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N v Rex (16/1999) [1999] SZCA 15 (15 December 1999)






                 
                                                                        CRIM.APPEAL 16/99

IN THE MATTER BETWEEN:

N

Vs

REX

CORAM:                              MATSEBULA J.
                                             MASUKU J.

For Appellant                               : In Person
For Crown                                   : Ms S.M. LaNgwenya


JUDGEMENT
15/12/1999


The Appellant was convicted by the Senior Magistrate sitting at Nhlangano to eleven years (11) imprisonment after finding him guilty of one count of the Crime of rape. The Appellant had initially been charged of two counts of rape, in that he had had unlawful intentional sexual intercourse with one A without her consent at Mhlabuyaduma on the 29th April, 1998.

In the alternative count, he was charged with incest in that on the 29th April, 1998, he did have unlawful and intentional sexual intercourse with A , the accused being a father to the said A and was thus legally prohibited from marrying her.

In respect of the second count, the Appellant was charged with rape of the said A , alternatively incest in that he had unlawful and intentional sexual intercourse with her on the
30th April, 1998.

The Appellant lodged an appeal against conviction on the following grounds:-

1.      
The court failed to summon the doctor to verbally state before court his findings pertaining to his examination to the complainant thereby denying appellant to cross-examine him.

2.      
The Doctor’s report which was unaccompanied by its source states categorically
that there was no indication of sexual intercourse, and physically, complainant did
not show any signs of assault much to the contradiction of the complainant who said a knobkerrie was used to force her to submission including a knife.

3.      
Both exhibits could not be brought before court to strengthen the prosecution case
which sends a signal that the whole case was a mere fabrication.

4.      
The complainant failed to report her ordeal at the nearest Police Station at
Hlatikhulu or neither to the neighbours who could have assisted her in court to strengthen her allegations but preferred to travel to B where her mother resides.
        
5.      
P.W.2 confessed in court under cross-examination that I, the appellant merely
disciplined complainant for having spent a number of nights with a certain
C whilst complainant was still under the age of twenty one which is not tolerated at my homestead.

6.      
The court did not want to accept the fact that this was a frame by the
complainant’s mother and a way of getting back at me for having separated with her in 1996, October for adultery.

I propose here and now to deal with these grounds of appeal.

GROUNDS 1 AND 2

According to the record of proceedings, the following appears at page 29, line 3.

         “Public Prosecutor: Applies to hand in the Medical Report without calling the Doctor
         who compiled it.

         The report is read to accused who says he does not object to the application.
         The Court grants the application.
         The Medical Report is marked Exhibit ‘A’.”

The application of the Prosecutor for the handing of the report was made in terms of the provisions of Section 221 of the Criminal Procedure and Evidence Act, 1938 (hereinafter called “ the Act”). It is clear that the report was read to the accused and he understood the contents thereof. He thereafter signified that he had no objection to the same being handed in, thus obviating the need to call the Doctor. The Appellant cannot now be heard to complain that he was denied a right to cross-examine the Doctor. He cannot be allowed to hunt with the hounds and run with the hares at the same time as it were.

Contrary to the Appellant’s statement in ground 2 that the report does not show any indication of sexual intercourse, the report does catergorically state that the hymen was absent and further states that medical examination was painful. At the end the Doctor opined that sexual intercourse was possible. The Appellant however correctly states that the said report does not confirm any assaults on the body of the complainant in view of her evidence that she was assaulted with a knob-kerrie.

There is no explanation for this discrepancy. I have difficulty relying on the medical report for other reasons. The entry thereto purports to have been made on the 4th May, 1998, a few days after the rape but the stamp affixed thereon bears the date 21st August, 1998, some four months later. No explanation in this regard was forthcoming. It therefore becomes a matter of surmise as to which date the examination was actually carried out.

One therefore has to have recourse to the evidence led and assess the credibility of the Crown’s evidence in regard to the question of whether sexual intercourse occurred. Regarding the rape, PW III, the complainant stated that her father, in the absence of her mother, removed the bed on which she and her sisters slept and placed it in his bedroom and ordered the girls to sleep in his bedroom.

On the 29th April, 1998, he ordered PW III to take his supper into his bedroom. Later, the Appellant asked PW 3 who she was with earlier and when she said she was with her younger brother, he began to assault her with a knobstick saying she must tell the truth. He also assaulted T PW 3’s brother. After sometime, the Appellant questioned PW 3 as to which boy she was in love with and said he wanted to inspect her in order to see if she had had sexual intercourse. He told PW 3’s two sisters and brother to leave, which they did. Appellant then ordered PW 3 to lie on his bed and he said he would insert his finger into her vagina to ascertain whether PW 3 had sexual intercourse before. He then ordered PW 3 to have sexual intercourse with him and she refused. Appellant then assaulted and threatened her with a knife. He dragged her into his bed and she shouted as a result of which her brother M came and he pushed M out as he threatened him with the knife and an axe. He assaulted PW 3 further and then proceeded to have sexual intercourse with her which was painful. She said she noticed that she was bleeding from her vagina after he stopped his exploits. He ordered PW III not to leave his bed and he locked her in the bedroom when he returned to have sexual intercourse with her again. He raped her on three occasions that night.

On the 30th April, 1998, the accused said he wanted to apologise to PW 3 for what had happened the previous night but wanted her to be close. She slept and after some time, she felt the Appellant next to her and he pulled her to his bed, removed the panties. She shouted but he closed her mouth and had sexual intercourse with her, saying it was his manner of extending his apologies. On the 30th May, 1998, PW III went to report the matter to her mother’s family.

Aspects of this evidence was confirmed by PW 3’s brother and sisters. The learned Magistrate was impressed with the Crown’s evidence, stating that they were unshaken under cross-examination. It was the learned Magistrate’s finding that it was safe to rely on PW 3’s evidence as it was sufficiently corroborated. I agree therewith.

It is clear therefore that even in the absence of the medical report, there was still sufficient evidence on the basis of which a verdict of guilty could be properly returned. I find the first two grounds of appeal to be totally without merit and I accordingly dismiss them.

GROUND 3

That the exhibits were not brought to Court to strengthen the prosecution’s case which clearly show’s that the Crown’s case was a fabrication. There is no indication as to which exhibits were not brought to Court. The knife was however brought to Court. The evidence of PW III was very clear and was found to be truthful and reliable by the Magistrate and I have no reason to differ there from. The Crown’s case even in the absence of the exhibits (whichever they are) seems strong.

The Appellant, with well calculated machinations removed the girls’ bed into his own bedroom for the purpose of gratifying his sexual appetite at the expense of his own daughter. He proceeded to assault her which is confirmed by his other children. The Appellant said that he was disciplining her for fraternising with boys, which explanation is not acceptable having regard to the ultimate result. It was never put to any of the Crown’s witnesses by the Appellant that the whole case was a fabrication and such an accusation should not be allowed to be made for the first time on appeal. I therefore hold that this ground should like wise fail.

GROUND 4

That the complainant never reported the rape to the Hlatikulu Police or to the neighbours but went to B to report the same to her mother. There is nothing wrong with the complainant reporting the matter to her mother, who is the closest person to whom she could report, especially where it was a matter of such a sensitive nature which involved her father. PW 3 was never asked by the Appellant as to why she did not report the ordeal to the Hlatikulu Police or the neighbours. She may have had a plausible explanation therefor. I find no substance in this ground. It must accordingly fail.

GROUND 5

That PW 2 confessed under cross-examination that the Appellant merely disciplined PW 3 for spending some nights with one C although she was under aged. PW 2 did confirm that PW 3 said she had sexual intercourse with the said C. However, when one looks at PW 3’s evidence, she was asked by the Appellant which boy she was in love with. She said she was not in love with any. The Appellant then began to assault her with fists and open hands. Because of the assaults, she ended up saying she was in love with C. PW 2 did not say PW 3 spent nights at C’s place. The explanation of the assault by the Appellant is not convincing in view of the unshaken evidence of the Crown. Even if PW 3 did have amorous escapades with boys, that did not entitle the accused to have sexual intercourse with his own daughter. This ground must necessarily fail.

GROUND 6

That the court did not want to accept the fact that the charge was a frame by PW 1 meant to getting back at the Appellant for their separation in 1996 for reasons of adultery. This was never put to PW I by the Appellant during the trial. It was also not put to the Crown’s witnesses by the accused but this only emerged when the Appellant gave his evidence in chief. Authority is legion to the effect that the whole defence case must be put to the Crowns witnesses. The failure to do so leads the Court to draw an inference that the new story is an after thought. See S v P 1974 (1) SA and S v DOMINIC MNGOMEZULU.

In casu, one cannot help but draw the inference that the Appellant changed his story. The issue raised in chief was pertinent and must have been in the forefront of the Appellant’s mind when he cross-examined the Crown witnesses. No credence must be accorded that story as it was not put to Crown witnesses. I also find no merit in this ground of appeal and I dismiss it.

In the result, I am of the view that there is no merit in the Appellant’s attack of the conviction. The appeal is thus dismissed.

CROSS APPEAL BY THE CROWN

In its Heads of Argument, the Crown raised a cross appeal on the grounds that the learned Senior Magistrate erred in not convicting the Appellant for rape on both counts. This was stated in view of the fact that from the evidence led, the complainant was raped twice, i.e. on the 29th and 30th April, 1998, respectively.

In terms of the provisions of Section 5 (a) of the High Court Act No. 20, 1954, this Court is a Court of Appeal from all Magistrates Courts in Swaziland with full power to reverse and vary all judgements, decisions and orders, civil and criminal, of any such Courts. It is in this vain that the Crown, like the Appellant lodged an appeal against the findings and sentence of a Magistrate. It is important to state that this must however be done strictly within the stipulated time limits i.e. within fourteen (14) days. In this case, that period was not observed by the Crown. Miss LaNgwenya stated that the Crown only became aware of the anomaly when the Appellant lodged the appeal. This is not however satisfactory. Crown Prosecutors in the Magistrates’ Court must do their work diligently including lodging appeals in appropriate matters.

However, we exercised our discretion and condoned the late filing of the Cross – appeal by the Crown and we allowed the Appellant time to consider the cross appeal and make preparation for argument.

I must also state that, when the matter appeared before us on the 14th September, 1999, we ordered that the record be remitted to the Magistrate’s Court for the trial Court to furnish reasons for conviction and sentence. It was on that day the condonation for late filing of the cross appeal was granted and the Appellant was requested to prepare.

The matter was called on the 16th November, 1999, on notice to all the parties and it was postponed at the Appellant’s instance and it was heard on the 18th November, 1999. In the meantime, the learned Magistrate filed his reasons for conviction and sentence and he proceeded to reduce the sentence to seven (7) years imprisonment, after conceding rightly so that he erred in imposing a sentence of eleven (11) years. This is because the maximum sentence that can be imposed by Senior Magistrates is seven (7) years.

Not-withstanding the matter having been remitted for the learned Magistrate to state reasons for conviction, there is no indication whatsoever as to why the learned Magistrate found the Appellant guilty on Count 1 only. In my view, the Crown’s evidence is very clear that the complainant was raped on two occasions namely the 29th and 30th April, 1998. These in my view constitute separate transactions with their own independent contemporaneity of the mens rea and actus reus, capable individually of laying the basis for a charge of rape or incest.

The Appellant totally refused to address us on the cross appeal not-withstanding numerous pleas. We therefore did not have the benefit of his submissions in arriving at the conclusion that we have.

There is no indication that the evidence in relation to Count 2 was less credible or less reliable than in Count 1. On the contrary, I am of the view that the Crown’s evidence in relation to Count 2 clearly bears out the offence of rape wherewith the Appellant was charged. I accordingly hold that there was a gross mis-direction on the part of the learned Magistrate in acquitting the Appellant on Count 2, in the face of such overwhelming evidence. This mis-direction is sufficient for us to disturb the conviction and the sentence.

I must mention that where Magistrates later discover that they committed an error in the sentence after an appeal or review has been lodged, they are not at liberty to unilaterally alter the sentence. All that they can do is to concede the error and leave the matter of disturbing the sentence in the hands of the Court hearing the appeal, which Court is then properly seized with the matter, the Court a quo having became functus officio.

In the result, the cross appeal is allowed and the Appellant is found guilty on Count 2 as well. As far as the sentence is concerned, the Court is alive to the naked fact that the crime of rape is on the increase in Swaziland. This includes those cases where fathers rape their own daughters. This revolts against any person with the bare minimum of moral rectitude. It is totally abhorrent and reprehensible and offends against sensibilities. It finds no support in Swazi culture, customs and usages.

The Court is therefore called upon to impose a sentence that will be retributive, deterrent and rehabilitative. Men must be the ones to protect their children not the first to humiliate and dehumanise them leaving them mentally and emotionally scarred. There are many willing and consenting adult women with whom persons in Appellant’s position should negotiate. Shepherds should not be allowed to turn to wolves with impunity.

The accused is sentenced to imprisonment of seven years on Count 1 and to seven years on Count 2, which sentences be and are hereby ordered to run consecutively. Both sentences are backdated to the 6th May, 1998, the date of the Appellant’s arrest.



T.S. MASUKU
JUDGE


I agree


J.M. MATSEBULA
JUDGE





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