Nazir and Zulfiker V.R. Crim. App. 344-A-70; 16/2/70; Patt. J.

Nazir and Zulfiker V.R. Crim. App. 344-A-70; 16/2/70; Patt. J.

The appellants were convicted of rape. The complainant Miss Lyckstedt, came to Tanzania on 25^th June, 1969 with a travel group shortly after her arrival she struck a friendship with one Liaquant and then both of them visited Moshi where on the first night they stayed at Y.M.C.A. They found the charges expensive, left their baggage at one Mission and began search for cheap accommodation. The appellants offered to assist them, and became close acquaintance of Miss Lyckstedt out, and drove her to the outskirts of the town near Karange Bridge. She in red where they were going, as there seemed to be no street lighting and they assured her that it was a road to the Mission. The vehicle stopped near the bridge and the appellant Nazir got out, as Miss Berit supposed, to see his uncle. But the engine was still running and the appellant Zulfiker drove the vehicle down a turning near the river in a bushy place before he stopped. Miss Berit was now sitting on the left front seat and Zulfiker got out and came round to her door which he opened. He had removed hi trousers and was naked from waist down. He then pushed Miss. Berit towards the steering wheel and a struggle ensued during which he pulled away her underwear. He was saying ‘come on’ but she did not, she says, agree to sexual intercourse. However Zulfiker overcame her and carried out the act. When he had finished he left the car and Miss Berit was arranging her clothing when the appellant Nazir came back and asking her what she had done, she explained that the appellant Zulfiker had raped her. Nazir asked if he could help her as she was crying and she replied she wanted to return to town. Nazir then said he would help her if she allowed him to have sexual intercourse. She refused but he then pushed her down drawing her legs out of the car. Nazir un-dressed and Miss Berit said he pulled her skirt off. She was at that time wearing a sweater and blouse, a skirt and a pair of stocking with knickers attached. The latter had been removed by the appellant Zulfiker and although she was crying, Nazir then completed his lust. Miss Berit alleged that during the second intercourse the two appellants had been communicating with each other in their own language. She had then collapsed and was crying. The appellants dressed and then took her back to the Mission where the Rev. Father gave them the luggage of Miss Berit and Liaquant. This appears to have been consisted of three smallish bags which belonged to Miss Berit and one large bag which belonged to Liaquant. The appellants spoke well to the Father and although Miss Berit came out of the car ad greeted the Father, she did not make any complaint. At the Y.M.C.A. Miss Berit explained to Liaquant what had happened either in his room or outside and they decided to go to the Police Station. However at the petrol station the two appellants were seen again and as they called Liaquant over to talk to them,

Miss Berit returned to Y.C.M.A. Then Liaquate phoned the Police and the report was made. The Medical Officer found no marks of violence on any part of Miss Berit’s body but took a swab which proved the presence of spermatize. The appellant Zulfiker denied having had sexual intercourse with her while appellant Nazir averred that he had intercourse with Miss Berit with her consent.

            Held: (1) “The first ground of appeal was that the charge was improper for duplicity or misjoinder. The argument was that on any view of the case there had never been a joint rape. From the point of view of the defence, there could not have been a joint rape. Even if the defence facts had been established, but the issue of consent had been determined against Nazir, they would both have to be acquitted on the authority of R. v.   SCARAMANGA (1963) 2 All E.R. 852. on the other hand, if the prosecution’s case was accepted, then it was said that as Zulfiker had had remained alone in the car during the first alleged rape and then Nazir had returned and committed a second alleged rape, there were still two independent rapes which could not be jointly charged together. The point was not taken at the trial and therefore the learned Magistrate did not give his opinion whether the appellants had formed a common intent to commit rape when they drove Miss Berit to an isolated area near Karanga Bridge. From the evidence that Miss Berit understood that the aim of her journey was to collect the luggage and as the appellants knew where the Mission was, to drive her to such a place, would only appear consistent with the intent to be intimate with Miss Berit unobserved, in view of what took place. Possibly, however, they had hoped to achieve their purpose with her consent, but had gone too far when consent was refused. Assuming therefore that the fact that hey drove Miss Berit to this place did not necessarily prove that they intended rape, (although of course it was highly suspicious), then it could be argued that possibly Zulfiker’s first act was not carried out, with common intent. Nevertheless, when Nazir returned, he found Zulfiker half undressed and then according to Miss Berit forced her to have intercourse with him at a time when Nazir had finished, Zulfiker then wished to have a further act. Taking all these facts into account, it is difficult to see that Zulfiker was a mere by stander but a person who had joined in and formed the common intent with Nazir to rape Miss Berit on he second occasion. The charge did not particularize which act the prosecution relied upon. It simply said that he appellants “jointly and together (had) unlawful carnal knowledge of Miss Berit Lyckstedt without he consent”. That sufficiently covered the least that could be said about the prosecution’s case, if it was accepted.” “All that I need say here is, that the conviction could be supported as a joint rape, at least from the time that Nazir returned to the car, an on this basis I need only say that no objection was taken to the two appellants being tried together ad I cannot see that there could be any embarrassment to the defence as a result of the nature of the charge.” (2) “The issue between consent or force was narrow. She carried no mark of violence on her body … the burden of the appeal really attacks the finding that Miss Berit was a truthful witness, and the question of corroboration. The a background of the

Case did not allow any clear view that Miss Berit would certainly not have agreed to sexual intercourse with the appellants. She was a woman of 27 years of age, and on her own admission used to having sexual intercourse, at least in Sweden…. Although she had another “boy friend” at the time, she agreed to meet Liaquant. She had put herself in the hands of young men both Liaquant and Nazir being 21 years of age, and Zulfiker still younger (although I find it a little difficult to understand how Zulfiker was driving motor cars around Moshi in the way which he did if he was not yet 17 years) However that may be, all three men were much younger that Miss Berit. From these facts, it could well be suggested that she was as likely to have consented to sexual intercourse as that she had not, and the learned Magistrate’s point that she came from “a Permissive Society” does not seem wide of the mark. Miss Berit was asked in cross-examination about her sexual experience, but the learned Magistrate ruled that she need not answer the question if she did not wish to. Accordingly she did not. I agree with defence Counsel that that was an improper ruling as R. v. COCKCROFT 11, Cox, 410 illustrates. The questions were proper and in Miss Berit case the defence would be bound by her answers, without being able to call further evidence. It was a necessary point for the defence to illicit if they could how promiscuous Miss. Berit was. After all, if it had turned out that she had a tendency to nymphomania, the learned Magistrate might well have taken a different view. On the other hand, nothing very much may have come of her answers, and as she admitted that she had had previous sexual experience, and as the learned Magistrate describe her as coming from a “permissive Society”, it does not seem that the answers must have taken the case much further. However, the possibility cannot be ruled out that when asked how many men she had had intercourse with, that if she had admitted a considerable number, the learned Magistrate might have entertained more doubt. The evidence then appears to me to have been equivocal as to the likelihood of her consent. She did not make any complaint when help was first at hand at the Mission.” In my view the evidence relied upon by ….. the learned magistrate concerning her report and later antagonism towards the appellants did not necessarily show that her allegations were true. The learned Magistrate directed himself following the observations in ZIELINSKY v. R. (1950) C.R. App., and ALAN REDPATH v. R. (1962) 46 C.R. App. 319. The circumstances, in which a report is made, which general goes only to consistency, may also go to corroboration in certain cases. But on the facts of this case, it is my view that the nature of Miss Berit’s report and her condition did not afford corroboration sufficient to show that her allegations were true. I do not say that they were not true, and the leaned Magistrate’s view may well be right. But the evidence was in my opinion insufficient to prove beyond reasonable doubt that the charge had been made out. It was not a case where Miss Berit’s allegations could safely be accepted without corroboration.” (3) Appeals allowed, conviction quashed.