Shusha v S (609/10) [2011] ZASCA 171 (29 September 2011)

80 Reportability

Criminal Law

Brief Summary

Criminal law — Assessment of evidence — Accused's version not to be rejected solely on improbability — Appellant convicted of rape, appealed against conviction — Complainant alleged forced intercourse, appellant claimed consent — Trial court misapplied standard of proof, rejecting appellant's version based on improbability without establishing it was false beyond reasonable doubt — Appeal upheld, conviction and sentence set aside.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a criminal appeal before the Supreme Court of Appeal of South Africa (SCA), in which the appellant, Simphiwe Raymond Shusha, appealed against his conviction for rape. The respondent was the State.

The appellant was tried in the regional court, Port Shepstone, where he was convicted on 26 July 2004 and sentenced to eight years’ imprisonment, with two years conditionally suspended. The matter thereafter went on special review in terms of section 204(4) of the Criminal Procedure Act 51 of 1977, because the magistrate had not applied the applicable minimum sentencing provisions. The sentence was set aside on review and remitted, and on 18 March 2005 the appellant was sentenced to the minimum sentence of ten years’ imprisonment. An appeal to the KwaZulu-Natal High Court (Pietermaritzburg) resulted in the appeal against conviction being dismissed, while the appeal against sentence succeeded to the limited extent that the sentence was replaced with eight years’ imprisonment, with two years conditionally suspended.

The appellant then appealed to the SCA against conviction only, with leave of that court. The dispute concerned the single decisive factual issue that had also been central in the lower courts, namely whether the sexual intercourse was consensual.

2. Material Facts

The complainant and the appellant were both associated with the Margate police station. The appellant was an inspector in the South African Police Service, and the complainant worked at the police station as a volunteer.

The complainant lived during the week with her sister, Nonkululeko Ngwabe, in Uvongo, and travelled to her rural home in Nkotaneni on weekends. It was common cause that, a few days before the incident, the appellant had given the complainant a lift to her rural home, during which they had a meaningful conversation about her personal circumstances.

On the day of the incident, it was common cause that the appellant gave the complainant and other colleagues a lift home from work. After dropping off the other colleagues, the appellant and complainant drove to a construction site, where they encountered and spoke to a State witness, Afzal Khan, about a case the appellant was investigating. Thereafter, the appellant drove to an isolated spot nearby.

From this point, the material facts became disputed on the central issue of consent. The complainant alleged that the appellant had forcibly had sexual intercourse with her against her will, and further alleged that he taunted her afterwards. The appellant admitted that sexual intercourse took place but maintained it was consensual, stating that they had progressed an already developing relationship.

It was common cause that later that evening the complainant reported the incident to her sister, Ngwabe. Ngwabe testified that the complainant was visibly upset, that she reported being raped, and that Ngwabe and her husband assisted her in laying a charge.

The complainant described a struggle and claimed that the force used caused her fingers to be red and swollen from being squeezed and bent. It was, however, common cause that the doctor who examined her observed no injuries. The SCA treated the medical evidence as inconclusive and not supporting either version.

Certain post-intercourse events were also noted. The complainant said her panties were removed without resistance because she was tired; she described being given a towel to wipe herself; and she said the appellant answered a telephone call while she was wiping herself and adjusting her clothing. The SCA regarded these post-intercourse events as not determinative of the presence or absence of consent.

3. Legal Issues

The central legal question was whether the State had proved beyond reasonable doubt that the sexual intercourse occurred without consent, thereby establishing rape, given the appellant’s version that the intercourse was consensual. The dispute therefore turned predominantly on fact, assessed through the application of the criminal standard of proof and the approach to conflicting versions.

A further legal issue, which became decisive on appeal, concerned the proper standard for rejecting an accused’s version on the basis of improbabilities. The SCA was required to determine whether the trial court had applied the correct approach when it rejected the appellant’s version as “improbable”, and whether that rejection was consistent with the requirement that an accused must be acquitted if there is a reasonable possibility that the defence version may be true.

4. Court’s Reasoning

The SCA emphasised the settled principle that in criminal matters the State bears the burden to prove guilt beyond reasonable doubt, and that an accused’s version may only be rejected if the court is satisfied that it is false beyond reasonable doubt. If there is a reasonable possibility that the accused’s version may be true, an acquittal must follow.

In analysing the trial court’s reasoning, the SCA held that the magistrate had adopted an incorrect approach by treating the matter as one where accepting the complainant’s version necessarily required rejecting the appellant’s, and by concluding that the “probabilities” favoured the State and “militated strongly” against the appellant. The SCA found that the magistrate appeared to have rejected the appellant’s version merely because it was improbable, which the SCA characterised as a fatal misdirection.

Relying on the approach formulated in S v Shackell 2001 (4) SA 1 (SCA), the SCA reiterated that although it is permissible to test an accused’s version against inherent probabilities, a version cannot be rejected only because it is improbable; it can be rejected on inherent probabilities only where it is so improbable that it cannot reasonably possibly be true. The SCA found that the magistrate did not identify genuine improbabilities in the appellant’s version and that, on the SCA’s assessment, none arose that met the stringent threshold required to reject it as not reasonably possibly true.

The SCA further evaluated contextual features relied on in argument. It considered the background facts leading up to the isolated location and found them largely common cause and not decisive in favour of either party. The complainant’s decision to accompany the appellant did not, on the SCA’s assessment, justify an inference that she was romantically inclined toward him; her explanation that she trusted him and viewed him as protective was treated as consistent with her conduct.

The SCA also addressed the medical evidence. It accepted that the lack of injuries was not proof that rape did not occur, but emphasised that the converse also applied: the medical evidence did not support the commission of rape. Given the complainant’s age, that she was a mother of two, and that she had ceased resisting before penetration on her version, the SCA reasoned that visible injury might not necessarily be expected. The medical evidence was therefore treated as neutral.

Finally, the SCA concluded that the reasons the magistrate gave for finding proof beyond reasonable doubt were “flimsy” and that the probabilities relied upon did not bear directly on the decisive issue of consent. Applying the Shackell standard, the SCA held that the appellant’s version could not be rejected as inherently improbable to the required degree, with the result that he was entitled to an acquittal.

5. Outcome and Relief

The SCA upheld the appeal. It set aside the conviction and sentence.

No separate costs order is recorded in the judgment.

Cases Cited

S v Heslop 2007 (4) SA 38 (SCA).

S v Shackell 2001 (4) SA 1 (SCA).

S v Chabalala 2003 (1) SACR 134 (SCA).

Legislation Cited

Criminal Procedure Act 51 of 1977, section 204(4).

Criminal Law Amendment Act 105 of 1997.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Supreme Court of Appeal held that the trial court misdirected itself by rejecting the appellant’s version on the basis that it was merely improbable, without applying the correct criminal standard that an accused’s version may be rejected on inherent probabilities only if it is so improbable that it cannot reasonably possibly be true.

The court held that, when the evidence was properly assessed, the medical evidence was inconclusive and did not favour either party, and the surrounding circumstances relied upon by the magistrate did not justify a finding that consent was disproved beyond reasonable doubt.

The court held that the appellant’s version could not be rejected as not reasonably possibly true, and he was therefore entitled to an acquittal. The conviction and sentence were set aside.

LEGAL PRINCIPLES

The judgment applied the principle that the State must prove guilt beyond reasonable doubt, and that an accused is entitled to an acquittal if there is a reasonable possibility that the defence version may be true.

It reaffirmed that a court may test an accused’s version against improbabilities, but the version cannot be rejected merely because it is improbable. Rejection based on inherent probabilities is permissible only where the version is so improbable that it cannot reasonably possibly be true, as formulated in S v Shackell 2001 (4) SA 1 (SCA).

It further applied the principle that inconclusive medical evidence does not, without more, prove the commission or non-commission of rape; its weight depends on context, and it may be neutral where it neither corroborates nor excludes the alleged absence of consent.