1
HH 421/15
CRB B2336/14
THE STATE
versus
NEVER MUCHINGAMI
HIGH COURT OF ZIMBABWE
BERE J
HARARE, 20 APRIL 2015
Review Judgment
BERE J: On 29 October 2014 the accused was convicted of the offence of indecent
assault in violation of s 67 of the Criminal Law (Codification and Reform Act) [Chapter 9:23].
For this offence the accused was sentenced to 18 months imprisonment 6 months of which were
suspended for the next 5 years on condition of good conduct.
The circumstances of this case as presented to the trial magistrate were that at the
relevant time the accused was 45 years old and being the biological father of the complainant, a
16 year old then.
On the morning of the fateful day and in the absence of the complaint’s mother the
complainant went into the room where the accused was sleeping intending to get a match box.
The allegations were that upon the complainant entering the room the accused woke up and
asked if the complainant had ever seen his penis. In the process the accused was alleged to have
pushed the complainant against the wall and started fondling her breasts.
It was further said the complainant then ran out of the room with the accused chasing
after her and assaulting her once with a half brick upon the head before the complainant rushed
to lodge a report with her mother.
In denying the allegations the accused stated that on the day in question he was awoken
from his sleep by some undertone voices. The accused claimed to have seen the complainant
being held by her waist by a certain boy and that this did not go down well with him as a father.
The accused said that out of annoyance he chased the two away and in the process aimed a brick
at the complainant intending to assault her for her way ward behavior and told the complainant
that he did not want to see her again.
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The accused believed that all these allegations of indecent assault by the complainant
were a fabrication by the complainant who took advantage of a matrimonial discord between him
and the complainant’s mother.
It is significant to note that the complainant, the accused and the complainant’s mother
confirmed the existence of the matrimonial discord or differences between the accused and the
complainant’s mother to the extent that the two had not shared the same bed for about 7 months.
The legal Position
It is rather disheartening that I must re-state the basic guiding legal position that must be
satisfied before an accused person can be found guilty of criminal conduct.
It is trite that there is no onus thrust upon the accused to prove his innocence. This
position was aptly summed up by Watermeyer A.J.A as far back as 1937 when he stated:
“It is not a question of throwing any onus on the accused, but in these circumstances it would be a
conclusion which the court could draw if no explanation were given. It is equally clear that no
onus rests on the accused to convince the court of the truth of any explanation he gives. If he
gives an explanation be improbable, the court is not entitled to convict unless it is satisfied, not
only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there
is any reasonable possibility of his explanation being true, then he is entitled to his acquittal….”1
Ten years later Davis A.J.A expanded on the Watermeyer position by stating as follows:
“And I repeat, the court does not have to believe the defence story; still less has it to believe it in
all its details, it is sufficient if it thinks that there is a reasonable possibility that it may be
substantially true.”2
To the best of my knowledge, this has been the biblical legal position in our approach to
handling criminal matters.
With respect to the trial magistrate, in the instant case, there is nothing in his judgment
which justifies his rejection of the explanation given by the accused in preference of the story
told by the complainant and her mother. There is no analysis of the evidence given that I see
except a regurgitation of the evidence as stated by the complainant and her mother who had
every reason to lie against the accused if what the accused told the court had been carefully
analysed by the trial magistrate.
1
2
R vs Difford 1937 AD 370 at 373.
Rex v M 1946 AD 1023 at 1027
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It does not make sense to me, why, for example, the accused would have tried to
violently sexually assault the complainant in the manner alleged by the complainant if the two
were not close to each other? In my view the accused could not have been that naïve to expose
himself in such a reckless manner.
In his judgment (pp5 – 6) the trial magistrate castigated and condemned the accused for
having failed to put pointed questions to the complainant concerning his denial of having fondled
her. In my view, that position was clearly erroneous. In fact the whole cross – examination by the
accused was a clear denial by him of the allegations put against him by the complainant. It was
wrong for the trial magistrate to have preferred the accused to have used the words which he (the
trial magistrate) preferred. The trial magistrate should have instead considered the tenor of the
cross-examination given the fact that the accused was not a qualified lawyer himself. I do not see
in the record of proceedings how else the accused could have put his case in a better way than he
did to the complainant. During his cross-examination of the complainant the accused specifically
stated inter alia the following;
“Q. The truth is that there are issues you and your mother have against me I think your
is influencing you such that you are teaming up against me?”3
mother
If this kind of questioning does not accord with the accused’s determined effort to assert
his innocence, then it certainly cannot be viewed as anything pointing to accused’s guilt.
I see the accused demonstrating unmistakable consistency in his cross – examination of
his wife. All the cross-examination was aimed at demonstrating to the court that there was a clear
possibility of a conspiracy between the complainant and her mother to nail the accused person.
Through his precise and pointed cross-examination4, the accused was able to demonstrate
that all was not well between him and his wife and that the temptation of his wife having
influenced her daughter to lie against him was quite high.
I am particularly concerned that even when it was made abundantly clear to the presiding
magistrate that there was a strained relationship between the wife and the accused, the trial
magistrate did not see it proper to exercise caution in dealing with the evidence of the two
witnesses.
3
4
Page 5 of record of proceedings
Page 8 of record
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There seems to be a misconception is some quarters that the ratio enunciated in S v
Banana5 provides an open cheque for easy convictions in sexually related matters. It must be
made clear that the decision in Banana did not advocate for the abandonment of the exercise of
caution in sexual offences. The courts are still expected to deal with these sexual offences with
heightened caution because these cases can easily be concocted and are generally difficult to
rebut. I could not agree more with my brother Hungwe J when he made the following
observations in a recent appeal case of Takawira Chiwaya v The State6
“The court in S v Banana 2 000 (1) ZLR 607 (s) held that the cautionary rule in sexual offences is
based on an irrational and outdated perception and has outlived its usefulness. The apparent
abandonment of the cautionary rule however does not imply that the courts have thrown away the
all important need to approach the evidence led in sexual offences with caution. The courts must
still carefully consider the nature and the circumstances of an alleged sexual offence. It must
exercise proper care and diligence and guard against the risk of false incrimination or concocted
allegations on the part of the complainant”. (My emphasis)
There is nothing that shows that the trial magistrate was alert to the possibility of
deception in this case.
Furthermore, I am unable to discern any reason why the magistrate chose to religiously
accept the evidence told by the complainant and her mother at the expense of the compelling
evidence given by the accused and well canvassed in cross-examination. My firm view is that the
story told by the accused was reasonably and possibly substantially true. The accused ought to
have been given the benefit of doubt.
I am more than satisfied that this was not a safe conviction.
In light of this the conviction of the accused is set aside and the sentence is quashed.
MUSAKWA J: Agrees…………………………………………………..
5
6
2000(1) ZLR 607(s)
HH /2015