Thomas Madeyi v The State

### Preamble
Judgment No.SC 128/20
1
Criminal Appeal No. 397/18
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DISTRIBUTABLE 	(120)

THOMAS     MADEYI

V

THE     STATE

SUPREME COURT OF ZIMBABWE

GARWE JA, BHUNU JA AND MAKONI JA

HARARE: NOVEMBER 15, 2018 & OCTOBER 9, 2020

L Uriri with T Nzombe, for the Appellant

F Kachidza, for the Respondent

BHUNU JA:  This is an appeal against the whole judgment of the High Court sitting at Harare upholding the appellant’s conviction and sentence by the Regional Court on a charge of rape.

BRIEF SUMMARY OF THE CASE.

[1] 	The appellant was charged and convicted of rape as defined in s 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] by the Regional Magistrates Court, Eastern Division. In consequence thereof he was sentenced to 14 years imprisonment of which 4 years imprisonment were suspended on appropriate conditions of good behaviour.

[2] 	Aggrieved by both conviction and sentence, he appealed to the court a quo without success. He now appeals to this Court against both 	conviction and sentence.

[3] 	The appellant was a 44 year old male adult whereas the complainant was a female juvenile aged 10 years at the material time. He was a priest of the Anglican Church and a friend of the complainant’s family. He is alleged to have had sexual intercourse with the complainant twice without her consent, on an unspecified date during the month of December 2006. He was resultantly charged with and convicted of one count of rape.

[4] 	The genesis of the allegations against the appellant is that following the loss of their mother the appellant requested permission for the complainant and her brother to spend the school holidays at his home. This was sometime in December 2006. The complainant’s father agreed and the children went to stay with the appellant at his residence.

[5]	On an unknown date but during the month of December 2006 the 	accused is alleged to have been alone at home in his spare bedroom while the complainant was playing outside with other children. The State alleges that at around 19:00 hours, the accused called the complainant into his spare bedroom from where she was playing with other children under the pretext that he wanted to console her for the loss of her mother. Once she was in the bedroom he is alleged to have undressed her telling her that he was consoling her for the loss of her mother. He then lowered his trousers, lay her on the bed and had sexual intercourse with her without her consent.

[6]	After completing his purpose the accused is said to have warned her not to tell anybody about what he had done to her. The next day he is alleged to have repeated the same trick and had sexual intercourse with the complainant again   without her consent.  After completing his purpose he again warned her against telling anyone what he had done to her.

[7]	The complainant however belatedly reported the alleged sexual abuse to her boarding school matron Mrs Musara who doubled up as teacher and counsellor at the school. The report was made about 8 months after the event. The inordinate delay was further compounded by the complainant’s father who only reported the crime to the police 4 years later leading to the accused’s arrest.

[8]	The complainant, her father and Mrs Musara testified in support of the state case. There was however no eye witness to corroborate her evidence. Apart from medical evidence there was some other peripheral evidence implicating the appellant.

[9]	The complaint was examined by Dr Gwiza a qualified medical doctor who compiled a medical report on 12 August 2010. He concluded that penetration was definitely effected.

THE STATE’S EVIDENCE

[10] 	The State relied heavily on the complainant’s eye witness evidence which was backed up by medical evidence. It also relied on the peripheral evidence of persons to whom she reported the offence as is the norm in sexual offences. Her evidence was simple and straight forward, it bears recounting verbatim. This is what she had to say before the trial magistrate at page 35 of the record of proceedings:

“I was playing with other children and he (appellant) called me into the house to do some work. He called me into the spare bedroom to comfort me after the death of my mother. In the spare bedroom accused then removed my clothes. He ordered me to lie on top of the bed and then he lay on top of me. He raped me and told me not to tell anyone he inserted his penis into my vagina. I was lying facing downwards. His penis penetrated into my vagina. I felt some pain. Since I was afraid of him he continued what he was doing. The accused told me not to tell anyone since he said he was comforting me for the death of my mother. After that he told me to go and play with others. I noticed some blood on my vagina. I took a bath and went to play with other children. The following day he raped me again. He called me again. No one was there when he called me.”

[11] 	It is common cause that the complainant did not report the alleged rape within a reasonable time in the ordinary run of things. She only opened up 8 months later after her class teacher had noticed some strange unusual behaviour on her part. The complainant was exhibiting symptoms of poor memory, constipation and urinating in class. Her class teacher then referred her to Mrs Musara the school boarding matron and counsellor. It was only after being questioned by Mrs Musara that the complainant opened up and revealed that she had been raped by the accused in the manner revealed in her testimony before the trial magistrate. Mrs Musara confirmed that she questioned the complainant and she revealed that she had been raped by the accused.

[12]	The school authorities in turn reported the alleged rape to the complainant’s father who took 4 years to report the rape to the police. The complainant’s father gave evidence in support of the State case. It was his testimony that he knew the accused as his marriage officer, family friend and confidant. His late wife and the accused’s wife were the best of friends. Sometime in December 2006 the accused and his wife requested for the complainant and her brother to spend the school holidays with them. He agreed and the children spent almost the whole school holidays at the accused’s home.

THE DEFENCE CASE

[13]	The appellant pleaded not guilty to the charge. He denied ever having had sexual intercourse with the complainant as alleged or at all. He however admitted that the complainant was sexually abused as alleged by the State but denied being the perpetrator of the offence. He nevertheless admitted that the complainant was at his residence during the period she says he raped her. Despite that concession, it was his defence that the complainant might have been molested by someone else but he was now being used as a scape goat.

[14]	The appellant took issue with the sufficiency of evidence against him arguing that the uncorroborated evidence of the complainant is deficient at law to found the basis of a proper conviction.

[15]	In reinforcing his defence, the appellant raised a half-baked defence of an alibi saying that during the period the complainant was at his home he was away from home for two successive nights. That defence does not account for the remaining days the complainant was at his home. He further took issue with the inordinate delays in reporting the offence within a reasonable time.

[16]	To bolster his defence the appellant called Cathrine Kasvosve a 13 year old girl at the time. She was one of about 7 girls playing with the complainant outside the appellant’s house when the alleged rape occurred. Her testimony was that she did not hear the appellant calling the complainant into the house. It was her testimony that had the appellant called the complainant, she would have noticed because she was constantly monitoring her.

[17]	 He also called Ruth Nyirenda his maid. This witness sought to exculpate the appellant from any wrong doing by telling the trial magistrate that he could not have raped the complainant because he was not at home during her stay at appellant’s home. This is what she had to say at page 99 of the record of proceedings:

“There was never a time accused remained behind with the children since he was not there. During the children’s stay there was never a time when the accused’s wife was away. On allegations of sexual abuse on two occasions in succession, I did not notice anything and I did not leave the place. Complainant was not subdued during her stay at the accused’s house.”

She went on to state that the complainant could not have been raped under her watch because she was monitoring all the 9 children under her care as she went about her household chores.

[18]	The complainant’s brother who had accompanied her to the accused’s home for the holidays testified on behalf of the appellant. He was six years old at the material time. This witness could not remember anything pertaining to the commission of the alleged rape.

[19]	As regards sentence, the appellant attacked the lengthy custodial sentence imposed on him on the basis that the trial magistrate did not properly apply his mind to the appropriate sentencing principles.

ANALYS OF THE EVIDENCE AND APPLICATION OF THE LAW TO THE FACTS.

[20]	The essence of the appellant’s appeal is that the appellant’s conviction is not safe as it is founded on the involuntary complaint of a minor child made after a delay of 8 months.

[21]	Both the trial court and the court a quo found the complainant’s evidence to be credible and beyond reproach. That finding is consistent with a reading of her evidence and explanation of queries raised by the defence. The trial magistrate who had the benefit of observing the complainant in the witness’ stand commended her at page 19 of the record of proceedings as a credible, consistent and fearless witness. In his own words this is what he had to say:

“No doubt complainant was subjected to a lengthy cross-examination. Considering her age and the nature of the questions put to her, she remained consistent and fearless. I can sum up that the entire cross-examination was meant to find fault with the complainant or any other person.”

[22]	The veracity of her evidence is beyond question as it reads well without any signs of hesitation or uncertainty. Her assertion that she was raped was amply corroborated by medical evidence and the appellant’s admission that she was indeed raped. She explained that she delayed in reporting the rape because the appellant had threatened her not to report to anyone or else something bad would happen to her.

[23]	Given the complainant’s vulnerability as a 10 year old minor who was under the appellant’s care, it is believable that she was hoodwinked into believing that the accused was consoling her by sexually abusing her. His status as priest and close family friend must have overawed and confounded her. She cannot therefore be blamed for taking the accused’s threats seriously thereby failing to report the rape timeously until the discovery of her illness caused by the sexual abuse 8 months later.

[24]	In dealing with the aspect of the reasonableness or otherwise of the delay the learned judge a quo had this to say at page 10 of his cyclostyled judgment:

“As a result of threats offered to her soon after each incident of abuse, she had not reported the abuse to anyone. There is nothing abnormal in such conduct by a child of ten years. The court a quo in my view correctly assessed the difficulties put in her way by the abuse at the time.”

The learned judge’s finding of fact in this respect is consistent with circumstances of the case and beyond reproach.

[25]	There are no prescribed reasonable time limits within which a victim of rape must report the crime. Each case depends on its own factual exigencies and idiosyncrasies of the victim. Having regard to the complainant’s own peculiar circumstances, the delay of 8 months was neither unreasonable nor inordinate. That the complainant’s father further compounded the delay in reporting to the police is irrelevant. There is no prescribed time within which the crime of rape must be reported to the police. All that is required is that the crime be reported to a person she is expected to make the report to within a reasonable time having regard to the prevailing circumstances before prescription sets in.

[26]	I must now turn to consider whether the complainant’s complaint to Mrs Musara was voluntary or the result of coercion. A reading of her evidence shows that Mrs Musara handled the delicate matter with commendable expertise and compassion. Upon the medical authorities discovering that the complainant had been sexually abused, she did not pressurise her into revealing her assailant but gave her time to cool down and waited until she opened up on her own volition the following school term. This is what she had to say at page 50 of the record of proceedings:

“I made an effort to find out what had happened. I then asked who had sexually abused her. She cried to the extent that I did not want to pursue asking her. She then opened up in the third term when she had returned from the school holidays.”

[27]	The trial magistrate found that Mrs Musara was an honest and credible witness who was only discharging her duty as a pupil counsellor at the school. She therefore had no motive to falsely implicate the appellant who was a stranger to her. That factual finding is consistent with the evidence on record and as such beyond reproach. The judge a quo equally found no fault with the trial court’s assessment of Mrs Musara’s demeanour and credibility as a witness.

[28]	Thus in the absence of any credible evidence contrary to Mrs Musara’s evidence, the appellant’s unsubstantiated assertion that the complainant’s sexual complaint was prompted by any form of duress or coercion stands discredited .

[29]	The appellant admitted that the complainant was raped but denied having committed the rape. He speculated without evidence that she could have been raped by some other unknown person. His defence in this regard placed the identity of the complainant’s assailant in issue.

[30] 	It is however common cause that the complainant knew her assailant such that the question of identity could not have arisen unless she was deliberately lying against the appellant. Mrs Musara and the complainant’s class teacher who were central to the discovery of the rape did not know the appellant. They therefore had no reason to falsely implicate him. The question of mistaken identity is therefore farfetched, misleading and without any foundation. No reasonable court could have relied on such a defence.

[31]	The complainant revered the appellant as her priest, family friend and benefactor after the death of her mother. It is inconceivable and not in the least probable that she would have falsely implicated the appellant and shielded the real culprit had he not committed the offence.

[32]	Ruth Nyirenda, the appellant’s maid was obviously not telling the truth when she testified that the appellant could not possibly have raped the complainant because he was not at home at the material time. She could not have been telling the truth because her evidence establishes that she did not know when, where and how the complainant was raped. The complainant disputed that this witness was working for the appellant as his maid when she was raped. More precisely she disputed that she was present at the appellant’s home when she was raped.

[33]	Ruth also testified that the appellant could not have raped complainant because his wife was always present at home during the period when the complainant alleges that he raped her. The appellant did not however in both his defence outline and evidence in chief advert to the fact that his wife was present at home at the time the complainant alleges that she was raped. Consequently, he did not call her as a witness. What this means is that Ruth was not telling the court the truth when she said that the appellant’s wife was present at all material times when the complainant says that she was raped.

[34]	Given the inadequacies of Ruth’s evidence the trial magistrate cannot be faulted for believing the complainant and disbelieving this witness. Equally, the court a quo cannot be faulted for upholding the trial court’s finding of fact discrediting Ruth’s evidence.

[35] 	By the same token, the evidence of the complainant’s brother does not add any value to the appellant’s defence for the simple reason that owing to his tender age at the material time he had no independent recollection of the events surrounding the alleged rape.

[36]	In an attempt to discredit the State case counsel for the appellant sought to rely heavily on the case of Lawrence Katsiru v The State. Reliance on that case was seriously misplaced in that in the Katsiru case supra, the complainant was heavily discredited as a witness. She gave two contradictory sworn statements to the police. One saying the accused had used his finger to penetrate her and the other saying that he had used his penis to penetrate her. She lied to the trial court that she had no boyfriend who could have deflowered her only to admit that she had a boyfriend when confronted under cross-examination with irrefutable evidence. The complainant’s father had a religious schism with the accused thereby laying fertile ground for a motive to falsely implicate the accused as alleged by the accused

[37]	On the other hand in this case the complainant was found to be an unimpeachable honest and credible witness with no motive to falsely implicate the appellant. As previously stated, that finding of fact is beyond reproach.

[38] 	The appellant took issue with the non-application of the cautionary rule by the trial court. The learned judge a quo properly and effectually disposed of that issue by placing reliance on the dicta in State v Jackson and S v Banana. Both cases are authority for the proposition that the cautionary rule is a discredited rule of procedure that has since been discarded and is no longer part of our law. Indeed the rule is outdated and irrational in that it treats a complainant in a sexual matter as a suspect witness without any justification. The appellant’s conviction on the basis of proof beyond reasonable doubt cannot therefore be upset on the basis of a discarded rule of procedure which is no longer part of our law.

[39]	For the fore going reasons the appeal against conviction can only fail.

SENTENCE

[40]	It is trite that sentencing is to a large extent within the discretion of the trial court. The court a quo found no fault or misdirection on the part of the trial court in sentencing the appellant to 14 years imprisonment with 4 years suspended on appropriate conditions. The learned judge a quo praised the sentence as sending the right message to child rapists.

[41]	Considering that the appellant raped a vulnerable 10 year old girl twice in breach of his duty of care, his moral blameworthiness is of a very high degree indeed. He should consider himself lucky and thank his stars that he was not charged with two counts of rape. The appellant entered crime at the deeper end. The aggravating features in this case far outweigh the mitigating factors. Owing to his high moral blameworthiness, if the sentence errs at all, it errs on the side of lenience.

DISPOSITION

[42]	There being no misdirection on the part of both the trial court and the court a quo, this court finds that the appellant was properly convicted as charged. The sentence is appropriate though it tends to err on the side of lenience.

[43]	It is accordingly ordered that the appeal be and is hereby dismissed in its entirety.

GARWE JA:	I agree

MAKONI JA:	I agree

Kantor and Immerman, the appellant’s Legal Practitioners.

The Prosecutor General, the respondent’s Legal Practitioners.