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Dyira v S (CA 222/07) [2009] ZAECGHC 34; 2010 (1) SACR 78 (ECG) (5 June 2009)

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FORM A

FILING SHEET FOR EASTERN CAPE HIGH COURT, GRAHAMSTOWN JUDGMENT


ECJ:


PARTIES: MZUKISI DYIRA

And


THE STATE


  1. Registrar: CA222/07

  2. Magistrate:

  3. High Court: EASTERN CAPE HIGH COURT, GRAHAMSTOWN


DATE HEARD: 01/06/09

DATE DELIVERED: 05/06/09


JUDGE(S): JONES J, JANSEN J, SANDI J


LEGAL REPRESENTATIVES –


Appearances:

  1. for the Appellant(s): Mr.: S. J. Van der Spuy

  2. for the Respondent(s): ADV: M. Moodley


Instructing attorneys:

  1. for the Appellant(s): LEGAL AID BOARD (P.E)

  2. for the Respondent(s): DIRECTOR OF PUBLIC PROSECUTION (P.E)



CASE INFORMATION -

  1. Nature of proceedings : APPEAL















Reportable


THE HIGH COURT OF SOUTH AFRICA



In the Eastern Cape High Court

Grahamstown CA 222/07

CC 67/06

In the matter between

MZUKISI DYIRA Appellant

and

THE STATE Respondent

Coram JONES, JANSEN and SANDI JJ

Summary Appeal – rape – admissibility of evidence by the complainant of a complaint that the accused raped her made 17 to 18 weeks after the offence – insufficient basis for allowing the complaint in as evidence after so long a lapse of time and because of evidence that it may have been induced by a threat or promise – single evidence of a child witness aged 8 years at the time of the rape whose evidence suffered from the blemish of a lengthy delay before reporting it – corroboration of the child’s evidence of rape by the medical evidence – no evidence than that of the child implicating the accused – either corroboration, or satisfaction of the cautionary rules of evidence in a material respect, was called for, especially in the light of the delay in naming the appellant as the offender – conviction set aside. The court considered how the cautionary rules should properly be applied.


JUDGMENT

JONES J

[1] The appellant was convicted in the High Court, Port Elizabeth of the rape of an 8 year old little girl committed during October 2005, and given a sentence of 18 years’ imprisonment. He now appeals against his conviction with the leave of the court a quo. In summary, the chief grounds of appeal are

  • that the trial court incorrectly admitted evidence of a complaint made by the complainant in which she said that she had been raped by the appellant, such evidence being inadmissible because (a) the complaint was made not freely and voluntarily and (b) it was not made at the first reasonable opportunity but only on 8 February 2006, some 17 to 18 weeks after the alleged rape;

  • that the evidence implicating the appellant was insufficient, the State having relied on the single evidence of a child witness which was not corroborated and in respect of which there were no safeguards against a wrong conviction in satisfaction of the cautionary rule.

In my opinion there is merit in these grounds.

[2] The complainant was the only witness who gave evidence implicating the appellant. There were, however, other witnesses for the State. They were (a) a child of the same age called Lusanda, with whom the complainant had been playing earlier that afternoon; (b) the complainant’s mother; (c) the doctor who examined her; and (d) the police officer who investigated the case and to whom the child made a complaint of rape. The gist of their evidence was that the complainant was playing with Lusanda in the street outside her home one afternoon in October 2005 when the appellant, whom she knew well and who lived next door, beckoned to her to come to him. She thought that he was going to send her to the shop. Lusanda went home and the complainant went into the appellant’s yard, and then inside his house. The appellant took her into one of the bedrooms, put her on the bed, pulled her panties to one side, removed his trousers, and had intercourse with her. He then showed her a knife and threatened to kill her with it if she should report him. She left, but did not go home. She went instead to her mother’s sister’s house where there were adults and children. She was driven home later that evening by one of her relatives. She went straight to bed. The next morning her mother noticed that there was blood in her urine. She, and the child’s father, asked what had happened. She answered that she was sore, but that nothing had happened to her. Her mother then took her to the clinic. The nursing staff examined her, and referred her to the hospital where she was examined by a doctor. When questioned, she told the doctor that nobody had done anything to her. The doctor prepared a report, Exhibit A which is dated the same day as the examination, 7 October 2005. This fixes the date of the commission of the offence as 6 October 2005. The only reasonable inference from the results of the medical examination was that the child had been penetrated and probably raped the day before. Because the child refused to tell the doctor what had been done to her or by whom, she was referred to an institution called the Outreach Centre which inter alia gives counselling and support to children who have been abused. One of the motivations for sending her there was to persuade her to reveal what had happened and who was responsible. It did not work. The child persistently refused to speak about the incident throughout the entire period of a lengthy stay at the centre. She denied that anybody had done anything to her. She eventually went home just before Christmas. In February 2006 the investigation docket was transferred to Constable Adonisi of the child protection unit of the South African Police Services for further investigation. On 8 February 2006 Constable Adonisi again took the child to the Outreach Centre where the child told her and a social worker that she had been raped by the appellant. The appellant was arrested the following week. He denied the charge.

[3] Despite objection from the defence, the learned judge ruled that the evidence of the child’s complaint to Constable Adonisi was admissible. The objection was that the complaint was not made freely and voluntarily by reason of repeated threats by the child’s mother, the social worker, and the police that she would be kept indefinitely at the centre until she told them what they wanted to know. The evidence of the child and her mother confirms that threats of this nature were indeed made. The learned judge was of the view, however, that they did not have bearing on the complaint that was ultimately made, and that the complaint was not induced by any improper threat or promise. It is difficult to reconcile this finding with the evidence of repeated threats of detention at the centre, the history of the child being kept at the centre from mid October to mid December, the fact that the child was unhappy at the centre and did not want to be there, and the fact that when she was again taken to the centre she immediately told her interrogators what they wanted to know. While this is not a clear case of intimidation, as in the leading case of S v T 1963 (1) SA 484 (A), it seems to me that in these circumstances the State has not been able to eliminate the reasonable possibility that the complaint was not freely and voluntarily made.

[4] The delay in making a complaint has an effect on its admissibility which is even more difficult for the State to overcome. The lengthy period of four months should not be regarded as conclusive against admitting the statement, but it is a highly relevant and important consideration. The rule is that a complaint becomes admissible if it is made to a person to whom the complainant would be expected to make a complaint ‘without delay and at the earliest opportunity which under all the circumstances could reasonably have been expected’ (R v Gannon 1906 TS 114 per Innes CJ). Here the complainant had an opportunity on the day of the rape to complain to members of her family at her mother’s sister’s house, to the man who took her home, and to her mother on her arrival at home that night. She had further opportunities the next morning when her mother confronted her about the blood, to the nurses when she was examined at the clinic, and to the doctor when she was examined and questioned for purposes of the medical examination, despite the comfort and protection of her mother’s presence. Similarly, she could have reported to the police when her mother took her to the police station for the purpose of reporting the rape. Thereafter she could have reported the incident on numerous occasions at the centre, where she had two daily sessions with trained social workers whose duty and object it was to get her to open up about the incident, and where she was also repeatedly questioned by her mother who visited her regularly. The State’s argument is that it was reasonable for her to remain silent all this while by reason of the appellant’s threat to kill her. It may be so that the threat caused her not to make a report. But the cautionary rules of practice, which apply in a case such as this, preclude a court from simply accepting such an explanation without a detailed and thorough examination of the circumstances. In this case, it is not possible to say beyond question that the delay was properly and understandably explained by evidence of the threat, particularly when the effect of the threat lasts for such a long period of time. If fear was the reason, what is the explanation for her deciding on 8th February 2006 to name the appellant as the rapist? Could she not have substituted the appellant for the rapist because she was still frightened of the real perpetrator? If not, why did the threat cease to impact upon her? Why was there now, suddenly and without apparent reason, a proper opportunity to make a complaint where there was not one before? This child had a good relationship with a caring mother to whom she would look for protection and to whom she would be expected to have confided at a much earlier stage. Once at the Outreach Centre she was reassured of her personal safety. Within the framework of an overall onus of proof of guilt beyond reasonable doubt, is it proper or possible, with any measure of certainty, simply to explain away some 17 weeks of adamant refusal to give an account of what had happened because of fear of reprisal, only to have that fear abruptly disappear for no apparent reason? As to the length of the delay, I have not been able to find a case where a delay for as long as 17 weeks has been regarded as reasonable. In R v T 1937 TPD 389 the court considered a delay of 6 weeks as not unreasonable in the peculiar and highly unusual circumstances of that case, which included a threat of violence. That would seem to be the high water mark. In R v Gannon supra the court admitted a complaint by an 8 year old girl made 10 days after the incident, when a disease became manifest. In that case the court held that the extent of the delay will be regarded as reasonable or unreasonable in the light of the facts and circumstances of each case. It is fair to say that the immediate impact of a threat may well inhibit a small child from making an immediate report at the first possible opportunity; but one would expect the impact of the threat to decrease with the passage of time. It is also fair to say, as in S v De Villiers 1999 (1) SACR 297 (O) 306b, that the longer the delay, the greater the prospect of fabrication and the more likely the possibility of untrustworthiness or unreliability. The length of the delay goes not only to the issue of admissibility, but also to the reliability and acceptability of the child’s evidence. Assuming that there was a threat to kill her as she said in evidence, it does not necessarily provide a satisfactory explanation for a delay of 17 weeks and the about-face that occurred thereafter.

[5] In the result I am of opinion that the trial court’s ruling on the admissibility of the complaint to Constable Adonisi was incorrect and the reception of that evidence was irregular. But its irregular admission does not, in my opinion, take the case any further, one way or the other. It does not per se bring about a failure of justice. In my view, and assuming for a moment the admissibility of its contents, its evidential value is small. The complaint proves nothing other than the fact that it was made on 8 February 2006. Its contents cannot be used as corroboration of the complainant’s implication of the appellant. Its only relevance is to rebut the defence of consent (which does not and cannot arise in this case), and to show the complainant’s consistency (R v M 1959 (1) 352 (A) 355G-356B). Evidence of a complaint goes to a complainant’s credibility. It prevents possible criticism (a) that she remained silent in circumstances when she would be expected to speak out; (b) that her story is a recent fabrication; and (c) that she has told different stories. Whatever weight may be attached to the complainant’s report to Constable Adonisi in this case, the fact remains that the complaint was made 17 weeks after the incident. She therefore did remain silent for a lengthy period during which it was possible for her to have made a report, and the possibility of a subsequent fabrication is not eliminated or significantly reduced. This remains a weakness in the complainant’s evidence. It is a serious flaw in the State case. It was necessary for the court to deal with it before it could be satisfied that there was proof of guilt beyond reasonable doubt. The judgment did not deal with it. It merely accepted that the delay was excused by the threat. There was no evaluation of the effect of the delay, whatever its cause, on the reliability of the evidence. This was essential to a proper evaluation of the evidence, and in my view the omission was a material misdirection.

[6] This leads to the argument of the insufficiency of the evidence to prove guilt beyond reasonable doubt. The onus was squarely on the State. It relied on the evidence of an 8 year old little girl to prove (a) the commission of the offence of rape (b) by the appellant. In our law it is possible for an accused person to be convicted on the single evidence of a competent witness (section 208 of the Criminal Procedure Act No 52 of 1977). The requirement in such a case is, as always, proof of guilt beyond reasonable doubt, and to assist the courts in determining whether the onus is discharged they have developed a rule of practice that requires the evidence of a single witness to be approached with special caution (Rex v Mokoena, 1956 (3) SA 81 (AD) 85, 86). This means that the courts must be alive to the danger of relying on the evidence of only one witness because it cannot be checked against other evidence. Similarly, the courts have developed a cautionary rule which is to be applied to the evidence of small children (R v Manda, 1951 (3) SA 158 (AD) at 162E to 163E). The courts should be aware of the danger of accepting the evidence of a little child because of potential unreliability or untrustworthiness as a result of lack of judgment, immaturity, inexperience, imaginativeness, susceptibility to influence and suggestion, and the beguiling capacity of a child to convince itself of the truth of a statement which may not be true or entirely true, particularly where the allegation is of sexual misconduct, which is normally beyond the experience of small children who cannot be expected to have an understanding of the physical, social and moral implications of sexual activity (Viveiros v S [2000] 2 All SA 86 (SCA) para 2). Here, more than one cautionary rule applies to the complainant as a witness. She is both a single witness and a child witness. In such a case the court must have proper regard to the danger of an uncritical acceptance of the evidence of both a single witness and a child witness (Schmidt, Law of Evidence 4 – 7).

[7] Insofar as proof of the commission of the rape is concerned, the complainant’s direct evidence is fully corroborated by the medical evidence. The State has proved beyond reasonable doubt that she was raped.

[8] The complainant’s evidence that she was raped by the appellant stands alone. The State adduced the evidence of Lusanda in an attempt to provide some measure of support for the appellant’s involvement. Lusanda said that the appellant had called the complainant to him on the afternoon of the rape by beckoning to him, and that the complainant had proceeded in his direction. However, no reliance can be placed on her evidence for the purpose of corroboration. Lusanda was patently an unsatisfactory witness. The court considered that her evidence could not be accepted except where it was corroborated by the evidence of the complainant. This can only mean that her evidence, which itself required a guarantee of trustworthiness before acceptance, cannot be used as corroboration of the single evidence of the complainant or as any kind of guarantee of its trustworthiness in satisfaction of the cautionary rule. In any event her evidence takes the case no further. Lusanda gave what can only be regarded as concocted evidence about the date and about the sinister nature of the appellant’s alleged gesture, and the evidence as a whole fails to prove beyond reasonable doubt that the occasion when the appellant is alleged to have beckoned to the complainant was the day upon which the offence was committed.

[9] The rest of the evidence does not assist the State in the discharge of its onus. There is nothing in the evidence of the complainant’s mother, or that of the doctor, or that of Constable Adonisi, which has bearing on the implication of the appellant. As for the defence witnesses, the appellant’s case was a bare denial of the incident and the threat. There are no facts emerging from the appellant’s evidence or his mother’s evidence which can operate in the State’s favour as satisfaction of the cautionary rule.

[10] The case against the appellant therefore stands or falls by the evidence of the complainant standing alone. It is her word against his. In my opinion, her word, standing alone, is insufficient for proof beyond reasonable doubt when regard is had to the importance in this case of a proper application of the cautionary rules in the light of the defect in the State case. In this case the learned trial judge very properly considered that there was a need for an application of the cautionary rule. Our courts have laid down certain general guidelines which are of assistance when warning themselves of the danger of relying upon a single witness who is also a child witness. In the ordinary course

  1. a court will articulate the warning in the judgment, and also the reasons for the need for caution in general and with reference to the particular circumstances of the case;

  2. a court will examine the evidence in order to satisfy itself that the evidence given by the witness is clear and substantially satisfactory in all material respects. Here the delay of 17 weeks in making a complaint must be regarded as a material defect in the evidence;

  3. although corroboration is not a prerequisite for a conviction, a court will sometimes, in appropriate circumstances, seek corroboration which implicates the accused before it will convict beyond reasonable doubt. Here there was no corroboration;

  4. failing corroboration, a court will look for some feature in the evidence which gives the implication by a single child witness enough of a hallmark of trustworthiness to reduce substantially the risk of a wrong reliance upon her evidence (S v Artman 1968 (3) SA 339 (A) 340 H). This is the route which the State must take to support this conviction.

[11] In dealing with the need for caution, the judgment in this case referred to S v Sauls 1981 (3) SA 172 (A) at 180E which restates the principles relating to single witness evidence. The learned trial judge concluded that the cautionary rule was satisfied. As part of her reasoning, she made a favourable credibility finding in respect of the complainant as a witness. Nobody suggests that we are entitled to depart from this finding. But I respectfully venture to suggest that demeanour alone was, in this case, an insufficient guarantee against the wrong reliance of evidence that is already tainted by a material blemish. What was necessary here was a detailed evaluation, not confined to demeanour, of the extent to which the evidence of this child could be regarded as reliable and acceptable (S v Manda supra). It was necessary for the court to have due regard to (a) the advantages which children might have as witnesses, such as their innocence and capacity for vivid recall, and (b) the many pitfalls of evidence by children which caused the Appellate Division to remark in Woji v Santam Insurance Co Ltd 1981 (1) SA 1020 (A) (1027 in fine et seq especially at 1028E-F where many of the relevant considerations are discussed) that ‘the danger of believing a child where evidence stands alone must not be underrated’. We know that this child, aged 8 years at the time and 9 years when she testified, was considered to be a competent witness in the sense that she understood the duty to tell the truth, but that she was too young to understand the binding nature of an oath. Apart from that, there is no detailed assessment in the judgment of her intelligence, her maturity for her age, the degree of her knowledge of sexual activity, her exposure to suggestibility, her powers of narration and recall, her spontaneity, or an account of her personal make up and characteristics which might have bearing on her explanation that she did not report the matter for so long out of fear, seen against the background of her healthy relationship with her mother and the fact that she ultimately did report it. There is no explanation why she changed her mind and gave the police the version of the facts which is now the State case. There was no exploration of the possibility of another motive for not naming the wrongdoer, such as the substitution of the appellant because of fear that the real perpetrator might carry out his threat if she named him, or perhaps because of a wish to protect someone. This latter possibility arises from the evidence of the mother who suspected that three boys might have misbehaved with her daughter, a suspicion sufficiently prominent in her mind to cause her to raise it with the doctor as a speculative cause for the child’s condition. An examination of these various factors would be among the considerations which demonstrate that a careful application of the cautionary rule relating to the evidence of a child has been conducted. There is no indication to be found in the judgment that this was done. There is no reference to any authorities specifically dealing with the need for caution in the case of a child witnesses, and no mention of the reasons for the danger in accepting the evidence of a child or why and how such dangers were eliminated or reduced in this case. The application of the cautionary rule appears to have been confined to single witness evidence. In all the circumstances the finding that the complainant made a very favourable impression on the court, that she gave evidence in a coherent and logical manner, that she did not contradict herself and that she withstood cross-examination does not go far enough to provide a safeguard against a wrong reliance on her evidence. It might have justified an impression held by the court that she had not fabricated her version and that she had no reason to implicate the appellant falsely, but it did not justify arriving at a positive conclusion to that effect beyond reasonable doubt.

[12] Sometimes the court is able to find satisfaction of a cautionary rule in the poor quality of the evidence of an accused person. Here, the appellant was not a satisfactory witness. But his confusion and lack of consistency may well be attributable to the passage of time. The charge against him asked him to account for his whereabouts on an unnamed day in October 2005. He was arrested in mid-February the following year. For many years he has been a mental patient in receipt of a disability grant. According to his mother he is forgetful and irresponsible to the point of failing to renew his grant in good time, and he is easily confused about dates and times. In the judgment his evidence is rejected where it conflicted with the totality of the evidence of the State, but the judgment did not make adverse credibility or demeanour findings against him. The content of his evidence – in essence, a bare denial – was not shown to be unsatisfactory in respects which can be used to give credibility to the content of the child’s evidence. It cannot be said that his demerits as a witness could operate to reduce the risk of a wrong reliance on the evidence of a single child witness, and, indeed, the judgment does not make that finding.

[13] In all the circumstances I am of the view that the State failed to discharge the onus of proving the guilt of the appellant beyond reasonable doubt. The appeal is allowed and the conviction and sentence are set aside.


RJW JONES

Judge of the High Court

2 June 2009



JANSEN J I agree.


JCH JANSEN

Judge of the High Court


SANDI J I agree


B SANDI

Judge of the High Court