R v Manuel (Confirmation Case 249 of 2020) [2022] MWHC 94 (18 May 2022)

Page;! of 4 IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CRIMINAL DIVISION CONFIRMATION CASE NO. 249 OF 2020 (Being Criminal Case No. 382 of 2021 before the Senior Resident Magistrate Court sitting at Mulanje) THE REPUBLIC V ANINI MANUEL Coram: Justice Vikochi Chima Mr Mphepo, Senior State Advocate Mrs Kasambara, Senior Legal Aid Advocate Mrs Moyo, Court Clerk Chima J ORDER IN CONFIRMATION 1. Anini Manuel, a man aged 44 years, was convicted, by the Senior Resident Magistrate sitting at Mulanje, of rape contrary to section 133 of the Penal Code and was sentenced to eight years imprisonment with hard labour. The matter was set down to consider enhancement of the sentence. 2. The complainant, an eighteen year old girl, had visited the convict, who is a herbalist, to seek help for her epileptic fits. When she went the first day, she was given herbs. She then was told to go again on another day to dispose of the used herbs. On that day, the convict told her that they would dispose of the herbs in Ruo River. 3. The convict took her to Ruo River. There he told her to sit on a stone. The convict pressed some charm. The girl felt weak. The convict then took the charm and inserted it into her vagina and took it out and blood came out. He inserted it again and the charm came out with some foam. After that the convict unzipped his pair of trousers and inserted his penis Page 2 of 4 in her vagina. He then took his semen from the complainant’s vagina and mixed it with some herbs and told her to throw it in the river. 4. Then the two went back to the convict’s house and he cooked some herbs and gave her to drink. After she drank this, she went home. She stated that after drinking this medicine she was unable to talk such that she did not report the incident right away. It was only the following day that she was able to tell her mother about it. 5. This case is almost on all fours with 7? v Flattery? where John Flattery was indicted for rape upon nineteen year old Lavinia Thompson and was convicted by the learned judge. The judge then postponed the sentence in order to obtain the opinion of the Queen’s Bench on whether on the facts there was no consent and that the conviction was warranted. The facts of the matter were that the girl had epilepsy and at the time was in ill-health and subject to fits. On a certain day, which was a market day, with a view to obtain medical and surgical advice, she went with her mother to Halifax to consult John Flattery, who kept an open stall in the market, at which he professed, for money consideration, to give medical and surgical advice. The two went together to Mr Flattery’s stall and there saw him, and in the presence and hearing of the girl, her mother told him her condition and that she was subject to fits, and consulted him as to a remedy. Mr Flattery expressed a desire to examine the girl with a view to giving the advice sought, and requested the girl and her mother to follow him to the Peacock Inn, which was close by, for that purpose, and they did so. 6. At the Peacock Inn, Mr Flattery put several questions to her touching the girl’s condition and made some examination of her person. Having done this, Mr Flattery, not believing that the advice he was about to give would be of any service to the girl, not intending nor with any view to perform a medical or surgical operation, but solely with a view to gratify his lust, knowing that he was speaking falsely, told the mother in the presence and hearing of the girl that “it was nature’s string wanted breaking” and asked if he might break it. The mother replied that she did not know what he meant but that she did not mind if it would do her daughter any good. 7. At that moment, the girl, in Mr Flattery’s presence, had a fit and fainted away. When she came to herself again, Mr Flattery, in the girl’s presence and hearing, fraudulently and falsely repeated that nature’s string wanted breaking, and added that if that did not do her good nothing would, and he again asked if he might break it. Again the mother said she did not mind if it would do her daughter any good. Then Mr Flattery said to the mother, “You stay here and I’ll try.” He then went into a small adjoining room to perform the operation he had advised. In that room he had sexual intercourse with her, the girl making but feeble resistance, believing that he was merely treating her medically and performing a surgical operation to cure her of her illness and fits. Kelly C. B. had this to say: ‘I think this conviction ought to be affirmed...on the case stated, it is plain that the girl submitted to the plaintiffs touching her person in consequence of the fraud and false pretences of the prisoner, and that the only thing she consented to was the performance of a surgical operation. Up to the time when she and the prisoner went into the room alone, it is clearly found on the case that the only thing '(1877)2 QB 410 Page 3 of 4 contemplated either by the girl or her mother was the operation which had been advised; sexual connection was never thought of by either of them. And after she was in the room alone with the prisoner, what the case expressly states is that the girl made but feeble resistance, believing that she was being treated medically and that what was taking place was a surgical operation. In other words, she submitted to a surgical operation and nothing else. It is said, however, that, having regard to the age of the prosecutrix, she must have known the nature of sexual connection. I know no ground in law for such a proposition. And if she had such knowledge, she might suppose that penetration was being effected with the hand or with an instrument. The case is therefore not within the authority of those cases which have decided, decisions which I regret, that where a man by fraud induces a woman to submit to sexual connection, it is not rape.’2 8. In R v Williams, the appellant, Owen Richard Williams, was charged with two counts of rape and two counts of indecent assault and was convicted. The appellant, who was the choirmaster of a Presbyterian church, by reason of that fact became acquainted with Vera Howley, a girl of sixteen years of age, and it was arranged by her parents that she should take lessons in singing and voice production from him. On the occasion of the second singing lesson, the appellant said that she was not singing as she should and was not getting her notes properly and told her to lie down on a settee. He removed a portion of her clothing and placed upon the lower part of her body an instrumcnt which was in the nature of an aneroid barometer and according to the evidence was not in working order and would not in any event have been affected by the breathing of the girl and then told her to take a deep breath three times. He looked at the instrument and purported to write something in a book. He then dropped on to her and proceeded to have sexual intercourse with her. When she asked, “What are you going to do?”, he said, “It is quite all right; do not worry. I am going to make an air passage to make it right. Your parents know all about it, it has all been arranged; before God, Vera, it is quite right. I will not do you any harm.” The girl made no resistance, as she believed what he told her nor did she know that he was having sexual intercourse with her. The appellant had sexual intercourse with her a second time on another day about three months later in similar circumstances. 9. The appellant also on two occasions committed an indecent assault upon another girl, a nineteen-year-old, to whom he had also been giving singing lessons and voice production. Upon the pretence that her breathing was not right he put his finger up her private parts, saying that he was making an opening for the air to pass. On appeal Lord Hewart C. J. endorsed the sum up of Branson J. in the present case that he had stated the law in accurate terms. Branson J. had said: ‘The law has laid it down that where a girl’s consent is procured by the means which the girl says this prisoner adopted, that is to say, where she is persuaded that what is being done to her is not the ordinary act of sexual intercourse but is some medical or surgical operation in order to give her relief from some disability from which she is suffering, then that is rape although the actual thing that was done was done with her consent, because she never consented to the act of sexual intercourse. She was persuaded to consent to what he did because she thought it was not sexual intercourse and because she thought it was a surgical operation.’ 2 At413 3 [1923] KB 340 Page 4 of 4 10. Coming to the present case, it is plain to see that the girl thought she was being taken to the river for medical or surgical reasons for the cure of her epilepsy. She thought the indecent assault when the convict inserted the charm in her vagina as part of the procedure. She must have thought the very exact thing about the sexual encounter at the time it was happening that it was part of the treatment. In any event, she physically felt weak to resist and coupled with her belief, she simply submitted to his actions. The consent here was obtained fraudulently and so the conviction of rape is apt and is confirmed. 11. Coming to the sentence, on review the judge observed that the sentence is inadequate. Rape is a very serious offence as shown by the maximum sentence which is life imprisonment or death. The High Court in Rep v Msowoya quoted with approval the dictum of Lord Lane CJ in R v Roberts^ and gave guidance as to what ought to be the considerations in 5 reaching an appropriate sentence for rape offenders. Lord Lane CJ had said: ‘Rape is always a serious crime. Other than in wholly exceptional circumstances, it calls for an immediate custodial sentence.. . A custodial sentence is necessary for a variety of reasons. First of all, to mark the gravity of the offence. Second, to emphasise public disapproval. Third, to serve as a warning to others. Fourth, to punish the offender, and last, but by no means least, to protect women. The length of the sentence will depend on all the circumstances. That is a trite observation, but these in cases of rape vary widely from case to case. Some of the features which may aggravate the crime are as follows... Where the victim has been subjected to further sexual indignities or perversions... Where the offender is in a position of trust.’ 12. A person who holds himself out to be a herbalist is in more or less the same situation as a Western Science medical practitioner in terms of the trust that his clients repose in him. Thus for the convict to commit these trespasses on the complainant’s person was a grave breach of trust. The convict committed other indignities on her with the assaults of his charm in the girl’s private parts. Of course, this must have been mere hocus pocus to conceal his real intent of having sexual intercourse with her. The convict showed no remorse as the case went for full trial. He is aged 44 and so at such a ripe age where he cannot be shown mercy on account of either old age or youth but must experience the full extent of a contemplated sentence. He is a first offender, while this is a mitigating factor, it pales in significance considering the nature of the offence and the aggravations that have been outlined. His sentence is thus revised upward from eight years’ imprisonment with hard labour to sixteen years’ imprisonment with hard labour.. Made in open court this day the 18th of May 2022 Chima J v 4 Section 133 of the Penal Code 5 12 MLR 394 6 [1982] 1 ALL ER 609