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HMA33-17 - AUBREY CUMMINGS vs THE STATE

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Bail-viz bail pending appeal re rape.
Sexual Offences-viz rape.
Sentencing-viz rape re the accused in loco parentis.
Procedural Law-viz rules of evidence re compellable witness.
Procedural Law-viz rules of evidence re competent witness.
Procedural Law-viz rules of evidence re digital evidence iro sms messages.
Procedural Law-viz rules of evidence re digital evidence iro text messages.
Procedural Law-viz rules of evidence re expert evidence iro medical report.
Bail-viz bail pending appeal re section 123(1)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07].
Bail-viz bail pending appeal re the absence of the presumption of innocence.
Bail-viz bail pending appeal re prospects of success on appeal iro flight risk.
Bail-viz bail pending appeal re prospects of success on appeal iro inducement to abscond.
Procedural Law-viz rules of evidence re Defence Outline iro bare denial.
Sexual Offences-viz rape re reporting a rape iro timeline.
Procedural Law-viz speculative evidence.
Procedural Law-viz rules of evidence re evidence of identification iro alibi.
Procedural Law-viz rules of evidence re defences iro the defence of alibi.
Procedural Law-viz rules of evidence re corroborative evidence.
Procedural Law-viz rules of evidence re warned and cautioned statement iro the presumption of clarity of events nearer the date of the event.
Procedural Law-viz rules of evidence re Defence Outline iro disparities between the Defence Outline and the warned and cautioned statement.
Procedural Law-viz rules of evidence re Defence Outline iro inconsistencies between the Defence Outline and extra curial statements.
Procedural Law-viz rules of evidence re defences iro the obligation of the court to make findings on all defences proffered by the accused person.
Procedural Law-viz rules of evidence re digital evidence iro transcription of a voice call.
Procedural Law-viz rules of evidence re digital evidence iro telephone recording.
Procedural Law-viz rules of evidence re entrapment.
Procedural Law-viz appeal re findings of fact made by the trial court.
Procedural Law-viz rules of evidence re police investigations iro the obligation of the police to investigate an alibi raised by the accused person.
Procedural Law-viz rules of evidence re hearsay evidence.
Procedural Law-viz rules of evidence re heresy evidence.
Procedural Law-viz rules of evidence re corroborative evidence iro pervasive influence.
Procedural Law-viz rules of evidence re admissions.
Procedural Law-viz corroborative evidence re uncorroborated evidence iro single witness evidence.
Sentencing-viz sentencing approach re first offenders.
Sentencing-viz sentencing approach re the pre-sentence enquiry.

Bail re: Bail Pending Appeal, Review, Reinstatement of an Appeal and Interlocutory Proceedings iro Approach

This was an application for bail pending appeal. It was opposed. I reserved judgment. This now is my judgment.

On 6 June 2017, the Regional Magistrate's Court at Masvingo convicted the applicant on two counts of rape. Initially they were three. He had pleaded not guilty to all. The court acquitted him on Count Two. It convicted him on One and Three. Both counts were taken as one for the purposes of sentence. The applicant was sentenced to fifteen years imprisonment. Of those, three were suspended for five years on the usual condition of good conduct. Thus, twelve years remained effective. The applicant appealed against both conviction and sentence. The appeal is pending. He has now applied to this court for bail pending the appeal.

The circumstances were these.

The applicant was fifty-four years old at the time of the trial. He is a businessman. He operates an electrical engineering shop in Masvingo. At the time of his arrest he was a student of Masters in Business Administration [MBA] with Great Zimbabwe University [GZU]. At the time of the trial the complainant was sixteen years old. The applicant and the complainant are related through marriage. The applicant, in a way, is an uncle or grandfather to the complainant. This is so in the sense that he is married to the complainant's grandmother's sister. The first two rapes were alleged to have occurred at the appellant's house in the low density suburb of Rhodene, Masvingo. The exact dates were, to the prosecutor, unknown, but, the first rape was alleged to have occurred sometime in August 2012. Then, the complainant was eleven years old [and the applicant fifty years old]. The second occasion was allegedly sometime in May 2014. Then, the complainant was thirteen years old [and the applicant fifty-two years old]. On those two counts, the State's case was that the complainant was still staying at the applicant's house. [At the time of the trial she was staying with her mother in Morningside, another suburb in Masvingo]. The complainant's father had died. Although her mother, sisters, grandmother and some other relatives were still alive, and were staying in Morningside, the applicant's family, comprising himself, his wife [of more than thirty-four years] and their three sons, had taken the complainant into their own home. This was out of compassion. The complainant's mother seemed to be struggling financially. Among other things, the applicant's family was sending the complainant to school. The applicant paid the fees. He bought her uniforms. From time to time he assisted the complainant and her family with groceries. At the applicant's home, the complainant slept in her own separate bedroom.

In the first rape, the applicant is alleged to have sneaked into the complainant's bedroom early around/ or between, 03:00 hours and 05:00 hours. He is alleged to have pulled off the blankets from the complainant, covered her mouth with one hand and pulled down her dress with the other. He allegedly removed the complainant's pant, got on top of her, and had sexual intercourse with her once without her consent. It was the State's case that on that first occasion the complainant reported the rape to a maid employed by the applicant's family at the time, one Dorothy. That was around 05:00 hours or 06:00 hours when Dorothy had come in for her daily household chores. She had found the complainant weeping.

On the second occasion, the applicant is alleged to have entered the complainant's bedroom and asked her for sex. She had refused. He had forcibly had sexual intercourse with her after he had overpowered and undressed her. It was also the State's case that the complainant had also reported this abuse to Dorothy.

It was common cause at the trial that the complainant did not report these two rapes to anyone else. The applicant not only denied them in toto, but he and his witnesses also denied that the complainant could have possibly reported to Dorothy. Dorothy was not called to give evidence. The State said she could not be located.

The third rape was alleged to have occurred on 3 September 2016, inside the applicant's Mercedes Benz motor vehicle, in some bush road off the Masvingo–Zvishavane–Bulawayo highway, some nine kilometres outside Masvingo. The State's case was that a day before, i.e. on 2 September 2016, the complainant had called the applicant on the cellphone asking for groceries and school uniforms. The applicant had agreed to meet her in Masvingo town the following day. When the complainant arrived, the applicant had asked her to get into his car. He had driven her to the place. On the way, she had enquired where he was taking her to. His response had been that she should wait and see. At the scene, the applicant allegedly came to the back seat where the complainant was. He forcibly had sexual intercourse with her once without her consent. Afterwards, he had driven her back into town. She had jumped out of the car at some traffic round-about when the applicant had slowed down to give way to traffic. The complainant said the whole experience traumatised her. She went downtown to some Great Zimbabwe University (GZU) complex and sat down. She sent a telephone text message to her mother, Sheena, that “Aubrey raped me.” But the message did not deliver. She had no money in her cellphone. She eventually walked home but did not enter the main house. She slept in an out-room till the next morning. When it was light, she bought air time. The text message then delivered eventually. At about the same time, Sheena was coming out of the house. She was going to the police to report that the complainant was missing. They met. Sheena told the complainant that she had just seen her message. She ordered the complainant into the car and drove straight to the police station. At the police station the complainant reported the rape [in Count Three] to the investigating officer. He, the complainant and Sheena drove to the scene. On their way back, the investigating officer assured the complainant that she should feel safe; that she was now in the hands of the law, and that she would be protected. He enquired whether apart from that one occasion [i.e. Count Three] the applicant had had sexual intercourse with her before. She said yes. She then revealed the other two rapes. Statements were recorded from the complainant and Sheena. The applicant was arrested on 3 September 2016 and charged with three counts of rape. A warned and cautioned statement was recorded from him in the presence of his legal practitioner. His response to all the three counts was a bare denial.

Sometime after 7 September 2016 the applicant was released on bail pending trial. The trial commenced on 6 March 2017. For the State, the complainant, her mother, Sheena, the investigating officer, and a State-registered nurse who had examined the complainant and compiled a medical report, gave evidence. For the defence, the applicant, his wife, son and a sister gave evidence. The court a quo held that there had been insufficient evidence on Count Two. Among other things, it was satisfied that at the time of the alleged rape, the complainant had now gone back to her mother and could not have been raped in the manner alleged. Furthermore, there had been inconsistencies in the State case whether the rape had occurred inside the complainant's bedroom or inside the bathroom. The court gave the applicant the benefit of the doubt and acquitted him on that count. But, it convicted him on counts One and Three.

The power of this court to admit a person to bail pending appeal is governed by section 123(1)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07]. This section invokes the same bail factors as listed in section 117 and 117A of the Criminal Procedure and Evidence Act [Chapter 9:07].

In this case, one of the factors argued was whether or not there is a real likelihood of the applicant absconding his appeal if released on bail. The State conceded that, looking at his personal circumstances only, the applicant was not a flight risk.

The concession seemed well made. At fifty-five years of age, the applicant is not young anymore. He is hardly likely to reinvent himself abroad if he were to skip bail. He has firm roots in this country. Among other things, he owns an immovable property jointly with his wife, albeit indirectly through a family company. He is established in business. He is the family's breadwinner. He has more to lose than gain if he runs away. The applicant did not run away when he was granted bail pending trial. He waited to see out his trial.

But, of course, the situation is now very different. He is now a convicted person. Among other things, the presumption of innocence has fallen away. Also gone with that is the constitutionally guaranteed right to liberty. He has now tested the discomfort of prison life, albeit for less than a month so far. That is not to say that this should automatically lead to an inference that he may abscond. But it is a very relevant factor.

There is also another very relevant factor. In assessing the risk of flight, the prospects of success of the appeal against conviction and/or sentence assume considerable importance. In this mater, it was just about the only relevant factor.

The assumption is that the greater the prospects of success of appeal, the lesser the inducement to abscond, and vice versa.

In this case, despite his firm roots in Zimbabwe, there is the prospect of the applicant spending twelve years in jail if the appeal does not succeed. The question therefore is, will the accused risk a lack of freedom for twelve years? Or will he take his chances and flee?

There is an additional factor.

Even if there is an assurance that despite the prospect of losing the appeal, and of spending twelve years in jail, the applicant will nevertheless wait to prosecute the appeal, the additional enquiry is; is it in the interests of the administration of justice that he be granted temporary liberty in the form of bail pending appeal? Or, is it not in the interests of justice that he starts serving his sentence, especially if the appeal against sentence is also unlikely to succeed?

In an application for bail pending appeal, the applicant needs not prove good prospects of success of the appeal beyond any reasonable doubt. All he needs do is to show that the appeal is free from predictable failure: see S v Hudson 1996 [1] SACR 431 [W] and Peter Chikumba v State HH724-15. If the applicant has a reasonably arguable case on appeal, what I referred to in Peter Chikumba v State HH724-15 as “some fighting chance”, then all else being equal, bail should be granted.

I now turn to consider the applicant's prospects of success on appeal.

The bulwark of the applicant's argument, on the appeal against conviction in Count One, was that the rape report was not made timeously; that when eventually it was made, a staggering five years later, it was as a result of persistent probing by the investigating officer; that the court a quo was wrong to accept that the rape had been reported to Dorothy, and that there had been such serious inconsistencies in the evidence of the Sate witnesses as to have made them unworthy of belief. It was also argued that the court a quo had misdirected itself in accepting the inference that the complainant had suddenly been returned to her mother because the rape allegations had surfaced, especially given that Dorothy had not been called to give evidence.

This argument stemmed from the fact that it was common cause that, at some point in time, the applicant's family had abruptly terminated the complainant's abode at their home and had returned her to her mother. Sheena said they had just “dumped” her home and left. Why and when that had happened was hotly contested. The defence said that the complainant had been returned after the death of one of the applicant's sons. It was said the applicant's wife had been so stressed out that she felt she could no longer cope with children in the house.

A further aspect of the applicant's defence to Count One was allegedly the implausibility that the complainant could have been raped in the manner alleged, in a home teeming with so many people at the time. It was said the risk of the applicant being caught in the act was high as any sounds emanating from the complainant's bedroom could easily be heard. At any rate, on instructions from the applicant's wife, the door to the complainant's bedroom was continuously locked. An additional aspect relevant to the defence in Count One was that there had been a bereavement in the family at the same time as the complainant had allegedly been raped. As Moslems, the family went into mourning for seven days. Every day they would drive to Mashava, some 40 kilometres west of Masvingo, where the funeral wake was being held. Both the applicant and the complainant would be part of the mourners. At no stage during that bereavement period had the applicant been left alone with the complainant. The applicant said the State's version should have been rejected because Dorothy was not called to give evidence. He said it must also be rejected because at trial there were three conflicting versions of Count One: one by the complainant herself; the other by Sheena, her mother, and the third by the investigating officer.

Counsel for the applicant pressed home the argument that it was in the car, back from inspecting the scene of Count Three, that the complainant had disclosed, for the first time, Counts One and Two. His point was, if the investigating officer and Sheena heard the same thing at the same time and place, and from the same person, why did they not, all the three of them, say the same thing during their testimonies in court?

The court disbelieved the applicant's versions. Among other things, it accepted that in Count One the rape had been reported to Dorothy and that this satisfied one of the requirements for a rape report, which is that it has to be made at the earliest possible opportunity. The court also accepted as plausible the argument by the State that the reason why the complainant had suddenly been returned to her mother was because the rape allegations had surfaced after the complainant had reported to Dorothy. If the State's version is discounted, that would mean that Count One remained unreported for a staggering five years. That would fall foul of one of the established requirements for a rape report. A rape report or complaint must be made without undue delay. It must be made at the earliest opportunity, which, under all the circumstances, could reasonably be expected, to the first person to whom the complainant could reasonably be expected to have made it: see S v Banana 2000 [1] ZLR 607 [S] and S v Nyirenda 2003 [2] ZLR 64 [H].

In casu, it was common cause that even though the complainant was staying under the applicant's roof when she said she was raped, from time to time she would go to her own mother. It was said she was in good books with her mother. Therefore, the applicant argued, there was no reason why, for five years, she kept silent. But, that Dorothy was not called to give evidence, by itself, can hardly be the reason for discounting the State version, or for saying the complainant did not report to her. Furthermore, that the complainant might have concealed the abuse from her mother and other people may also not be the reason for rejecting the State's version. A complaint in a rape case, or any other sexual offence, is admitted, not as proof of the rape or of the sexual offence. It is admitted, not to corroborate the complainant…,. Rather, it is admitted to show consistency by the complainant. It is admitted to negative a defence that the sex act was consensual: see S v Nyirenda 2003 [2] ZLR 64 [H].

So, the difficulty that I have had with the applicant's approach on this particular aspect is that, whether Dorothy gave evidence or not, the court a quo chose to believe the complainant and chose to disbelieve the applicant.

Was that a misdirection?

If yes, was it so pertinent or so cogent and so outrageous in its defiance of logic as to warrant interference by the Appeal Court? I do not think so.

It is a cardinal rule that the trial court is better placed to assess a witness' credibility than the Appeal Court. Said GUBBAY CJ in S v Mlambo 1994 [2] ZLR 410 [S]...,.:

The assessment of the credibility of a witness is the province of the trial court and ought not to be disregarded by an Appellate Court unless satisfied that it defies reason and common sense.”

See also S v Soko SC118-92.

It is also trite that rape victims react differently. Every case depends on its own facts. There is no rule of thumb. The complainant remained steadfast in her response that she felt threatened. She felt uncomfortable. She said she was conscious she was not staying in her mother's house. She was very young - only eleven years old at the time of Count One. The court a quo believed her. That, in my view, will pause enormous problems for the applicant on appeal.

But, the applicant also said the State's version in Count One should have been rejected because the complainant's report to the police and her mother, five years later, was a result of persistent probing by the investigating officer.

It is another trite requirement that for a rape complaint or report to be admissible, it must have been made voluntarily and not as a result of questions of a leading and inducing or intimidating character: see R v Petros 1967 RLR 35 [G]; 1967 [2] SA 497 [R] and S v Banana 2000 [1] ZLR 607 [S]. In a nutshell, the requirements for admissibility of a sexual complaint are:

[a] That it was made voluntarily and not as a result of questions of a leading and inducing or intimidating nature; and

[b] That it was made without undue delay but at the earliest opportunity, in all the circumstances, to the person to whom the complainant could reasonably be expected to make it: R v Petros 1967 RLR 35 [G]; 1967 [2] SA 497 [R]; S v Banana 2000 [1] ZLR 607 [S] and S v Nyirenda 2003 [2] ZLR 64 [H].

From the record of proceedings, especially the portions dealing with the evidence of the investigating officer, it is debatable whether his evidence can be impeached on the ground that there was an inducement or persistent probing by him leading to the complainant eventually disclosing Count One. But that is all the applicant needs. For as long as he has managed to show an arguable case, or a fighting chance, he should be entitled to relief. The enquiry on the prospects of success of the appeal does not go beyond this. Furthermore, the court a quo manifestly misdirected itself by accepting the prosecutor's argument that the reason why the applicant might have been returned to her mother in 2013 or back then, was because the rape allegations had surfaced. The complainant did not say that. Sheena did not say that either. It was mere speculation. The defence proffered a reason why the applicant was returned. It might have been implausible but there was no other version contesting it. So, the Appeal Court may well give him the benefit of the doubt on this point. Therefore, it cannot be said that the applicant's argument on Count One is doomed to fail.

But, regrettably for the applicant, there is still Count Three.

On Count Three, the mainstay of the applicant's defence was an alibi. He said on the day in question, he spent the whole day at home with his family. Evidence was produced that the applicant's wife and son had arrived from South Africa on that day. The applicant said he had picked them up from the pick-up point at around 05:00 hours and had driven them back home. They had brought numerous gifts. Much of the day had been spent opening and admiring the gifts. At no time had he ventured outside the gate. The applicant called his wife and son to support him on this. They did. However, the State argued that the defence of alibi was an afterthought. It had not been raised in the warned and cautioned statement. It had been raised for the first time at trial in the Defence Outline.

The applicant denied that the defence of alibi was made for the first time at trial. He said he had raised it, not only as early as September 2016 when he applied for bail pending trial, but also during interrogation at the police station on the day he had been arrested. Therefore, he argued, it had been incumbent upon the State to have investigated it. That not having been done, he should have been given the benefit of the doubt, the argument concluded.

The applicant also picked on some aspect of the State evidence to show some inconsistencies in Count Three. Part of the complainant's testimony was that during the tussle in the car, as the applicant forced himself on her, she had got bruised on the neck. However, the medical report had made no mention of it. The nurse said she would have entered the bruises on the medical report had they been shown to her.

All in all, the applicant argued that the rape reports were just an elaborate scheme by the complainant and/or her mother to extort money and property from him. This argument hinged on the fact that it was common cause that when the applicant had been arrested, both his nucleus and extended families had motivated several meetings with Sheena, her mother, and stepfather to arrange a settlement out of court. It seemed that the basic approach at those meetings had been that in return for payment of a sum of money and/or delivery of certain items of property to Sheena, the complainant would withdraw the rape charges. Several figures and items of property were mentioned. They included amounts of R100,000= and $30,000=; six live cows; a motor vehicle and a house.

Part of the defence evidence on the alleged extortion was a transcription of a telephone discussion between the applicant and the complainant's step-grandfather, one Peddy Young, sometime in November 2016. The applicant had secretly recorded it on the advice of his lawyers. The transcription seemed to confirm the narrative that there had been some arrangement for such a trade-off. The defence said nothing had come of it eventually because the applicant felt strongly that he or members of his family should not pay for something that he had not done. The court a quo dismissed the applicant's defence of alibi.

In my view, the Appeal Court is unlikely to find fault with that.

Despite the accused being represented by a legal practitioner when his warned and cautioned statement was recorded, his response, to all the three Counts, was a standard bare denial. The record of proceedings captures part of the applicant's warned and cautioned statement as follows:

Count 1: I deny the allegations.

Count 2: I deny the allegations.

Count 3: I deny the allegations.

A crucial aspect of the standard warning and cautioning administered by the police when someone has been arrested and is having their statement recorded is the warning, inter alia, that they are not obliged to say anything in answer to the allegations but that their failure, at that stage, to mention any facts relevant to their defence may result in the court drawing inferences against them.

It is absolutely stunning what strategic benefit, or advantage, the applicant and his counsel hoped to gain by concealing the circumstances of the alleged alibi. Counsel for the applicant conceded that the information should not have been concealed.

At trial, the applicant and his son claimed the alibi defence had been brought to the attention of the police during interrogation. The court disbelieved them.

Additionally, the son claimed that on the day that the applicant had been arrested, he [the son] had rushed to the complainant's mother's house to fetch them to the police station as he felt it had all been a mistake. He said on his way back to the car, one of the complainant's sisters had whispered to him that Sheena, i.e. the mother, was doing it all for the money. Apparently, the court a quo disbelieved him too.

I do not see the Appeal Court doing anything to upset the findings of the trial court on this. Prima facie, and with all due respect, such evidence seemed such an infantile assault on intelligence.

Counsel for the applicant maintained that the alibi defence was raised in the bail application and that therefore the State ought to have investigated it from then on. He specifically drew my attention to the bail statement in September 2016.

But, I perceive a number of problems.

Firstly, all that appears in that bail statement relevant to the point is this:

16. In respect of the allegations of the 3rd of September 2016, Applicant denies ever having seen the Complainant on the day in question. At the material time of the alleged rape, he was with his family wife and son who had just arrived from South Africa that morning.”

Secondly, other than interviewing the applicant's wife and son to check the purported alibi, who obviously would stand by the applicant, as they predictably did in court, it is difficult to understand what sort of investigations the police needed to have carried out. This alibi was not like the applicant was saying he had been out of the country or out of Masvingo town. He was around at the material time. All he was saying was that he had not gone nine kilometres out of town where the rape is alleged to have happened.

Thirdly, the complainant gave a graphic description of all the events before and after the rape. The applicant himself admitted that the complainant had indeed called him on the previous day for an appointment the following day. He admitted they had spoken together. He admitted she had made a request for uniforms. That had not been unusual. It was common cause that the complainant would do this from time to time and that the applicant would oblige. But, on this occasion the applicant was now saying he advised her to channel her request through his wife.

Why now? Obviously because of the rape allegations. The court a quo disbelieved him.

In substance, the alleged discrepancies or inconsistencies in the State case do not, in my view, go to the root of the matter. They are on the peripheries. In spite of them, the evidence led by the State had a consistent thread running through, namely, that the complainant was raped by the applicant. In my view, it is hardly likely the Appeal Court will interfere with the judgment of the lower court.

That the rape allegations by the complainant were one gigantic scheme by the complainant and her mother to fleece the applicant of money and assets seems difficult to sell. Neither the complainant nor Sheena called for those meetings where the trade-off between payment of money and delivery of assets against a withdrawal of the charges was mooted. It was the applicant, or members of his family who did. Neither did the complainant nor Sheena attend those meetings. It was the applicant and members of his family who did.

On sentence, the applicant's argument was that the sentence was shockingly excessive given the personal circumstances of the applicant. He was an elderly person. He was a first offender. No enquiry had been made whether or not he had been contrite.

There is no substance in the appeal against sentence. If the appeal against conviction does not succeed, as it is unlikely to, especially in respect of Count Three, the Appeal Court is unlikely to interfere with the sentence, even if Count Three will be the only one remaining. The sentence passed seems squarely within the general range of sentences for crimes of this nature. The Appeal Court is likely to consider that this was a rape within the family by someone who was a father figure to the complainant. The aggravating circumstances will militate against any reduction in the sentence.

Therefore, the application for bail pending appeal is hereby dismissed.

Sentencing re: Sexual Offences iro Rape

The applicant was sentenced to fifteen years imprisonment. Of those, three were suspended for five years on the usual condition of good conduct. Thus, twelve years remained effective….,.

On sentence, the applicant's argument was that the sentence was shockingly excessive given the personal circumstances of the applicant. He was an elderly person. He was a first offender. No inquiry had been made whether or not he had been contrite.

There is no substance in the appeal against sentence....,. The sentence passed seems squarely within the general range of sentences for crimes of this nature. The Appeal Court is likely to consider that this was a rape within the family by someone who was a father figure to the complainant. The aggravating circumstances will militate against any reduction in the sentence.

Corroborative Evidence re: Uncorroborated Evidence iro Single Witness, Cautionary Rule and Religious Indoctrination

In the first rape, the applicant is alleged to have sneaked into the complainant's bedroom early around/ or between, 03:00 hours and 05:00 hours. He is alleged to have pulled off the blankets from the complainant, covered her mouth with one hand and pulled down her dress with the other. He allegedly removed the complainant's pant, got on top of her, and had sexual intercourse with her once without her consent.

It was the State's case that on that first occasion the complainant reported the rape to a maid employed by the applicant's family at the time, one Dorothy. That was around 05:00 hours or 06:00 hours when Dorothy had come in for her daily household chores. She had found the complainant weeping.

On the second occasion, the applicant is alleged to have entered the complainant's bedroom and asked her for sex. She had refused. He had forcibly had sexual intercourse with her after he had overpowered and undressed her. It was also the State's case that the complainant had also reported this abuse to Dorothy.

It was common cause at the trial that the complainant did not report these two rapes to anyone else. The applicant not only denied them in toto, but he and his witnesses also denied that the complainant could have possibly reported to Dorothy.

Dorothy was not called to give evidence. The State said she could not be located….,.

The difficulty that I have…, on this particular aspect is that, whether Dorothy gave evidence or not, the court a quo chose to believe the complainant and chose to disbelieve the applicant.

Was that a misdirection?

If yes, was it so pertinent or so cogent and so outrageous in its defiance of logic as to warrant interference by the Appeal Court?...,.

The complainant gave a graphic description of all the events before and after the rape in Count Three.

The applicant himself admitted that the complainant had indeed called him on the previous day for an appointment the following day. He admitted they had spoken together. He admitted she had made a request for uniforms. That had not been unusual. It was common cause that the complainant would do this from time to time and that the applicant would oblige - but on this occasion the applicant was now saying he advised her to channel her request through his wife.

Why now?….,.

The court a quo disbelieved him.

Rape and Approach to Sexual Assault Cases

A rape report or complaint must be made without undue delay. It must be made at the earliest opportunity, which, under all the circumstances, could reasonably be expected, to the first person to whom the complainant could reasonably be expected to have made it: see S v Banana 2000 [1] ZLR 607 [S] and S v Nyirenda 2003 [2] ZLR 64 [H]....,.

A complaint in a rape case, or any other sexual offence, is admitted, not as proof of the rape or of the sexual offence. It is admitted, not to corroborate the complainant…,. Rather, it is admitted to show consistency by the complainant. It is admitted to negative a defence that the sex act was consensual: see S v Nyirenda 2003 [2] ZLR 64 [H]....,.

It is another trite requirement that for a rape complaint or report to be admissible, it must have been made voluntarily and not as a result of questions of a leading and inducing or intimidating character: see R v Petros 1967 RLR 35 [G]; 1967 [2] SA 497 [R] and S v Banana 2000 [1] ZLR 607 [S]. In a nutshell, the requirements for admissibility of a sexual complaint are:

[a] That it was made voluntarily and not as a result of questions of a leading and inducing or intimidating nature; and

[b] That it was made without undue delay but at the earliest opportunity, in all the circumstances, to the person to whom the complainant could reasonably be expected to make it: R v Petros 1967 RLR 35 [G]; 1967 [2] SA 497 [R]; S v Banana 2000 [1] ZLR 607 [S] and S v Nyirenda 2003 [2] ZLR 64 [H]....,.

It is also trite that rape victims react differently. Every case depends on its own facts. There is no rule of thumb.

Corroborative Evidence re: Approach and Principle that Lies Told By Accused Amount to Corroboration of State Witnesses

Counsel for the applicant pressed home the argument that it was in the car, back from inspecting the scene of Count Three, that the complainant had disclosed, for the first time, Counts One and Two. His point was, if the investigating officer and Sheena heard the same thing at the same time and place, and from the same person, why did they not, all the three of them, say the same thing during their testimonies in court?

Approach re: Discovery, Obligation to Disclose All Information or Evidence to the Court & the Suppression of Evidence

Counsel for the applicant pressed home the argument that it was in the car, back from inspecting the scene of Count Three, that the complainant had disclosed, for the first time, Counts One and Two. His point was, if the investigating officer and Sheena heard the same thing at the same time and place, and from the same person, why did they not, all the three of them, say the same thing during their testimonies in court?

Appeal re: Findings of Fact or Exercise of Discretion Made by Trial Court iro Terminated or Complete Proceedings

It is a cardinal rule that the trial court is better placed to assess a witness' credibility than the Appeal Court. Said GUBBAY CJ in S v Mlambo 1994 [2] ZLR 410 [S]...,.:

The assessment of the credibility of a witness is the province of the trial court and ought not to be disregarded by an Appellate Court unless satisfied that it defies reason and common sense.”

See also S v Soko SC118-92.

Irrelevant Evidence, Speculative Evidence, Character Evidence, Implausible or Improbable Evidence and Rule of Relevance

The court a quo manifestly misdirected itself by accepting the prosecutor's argument that the reason why the applicant might have been returned to her mother in 2013, or back then, was because the rape allegations had surfaced.

The complainant did not say that. Sheena did not say that either.

It was mere speculation.

Defence of Alibi and Mistaken Identity

On Count Three, the mainstay of the applicant's defence was an alibi.

He said on the day in question, he spent the whole day at home with his family. Evidence was produced that the applicant's wife and son had arrived from South Africa on that day. The applicant said he had picked them up from the pick-up point at around 05:00 hours and had driven them back home. They had brought numerous gifts. Much of the day had been spent opening and admiring the gifts. At no time had he ventured outside the gate. The applicant called his wife and son to support him on this. They did.

However, the State argued that the defence of alibi was an afterthought. It had not been raised in the warned and cautioned statement. It had been raised for the first time at trial in the Defence Outline.

The applicant denied that the defence of alibi was made for the first time at trial. He said he had raised it, not only as early as September 2016 when he applied for bail pending trial, but also during interrogation at the police station on the day he had been arrested. Therefore, he argued, it had been incumbent upon the State to have investigated it. That not having been done, he should have been given the benefit of the doubt, the argument concluded….,.

The court a quo dismissed the applicant's defence of alibi. In my view, the Appeal Court is unlikely to find fault with that....,.

Despite the accused being represented by a legal practitioner when his warned and cautioned statement was recorded, his response, to all the three Counts, was a standard bare denial. The record of proceedings captures part of the applicant's warned and cautioned statement as follows:

Count 1: I deny the allegations.

Count 2: I deny the allegations.

Count 3: I deny the allegations.

A crucial aspect of the standard warning and cautioning administered by the police when someone has been arrested and is having their statement recorded is the warning, inter alia, that they are not obliged to say anything in answer to the allegations but that their failure, at that stage, to mention any facts relevant to their defence may result in the court drawing inferences against them.

It is absolutely stunning what strategic benefit or advantage the applicant and his counsel hoped to gain by concealing the circumstances of the alleged alibi. Counsel for the applicant conceded that the information should not have been concealed.

Police Investigations, Arrest, Search and Seizure With or Without a Warrant re: Approach

The applicant argued that the rape reports were just an elaborate scheme by the complainant and/or her mother to extort money and property from him.

This argument hinged on the fact that it was common cause that when the applicant had been arrested, both his nucleus and extended families had motivated several meetings with Sheena, her mother, and stepfather to arrange a settlement out of court. It seemed that the basic approach at those meetings had been that in return for payment of a sum of money and/or delivery of certain items of property to Sheena, the complainant would withdraw the rape charges. Several figures and items of property were mentioned. They included amounts of R100,000= and $30,000=; six live cows; a motor vehicle and a house.

Part of the defence evidence on the alleged extortion was a transcription of a telephone discussion between the applicant and the complainant's step-grandfather, one Peddy Young, sometime in November 2016. The applicant had secretly recorded it on the advice of his lawyers. The transcription seemed to confirm the narrative that there had been some arrangement for such a trade-off...,.

Warned and Cautioned Statements, Indications, Evidence Aliunde & Presumption of Clarity of Events Nearer Date of Event

On Count Three, the mainstay of the applicant's defence was an alibi.

He said on the day in question, he spent the whole day at home with his family. Evidence was produced that the applicant's wife and son had arrived from South Africa on that day. The applicant said he had picked them up from the pick-up point at around 05:00 hours and had driven them back home. They had brought numerous gifts. Much of the day had been spent opening and admiring the gifts. At no time had he ventured outside the gate. The applicant called his wife and son to support him on this. They did.

However, the State argued that the defence of alibi was an afterthought. It had not been raised in the warned and cautioned statement. It had been raised for the first time at trial in the Defence Outline....,.

The court a quo dismissed the applicant's defence of alibi. In my view, the Appeal Court is unlikely to find fault with that....,.

Despite the accused being represented by a legal practitioner when his warned and cautioned statement was recorded, his response, to all the three Counts, was a standard bare denial. The record of proceedings captures part of the applicant's warned and cautioned statement as follows:

Count 1: I deny the allegations.

Count 2: I deny the allegations.

Count 3: I deny the allegations.

A crucial aspect of the standard warning and cautioning administered by the police when someone has been arrested and is having their statement recorded is the warning, inter alia, that they are not obliged to say anything in answer to the allegations but that their failure, at that stage, to mention any facts relevant to their defence may result in the court drawing inferences against them.

It is absolutely stunning what strategic benefit or advantage the applicant and his counsel hoped to gain by concealing the circumstances of the alleged alibi. Counsel for the applicant conceded that the information should not have been concealed.

Police Investigations, Arrest, Search and Seizure With or Without a Warrant re: Approach

At trial, the applicant and his son claimed the alibi defence had been brought to the attention of the police during interrogation.

The court disbelieved them….,.

Counsel for the applicant maintained that the alibi defence was raised in the bail application and that therefore the State ought to have investigated it from then on. He specifically drew my attention to the bail statement in September 2016.

But, I perceive a number of problems;

Firstly, all that appears in that bail statement relevant to the point is this:

16. In respect of the allegations of the 3rd of September 2016, Applicant denies ever having seen the Complainant on the day in question. At the material time of the alleged rape, he was with his family, wife and son, who had just arrived from South Africa that morning.”

Secondly, other than interviewing the applicant's wife and son to check the purported alibi, who obviously would stand by the applicant, as they predictably did in court, it is difficult to understand what sort of investigations the police needed to have carried out. This alibi was not like the applicant was saying he had been out of the country or out of Masvingo town. He was around at the material time. All he was saying was that he had not gone nine kilometres out of town where the rape is alleged to have happened.

Hearsay Evidence, Res Gestae, the Dying Declaration & Informants Not Presenting Oral or Corroborative Evidence on Oath

Additionally, the son claimed that on the day that the applicant had been arrested, he [the son] had rushed to the complainant's mother's house to fetch them to the police station as he felt it had all been a mistake. He said on his way back to the car, one of the complainant's sisters had whispered to him that Sheena, i.e. the mother, was doing it all for the money.

Corroborative Evidence re: Pervasive or Undue Influence, Partisan Evidence, Prejudicial Evidence and Witness Coaching

On Count Three, the mainstay of the applicant's defence was an alibi.

He said on the day in question, he spent the whole day at home with his family. Evidence was produced that the applicant's wife and son had arrived from South Africa on that day. The applicant said he had picked them up from the pick-up point at around 05:00 hours and had driven them back home. They had brought numerous gifts. Much of the day had been spent opening and admiring the gifts. At no time had he ventured outside the gate.

The applicant called his wife and son to support him on this. They did.


Application for bail pending appeal

MAFUSIRE J: This was an application for bail pending appeal. It was opposed. I reserved judgment. This now is my judgment.

On 6 June 2017 the Regional Magistrate's Court at Masvingo convicted the applicant on two counts of rape. Initially they were three. He had pleaded not guilty to all. The court acquitted him on Count Two. It convicted him on One and Three. Both counts were taken as one for the purposes of sentence. The applicant was sentenced to fifteen years imprisonment. Of those, three were suspended for five years on the usual condition of good conduct. Thus, twelve years remained effective. The applicant appealed against both conviction and sentence. The appeal is pending. He has now applied to this court for bail pending the appeal.

The circumstances were these.

The applicant was fifty-four years old at the time of the trial. He is a businessman. He operates an electrical engineering shop in Masvingo. At the time of his arrest he was a student of Masters in Business Administration [MBA] with Great Zimbabwe University [GZU]. At the time of the trial the complainant was sixteen years old. The applicant and the complainant are related through marriage. The applicant, in a way, is an uncle or grandfather to the complainant. This is so in the sense that he is married to the complainant's grandmother's sister. The first two rapes were alleged to have occurred at the appellant's house in the low density suburb of Rhodene, Masvingo. The exact dates were to the prosecutor unknown. But the first rape was alleged to have occurred sometime in August 2012. Then the complainant was eleven years old [and the applicant fifty years old]. The second occasion was allegedly sometime in May 2014. Then the complainant was thirteen years old [and the applicant fifty two years old]. On those two counts, the State's case was that the complainant was still staying at the applicant's house. [At the time of the trial she was staying with her mother in Morningside, another suburb in Masvingo]. The complainant's father had died. Although her mother, sisters, grandmother and some other relatives were still alive, and were staying in Morningside, the applicant's family, comprising himself, his wife [of more than thirty-four years] and their three sons, had taken the complainant into their own home. This was out of compassion. The complainant's mother seemed to be struggling financially. Among other things, the applicant's family was sending the complainant to school. The applicant paid the fees. He bought her uniforms. From time to time he assisted the complainant and her family with groceries. At applicant's home the complainant slept in her own separate bedroom.

In the first rape, the applicant is alleged to have sneaked into the complainant's bedroom early around, or between, 03:00 hours and 05:00 hours. He is alleged to have pulled off the blankets from the complainant, covered her mouth with one hand and pulled down her dress with the other. He allegedly removed the complainant's pant, got on top of her, and had sexual intercourse with her once without her consent. It was the State's case that on that first occasion, the complainant reported the rape to a maid employed by the applicant's family at the time, one Dorothy. That was around 05:00 hours or 06:00 hours when Dorothy had come in for her daily household chores. She had found the complainant weeping.

On the second occasion, the applicant is alleged to have entered the complainant's bedroom and asked her for sex. She had refused. He had forcibly had sexual intercourse with her after he had overpowered and undressed her. It was also the State's case that the complainant had also reported this abuse to Dorothy.

It was common cause at the trial that the complainant did not report these two rapes to anyone else. The applicant not only denied them in toto, but he and his witnesses also denied that the complainant could have possibly reported to Dorothy. Dorothy was not called to give evidence. The State said she could not be located.

The third rape was alleged to have occurred on 3 September 2016, inside the applicant's Mercedes Benz motor vehicle, in some bush-road off the Masvingo–Zvishavane–Bulawayo Highway, some nine kilometres outside Masvingo. The State's case was that a day before, i.e. on 2 September 2016, the complainant had called the applicant on the cellphone asking for groceries and school uniforms. The applicant had agreed to meet her in Masvingo town the following day. When the complainant arrived, the applicant had asked her to get into his car. He had driven her to the place. On the way, she had enquired where he was taking her to. His response had been that she should wait and see. At the scene, the applicant allegedly came to the back seat where the complainant was. He forcibly had sexual intercourse with her once without her consent. Afterwards, he had driven her back into town. She had jumped out of the car at some traffic round-about when the applicant had slowed down to give way to traffic. The complainant said the whole experience traumatised her. She went downtown to some GZU Complex and sat down. She sent a telephone text message to her mother, Sheena, that “Aubrey raped me.” But the message did not deliver. She had no money in her cellphone. She eventually walked home but did not enter the main house. She slept in an out room till the next morning. When it was light, she bought air time. The text message then delivered eventually. At about the same time, Sheena was coming out of the house. She was going to the police to report that the complainant was missing. They met. Sheena told the complainant that she had just seen her message. She ordered the complainant into the car and drove straight to the police station. At the police station the complainant reported the rape [in Count Three] to the investigating officer. He, the complainant and Sheena drove to the scene. On their way back, the investigating officer assured the complainant that she should feel safe; that she was now in the hands of the law, and that she would be protected. He enquired whether apart from that one occasion [i.e. Count Three] the applicant had had sexual intercourse with her before. She said yes. She then revealed the other two rapes. Statements were recorded from the complainant and Sheena. The applicant was arrested on 3 September 2016 and charged with three counts of rape. A warned and cautioned statement was recorded from him in the presence of his legal practitioner. His response to all the three counts was a bare denial.

Sometime after 7 September 2016 the applicant was released on bail pending trial. The trial commenced on 6 March 2017. For the State, the complainant, her mother, Sheena, the investigating officer, and a State registered nurse who had examined the complainant and compiled a medical report, gave evidence. For the defence, the applicant, his wife, son and a sister gave evidence. The court a quo held that there had been insufficient evidence on Count Two. Among other things, it was satisfied that at the time of the alleged rape, the complainant had now gone back to her mother and could not have been raped in the manner alleged. Furthermore, there had been inconsistencies in the State case whether the rape had occurred inside the complainant's bedroom or inside the bathroom. The court gave the applicant the benefit of the doubt and acquitted him on that count. But it convicted him on counts One and Three.

The power of this court to admit a person to bail pending appeal is governed by section 123[1][b] of the Criminal Procedure and Evidence Act, [Cap 9:07]. This section invokes the same bail factors as listed in section 117 and 117A of that Act.

In this case, one of the factors argued was whether or not there is a real likelihood of the applicant absconding his appeal if released on bail. The State conceded that, looking at his personal circumstances only, the applicant was not a flight risk. The concession seemed well made. At fifty-five years of age, the applicant is not young any more. He is hardly likely to reinvent himself abroad if he were to skip bail. His has firm roots in this country. Among other things, he owns an immovable property jointly with his wife, albeit indirectly through a family company. He is established in business. He is the family's breadwinner. He has more to lose than gain if he runs away. The applicant did not run away when he was granted bail pending trial. He waited to see out his trial. But, of course, the situation is now very different. He is now a convicted person. Among other things, the presumption of innocence has fallen away. Also gone with that is the constitutionally guaranteed right to liberty. He has now tested the discomfort of prison life, albeit for less than a month so far. That is not to say that this should automatically lead to an inference that he may abscond. But it is a very relevant factor. There is also another very relevant factor. In assessing the risk of flight, the prospects of success of the appeal against conviction and/or sentence assume considerable importance. In this mater, it was just about the only relevant factor.

The assumption is that the greater the prospects of success of appeal, the lesser the inducement to abscond, and vice versa.

In this case, despite his firm roots in Zimbabwe, there is the prospect of the applicant spending twelve years in jail if the appeal does not succeed. The question therefore is, will the accused risk a lack of freedom for twelve years? Or will he take his chances and flee?

There is an additional factor.

Even if there is an assurance that despite the prospect of losing the appeal, and of spending twelve years in jail, the applicant will nevertheless wait to prosecute the appeal, the additional enquiry is, is it in the interests of the administration of justice that he be granted temporary liberty in the form of bail pending appeal? Or is it not in the interests of justice that he starts serving his sentence, especially if the appeal against sentence is also unlikely to succeed?

In an application for bail pending appeal, the applicant needs not prove good prospects of success of the appeal beyond any reasonable doubt. All he needs do is to show that the appeal is free from predictable failure: see S v Hudson1 and Peter Chikumba v State2. If the applicant has a reasonably arguable case on appeal, what I referred to in Chikumba as “some fighting chance”, then all else being equal, bail should be granted.

I now turn to consider the applicant's prospects of success on appeal.

The bulwark of the applicant's argument on the appeal against conviction in Count One was that the rape report was not made timeously; that when eventually it was made, a staggering five years later, it was as a result of persistent probing by the investigating officer; that the court a quo was wrong to accept that the rape had been reported to Dorothy, and that there had been such serious inconsistencies in the evidence of the Sate witnesses as to have made them unworthy of belief. It was also argued that the court a quo had misdirected itself in accepting the inference that the complainant had suddenly been returned to her mother because the rape allegations had surfaced, especially given that Dorothy had not been called to give evidence.

This argument stemmed from the fact that it was common cause that at some point in time, the applicant's family had abruptly terminated the complainant's abode at their home and had returned her to her mother. Sheena said they had just “dumped” her home and left. Why and when that had happened was hotly contested. The defence said that the complainant had been returned after the death of one of applicant's sons. It was said applicant's wife had been so stressed out that she felt she could no longer cope with children in the house.

A further aspect of the applicant's defence to Count One was allegedly the implausibility that the complainant could have been raped in the manner alleged, in a home teeming with so many people at the time. It was said the risk of the applicant being caught in the act was high as any sounds emanating from the complainant's bedroom could easily be heard. At any rate, on instructions from the applicant's wife, the door to the complainant's bedroom was continuously locked. An additional aspect relevant to the defence in Count One was that there had been a bereavement in the family at the same time as the complainant had allegedly been raped. As Moslems, the family went into mourning for seven days. Every day they would drive to Mashava, some 40 kilometres west of Masvingo, where the funeral wake was being held. Both the applicant and the complainant would be part of the mourners. At no stage during that bereavement period had the applicant been left alone with the complainant. The applicant said the State's version should have been rejected because Dorothy was not called to give evidence. He said it must also be rejected because at trial there were three conflicting versions of Count One: one by the complainant herself; the other by Sheena, her mother, and the third by the investigating officer.

Mr Hungwe, for the applicant, pressed home the argument that it was in the car, back from inspecting the scene of Count Three, that the complainant had disclosed for the first time Counts One and Two. His point was, if the investigating officer and Sheena heard the same thing at the same time and place, and from the same person, why did they not, all the three of them, say the same thing during their testimonies in court?

The court disbelieved the applicant's versions. Among other things, it accepted that in Count One the rape had been reported to Dorothy and that this satisfied one of the requirements for a rape report, which is that it has to be made at the earliest possible opportunity. The court also accepted as plausible the argument by the State that the reason why the complainant had suddenly been returned to her mother was because the rape allegations had surfaced after the complainant had reported to Dorothy. If the State's version is discounted, that would mean that Count One remained unreported for a staggering five years. That would fall foul of one of the established requirements for a rape report. A rape report or complaint must be made without undue delay. It must be made at the earliest opportunity, which under all the circumstances, could reasonably be expected, to the first person to whom the complainant could reasonably be expected to have made it: see S v Banana3 and S v Nyirenda4.

In casu, it was common cause that even though the complainant was staying under the applicant's roof when she said she was raped, from time to time she would go to her own mother. It was said she was in good books with her mother. Therefore, the applicant argued, there was no reason why, for five years, she kept silent. But that Dorothy was not called to give evidence, by itself, can hardly be the reason for discounting the State version, or for saying the complainant did not report to her. Furthermore, that the complainant might have concealed the abuse from her mother and other people may also not be the reason for rejecting the State's version. A complaint in a rape case, or any other sexual offence, is admitted, not as proof of the rape or of the sexual offence. It is admitted, not to corroborate the complainant [my emphasis]. Rather, it is admitted to show consistency by the complainant. It is admitted to negative a defence that the sex act was consensual: see Nyirenda, supra, at p 75E.

So, the difficulty that I have had with the applicant's approach on this particular aspect is that, whether Dorothy gave evidence or not, the court a quo chose to believe the complainant and chose to disbelieve the applicant.

Was that a misdirection?

If yes, was it so pertinent or so cogent and so outrageous in its defiance of logic as to warrant interference by the Appeal Court? I do not think so.

It is a cardinal rule that the trial court is better placed to assess a witness' credibility than the Appeal Court. Said GUBBAY CJ in S v Mlambo5:

The assessment of the credibility of a witness is the province of the trial court and ought not to be disregarded by an Appellate Court unless satisfied that it defies reason and common sense.”

See also S v Soko6.

It is also trite that rape victims react differently. Every case depends on its own facts. There is no rule of thumb. The complainant remained steadfast in her response that she felt threatened. She felt uncomfortable. She said she was conscious she was not staying in her mother's house. She was very young, only eleven years old at the time of Count One. The court a quo believed her. That, in my view, will pause enormous problems for the applicant on appeal.

But, the applicant also said the State's version in Count One should have been rejected because the complainant's report to the police and her mother, five years later, was a result of persistent probing by the investigating officer. It is another trite requirement that for a rape complaint or report to be admissible, it must have been made voluntarily, and not as a result of questions of a leading and inducing or intimidating character: see R v Petros7 and S v Banana, supra. In a nutshell, the requirements for admissibility of a sexual complaint are:

[a] that it was made voluntarily, and not as a result of questions of a leading and inducing or intimidating nature; and

[b] that it was made without undue delay but at the earliest opportunity, in all the circumstances, to the person to whom the complainant could reasonably be expected to make it: S v Petros; S v Banana and S v Nyirenda, supra.

From the record of proceedings, especially the portions dealing with the evidence of the investigating officer, it is debatable whether his evidence can be impeached on the ground that there was an inducement or persistent probing by him leading to the complainant eventually disclosing Count One. But that is all the applicant needs. For as long as he has managed to show an arguable case, or a fighting chance, he should be entitled to relief. The enquiry on the prospects of success of the appeal does not go beyond this. Furthermore, the court a quo manifestly misdirected itself by accepting the prosecutor's argument that the reason why the applicant might have been returned to her mother in 2013 or back then, was because the rape allegations had surfaced. The complainant did not say that. Sheena did not say that either. It was mere speculation. The defence proffered a reason why the applicant was returned. It might have been implausible. But there was no other version contesting it. So the Appeal Court may well give him the benefit of the doubt on this point. Therefore, it cannot be said that the applicant's argument on Count One is doomed to fail.

But, regrettably for the applicant, there is still Count Three.

On Count Three, the mainstay of the applicant's defence was an alibi. He said on the day in question, he spent the whole day at home with his family. Evidence was produced that the applicant's wife and son had arrived from South Africa on that day. The applicant said he had picked them up from the pick-up point at around 05:00 hours and had driven them back home. They had brought numerous gifts. Much of the day had been spent opening and admiring the gifts. At no time had he ventured outside the gate. The applicant called his wife and son to support him on this. They did. However, the State argued that the defence of alibi was an afterthought. It had not been raised in the warned and cautioned statement. It had been raised for the first time at trial in the Defence Outline.

The applicant denied that the defence of alibi was made for the first time at trial. He said he had raised it, not only as early as September 2016 when he applied for bail pending trial, but also during interrogation at the police station on the day he had been arrested. Therefore, he argued, it had been incumbent upon the State to have investigated it. That not having been done, he should have been given the benefit of the doubt, the argument concluded.

The applicant also picked on some aspect of the State evidence to show some inconsistencies in Count Three. Part of the complainant's testimony was that during the tussle in the car, as the applicant forced himself on her, she had got bruised on the neck. However, the medical report had made no mention of it. The nurse said she would have entered the bruises on the medical report had they been shown to her.

All in all, the applicant argued that the rape reports were just an elaborate scheme by the complainant and/or her mother to extort money and property from him. This argument hinged on the fact that it was common cause that when the applicant had been arrested, both his nucleus and extended families had motivated several meetings with Sheena, her mother and stepfather to arrange a settlement out of court. It seemed that the basic approach at those meetings had been that in return for payment of a sum of money and/or delivery of certain items of property to Sheena, the complainant would withdraw the rape charges. Several figures and items of property were mentioned. They included amounts of R100,000 and $30,000; six live cows; a motor vehicle and a house.

Part of the defence evidence on the alleged extortion was a transcription of a telephone discussion between the applicant and the complainant's step-grandfather, one Peddy Young, sometime in November 2016. The applicant had secretly recorded it on the advice of his lawyers. The transcription seemed to confirm the narrative that there had been some arrangement for such a trade-off. The defence said nothing had come of it eventually because the applicant felt strongly that he or members of his family should not pay for something that he had not done. The court a quo dismissed the applicant's defence of alibi. In my view, the appeal court is unlikely to find fault with that.

Despite the accused being represented by a legal practitioner when his warned and cautioned statement was recorded, his response, to all the three Counts, was a standard bare denial. The record of proceedings captures part of the applicant's warned and cautioned statement as follows:

Count 1: I deny the allegations.

Count 2: I deny the allegations.

Count 3: I deny the allegations.

A crucial aspect of the standard warning and cautioning administered by the police when someone has been arrested and is having their statement recorded is the warning, inter alia, that they are not obliged to say anything in answer to the allegations, but that their failure at that stage to mention any facts relevant to their defence may result in the court drawing inferences against them.

It is absolutely stunning what strategic benefit or advantage the applicant and his counsel hoped to gain by concealing the circumstances of the alleged alibi. Mr Hungwe conceded that the information should not have been concealed.

At trial, the applicant and his son claimed the alibi defence had been brought to the attention of the police during interrogation. The court disbelieved them. Additionally, the son claimed that on the day that the applicant had been arrested, he [the son] had rushed to the complainant's mother's house to fetch them to the police station as he felt it had all been a mistake. He said on his way back to the car, one of the complainant's sisters had whispered to him that Sheena, i.e. the mother, was doing it all for the money. Apparently, the court a quo disbelieved him too.

I do not see the Appeal Court doing anything to upset the findings of the trial court on this.

Prima facie, and with all due respect, such evidence seemed such an infantile assault on intelligence. Mr Hungwe, maintained that the alibi defence was raised in the bail application and that therefore the State ought to have investigated it from then on. He specifically drew my attention to the bail statement in September 2016. But I perceive a number of problems. Firstly, all that appears in that bail statement relevant to the point is this:

16 In respect of the allegations of the 3rd of September 2016, Applicant denies ever having seen the Complainant on the day in question.

At the material time of the alleged rape, he was with his family wife and son who had just arrived from South Africa that morning.”

Secondly, other than interviewing the applicant's wife and son to check the purported alibi, who obviously would stand by the applicant, as they predictably did in court, it is difficult to understand what sort of investigations the police needed to have carried out. This alibi was not like the applicant was saying he had been out of the country, or out of Masvingo town. He was around at the material time. All he was saying was that he had not gone nine kilometres out of town where the rape is alleged to have happened.

Thirdly, the complainant gave a graphic description of all the events before and after the rape. The applicant himself admitted that the complainant had indeed called him on the previous day for an appointment the following day. He admitted they had spoken together. He admitted she had made a request for uniforms. That had not been unusual. It was common cause that the complainant would do this from time to time and that the applicant would oblige. But on this occasion the applicant was now saying he advised her to channel her request through his wife. Why now? Obviously because of the rape allegations. The court a quo disbelieved him. In substance, the alleged discrepancies or inconsistencies in the State case do not, in my view, go to the root of the matter. They are on the peripheries. In spite of them, the evidence led by the State had a consistent thread running through, namely, that the complainant was raped by the applicant. In my view, it is hardly likely the Appeal Court will interfere with the judgment of the lower court.

That the rape allegations by the complainant were one gigantic scheme by the complainant and her mother to fleece the applicant of money and assets seems difficult to sell. Neither the complainant nor Sheena called for those meetings where the trade-off between payment of money and delivery of assets against a withdrawal of the charges was mooted. It was the applicant, or members of his family who did. Neither did the complainant nor Sheena attend those meetings. It was the applicant and members of his family who did.

On sentence, the applicant's argument was that the sentence was shockingly excessive given the personal circumstances of the applicant. He was an elderly person. He was a first offender. No enquiry had been made whether or not he had been contrite. There is no substance in the appeal against sentence. If the appeal against conviction does not succeed, as it is unlikely to, especially in respect of Count Three, the Appeal Court is unlikely to interfere with the sentence, even if Count Three will be the only one remaining. The sentence passed seems squarely within the general range of sentences for crimes of this nature. The Appeal Court is likely to consider that this was a rape within the family by someone who was a father figure to the complainant. The aggravating circumstances will militate against any reduction in the sentence.

Therefore, the application for bail pending appeal is hereby dismissed.

Kadzere, Hungwe & Mandevere, legal practitioners for the applicant

National Prosecuting Authority, legal practitioners for the respondent



1. 1996 [1] SACR 431 [W]

2. HH724-15

3. 2000 [1] ZLR 607 [S]

4. 2003 [2] ZLR 64 [H]

5. 1994 [2] ZLR 410 [S] @ p 413

6. SC118-92

7. 1967 RLR 35 [G]; 1967 [2] SA 497 [R]

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