S v Kabisira (838 of 2022) [2022] ZWHHC 838 (17 November 2022)

1 HH 838-22 CA 144/22 ROBERT GABRIEL KABISIRA versus THE STATE HIGH COURT OF ZIMBABWE ZHOU & CHIKOWERO JJ HARARE, 29 September & 17 November 2022 Criminal Appeal S Muzondiwa, for the appellant KH Kunaka, for the respondent ZHOU J: This is an appeal against conviction and sentence. The appellant pleaded not guilty to, but was convicted of rape as defined in s 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was sentenced to 15 years imprisonment of which two years imprisonment was suspended for five years on the usual condition of good behaviour, leaving an effective imprisonment term of 13 years. The appeal is opposed by the respondent. The appellant is the complainant’s step brother, in that they have the same father but are born of different mothers. The complainant was a 15 year old female juvenile. The appellant was 21 years old then. The two were staying at the same house. The court a quo found that on 28 November 2015 the appellant went into a room where the complainant was sleeping and raped her. Appellant was found to have used a screw driver and a crotchet to threaten the complainant. The rape was perpetrated on a Saturday. Complainant reported the rape to her sister Magret Chigaba, on the Monday following that Saturday. In the court a quo the appellant stated in his defence outline that he was indeed at home on the day in question but he was in the company of Portia. He stated that the complainant went to her boyfriend sometime during that day to have sexual intercourse. He asserted that his father did not like him and there was bad blood between him and the rest of the family. The court a quo rejected the appellant’s defence and found that his guilt had been proved beyond reasonable doubt. HH 838-22 CA 144/22 In the notice of appeal the appellant advanced six grounds of appeal against the conviction. Ground two was abandoned at the hearing. Ground one is convoluted and raises three different issues. Firstly, it is contended that the court a quo erred and misdirected itself by failing to consider his defence that he was with Portia. Appellant does not show the relevance of Portia to his defence. The rape occurred inside a room where the complainant was sleeping. Appellant has not alleged that Portia was also in that room. He never stated what Portia’s evidence would be. The assertion that the court a quo erred by failing to call Portia has no basis in law. In adversarial proceedings it is not the duty of the court to call witnesses to bolster a party’s case. The court a quo had no obligation to call Portia. The court a quo actually asked the appellant if he had any witnesses that he intended to call (Record 42). His response was that he had no witness. He then went on to say that he had wanted to call his girlfriend Ivertly. When he was asked what his girlfriend knew about the allegations his response was, “Nothing”. He cannot now blame the learned magistrate for not calling a witness for him. Appellant further states under his first ground that he was not afforded the opportunity by the State to state his case. No submission was made to substantiate this allegation. The record shows that the appellant was afforded time to present his case until he advised the court that he had nothing else to tell the court (Record 43). This assertion therefore lacks substance. In the third ground of appeal, the appellant alleges material inconsistencies and contradictions regarding the screwdriver and the crotchet, and the soiled sheet. The complainant clearly stated (Record 23) that when she asked appellant what he was doing on top of her, he then produced a screwdriver and crotchet which he used to threaten her. She was clear that the crotchet was produced by appellant from one of his trousers pockets. She was also clear that he forcibly caused her to place a sheet under her. He then removed the sheet and took it away after the rape. There is no inconsistency in her testimony. There was no contradiction of a material nature between the complainant’s evidence and that of the second witness. Margret Chigaba actually corroborated complainant on the aspect that complainant told her that appellant had raped her. She also confirmed that appellant disclosed the rape to her on the Monday after the rape which had been committed on Saturday. Ground number four ignores the evidence of the complainant that the sexual assault caused her to bleed. The matter did not turn on the adverb “profusely”, but the relevant and material HH 838-22 CA 144/22 portion is that she did bleed. After all, bleeding is not an essential element of the offence of rape, which makes the issue raised by the ground of appeal of no substance. The appellant was not convicted of violating the complainant’s virginity but of raping her. This ground of appeal is therefore meritless. In the fifth ground the appellant takes issue with the court’s failure to find that there was bad blood between the complainant and the appellant. But the appellant himself never alleged bad blood between him and the complainant. He was speculative as to his relationship with the rest of the family. In his defence outline, (Record 20), he stated”…. I suspect that there is bad blood between me and the family, they do not like me at the house.” However, in his evidence (Record 45) he stated that his father “favoured” him by giving him more money than all the other family members. This does not just discredit his claim that family members hate him, but contradicts the assertion, in the defence outline (Record 21) that his father hates him. The appellant suggested in his defence outline that he suspected that the complainant thought that he was going to tell the father about her boyfriends. This is a mere suspicion based on nothing. The court a quo could not make factual findings based on the appellant’s imagination. The evidence of penetration of the complainant was there in the form of the medical report. The appellant did nothing to discredit the medical report. Thus, the fifth ground of appeal is also without substance. The sixth ground of appeal alleges that the court a quo ignored accused’s evidence that the complainant had a boyfriend and based its reasoning on assumptions. During his cross examination of the complainant he never suggested to her that she had a boyfriend or boyfriends. The appellant led no evidence from any of the alleged boyfriends to prove that the complainant was raped by the boyfriends. His claim about the complainant having gone to indulge in sexual intercourse with a boyfriend was correctly rejected as fanciful. The appeal against sentence was abandoned at the hearing. Counsel for the appellant correctly conceded that it was invalid. HH 838-22 CA 144/22 In the result, the appeal is dismissed. ZHOU J:……………………………………………......... CHIKOWERO J: Agrees………………………………… Chirimuuta & Associates, appellant’s legal practitioners National Prosecuting Authority, respondent’s legal practitioners