Charles Sandaware v The State

### Preamble
1
HMT 75-19
CA 76/19
---------


CHARLES SANDAWARE

versus

THE STATE

HIGH COURT OF ZIMBABWE

MWAYERA and MUZENDA JJ

MUTARE, 9 October and 7 November 2019

Criminal Appeal

Appellant in person

Ms TL Katsiru, for the respondent

MUZENDA J: On 26 May 2016, appellant was arraigned at the Regional Court sitting at Rusape facing Rape as defined in s 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The State alleged that on the date unknown to the prosecutor but during the month of April 2016 and at Chizunza Village, Chief Makoni, Rusape, appellant unlawfully and knowingly had sexual intercourse with Talent Makolo, a female juvenile, aged 11 years, once without her consent or realising that there is a real risk or possibility that she may not have consented to it.

The appellant pleaded not guilty. The appellant gave a lengthy defence outline and principally pointed out that he could not have initiated the lodging of the rape case with the police if he had raped the complainant. He also indicated that in 2016 he was in South Africa thereby raising an alibi. He was about to return to South Africa when he was appraised about complainant’s plight and it was appellant who went to the police to file a complaint to the effect that the complainant was sexually molested but the mother was not forthcoming on reporting the matter to the police.

According to the State outline, the complainant was 11 years in 2016 and appellant is her uncle. On an unknown date but during the month of April 2016 at around 1100 hours complainant was alone manning the garden. The appellant approached her and asked her the whereabouts of her parents and she told appellant that they were at home. Appellant is said to have ordered complainant to sit down and she refused. Appellant held her left hand, forced and laid her on the ground, raised the victim’s skirt and removed her pant. Appellant unzipped his trousers, pulled out his erect penis, inserted it in complainant’s vagina and had sexual intercourse with her once without her consent. After the act, appellant allegedly threatened the complainant that he will shoot her with a gun if she disclosed the matter to anyone. Complainant did not tell anyone about the matter.

On 12 April 2016 around 1000 hours, appellant called complainant’s mother one Catherine Sandaware to his home. Catherine Sandaware, in the company of complainant proceeded to appellant’s home. Upon arrival the appellant asked complainant’s mother if she knew that complainant was raped. Complainant’s mother asked appellant as to who had raped the complainant but the appellant suggested that he wanted to take complainant for medical examination. Complainant’s mother asked complainant as to who raped her but she refused to disclose. Complainant’s mother took her daughter back home and further probed about the identity of the person who had raped her, complainant then revealed that she was raped by the appellant. Complainant then took her to Rusape General Hospital for medical examination to ascertain if she was raped. She was medically examined and the medical report confirmed sexual abuse.

The appellant was convicted by the Regional Court on 3 October 2016 and sentenced to 15 years imprisonment of which 2 years imprisonment was suspended for 5 years on the usual conditions of future good behaviour.

On 22 February 2018, after having been granted condonation for late noting of appeal by this court, the appellant filed his notice of appeal and outlined grounds of appeal as follows:-

As Against Conviction

On point of law the trial court erred in convicting appellant when in actual fact the prosecution had failed beyond reasonable doubt that appellant’s defence did not apply. See s 12 (4) of the Code a “peremptory provision” concerned with evidence raising a complex defence to the charge.

The Honourable trial court erred when it convicted the appellant yet had not only a probable defence but a highly probable defence which was not rebutted by the State.

The court a quo erred in law in convicting on a balance of probabilities instead of the usual standard of proof beyond a reasonable doubt as clear from the court’s language.

The trial court erred in convicting applicant on a mere fact that he had a gun when it was public knowledge that he had a gun.

The trial court erred when the court proceedings commenced in the presence of both parties, State witnesses and defence witnesses even well after the appellant gave his own defence outline and cross-examination with the complainant.

The trial court erred when it failed to assist the appellant so that he be provided with State papers. The trial kick started and ended with the State having neglected to give appellant the said documents in order that he craft his defence. The said infringement was contrary to the provisions enshrined in the C.P. and E Reform Act, Chapter 9:07.

The court erred when it convicted the appellant notwithstanding that it was a clearly fabricated issue with its foundation having borne of the rival between brother and sister when the sister had failed to report the rape issue.

The trial court erred when it accepted a medical affidavit which was a year beyond the alleged date to which the crime was committed.

It was the court’s error in disbelieving the appellant’s version even though there was a high probability that what he said was true.

As Against Sentence

The Learned trial officer erred when he said or uttered a judgment which satisfied the needs of the society and neglected the needs of the appellant.

The trial officer erred when he overrode mitigatory factors with the fact that that appellant was facing a serious offence.

The trial officer failed to take into consideration that appellant was not medically fit such that a long custodial sentence was going to militate against his health.

The trial officer failed to take into consideration that appellant was a good character who have been the custodian to the said children who belonged to his sister.

The trial officer erred when he failed to specify the amount of time he had remitted for each mitigatory factor.

The trial officer erred when he paid lip service to the said mitigation but failed to remove a single hour.

For the Learned Regional Magistrate to convict the appellant, he relied on the following evidence from the State witnesses: Talent Makolo (complainant) told the court that when she was in the garden when appellant arrived. He called her to go where he was, she obliged. He then enquired as to the whereabouts of the complainant’s parents. He was told that both were at home. Appellant also enquired as to the whereabouts of Nimrod, he was informed that he had gone to herd cattle. Appellant is said to have held complainant’s hand and ordered her to sleep on the ground and she refused. She was made to lie on the ground, appellant produced his manhood, removed complainant’s pants and then did a “shameful thing” and threatened to shoot her with a firearm if she discloses the matter to anyone. She told the court that she bled and later told the witness that if anyone asks her about the rape, she should say it was Bee, her step brother. Complainant under examination told the trial court that appellant had a gun (pellet) on that day. The garden is 100 metres from the homestead and she was raped during day light, in the afternoon. She also stated that there were no people at the homestead. After the rape she did not tell anyone.

The offence later surfaced when the appellant summoned complainant and her mother to his house. Upon the two’s arrival, appellant told complainant’s mother that complainant was raped by someone the previous year. Appellant did not identify the perpetrator to the complainant’s mother but disclosed to the mother, that he had been tipped by someone. On that day complainant’s grandmother examined her private parts and confirmed that complainant had been ravaged. She then told those at the meeting that it was Bee who had raped her. At that meeting, appellant told complainant’s mother that one Lucky was giving her some maize and chicken as payment. However complainant later told her grandmother about the complainant’s sexual encounter with the appellant. The grandmother then informed the mother of the complainant. She recalled being raped by appellant the previous year, 2015 but could not remember the month.

Under cross-examination by the appellant she told the court that her step father was curing tobacco at home on the day she was allegedly raped. Her mother did not notice that she had been raped. During questioning by the court she indicated that she was doing Grade 2 when she was raped. At the time of trial she was doing Grade 3. Her grandfather reported the matter to the police and she pointed out that it was the appellant who lodged the report (p. 30 of the record). Appellant reported the matter because complainant’s mother was not reporting, the reason being that complainant’s mother feared that if she reported the matter, the marriage would be destroyed. She denied that she was raped in April 2016. She told the police that she was raped the previous year, she does not know where police got the date of rape as April 2016. Complainant’s mother was once arrested because she was not reporting the rape matter and the person who caused the mother’s arrest was the appellant.

On matters arising from the court’s questions, the appellant informed complainant that in 2015 he was in South Africa, he last came to Zimbabwe long back in 2014. His last visit was when he found complainant’s parents sitting under an avocado tree and on that last of his visit, complainant was not at home. He insisted that the distance between the homestead and the garden was 50 metres.

The second witness for the State was Catherine Sandaware, complainant’s mother. Appellant is her brother. She told the court that appellant invited her to his homestead and when she arrived at his homestead he told her that complainant was “raped last year in 2016” (p. 32 of the record, line 4). Appellant was at his mother’s homestead when he invited the mother of the complainant. Appellant told complainant’s mother that he had heard about the rape from people in the village. She confirmed that the grandmother examined the complainant and told her that she had been sexually abused. Complainant told the gathering that it was Bee who had raped her. Bee’s full name was Blessing, complainant’s mother’s step son. When the witness heard about the name Blessing she asked appellant what he thought about the matter. Appellant directed the complainant’s mother to report the matter to the police. Complainant’s mother counter-proposed that appellant should go to the police since he was the one who has brought about the information. Appellant told her that he was about to go to South Africa, complainant’s mother told appellant that he cannot go to South Africa before finalising the issue. She left for her homestead. Later she was told by Tamari Shadaya that complainant was raped by the appellant, she did not volunteer the information but was asked by Shadaya. She also told the court that appellant had influenced her to implicate Blessing if ever she was asked. The witness then went to Matsika Police Station and there she was referred to child line. When the witness was asked about the date of the alleged rape by the prosecutor, she indicated that the months of April 2015 related to the date when appellant last visited Zimbabwe. In 2015 appellant visited the mother of the complainant at her homestead and complainant was in the garden.

Under cross-examination by the appellant she confirmed that she knew about the rape from the appellant. However after complainant’s examination by the grandmother, she told the mother that it was Blessing who had raped her. Tamari Shadaya was called as a witness. Appellant is her brother-in-law and complainant is her aunt’s daughter.

The witness told the court that on a certain Wednesday she was giving complainant a lesson telling her that it was bad to lie. She told the complainant that she was supposed to tell the truth, it did not matter who the person was. Complainant then told the witness it was the appellant. She then related what complainant told the court about the rape. It was the first time for the complainant to mention the appellant’s name as the perpetrator of rape upon her. The witness was told by complainant that complainant could not open up because she had been threatened by the appellant.

The following factual conclusions are not in dispute:

The complainant supplied the alleged date of rape as April 2016.

The complainant’s mother did not know the rape allegations before appellant revealed them to her at a family gathering.

After the revelation about the sexual abuse, complainant’s mother did not go to the police to report the matter and she was arrested for that conduct.

Complainant first revealed appellant’s name to Tamary Shadaya after she spoke to the complainant.

It was Tamary Shadaya who told the complainant’s mother that appellant was the one who raped the complainant.

Appellant is the one who played a key role in reporting the matter of rape of the complainant to the police.

There is no evidence of complaint of rape by the complainant.

The bulk of appellant’s defence outline and what happened leading to the reporting of the rape case to the police is materially supported by Catherine Sandaware, complainant’s mother.

In his judgment, the Learned Regional Magistrate indicated that on a date unknown to the prosecutor but sometime in 2015 the complainant was at the garden. The charge sheet as well as the State outline invariably show that the alleged rape occurred in April 2016. The year 2015 only emerged during the evidence in chief of the complainant and the trial court actually sought to clarify the issue of date of occurrence from both the complainant and her mother. The prosecution on the other hand after becoming aware of the new date did not apply for amendment of the State papers to constitute and incorporate new evidence from the witnesses. The appellant was equally not alerted by the court so as to adjust or amend his defence outline. He had prepared hid defence outline on the understanding that the alleged rape had occurred on an unknown date in April 2016.

In my view, in order for the appellant to receive fair trial the record ought to have reflected that the court did explain to him about this change of dates and then establish from the appellant whether he wanted to add or subtract the content and context of his defence. Failure by the Learned Regional Magistrate to do that was an irregularity more so when it proceeded to deal with the events that could have happened in 2015 yet the appellant had premised his defence on the events of April 2016.

In paragraph 3 of page 11 of the record of proceedings (3rd line) the Learned Regional Magistrate wrote:

“The complainant went on to report to her mother, Catherine Sandaware and the matter was later reported to the police resulting in accused person being arrested.”

The record of proceedings as already dealt with herein is clear that the report was not made to complainant’s mother but to Tamary Shadaya who then informed Catherine Sandaware. It is also abundantly clear from the record that it was the appellant who went to the police to report the matter after Catherine Sandaware had sat on the matter. An examination of the foregoing conclusions by the trial court exhibits a lackadaisical approach to factual issues not accurately deduced from the record and may palpably lead the court to convict on wrong factual basis. Judicial officers must endeavour to correctly make deduction from facts that are supported by evidence on the record of proceedings.

The crucial question for determination in this appeal is whether the court a quo correctly convicted the appellant given the circumstances of this matter. As has been already observed the appellant summoned Catherine, complainant’s mother and enquired from her as to whether she was aware that complainant had been raped. Further, he also indicated at that meeting that Catherine Sandaware was receiving some items from Luckmore as a form of restitution to the rape. Appellant from then on proposed and insisted to the complainant’s mother that she should go to the police to lodge a complaint of rape on behalf of the complainant. Catherine Sandaware refused and asked the appellant to go to the police and file the report. Appellant did and even requested for Catherine’s consent to release complainant so that appellant take her for medical examination. Catherine indicated to appellant that he could not go with complainant in the mother’s absence. Appellant eventually went to the police to file a report for rape. Catherine Sandaware, according to the complainant was arrested by police for failure to report the rape allegation.

Events turned totally averse to the appellant’s side when he was implicated as the perpetrator. The whole story is stranger than fiction in my view. In the matter of S v Ponder,   korsah ja observed that:

“Supportive evidence is sought usually in such matters as: the behaviour of the victim soon after the incident, that there was an immediate report of the incident and the behaviour of the culprit after the incident.”

Assuming for a moment that the complainant was raped in 2015, she did not volunteer to anyone even to her mother that she had been raped. During the time appellant was in South Africa, she did not tell anyone about the alleged sexual assault. After the family meeting she did not confide to her mother about the rape by the appellant. She was then given a “lecture” by Tamary Shadaya about the need to tell the truth, then she revealed appellant’s name as the culprit. Tamary Shadaya attended the family meeting where the appellant pointed out that the complainant had been raped, so she was not a stranger. We are not told how close Tamary Shadaya was to the complainant so that she would have opted to tell Tamary Shadaya and not tell her biological mother.

In the matter of S v Kaseke, korsah ja held that:

“The importance of an early complaint is that it supports the allegations of a sexual attack because it shows consistency of conduct on the part of complaint.”

In the matter of S v Zaranyika , Gillespie j held that:

“With regards to evidence of complaint, both the promptness and spontaneous or voluntary nature of the complainant are important elements in rendering a complaint admissible. Where the complaint is induced by a threat or by inducement by questioning of a leading or suggestive nature, its voluntary nature is destroyed and it becomes inadmissible.”

In casu, the complainant did not voluntarily opt to state what happened to her in the garden. Even though she says she had been threatened by the appellant but after the meeting she at least ought to have told her mother about the appellant. The mother of the complainant also surprisingly opted not to go to the police. The conduct of the appellant judged in its own weird perspective would be an affront to common sense and rather would like inexplicable if not implausible to an ordinary assessor of the matter. Unfortunately the scanty analysis of the matter in the trial court’s judgment deliberately avoided a separate critique of the appellant’s defence, the State witness and the risk of false incrimination.

The conduct of Catherine Sandaware leaves a lacunae in her evidence. Why did she appear disinterested in the matter and left the appellant to spearhead the reporting of the alleged rape? Why did not she challenge allegations by the appellant that she was receiving gifts from Luckmore in a bid to conceal the rape? Why would Catherine not supply appellant with Blessing’s phone numbers? What was false about Blessing having possibly violated complainant that would have created a doubt in Tamary Shadaya’s mind that made her think complainant was lying? How did Tamary Shadaya convince complainant to reveal the name of the appellant as the culprit? She would not rule out the possibility of collaboration between Catherine, complainant and Tamary Shadaya, more so on Catherine that if Blessing was going to be arrested that would have destroyed her marriage. The Learned Regional Magistrate in his judgment did not practice a cautious approach to the entire matter, if he did, he did not exhaust and possibly logically reach a deductive conclusion at them and then discard appellant’s version.

In S v Magaya, Gillespie j observed:

“What he must do, if he is to display, a properly cautious approach, is to consider what possible danger of false incrimination, if any, is revealed by the individual circumstances of any case and then consciously to enquire into whether that danger can be eliminated as a reasonable possibility.”

The Learned Judge continued

“This special care, properly understood, does not involve any preconception that the witness is a liar, for less any bias against women. Moreover, as was pointed out by flemming djp in S v M, supra, it necessitates no different approach as to the cogency of any rape of evidence. All that is required is that there be:

‘A conscious advertence to the risk, as it may be demonstrated by the peculiar circumstances of the case, of false incrimination. Some further significant feature or evidence is to be sought, external to the unsupported evidence of the complainant, and which served to satisfy that the danger of false incrimination arising in any particular case is so remote and illusory as not to constitute a reasonable doubt.’

‘The admonition to caution operates only in that the trial court must maintain an awareness of the risk which (occasionally unobtrusively) is presented by the specific situation coming before the court.’”

On page 13 of the record, (3rd paragraph) the Learned Regional Magistrate dismissed appellant’s version that complainant and her mother fabricated the allegations against appellant, but came short of analysing the conduct of the complainant’s mother as already dealt with herein.

In the S v Magaya case (supra) the Learned Judge remarked thus:

“Not only were false reports probably made but they deceived the magistrates who did not proceed with caution. There can be no sensible objection to requiring of a judicial officer conscientious consideration of the likely risk of false information, such as it may be, and to ensure that is excluded before reposing his complete confidence in a complainant. Although it may be that in many cases it needs no formalistic cautious approach to arrive out the correct conclusion, nevertheless, should such an approach be properly adopted, error would almost certainly be avoided.”

In S v Makanyanga, Gillespie j held:

“A conviction cannot possibly be sustained unless the judicial officer entertains a belief in the truth of a criminal complaint, but the fact that such credence is given to testimony for the State does not mean that conviction must necessarily ensue. Similarly, the mere failure of the accused to win the faith of the bench does not disqualify him from an acquittal. Proof beyond a reasonable doubt demand more than that a complainant should be believed and the accused disbelieved. It demand that a defence succeed wherever it appears reasonably possible that it might be true. This insistence upon objectivity far transcend mere considerations of subjective persuasion which a judicial officer may entertain towards any evidence. The administration of justice would otherwise be the hostage of the plausible rogue whose insincere but convincing blandishments must prevail over the stammering protestations of the truth by the diffident, frightened or confused victim of false incrimination.”

On p. 232 B-C the Learned Judge added more crisply:

“Whatever it may be that gives rise to the possibility of false incrimination should be identified by the judicial officer and addressed in such a way as shows that he was aware of the danger but considered that evidence extraneous to that of the complainant or other suspect witness removes the danger. In exceptional cases, the manifest mendacity of the accused concerning a fact established to the court’s satisfaction might provide the required confirmation; and there are even some situations where the accused has not been proved to be lying but where the merits of the complainant and the demerits of the accused are beyond question.”

A close analysis for the appellant’s defence outline, his cross-examination of State witnesses and his evidence in chief shows a glaring consistency right from the day he was arrested to show that he could not have been so gullible and naïve to openly launch a police report about rape and then foolishly want to be arrested yet he had all the time in the world to run to South Africa where he was employed. The conviction of the appellant is also not safe when one looks at the fact that the complainant told the trial court that she was ravaged in 2015 and only wait to be probed by the appellant in 2016. In the Makanyanga case (supra) gillespie j held further

“Evidence of complaint in sexual cases is admissible as an exception to the rule against evidence of prior consistent statements in order to show the consistency of the complaint and lack of consent. But it may be received only on certain conditions, in particular, that the complainant must have been made at first opportunity after the offence which reasonably offers itself what constitutes reasonableness promptness depends on the circumstances. Such a complaint would not constitute corroboration in the proper sense of the word, though it could possibly constitute a significant factor in deciding whether the danger of false incrimination has been excluded.”

Complainant did not tell her mother. She did not volunteer any statement to Tamary Shadaya but was induced to narrate what could have happened to her. The statement stated by her mother as one coming from her and that repeated by Tamary Shadaya, fall shy to the statement ordinarily expected from a complainant of rape, which must be consolidated natural and voluntarily preferred to show absence of consent by the complainant.

If I am satisfied that the conviction and sentence of the appellant by the court a quo was not proper in the circumstances, the conviction and sentence of the court a quo is set aside and the following order is returned.

The appeal be and is hereby upheld.

The conviction and sentence are set aside.

The accused is found not guilty and acquitted.

MWAYERA J agrees_____________________

National Prosecuting Authority, respondent’s legal practitioners