FELIX MUSHORE                                                                        

versus

THE STATE

HIGH COURT OF ZIMBABWE

CHIWESHE JP AND UCHENA J

HARARE, 8 September 2011

Criminal Appeal

N Chikono,for the appellant

S. Fero, for the respondent

UCHENA J: The appellant appealed against conviction and sentence on a charge of rape, for which he was convicted and sentenced by a Regional Magistrate sitting at Harare Regional Court. He was sentenced to 12 years imprisonment of which 3 years were suspended for 5 years on conditions of good behaviour.

At the hearing Mr Chikono for the appellant withdrew the appellants appeal against sentence. He said he on reading the case of S v Banda 2002 (1) ZLR 156, realised that the sentence imposed by the regional magistrate could not be said to be such as would induce a sense of shock. In the Banda case (supra) KAMOCHA J at p 159 A said;

“ People who rape children should receive effective sentences of not less than 10 years.”

This means the sentence imposed on the appellant was lenient as it left him with an effective sentence of 9 years imprisonment. The decision to withdraw the appeal against sentence was therefore properly made.

The facts on which the appellant was convicted and sentenced are that, the complaint, who, is his wife’s brother’s daughter, was brought to his house by her mother who was looking for accommodation in Epworth so that she could move from Mt Pleasant where she had been staying. While the complainant was staying at his house, it is alleged he raped her once and threatened her against reporting the incident to anyone or he would stab her with a knife.

In his defence outline the appellant denied the charge, saying he on 18 April 2006 was at work when the complainant was brought to his house by her mother. He came back home at 8.00 pm as he was working as a security guard in the Greendale area in Harare. He on that day did not realise that the complainant had been left at his house. On 19 April he came back from work at 8.00 pm and found the complainant at home playing as usual. On 20 April he was not on duty so he woke up at 7.00 am, and started repairing his bicycle. The children including the complainant were asleep. His wife was doing laundry outside, but within the yard. The noise made by the bicycle woke up the children after which, he saw his wife beating up the complainant for messing up the blankets. The complaint was taken by her mother on 21 April 2011. He thus denied raping the complainant.

Evidence was led from the complainant who told the trial court of how the appellant raped her in his house by insetting his male organ into her female organ. She explained the male and female organs by pointing at the male and female anatomically correct doles’ penis and vagina respectively. Her evidence was adduced through closed circuit television in the Victim Friendly court. She was emphatic that she was raped by her aunt’s husband Takudzwa’s father. She told the court that the appellant lay her on the floor and raped her as he pressed her down on the floor. She said she did not cry as he was pressing her on the floor and had threatened to stab her with a knife if she reported the incident to anyone. She told the court that no-one else raped her, and that she reported the rape to her paternal aunt, the appellant’s wife, who took no action. She further told the court that the appellant raped her just before evening, at the time he was about to go to work.

Appeal against conviction

The trial regional magistrate believed the complainant and convicted the appellant. The appellant appealed against the regional magistrate’s decision on the following grounds

1. that the complainant’s mother and aunt contradicted each other as to whom the complainant reported the rape.

1. that the complainant was already in the habit of soiling herself when she was  

brought to his house.

1. that the regional magistrate did not give enough weight to his wife’s evidence   

that she never left the complainant alone with the appellant.

1. that he relied more on that the complainant knew the appellant well than on

her credibility.

1. that he did not invite evidence on the complaint’s history before she was

brought to his house

The appellant’s Heads of Argument amplified the appellant’s grounds of appeal. The first ground of appeal is not supported by the evidence on the record. The evidence of the complainant’s mother on p 6 clearly established that the report was made to her sister Shiela Marko the 3^rdState witness. Shiela Marko in her evidence on p 7 confirmed that the report was made to her. There is therefore no contradiction as alleged in the appellant’s first ground of appeal.

Mr Chikono conceded that since the case of State v Banana 2000 (1) ZLR 607 (S), there is no need for a complainant in sexual cases’ evidence to be corroborated before an accused person can be convicted on it. All that is required is for the court to be satisfied that the complainant is a credible and reliable witness. If she is a conviction can be founded on her evidence even if it is not corroborated. I agree with Mr Chikono’s exposition of the law as developed through the Banana case.  In the Banana case (supra) GUBBAY CJ at p 614 E to G said,

“It is my opinion that the time has now come for our courts to move away from the application of the two-pronged test in sexual cases and proceed in conformity with the approach advocated in South Africa. In so holding, I have not overlooked the well-researched judgment of GILLESPIE J in S v Magaya 1997 (2) ZLR 138 (H). But having regard to the abrogation of the obligatory nature of the rule in such countries as Canada, the United Kingdom, New Zealand and Australia, as well as by the State of California (see Chaskalson, et al, Constitutional Law of South Africa at 14-62; Hatchard, 1993 Journal of African Law 97 at 98; (1983) 4 Canadian Journal of Family Law 173), I respectfully endorse the view that in sexual cases the cautionary rule of practice is not warranted. Yet I would emphasise that this does not mean that the nature and circumstances of the alleged sexual offence need not be considered carefully.”

It is therefore necessary to ascertain if the regional magistrate carefully considered the nature and circumstances of the charge leveled against the appellant in view of grounds of appeal number two and four where it is alleged that the complainant was already soiling herself when she was brought to the appellant’s house and that the regional magistrate relied more on the fact that the complainant knew the appellant very well than on the complainant’s credibility.

Mrs Fero for the respondent submitted that the regional magistrate carefully considered the circumstances of the complainant’s rape and the complainant’s credibility. She submitted that the appellant’s appeal against conviction should be dismissed. She in paragraph 6 and 7 of her heads of arguments said;

“6 It is submitted that it is a duty of every presiding officer (faced with a child victim in sexual offences) to satisfy himself that a child can distinguish between truth and untruth. Whether the evidence of that child has to be admitted weight (value) depends on the maturity and understanding of the particular child; whether the child has sufficient intelligence to testify and appreciate properly the duty of speaking the truth.

• It is further submitted that it is not a requirement that the child’s evidence must be corroborated. Once the court has carefully analysed the evidence and satisfied itself that it can credibly believe the child without any dangers of false incrimination it must convict. See S vs Madzomba 1999 (2) ZLR 214.”

This is the correct approach to the assessment of a child complainant’s evidence in cases of a sexual nature. In this case the complainant is a child aged five. Her maturity and understanding should have been established on the record and commented on by the trial magistrate in his judgment. However failure to comment can not be fatal if the child’s maturity and understanding can be discerned from her evidence in the record of proceedings. In the case of Madzomba (supra) at p 220 E to F CHINHENGO J dealing with how to, assesses the evidence of a child rape complainant said;

“But, as I have already alluded, corroboration is not invariably required in every case. What is invariably required is the exercise of caution in dealing with the evidence of young witnesses. It is easier to understand or appreciate the fine distinction between corroboration and the extra requirement to exercise caution than it is to articulate it. The latter, to my mind, is another way of saying that despite corroboration, the judicial officer must in such cases, be satisfied on all the evidence that the State has proved its case beyond a reasonable doubt, that the accused person has been protected, and the dangers of false incrimination removed before it can convict him.”

While what CHINHENGO J said about, corroboration has been changed by what the Supreme Court said in the Banana case, on the need for corroboration in cases of a sexual nature, I respectfully agree with him on the need for caution and to guard against false incrimination, before convicting a person accused of raping a child victim. The dangers attendant to the evidence, of a child-wittiness, must be carefully considered before convicting, on such evidence. Hoffman & Zeffertt 3^rded on South African Law of Evidence, dealing with the assessment of the evidence of a child at p 456 says:

“the court is entitled to take into account  any other features which show that the child’s evidence is unquestionably true, and the defence story false, but it should not ordinarily convict unless there is corroborative evidence which implicates the accused”.

The trial court should therefore have without seeking corroboration, in view of the Banana case (supra), carefully considered the evidence led especially that which implicates the appellant to determine if it was safe to convict on it.

An examination of the evidence led at the appellant’s trial establishes that the complainant was indeed brought to the appellant’s house. She was there-after observed to have changed her behaviour. She now was soiling herself during the day and during the night. She had also lost appetite and was always feeling sleepy. The change in behaviour triggered the complainant’s mother and aunt’s inquiry as to what had caused it. The complainant told her maternal aunt Shiela, that the accused had raped her and she now no-longer feels that she is about to soil herself. The appellant’s counsels argument that the complaint already had that condition when she was brought to the appellant’s home, cannot stand because if it was so why would a known condition have triggered an inquiry, leading to the medical examination of the complainant. The doctor who examined the complainant found that the complainant’s vagina’s entrance and anus had tears. The vaginal and anal tears, explains, her inability to control her vaginal release of urine and her anal release of faeces. Her explanation of her condition to her aunt is therefore confirmed by the medical report. The fact, that the tears, were still visible, at the time of examination do not support the appellant’s claim that the complainant already had that condition when she was brought to their house. The injuries could not have remained visible if the complainant had been raped long before she was taken to the appellant’s house. She was taken to the appellant’s house on 18 April 2006, and taken back on 21 April. The medical examination was conducted on 3 May 2006 about two weeks later. This tends to support the complainant’s evidence that she was raped by the appellant when she was left at his house and her mother and aunt’s evidence that they discovered the complainant’s change of behaviour when the complaint came back from the appellant’s house. There is however a possibility that the injuries could have been sustained after she came back from the appellant’s house as they were still visible at the time of examination. There is therefore no merit in the appellant’s second ground of appeal. There is however merit in the appellant’s counsel’s submission, that the complainants history before and after she had been to the appellant’s house should have been checked.

Mr Chikono for the appellant submitted that the evidence led does not exclude the possibility that the complainant was raped by any other person. An examination of the complainant’s evidence establishes that the complainant was adamant that it was the appellant who raped her and no one else. The regional magistrate found her to be a credible witness.  That finding could have been justified if the complainant who gave details of how and where she was raped and by whom, had come out as a credible wittiness. The record of proceedings, reveals, that she used the male and female anatomically correct doles to show the court what the appellant inserted into her private parts. Her evidence does not however explain the anal injuries. This could be due to the cursory manner in which the appellant’s trial was conducted. In a criminal trial of a sexual nature, it is the duty of the prosecutor to properly link the wittiness’s story to documentary evidence by the doctor who will have examined the complainant, so that documentary evidence does not remain uncovered by the wittiness’s evidence. In this case the complainant told the court of how the appellant penetrated her vagina. If that is all, the appellant did to the complainant, who then caused the anal injuries observed by the doctor who examined her. This could have been clarified by careful examination of the complainant by the prosecutor, or clarification by the magistrate. Their lack of thoroughness in the conducting of this trial, left the complaint’s credibility compromised, as it leaves the impression that someone else could have caused the injuries found on her anus. Once it appears that the appellant, is not responsible for the anal injuries, all sorts of possibilities on who could have caused the complainant’s vaginal and anal injuries pop up to discredit the complainant’s evidence. This gives credence to Mr Chikono’s submission that someone else could have raped the complaint.

Mr Chikono also relied on an apparent contradiction between the complainant’s evidence and that of her maternal aunt’s on whether or not she had reported the rape to the appellant’s wife. That contradiction was conceded to by Mrs Fero for the respondent. Shiela the complainant’s maternal aunt who was the State’s third witness told the court that the complainant had told her that she had not reported the rape to the appellant’s wife because the appellant had threatened to stab her with a knife if she reported the incident to anyone. Mr Chikono submitted that the complainant was therefore not a reliable wittiness because she told Shiela a story different from the one she told the court.

There is merit in Mr Chikono’s submission on the complainant’s credibility. This is because the contradiction arose within the state’s own case. The state had a duty to prove the appellant guilty beyond reasonable doubt. It could only have achieved that by presenting credible evidence from the complainant. It however allowed its case to remain doubtful by failing to clear the contradiction before closing its case. This is a case where the complainant’s case could have been made doubtful by the aunt’s inaccuracies in narrating what the complainant told her, but that doubt could have been cleared by the state asking that witness questions on the accuracy of her narration of what the complainant told her. The state could also have applied to recall the complainant to clarify what she had told her aunt the third state witness. The magistrate could in view of the prosecutor’s failure to clarify this issue, have recalled the complainant in terms of s 232 (b) of the Criminal Procedure and Evidence Act [Cap 9:07] which provides as follows;

“The court—

1. may at any stage subpoena any person as a witness or examine any person in attendance  

though not subpoenaed as a witness, or may recall and re-examine any person already examined;

1. shall subpoena and examine or recall and re-examine any person if his evidence appears to it essential to the just decision of the case.”

In terms of s  232 (b) it was essential  to the just decision of the case for the credibility of the complainant to be verified in view of the contradiction of the complainant’s evidence by another state witness, who told the court that she had made a previous inconsistent statement touching on the case. The interest of justice in any case is its correct and impartial determination, on the basis of its full and accurate facts. It is regrettable that the prosecutor and magistrate’s failure to correctly handle the appellant’s trial may lead to an injustice if the appellant is the one who raped the complainant. It is however trite that any reasonable doubt in a criminal case must be resolved in favour of an accused person. This is a case where the accused could be the one who violated the complainant, but the state has through its failure to clarify the complainant’s evidence, created a reasonable doubt in the appellant’s favour. Once there is such a doubt on whether or not he raped the complainant, the appellant’s denial becomes stronger and possibly true, entitling him to an acquittal. In the case of Simon Manyika v StateHH 215-02 at p 7 of the cyclostyled judgment MAKARAU J (as she then was), commenting on the need to lean in favour of the possibility of acquitting the guilt, than convicting the innocent said:

“On the basis of the foregoing, and being guided by the principle that it is better to let a few guilty persons go free than to convict even a single innocent person, I would allow the appeal”

I would for the same reason give the appellant the benefit of the doubt. His appeal is upheld. His conviction and sentence by the regional magistrate are set aside. He is found not guilty and is acquitted.

CHIWESHE JP, agrees ……………………….

Mhiribidi Ngarava and Moyo,appellant’s legal practitioners

General’s Criminal Division,respondent’s legal practitioners