">evidence</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-matter-evidence">Criminal matter (EVIDENCE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/sexual-cases-evidence">Sexual cases (EVIDENCE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/witness-evidence">Witness (EVIDENCE)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Tue, 10 Apr 2018 06:45:02 +0000 admin 8695 at https://old.zimlii.org