S v Machona (REF R 105 of 2012) [2015] ZWHHC 450 (12 May 2015)

1 HH 450-15 CA 627/12 Ref Case No. R105/12 PETER NGONIDZASHE MACHONA versus THE STATE HIGH COURT OF ZIMBABWE HUNGWE & BERE JJ HARARE, 14 September 2014 & 13 May 2015 Criminal Appeal B Ndhlovu, for the appellant E Makoto, for the respondent HUNGWE J: The appellant was convicted of rape as defined in s 65 (1) (a) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23]. He was sentenced to 15 years imprisonment of which three years was suspended for five years on condition of good behaviour. He appeals against both conviction and sentence. Several “grounds of appeal” were advanced on behalf of the appellant. They however amounted to an attack on the decision by the trial court to allow the complainant to testify when there was a medical report which expressed the view that the complainant was not capable of giving evidence in court. This is the only ground around which the heads of argument were formulated, confirming that this was the only basis of challenging the conviction. An ancillary point was made in the heads of argument, which is that the magistrate fell into error by dismissing the defence claim that the complainant was capable of giving consent to the act of sexual intercourse. In short, the conviction was attacked on the basis that the court a quo erred in believing the evidence tendered by the complainant and the other state witnesses at the expense of the appellant. The following facts are largely common cause. Complainant and the appellant were, at the time these allegations arose, neighbours at Zipam Institute, Norton. Complainant’s family keep part of their food which required refrigeration inside a house shared by the appellant and another. One day the complainant went to fetch some meat from the fridge inside this house. When she knocked, the appellant asked to come in. What transpired from there on is a matter of some dispute. The complainant says the appellant proposed love to her HH 450-15 CA 627/12 Ref Case No. R105/12 and she turned him down. The appellant, on the other hand, says that they were lovers having fallen in love a month earlier. Complainant says that when she opened the fridge to take out the meat, he grabbed her and pulled her onto a sofa where he forcibly sexually penetrated her against her will. He claimed that sexual intercourse with her occurred with her consent. His description of the incident was that when she came on that particular day, she found him having just taken a bath. She locked the door and asked if he had protection. He confirmed that he had. She rolled the condom onto his manhood, removed her jean trousers and they had sexual intercourse. He also claimed that they had sexual intercourse on another occasion at her instance and request. The complainant gave her evidence through the victim friendly closed circuit television system to avoid any further intimidation the appellant’s presence may present to her. Despite the fact that she had shown obvious signs of distress causing the postponement of the trial, the court a quo found that she was a credible as well as a competent witness. The court a quo was alive to the fact that the complainant was mentally retarded. That court attributed the initial difficulty the complainant experienced in composing herself before she could give her evidence properly to her condition. In analysing her evidence, the court came to the conclusion that although there had been initial problems to get her to relate the events of the rape, the court was satisfied that she was logical and competent to testify. The question that arises is whether the court a quo was correct in permitting the complainant to testify in light of the medical affidavit which specifically stated that “she is not capable to give evidence in court” and “she cannot consent.” This appears to be the major thrust of the appellant’s argument on appeal. I must preface this judgment with the difficulty encountered in dealing with mentally retarded persons whether as witnesses or accused persons. Different pieces of legislation do not always appear to be synchronous in the terms used to refer to mental illness or retardation. As such legislation is consequently not in harmony with the scientific terms used by medical professionals or clinicians who are required to provide expert evidence in such cases. The Mental Health Act, [Chapter 15:12] which governs mental health in Zimbabwe makes no mention of the term mental retardation. The closest reference to mental retardation is the use of the term “arrested or incomplete development of mind” which is found in the definition of mentally disordered or intellectually handicapped. The definition provides thus: HH 450-15 CA 627/12 Ref Case No. R105/12 “mentally disordered or intellectually handicapped”, in relation to any person, means that the person is suffering from mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of the mind; (s 2 of that Act). Whilst there is no specific mention of mental retardation in the South African Mental Health Act 17 of 2002 mental illness that Act defines mental illness as a positive diagnosis of a mental health-related illness in terms of accepted diagnostic criteria by a mental healthcare practitioner authorised to make such diagnosis. The Criminal Code uses the term “mentally incompetent” in reference to a victim of sex-related offences. (s 64). The term “incompetent” is not defined the assumption therefore must be that it relates to “legal competency to give informed consent” In my view, the use of such broad and undefined terms is unhelpful. It removes certainty from the statute. I proceed on the basis that the assumptions I make regarding the words used by the legislature accord with the standard interpretation of the statute in question. The question regarding the rape survivor’s ability to consent to sexual intercourse is a fairly complex matter. A recent research found that people with mental retardation are not able to consent to sexual interaction, regardless of the degree of impairment. The level of their intellectual functioning is considered to be equivalent to that of minors. Evaluation of the complainant’s ability to consent should focus on the event in question, and include information on the individual’s understanding of sexual behaviour and the context of normal sexual relationships; knowledge of the consequences of sexual intercourse, for example, pregnancy and infections; ability to make an informed decision to engage in sexual intercourse, based on the above awareness and understanding of the right to say “no”; and the ability to resist or say “no” in context. The first point to make in this regard is that the medical affidavit by Doctor S Nhiwatiwa was admitted into evidence as part of an expert opinion in terms of section 278 of the Criminal Procedure and Evidence Act, [Chapter 9:07]. However, the matters to which she deposes are not matters which, strictly speaking, required any special skill. She noted that: “She is slow, going to special schools. She is not capable of keeping her hygiene. She can barely read or write.” Under a section which required an expression of her expert opinion, the doctor states: “She is not capable of giving evidence in court. She cannot give consent.” HH 450-15 CA 627/12 Ref Case No. R105/12 With respect, the doctor’s observations expressed in her first paragraph are not matters for which amount to “any fact ascertained by an examination or process requiring knowledge of or skill in bacteriology, chemistry, physics, microscopy, astronomy, mineralogy, anatomy, biology, haematology, histology, toxicology, physiology, ballistics, geography or the identification of finger-prints, palm-prints or footprints or any other knowledge or skill whatsoever;” as required in terms of s 278 (1) (a) of the Criminal Procedure and Evidence Act, nor can it be said that her opinion in the subsequent paragraph covers matter for which the court could not, on its own, make a determination upon. In fact, the doctor ventured an opinion which was irrelevant. In essence, the function of an expert is to assist the court to reach a conclusion on a matter on which the court itself does not have the necessary knowledge to decide. It is not the mere opinion of the witness which is decisive but his ability to satisfy the court that, because of his special skill, training or experience, the reasons for the opinions he expresses are acceptable. Any expert opinion which is expressed on an issue which the court can decide without receiving expert opinion is in principle inadmissible because of its irrelevance. The rule was crisply stated in Gentiruco A. G. v Firestone S. A. (Pty.) Ltd. 1972 (1) SA 589 (A) at 616H.: “[T]he true and practical test of the admissibility of the opinion of a skilled witness is whether or not the Court can receive ‘appreciable help’ from that witness on the particular issue”. Expert witness testimony on an ultimate issue will more readily tend to be relevant when the subject is one upon which the court is usually quite incapable of forming an unassisted conclusion. On the other hand the opinion of the witness is excluded not because of a need to preserve or protect the fact-finding duty of the court, but because the evidence makes no probative contribution. In any event, every person not excluded from giving evidence in terms of the Criminal Procedure and Evidence Act [Chapter 9:07] shall be competent and compellable to give evidence in a criminal case in any court in Zimbabwe. (s. 245). However issues of competence of witnesses is specifically left to the discretion of the court before which a case is being tried. The Act then goes on to exclude certain class of witnesses from enjoying competence to testify in the following terms: HH 450-15 CA 627/12 Ref Case No. R105/12 “246 Incompetency from mental disorder or defect and intoxication “No person appearing or proved to be afflicted with idiocy or mental disorder or defect or labouring under any imbecility of mind arising from intoxication or otherwise, whereby he is deprived of the proper use of reason, shall be competent to give evidence while under the influence of any such malady or disability.” The issue that arises is whether a complainant victim of rape, by virtue of this provision, is excluded from testifying. Incompetence is relative and only lasts as long as the mental illness lasts. Since 1851 the English law has been that a person who suffers delusions may give evidence on matters about which he is rational (R v Hill (1851) 2 Den 254, 169 ER 495; R v Davies 1925 AD 30 @p 32). The question whether a mentally disordered person was adjudged automatically incompetent was left open in S v Thurston 1968 (3) SA 284 (A). However, Hoffman & Zeffert 3rd ed @p 287 argue forcefully that in light of the present knowledge about mental conditions, there is no reason why a person who may be an imbecile should not be able to testify as long as he or she has demonstrable ability to do so. Thus the learned writers commend the decision in R v K 1951 (4) SA 49 (O) where the evidence of an imbecile was admitted after the court found that the complainant showed surprising intelligence. For the reason that it would be impossible to prove a sexual offence charge without the evidence from the woman, I respectfully associate myself with the reasoning in that particular case. Similarly, the fact that the witness is deaf and dumb does not make him incompetent so long as communication can be made through an interpreter (R v Ranikolo 1954 (3) SA 225(O); S v Naidoo 1962 (2) SA 625 (A). It has been said that the cost of expert witness evidence regarding intellectual and psychological disabilities of a relatively normal kind far outweighs the marginal benefit which may be gained in the administration of justice by the admission of such evidence, Du Toit, De Jager et al: Commentary on the Criminal Procedure Act, 1993. Such disabilities can be assessed reasonably adequately while the witness gives evidence (S v Nel 1990 (2) SACR 136 (C). See also R v Turner [1975] All ER 70. It is not necessary to hold a trial within a trial to determine whether a person is a competent witness S v Zenzile 1992 (1) SACR 444 (C). In the present case, the Criminal Code specifically requires that a person accused of having sexual intercourse with a mentally “incompetent” person be charged with rape. There is a legal assumption that such a person cannot give consent due to her condition. Where the defence is that she consented to the act, it seems to me that the relevant section by its HH 450-15 CA 627/12 Ref Case No. R105/12 wording, requires that the accused discharges what amounts to a reverse onus and prove that she was able to consent and that she consented. The relevant section provides: “64 Competent charges in cases of unlawful sexual conduct involving young or mentally incompetent persons (1) (Not relevant) (2) (Not relevant) (3) A person who engages in sexual intercourse, anal sexual intercourse or other sexual conduct with a mentally incompetent adult person shall be charged with rape, aggravated indecent assault or indecent assault, as the case may be, unless there is evidence that the mentally incompetent person:- (a) was capable of giving consent to the sexual intercourse, anal sexual intercourse or other sexual conduct, and (b) gave his or her consent thereto.” It therefore appears that once the fact that the complainant was mentally incompetent is established, the appellant had to establish that she had consented to the act of sexual intercourse. The appellant did not deny sexual intercourse. He claimed that it took place with the complainant’s consent. The court a quo did not believe the appellant’s defence. In my view that finding was entirely justified. These two were neighbours. It is high unlikely that the complainant’s condition was not known to the appellant. Complainant’s aunt who works together with the appellant specifically told him about the condition. The court observed the condition. It must have been pretty obvious to anyone that the complainant was mentally retarded. In the event I find that the appellant’s appeal against conviction ought to fail for the reasons given above. As for the appeal against sentence, I must confess that the appellant dismally failed to put up a strong argument against the sentence imposed. The reasons must be that because the Act provides for up to life imprisonment upon conviction for rape, the appellant was hard put to argue against the severity of the effective 12-year jail term. The appellant sexually abused, by his own admission, a mentally retarded young adult who was also his neighbour. In her reasons for sentence, the magistrate pointed out what she deemed particularly aggravating features of this case. The physical trauma as well as the emotional trauma are specific aggravating features that the court pointed out. Although the Criminal Code does not HH 450-15 CA 627/12 Ref Case No. R105/12 expressly state this purpose, it is clear to me that the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. Above all one must also have regard to the principle that a sentence must be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. In reconciling the different goals of sentencing, the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. What then must be put in the balance is the gravity of the offence, the moral blameworthiness of the offender and the harm caused by the crime. Proportionality is the sine qua non of a just sanction. In my respectful view, these aspects were properly weighed into the assessment of the sentence by the court a quo. I am therefore unable to agree with the appellant’s contention that the sentence imposed on him induces a sense of shock. Where a convicted person gets away with an effective 12-year jail term in these circumstances, he cannot push his luck too hard by contending, as he does, that such a sentence induces a sense of shock. There is no basis for attacking such a sentence as too harsh. In the result, the appeal is dismissed in its entirety. BERE J agrees ………………… Kanoti & Partners, appellant’s legal practitioners National Prosecuting Authority, respondent’s legal practitioners