R v Selemane (CRI/S 13 of 88) [1989] LSCA 63 (2 June 1989)

C R I / S / 1 3 / 88 IN T HE H I GH C O U RT OF L E S O T HO In the m a t t er B e t w e en : R EX v B O L OU S E L E M A NE Before the H o n o u r a b le Chief J u s t i ce Mr J u s t i ce B. P. C u l l i n an on the 2nd d ay of June 1989 For the Crown : Mr S. Mdhluli For the Accused : Mr T. T e e le J U D G M E NT The a c c u s ed w as convicted of r a pe by the S u b o r d i n a te C o u rt of the Second Class for the M o k h o t l o ng D i s t r i ct It was the e v i d e n ce of the c o m p l a i n a n t, an Intern S u p e r v i s o r, that the a c c u s e d, a s t u d e n t, raped her in her r o o m, t h r e a t e n i ng her with a k n i f e. When he s l e pt she escaped. B e f o re leaving the room she placed his clothing in w a t e r, in o r d er to p r e v e nt his e s c a p e, or his p u r s u i ng her. She m a de i m m e d i a te c o m p l a i nt to a n e i g h b o u r, and t h ey both summoned the police. The a c c u s ed was found still a s l e ep in the c o m p l a i n a n t 's r o o m, the knife b e s i de h i m, his clothing still immersed in w a t er The a c c u s ed m a i n t a i n ed that he had had sexual i n t e r c o u r se t w i c e, with her c o n s e n t, and then slept, T o w a r ds d a wn she - 2 - wished him to l e a v e, as she did not wish him to be o b s e r v ed leaving her room after dawn. He r e f u s e d, saying he was tired. He did observe her leave the room, but t h e r e a f t er s l e p t, a w a k i ng to find the p o l i ce in the room. He denied e v er t h r e a t e n i ng the c o m p l a i n a n t, and in p a r t i c u l ar ever b r a n d i s h i ng a knife. The learned Counsel for the a c c u s e d, Mr T e e l e, points to a n u m b er of a s p e c ts in the e v i d e n c e, g i v i ng rise to e n q u i r y. The f i r st is that the complainant testified that the accused d i v e s t ed h i m s e lf of his clothing, e x c e pt his u n d e r w e a r, in o r d er to wash himself. The a p p e l l a nt testified that the complainant took off his clothes and asked him to wash h i m s e l f. Mr Teele s u b m i ts that the act of w a s h i ng is n ot the act of a r a p i s t. I m u st confess that the a c c u s e d 's account is the more r e a l i s t ic one. S e c o n d l y, the c o m p l a i n a nt testified t h at w h i le the accused w as w a s h i ng h i m s e lf she attempted to e s c a pe by the d o o r w a y, but he caught h e r, as he was standing near the p a r t i c u l ar doorway. She admitted in c r o s s - e x a m i n a t i on that t h e re was a n o t h er unlocked d o or in her room, connecting with a vacant room n e xt d o o r, y et she never tried to e s c a pe by that d o o r, a l t h o u gh the accused was not standing near it, T h i r d l y, the c o m p l a i n a n t 's e v i d e n ce indicated at first that the rape took place around 9-10 p.m. When she was queried as to the i n t e r v e n i ng l i m e, she put that act of r a pe much later - about 2 a.m She testified t h at she escaped at the f i r st a v a i l a b le o p p o r t u n i t y. I find it d i f f i c u lt to a p p r e c i a te h o w e v er why an alleged rapist waited three to f o u rt hours to effect his i n t e n t i o n , or why no /..... - 3 - o p p o r t u n i ty to e s c a pe p r e s e n t ed itself any e a r l i er than 4-5 a.m. It is s i g n i f i c a nt that she escaped as dawn was b r e a k i n g, c o r r o b o r a t i ng his e v i d e n ce that she grew annoyed at his refusal to leave at that time. ' There is on the o t h er hand her act of immersing his clothing in w a t e r, but then she may well at t h at s t a g e, e m b a r r a s s ed at his unwanted p r e s e n ce in her room, h a ve decided to stage an alleged rape. There is the a s p e ct of the k n i f e, but t h e re is only her e v i d e n ce thereof. The i n v e s t i g a t i ng o f f i c er passed away before the t r i a l: but as Mr Teele p o i n ts o u t, not o n e, but two police o f f i c e rs went to her room: the second p o l i ce O f f i c er was not called, h o w e v e r. Mr T e e l e, who represented the accused at his t r i a l, admitted the knife and clothing as e x h i b i t s. That does not e s t a b l i sh w h e re the knife was found by the police in the c o m p l a i n a n t 's r o o m: even if it was found on the bed, it would have been a simple m a t t er for the complainant to have placed it t h e r e, b e f o re leaving the room p o s s i b l y, or even s u r r e p t i t i o u s ly a f t er e n t e r i ng the room. A g a i n, t h e re is the a s p e ct of c o m p l a i n t, but that goes merely to show the c o n s i s t e n cy of the complainant's evidence. The m e d i c al e x a m i n a t i o n, d e s p i te the d o c t o r 's opinion t h at "rape m i g ht be p o s s i b l e ", r e v e a l e d, I am bound to say, nothing of any s i g n i f i c a n ce w h a t s o e v e r. In b r i e f, t h e re is much to be said for the version of both the complainant and the accused. If a n y t h i n g, the scales tip in his favour., In any e v e n t, the onus was upon the p r o s e c u t i o n, and I do not consider t h a t, on the e v i d e n c e. it could be said that his version could not be r e a s o n a b ly t r u e. /.... - 4 - More importantly, the learned trial Magistrate never once warned herself of the need for corroboration in a sexual case. This case,I consider is a classic example of the difficulties facing a Court in a sexual case, and illustrates why corroboration is neccessary, Had the learned trial Magistrate adverted to the points enumerated above, and had she correctly directed herself in the matter 1 am in no way satisfied that she would inevitably have convicted the accused. It would be unsafe to allow the conviction to stand, The conviction in the court below is set aside and the accused is acquitted. Delivered at Maseru This 2nd Day of June, 1989 (B. P. CULLINAN) CHIEF JUSTICE