Austin Gift Musara v The State

### Preamble
1
HH 526-23
CA 92-22
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AUSTIN GIFT MUSARA

versus

THE STATE

HIGH COURT OF ZIMBABWE

ZHOU AND CHIKOWERO JJ

HARARE, 11 & 18 September 2023

Criminal Appeal

N Mushangwe, for the appellant

T Mapfuwa, for the respondent

CHIKOWERO J:

[1]	This is an appeal against conviction and sentence.

[2]	The appellant was convicted of rape as defined in s 65(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].  He was sentenced to 8 years imprisonment of which 3 years were suspended for 5 years on the usual condition of good behaviour, to leave the effective custodial term of 5 years.

[3]	The appeal against conviction, although initially conceded to, is now opposed.  The appeal against the sentence has always been contested.

[4]	In respect of the appeal against the conviction, the only issue is whether the trial court correctly found that it was the appellant who had raped the complainant.  Mr Mushangwe conceded that the court a quo’s finding that the offence itself was committed, on the person of the complainant, was unimpeachable.  We agree.

[5]	Indeed, the complainant, who was 10 years old when the offence was committed, gave detailed evidence of the place, time and circumstances of the rape.  What she said was this.  Her parents were working and staying in South Africa.  Before leaving for that neighbouring country, her mother, who was sister to the appellant, had caused the appellant to come over to a certain village in Gutu, Masvingo Province, to stay with the complainant and the latter’s 3 year old sister.  That homestead belonged to the complainant’s parents.  The appellant then 18 years old, would not only be looking after his sister’s two daughters (as he attended a nearby secondary school) but would also be supervising a young couple which stayed at the same homestead and worked for the complainant’s parents.  The sleeping arrangements put in place by the complainant’s mother before she left for South Africa, were these.  The appellant would use the bed while the complainant and her sibling would put up on the floor.  All three would sleep in the same room.  The couple would use their own bedroom, the doorway of which faced the appellant’s bedroom.  The couple’s bedroom had no door.  The house itself was not that small since it had other rooms.  But it had no ceiling.  All this was common cause.

[6]	Also common cause were these facts.  The appellant, complainant and the young sister to the latter adhered to the sleeping arrangements put in place by the complainant’s mother.  The complainant’s mother left for South Africa, apparently to join her husband, on 2 September 2018.

[7]	The complainant’s testimony, as touching on the rape itself, was this.  On 6 October 2018, around midnight, the appellant left his bed, joined her on the floor, awakened her and asked to be intimate with her.  She refused.  This did not deter him.  He undressed himself.  He removed her clothes, placed his “thing into her thing and danced on top of her”.  The record shows that, using some anatomically correct dolls, the complainant demonstrated that the appellant had sexual intercourse with her.  Since she was crying, he used his hands to shut her mouth and at the same time, telling her to be quiet.  The door was locked.  The complainant’s sister was fast asleep.  Having accomplished his mission, the appellant again asked the complainant to engage in sexual intercourse with him for the second time.  She refused.  He did not persist.  Although the lights were off, it was not so dark that the complainant would fail to identify the offender.  In any event, as the door was locked, the only male who put up in that bedroom was the appellant.

[8]	At the trial, the appellant maintained that the complainant was not being truthful.  He said that he did not rape her at all.

[9] 	Before us, Mr Mushangwe conceded that there was incontrovertible medical evidence that the complainant had been raped.  The concession was proper.  The complainant was examined by a Government Medical Doctor at Gutu Rural Hospital on 10 October 2018.  The medical affidavit, recording the doctor’s observations and conclusion, was produced at the trial.  This was with the consent of Mr Mushangwe, who was defence counsel.  The medical affidavit reflects that the complainant, who was pre-pubertal, had a torn hymen.  There was definite evidence of penetration.

[10]	The trial court was impressed with the complainant as a witness.  It noted that she gave her evidence very well and was an honest witness.  This means the court had regard to the demeanour of the complainant and was satisfied therewith.  It also means that in undertaking an assessment of the credibility or otherwise of the complainant, it was satisfied that the girl was telling the truth.  She had no reason to protect any other person by lying that her own uncle, with whom she was in good books (and stood in loco parentis to the two girls) had ravished her.  She was too young to make up and place such detailed testimony before the court.  If she were malicious, she could easily have testified that the appellant raped her twice.  Above all, the contents of the medical affidavit corroborated her oral evidence that she was raped.  The medical affidavit, being an independent piece of evidence, lend credence to her oral account of what she said befell her.

[11]	In attacking the conviction, the appellant takes issue with the trial court’s assessment of the complainant as a credible witness.  He argues that the trial court fell into error in finding that it was him who raped the complainant.  The factual finding impugned was based on an assessment of the credibility of the complainant.

[12]	It is trite that the assessment of the credibility of a witness is the province of the trial court.  See S v Mlambo 1994 (2) ZLR 410(S); S v Soko S 118/92; S v Zulu 2003(1) ZLR 529(H) and S v Mashonganyika 2018(1) ZLR 216(H).  In S v Mbanda SC 184/90 at p 7, Gubbay CJ said:

“An appellate court must never overlook that the trial court’s living through a drama of a case is in a unique position to evaluate the evidence in its proper perspective.  To justify the conclusion the assessment made by a trial court of the credibility of the witnesses is wrong, an appellate court must be persuaded that the finding defies reason and common sense.  Questions of credibility are par excellence the province of the trial court.”

[13]	The trial court acknowledged that there were inconsistencies in the case for the prosecution.  The inconsistencies were these.  Firstly, the complainant testified that the first person to whom she disclosed that appellant had raped her was a Mrs Sada, the Guidance and Counselling teacher at the school.  Mrs Sada testified as the second State witness.  However, the complainant also testified, in another breath, that the first person to whom she revealed that the appellant had raped her was Mrs Musada, the third State witness.  Mrs Musada was a nurse at Gutu Rural Hospital.  The nurse had sought to understand why the appellant had uncontrollably urinated in class.  In explaining why she had not told anyone at the school that the appellant had raped her, hence the uncontrolled passing of urine in class, the complainant said she feared to be stigmatized.  Since she was a newcomer at the school, she thought that if she told her male class teacher, he would in turn pass on the information to school children who would then laugh at her.  Hence, she disclosed to the nurse.  Secondly, Mrs Sada said the complainant never disclosed to her that she had been raped, and by the appellant.  To Mrs Sada, the complainant must have been mistaken when she testified otherwise.

[14]	We share the trial court’s view that the inconsistencies do not go to the root of the matter.  We share also its conclusion that the first person to whom the complaint was made was Mrs Sada, the nurse.  We say so for a variety of reasons.  As observed a quo, the complainant was testifying on 26 September 2019, on traumatic events which had occurred when she was at the tender age of 10 years.  Young children make mistakes on matters of detail.  Further, not having observed the complainant as she testified, we have no basis for questioning the trial court’s recorded impression that the complainant’s demeanour was very good.  Mrs Sada did not give evidence on the content of the complainant.  This dovetails with her testimony that no such complaint was made to her and that, to the extent that the complainant testified otherwise, the latter was mistaken.  The record also shows that even when Mrs Sada took the complainant to the hospital to be attended to, and when that witness had left, the complainant was initially not opening up to the nurse.  Eventually, all she disclosed to the third witness (the nurse) was that, to her, the cause of her urinating in class was that an uncle whom she stayed with had raped her.  She did not even name the uncle in question nor did she give an account of the incident. For her part, the third State witness took the view that since rape is a crime it fell to the police to investigate the matter.  Further, since she, being a nurse, was not allowed to examine a suspected victim of sexual assault when a medical doctor was available, she passed on the matter to the doctor.  We note too that, in any event, the appellant admitted, under cross-examination that the second State witness was not the first person to whom the complainant disclosed that the appellant had raped her.  Strictly speaking, the appellant cannot, in the circumstances, seek to withdraw his admission, made at trial, through the back door.  In all the circumstances, we are unable to fault the trial court’s reasons for finding that the inconsistencies in question do not go to the root of the matter, to wit, that it was the appellant who raped the complainant.

There is no evidence on record tending to indicate that the second State witness suggested to the complainant, that the offender was the appellant.  We have already indicated why we are unable to fault the trial court’s finding of fact that the first complaint of rape was made to the third State witness.  Equally, the record is bereft of any evidence suggesting that the complaint was anything but voluntarily made.

[15]	By conceding the correctness of the finding that the offence itself was committed Mr Mushangwe effectively eroded the basis of the third ground of appeal.  We think it necessary to reproduce that ground of appeal:

“The learned trial magistrate erred by failing to consider the evidence of the young complainant with care and circumspection given that the evidence of young complainant in sexual matters is open to fantasy, suggestibility and unreliability.”

The complainant did not fantasize being raped by the appellant.  There is no evidence on record indicating that anybody suggested to her that she was raped, when in fact she was not, and that the suggested offender was the appellant.  Indeed, the medical affidavit put the matter beyond doubt.  It was fact that the complainant was raped.  Although the complainant was a young child, there is solid proof on record that the trial court carefully considered the nature and circumstances of the matter before finding that it was the appellant who had committed the offence.  It made that decision on a consideration of all the evidence on record.

[16]	Mr Mapfuwa, by resisting the appeal against conviction, must be taken to have conceded that his initial view that the medical affidavit was wrongly admitted as an exhibit was mistaken.  Indeed, after considering the interaction between the court and Mr Mapfuwa in this regard, Mr Mushangwe correctly conceded that the fourth ground of appeal was not well taken.  Therein, the appellant had sought to argue that the medical affidavit ought not to have been admitted into evidence.

[17]	The appellant was not convicted on the sole basis that he failed to proffer a reason why the complainant would lie that he sexually violated her.  Accordingly, the fifth ground of appeal is misplaced.  It merits no further consideration.

[18]	Sound reasons were tendered for rejecting the appellant’s defence.  The trial court found that the defence, being essentially that the second State witness unduly influenced the complainant to falsely name him as the offender, was not reasonably possibly true.  Indeed, besides denying that he committed the offence, the appellant did not meaningfully challenge the detailed testimony of the complainant.  She as well as the second and third witnesses were believed, rightly so.  The appellant was disbelieved.  Sound reasons were tendered for so doing.

[19]	The appeal against the conviction is without merit.

[20]	We turn to the appeal against the sentence.

[21]	Unless it is vitiated by irregularity or misdirection, an appellate court does not interfere with the trial court’s exercise of discretion.  The only other basis for interference is if the sentence imposed is disturbingly inappropriate.  See S v Ramushu & Ors S 25/93; S v Nhumwa S 40/88.

[22]	The sentence for rape, as provided in the Criminal  Law Code, ranges from any definite period of imprisonment to imprisonment for life.  This demonstrates the abhorrence with which the crime is viewed by the society.  Within the range aforementioned, the trial court had the discretion to impose a sentence meeting the justice of the case.  The reasons for sentence, as well as the sentence itself, are evidence that due regard was had to the appellant’s youthfulness and his status as a first offender.  The appellant was 18 years old at the time of the commission of the offence.  He had turned 22 years old at the date of sentencing.  Other factors of mitigation were also taken into account.  These included the fact that the trial took long to be finalized.  The trial commenced on 26 February 2019 but was only finalized on 23 September 2019. The court took care to discount 12 months imprisonment, in each instance, on account of the appellant’s youthfulness, his status as a first offender and the lengthy period taken before the trial was completed.  All in all, the court suspended three years imprisonment from the fair sentence of 8 years imprisonment to leave an effective custodial term of 5 years.

[23]	It must not be forgotten that a sentence is not informed by the mitigation only.  The aggravating factors were that the appellant raped his own niece, that he was otherwise acting in loco parentis to the complainant, that he breached the trust bestowed upon him by the complainant’s parents and the complainant herself, that the complainant was at the material time of the tender age of 10 years, that the offence itself was heinous and that a sentence reflecting that the court was serious in protecting young girls from sexual predators had to be imposed.  We do not agree with Mr Mushangwe that excessive weight was had to the aggravating factors.

[24]	In view of the foregoing the sentence meted on the appellant cannot be described as manifestly harsh and excessive as to induce a sense of shock.

[25]	The appellant was visited with nothing more than such sentence as he fully deserved.

[26]	In the result, IT IS ORDERED THAT:

“The appeal be and is dismissed in its entirety.”

CHIKOWERO J ………………………………….

ZHOU J, agrees:	………………………………

Mushangwe & Company, appellant’s legal practitioners

The National Prosecuting Authority, respondent’s legal practitioners