R v Kao (CRI/REV 245 of 85) [1989] LSCA 114 (19 September 1989)

IN THE HIGH C O U RT OF L E S O T HO C R I / R E V / 2 4 5 / 85 In the m a t t er of : R E X v SELEPE KAO J U D G M E NT D e l i v e r ed by t he H o n. M r. J u s t i ce M. L. L e h o h la on t he 1 9 th d ay of S e p t e m b e r, 1 9 8 9. T he a c c u s ed a g ed 26 w as c h a r g ed b e f o re t he S u b o r d i n a te C o u r t, M o k h o t l o n g, w i th t he c r i me of r a p e. T he u n l a w f ul a ct is a l l e g ed to h a ve b e en e x e c u t ed on 1 4 th F e b r u a ry 1 9 89 at B a f a t s a na in M o k h o t l o n g. K ao w as t he v i c t i m. 'Makae T he a c c u s ed p l e a d ed n ot g u i l ty to t he c h a r g e. At t he e nd of t he d ay he w as c o n v i c t ed a nd s e n t e n c ed to a t e rm of f i ve y e a r s' i m p r i s o n m e n t. T he e v i d e n ce r e v e a l ed t h at t he c o m p l a i n a nt ' M a k ao k n o ws t he a c c u s ed w e ll as s he a nd he l i ve in t he s a me v i l l a g e. T he c o m p l a i n a nt w as s ix m o n t hs in t he f a m i ly w ay at t he t i me of t he i n c i d e n t. It w as in t he w a t c h es of t he n i g ht a nd a f t er t he c o m p l a i n a nt h ad p ut o ut t he l i g ht w h en s he h e a rd d o gs b a r k i n g. In t he m i d st of a ll t h is s he h e a rd a g e n t le b ut p e r s i s t e nt k n o ck on t he w i n d ow to h er h o u s e. S he i n q u i r ed w ho w as k n o c k i ng at h er w i n d o w. B e i ng v o u c h- s a f ed no r e p ly s he i n q u i r ed a g a in a nd s i m u l t a n e o u s ly opened the door /and - 2- and saw a m an go p a st t he w i n d o w. W h en s he a d v a n c ed on t he m an s he r e c o g n i s ed him as t he a c c u s e d. W h en a s k ed by t he c o m p l a i n a nt w h at he w a n t ed t he a c c u s ed r e m a i n ed s i l e n t. T he c o m p l a i n a nt s u g g e s t ed t h at t he a c c u s ed s h o u ld go to t he c o m p l a i n a n t 's i n- laws to say to t h em w h at he w a n t e d. T h e re and t h en t he a c c u s ed g r a b b ed h o ld of t he c o m p l a i n a n t, d r a g g ed h er t o w a r ds t he l o w er g r o u n d. T he c o m p l a i n a n t 's a t t e m p ts at f r e e i ng h e r s e lf w e re t h w a r t ed by t he a c c u s e d 's f i rm g r i p. In t he p r o c e ss t he t wo s t u m b l ed and f e ll to t he g r o u nd in t he f o r e c o u r t. T he p in w h i ch t he a c c u s ed w as w e a r i ng g a ve w a y. H is b l a n k et c o n s e q u e n t ly f e ll to t he g r o u n d. T he p in w as l a t er p r o d u c ed in c o u rt and t he c o m p l a i n a nt i d e n t i f i ed i t. It had b e en l a t er c o l l e c t ed f r om t he s c e ne a l o ng w i th a t o r ch lid f i t t i ng t he a c c u s e d 's t o r c h. T he t r i al court h e a rd e v i d e n ce s h o w i ng t h at t he p in w as p e c u l i ar in t wo r e s p e c t s. F i r st it w as m an m a d e. N e xt it w as p e c u l i a r ly l a r ge and k n o wn to a g o od n u m b er of c r o wn w i t n e s s es i n c l u d i ng t he c o m p l a i n a n t. A t o r ch b a t t e ry as w e ll as t he c o m p l a i n a n t 's e ar r i ng w e re a l so c o l l e c t ed f r om t he s c e n e. T he c o m p l a i n a nt d i d n 't k n ow w h o se t o r ch b a t t e ry t h is w a s. T he a c c u s ed d e n i ed e v er h a v i ng b e en to t he s c e ne p r i or to t he p i c k i ng up of t he i t e ms r e f e r r ed t o. A s s u- m i ng t he c o m p l a i n a n t 's e ar r i ng w as p l a n t ed at t he s c e ne h ow c o u ld t he a c c u s e d 's i t e ms of p r o p e r ty h a ve b e en p l a c ed t h e re w i t h o ut e i t h er h is k n o w l e d ge or h is h a v i ng p r e v i o u s ly b e en t h e r e? Is it not a s t a r t l i ng p i e ce of c o i n c i d e n ce t h at a p in a l l e g ed to be h i s, a nd a t o r ch lid f i t t i ng h is t o r ch and a t o r ch b a t t e ry a re all c o l l e c t ed f r om t he s c e n e. / To - 3- To my m i nd t he c o u rt b e l ow w as c o r r e ct in decision t h at t he a c c u s e d 's d i s a v o w al of t h e se i t e ms of p r o p e r ty as h is w as not o n ly f a l se b ut w as a l so a v a in a t t e m pt a i m ed at d i s s o c i a t i ng h i m s e lf f r om t he c o m m i s s i on of the a l l e g ed c r i m e. It i m p o r ts an e l e m e nt of wry h u m o ur t h at a pin w h i ch o r d i n a r i ly s e r v es to b r i ng t wo e n ds of a b l a n k et t o g e t h er has in t h is c a se s e r v ed to link t he a c c u s ed w i th perpetration of t he o f f e n c e. L i k e w i se t he p a r ts of t he t o r ch w h o se f u n c t i on is c o m m on k n o w l e d g e, h a ve a l so h e l p ed t h r ow l i g ht on t he i n v e s t i g a t i on of t he crime. It w as a r g u ed f or t he a c c u s ed t h at t h e re h a s n 't b e en p r o of of p e n e t r a t i o n. F u r t h er t h at m e d i c al e v i d e n ce d id n ot e v en s h ow t h at t he a c c u s ed w as t he c u l p r it in t h at t he m e d i c al e v i d e n ce f a i l ed to s h ow t r a c es of v e n e r e al d i s e a se w h i ch s h o u ld h a ve b e en f o u nd in t he v i c t i m 's p r i v a te p a r ts on a c c o u nt of t he f a ct t h at the a c c u s ed w as d i s c h a r g i ng p u ss f r om h is p e n is o w i ng to the v e n e r e al d i s e a se he w as s u f f e r i ng f r om at t he t i m e. T h is a r g u m e nt is f l a w ed on t he g r o u nd t h at t he v i c t im d id n ot r e c e i ve m e d i c al a t t e n t i on t h e re and t h an but a f t er s o me f o r t y - e i g ht h o u rs had e l a p s e d. By t h en she had w a s h ed h e r s e l f. It w as f u r t h er a r g u ed t h at t he l e a r n ed m a g i s t r a te had n ot c a u t i o n ed h i m s e lf r e g a rd b e i ng had to t he f a ct that t h is b e i ng a s e x u al o f f e n ce it w as n e c e s s a ry f or him to h a ve d o ne s o. Indeed A p p. C a se N o. 5 6 / 84 D i c ks V i l a k a ti vs R e g i na - a Swazi d e c i s i on of t he C o u rt of A p p e al ( u n r e p o r t e d) at p. 5 is a u t h o r i ty f or t he v i ew t h at " T h e re is no r u le of law r e q u i r i ng c o r r o b o- r a t i on of t he c o m p l a i n a n t 's e v i d e n ce in a c a se s u ch as t he p r e s e nt o ne but t h e re is a w e l l - e s t a b l i s h ed c a u t i o n a ry r u le of p r a c t i ce in r e g a rd to c o m p l a i n a n ts in / s e x u al - 4- T h u s, in a c a se of r a p e, sexual cases in terms of which a trial court must w a rn i t s e lf of t he d a n g e rs in t h e ir e v i- d e n ce and a c c o r d i n g ly s h o u ld look f or c o r r o b o r a t i on of all t he e s s e n t i al e l e m e n ts of t he o f f e n c e. t he t r i al c o u rt s h o u ld look f or c o r r o b o- r a t i on of t he e v i d e n ce of i n t e r c o u r se i t s e l f, t he lack of c o n s e nt a l l e g ed and t he i d e n t i ty of t he a l l e g ed o f f e n d e r. t h e se e l e m e n ts a re u n c o r r o b o r a t ed t he c o u rt m u st w a rn i t s e lf of t he d a n g er of c o n v i c t i ng a n d, in s u ch c i r c u m s t a n c e s, it w i ll o n ly c o n v i ct if a c c e p t a b le a nd r e l i a b le e v i d e n ce e x i s ts to s h ow t h at t he c o m p l a i n a nt is a c r e d i b le and t r u s t w o r t hy w i t n e s s ." If any or all of T h e re is no m i s t a ke as to t he i d e n t i ty of t he a c c u s e d. T he e v i d e n ce a d d u c ed f or t he c r o wn p r o v ed a c c e p t a b le and r e l i a b l e. T he t h r u st a nd t e n or of it s h o w ed t h at t he c o m p l a i n a nt w as a c r e d i b le and t r u s t w o r t hy w i t n e s s. T he a c c u s ed w as s h o wn to be a l i ar b e y o nd all r e a s o n a b le d o u b t. T h us h is d e n i a ls of h is l i a b i l i ty in t he c o m m i s s i on of t he c r i me c a me to n o t h i n g. On t h e se f a c ts t he " p e r f e c t ly s o u n d, r a t i o n a l, c o m m on s e n se s o l u t i o n" to be f o u nd in t he p r e s e nt c a se is t h at t he a c c u s ed w as r e s p o n s i b le f or t he p e r p e t r a t i on of t he c r i m e, C/F M l a m bo 1 9 5 7 ( 4) 7 27 (A) 7 3 7 D -F and it is q u i te u n r e a l i s t ic u n d er t h e se c i r c u m s t a n c es to h a ve r e g a rd to t he r e a l ms of c o n j e c t u r e. C/F e . g. R vs N d h l o vu 1 9 45 AD 3 69 at 3 6 8; R vs D h l u m a yo 1 9 4 8 ( 2) SA 671 (A) at 6 7 8; S vs S a u ls 1 9 8 1 ( 3) SA 172 (A) at 182H - 1 8 3 B. T h e re a re f e a t u r es p o i n t ed o ut in t he p r e s e nt c a se t h at t he a c c u s ed h a s, in my v i ew r i g h t ly b e en f o u nd to h a ve g i v en u n t r u t h f ul e v i d e n c e. T h is is a f a c t or w h i ch t he t r i al c o u rt or e v en t h is c o u rt is e n t i t l ed to t a ke into a c c o u nt as s t r e n g t h e n i ng t he i n f e r e n ce of g u i lt of t he a c c u s ed f r om t he f a c ts set o ut in t he r e c o rd of e v i d e n c e. In B r o a d h u r st vs Rex 1 9 64 AC 441 at 4 57 L o rd D e v l in / s t a t ed -5- "It is very important that the jury should be carefully directed on the effect of a con- clusion, if they reach it, that the accused is lying. There is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty and accordi- ngly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so. Save in one respect a case in which an accused gives untruthful e v i- dence is not different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused. But if on the proved facts two inferences may be drawn about the accused's conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends of course on all the circumstances and especially on whether there are reasons other than guilt that might account for unt truthfulness." The medical evidence revealed that the complainant's voice had gone hoarse showing that the voice box must have been depressed. She had scratches around the neck - p r o of e n o u gh of t he s t r u g g le t h at m u st h a ve t a k en p l a ce r e s u l t i ng a m o ng o t h er t h i n gs in t he v i c t i m 's e ar r i ng f a l l i ng o f f. M u ch w as m a de of t he f a ct t h at t he e x a m i n a t i on w as p a i n l e s s. It is d o u b t f ul w h e t h er t h is is n ot to be e x p e c t ed of a w o m an w h o se p r e g n a n cy w as d ue to c o me to c o m p l e t i on in t h r ee m o n t hs t h e n c e. M o re o v er it h as t i me a nd a g a in b e en s a id t h at u n l e ss p r o c u r ed w i t h in a v e ry s h o rt t i me m e d i c al e v i d e n ce p r o v es f u t i le in t he a t t e m pt to d e t e r m i ne r a pe f r om e x a m i n a t i on of t he w o m an w ho h as h ad p r i or e x p e r i e n ce of s e x u al i n t e r c o u r se if s u ch e x a m i n a t i on t a k es p l a ce a f t er t he n o r m al l i fe s p an of t he s p e r ms h as e l a p s ed - u s u a l ly s o me t w e n ty f o ur h o u r s. F u r t h er r e g a rd s h o u ld be h ad to t he f a ct t h at no h i s t o ry of p r i or i n t i m a te r e l a t i o n s h ip e x i s t ed b e t w e en / t he - 6- the accused and the complainant. There is evidence that the complainant's clothing was soiled. There is also the evidence thai: she even passed out. There is evidence that villagers came to her aid; drawn towards the donga where she was by her cry. P. W.2 said when she approached the donga she saw someone go past the donga. The accused's conduct after the event cannot stand him in any good stead at all. He said he refused to open the door to the chief and messengers accompanying the chief to arrest him because he feared they would assault him. Even though he was innocent? He feared assault by the chief? The question immediately arising is "innocent of what?" When later the following day the messengers were sent there the accused was nowhere to be found. Why? It took the effort of police to run accused to earth and arrest him. Indeed the record reveals that ...he remained silent under cross-examination when it was pointed out to him that the features of his pin and its size were such that It could not have been mistaken for any other. His story that he had lost the lid of his torch at Bafatsana feast amounts to nothing but an afterthought for he never challenged the crown witnesses concerning that when they referred to the fact that it was found at the scene. The accused did not gainsay P. W.5's testimony that he saw him previously using the pin that was collected from the scene. The question that the puss or traces of venereal /disease - 7- d i s e a se m u st h a ve b e en d i s c h a r g ed by t he a c c u s ed into t he c o m p l a i n a nt if he is t he o ne w ho c o m m i t t ed t he s e x u al o f f e n ce is f l a w ed on t he g r o u nd t h at t he body m e c h a n i sm is in c o n s t a nt f i g ht a g a i n st i n f e c t i on or c o n t a m i n a t i on by f o r e i gn b o d i e s. F u r t h e r m o re e v en if p u ss or t r a c es of v e n e r e al d i s e a se w e re to be f o u nd in t he c o m p l a i n a n t 's p r i v a te p a r t s, such f i n d i ng w o u ld not n e c e s s a r i ly r u le o ut t he p o s s i b i l i ty t h at t he c o m p l a i n a nt h e r s e lf w as s u f f e r i ng f r om s u ch d i s e a s e. A r g u m e nt b a s ed on t h is leg of t he a c c u s e d 's c a se is n o t h i ng b ut s p e c u l a t i ve if n ot i n t e n d ed to s e r ve as a r e d - h e r r i ng a c r o ss t he t r a i l. In t he p r e s e nt c a se it i s, I t h i n k, m o re p r o d u c t i ve to w i t h d r aw f r om t he q u a g m i re of m e d i c o- legal t h e o ry to t he f i r m er g r o u nd of f a c t. The m a g i s t r a te w as in no d o u bt as to t he c o m p l a i n a n t 's i d e n t i f i c a t i on of t he a c c u s e d. I a g r ee w i th h i m. In V vs A 1984 (2) Z 1r at p. 140 - a Z i m b a b w e an d e c i s i on M c N a l ly J. A. r e f e r r i ng to Player vs W i l l i a ms 1 9 8 1 ( 3) SA 3 48 AD at 351 A to 3 52 D h i g h l i g h t ed t he p r i n c i p le e n u n c i a t ed by T r e n g o ve J. A. in t h e se w o r ds "In s u m m a r y, it w as t h e re d e c i d ed t h at c o r r o- b o r a t i on s h o u ld n ot be i n s i s t ed u p on as a m a t t er of l a w, but t h at as a m a t t er of p r a c t i ce t he of t he i n h e r e nt d a n g er of a c t i ng u p on t he t e s t i m o ny of t he c o m p l a i n a nt in a ( s e x u a l) c a s e ." c o u rt s h o u ld a l w a ys w a rn i t s e lf In his s k e t c hy j u d g m e nt t he l e a r n ed m a g i s t r a te s e e ms to h a ve p r o p e r ly c o n s i d e r ed f a c ts w h i ch w e re c o n s i s t e nt w i th t he c o m p l a i n a n t 's s t o ry and i n c o n s i s t e nt w i th t he i n n o c e n ce of t he a c c u s e d. as a c o r r o b o r a t i ve f a c t o r. T h is in i t s e lf s e r v es In any e v e nt H o l m es J. A. in S v s. S n y m an 1 9 68 (2) SA 5 82 AD at 585 E set o ut c i r c u m s t a n c es in / w h i ch -8- w h i ch t he i n h e r e nt d a n g er is a v o i d e d. T h ey are 1. C o r r o b o r a t i on of t he c o m p l a i n a nt in a r e s p e ct i m p l i c a t i ng t he a c c u s e d. 2. The a b s e n ce of g a i n s a y i ng e v i d e n ce by h i m. 3. (A f i n d i ng as t o) his m e n d a c i ty as a w i t n e s s. D e m u r r i ng a p p l i c a t i on of d i c ta to f a c ts in a p i e c e m e al and m e c h a n i c al m a n n er w i t h o ut t a k i ng a c c o u nt of t he t o t a l i ty of t he f a c ts M c N a l ly J. A. p o i n t ed o ut t h at "It is t he v e ry d a n g er r e f e r r ed to in s i m i l ar c i r c u m s t a n c es by M a c d o n a ld A . J . P. in R vs J. 1965 RLR 501 at 5 0 3, 1 9 6 6 ( 1) SA 88 (SR. AD) at 9 0E w h en he s a id "the e x e r c i se of c a u t i on s h o u ld n ot be a l l o w ed to d i s p l a ce t he e x e r c i se of c o m m on s e n s e . "" See S vs S n y m an a b o ve at 5 9 8H I am e n a m o u r ed of M c N a l ly J . A . 's s t a t e m e nt at p. 143 t h a t :- "The p r o p er a p p r o a c h, it s e e ms to m e, is to look at t he t o t a l i ty of t he s u r r o u n d i ng c i r c u m s t a n c es and i n d e p e n d e n t ly e s t a b l i s h ed f a c t s. If it a p p e a rs t h at a n u m b er of t h e se f a c ts and c i r c u m s t a n c es p o i n t, a l b e it w i t h o ut o v e r w h e l m i ng i n d i v i d u al f o r c e, in o ne d i r e c t i o n, t h en t he sum of t h e ir c o l l e c t i ve f o r ce m ay be s a i d, in a p r o p er c a s e, to a m o u nt to c o r r o b o r a t i on s u f f i c i e nt to s h ow a b a l a n ce of p r o b a b i l i ty in t h at d i r e c t i o n ." C . F. M a y er vs Williams a b o ve at 3 5 2 s, A l t h o u gh M a y er is a c i v il c a se it h o w e v er has a b e a r i ng on Lord D e n n i n g 's d i c t um in M i l l er vs M i n i s t er of P e n s i o ns ( 1 9 4 7) 2 A LL E . R. 3 72 at 3 73 w h e re in r e f e r e n ce to t he c r i m i n al s t a n d a rd it w as said "It n e ed not r e a ch c e r t a i n t y, but it m u st c a r ry a h i gh d e g r ee of p r o b a b i l i t y. a r e a s o n a b le d o u bt d o es n ot m e an p r o of b e y o nd a s h a d ow of d o u b t. p r o t e ct t he c o m m u n i ty if it a d m i t t ed f a n c i f ul p o s s i b i l i t i es to d e f l e ct t he c o u r se of j u s t i c e. The law w o u ld fail to P r o of b e y o nd /If — 9— If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it's possible but not in the least probable' the case is " proved beyond reasonable doubt As Co the accused's conduct after the offence it would be productive to consider the words of Dunn J. in CRT. Case No. 85/86 The Queen vs Simon Musa Mphofu re: Sentence (unreported) at p. 3 C/F S. vs X 1974 (1) SA 344 at 347H to 348A. It is Che general experience of the courts that various motives may exist for a complainant in a rape case other to concoct an allegation of rape or to substitute the accused for the real culprit. That is the underlying reason for the cautionary rule. If; is unnecessary in this judgment to canvass such motives save to say that one, not infrequently found, is a desire on the part of a woman to conceal or explain evidence of an extra-marital affair. of course, consist of a sexually transmitted disease and, while I do not suggest that that was necessarily the position in the present case, the evidence that would show that the complainant was suffering from such a disease would certainly be worthy of consideration in assessing the general credibility of her testimony. Such evidence may, of Furthermore there was no suggestion that while the sexual act was engaged in with consent initially, some disturbance or intrusion by a third party prompted the complainant to feign a rape charge against the accused. Dogs had been barking because of the accused's intrusion into the complainant's premises and the sub- sequent disturbance caused by the accused dragging the /the - 1 0- the complainant away. Witnesses heard this,din of barking dogs. Clearly the pressure that the accused applied to the complainant's throat made it impossible for her to shout. That her voice was still hoarse when she was later examined i.e. more than forty eight hours afterwards is proof that such pressure would suffice to make the victim lose consciousness. and or prevent her from shouting for help. could not have been indulged in with the complainant's consent. Any subsequent sexual act Reasons for accepting the evidence of the complainant advanced by the learned magistrate who though is relatively a novice on the bench and there- fore could not couch his judgment in terms which would bear out the obvious, are enough in my opinion to support the view that the accused was properly convicted as charged. Hence on the footing that " If any or all of these elements i.e. (corroboration of the evidence of intercourse the lack of consent and the identity of the offender) are uncorroborated, the court must warn itself of the danger of convicting and, in such circumstances, it will only convict if acceptable and reliable evidence exists to show that the complainant is a credible and trustworthy w i t n e s s' I find that abundant evidence exists to show that indeed the complainant was a credible and trustworthy witness on the basis of whose evidence the learned magistrate cannot he faulted for having secured a conviction. Even though he did not expressly say he had warned himself the reasons he has advanced for believing her exclude the possibility that he convicted when it was not safe to do so on account of the dangers inherent in sexual cases. I must however point cut that the learned magistrate erred by treating the /accused's -11- accused's admission of the offence in mitigation of sentence as proof of the commission thereof. It is significant in the learned magistrate's judgment that a finding was made that the items of property collected at the scene beside the one belonging to the complainant all connected the accused with the offence and further that the accused "has not indicated that he had lent out these articles to anyone . I It; is important indeed to note that in reference to a judgment by an experienced learned Wentzel J. A. in C of A (CRI) No. 5 of 1984 Khethi'sa Molapo vs Rex (unreportd) at p. 2 said magistrate, the "It is illuminating to interpose to say the magistrate had written in his judgment that he had treated the complainant's evidence with caution and had warned himself of the dangers of convicting without corro- With regard to sentence it has repeatedly b e en pointed out that a five year prison term is a minimum In respect of a benign rape. In R vs Billam and Others <1986) 1 ALL E. R. . 985 (C. A.) 987 - 988 penalties for rape are reflected and arranged in a sliding scale of seriousness, at the bottom of which is recommended five years while life sentence is at "the apex of such scale depending on the presence and the inter-action of aggravating factors. Our statute provides the death sentence. In the instant case the sordidness of the rape was aggravated by the savage pressure that was applied to the victim 's throat with the result that her voice went hoarse even days after the occurrence. It is not clear whether the complainant lost consciousness due to the rape or to the pressure applied to her throat. But the result in my opinion was all the same because loss /of -12- of consciousness terminated Che complainant's resistance. In considering an appropriate sentence sight should not be lost of the fact that the complainant was even pregnant. Ordinarily in Basotho society it is taboo to have sex with a pregnant woman. But the serious view I take of the offence is that a woman should be subjected to such vile act during a time in her life when any use of force on her could result in the loss of her baby or her own life. It is proper for me therefore to confirm the verdict but set aside the five year prison term and in substitution thereof impose one of eight years. J U D G E. 19th September, 1989. For Crown : Miss Nku For Defence : Mr. Peete.