Abasi s/o Ramadhani v. R. Crim. App. 414-D-69, 20/8/69, Biron J.

Abasi s/o Ramadhani v. R. Crim. App. 414-D-69, 20/8/69, Biron J.

The appellant was convicted of rape and he was sentenced to imprisonment for two years and to twelve strokes corporal punishment, it was established in evidence that one morning a party composed of three women, one of them the complainant, and two men, one of them the appellant, went into a sisal plantation to cut firewood. They separated and apparently lost sight of one another. The complainant testified that whilst she was cutting firewood out of sight of the others, the appellant approached, caught hold of her and demanded sexual intercourse. She declined, and he threatened to slash her with the panga he was carrying. She was  at the time carrying a child on her back; the appellant took the child from her, placed it on the ground, then after removing his trousers, he pushed her to the ground and had intercourse with her. She was afraid to cry out because of having been threatened with the panga, and the appellant also apparently covered her mouth. After he had raped her the appellant made off and disappeared. The complainant immediately ran to her companions and reported that the appellant had raped her. Her women companions confirmed that the complainant reported that the appellant had raped her, and one of them noticed what she described as seminal fluid on the complainant’s clothes. Both the appellant and the complainant were medically examined that same day, and the medical evidence is to the effect that both had engaged in sexual intercourse within hours of their having been examined and further, that the complainant had bruises on her things and there was clotted blood from her vagina. The ten-house-cell leader was summoned and he wrote a letter addressed to the police reporting the incident. The appellant, who had by then been apprehended, tore up this letter.”

            Held: (1) “At the hearing of this appeal, on my remarking that there did not appear to be any real corroboration as such of the complainant’s evidence to connect the appellant with the offence, learned State Attorney referred to the case of Yotamu Mtweve and two others. v. the Republic (Criminal Appeals Nos. 366 to 368 of 1969), where in last month I upheld a conviction on three men for rape in the absence of any corroboration. That case, however, can be distinguished from this instant one in that there, in his judgment, the magistrate fully directed himself on the need for corroboration an on the danger of convicting without corroboration, but nevertheless, as he was so convinced that the complainant was telling the truth, and being perfectly satisfied with her evidence, he found the case against the appellants fully established and accordingly convicted them in the absence of corroboration. As I noted in the judgment in that case, apart from the fact that the learned magistrate fully directed himself on the need for corroboration and found that he could rely on the evidence of the complainant even in the absence of corroboration there was also considerable supporting evidence which, although it

did not constitute corroboration as such, was strongly confirmatory of the complainant’s evidence. In this instant case, however, the magistrate has not directed himself on the need for corroboration, nor has he even adverted to such need. The word does not even appear in his judgment.” (2) “As I remarked in the case cited, it is rarely that a court will convict of a sexual offence in the absence of corroboration, and even rarer still that an appellate tribunal will uphold such conviction. The requirement of corroboration in sexual offences is a rule of practice and, although it has been elevated, particularly in this part of the world, to almost, if not altogether, a rule of law, the fact remains that it is a rule of practice and  corroboration is not in law mandatory, nor is its absence fatal to a conviction. But there must be a very strong case to justify a conviction in the absence of corroboration. It is therefore necessary to examine the evidence in this case very carefully, firstly in order to determine whether there is corroboration, and secondly even if there is no corroboration, whether the conviction can nonetheless be sustained.” (3) After reviewing the facts, the Court continued: “The evidence establishes that the complainant and the appellant went out together in a party, and that whilst cutting firewood the individual members were out of sight of one another. The medical evidence establishes that both had had sexual intercourse at about such time. The police evidence would also confirm that the scene pointed out by the complainant appeared to bear out that an incident of the nature described by the complainant had taken place there. And the medical evidence as to the injuries on the complainant would appear to negative consent. As noted, the party set out together with  the object of cutting firewood, and it would appear from the evidence that it was expected that, their mission accomplished, they would return together. Yet the appellant had disappeared when the complainant made her complaint, which disappearance is not, I think, without significance. It may well be argued that even if some of these factors in isolation do not constitute corroboration, the combination of them all does constitute sufficient corroboration of the complainant’s evidence to connect the appellant with the offence. With regard to the appellant’s tearing up of the letter reporting the incident to the police, not much significance can be attached to that, as it is equally as consistent with the appellant’s having been annoyed at an unfounded accusation being made against him, as with a true one.” (4) “On the assumption that the attendant factors even in combination do not constitute corroboration in law, I propose to consider whether the conviction could be upheld even in the absence of corroboration. It cannot be gainsaid that the requirement of corroboration. It cannot be gainsaid that the requirement of corroboration in sexual offense is a very salutary rule, founded on good reason and, I may add, knowledge of human nature. It is by no means unknown for women to make false accusations of sexual assault even where there has been no assault at all. Even where a woman has actually been raped, there is always the danger of mistaken identity as to the ravisher. Further, even where the woman has identity as to the ravisher. Further, even where the woman has consented to sexual intercourse she may afterwards, for a variety of reasons, not, I think, necessary to elaborate, deny consent and accuse her partner in the act, of rape. In this instant case the evidence establishes that both the complainant and the appellant had recently engaged in sexual intercourse. There is no possibility of mistaken identity as the parties knew each other well and, as noted, had gone out together to cut firewood. The complainant made immediate complaint of having been raped, and named the appellant as her ravisher.

It is not immaterial to note that evidence of immediate complaint has been held, though wrongly so, to constitute corroboration. There would also appear to be no question of consent, as apart from the fact that it has not been set up as a defence – and I pause to remark that it is not the duty of this Court to conjure up defences where none has been raised – the evidence of injuries on the complaint could, if not would negative consent. Although, as remarked, his tearing up of the letter reporting the matter to the police is not of particular significance, the appellant’s disappearance, which did not pass unremarked by the witnesses, is not, I think, entirely without significance ……. Had the complainant resisted the appellant and been assaulted by him, nor court, I think, would have interfered with the appellant’s having been convicted of such assault. The question poses itself, why should this court now interfere with this instant conviction for a sexual offence because of the absence of corroboration when, as, I think, sufficiently demonstrated, all the factors which render it dangerous to convict on a sexual charge as opposed to an ordinary charge of physical assault, without corroboration, are absent in this case. As for the fact that the magistrate has not directed himself on the need for corroboration, that in itself should not necessarily be fatal to the conviction provided it is otherwise sustainable, as there is no magic in words, let alone in the omission to utter the prescribed formula. Though it cannot be overstressed that magistrates should always consider the question of corroboration and warn themselves of the danger of convicting in the absence of corroboration, in the particular circumstances of this case, for the reasons I have attempted to set out, I am not persuaded that this court would be justified in interfering with the conviction.” Appeal dismissed.