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[2016] ZANCHC 8
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Petro v S (CA&R80/2015) [2016] ZANCHC 8 (26 February 2016)
SAFLII
Note:
Certain personal/private
details of parties or witnesses have been redacted from this
document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Reportable:
NO
Circulate
to Judges: YES
Circulate
to Magistrates: NO
Circulate
to Regional Magistrates: NO
CASE
NO: CA&R 80/2015
DATE
HEARD: 22/02/2016
DATE
DELIVERED: 26/02/2016
In
the matter between:
PETRO,
J
Appellant
and
THE
STATE
Respondent
Coram:
Olivier
J
et
Erasmus AJ
JUDGMENT
Olivier
J
[1.]
The
appellant was charged with rape
[1]
in the Regional Court, Keimoes. He pleaded not guilty.
His plea explanation was that the complainant had approached
him
where he was drinking near the house of her father. They agreed
that he would let the complainant have some of his wine
in exchange
for intercourse at a later stage. The two of them, together
with the complainant’s young daughter, at a
later stage went to
a building which apparently served as a communal outside shower, to
have intercourse there. When they
got there the room was dirty
and the appellant left the complainant there and went to fetch a
blanket. He returned, spread
the blanket on the floor and had
consensual intercourse with the complainant. During the
intercourse the complainant’s
father entered the room and said
“
Sharon,
Here wat maak jy
”.
Complainant then pushed him away from her and dressed. She
walked away and he followed her. As they approached
the house
of one Dokkers the complainant started to shout and alleged that he
had raped her. The appellant was angry because
of the false
allegation of rape and they argued, and in that process he hit
complainant on her mouth. The complainant then
made a report to
Ms L. V. W.. The police were summoned. The appellant waited
there until they arrived and he gave them his
full co-operation.
[2.]
The
complainant testified and denied having consented to sex in exchange
for wine, or at all. Her evidence was that she was
drunk when
she arrived at the place of Dokkers. She was offered wine by
the appellant. At some stage thereafter the
appellant forced
her from there, with her child, to a nearby shower. According
to the complainant she did not scream while
they were on their way
from Dokkers’ place to the shower, because the music at Dokkers
was so loud that nobody would have
heard. In the shower there was a
blanket. The appellant forced her into the shower and onto the
floor and undressed her.
Over a period of approximately two
hours the appellant raped her, while constantly strangling her and
repeatedly hitting her in
the face with fists. The complainant
cried and pleaded with the appellant, and the child also cried.
During
that process her father entered the shower. According to
her he said something, but she could not say what. She then
managed to get away and left with her child. She went to
Dokkers place and told the people, presumably Ms V. W., that she
had
been raped. The next day her face was swollen, her eyes blue
and she had marks on her neck as a result of the strangulation.
[3.]
Ms
V. W.’s evidence was that she had arrived at the place of
Dokkers early that evening. At some stage thereafter the
complainant arrived. She was crying and reported that she had been
raped by the appellant. Her face was swollen and scratched,
her
eyes were blue and swollen and there were scratches on her neck.
The complainant was dressed, but was not wearing a panty.
Ms V.
W. then summoned the police.
[4.]
Lastly,
as far as the case for the prosecution is concerned, a medical report
(J88) by Dr Coetzee was handed in as an exhibit, on
the basis that
the contents thereof were admitted as correct. According to the
report the examination was conducted at 22:15
on the day of the
incident. It was noted that the complainant had a swollen upper
lip, with a bleeding laceration of 0.5cm.
As far as the
gynaecological examination is concerned, the findings that were noted
were that there was “
bleeding,
abrasions and superficial lacerations on/around the urethra + left
labia
”
and the conclusion that was noted was that there were “
Definite
signs of recent/forceful penetration
”.
[5.]
The
appellant testified in his own defence, and the complainant’s
father, Mr K. P., was also called on his behalf.
[6.]
In
his evidence the appellant basically persisted with the version in
his plea explanation. He testified that his mother and
one
Elvis were also present when he and the complainant left and walked
to the shower. According to the appellant the complainant
was
drunk, but knew what was happening. According to the appellant
the complainant’s father appeared to be under the
influence of
alcohol when he entered the shower. The appellant testified
that he had accidentally injured the complainant’s
lip during
the argument that developed when the complainant accused him of
rape. The appellant speculated that the complainant
might have
accused him of rape in an attempt to explain for the fact that she
had been caught in the act of having intercourse
with a relative, and
because of being embarrassed about that. The evidence was that
the appellant was the grandson of the
complainant’s aunt.
[7.]
Mr
K. P. denied having entered the shower and insisted that he knew
nothing at all about the incident between the appellant and
the
complainant. According to him he had indeed walked past the
shower. He testified that he heard no screaming or crying
from the
shower at the time, and he admitted that he would have heard sounds
like that when he passed the shower. Mr Petro
also admitted
that he was drunk at the time.
[8.]
The
Regional Magistrate then called Dr Coetzee as a witness. Dr
Coetzee, at least in his initial evidence, persisted in the
findings
and conclusion noted in the medical report. He testified that
those findings were inconsistent with consensual intercourse.
I
will revert to the doctor’s evidence in due course.
[9.]
The
Regional Magistrate found that Ms V. W. had been an honest and
trustworthy witness and that there had been no material
contradictions
in her evidence. It was found that Ms V. W.’s
evidence that the complainant arrived at Dokkers’ place with
the
injury on lip confirmed that the appellant had indeed assaulted
the complainant during the incident when the intercourse took place.
Reference was furthermore made to the evidence of Dr Coetzee that
lubrication would usually be present during consensual intercourse,
which would prevent injuries. The Regional Magistrate
furthermore surmised that Mr K. P. may have gone to the shower
because
of the complainant’s screams.
[10.]
The
appellant was convicted and sentenced to 8 years imprisonment.
Leave to appeal against his conviction was granted on petition.
[11.]
Although
a court of appeal will not readily interfere with the factual and
credibility findings of a trial court, it will do so
where such
findings are clearly incorrect
[2]
.
[12.]
In
an attempt to explain why she had not screamed for help when the
appellant dragged her to the shower, the complainant testified
that
there had been loud music at Dokkers’ place and that nobody
would have heard her screams. This evidence was contradicted
by
Ms V. W., who testified that no music had been playing there.
The Regional Magistrate made no reference at all to this
contradiction and made no effort to call either the appellant’s
mother or Elvis on the crucial aspect of how it happened
that the
appellant and the complainant went to the shower.
[13.]
The
Regional Magistrate made no reference at all to the apparent
improbability of a blanket conveniently lying spread open in a
communal shower that was, on the appellant’s undisputed
evidence, dirty and not used during that time of the year.
[14.]
In
his medical report Dr Coetzee noted that, other than the injury to
the complainant’s lip, there were “
no
other external injuries
”.
In his later evidence Dr Coetzee made it very clear that the
complainant’s version of the manner in which she
had been
assaulted during intercourse could not be true, having regard to the
absence of injuries that one would have expected
in the event of such
a severe and prolonged assault. The same would obviously apply
to the evidence of Ms V. W. about the
injuries she had allegedly
observed when the complainant arrived at Dokkers’ place.
In fact, on her evidence there
would have been scratch marks on the
complainant’s face, which Dr Coetzee would undoubtedly have
observed during his examination.
This means that the evidence
of the complainant and of Ms V. W. regarding the nature of the
assault perpetrated on the complainant
and the injuries sustained by
her was false. On the face of it the Regional Magistrate
never considered this issue
[3]
and it is not clear how the Regional Magistrate could, in the
circumstances and on the evidence of Ms V. W., have found that the
injury to the complainant’s lip had been sustained during
intercourse.
[15.]
The
appellant’s version was that the injury to the complainant’s
lip had not been caused during intercourse. Although
it may be
argued that he contradicted his version in this regard, as set out in
his plea explanation, by later testifying that
he had accidentally
caused the injury, he remained consistent in the version that the
injury to the complainant’s lip had
not been sustained during
intercourse. In my view the evidence of the complainant and of
Ms V. W. could not, in the circumstances,
be said to have refuted the
reasonable possibility of the injury to the complainant’s lip
having been sustained at some stage
after the intercourse, time
during an altercation between the appellant and the complainant about
her allegation of rape.
[16.]
In
the judgment the Regional Magistrate made reference to only the
doctor’s evidence-in-chief, and the findings in the medical
report. No reference at all was made to the evidence of Dr
Coetzee in cross-examination.
16.1
In cross-examination Dr Coetzee testified that “
Usually
when … it is not consensual, you would sustain injuries in the
fossa navikularis
(sic)
or
in the perineum
”.
Dr Coetzee’s evidence-in-chief was, however, that the perineum
was intact. He made no mention at all
of any injury to the
fossa navicularis. In fact, he testified that, apart from the
injuries noted in the medical report,
all other gynaecological
observations were normal. This means that the injuries which
would on Dr Coetzee’s own evidence
normally have been typical
of non-consensual intercourse were not found.
16.2
In maintaining that the injuries that he had found were nevertheless
indicative of non-consensual
intercourse, Dr Coetzee made reference
to the fact that lubrication, which would prevent such injuries,
would “
usually
”
be present during consensual intercourse. When Dr Coetzee was
confronted, in cross-examination, with a scenario where
the
intercourse would have been preceded by a business transaction, and
no foreplay, Dr Coetzee initially conceded that that could
explain
the absence of lubrication, but he immediately thereafter reverted to
his initial opinion that the penetration had occurred
forcefully.
In
my view the possibility that intercourse may have taken place as
described by the appellant, and not forcefully (in the sense
of a
violent attack and an absence of any form of consent) was not
excluded by the evidence of Dr Coetzee. In my view the
court
was not bound by the fact that the contents of the medical report had
been admitted, more particularly not as far as the
noted
conclusion
[4]
of forceful penetration was concerned
[5]
.
[17.]
In
my view there can be little doubt that Mr K. P. was not truthful in
his denial that he had entered the shower. His evidence
that he
had heard no screams or crying in the shower, and that he would have
heard screams and crying when he walked past the shower,
was however
never discredited.
[18.]
As
regards the fact that the complainant reported to Ms V. W. that she
had been raped, it is clear from the evidence that the complainant
and Ms V. W. knew one another well. The complainant knew that
her father had just seen her having intercourse with a family
member,
and would have known that an explanation was going to be necessary.
This would also explain why she did not, immediately
upon leaving the
shower, scream for help.
[19.]
The
Regional Magistrate also apparently paid no attention to the
undisputed evidence that the complainant had been very drunk at
the
time, or to the fact that, according to the medical report, the
complainant had been suffering from hallucinations. In
this
regard it is significant that the complainant was not able to
explain, in her evidence, how she had managed to get away from
the
appellant and why she did not know what her father had said.
The appellant’s evidence that the complainant had
simply pushed
him away from her and left, was therefore not really disputed.
This would be extremely difficult to reconcile
with a scenario where
the complainant had been overpowered by a violent attacker and was
being strangled and assaulted by him,
while being pinned to the
ground. On the complainant’s version she would of course
also in the process have had the
time and the opportunity to get
dressed before she left the shower for Dokkers’ place, which is
also difficult to reconcile
with the behaviour expected from an
extremely violent attacker such as the one described by her.
[20.]
The
complainant’s evidence to the effect that the appellant had
completely undressed her before the intercourse and the evidence
that
she had left behind her panty when she left the shower, was
irreconcilable with the version in her statement to the police,
to
the effect that her pants and panty had not been completely removed
by the appellant.
[21.]
According
to Ms V. W. she initially did not believe the complainant when she
reported having been raped. She testified that
she thought that
the complainant may be crying because she was glad to see her
father. There was no evidence that the complainant’s
father was there when the complainant made the report. How Ms
V. W. could furthermore have remained under this impression
until she
saw that the complainant was not wearing a panty, despite the
complainant’s immediate report of having been raped
and at
least her bleeding lip, is a mystery. This appears to be an
improbability in the version of Ms V. W. which was not
considered by
the Regional Magistrate.
[22.]
In
the circumstances I am of the view that this court should not defer
to the trial court’s credibility findings. On
the
evidence the reasonable possibility of consensual intercourse was not
rebutted.
[23.]
It
follows that I am of the view that the appeal should succeed and the
following order is therefore made;
THE
CONVICTION AND SENTENCE ARE SET ASIDE.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I
agree.
______________________
S
L ERASMUS
ACTING
JUDGE
NORTHERN
CAPE DIVISION
For the
Appellant: Mr A Van Tonder
Legal
Aid South Africa
For the Respondent:
Adv J J Rosenberg
Office
of the Director of Public Prosecutions
[1]
In contravention of the
provisions of section 3 of the
Criminal
Law (Sexual Offences and Related Matters) Amendment Act
,
32 of 2007
[2]
S v M
2006 (1) SASV 135 (SCA) para
[40];
Karim v S
[2012] 2 All SA 125
(SCA) para [65]
[3]
“
It is cause for
concern to find laudatory epithets applied by a trial court to
witnesses when the record shows that their performance,
judged by
the written word, was obviously far from satisfactory” :
S
v Heslop
2007 (1)
SACR 461
(SCA) para [13]
[4]
In the sense of an inference drawn or an opinion expressed, as
opposed to a recorded fact.
[5]
Compare
Rance
v Union Mercantile Co Ltd
1922 AD 312
at 315;
Fourie
v Sentrasure Bpk
1997
(4) SA 950
(NC) at 970