Maxwell Mutasa v The State

### Preamble
1
HMT 78 -20
CA 12/20
---------


MAXWELL MUTASA

versus

THE STATE

HIGH COURT OF ZIMBABWE

MWAYERA and MUZENDA JJ

MUTARE 30 September 2020 and 5 November 2020

Criminal Appeal

J Fusire assisted by Ms Magama, for the Appellant

Mrs J Matsikidze, for the state

MWAYERA J: The appellant was arraigned before the Regional Magistrate, Mutare, facing allegations of attempted rape as defined in s 189 as read with s 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] after a protracted trial the accused was convicted of attempted rape and sentenced to 10 years imprisonment of which 3 years imprisonment was suspended on conditions of good behaviour. The appellant was dissatisfied with the conviction and hence he  lodged the present appeal.

The appellant relied on 3 grounds of appeal which I propose to summaries as insufficience of evidence, in consistencies in state witnesses evidence and failure to accept the appellant’s defence. For completeness the appellant raised the 3 grounds as follows:-

That the court a quo erred in convicting the appellant without sufficient evidence being led to secure the conviction

That the court  erred when it failed to conclude from the available evidence there were glaring inconsistencies from the state witnesses which would prove improbable to convict accused beyond reasonable doubt.

That the court erred in rejecting the appellant’s defence in its materiality.

The brief facts in forming the charge for which the appellant was convicted are as follows, on 14 October 2018 the complainant secured employment from the appellant who required her services as a maid. The appellant required the complainant to take care of his mother. Upon arrival at the appellant’s house the complainant found out that the mother was not there. It was indicated to her that the mother had gone to Harare and would return in a few days time. The complainant commenced work. She prepared supper which they partook. Thereafter, after bathing as per instruction from the appellant the complainant retired to bed in her own room. Later in the night the appellant entered in her room and dragged her to his room whereupon he pulled his trousers and underwear to  knee level. He further removed the complainant’s panties and tried to penetrate her. The complainant screamed and pulled up her clothes but no one come to her rescue. The appellant pulled the skirt down the second time and complainant continued to scream and she bit the appellant’s hand then he let her go. The complainant went outside where she spent the night. In the morning the complainant decided she could not take up the job so she left and made a report to her mother Rudo Rutsanga and subsequently to the police details.

The complainant’s version as discerned from the record of proceedings is clear and straight forward and it is corroborated by the recipient’s of the report on material aspects. The complainant alleged the appellant attempted to rape her and that he only let her go after she bit his hand and continuously screamed. That evidence and that she spent the night outside was not challenged. When the complainant decided to quit the job the following morning she proceeded to make a report freely and voluntarily to her mother a person to whom she is expected to make a report. The report was timeously and voluntarily made.

The complainant’s evidence on material aspects of how the alleged rape occurred was corroborated by the mother. It was clear from the mother and police officer who recorded the statement that complainant complained of alleged rape. That the recipients of the report did not remember whether the skirt was completely removed or removed to a certain level can not be viewed as an inconsistence vitiating the complainant’s version. The clear narration of attempted rape which was not accomplished because of the screams, struggle and biting of the appellant remained intact during cross examination.

The appellant seems in grounds of appeal to be questioning the credibility of the complainant and state witnesses. The court a quo has the prerogative to assess the evidence and credibility of witnesses. A close reading of the judgement of the court a quo reveal a clear analysis of the evidence of the state witnesses. The court held the complainant as a candid witness who has no reason to falsely incriminate the accused. All she wanted was employment.  She had no past history with the accused and she did not know him. In fact the evidence   about the manner of attempted rape and  where the incident occurred was held to be the truth when the court went for an inspection in loco. The accused had challenged that if it was true he dragged the complainant she ought to have had injuries like bruises because at his house there was rough floor. The visit by the court revealed otherwise. There was no rough floor. The inconsistence on the complainant and her mother’s version about the skirt having been burnt and being at home was not viewed by the court a quo as damaging evidence of attempted rape in an event the police did not recover the skirt. The complainant and mother’s evidence on the narration of how the appellant attempted to rape the complainant remained intact as it was not challenged. The appellant himself only argued he did not attempt to rape the complainant because no one heard the scream or cry. The court a quo which had chance to observe and hear complainant testify pointed out that the complainant had a hoarse voice such that the screams would not have been sharp. In an event those who were supposed to hear the screams, Maphosa and wife’s room was not close to the accused’s bedroom. The court a quo had the opportunity to assess the scene of crime during the inspection in loco.

The appellant could not explain satisfactorily to the court a quo why he changed and decided to call the complainant’s mother for the complainant to come on  the day she came yet his mother she was to look after was not yet back. Further the court a quo could not appreciate why the appellant changed his version that he interviewed the complainant when she was preparing supper to saying he invited her in his bedroom for an interview. The court did not hold the appellant as a credible witness and thus convicted on the basis of credible evidence of the state witnesses. It is settled that the trial court is better placed to assess evidence and credibility of witness as it has the opportunity to see and hear the witnesses. In the present case the court assessed not only the state witness but the accused’s evidence and had an opportunity to carry out an inspection in loco. See Hwande v The State HH 39/05 State v Isolano 1985 (1) ZLR 62. Further it has been stated in several cases that the appellate court should not just interfere with the decision of the lower court upon mere asking. The factual findings of the lower court cannot easily be reversed by the appellate court unless the findings are so outrageous and or irrational considering the evidence on record. See State v Mashonganyika HH 131/18 Tendai Chigodora v The State HH 348/01 and State v Gore 1991 (1) ZLR 180. It is clear from the cited case that only when there is substantial miscarriage of justice is it  just and proper to quash a conviction. In the present case the trial court properly assessed all the evidence outlining the evidence it accepted and rejected. A lot of aspects were common cause as the accused did not strictly challenge the complainant’s version on material aspects. It was clear the complainant and accused were not known to each other. It is also not in dispute she only went to his place for employment but just lasted a few hours as she had to flea for safety. The sudden departure is consistent with fleeing from the change occasioned by the attempted rape. Given such circumstances we cannot find fault in the court a quo’s decision.

It is correct that the court at some instances made personal remarks and comments for example the utterances and perception that the appellant sole motive was to rape complainant as he pretended to offer employment to unsuspecting girls with an intention to pounce on them. Such emotive assumptions and perceptions considering the complainant herself was looking for employment as a house maid taint proceedings.  However in this case the perception did not detract the clear evidence of attempted rape by the appellant on the complainant. In any event that perception could amount to procedural irregularity not sufficient to vitiate the totality of proceedings and warrant interference with clear conviction anchored on evidence during an appeal.

It is apparent from the record that the conviction was clearly established beyond reasonable doubt on said evidence on record. All the grounds of appeal which speak to insufficiency of evidence upon which conviction is based cannot be sustained. The appeal has no merit and it must fail.

Accordingly it is ordered that

The appeal against conviction be and is hereby dismissed.

MUZENDA J Agrees ________________________________

National Prosecuting Authority, State’s legal practitioners

Legal Aid Directorate, Appellant’s legal practitioners