Tembo v People [1966] ZMHC 11 (18 November 1966)

TEMBO v THE PEOPLE (1966) ZR 126 (HC) HIGH COURT RAMSAY J 18th NOVEMBER 1966 Flynote and Headnote [1] Criminal procedure - Prosecution's case - Amendment of charge - When Possible. The Criminal Justice Act, 1965, has amended s. 192 of the Criminal Procedure Code so that a charge can now only be amended before the close of evidence in support of the charge, whereas before that Act an amendment could be made at any time before the close of the case for the prosecution. [2] Criminal law - Sexual offences - Danger of convicting without corroboration. Caution should be exercised in trying all charges involving sexual offences where the only evidence against the accused is the uncorroborated testimony of the complainant. [3] Evidence - Corroboration - Danger of convicting without it in sexual offences. See [2] above. Cases cited: (1) Kisoi v R (1955), 22 EACA. 484. (2) R v Mancinelli (1957) 6 NRLR 19. Statutes construed: Criminal Procedure Code (1965, Cap. 7), ss. 169, 172, 189, 192. Criminal Procedure Code (1965, Cap. 7), s. 192, as amended by the Criminal Justice Act (No. 76 of 1965), s. 6. Patel, for appellant D P P Chuula ,for the respondent Judgment Ramsay J: The appellant, Steven Tembo, was brought before a subordinate court charged with rape contrary to s.113 of the Penal Code. The particulars averred were that on 4th August, 1966, at Lusaka he did have unlawful carnal knowledge of a woman, namely Joyce Tembo, without her consent. He was convicted of assault with intent to commit a felony, namely, rape; and he was sentenced to two years' imprisonment with hard labour. He is appealing against conviction and sentence. Joyce Tembo gave evidence in the lower court that in the forenoon of the day in question she had gone with her small baby to look for firewood. She met the appellant, who greeted her. She replied and continued on her way. He then came from behind, grabbed her with his arms and pushed her to the ground. She fell on her back. He separated her legs. She shouted for help, but the appellant had 1966 ZR p127 RAMSAY JA connection with her, there being penetration but no ejaculation. Her friends came in answer to her shouts, and when he heard them coming he got off and ran away. One of these friends was Elizabeth Phiri. She testified that she heard the cries and that when she arrived Joyce complained to her that she had been slept with by a person. She saw the appellant walking away. They shouted to him to stop. He did so, and they took him to an office where he was locked up. She noticed that Joyce had dust on the left side of her body, and that the baby also had dust on it. Joyce was medically examined, but there was nothing abnormal. A vaginal swab was taken, but as the complainant was married and had said there was no ejaculation the results of the examination of the swab were of no probative value. When the accused was arrested he was warned and cautioned, and he denied the offence. Archbold (35th Edition), paragraph 1299, commences as follows: ' Corroboration is looked for, and the jury should be warned of the danger of acting without it, in all cases of sexual offences, irrespective of the age or sex of the complainant or other party involved. At the close of the case for the prosecution, there was possible corroboration as to the identity of the appellant in that Elizabeth Phiri had seen him walking away; as to the assault, in that there was dust on Joyce's side, and as to lack of consent in that she had shouted for help. There was, however, no corroboration of the sexual element of the offence; and at this stage of the trial, the magistrate was apparently not sufficiently satisfied with Joyce's evidence to convict on it without corroboration. He referred to the fact that there was nothing to support or corroborate the full offence, and purporting to act under s. 192 of the Criminal Procedure Code as amended by the Criminal Justice Act, 1965 (No.76 of 1965), he substituted a charge of assault with intent to commit a felony, namely rape, contrary to s. 222 (a) of the Penal Code. This procedure was unusual as s.172 of the Criminal Procedure Code has specified provision that when a person is charged with rape and the court is of opinion that he is not guilty of that offence but is guilty of indecent assault contrary to s.118 of the Penal Code, he may be convicted of indecent assault although not charged with it. Also, when a person is charged with an offence, s.169 of the Criminal Procedure Code permits a court to convict him of having attempted to commit that offence though not charged with it. [1] Section 192 of the Criminal Procedure Code authorises a subordinate court to alter a charge that is defective either in substance or form. In the instant case, it seems that it was not the charge that was defective but the prosecution evidence which was adduced in its support. (Cp. Mbithi Kisoi v R [1].) Before the passing of the Criminal Justice Act, the alteration had to be made 'before the close of the case for the prosecution'. Now it can be done 'before the 1966 ZR p128 RAMSAY JA accused is required to make his defence', but this is qualified by the words, 'save as in s. 189 of this Code otherwise provided'. Section 189 is as follows: ' If, at the close of the evidence in support of the charge, it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit him.' It is possible, therefore, that the Criminal Justice Act has limited the court's powers of amendment and not enlarged them. Before the passing of the Act, an amendment could be made at any stage before the close of the case for the prosecution. It seems likely that most amendments will now have to be made before the close of the evidence in support of the charge. As I have said, the appellant was put on his defence to the substituted charge of assault with intent to commit a felony, namely rape. He gave evidence that he had met the complainant and that she spoke to him. Her friend then arrived. They made a lot of noise, and he went with them to his place of work. They said they had found the man who was troubling them in the compound, and when the police arrived it was only then that she accused him of having raped her. [2] [3] In his judgment, the learned magistrate stated that the complainant, Joyce, was an unsophisticated young woman and he felt that although she was not a dishonest witness it would be unsafe to rely on her evidence that there was actual penetration. He said that it was because she was not a good witness that he substituted the charge of assault for the charge of rape. He dealt carefully with the need for corroboration in a charge of rape. He then said that corroboration was not required in a charge of assault, but it should be looked for in the sexual element of the offence, in other words, the alleged intent. He found no corroboration there, but he decided that the only explanation for the assault was that the appellant had the intention of raping the complainant and he convicted him. With respect, I do not think that the charge can be divided into its constituent elements in this way. Cross on Evidence, at 177, gives some of the reasons why caution should be exercised in finding that adultery has been committed when the only evidence is the uncorroborated testimony of one of the adulterers; these are that the charge is easy to make and difficult to refute and one that can easily be concocted on account of hysterical or vindictive motives. He then says that considerations such as these have led the courts to direct juries in the case of all charges of sexual offences that it is not safe to convict on the uncorroborated testimony of the complainant but that they may do so if satisfied as to its truth. In my judgment, these considerations apply with equal force to any assault for motives of indecency, and I consider that the same precautionary rules of practice must be followed with regard to such an assault as they would be in the case of indecent assault. 1966 ZR p129 RAMSAY JA The Director of Public Prosecutions appeared for the respondent and he informed the court that the State did not support the conviction for assault as there was sufficient evidence to show that the offence of rape was committed. He submitted that there was substantial corroboration of the complainant's story and he said he failed to see how the magistrate could have believed her as to the assault but not as to the penetration. Even if I wished to do so, I could not, of course, now convict the appellant of rape in view of the fact that he was never put on his defence on the charge of rape. In my opinion, when the learned magistrate decided that Joyce's evidence as to the rape was not sufficiently credible to act on without corroboration, he should have decided that the case was not made out sufficiently against the appellant to require him to make a defence to the charge of rape or to one of the invisible alternatives to the charge (vide R v Secundo Mancinelli [2]), and he should have dismissed the case and acquitted the appellant. I accordingly allow the appeal. I reverse the finding and sentence, and I acquit the appellant. Appeal allowed