S v Musemesi (217 of 2024) [2024] ZWHHC 217 (31 May 2024)

1 HH 217-24 CA 297/22 SHUDLESS MUSEMESI and THE STATE HIGH COURT OF ZIMBABWE FOROMA & KWENDA JJ HARARE 8, 22 May 2023 & 31 May 2024. Criminal Appeal T Mutonhori for the applicant C Muchemwa for the respondent KWENDA J: The appellant, aged 45 years, was charged with rape as defined in s 65(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] it being alleged that he unlawfully had sexual intercourse with a female juvenile aged 16 years without her consent. The appellant and the complainant are not related but live in neighbouring villages in Mhondoro, Ngezi under Chief Benhura. The complainant is mentally challenged. Sometime in August 2021, the appellant and the complainant met as the complainant was coming from where she had gone to fetch water. The appellant had a conversation during which he gave the complainant some edibles called jiggies and some biscuits. He then took her to a place near the river where he had sexual intercourse with her without her consent. The complainant neither protested nor reported to anyone. She, however, told her brother, one Nyasha Machingura of the incident. It was not clear whether she also told another boy, one Tadiwanashe Tembo as the two boys were overheard by the complainant’s uncle, one Michael Chakanetsa discussing the rape incident at a funeral. The issue ended up being leaked to the complainant’s relatives following which a report was made to the Police who then arrested the appellant. The Police caused the complainant to be medically examined. The medical examination revealed healed hymeneal scars, thereby confirming that she had been sexually penetrated. The appellant denied the charge, and the matter proceeded to trial. The appellant’s defence was that the allegation was false. He did not know the complainant and had never met HH 217-24 CA 297/22 her. In any event, the medical report did not confirm that the complainant had been raped recently since the scars on her vagina had healed. The charge did not make any reference to the complainant’s alleged mental incompetence or that her capacity to give consent to sexual intercourse was vitiated by her mental condition. The appellant, who was legally represented at his trial, neither excepted to the charge nor sought further particulars from the State on the significance the statement in the state outline to the effect that the complainant was mentally challenged. Perhaps, the appellant’s counsel did not consider it because of the nature of appellant’s defence. The public prosecutor, called three witnesses and the complainant was the first to testify. She said she was 11 years old and she was not going to school. On the day in question, she met the appellant. In the interaction which ensued, the appellant gave her some edibles before taking her to a place near a river, where he asked her to lie on the ground facing upwards. She complied. While she was in that position, he pulled up her dress, removed her pants and had sexual intercourse with her. When he finished, he warned her not to disclose. The appellant fled when one Trinity’s mother appeared at the scene. The complainant went home. Sometime, later, she told her brother, Nyasha, about the incident. The matter came to light when Nyasha was overheard discussing the issue with another male juvenile, called Tadiwa, at a funeral triggering events which culminated in the matter coming to the attention of the Police. The complainant was subjected to lengthy cross examination by the appellant’s counsel. She was, however, steadfast that she had met the appellant who had sexual intercourse with her in the manner she described. She did not report the incident because the appellant had threatened to assault her if she disclosed the matter to anyone. Under cross-examination, she revealed that certain other male persons, Nyasa and Tonde, had also had sexual intercourse with her. The second state witness was the victim’s brother, Nyasha Machingura, aged 11 years. He confirmed that the complainant reported to her hat the appellant had had sexual intercourse with her. He did not do anything about the report. He must have been overheard discussing the issue Tadiwanashe Tembo at a funeral, triggering an investigation by the complainant’s relatives, which led to the appellant’s arrest on the allegations of raping the complainant. He did not give any evidence on what the State referred to as mental challenge afflicting the complainant. The HH 217-24 CA 297/22 court observed that the witness appeared, also, to be afflicted by a mental illness and noted it on record. The third witness was the complainant’s uncle, Michael Chakanetsa. He testified that sometime in the year 2021, whilst at a funeral vigil, he overheard Nyasha and Tadiwa, then aged around 10 and 12 years, respectively, having observed that the appellant and the complainant were in the habit of having sexual intercourse with each other. He developed an interest in the matter and asked the complainant, the following day, who confirmed that, indeed, the appellant had had sexual intercourse with her. The complainant, actually, revealed that three people namely Nyasha Mutangi, Brian Chibukira and the appellant had had sexual intercourse with her. The witness then reported the matter to other villagers, and, together, they agreed to report the matter to the Police leading to the arrest of the appellant. In his testimony, the witness did not mention anything about complainant’s alleged mental challenges. The complainant was examined by a medical practitioner in connection with the alleged sexual abuse and a psychiatrist who assessed her mental health condition. The State produced the reports by both, the medical practitioners, with the consent of the appellant. The medical report revealed that the complainant was pubertal and had been medically examined on the 26 August 2021. She had no injuries but healed tears of the hymen which suggested penetration. The psychiatrist’s report showed that the complainant suffered from ‘moderate mental retardation’. The State also produced the complainant’s birth certificate which showed that the complainant was 16 years of age. The state then closed its case after leading the evidence summarised above. The appellant applied for discharge at the close of the State case in terms of s 198(2) of the Criminal Procedure Evidence Act [Chapter 9:07], praying for his acquittal on the basis that the State had failed to make a prima facie case against him. His defence counsel submitted that the complainant’s testimony was incoherent and fraught with inconsistences to the extent that it was unreliable. He submitted that, it was, therefore, doubtful that she had met the appellant and that the alleged sexual intercourse had taken place. The State opposed the application for discharge on the grounds that the medical report had confirmed penetration and yet the appellant knew the complainant was mentally challenged as confirmed by the psychiatrist’s report which the State HH 217-24 CA 297/22 had produced at the trial. The defendant’s application for discharge at the close of the State case was unsuccessful. The matter proceeded to the defence case. The appellant gave evidence in his defence under oath. He denied meeting the complainant and having sexual intercourse wither. He said during the period in question he was too busy moulding bricks. He was surprised when his name was mentioned in connection with the allegation that he had raped the complainant. He suspected that the false allegation had been concocted by his nephew’s junior wife with whom he had had some disagreements after he retrieved his cellphone from her. The other possibility was that the false allegation may have been politically motivated because he and the complainants’ relatives had campaigned for political rivals in the previous elections. He did not say anything about the alleged complainant’s mental challenges. The State subjected him to a lengthy cross-examination but did not put any questions to him concerning the allegation that the complainant suffered from a mental health condition. The closest the public prosecutor came to referring to the complainant’s mental condition was when he put it to the appellant that the complainant had told the truth about what happened to her ‘despite her mental status’, to which the appellant replied that he had not done anything to her. At the conclusion of the appellant’s defence, the court made the following factual findings in its judgment. 1. The appellant and the complainant knew each other before the crime because they lived in neighbouring villages. 2. There was medical evidence confirming that the complainant had indulged in sexual intercourse. 3. The complainant suffered from moderate mental retardation. Her entire family had a history of mental illnesses among its members. The mental issues running in the family had delayed the testimony of the complainant’s brother, Nyasha, who was called as a State witness, because he had to be mentally examined before giving evidence. Another member of the family had failed to give evidence due to a mental illness. The trial court then identified the issues to be determined as: - a) Whether the appellant had had sexual intercourse with the complainant. HH 217-24 CA 297/22 b) If so, whether the complainant was mentally challenged and could not, because of that, consent to sexual intercourse. The court analysed the evidence before concluding that sexual intercourse, indeed, took place because it was confirmed by medical evidence. It also found that that, indeed, the appellant had had sexual intercourse with the complainant because there was no likelihood of mistaken identity. The trial court had researched on google on the meaning of ‘moderate mental retardation’. The answers she found were that the phrase means “significantly sub-average intellectual ability which ranges between 35-40 and 50-55 and concurrently delays in adaptive functioning that present prior to the age of 18.” Another article she found explained that moderate mental retardation “is characterised by individuals with cognitive impairments that correspond to an IQ score between 35-40 and 50-55 and deficits in adaptive functioning that present before the age of 18”. She quoted a third article which described moderate mental retardation as “...failing to meet intellectual milestones, having memory problems, inability to understand consequences of actions, inability to think logically, childish behaviour inconsistent with the child’s age, incapacity to lead an independent life due to challenges of communicating, taking care of one’s self and interacting with others. Based on that google research, the court a quo, concluded that the complainant’s behaviour clearly showed that she was unable to consent to sexual intercourse. She concluded that the appellant took advantage of the complainant who suffered from the mental condition described as moderate mental retardation. The court a quo believed the State witness and rejected the appellant’s assertion that he did not meet the complainant because he was busy somewhere else molding bricks, whereupon it convicted the appellant and sentenced him to imprisonment for twelve (12) years, of which 2 years was suspended on condition of good behaviour during the period of suspension. The appellant has now appealed against both the conviction and sentence raising six (6) grounds of appeal against conviction and two (2) against sentence. There is no prayer regarding sentence, thereby rendering it inadequate. The six (6) grounds of appeal against conviction are as follows (paraphrased): - 1. The trial court erred in finding as a fact that sexual intercourse took place between the appellant and the complainant. HH 217-24 CA 297/22 2. The evidence of the complaint of the rape did not meet the legal requirements for admissibility. 3. The trial court erred in failing to adopt a cautious approach in dealing with the evidence of the complainant who was a minor and suffered from a mental illness. 4. The trial court erred in concluding that the complainant was a credible witness. 5. The trial court erred in dismissing the appellant’s defence and placing the onus on the appellant to prove his innocence. 6. The trial court erred in finding that the State had proved its case beyond reasonable doubt The State opposed the appeal on various grounds which included that the trial magistrate researched, extensively, on the meaning of the phrase ‘moderate mental retardation’ and the research, if considered in conjunction with the psychiatrist’s report and the observation made by the court while the complainant was giving evidence, proved beyond reasonable doubt that complainant was mentally challenged. The State argued that the complainant had given her evidence well and was competent to give evidence since the trial court had, correctly, made the finding, as it was entitled to do, in terms of s 246 of the Criminal Procedure and Evidence Act [Chapter 9:07], that the complainant had the competence to give evidence. The State supported the sentence, arguing that it was commensurate with the gravity of the crime. Regarding the first ground of appeal we find that the sexual intercourse was proved by the oral evidence of the complainant who was believed by the court and confirmed by medical report which was produced by consent. The complainant gave coherent evidence. The charge of rape in the case of females who suffer from a mental disability arises from the fact that such person does not appreciate the consequences of the sexual intercourse and as such cannot protect themselves from sexual abuse. However, such a person is not precluded from remembering and narrating what happened to her as long as the medical expert has confirmed that she is able to give evidence. The second ground which is that the evidence of the complaint of the rape did not meet the legal requirements for admissibility, lacks merit. It misses the whole essence of the charge. It misses the point that the charge of rape did not arise as a result of a complaint. The admissibility HH 217-24 CA 297/22 and relevance of the evidence of a complaint in sexual matters was explained by the Supreme court in the case of S v Banana 2000 (1) ZLR 609 (S) as follows: - “…. evidence of a complaint in a sexual case is admissible to show consistency of the complainant’s evidence and the absence of consent. The requirements for admissibility are that (a) the complaint must have been made voluntarily, not as a result of questions of a leading and inducing or intimidating nature; and (b) must have been made without undue delay, at what is in the circumstances the earliest opportunity, to the first person to whom the complainant could reasonably be expected to have made it.” In this case the victim did not complain, but the crime of rape came up because a state witness eavesdropped some youths talking about the sexual relations between the appellant and the complainant. However, the misunderstanding might have arisen from the fact that the State omitted to make mental disability part of the essence of the charge. The charge was that the appellant had had unlawfully had sexual intercourse with the complainant without her consent implying that she had the capacity to give legally valid consent to sexual intercourse. The charge did not state that consent was vitiated by mental disability. Yet the trial court based the appellant’s conviction on the finding that the complainant was incapable to consent to sexual intercourse due to mental disability. I will revert to this later in this judgment. The third ground of appeal against conviction, which is that the trial court failed to exercise caution when dealing with the evidence of a minor who was mentally challenged, seems to concede that the appellant was mentally challenged. The court was alive to the alleged mental illness mentioned in the State outline and actually, identified the appellant’s mental state and her capacity to consent to sexual intercourse as issues to be determined by it. The determination by the trial court, in the exercise of its prerogative to determine the competence of witnesses to give evidence, in terms of s 246 of the Criminal Procedure and Evidence Act [Chapter 9:07], and finding that the complainant had the competence to give evidence is in itself an indication of a cautious approach to the evidence of the complainant. After the complainant had given evidence, the trial court assessed the evidence again and found that she had given her evidence well and that she was credible. The fourth ground of appeal against conviction is that the trial court erred in concluding that the complainant was a credible witness. It does not provide any further hint on what affected the HH 217-24 CA 297/22 complainant’s credibility. We found this ground appeal against conviction to be unclear and, thus, invalid. We, therefore, struck it off. The fifth ground is that the trial court erred in dismissing the appellant’s defence and placing the onus on the appellant to prove his innocence. The ground of appeal was, however not clear in that it does not hint on the specific manner or issue on which the trial court placed the onus on the appellant to prove his innocence. We also found the ground of appeal against conviction to be unclear and struck it off as well. The sixth ground of appeal against conviction alleged that the State failed to prove the crime beyond reasonable doubt without providing a hint on the element of the crime which remained no adequately proved. However, notwithstanding the inadequacies in the grounds of appeal against conviction, we were doubtful about the correctness of the assertion by the public prosecutor, at the end of the state case, that the State had proved all the essential elements of the crime charged. Related to that, we were also concerned about the correctness of the finding by the court that the accused was guilty ‘as charged’, that the appellant was guilty of rape because the complainant was incapable of giving consent to sexual intercourse due to mental incompetence. We were surprised that the court identified, as an issue to be determined by it, whether the complainant was mentally disabled and, if so, whether she was unable, at law, to give consent to sexual intercourse because there was no such specific averment in the charge put to the appellant, at the beginning of the trial, as the basis of the rape charge. As state above, the charge made reference to unlawful sexual intercourse without the consent of the complainant and did not base the rape charge on the mental incompetence of the victim as contemplated in s64(3) of the Criminal Law Codification and Reform Act [Chapter 9:23]. (see quotation below.) “64 Competent charges in cases of unlawful sexual conduct involving young or mentally in- competent persons (1) ………….. (2) …………... (3) A person who engages in sexual intercourse, anal sexual intercourse or other sexual conduct with a mentally incompetent adult person shall be charged with rape, aggravated indecent assault or indecent assault, as the case may be, unless there is evidence that the mentally incompetent person⎯ (a) was capable of giving consent to the sexual intercourse, anal sexual intercourse or other sexual conduct, and (b) gave his or her consent thereto.” HH 217-24 CA 297/22 In terms of s 41(h) of the High Court Act [Chapter 7.06], this court is empowered, to exercise any of the powers of review conferred upon the High Court by s 29 of the Act in any matter before it in a criminal appeal if it thinks it necessary or expedient in the interests of justice to do so. We invited supplementary heads of argument on the consequences of the omission, by the State, to cite s 64(3) the Criminal Law (Codification and Reform) Act. Both parties file supplementary heads of argument. The appellant’s counsel submitted that the omission rendered the charge fatally defective. The state counsel submitted that the crime with which the appellant was charged is created by sections 65(1) and 64(3) of the Criminal Law (Codification and Reform) Act, read together. It may well be that the appellant did not address the issue of mental incompetence in his defence outline, because the charge did not make reference to s 64(3) of the Criminal Law (Codification and Reform) Act or that the victim’s consent was vitiated by her mental incompetence. It may well, also, be the reason why the State omitted to put any questions on that during the evidence in chief of the state witnesses and cross-examination of the appellant. The omission meant that the appellant did not become aware of the defences available to him in terms of subsections 3(a) and 3(b) of s 64 to the of the Criminal Law Codification and Reform Act which are that he could escape conviction if there was evidence that the mentally incompetent person (a) was capable of giving consent to the sexual intercourse, anal sexual intercourse or other sexual conduct, and (b) gave his or her consent thereto. The crime created when s65(1) and s64(3) together is therefore not a strict liability offence because a conviction will not ensue if there is evidence that the mentally incompetent person was capable of giving consent and did give consent to sexual intercourse. At page 47 of his Commentary on the Criminal law (Codification and Reform Act), 2004 published by the Legal Resources Foundation, Professoer G Feltoe says s 64(3) of the Criminal Law (Codification and Reform) Act renders sexual acts with mentally incompetent persons criminal only, if it is shown that the mentally incompetent person was incapable of consenting to such acts, or, if capable did not consent to such acts. There was no need for the court to rely, only, on its own goggle research. The psychiatrist should have been called to explain the medical terms and their implications of his/her report. The sources relied upon by the court a quo were not confirmed by any professional person as authentic. 1 HH 217-24 CA 297/22 For the aforegoing reasons we find that the conviction was therefore not proper. In the result we hereby allow the appeal is allowed and quash the appellant’s conviction Foroma J agrees……… Mutonhori Attorneys, appellant’s legal practitioners National Prosecuting Authority, respondent’s legal practitioners