Alexander Tunzi v The State

### Preamble
1
HMT 34-21
CA 29/20
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ALEXANDER TUNZI

versus

THE STATE

HIGH COURT OF ZIMBABWE

MWAYERA & MUZENDA JJ

MUTARE, 2 & 17 June 2021

CRIMINAL APPEAL

V Chinzamba, for the appellant

Ms T. L Katsiru, for the respondent

MUZENDA J: This is an appeal against conviction only of the appellant. The appellant was convicted of Rape as defined in s 65(1) of the Criminal Law (Codification and Reform) Act and sentenced to 18 years imprisonment of which 3 years imprisonment was suspended  for a period of 5 years on condition of future good behaviour.

The appeal is opposed.

Background

Appellant who was aged 41 years at the date of the allegations is the biological father of the complainant who was 4 years old. The state alleged that between August 2016 and October 2019 at House No. 1203 Chikanga 1, Mutare, appellant had sexual intercourse with the complainant who is deemed at law incapable of giving consent. The facts outlined by the state chronicle the events as follows.in August 2016 complainant’s mother started going to school leaving complainant under the appellant’s care. Complainant’s mother on one occasion whilst bathing complainant discovered that complainant’s vagina was reddish but did not suspect anything. However the mother of the complainant informed the appellant who did not comment. Sometime in October 2019 complainant’s mother and her grandmother went to town leaving complainant again with appellant. Upon their return she knocked on the door and appellant took long to open the door. Eventually when the door was opened complainant’s mother observed that complainant was sad. Later complainant’s grandmother noted a substance that appeared to her like sperms some of which was flowing on her legs. She phoned complainant at 2100hrs informing her about the discovery.

The following day of being telephoned, she visited complainant’s grandmother and complainant’s mother informed the appellant about it. Appellant told complainant’s mother to take complainant to the hospital for medical examination. Meanwhile the appellant went to the police to seek advice. Later appellant and the police detail followed complainant’s mother to the hospital. At the hospital the examination by a nurse confirmed the sexual abuse and a medical report was compiled. At the hospital complainant pointed at appellant as the perpetrator of the sexual abuse and that led to the arrest of the appellant and prosecution.

Proceedings in the Court a quo

Appellant who was legally represented pleaded not guilty. In his defence he stated that indeed he was usually left with complainant and her siblings but did not abuse complainant. He was not shown the pant that was sperm stained. He denied raping complainant and he is the one who reported the abuse to the police and not complainant’s mother.

After hearing evidence of the state and that of the defence the court a quo established that the following issues were not in dispute: Complainant and appellant are related, appellant is the one who brought the matter to the attention of the police, appellant used to play music for the complainant, complainant was subjected to various medical examinations, two of these were done at the instance of complainant’s mother. Complainant’s mother and grandmother were declared hostile witnesses after they departed materially from their written statements, it was also common cause that there was a day appellant was left with complainant at the house whilst the mother and grandmother went to town, there was a night complainant’s grandmother was telephoned by complainant’s mother telling the later what the grandmother had noted in complainant’s clothes and body. The police investigating officer did not know complainant’s family prior to the complainant of rape.

The court a quo identified the issue for determination as to whether appellant raped the complainant. The court a quo believed complainant’s testimony and credibility. The court a quo found the nurse’s evidence plausible and placed probative value on the medical evidence and concluded that legal penetration had been proved by the state once the medical report showed that the hymen was attenuated. The court a quo castigated the testimony of two medical doctors evidence which stated that the hymen was intact hence complainant was not raped. Although complainant’s mother and grandmother were impeached the court a quo extracted some of their evidence as supportive of the state case, moreso when it was clear that before trial commenced the two were trying to influence complainant to change her story about the rape allegations and exonerate the appellant. This crisis led to the placement of complainant under care and hospice. The court a quo was alert to the exercise of caution when dealing with evidence of minors or young children and referred to relevant precedents. She discarded complainant’s mother and grandmothers evidence that when the grandmother telephoned at night, the grandmother was asking about whether complainant was used to wetting her pants. The court a quo was satisfied from the evidence placed before it that both complainant’s mother and grandmother discovered the abuse and were changing their story to protect the appellant. Appellant went to the police first to try to dodge the investigations. During the examination of the complainant at the hospital on the first day the conduct of the appellant was that of a restless person. Complainant’s mother took complainant to the two doctors in a bid to obtain evidence to exonerate the appellant.

As regards the appellant the court a quo did not find appellant’s evidence credible, the court found appellant “blowing hot and cold” in his defence outline. The court disbelieved appellant when he stated the police detail influenced complainant to lie against appellant. The court a quo also queried why a little innocent girl would fabricate a story against the appellant if really nothing happened, moreso against her biological father. She concluded that children do not fantasize about being raped and other unusual horrific occurrences but their fantasy and play are characterised by their daily experiences. The court a quo also took notice of the fact that the defence counsel in his closing submission conceded that the two doctors called by the defence were mistaken as to what constitutes rape. Having looked at the totality of both the state and defence evidence the court a quo was satisfied that there was a sexual encounter which took place between complainant and appellant which resulted in the stretching of the hymen, appellant was then convicted. Appellant was not satisfied with the conviction and noted an appeal against the conviction only.

Grounds of appeal

Against Conviction

The Learned (Regional) Magistrate grossly erred by making a finding that the complainant was raped when there is contradictory medical evidence on record which she did not seek clarification on from an independent medical expert.

The Learned (Regional) Magistrate erred by accepting the evidence of the nurse and discarding that of two experienced doctors.

The Learned (Regional) Magistrate also erred at law by accepting the nurse’s improbable assertion that a stretched hymen can normalise and rejecting the doctor’s clear testimony that once a hymen has been stretched it can never normalise.

In the circumstances of this particular case the Learned (Regional) Magistrate erred by accepting the evidence of the state witnesses and rejecting that of the defence witnesses.

The Learned (Regional) Magistrate erred by taking into account the evidence of Esther Chiwanza and Elizabeth Chiwanza which evidence they disowned in court.

The Learned (Regional) Magistrate erred at law by ignoring the inconsistencies in the evidence of the complainant vis-à-vis the evidence of Esther and Elizabeth Chiwanza.

The Learned (Regional) Magistrate erred by making a finding that the complainant’s mother took the role of the investigating officer in a bid to try and exonerate the husband when all she did was to take the complainant to hospital when she was complaining of stomach pains and stumbled upon medical evidence which exonerated her husband.

The Learned (Regional) Magistrate ultimately erred by convicting the appellant when it was not safe to do so upon the available evidence.

WHEREFORE Appellant prays that:

The appeal succeeds.

That the conviction be set aside and substituted with an acquittal.

Submission’s by the parties

Mr Chinzamba for the appellant submitted that given two distinct opinions of the nurse on one hand and the two doctors on the other hand, the court a quo grossly erred by accepting the nurse’s improbable assertion that a stretched hymen will recover to normalcy once it has been stretched . The court a quo ought to have followed or adopted the provisions of s 232 of the Criminal Procedure and Evidence Act, [Chapter 9:07] where the court can subpoena a witness to come and give evidence. Counsel cited the matter of Maringirei v State and by failing to call that evidence given the discrepancies the court a quo erred and appellant referred the court to the matter of S v Mahlabi

Counsel for the defence further submitted that the court a quo erred in disregarding medical evidence led by the defence and accepted evidence of the state which was unreliable and hence no reasonable ought to have acted upon it to secure a conviction. The evidence led by the state, it was added by defence counsel, showed no signs of rape.

It was further submitted by Mr Chinzamba that the medical evidence produced in the court a quo did not show that complainant’s vagina had bruises or signs of damages to satisfy legal penetration and cited the matter of S v Tirivanhu and emphasised that there was no evidence of penetration. The appellant’s counsel added that given the fatalities in the medical evidence before the court a quo, the court ought to have believed medical evidence adduced on behalf of the defence or at least order a fresh examination of the complainant.

It was also submitted by the counsel that the court a quo erred in placing reliance on Elizabeth and Esther’s statements to the place. It was further submitted on behalf of the appellant that his conduct of going to the police and giving police complainant’s mother’s cellphone number are not consistent with that of a perpetrator. Appellant only suspected and feared that complainant could have been subjected to abuse and the court a quo had committed an injustice by convicting an appellant for showing care and love towards his daughter.

The defence criticized the conviction on the basis that there were inconsistencies in the evidence of complainant on one hand and her mother and maternal grandmother on the other. It was not clear to the defence whether on the day complainant was allegedly abused when the mother and grandmother had gone to town and upon their return, whether the two saw complainant outside playing or whether she was in the house with the appellant and further whether complainant was abused or touched by the appellant in the presence of her brother Owen. It was also averred that complainant told the court that she made a report to the mother about the abuse and yet the mother denied that in court. Complainant also allegedly told the grandmother that she was abused yet the grandmother denied that. It was submitted that the court a quo erred by accepting the evidence of the state ignoring these contradictions.

The defence submitted further that the state had failed to prove its case against the appellant beyond reasonable doubt, and to the defence proof beyond a reasonable doubt demands more than that a complainant should be believed and the accused disbelieved simply not enough evidence to prove the appellant’s guilty beyond a reasonable doubt.

On the contra the state submitted that all the essential elements of Rape as defined I s 65 (1) of the Criminal Code were proved beyond reasonable doubt and appellant was properly found guilty of the offence charged. It was further averred by the state that the court a quo relied both on a viva voce and medical evidence and the court a quo found the complainant and witnesses credible. The state added that factual findings of the lower court cannot easily be interfered with by an appeal court unless it is established that the findings of the lower court are so outrageous or irrational that no sane tribunal would act upon it as such an appeal court should not quash a conviction on the grounds of irregularity unless it considers that a substantial miscarriage of justice has occurred. It was further submitted on behalf of the state that an appeal court cannot lightly overturn a lower court’s judgment unless there are compelling reasons on record justifying it. Complainant gave evidence in closed circuit television and never departed from the material aspect despite that she was cross-examined by the defence, it was submitted by the state.

Mr Musarurwa went on to contend in the respondent’s heads that the court a quo did not err in extracting corroborative evidence from the impeached testimony. The court had to consider the evidence of all the witnesses, whether called by the state or defence and determine where the truth lay. It was also the state’s view the court a quo did not err in accepting the nurse’s evidence and reject the two doctor’s evidence and further that their evidence was in sync. The two doctors called by the defence examined complainant 2 to 3 months well after the sexual abuse of the complainant. The state moved for the dismissal of the appeal.

The Law

In the matter of S v Mazhambe and Others it was held:

“Proving a previous inconsistent statement does not make evidence out of the statement. If the witness admits the truth of it, the court may act on the other oral evidence, but not on the statement itself, conversely, the fact that the witness has had his evidence impeached by the production of a previous inconsistent statement does not necessarily mean that his adverse evidence must be rejected. The court must examine the evidence and decide whether or not to accept it.” (my emphasis)

It was further held that

“Declaring a witness to be hostile is a further or alternative step, which allows the witness to be cross-examined by the party who called him. A witness may be cross- examined unless the judicial officer is of the opinion that he is hostile. The mere fact that the witness has given evidence which is unexpected does not make him ‘hostile”, nor does the fact that he has previously made an inconsistent statement. A witness may be declared to be hostile if he is shown to bear a hostile animus towards the party who calls him and an intention to damage the party’s case. The effects of declaring the witness hostile is that his adverse evidence is effectively neutralised as evidence led by the party against itself, but it is not ipso facto to be disregarded. The evidence given, both under cross- examination by the party calling him and otherwise, may be considered and accepted or rejected on whole or in part, depending on the weight to be attached to it” (my own emphasis)

In the matter of S v Nduna and Another it was held

Where a conviction relies on the evidence of a single witness, discrepancies in the witness’s evidence are not necessarily fatal. The discrepancies must be of such magnitude and value that it goes to the root of the matter to such an extent that their presence would no doubt give a different complexion of the matter altogether. Discrepancies whose presence do not usher in that change should be regarded as immaterial and as such of no value in the determination of the truth or otherwise of the matter at hand”

In David Worswick v The State it was held:

“Whenever the court considers and assesses the evidence of a single witness, its first duty is to examine his evidence critically. In this regard it is salutary to pay attention to what Diemont, JA sound in S v Souls and Others

‘There is no rule of thumb test or formula to apply when it comes to a consideration of the credibility of the single witness. The trial judge will weigh his evidence, will consider its merits and demerits and having done so, will decide whether its trustworthy and whether despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that truth has been told. The cautionary rule referred to by D Villiers JP in 1932, may be a guide to a right decision but it does not mean “that the appeal succeed if any criticism, however slender of the witnesses’ evidence were well founded. It has been said more than once that the exercise of caution must be allowed to displace the exercise of common sense’” (my emphasis)

At p5 of the cyclostyled judgment the learned Chief Justice concluded:

“Because there were a number of contradictions in the evidence of the complainant I reject those factors which were unsatisfactory and accept these which in my view, were trustworthy. In this regard it was safe to accept those features which were corroborated by the evidence of the appellant and which I accept. It is important to approach the evidence of a single witness with caution, that is why the cautionary rule should be followed”

On the aspect of expert evidence, it was held in the matter of R v Nyamayaro.

In Re ANNAMA 1964 AD 142 Greenberg JA stated:

“It is clear that expert evidence is admissible ….. and once it is admissible the question in each case is whether its cogency either alone or with other evidence is sufficient to carry conviction, though numerous warnings are to be found in cases as to the extent with which evidence of this kind is to be approached”

In R v Theunissen it was held:

“In my opinion, and that is born out by authority, he could have deposed to the facts which he had found and upon which he relied as the foundation for the opinion but an opinion, unaccompanied by the foundation upon which it is based is again of no value to the judicial officer who has to make a finding on it”

In the matter of S v Williams En Andere it was held by the court:

“In the reported decision of the courts where it was required that reasons for the inferences drawn by expert witnesses should be given, this requirement was not relevant to the admissibility of the evidence but rather to the weight which should be accorded to the evidence. Where an expert witness who possesses special knowledge, skill and experience carries out a test requiring the application of such knowledge, skill and experience and thereafter draws an inference which are not mentioned by him, if the prima facie proof is not contested, the court is entitled to rely hereon. All that is required is that the court should be satisfied that the expert witness possesses the necessary qualifications and the competence to carry out the test and to interpret the results, thereof”

On the aspect of requirements of rape, more particularly on the issue of penetration, the position of the law is aptly captured by Kamocha J with the concurrence of Chiweshe J (as he then was) in the matter of S v Banda

“The trial Court concluded that there was legal penetration. What has come to be known as legal penetration is where the male organ is in the slightest degree within the females body. G Feltoe: A Guide to Zimbabwean Criminal Law (Reprint 1991) South African Criminal Law and Procedure Vol 113 ed by J R L Milton at 448 also states that the slightest penetration establishes the necessary element for liability of an accused person. The slightest penetration is given by the learned author as being entry (in the sense of res in re into the labia (the anterior of the female genital organ)”

At p 158 D the Learned Judge made a following important observation.

“It seems to me that if the appellant’s penis had slightly penetrated the complainant per valva and was rubbed around, there would have been some signs of tenderness or inflammation or even some slight bruising and swelling in view of the complainant’s age” (which age was 6 years) (my emphasis)”

According to The Random House College Dictionary attenuate means “to make thin, make slender or fine, to weaken or reduce in force, intensity, effect quantity or value, or to become thin, or fine or lessen”

Application of the Law to the facts.

The appellant avers that the court a quo misdirected itself by accepting the medical evidence of the nurse and discarding that of the medical doctors called by the appellant. The nurse is a qualified person to examine a survivor of rape in terms of s 278 of the Criminal Procedure and Evidence Act, [Chapter 9:07]. In addition to compiling a medical report she testified in court in terms of s 278 (11) of the same Act and gave oral evidence. The nurse holds a relevant course in the field of examining abused victims. She examined complainant immediately after the sexual assault was unearthed. She compiled a medical prototype accepted sheet relating to sexual offences, prepared by an expert and for the guidance of the courts trying matters of abuse and she made a critical and vitally relevant observation during examination and opined medically that complainant’s hymen was stretched or attenuated. The witness did not, observe that the hymen was broken partially or fully. The opinion of an attenuated hymen was based on the facts of the matter before the court a quo consistent with what complainant had stated that appellant used his belt to assault her on the genitalia that observation had cogency to the totality of abuse placed before the trial court.

There is no contestation of the stretched hymen from an expert or doctor who examined complainant on the very date the nurse examined complainant that is on 8 November 2019. If such contrary medical evidence was availed before the court a quo such evidence would have indeed created doubt that could have dented the credibility of the complainant as regards penetration. The two medical doctor’s only examined complainant two to three months later after the nurse had observed only a stretch and not a rapture. Probabilities are that the hymen was on the mend and it is true that the two doctors did not detect a broken hymen two to three months later. However it does not mean that on 8 November 2019 the hymen was not stretched or attenuated. The court a quo looked at the totality of all the factors and properly in my view accepted the evidence of the nurse and rejected that of the two doctors, in any case the court extensively gave reasons for the acceptance and rejection of the contradictory evidence on whether the hymen was stretched or not.

The appellant counsel largely submitted that once a hymen is broken it will never recuperate or be restored, though it may be so as the two doctors said, but in casu, no witness spoke of a broken hymen. Appellant could have focused on whether an attenuated hymen, can not recover and tighten again. I am satisfied that the court a quo did not misdirect itself and properly analysed its reasons for discarding the medical evidence of the two doctors.

The appellants impugns the decision of the court a quo on the basis that it rejected the evidence of the state witnesses. The complainant was adjudged by the court a quo to be credible truthful and unshaken under cross-examination. Appellant did not clarify and distil those factors relating to sexual intercourse or penetration where the complainant prevaricated or contradicted herself. Appellant concentrated on peripheral issues of whether the complainant was alone with appellant in the house while Owen was playing outside, whether she informed her mother and grandmother about the alleged sexual assault. Appellant did not spiritedly challenge evidence of the ‘belt’ and pain felt by the victim, that is the sexual intercourse.

It is common course that her mother and grandmother were impeached but nothing bars trial court from accepting discretely that part of evidence which shows that the offence was committed and disregarded that which is irrelevant. Both witnesses though impeached ended up selectively admitting some of the factors that pointed to the commission of the offence and consolidating complainant’s complaint. The court a quo rejected appellant’s evidence and provided reasons for that. Appellant could not explain why his beloved daughter would lie against him if nothing at all happened between them. The police details did not know the applicant’s family prior to the report and appellant could not advance a cogent reason why he police details would influence complainant to lie against her father. The court a quo looked at the complainant’s evidence adduced by the state and accepted state evidence and convicted the appellant. I discern no misdirection on the part of the court a quo.

The appellant admitted that he was left with complainant at the house, he confirmed that he was informed about the alleged sexual abuse by complainant. The reasons why the examination was done at the hospital was that complainant had been abused. Appellant is the one who informed the police about the sexual assault he is the one who gave police contact details of complainant’s mother and one wonders why police would train complainant to lay such devastating allegations against him. Oral evidence, medical documents and a finding of credibility by the court are all factors that led the court a quo to reach a conclusion that the appellant was guilty of the offence and convicted him. On both points of law and facts I detect no erring nor misdirection on the part of the trial court.

Disposition

The appeal be and is hereby dismissed.

MWAYERA J  agrees ________________

Mugadza Chinzamba and Partners, appellant’s legal practitioners

National Prosecuting Authority, for the respondent.