S v Chitambo (CA 205 of 2014; HH 705 of 2015) [2015] ZWHHC 705 (11 August 2015)

1 HH 705/15 CA 205/14 DOUGLAS CHITAMBO versus THE STATE HIGH COURT OF ZIMBABWE MANGOTA & CHATUKUTA JJ HARARE, 22 June 2015 and 12 August, 2015 Criminal Appeal P Kwenda, for the appellant Ms F Kachidza, for the respondent MANGOTA J: The appellant was charged with indecent assault as defined in s 67 (1) (a) (i) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was convicted after trial. He was sentenced to 20 months imprisonment; 5 months of which were suspended for 5 years on condition of future good behaviour. The state allegations were that, on 6 December 2013 and at number 871-14th Crescent, Glen View 1, Harare the appellant indecently assaulted one Yolanda Chitambo [Yolanda]. He allegedly lay on top of her and fondled her breasts. She was thirteen (13) years old when the offence occurred. The appellant appealed against conviction and sentence. His grounds of appeal against conviction were that: (a) the court a quo did not exercise caution when it assessed the evidence of Yolanda who was a minor; (b) the court a quo erred when it convicted him in the face of irreconcilable material inconsistencies between the state outline and Yolanda’s evidence; (c) the court a quo erred in rejecting the submission that there was evidence of the complainant having been manipulated (d) the court a quo should have accorded him the benefit of the doubt in view of evidence of the second state witness who received Yolanda’s report. The appellant’s grounds of appeal against sentence were that: HH 705/15 CA 205/14 (e) the sentence was so manifestly excessive that it induced a sense of shock; (f) the court laid emphasis on: (i) (ii) retribution the appellant’s moral blameworthiness which the court a quo viewed as having been high - and (iii) the harm which was caused to Yolanda He moved the court to substitute the sentence of imprisonment with a non-custodial one. The respondent opposed the appeal. It stated that the appellant was properly convicted and sentenced. It submitted that his appeal was devoid of merit. It moved the court to dismiss the appeal in its entirety. The record showed that the appellant and Yolanda are respectively father and daughter. The complainant said the appellant indecently assaulted her on the night of 6 December 2013. He denied the allegations. Yolanda’s testimony was that, on the night in question, she and her two younger sisters were sleeping in the dining-room. The appellant was sleeping in his bedroom. Her mother was not at home. The younger of her two sisters started crying and gnashing her teeth. Yolanda woke up after she felt that someone was lying on top of her. The appellant was that person. He made an effort to undo the buttons of her blouse and he uttered into her ears the words ‘I love you.’ She told him not to do what he was doing. He desisted. He carried the child who was crying and went with her to his bedroom. The appellant’s version was that he woke up when he heard his two-year old child crying. The child was sleeping in the same room as Yolanda. He went to the dinning -room to take the child. As he approached where the children were lying he slipped and fell. He conceded that he could have had contact with Yolanda’s body as he struggled to get onto his feet. The court a quo rejected the appellant’s account of events. It convicted and sentenced him. The conviction and sentence triggered this appeal. The court a quo’s conclusion centered around the allegations that the appellant lay on top of Yolanda, made an effort to undo the buttons of her top and uttered the words ‘I love you.’ It was its view that the described conduct satisfied the definition of the offence of indecent assault. HH 705/15 CA 205/14 The appellant, it is noted, was ably legally represented during his trial. He did not challenge Yolanda’s assertions in the abovementioned regard. He gave no reason for not disputing the allegations which constituted the gravamen of the charge that had been preferred against him. The appellant criticised the trial magistrate’s assessment of Yolanda’s evidence. He submitted that the court a quo failed to exercise caution when it assessed her testimony. He, in that regard, referred us to S v Madzomba, 1999 (2) ZLR 214, 220 wherein Chinhengo J (as he then was) emphasised the need on the part of judicial officers to exercise caution when they deal with or consider evidence of young witnesses. The respondent accepted the fact that Yolanda was a young witness. It, however, submitted, and correctly so, that the cautionary rule was no longer part of our criminal justice system as was the case in the past. It referred us to S v Banana, 2000 (1) ZLR 607 where Gubbay CJ (as he then was) made an extensive examination as well as analysis of the cautionary rule, its history as well as its implications and remarked as follows: “I respectfully endorse the view that in sexual cases the cautionary rule of practice is not warranted. Yet I would emphasise that this does not mean that the nature and circumstances of the alleged sexual offence need not be considered carefully.” The position of the respondent holds in the circumstances of this case. S v Madzomba is a judgment of this court. It was decided earlier than S v Banana which is a Supreme Court judgment. S v Banana supercedes all earlier judgments and is binding on this court. The trial magistrate did not have to apply the cautionary rule as the appellant suggested. All what he was required to do was to make a careful analysis as well as assessment of Yolanda’s evidence. He accomplished that aspect of his work in a satisfactory manner. He ruled out the possibility that Yolanda might have falsely incriminated her father. He gave valid reasons for the conclusion which he reached. His reasoning was above reproach. The appellant’s second and third grounds of appeal against conviction were inter- linked. They were, for the mentioned reason, considered as one matter. There is no doubt that there were material inconsistencies between the state outline and Yolanda’s evidence. According to Yolanda, the appellant made three untoward advances towards her. The state outline mentioned six advances. It said he sat on top of Yolanda’s blankets, removed the blankets, lay on top of her stomach, fondled her breasts, told her that he loved her and attempted to lift her up and take her to his bedroom. HH 705/15 CA 205/14 The appellant submitted that the inconsistencies dented Yolanda’s credibility. He stated that the trial court should have drawn an adverse conclusion against the state as a result of the inconsistencies. The respondent took a contrary view. It submitted that the state outline was a summarised version of the prosecution’s case. It stated that a police officer with no legal training compiles the state outline. It said witnesses for the prosecution do not have any input into, or control over, the contents of the state outline. It, in support of its submissions, referred us to S v Mandwe 1993 (2) ZLR 233 (S) where Korsha J discussed the relationship between an outline of the state case and evidence of prosecution witness and remarked at p 234 as follows: “Because the outline of the state case is often precise complied by a policeman with no legal training, in the event of a departure by a state witness from the outline of the state case, the divergence between the state outline and the testimony of a witness must be so gross as to be utterly irreconcilable before an adverse conclusion should be drawn.”(emphasis added) As the respondent correctly stated, Yolanda did not have any input into, or control over, the manner in which the state outline was drawn up. Whoever compiled it appeared to have made an effort to put words into her mouth. This is possibly the reason which prompted the appellant to suggest, as he did, that there was evidence of child manipulation. If his assertions are based on that matter, they are misplaced. They are so because Yolanda refused to be manipulated. She, as the court a quo found, told nothing but the truth of what she had endured at the hands of the appellant. We proceed to analyse the inconsistencies which existed between the state outline and Yolanda’s evidence. The analysis would, in our view, assist in the resolution of the issue of whether or not the inconsistencies were so gross as to be utterly irreconcilable. We make two observations in respect of the inconsistencies. The first is that the inconsistencies are not mutually exclusive of each. They, in short, do not cancel each other as is the case with contradictory statements which cannot exist side by side and continue to make sense. The inconsistencies support the view that the appellant indecently assaulted his daughter. The second observation is that Yolanda’s evidence, taken on its own, supports the same view. It shows in a satisfactory manner that the appellant indecently assaulted her. It is therefore a misnomer for the appellant to suggest that the inconsistencies were gross let alone irreconcilable. They were not. They, in fact, complemented each other. They all pointed to the fact that the appellant assaulted Yolanda in an indecent manner. The court a quo was, accordingly, correct when it refrained from drawing any adverse conclusion from HH 705/15 CA 205/14 the inconsistencies. Our view in this regard finds fortification in the words of Squires J who in S v Seda, 1980 ZLR 109 (H) stated that: “The departure by a witness in his evidence from the outline must be significant and unexplained to be deserving of an adverse conclusion” (emphasis added). We state, for the avoidance of doubt, that the departure of Yolanda’s testimony from the state outline was not significant. We state, further, that the departure had its explanation in that the author of the state outline, for his or her or their unknown reasons, incriminated, more than he, or she, or they exculpated, the appellant. However, the net effect was the same. It was the same regardless of whether or not it was viewed from the perspective of Yolanda’s testimony alone or from Yolanda’s evidence as read together with the outline of the state case. The court a quo found, as we did, that Yolanda was a very candid witness who did not want to falsely incriminate her father. She stuck to her version of events. She rejected insinuations or assertions which incriminated the appellant. Members of her church, and not Yolanda, reported the matter to the police. That fact taken together with her rejection of what had been put into her mouth by the person(s) who compiled the state outline supports the view that she had no desire to lie against the appellant. All she did was to tell that truth of what he had done to her. Her credibility was, therefore, not dented at all. It was, if anything, strengthened. The appellant’s last ground of appeal against conviction was that the court a quo should have accorded the benefit of doubt to him. He submitted that Yolanda did not allege any act of indecent assault in her report to the second state witness. He said the second witness for the prosecution supported his defence. The respondent criticised the appellant’s ground as not having been specific. It did not go further than the stated criticism. It was our view that the incident of 6 December, 2013 affected Yolanda’s mind in a very adverse way. She could not live with what her father had done to her. She, accordingly, reported that incident to the second state witness on the morning of the following day. The second witness for the prosecution was a member of her church. She reported the incident to him at the earliest opportunity which reasonably offered itself to her. She, in the mentioned regard, was compliant with Gillespie J’s remarks who in S v Makanyanga, 1996 (2) ZLR 231, stated at p 232 that: HH 705/15 CA 205/14 “The complaint must have been made at the first opportunity after the offence which reasonably offers itself.” It is our view that the trial magistrate did not fall into any error at all when he convicted the appellant. He assessed the evidence which was placed before him in a clear and unbiased manner. He rejected the appellant’s account of events. He accepted the evidence of the state witnesses. The confession which the appellant made fortified our view. We were satisfied that the appellant’s conviction was unassailable. He stated, through counsel, at the mitigation stage of the proceedings as follows: “The accused is now conscious of the consequences of committing further offences. It is common cause that when he committed the offence, the accused was intoxicated. Whilst intoxication is not a full defence, it is mitigatory, the basis being that when one is intoxicated they are not in full control of their senses ... The accused prays that the court imposes a non- custodial sentence having regard to the circumstances highlighted above and that he was convicted on the basis of actions which were in their primacy. (emphasis added) The statement that his actions were in their primacy indicates that he intended to do more than indecently assaulting his daughter. The appellant’s conviction is above board. It will not, therefore, be disturbed. The appellant’s appeal against sentence is, in a large measure, diluted by the attitude which he took towards the crime which he committed. He denied what the state levelled against him. He did so with full knowledge of the horrendous act which he caused his daughter to endure. The confession which he made aggravates his own side of the case. His conduct of appealing against conviction when he knew that he had broken the law in a very shameful manner does not place him in good light at all. We took the liberty of going through the trial magistrate’ reasons for sentence. We remained satisfied that the court a quo balanced what was favourable to the appellant against what militated against him. It properly arrived at the sentence which it imposed. The sentence, in our view, was commensurate with the crime which the appellant committed and the appellant’s personal circumstances. The appellant indecently assaulted his own daughter. He traumatised her in a very serious manner. He stated that what he did was in its primacy. We are satisfied that he intended to cause more harm to his daughter than what he had already done to her. His moral turpitude was, therefore, extremely high. We do not consider that a miscarriage of justice occurred where a 40-year old father indecently assaulted his thirteen (13) year old daughter. The age difference between the two HH 705/15 CA 205/14 was very high. An effective sentence of 15 months imprisonment for such a horrendous act does not induce in us any sense of shock. The sentence will, accordingly, be allowed to stand. We considered all the circumstances of this case. We remain satisfied that the appeal has no merit. It is, in the premise, dismissed in tuto. CHATUKUTA J agrees: ______________________ Kwenda & Associates, appellant’s legal practitioners Prosecutor General’s Office, respondent’s legal practitioners