REPUBLIC v HASANI SAIDI 1984 TLR 226 (HC)

REPUBLIC v HASANI SAIDI 1984 TLR 226 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Mapigano J

November 15, 1985

CRIMINAL REVISION 1 OF 1984 G

Flynote

Criminal Practice and Procedure - Charges - Essential element of offence left out -

Defective - When defect may vitiate proceedings. H

Evidence - Corroboration - Failure of magistrate to warn himself of the danger to

convict without corroborative evidence - When fatal to proceedings.

-Headnote

The accused was charged with and convicted of the offence of rape. He was

sentenced to three years' imprisonment. The case file was sent to the high court for

confirmation of sentence. The learned judge who examined the record of the

proceedings was of the opinion that the charge was I defective because the

particulars of the offence

1984 TLR p227

MAPIGANO J

A did not allege that there was no consent on the part of the woman or that her

consent was obtained by force or by means of threats or intimidation or by fear of

bodily harm. He was also under the impression that the evidence adduced by the

prosecution stood uncorroborated.

B Held: (i) Where a substantial miscarriage of justice has not flown from the defect,

the provisions of s. 346 of the Criminal Procedure Code can be brought into play and

the conviction be sustained;

C (ii) in this case the accused understood the substance of the case he was

meeting as such the defect did not lead to a substantial miscarriage of justice and thus

curable under sS. 346 of the Criminal Procedure Code;

(iii) it was not necessary for the trial magistrate to warn himself of the danger

of convicting D without corroborative evidence because there was sufficient

corroborative evidence.

Case Information

Order accordingly.

E No case referred to.

L. Mapalala for the Republic.

[zJDz]Judgment

Mapigano, J.: It seems that the learned judge who examined the record of these

proceedings was of F the opinion that the charge was defective and under the

impression that the evidence adduced by the prosecution stood uncorroborated.

With regard to the charge the learned judge was absolutely right and it is only proper

that Miss Mapalala counsel for the Republic has readily conceded the point. The

accused Hasani Saidi was G brought to the District Court at Kilosa charged with the

offence of rape c/ss. 130 and 131 of the Penal Code. The particulars of the offence as

set out in the charge sheet averred that "Hasani Saidi charged on the 17th day of June,

1983, at about 16.00 hrs. at Miyombo village, Kilosa district, H Morogoro Region,

did have carnal knowledge of one Hagali w/o William". Quite obviously, the charge

omitted an essential ingredient of the offence of rape, namely the allegation that there

was no consent on the part of the woman, or that her consent was obtained by force

or by means of threats or intimidation or by fear of bodily harm. This flaw escaped

the attention of the learned district I magistrate and I may charitably attribute his

oversight to his failure to pause sufficiently to peruse the particulars.

1984 TLR p228

MAPIGANO J

It is elementary that every criminal charge should set out all essential constituents of

the offence A alleged. However, it does not necessarily follow that every defect in

the charge will vitiate the proceedings or the judgment. In a proper case, that is,

where a substantial miscarriage of justice has not flown from the defect, the provision

of section 346 of the Criminal Procedure Code can be B brought into play and the

conviction be sustained. This, in my opinion and in agreement with counsel for the

Republic, is exactly such a case. The accused understood the substance of the case he

was meeting, especially after the complainant Hagali had given her testimony.

What's more, it was not his line of defence that Hagali had consented to the

intercourse. Should I, therefore, find C that the evidence against him was credible

and sufficient to support the conviction I would apply the provision of section 346

above and refrain from disturbing the conviction.

Hagali was a married woman and she lived in Miyombo village. Her evidence shows

that at about 4 D p.m. on 17/6/83 she was alone at her shamba guarding it against the

incursion of wild pests. The accused, a fellow-villager and an acquaintance, called at

the shamba and swiftly caught her and his strong hand went over her mouth to stifle

or prevent an outcry. Then he shoved her down, took off E his trousers and in

another instant penetrated her and ejaculated inside her. It was easier: she was not

wearing any underpants. Her sister in-law appeared at the scene but by then the

accused had already indulged his passion and was fleeing. Hagali picked herself up

and promptly went to her F balozi to lodge a complaint against him, and thence to

the police who had her medically examined on the morrow.

Akiza Yohana (PW2), the said sister in-law, told the court that she saw the accused

running off from the scene holding his trousers. Saidi Mfaume (PW3) the balozi

confirmed that the complainant G approached him and made a report that she had

just been ravished by the accused. He observed bruises on her lips and back. And a

medical report also showed that she had sustained a bruise around her upper lip

adjacent to the nose.

The accused flatly denied any involvement in the offence. He denied meeting the

complainant on H that day and he did not know why she came to frame him. No,

he said, there was no bad blood between them. No, he added, she was not mentally

unsound.

The learned magistrate believed the prosecution evidence and held that the charge

was clinched. He convicted the accused of the I

1984 TLR p229

MAPIGANO J

A offence and handed down a sentence of imprisonment for three years subject to

confirmation by this court.

I turn to the question of corroboration. In any sexual offence, if the person against

whom the offence is alleged to have been committed is an adult, the court should

warn itself that it is not safe B to convict on the uncorroborated testimony of the

complainant but that if it is satisfied of the truth of the complainant's evidence it may

nevertheless convict. This, as Miss Mapalala pointed out, is a rule of practice and not

a rule of law. Evidence in corroboration need not be direct. It is sufficient if C it is

circumstantial evidence connecting the accused with the offence, otherwise many

such crimes could not be brought to justice. And depending upon the case, evidence

in corroboration can consist of one single piece of evidence or several pieces viewed

as a whole.

D The conventional wisdom about that rule came from the 17th century English

jurist Sir Mathew Hale, who wrote that "rape is an accusation easily to be made and

hard to be proved, and harder to be defended by the party accused, the never so

innocent". The rationale is the difficulty of disproving a false accusation and the

possible damage to a man's reputation, especially if his E community is small and

orthodox - belief oriented. And that for a multitude of reasons women may accuse

men of sexual assaults to extort money, force marriage, satisfy a childish desire for

notoriety, attain personal revenge or obviate a sense of shame after consenting to

unseemly intercourse. F Fearful of false charges and in this century much under the

sway of Freudian notions about female fantasies, the Western law constructed

protections around a rape accused that were, it is said, the envy of murder accused.

There has been a change in attitude in some countries. In some Western jurisdictions

the law no longer believes that words of a woman are not to be trusted and when a

woman proclaims herself a G victim of rape her testimony receives the same respect

as that accorded any man. However, some bizarre cases have unfortunately, given a

kind of shudder to that viewpoint. The example par excellence is Detson's. A woman

called Cathleen Webb happened to declare this year that she had H lied in 1979

when she accused Detson of raping her. Her testimony and the evidence found on

her body and her clothes had the poor man sent to prison for 25 to 50 years! That is

perhaps by the way. Our law here still faithfully observes Hale's admonition.

I The trial magistrate did not stop to warn himself of the danger to convict without

corroborative evidence. In my view, it was not

1984 TLR p230

MAPIGANO J

necessary for him to do so. There was sufficient corroborative evidence. There was

the evidence of A Akiza who saw the accused running off from the scene holding his

trousers. There was the evidence of the balozi that the complainant showed up

sustaining a bruise on her back and lips, which was consistent with her mouth having

been gripped as she had recounted, and which also B was a manifestation of a forced

sexual intercourse. I am in respectful agreement with the view expressed by the

Republic that the evidence led against the accused was sufficiently positive and

tangible to found the conviction. I therefore leave the conviction to stand.

Rape is an enormous crime, no doubt. In Tanzania it is punishable by imprisonment

for life with or C without corporal penalty. That demonstrates the intensity of the

feeling of disgust with which the legislature views it. Incidentally other jurisdictions,

olden and modern, express more intense opprobrium. To a great measure that is due

to the stigma that is attached to the victim, if unfairly, D the humiliation and trauma

that the victim invariably experiences the violation of her freedom of sexual choice

and the threat which it poses to the security and morality of society. Ancient

Babylonian law considered it a theft of virginity and its servants meted out hefty

penalties. E According to the Code of Hammurabi a rapist was to be seized and

slain. As to the Biblical Hebrews, both victim and villain shared the same fate of

death by stoning. The first book of the Bible, Genesis, narrates the raping incident of

Jacob's daughter Dinah and the violent retaliatory action taken by Jacob's sons on the

rapist and his tribe. In Britain and USA convicted rapists F receive long prison

sentences. A sentence of three years for rape cannot, in my view, be regarded as

excessive or as wrong in principle. This was not a story of a young man and a woman

going out for a dance, being fond of each other, and things getting out of hand. It was

a deliberate planned and violent sexual attack. Indeed, it might be that the magistrate

erred on the score of leniency. The G sentence is duly confirmed.

Order accordingly. H

1984 TLR p231

A