R v Yohani Mporokoso (Criminal Appeal Case 12 of 1939) [1939] ZMHCNR 18 (31 December 1939)

152 V ol. II] R. v. YOHANI MPOROKOSO. Crim in al Appeal Case N o. 12 of 1939. R ape— must be evidence o f penetration— i f woman asleep she cannot consent to intercourse— native custom should be proved by evidence—to succeed on appeal the appellant must show that the verdict is unreasonable and cannot be supported by the evidence. The facts and the law appear from the judgm ent hereunder. The Federal Supreme Court is n ot lim ited in its approach to the determ ination o f appeals under section 13 (1) o f the Federal Supreme Court A ct, 1955. See Abram Chiteta v . Reg. 1960 S. J. N . R . 33. R ob in son , A . C . J .: The accused person, Y ohani Mporokoso, was convicted on 15th March, 1939, on a charge o f raping one Mulenga, a girl aged about 11 years and 10 months, but who had already been through the tribal puberty cerem ony. He now appeals against conviction but does not wish to be present. The Crown story is that the accused, although disapproved o f by the girl’s parents, used to pay his addresses to the girl. B y Bawemba native custom , the com plainant being a “ Chisungu ” girl, i.e., o f an age between puberty and marriage, could not be touched except b y the man she was to marry. Before marriage, the m atter is form ally arranged by the prospective husband giving an “ nsalamu ” (betrothal token) to the father, or person in loco parentis, o f the prospective wife. In this case the girl was not promised to the accused or anybody else. A bout 1st March, 1939, the com plainant and others went to a wedding at a neighbouring village and beer was drunk. The accused was also there and he too drank beer. They returned in the evening and the complainant and Chisela, a girl friend, w ent to their hut where they sleep with tw o small children. During the night, after they were asleep, the complainant was woken up b y finding the accused on top o f her and having sexual connection with her. This woke up Chisela who corrobor­ ates seeing the accused on top o f the com plainant. N othing was said for about tw o days and then Chisela inform ed Chanda, the girl’s mother, who thereupon attempted suicide b y hanging. The defence is that the accused never touched the girl on the night alleged by the Crown but he adm its sleeping with her about three weeks previously and alleges it was w ith her consent. H e set up an alibi by saying that after the wedding, m entioned b y the Crown witnesses, he returned with his friend Thomas and they slept together in one hut. But Thomas was called by the Crown and he said in evidence that he woke up during the night and found his friend had left the hut although he was there again in the morning. [Vol. II The learned Magistrate sat with two native chiefs as assessors who advised him on native custom. They advised him, during the course o f the case, that in their view, that if a girl lost her Chisungu, she could not possibly conceal the fact for more than a day or two. She would not dare do it as she would believe she herself would die and she would contaminate the other children in the village and her elders until she was purified. They rejected the accused’s story and accepted the story o f the Crown. The learned Magistrate also took that view and convicted the accused o f rape contra section 113 Penal Code. In my opinion there was ample evidence on which the Magistrate could accept the Crown story as opposed to the accused. For the appel­ lant to succeed he has got to show that the verdict is unreasonable and cannot be supported having regard to the evidence: Rex v. McNair, 2 Cr. App. R . 2. It cannot be said to be unreasonable when the evidence o f the complainant and Chisela and Thomas is accepted. I think a doubt was in the mind o f the Magistrate as to whether wording o f section 113 Penal Code “ . . . unlawful carnal knowledge . . . without her con­ sent . . . ” had been adequately fulfilled if she was asleep at the time. The doubt can be set at rest by citing Reg. v. Mayers, 12 Cox 311, the head­ note o f which reads “ I f a man has or attempts to have connection with a woman while she is asleep, it is no defence that she did not resist, as she is incapable o f resisting. The man can therefore be found guilty o f a rape, or o f an attempt to commit a rape.” Also Reg. v . Young, 14 Cox 114, the headnote being “ While a married woman was asleep in bed with her husband, the prisoner got into bed and proceeded to have connection with her, she being then asleep. When she woke . . . she flung the prisoner off. Held the prisoner was guilty o f the crime o f rape.” However, I am not satisfied that the proof here o f rape is sufficient. To prove a rape it is necessary to prove penetration or partial penetration. The only evidence here is that o f the complainant where she says “ I woke up and found Yohani on top o f m e.. . . He had actually had con­ nection with me.” To put the matter beyond doubt she should have been asked further questions to elicit as to whether or not there had been penetration. It is unfortunate she was not examined at all. I have one other criticism to make which is that in this case a good deal o f native custom was propounded by the two chiefs sitting as asses­ sors. Native custom should, o f course, be proved by an “ expert ” native witness from the witness box, but though o f interest, native custom was not essential here to the disposal o f the case and so the trial has not been invalidated. B y virtue o f the powers given me under section 300 (a) (ii) Criminal Procedure Code, I alter the conviction to one contra section 115 Penal Code (attempt to commit rape) and confirm the sentence and dismiss the appeal.