MATHONSI J: At the
conclusion of submissions in this matter we dismissed the appeal against both
conviction and sentence and said our reasons for dismissing it will
follow. These are the reasons.
The Appellant was convicted by
the Regional Magistrates Court on 3 June 2010 of 3 counts of rape and 2 counts
of aggravated indent assault and on 7 June 2010 sentenced to 18 years
imprisonment for the 3 counts of rape and 15 years imprisonment for the 2
counts of aggravated indecent assault.
Of the total 33 years imprisonment, 8 years imprisonment was suspended
on the usual conditions.
He
appealed against conviction and sentence in a lengthy notice of appeal the
import of which is that the state failed to prove its case beyond a reasonable
doubt as the state witnesses failed to positively identify the perpetrator
while on the other hand the Appellant had a good alibi witness who placed him
elsewhere at the time that the offence was committed. On the sentence the Appellant grounded his
appeal on the fact that the court a quo
erred in treating the 3 counts of rape
separately from the 2 counts of aggravated indecent assault when they
constituted a single criminal transaction.
The
facts are that on the afternoon of 30 December 2009 the 2 complainants, who
were heavily pregnant at the time, with the 1st complainant 9 months
pregnant, were visiting their aunt who stays in Mathe village in
Tsholotsho. They were walking in a bushy
area in the company of their 9 year old cousin brother who is the son of the
aunt they were visiting. The 2
complainants do not ordinarily stay in that area coming as they do from Gwayi 2
area in Nyamandlovu district. They
therefore did not know the locals in that area.
As
they made their way through the bushy area, they met a man carrying a stick who
asked if they had seen his cattle before walking with them for a distance. Along the way, the man got hold of the 9 year
old boy, ordered the complainants off the road into a bush and when they
resisted he assaulted them with a stick resulting in them complying.
Once
in the bush, the man slapped the 1st complainant twice and forced
her to lie down ordering her to remove
her panties. He ordered the 2nd
complainant and the 9 year old boy to sit down nearby as he raped the 1st
complainant once. When the man finished
raping the 1st Complainant the first time, he ordered the 2nd
complainant to suck his penis before raping the 1st complainant the
second time.
When
the man finished raping the 1st complainant the second time, he
demanded that she should thank him for what he had done which she did. He then ordered the second complainant to
suck his penis the second time before ordering the 1st Complainant to
bend over and raping her for the 3rd time. All this happened in the full view of the 9
year old boy who had been ordered to sit down a short distance away.
After
the man had satisfied himself he returned to the road to check on passersby and
finding none he directed the 3 victims to return to the road and resume their
journey as he proceeded in a different direction. The complainants proceeded to their aunt's
homestead where they awaited her return and made a report of the rape. The 2 complainants described the assailant
and the clothes he was putting on to their aunt who immediately commenced
investigations to establish the identity of the assailant. This led to the arrest of the Appellant.
At
the trial, it was not in dispute that the complainants had been abused in the
manner set out above. What was placed in
issue was the identity of the assailant.
While accepting that the 2 young ladies had spent a considerable amount
of time with their assailant as to be able to describe him and his clothing,
the trial magistrate was swayed more by the evidence of the 9 year old boy MN.
That
witness was emphatic in his identification of the Appellant as the assailant. When giving his evidence in chief, the
dialogue between MN and state counsel went like this at page 32 of the record.
''Q: How were you able to tell he is the one you
met?
A: I know him.
Q: How?
A: Well.
Q: Did you recognise any features?
Q: No, I saw him in the car.
Q: When?
Q: He was driving a car but on the day we met
him he was not driving.
Q: You saw him driving before?
A: Yes.
Q: Where?
A: I do not know where he was going.
Q: How long before going to Mathe had you seen
him in motor vehicle?
A: Long time.
Q: How many times had you seen his motor
vehicle?
A: Many times.
Q: After bush incident did you see him?
A: No.''
During
cross examination defence counsel tried hard to discredict the boy. The dialogue between them went like this:
''Q: You said you know accused?
A: Yes.
Q: Who is he called?
A: Julumba.
Q: Do you stay in same area?
A: Yes.
Q: By which child is he called?
A: I do not know.
Q: How do you refer to his homestead?
A: At SaJulumba.
Q: You mean his father?
A: Yes.
Q: That is his father's homestead?
A: Yes.
Q: Do you know his homestead?
A: No.
------------------
------------------
Q: How did you get to know him at his home?
A: I saw him at his home.
Q: You mean SaJulumba's homestead?
A: Yes.
Q: Were you then going to school?
A: Yes.
Q: What type of car was he driving?
A: White.
Q: Where is the car?
A: Fana is the one driving it.
Q: Would you say it is his car?
A: It is not his car.
Q: Whose is it?
A: I do not know.
Q: When he met you with your sisters, you
already knew him?
A: Yes.
Q: Even with name?
A: Yes.''
The
trial magistrate believed MN. She
analysed his evidence carefully and stated at pages 51 to 52 of the record as follows:
''M --- stayed in this
neighbourhood unlike his sisters. He
said he knew Julumba's father's place as the homestead where Julumba came
from. He said the homestead is called
SaJulumba's. This witness said he met
accused a long time before this day when he saw him driving a white motor
vehicle. He said this motor vehicle was
not Julumba's.
That it was driven by Fana and
Julumba would be with Fana and others.
He said he knew him and saw him abuse his sisters whilst he sat
there. That he had walked for some
distance before abuse.
What weight can this evidence
be given by court? The defence counsel
quoted a case mentioning that court should apply caution when dealing with
children's evidence. In this case, it
was only brought out by this witness that accused drives a white car. This evidence was not disputed or
challenged. It was again through this
witness that Fana's name came out. This
again came out to be true and not challenged.
This witness mentioned that Julumba's father's homestead is identified
by Julumba's name. This was evidence
brought out by the young child and it was not disputed or challenged. The child was asked if he knew Julumba's
homestead and answered in the negative ---.
Can the court believe the 9 year old's evidence on identification? The Nkomo case (S v Nkomo 1989 (3) ZLR
117 (S)) said, if there is corroboration to an identification court can believe
it. The evidence of the white motor
vehicle that accused drives, the accused moving with Fana and the father's
homestead can these be treated as corroboration in this case. The answer is yes. It can be taken to be independent evidence
showing that the witness knew the person he was talking about. Will it matter now that the evidence was led
by a child? The answer is no.''
In my view the trial
magistrate applied her mind carefully and warned herself against the dangers of
relying on the uncorroborated evidence of a young witness. She found corroboration of that evidence and
believed it. She then proceeded to
conclude that the state had proved its case beyond a reasonable doubt. In S v
Nkomo 1989 (3) ZLR 117 (S) at 121C, McNally JA stated that good
identification does not need corroboration or support, but poor identification
does. In the present case, although MN's
identification of the Appellant was, in my view good identification, as the
witness had known the Appellant for a long time, the trial court stretched
backwards to find corroboration.
I am unable to find any
misdirection on the part of the court a
quo in respect of the conviction of the Appellant. It made findings on credibility of witnesses
which the appellate court cannot interfere with in the absence of a
misdirection.
Regarding sentence, Mr Dube
who appeared for the Appellant could not advance any meaningful argument. In Mkombo
v the state HB 140/10 (as yet unreported), I stated at page 3 as follows;
''The position of our law is
that in sentencing a convicted person, the sentencing court has a discretion in
assessing an appropriate sentence. That
discretion must be exercised judiciously having regard to both the factors in
mitigation and in aggravation. For an
appellate tribunal to interfere with the trial court's sentencing discretion
there should be a misdirection. See S v Chiweshe 1996 (1) ZLR 425 (H) at
429D; S v Ramushu & others S 25-93. It is not enough for the appellant to argue
that the sentence imposed is too severe because that alone is not a
misdirection and the appellate court would not interfere with a sentence merely
because it would have come up with a different sentence.''
I abide by that pronouncement. I
am again unable to find any misdirection in the sentence imposed. This was an extreme case of rape and
aggravated assault where the Appellant exhibited callousness of the highest order
and appeared to derive sadistic pleasure in abusing heavily pregnant women in
the full view of a 9 year old child. He
got his just deserts, as they say.
It was for these
reasons that the appeal against both conviction and sentence was dismissed.
KAMOCHA J
.......................................... I agree.
Lazarus & Sarif, Plaintiff's Legal
Practitioners
Criminal Division, Attorney
General's Office, Respondent's Legal Practitioners
