S v Cornick and Another (409/06) [2007] ZASCA 14; [2007] 2 All SA 447 (SCA); 2007 (2) SACR 115 (SCA) (20 March 2007)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2007
>>
[2007] ZASCA 14
|

|

S v Cornick and Another (409/06) [2007] ZASCA 14; [2007] 2 All SA 447 (SCA); 2007 (2) SACR 115 (SCA) (20 March 2007)

Links to summary

SAFLII
Note:
Certain personal/private details of
parties or witnesses have been redacted from this document in
compliance with the law
and
SAFLII
Policy
THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
CASE NO: 409/06
Reportable
In
the matter between
MARK
CORNICK First Appellant
LEONARD
KINNEAR Second Appellant
and
THE
STATE Respondent
Coram
: LEWIS, PONNAN JJA, THERON AJA
Heard:
2 MARCH 2007
Delivered:
20 MARCH 2007
Summary
:
Appeals against convictions and sentences for rapes committed 19
years before charges were laid by complainant dismissed.
Complainant’s
evidence proved guilt of appellants beyond reasonable
doubt. Sentences confirmed.
Neutral
citation: This case may be cited as
CORNICK & KINNEAR v THE
STATE
[2007] SCA 14 (RSA)
JUDGMENT
LEWIS JA
[1] This appeal is against the convictions and sentences imposed on
the two appellants, Mr Mark Cornick and Mr Leonard Kinnear
for rape.
Both pleaded not guilty to two counts of rape. Cornick was convicted
on both charges and Kinnear on one. They were sentenced
to five and
four years’ imprisonment respectively.
[2] The case is an unusual one, for the rapes for which the
appellants were convicted occurred in 1983 some 19 years before the

complainant, Mrs B VN (to whom I shall refer as B), laid charges
against them. B was then a child of 14 and the appellants some
four
years older. B did not tell her parents or her grandparents (with
whom she was staying at the time) of the rapes at all. She
told no
one but a couple of friends and even then she did not tell them much.
She kept quiet about the incident until, in 2002,
she fortuitously
met Cornick at his sister’s home. By then she was married and had a
child. She had not told her husband that
she had been raped until the
evening she met Cornick. The meeting revived memories of her ordeal,
such that she became hysterical
and had to tell her husband what had
happened. It was then that she laid the charges and that Cornick and
Kinnear were arrested,
charged in the Wynberg Regional Court, Cape
Town, convicted and sentenced. Their appeal to a full bench of the
Cape High Court
(Mitchell and Potgieter AJJ) was dismissed. It is
with the leave of that court that this further appeal lies.
[3] The evidence of B, accepted as credible by the regional
magistrate, was in essence this. Her parents had divorced when she

was very young and her mother had moved away from the area in which
they had lived in Cape Town, to Parow. For a year she had lived
with
her paternal grandparents, in Kenwyn, seeing her father on a regular
basis. She had continued to attend primary school in
the Kenwyn area.
She went to live with her mother some time in 1981. But she regularly
visited her grandparents and stayed with
them over school holidays.
Her mother then remarried and she and her husband had built a house
in Parow. Not long after they had
moved in to their new home in 1982,
B went to spend the December and January school holidays in Kenwyn
with her grandparents.
[4] One Tuesday evening in January 1983 (B was certain of the time
period because it was after her mother had moved into the new
house
and at the start of her Standard 8 school year) she was invited to
spend the night with a former primary school friend, LM.
While L, her
mother, B and a third girl whom B did not know, were watching an
episode of the television show ‘Dallas’ five
youths arrived at
the house. B knew three of them, Cornick, Kinnear and Michael
Kinnear. She had met them previously at the home
of a friend, L
Albertyn. The other two youths were the older brother of Cornick,
Raymond, and Clive, neither of whom B had met
before. Michael was
apparently L’s boyfriend.
[5] When the episode of Dallas was finished L’s mother went to bed.
The girls and the five youths went to L’s bedroom since
L was
concerned that the noise they were making would disturb her mother.
Unbeknown to B, after they went in the bedroom door was
locked. L and
the other girl became sexually intimate with Michael and Clive
respectively as soon as they were in the room. B went
to sit on the
bed where she was supposed to sleep.
[6] Cornick came over to the bed, pushed her down so that she lay
flat on the bed and began to kiss her. He pushed his tongue into
her
mouth. She was so naive, she maintained, that she did not even know
that she was being kissed. Cornick also forced his hand
under her
blouse and when she tried to resist him he became aggressive. He then
took hold of both her hands with one of his, holding
her hands above
her head, and with his free hand forcibly removed her jeans and
pants. She objected and called out to the others
to help her, but
they ignored her. Cornick overcame her resistance and raped her. When
he was finished his brother Raymond also
raped her, and when she
screamed he held a knife to her throat and threatened to hurt her.
She was then raped by Kinnear, and a
second time each by Cornick and
his brother Raymond. All three of them lay on the bed with her at the
same time.
[7] She kept pleading for help and weeping but the other people in
the room continued to ignore her. When she was raped a second
time by
Raymond Cornick she became hysterical. The pain was searing. She no
longer cared that there was a knife held to her throat.
Her crying
alerted L’s mother, who knocked on the door and asked about the
noise. The men dressed hastily and L opened a window
for them to
leave the room. She then unlocked the door. Her mother stood at the
door and did not come into the room. L spoke for
B when asked what
the trouble was. She said B wanted to go home. The mother replied
that it was too late at night for her to leave
and that she could go
only in the morning. B had no opportunity to say anything and in any
event was in too distressed a state
to speak. The mother went away,
having apparently accepted the explanation. B said that the mother
was an alcoholic but did not
claim that she was drunk at the time.
[8] L told B to wash herself. She was bleeding and her clothes and
the bedlinen were stained. After washing B lay on the bed, sleepless,

until morning when she went back to her grandparents’ home. She
said not a word to them about her ordeal. She had been ignorant
about
sex and felt embarrassed, humiliated and ashamed at what had been
done to her.
[9] That afternoon she was sent by her grandparents to the local shop
to buy something for them. There she encountered Cornick
who told her
that if she ever said anything about the incident to anyone he would
tell her grandparents what she had done. Not
only did this frighten
her, but it also reinforced her fear that she had done something
wrong. While she felt abused and traumatized,
she did not realize
that she had been raped. She felt demeaned and humiliated and did not
understand that she was in no way to
blame.
[10] The result was that she threw away her bloodstained jeans and
pants, lying to her mother later as to what had happened to
them. And
she remained almost completely silent about her ordeal for some 19
years. She did tell two friends some of what had happened
soon
afterwards: she spoke to a girl named YD over the phone, and had seen
and spoken to ZA. I shall return to the evidence of
the conversation
with Z.
[11] B’s distress was such that she decided to return to her
mother’s home in Parow prematurely. She phoned her mother and
asked
to be fetched to return home earlier than planned. Her mother
confirmed when testifying that this had happened, and that
B had
explained her wish to return early on the basis that her friends were
not around and that she was lonely.
[12] B did not tell her mother about the rapes. She felt unable to do
so. She and her mother did not have a close relationship
and she had
effectively been brought up by her grandparents since she was about
four. She had never been told about sex by her
mother, nor about
female physiology. Indeed she knew nothing of menstruation until she
began her periods. She said that she did
not realize, until her
mid-twenties, that she had been raped. She attempted to bury the
ordeal in the back of her mind, though
she said that she had become
even more withdrawn a child than she had been before.
[13] In due course B matriculated, and enlisted in the army.
Subsequently she joined the department of correctional services and

worked in various capacities, ultimately as a prison warder in a
men’s prison. She married Mr A VN and they have one child, also

named B. She did not tell VN that she had been raped. She pretended,
when they married, that she was a virgin. In court she said
that in
doing this she had ‘lived a lie’.
[14] When working as a prison warder B suffered from depression. She
had difficulties with her superiors, and found it unpleasant
to deal
with rapists in the prison. She consulted a psychiatrist and
eventually confided in him that she had been raped as a child.
But
she still told no one else. She was eventually medically ‘boarded’
as a result of her depression.
[15] In February 2002 B went to pick up her daughter who had been
visiting a friend. She encountered Cornick for the first time
since
January 1983, and recognized him immediately. Although shaken she
managed to speak to the mother of her daughter’s friend,
and
discovered that she was Cornick’s sister. She also spoke to the
father of the friend about building a carport, before leaving
the
house with her daughter.
[16] By the time she reached home she was hysterical as memories of
her ordeal in 1983 came flooding back to her. She had to explain
her
state to her husband, and told him about the rapes in 1983. He was
supportive and empathetic. He took her to a police station
and they
tried to lay a charge. But the officers on duty were unsympathetic
and uncooperative. They left without laying a charge
and the
following day, a Monday, B was hospitalized because of the emotional
distress she was feeling as a result of the encounter
with Cornick.
[17] When she was discharged she ascertained where Cornick lived and
his phone number. How she ascertained it is disputed and I
shall
return to the issue when considering her credibility. B, in the
presence of her husband then phoned Cornick, who immediately
knew who
she was. She testified that she had asked him whether he knew that he
had raped her. He responded that he did not deny
it, but that it had
happened years ago. When she told him that she was going to lay a
charge, he asked why she had not done it
at the time. Her husband
corroborated this exchange.
[18] Shortly after the telephone conversation with Cornick, B was
phoned by his sister, the mother of her daughter’s friend,
who
verbally abused her and threatened her. B nonetheless then laid a
charge against the appellants.
[19] Three other witnesses testified for the State: B’s mother, Mrs
A D, Mrs L Brown (formerly Albertyn), and B’s husband,
Mr A VN. Mrs
D could add very little and her evidence was not regarded as
completely reliable by the trial court. But she did confirm
that B
had asked to be fetched earlier than arranged from her grandparents’
home in January 1983, and that B was a quiet, withdrawn
child. She
was hazy on where B had gone to school and when, but she was adamant
about the period when B had returned early from
her grandparents’
home. She testified that L had spent a weekend with B in Parow, and
that she had not liked L. She told B that
L was not an appropriate
friend and that B should end the friendship.
[20] L confirmed that B had told her that she had been hurt by
Raymond Cornick, and that Mark Cornick had been present, but could

not recall mention of Kinnear. She acknowledged that at the time of
their conversation her chief reaction to what B had said was
anger
with B for going to L M’s house. L, L said, had a ‘bad
reputation’, and she had warned B not to go there. She said
that
the appellants were friends of hers and that she found it difficult
to believe that they had raped B. However, she also admitted
that as
a young teenager she too had been naive about sexual matters and
might not have comprehended what B was telling her.
[21] A VN confirmed that B had not told him of the multiple rapes
until February 2002 when she returned home from fetching her

daughter. He slapped her to stop her hysteria. Subsequently he heard
the telephone conversation between her and Cornick, and confirmed

what was said. He also overheard the abusive and threatening call
from Cornick’s sister.
[22] The appellants testified in their own defence. They are
cousins, and for some time Cornick had lived in the Kinnear home.
The
cousins, including Michael Kinnear, were good friends. Both denied
that they had ever raped B. Yet both acknowledged that they
had known
her as a child in Kenwyn, and had met her at L’s home. Both
recalled an evening when they had gone to L M’s home
and met B
there. They said that Michael, L’s then boyfriend, had been with
them as had Gary. (It is not clear whether Gary is
the same person to
whom B referred as Clive.) But they denied that Raymond Cornick, or
a third girl, had been present. They claimed
simply to have sat in
L’s bedroom and chatted. They both said that they had left L’s
house by the front door, as they had come
in, thus denying that they
had climbed out of a window. And they insisted that this had happened
earlier than 1983: they did not
go out in the evenings during the
week, they said, because they were supposed to study for school
exams. But they did not explain
why this would be so during a school
holiday, which it was in January 1983. They also claimed that they
had met B several times
at L’s house after they had encountered her
at L’s home one evening. This accords neither with B’s evidence
that she did
not see them again after January 1983, nor with L’s
evidence that she had not seen B since that time.
[23] The regional court, as I have said, found that B was an entirely
credible witness. Mindful of the fact that B was a single
witness to
the rapes, the regional magistrate looked for corroboration in the
evidence of D and L, and examined the evidence of
B herself
carefully, finding no inconsistencies. It is worth setting out in
full her description of B as a witness.
‘
The complainant to my mind,
clearly testified about a very traumatic experience.
The evidence that she gave, the
nature thereof and the charge is not only of a traumatic experience,
but it was quite clear that
talking about it, even 20 years later,
made it no easier for the complainant. The Court adjourned on
numerous occasions. The complainant
was crying, sobbing in court and
I cannot agree with the defence’s contention that this was antics
or a show.
In fact it never appeared
rehearsed or anything but genuine anguish. She was honest about her
own feelings of shame, embarrassment,
feelings of having done
something wrong herself, feelings that at the end of the day fits in
with what the court would expect of
a child at that stage, given her
circumstances and that she was the victim of rape.
She was completely honest about
the fact that she lied to her grandparents and her mom as to why she
wanted to cut her holiday short.
She was honest about it that she
destroyed the evidence, if one could call it that, the blood on her
clothing. She was honest that
she never told her husband about this,
that she pretended her virginity. She was honest to say I probably
would never have laid
the charges if I did not run into accused 1 and
all the memories came flooding back.’
. . .
‘
The Court also finds the
complainant to be a credible witness. There were no inconsistencies
in the complainant’s version, but
more importantly no
improbabilities.’
[24] The appeal court considered this evaluation to be correct.
Mitchell AJ said that he was mindful that a trial court may have
the
advantage of seeing and hearing the witnesses in court, but that it
is nonetheless the duty of an appeal court to consider
the record of
the proceedings in order to ascertain whether the credibility
findings are supported by the evidence or by the probabilities.
A
credibility finding may well be held to be wrong.
1
An examination of the record persuaded the appeal court that the
trial court had not erred in its assessment of B’s evidence.
[25] The appellants argue, however, that the regional court
misdirected itself in several respects. First, they contend that the

learned magistrate made findings of fact that are inconsistent with
the evidence. So, for example, she did not take into account
the
conflict between the evidence of B, that she had encountered L once
after she had left Kenwyn, and that of L who said that
after January
1983 she had not seen B again, until the trial. The conflict does not
relate to the facts in issue and is in my view
immaterial.
[26] Secondly, L’s evidence was that B, when she told her of the
incident, had mentioned only Raymond Cornick and not Mark Cornick
as
an assailant, although B had mentioned his presence. She had not
mentioned Kinnear to L, according to the appellants, although
B
testified that she had. As the learned regional magistrate found,
these discrepancies are insignificant in context. Both B and
L were
testifying about a conversation held some 20 years previously.
Moreover, L said that she could not remember mention of Kinnear:
she
did not deny that mention was made of him. L admitted that she had
not fully comprehended what B was telling her at the time.
She
admitted also that her reaction to what was said was one of anger
towards B for not heeding her advice about L. It is thus
not
surprising that there are some inconsistencies in the recounting of
the conversation. This was the view too of the court below,
and I
consider that the regional court did not misdirect itself on these
questions of fact. It correctly regarded L’s evidence
as
corroborative at least of the fact that B had been sexually assaulted
by Raymond Cornick in January 1983.
[27] Another misdirection argued for by the appellants is that B,
when giving evidence on her reaction to seeing Cornick in 2002,
said
that she told her husband that she had seen her ‘rapist’. VN, on
the other hand, testified that she said she had seen
her ‘rapists’.
The trial court did not take this inconsistency into account. This
complaint cannot be afforded any weight in
the light of the
uncontested evidence of B that she had seen only Cornick, and had
telephoned only him.
[28] The appellants argue further that the trial court misdirected
itself when it found that L’s evidence corroborated that of
B when
the latter said that L had a bad reputation. In fact B did not use
those words. But she did testify that L had warned her
not to go to
L’s house. It is reasonable to assume that B knew of L’s view of
L. In the context of the evidence the complaint
is trivial and the
finding certainly does not amount to a misdirection.
[29] The appellants contend that the trial court misdirected itself
in finding that B’s mother corroborated her evidence that
B would
not, after January 2003, visit her grandparents on her own. B,
however, testified that she had visited them after school
on
occasions, taking the train to Kenwyn. This is indeed an incorrect
finding of fact, but again, it is of no significance and
is
explicable by the 20 years that had lapsed between 1983 and the
trial. B would probably have had a better recollection than
did her
mother, and the error is of no relevance to the events at issue.
[30] There is only one respect in which I consider that B’s
evidence was puzzling: this is her account of how she ascertained
the
telephone number of Cornick. She testified that she had gone to a
public phone and phoned the directories enquiry number, 1023.
She had
been given both his telephone number and his address. Much was made
of this by the appellants’ attorney in the trial
court. Why use a
public phone when she had a phone at home? And why say that she was
also given Cornick’s address when such information
is not given on
the enquiries line? No good explanation for this was proffered. She
also testified that she had asked Cornick’s
niece, her daughter’s
friend, for the address. But why do that when she already had it? The
court below considered that these
implausible features were of a
minor nature and did not impact on B’s credible account of the
rapes. That is correct.
[31] Finally, and most importantly, the appellants argue that B’s
version is improbable. They contend that it was not possible
for B
to have been so inexperienced and naive as not to know about sex or
not to realize (until in her mid-twenties) that she had
been raped.
The story that she was raped in the presence of her ‘friends’
without their intervening was also improbable, as
was the conduct of
L’s mother in taking no note of an apparently hysterical girl.
[32] Yet B gave plausible explanations for all these apparent
anomalies. She had been brought up by elderly and conservative
grandparents.
They had never discussed matters of an intimate nature.
She had a distant relationship with her mother who had also not
spoken
to her ever about sex or physiology. She had never had a
boyfriend. It seems to me quite likely that in these circumstances
she
did not realize what was happening to her when three youths took
turns forcibly to have sexual intercourse with her, despite her
pleas
and protestations. She knew that she was being hurt, but she did not
appreciate that she was being raped. It does not seem
to me
improbable that a young woman who has tried to bury memories of a
traumatic event for many years would not appreciate until
her
mid-twenties, at a time when discussion and publicity about rape had
become common, the full extent of what had happened only
later.
[33] The argument that it was improbable that none of B’s friends
came to her rescue if her version were true is equally not

convincing. It was B’s view that she had been ‘set up’ by her
so-called friend, L. Indeed L confirmed that B told her that
L had
instigated the attack on B, encouraged the youths, and urged them on.
She did not know any of the youths, although she had
encountered
three of them at L’s house previously, and she did not know the
third girl. They were not friends and they ignored
her pleas. When
L’s mother knocked on the door L had first let the men escape
through the window and only then opened the door.
It may be hard to
understand the motives of the others given the vile manner in which
they behaved, but that does not make B’s
account of their conduct
improbable. They were on her version complicit in their friends’
conduct.
[34] B’s account of L’s mother’s behaviour is also said to be
improbable. Why would a mother who saw a hysterical girl,
bleeding
and in a state of semi-undress, take no action? B’s explanation is
entirely plausible. M Meyer stood at the door of
L’s bedroom. The
bed on which B sat was at the far end of the room. When she wanted to
speak out L kept her quiet by saying that
B wanted to go home. In any
event, B was unable to speak because of her hysterical state. There
appears to be no reason why the
mother would not accept such an
explanation. And it is likely that, standing at the door, she did not
see the blood that B said
was on her clothing and the bedlinen.
Moreover, why would B fabricate the appearance of L’s mother and
her failure to speak
out when this might weigh against her?
[35] The appellants argue also that it is improbable, if the rapes
occurred, that B would not have told her grandparents or her
mother
about the rapes. They point out also that she gave various answers
about why she had not laid charges: that she could not
tell anyone,
that she did not know where the appellants lived and that she did not
know that she had been raped. However, none
of these is inconsistent
with the others. In my view, B’s explanation is credible. She did
not appreciate the magnitude of what
had happened to her. She did not
realize that she had been raped. She knew only that something
terrible had happened to her, and
felt in some way responsible,
complicit. She had let it happen and was therefore ashamed. The
threat by Cornick the following day
exacerbated her feelings of shame
and humiliation. She was not in a position to discuss personal
matters with her elderly and very
conservative grandparents. She also
felt she could not tell her mother. Sex was not openly spoken about
in the community in which
she lived. Rapes were not reported and
discussed daily by the media as they are now. The only people in whom
she could confide
were friends, and she had spoken to two of them,
though she had not been explicit. The trial court and the court below
accepted
these explanations, as do I. In my view it is highly likely
that a young girl who goes to sleep over at the home of a person
against
whom she had been warned, both by a friend and her own
mother, and then spends time in a locked bedroom with five youths
whom she
barely knows, would believe that she was at fault. In her
naive mind B had done wrong. The situation was partly of her own
making.
She would clearly then not want to relate her ordeal to her
mother or to her conservative, strict grandparents.
[36] Related to the misdirections alleged is the appellants’
complaint that the regional magistrate did not heed the cautionary

rule. Counsel for the appellants concedes that there is no longer a
special cautionary rule relating to sexual offences. In
S v J
2
this court held that when evaluating the evidence of an alleged
victim in rape or sexual assault cases a court need do no more
than
exercise the caution that is necessary when there is only one witness
to the offence alleged. But he argues that the trial
court did not
take into account sufficiently that, because she was a single
witness, B’s account had to be treated with particular
care,
especially in light of her history of depression. She is argued to
fit the ‘psychological profile’ of the complainant
in
S v F
3
who was disbelieved. I fail to see any analogy, for in that case
the appellant admitted to sexual intercourse with the complainant
but
claimed it was consensual. It is in any event a decision that
precedes that of this court in
S v J
4
and the finding was made on the basis that the trial court had not
heeded the cautionary rule specific to sexual offences. The
point
that is sought to be made is that because B suffered from bouts of
depression (the extent of which was not established),
she ‘deviated’
from the norm such that her evidence should be treated with
additional caution. This submission is made without
any factual
basis and thus must be rejected.
[37] In my view the trial court was very careful in assessing the
evidence. The regional magistrate expressly stated that it was

incumbent on her to approach B’s evidence with caution. It is for
this reason that she sought to find corroboration in the evidence
of
other witnesses, such as L and VN. She also found some of the
evidence of the appellants to be corroborative: thus, for example,

they confirmed that Michael was L’s boyfriend; that they had spent
an evening at L’s house when B was present and that they
had met B
at L’s house previously. As the court below found, the regional
magistrate exercised all the caution that was required.
[38] There is additional reason for rejecting the argument that B’s
version was a fabrication. She was, as the trial court found,
frank
about having lied to her mother about her stained clothes and the
reason for her early return to Parow, and to her husband
about being
a virgin. She was also frank about her failure to say anything to Mrs
M when she came to find out about the noise in
L’s room. And, most
significantly, she did not implicate Kinnear in a second rape. If her
version were a fabrication, why invent
the appearance of Mrs M, and
why not say that Kinnear too had raped her a second time? I consider
that these are features of a
genuine and credible account of the
appellants’ conduct.
[39] It remains to consider whether the appellants’ versions,
weighed against B’s credible account, were reasonably possibly

true. They both denied guilt. They both claimed that on the one
evening when they had met B at L’s home they had done nothing
more
than chat to L and B. But neither could explain why B, 19 years after
the alleged rapes, had laid a charge against them. It
was put to B
that L and her mother would deny her version. Yet neither was called.
Nor were Michael and Gary called although they
were at court when the
trial commenced and the attorney appearing for the appellants put to
B that they would testify that nothing
had happened and that her
account was a complete fabrication. Yet they did not, in the end,
testify. At the close of the defence
case the attorney representing
the appellants said only that other witnesses were not available. Of
course it is not for the appellants
to establish their innocence. And
acceptance of the State’s evidence does not in itself establish the
guilt of an accused.
5
But there was a case for them to meet.
[40] Kinnear’s evidence as to his arrest is also of note. He
testified that he had received a telephone call from Cornick who
had
been arrested and asked him to come to the police station where he
was being held. Kinnear did not ask why Cornick had been
arrested: he
simply drove to the station to ‘hand himself over’. Why do that
if he did not know that he too would be arrested
and what the
probable charges were? Moreover, when questioned by the regional
magistrate, Kinnear’s version of why he had gone
to the police
station and what he had said was entirely different.
[41] The trial court was not impressed by the appellants. Their
version of events was scanty and they could not explain the
improbability
of B fabricating a complex story about their raping her
some 19 years after the offences were committed. Accepting that the
evidence
of B was credible and consistent, and corroborated in
several respects, the appellant’s conflicting version, unsupported
by any
evidence but their own, cannot stand. In
S v Van der
Meyden
6
Nugent J said
‘
It is difficult to see how a
defence can possibly be true if at the same time the State’s case
with which it is irreconcilable
is “completely acceptable and
unshaken”. [The quotation is from
S
v Munyai
,
7
a case the learned judge said was to be regarded with
circumspection.] The passage seems to suggest that the evidence is to
be
separated into compartments, and the “defence case” examined
in isolation, to determine whether it is so internally contradictory

or improbable as to be beyond the realm of reasonable possibility,
failing which the accused is entitled to be acquitted. If that
is
what was meant , it is not correct. A court does not base its
conclusion, whether it be to convict or to acquit, on only part
of
the evidence. The conclusion which it arrives at must account for all
the evidence. . . .
The proper test is that an
accused is bound to be convicted if the evidence establishes his
guilt beyond reasonable doubt, and the
logical corollary is that he
must be acquitted if it is reasonably possible that he might be
innocent.’
[42] This is a case where the State evidence is so convincing that it
excludes the possibility that the appellants are innocent
‘no
matter that [their] evidence might suggest the contrary when viewed
in isolation’.
8
I consider that the State proved the appellants’ guilt beyond
reasonable doubt.
[43] I turn then to the appeals against the sentences imposed. B gave
evidence in aggravation of sentence, repeating her testimony
about
the anguish that she had suffered during and after the rapes, and the
way in which her life had been detrimentally affected.
In cases such
as these a heavy sentence is warranted. At the time of the rapes the
jurisdiction of the regional court was limited
to the imposition of a
maximum term of imprisonment of ten years.
[44] Sentencing in this matter is particularly difficult given that
the appellants were charged 19 years after they had committed
the
offences and convicted more than a year later. Evidence was led, and
reports handed in by a correctional supervision officer,
and by a
clinical psychologist, which showed that both appellants have led
apparently exemplary lives since 1983. Both men were
39 at the time
of sentencing. They both have stable jobs, a regular income, wives
and children. They are regarded as decent people
by the communities
in which they live.
[45] The trial court did take these factors into account in imposing
sentence. It also had regard to the fact that the appellants
were
only 18 at the time they raped B. But the regional magistrate
considered that correctional supervision in terms of
s 276A(1)
of the
Criminal Procedure Act 51 of 1977
was not appropriate despite the
recommendation of the correctional supervision officer. She
considered that the punishment of the
appellants should send a
serious message to the public about the horror of rape. She regarded
it as aggravating that the appellants
showed no remorse; that they
had taken advantage of a girl whom they knew, and that Cornick had
threatened her the day after he
had brutalized her. They had both
raped her despite her pleas, her suffering, her weeping. They took
turns in participating in
this savage conduct. In the words of the
regional magistrate, they were ‘cruel, callous and contemptible’.
Their savagery had
an impact on the life of B which cannot be undone.
The serious nature of the crime thus persuaded the trial court that
correctional
supervision was not an appropriate sentence for either
of the appellants.
[46] In the absence of any misdirection on the part of the trial
court an appeal court should not interfere with the sentence imposed.

In any event, in my view, sentences of five years’ imprisonment for
Cornick (who raped B twice) and four years’ imprisonment
for
Kinnear, are entirely appropriate. While there is some cogency in the
argument that men who have for twenty years led decent
lives should
not be sent to prison, I consider that the extreme cruelty of their
behaviour warrants more than correctional supervision.
Only direct
imprisonment is sufficiently serious to constitute a deterrent and
retributive sentence.
[47] The appeals of both appellants against both convictions and
sentences are dismissed.
C H Lewis
Judge of Appeal
Concur:
Ponnan JA and Theron AJA
1
R v Dhlumayo
1948 (2) SA 677
(A);
Munster Estates (Pty)
Ltd v Killarney Hills (Pty) Ltd
1979 (1) SA 621(A)
at
623H-624A);
Santam Bpk v Biddulph
2004 (5) SA 586
(SCA) para
5 and
Medscheme Holdings (Pty) Ltd v Bhamjee
2005 (5) SA 339
(SCA) para 14
.
2
1998 (2) SA 984
(SCA).
3
1989 (3) SA 847
(A).
4
See also
S v M
2006 (1) SACR 135
para 272.
5
S v Van Aswegen
2001 (2) SACR 97
(SCA).
6
1999 (1) SACR 447
(W) at 449f-450a, cited and
approved in
S v Van Aswegen
at 101a-f.
7
1986 (4) SA 712
(V).
8
S v Van der Meyden
above at 449d-e.