R v Rantsoti (CR 99/99; CRI/A/35/99) [2000] LSCA 19 (6 March 2000)

1 CRI/A/35/99 CR 99/99 IN T HE H I GH C O U RT OF L E S O T HO In the Appeal of: L E K A N Y A NE R A N T S O TI Appellant REX Respondent JUDGMENT Delivered by the Hon. Mr Justice M L Lehohla on the 6th day of March 2000 This is C R I / A / 3 5 / 99 in w h i ch L e k a n y a ne Rantsoti h as appealed against the j u d g m e nt of the learned Magistrate in the court b e l ow at Leribe. He h ad b e en c h a r g ed with the c r i me of R a pe before that court, it being alleged that he h ad wrongfully, unlawfully a nd intentionally h ad sexual intercourse w i th N t e b o h e l e ng N y e n y e, a M o s o t ho girl of a b o ut sixteen(16) years without her consent, a nd thus he c o m m i t t ed the said crime. T he a c c u s ed pleaded not guilty to this charge. I should hasten to straighten the record right a w a y. Of the g r o u n ds of appeal w h i ch w e re submitted the first g r o u nd of appeal w as a b a n d o n ed before the a r g u m e n ts started in the pursuit of this appeal. T h at g r o u nd w as in connection with the fact that the sentence of six (6) years' i m p r i s o n m e nt w as rather on the harsh side. So all that r e m a i n ed to be appealed against w e re specified in g r o u n ds 2 a nd 3 relating to conviction only while g r o u nd 3 is an indication that if the appellant so w i s h es he w o u ld supply further g r o u n ds of appeal. Suffice it to say then that the only g r o u nd therefore we are faced with n ow is o ne relating to conviction. T he c o m p l a i n a nt g a ve evidence before the learned Magistrate. S he told the C o u rt that s he h ad b e en sent on 24th January 1 9 99 by her m o t h er to her brother's h o me a nd that s he m a de for her brother's h o me at a r o u nd 6.00 in the e v e n i ng a nd m a de her w ay b a ck h o me at a r o u nd 7.00 p.m. W h en s he p a s s ed the accused's place the accused c a me out of his yard a nd caught up with her. T he accused is s o m e b o dy that is w e l l - k n o wn to the complainant a nd he u s ed to visit the complainant's h o me on a variety of occasions. T h ey w e nt together until the c o m p l a i n a nt w as about reaching her h o m e. W h i le they w e re at the v e r a n da the accused a s k ed for a kiss f r om her but she turned h im d o w n. T he c o m p l a i n a nt says that w as the first ever time that the accused a s k ed for a kiss of her. S he is a d a m a nt that she never kissed the a c c u s ed before a nd that s he w as unwilling to do so this time. B ut n ow the accused got hold of her a nd the c o m p l a i n a nt a s k ed h im to let her be as well as pulling herself f r om the accused's grip. After s he h ad m a n a g ed to break free the accused, she says, c a me a nd strangled her a nd pressed her against the h o u se a nd thereupon raped her. S he says she w as unable to raise an alarm b e c a u se of the strangulation or the pressure on her throat. In elaborating on h ow the rape t o ok place she says that the accused pulled out her panty a nd pulled out his penis a nd inserted it into her front p a s s a ge a nd that w h en he w as through he ran a w a y. T he c o m p l a i n a nt says s he c h a r g ed h im w i th the fact that s he w as g o i ng to report the incident but the accused's reply w as "it doesn't matter as b o th of us will be arrested together". On reaching h o m e, s he says her m o t h er e x a m i n ed her a nd afterwards that her m o t h er a nd she left for the accused's place w i th the p u r p o se of reporting the matter to the accused's m o t h e r. T he accused's m o t h er w as reported to a nd she reacted by saying that there w as nothing she could do a nd that it s e e m ed the accused w o u ld h a ve to be arrested. C o n s e q u e n t ly they p r o c e e d ed to the complainant's brother's place. W e l l, to cut the l o ng story short the c o m p l a i n a nt ultimately, a nd after a n u m b er of days, - this is w h e re the w h o le thing b e c o m es important, - she w e nt to the clinic not the s a me d a y, a nd finding n o b o dy of c o m p e t e n ce to deal with her or e x a m i ne her at that clinic she, as a result, spent m o re than another 24 h o u rs to get to Dr Jessie's place for examination. T h e re is a d o c u m e nt on w h i ch I will not refer but w h i ch w as m a de part of the record, but m ay be I should refer to it b e c a u se the a c c u s ed did insist that the e v i d e n ce in it revealed nothing a nd 1 think it w as proper that such evidence if there w a s, should h a ve b e en b r o u g ht forward. In it Dr Jessie s h o ws that he didn't find anything to corroborate or to support a claim of rape or intercourse for that matter. T h is is as far as that d o c u m e nt goes. Of course it w as not referred to by b o th C o u n s el before me a nd I think it w as for g o od reasons that they didn't. M ay be I should c o me b a ck to that afterwards, i.e. after dealing w i th the evidence. T he appellant's cross-examination of the c o m p l a i n a nt w as very direct a nd very purposeful but unwittingly w i th his reference to Dr Jessie's d o c u m e nt - b e c a u se Dr Jessie w as n e v er called to give e v i d e n ce - the appellant unwittingly attracted s o m e t h i ng w h i ch w o u ld not be of a ny u se to h i m; but w h i ch o n ce raised w o u ld require an a n s w e r. I am saying this b e c a u se it is trite that in cases of sexual intercourse there h as to be m e d i c al attention on the victim as quickly as possible after the e v e nt if the w h o le exercise of consulting a doctor is to be of a ny u se b e c a u se as M e d i c al Science h as established a ny e x a m i n a t i on taken or carried out after a b o ut 24 h o u r s, it is not possible to establish w h e t h er or not there w as sexual intercourse w h e t h er forceful or consensual at all. T he e x a m i n a t i on b e c o m es only purposeful d u r i ng the life t i me of the s p e r m s, i.e. the living s p e r m a t o z oa in the s e m i n al fluid b e c a u se normally those things die, a nd don't survive b e y o nd 24 hours. T he m o t h er g a ve her evidence w h i ch corroborated the report that she got from her daughter plus on her o wn evidence indicating that she s aw b ad things in her daughter's private parts. T he accused himself g a ve evidence. He testified that there w as sexual intercourse b e t w e en h im a nd the complainant but that it w as by consent. T he crux of the matter is right at this particular point, i.e. whether or not there w as consent. He m a de a suggestion in an attempt to explain w hy the complainant reported the incident, n a m e l y, that because of the delay incurred before she got h o me fearing that the m o t h er w o u ld reprimand her she m a de a claim that the delay w as d ue to the fact that she h ad b e en held up and raped by him. S o me version in this vein w as pursued at the addresses phase but w as never actually put to the complainant nor to the m o t h er at the crucial stage of their giving evidence. Be that as it m a y, h o w e v er s o me latitude will h a ve to be given to the fact that the accused w as doing his best to cross-examine and that he is not trained in that regard. So e v en t h o u gh this appears to be an afterthought, w h i ch in s o me rare occasions o ne could pardon at the s a me time o ne cannot overlook the fatal failure in it in an instance such as the present w h e re this factor or omission is of such crucial importance. In argument, the most important aspect of the argument raised by the appellant's Counsel relates to corroboration; and while at that I wish to refer to what this Court has time and again stated concerning cases of this nature. For instance in CRI/REV/116/99 Rex vs Letsolakobo Lephoto (unreported) at page 13 this Court had something to say as indeed it did even in many other cases which had come for review before it - or even before coming to that let me talk about corroboration. This appears at page 15, namely, that the position in law regarding corroboration has been most aptly and most fruitfully stated in the Court of Appeal decision given while sitting in Swaziland in the case of Velakati vs Regina which is Case No56 of 1984 (unreported) at page 5. (I hope all prosecutors will bear this important decision in mind when dealing with rape cases). The learned Judge of Appeal said : "There is no rule of law requiring corroboration of the complainant's evidence in a case such as the present one. But there is a well established cautionary rule of practice in regard to complainant's in sexual cases in terms of which a trial court must warn itself of a danger in their evidence and accordingly should look for corroboration of all the essential elements of the offence. Thus in a case of rape the trial court should look for corroboration of the evidence of intercourse itself, the lack of consent and the identity of the alleged offender. If any or all of these elements are uncorroborated the court must warn itself of the danger of convicting and in such circumstances it will only convict if acceptable a nd reliable e v i d e n ce exists to s h ow that the c o m p l a i n a nt is a credible a nd a trustworthy witness". In the other case that I referred to earlier n a m e ly Letsolakobo Lephoto, the C o u rt said : "Putting oneself in the shoes of the learned Magistrate w ho presided o v er this matter, o ne finds that the Magistrate w as in no d o u bt a b o ut the trustworthiness a nd reliability of the witness w ho g a ve e v i d e n ce of a rape itself. So this aspect of the matter falls four s q u a re within the guidelines or the p a r a m e t e rs set out in Velakati w h e re I repeat the court will only convict if acceptable a nd reliable e v i d e n ce exists to s h ow that the c o m p l a i n a nt is a credible a nd trustworthy witness". S u ch is the situation e v en if the e l e m e n ts are uncorroborated. N ow in the instant case we h a ve o b s e r v ed the evidence w h i ch w as not challenged, n a m e l y, that the c o m p l a i n a nt said s he w as unable to raise an a l a rm b e c a u se she h ad b e en strangled. W e l l, the d e f e n ce C o u n s el h as raised the possibility that there couldn't h a ve b e en rape b e c a u se the clothes of the c o m p l a i n a nt w e re not s h o wn to h a ve b e en torn. O ne is t e m p t ed to dismiss this observation on the basis of the fact that, apart from appearing to verge on speculation, if the strangulation w as sufficient to enable the act of intercourse without consent to go o n, then there wouldn't h a ve b e en a ny necessity for tearing about the clothes of the complainant. In a ny case it is on record in the d o c u m e nt referred to a b o ve as Dr Jessie's that the doctor observed " A B R A S I O NS ON R I G HT S I DE OF N E C K" of the complainant. To me that is sufficient corroboration of strangulation w h i ch couldn't h a ve b e en effective without suppressing and foiling complainant's attempts at raising an alarm by screaming. N ow the elements raised in Velakati also refer to the fact that there has to be evidence corroborating the identity of the accused and the complainant acquitted herself very well in that regard. In any case she and the appellant lived in the s a me village and the appellant used to visit her h o me on a variety of occasions. So she w as in no doubt about w ho h ad committed the act she complained of. T he last point raised in Velakati is o ne relating to lack of consent. O ne finds that under the circumstances stated it is clear that her consent w as suppressed by m e a ns of strangulation w h i ch w as effective in that regard. O ne important element of course is that of trustworthiness of the crucial c r o wn witness, n a m e l y, the complainant. T he record, as o ne c an m a ke out, reveals that the Magistrate f o u nd the witness to be trustworthy and the reading of the record itself bears out this fact m o st satisfactorily. This being the case o ne w o u ld find that the C r o wn in the court b e l ow h ad proved its case, a nd then all that n ow remains in w h at has often b e en stated about the sordid crime of rape, n a m e ly that it d e h u m a n i z es the complainant or the victim, a nd that it is not an acceptable w ay of expressing one's love for a female. It is often described as a fate w o r se than death. That it remains a capital offence in our l aw should suffice to illustrate the extent of reprehensibility society attaches to this crime. It is for these reasons that I feel I shouldn't interfere with the conviction secured by the learned Magistrate but rather I should confirm it. As I stated at the beginning there w as no appeal as to sentence. T he appellant w as well-advised not to appeal against sentence, if I m ay say. So the sentence of six years' imprisonment will r e m a in undisturbed. T he appeal is dismissed. J U D GE 6th M a r c h, 2 0 00 For Appellant : Mr Mafantiri For C r o wn : Mr Kotele