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[2015] ZAGPPHC 16
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M.G v S (A40/2013) [2015] ZAGPPHC 16 (28 January 2015)
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 NORTH GAUTENG HIGH COURT
(HELD
AT PRETORIA)
CASE
No. A 40/2013
DATE:
28 JANUARY 2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
M[...]
G[...]
.................................................................................................................
APPELLANT
and
THE
STATE
.........................................................................................................
RESPONDENT
JUDGMENT
PRELLER J:
The appellant was
convicted and sentenced in the Regional Court at Louis Trichardt on
the following charges: Counts 1, 2 and 3:
Three charges of rape
committed on 2 and 5 September 2009, for which he was sentenced to
three terms of imprisonment for life;
Count 4: Using a
child for producing six pornographic photographs between 2 and 5
September 2009;
Count 5: Exposing
the said child to pornographic images of his wife and himself having
sex during 2009;
Count 7: Possession
on 2 November 2009 of six images on a computer of children engaged in
sexual conduct or in a display of genitals.
On counts 4, 5 and
7, which were taken together for purposes of sentence, he was
sentenced to 10 years' imprisonment.
He was acquitted on
count 6, which was one of sexual grooming of a child.
The victim was
almost 11 years old at the time and is the appellant's stepdaughter.
He was married to her mother about three years
before the incidents
which were to lead to his trial. In the first three charges it
is alleged that he inserted his penis
into her mouth, vagina and
anus respectively. The child having been under the age of 12 at
the time, she cannot consent to
the acts with which he was charged.
In terms of the provisions of Act 32 of 2007, the acts alleged
in the first and third
counts also constitute rape and the minimum
sentence of imprisonment for life is applicable in view of the
age of the victim.
I wish to stress at
the outset that nothing that I may say in this judgment is to be
regarded as condoning in any way what the appellant
did. Sexual
molestation of a minor child is and remains a serious crime.
The
appellant and his wife lived together with the victim and her
brother, who was two years older, in the Air Force Base at Louis
Trichardt. It appears from the evidence that the appellant and his
wife had a predilection for pornography and at times filmed
and
stored their sexual activities on a computer that was kept in
their bedroom. His wife was no shrinking violet in this
regard.
Captain Fourie of the Child Protection Unit testified that she
had seized 149 compact discs and nine stiffies in the
bedroom where
the computer was kept and which had been pointed out by the
complainant. The only evidence about the contents of
those discs and
stiffies is the statement in the key to exhibit B that the
complainant was pointing out the DVD's
"allegedly
used in recording the rape between the victim and the suspect".
The appellant's
wife later testified that "her" CD's and DVD's had been
removed by the police. It is further borne
out by the fact that
there was a picture of the naked upper half of her body taken by
herself on her digital camera and also
by the two photographs
(numbered 7 and 8 in exhibit B) taken by the police of a somewhat
elaborate artificial penis that was
found by them in the house and
could only have been used by her. According to the affidavit by
the police photographer who
took the pictures, they were taken at
15h30 on the day of the appellant's arrest. In the key to the
album they are described
as being of
"...the
artificial penis which was found inside the house which was
allegedly used by the suspect sometimes before raping
the
victim."
The
appellant did not make any statement to the police at the time of his
arrest and his wife has not spoken to the victim
by this time,
which means that the information could not have come from either
of them. In their evidence neither the complainant
nor her mother
made any mention of any such incident at all. It could not have
been used on the complainant since she was,
according to herself and
to the doctor who examined her, still a virgin. It seems that
the wife's cousin, Ms. L[...], who
was clearly prejudiced
against the appellant, assumed the worst against him and made that
groundless allegation to the police.
This is one of the aspects
that should have been probed in cross-examination or by the court as
will be dealt with later.
It
is also clear that the parents did not take the necessary care to
ensure that the children did not see what was on the computer.
According to the mother's evidence the children had access to the
computer. She stated that
"as
far as I know"
the
pornographic material was protected by a password and
"The
password was on and off, on and off so sometimes there was a
password, sometimes there was no password."
On 2 November 2009
the appellant's wife was alone at home and looking at some of the
pornographic material on the computer when
she discovered some
photographs on which she recognised the face of her daughter.
She phoned her cousin, Ms L[...],who came
to the house and attempted
to copy the photographs of the child on a memory stick. The
cousin was called as a witness, despite
there being hardly anything
of relevance in her evidence. The magistrate as well as the defence
attorney allowed the prosecutor
to elicit from her a lot of
hearsay about what she had allegedly been told by the appellant's
wife, but which the latter did
not confirm and in some cases
contradicted in her evidence. Although several important parts
of her evidence were not sufficiently
audible to be transcribed, it
is clear enough that she stated more than once that she had seen
images (none of which was identified
in her evidence) of
the appellant having intercourse with or raping the complainant.
There is not a single photograph depicting intercourse
on which
the face of either the complainant or the appellant can be seen and
she never attempted to explain how she could
say that any of the
photographs before the court depicted either of the two. I have dealt
elsewhere with the doubtful identification
of some photographs by the
complainant and refer to what was said there. I remark on this
because the magistrate allowed herself
to be misled by the
positive identifications ascribed to Ms G[...] of what is on
some of the photographs, but which the latter
quite fairly did
not attempt to make in her evidence. In her judgment (record,
p.174-175) the magistrate stated that the cousin
had seen
photographs of the appellant having sexual intercourse with the
complainant and that her mother had identified the
foot of the
appellant on one of the photographs. These are two examples
of findings made by the court that were based on nothing
but
pure hearsay by Ms L[...].
Four sets of
photographs were handed in at the trial:
Exhibit
B
is
a set of 12 taken by the police on the day when the appellant was
arrested and is of little relevance, except perhaps as far
as the two
photographs referred to above of the artificial penis are concerned.
To
illustrate the sloppy way in which the evidence and exhibits were
handled, I can refer to the evidence around the attachment
of the
exhibits in the house of the appellant:
The
photo album was submitted under cover of an affidavit which was
intended to be in terms of sec 212 of the Criminal Procedure
Act, but fell far short of the requirements of the section. The
defence nevertheless consented to it being handed in, but
no
admission of its correctness was recorded.
The
deponent to the affidavit states that he attended the scene on
2009-11-02 at 15:30 where, after making his own observations,
he took photographs of the scene and prepared
"a
photographs and photo album".
In
the key to the photographs he states that all of them were taken by
him on the said date at about 15:30
"at
the scene",
which
could only have meant the house of the appellant. Nevertheless
the photo's numbered 10, 11 and 12 were clearly taken
at some
other place, which was probably the police station. That is
apparent if the window in the background of no. 10 is
compared to
the one appearing on no's 2 and 4, and the floor on no's 5 and
6 to the two different floors on no's 11 and
12. Captain Fourie also
testified that the computer had been handed over by sgt. Botha to
w/o Mynhardt at the police station, and
sealed in her presence.
The photo of the sealed computer (no. 12) was therefore clearly not
taken "at the scene".
There was no attempt to clear
up these discrepancies.
When
the captain testified that sgt. Botha had identified the computer to
her, the court enquired from the prosecutor whether
Botha would be
called as a witness and allowed the hearsay after being informed
that he would be called. He did not testify and
no admission of the
identity; of the computer was sought from the defence.
Without
sgt. Botha's evidence the chain of evidence showing that the
computer had not been tampered with between the time
of its
removal from the house and its sealing, was not completed. This
evidence would have been essential in view of the
(admittedly
unconvincing) attempt by the appellant to deny that he was the
one who had stored the offending material on
the computer.
Photo
number 9 is of a Samsung 760 digital camera and is described as
"the
camera that was used during the crime".
That
is in conflict with the evidence of Col. Freitag, the commander of
the cyber crime unit in Kwazulu-Natal, who testified
that the
photographs in question had been taken with an LG model KS 360
cellphone. In this regard capt. Fourie testified
that the camera
belongs to Ms G[...] and that there was only one photograph on
it, being a nude photograph of her upper
body which had been taken
by herself.
Exhibit
C
consists
of 6 photographs which, according to the hearsay version of Ms
L[...], were printed from the computer by the appellant's
wife. On
two of them the face of the complainant can be seen;
Exhibit
D
contains
20 photographs. Col. Freitag recovered them from the recycle bin of
the computer, which means that they had been deleted
from the
computer but could still be recovered. They were in the recycle
bin in a file marked Dcl;
Exhibit
E
is
a set of 24 photographs. According to col. Freitag's evidence the)/
had also been copied from an LG KS360 cellular phone to the
computer.
The photo's are smaller than those in exhibit D and are in black and
white.
Col. Freitag
testified that she had made a copy of the hard drive of the computer
with a "fast block". That is a device
with which she can
copy the information that is on the hard drive, but not change any of
it. Then she used a forensic tool,
known as an NK, to make a
copy of the computer's hard drive. She emphasised that there was
no possibility of her changing
anything of what she copied. She
explained that eveiy digital camera, be it part of a cellular
phone or an ordinary camera,
gives every photo a unique number.
That number cannot be changed or duplicated. Even if an image is
deleted, the camera will
not give its number to the next photo,
but will cariy on with the set of numbers to the next image. That
means, according
to her, that a digital camera cannot give a
photo more than one number, nor can it give the same number to
more than
one photo.
On the hard drive
she found several hundred pornographic pictures from which she
selected those that could possibly involve minors.
I have referred
above to what seems to me to be the difference between the latter two
sets of photos. There is an inscription
at the top of each picture
which the witness explained in her evidence in chief. The
prosecutor led her to say that the number
at the top of each
photograph in this set starts with "Makhadu 26-11-2009"
while it actually is "Makhadu 26-11-09/7".
She said that it
was the case number under which she saved the document. It
appears from the record that the CAS number given
to the case by
the police was Makhado 26/11/09.
In the second line
of the heading the above number is repeated and is followed by the
word "Recycler" which, according
to her, indicates that the
photo was recovered from the recycle bin. That is followed by about
30 digits, which were not explained.
Then follows "1003\Dc1",
which she said refers to the folder in which it had originally
been saved and which was
subsequently deleted but recovered by her.
On the first five
photos in this exhibit there is a date which turned out to have been
written in the odd way that Americans do
these things, namely
"090902". As a good South African the prosecutor, thinking
that the last two digits indicate
the year and not the day,
asked her what "09092002” refers to. (On the remaining
15 photos in the exhibit this
part reads"090905"). Her
answer was that these are the dates on which the photos had been
taken, provided that the
date setting on the camera had been correct.
The final part of the code is a set of six digits and the
letters "jpg".
That, she said, is the unique number
assigned by the camera to each photo. Her forensic tool also
informed her that the photos
had been taken with a model KS360
LG cellular phone.
She was then taken
through the individual photo's and by the time that she came to the
third one in this series she, also being
a good South African, said
without any prompting from the prosecutor that the photo had been
taken on 09/09/2002. Thereafter
she consistently referred to these
dates as being in 2002 and 2005 respectively, which could
clearly not be correct. In September
2002 the victim was not yet four
years old and it would have been four years before the appellant
and her mother were married.
The two dates indicated by the
codes 09\09\02 and 09\09\05 were obviously the American way of
referring to respectively the
2
nd
and 5
th
September 2009, but nobody seemed to notice.
The first five
images in exhibit D bear the date 090902. The numbers identified by
col. Freitag as the unique number on those five
range between 180220
and 180431. If her evidence is correct that the camera numbers
each picture taken by it in sequence,
it would mean that on 2
September 2009 at least 211 photo's were taken. The remaining 15
pictures in exhibit D (from D 6 up
to D 20) are dated 090905 and the
unique numbers on them range between 144451 and 145431. That
would mean that on that day
at least 980 pictures were taken,
which seems hardly likely. If the numbers are really unique and are
give to images taken
by the camera in sequence, it is
unexplained why the numbers given on 2 September would be higher than
180000 and why three
days later the numbering would go back and start
at 144451.
There is another
feature of concern about the accuracy of the colonel's evidence.
In her evidence about the cellular
phone that she
received together with the computer, she referred to a "micro SD
card" without explaining what it was.
I can only assume that it
is the memory card of the phone. In any event, she managed to
retrieve some deleted photos from
this device as well and printed
them out as Exhibit E. If I understand her evidence correctly,
the difference between exhibits
D and E is that the contents of the
former were recovered from the recycle bin of the computer where
they had been stored
in a folder named Dcl and the latter from
the cellular phone. She included the word "Recycler" in the
codes to the
photos in exhibit D to indicate that they had been
recovered from the recycle bin of the computer. Nevertheless both
sets
of photographs have as part of their codes the word
"Recycler" and the characters "Dcl". No attempt
was made
to clear this up.
The
court
a quo
often
misunderstood the evidence of col. Freitag. In its judgment on
p.177/8 the court understood the inscription "Makhadu
26/11/09"
on the images in exhibit D as a date, and on p. 178 held that the
photo's had been downloaded from the cellular
phone to the computer
on 26 November 2009. On that date, however, the appellant has been in
custody for more than three weeks already
and anything on
the computer on that date must have been done by somebody else.
I have already pointed out that "Makhado
26/11/09" was the
MAS number allocated to the case by the police. Of more importance is
the statement on p. 177 I. 7-9
that col. Freitag found
"...various
images of sexual intercourse and photo's of pornographic nature
with children."
At
p. 191 the court even recorded in paragraph 5.1 that it was common
cause that she had printed photo's of child pornography.
The witness,
however, was careful throughout her evidence to say nothing more
than that she had extracted what
could
be
images
of children from the computer, and she never said that anything
that she had found was indeed child pornography. This
kind of
failure to pay attention to details and easy jumping to conclusions
is what led to serious misdirections, as will
appear later.
Everything of any
relevance in exhibit E is also contained in exhibit D, with the
difference that the former are smaller and not
in monochrome. Exhibit
E can therefore be safely ignored. The court and counsel, having seen
the complainant giving her evidence,
would have been able to
recognise her face on Exhibits D18 (which is the same photo as
C5) and D19. They are the only images
showing both her face and
genital area. Exhibit D11 (the same as C2) is taken from above
and shows what could be the face
of a young girl with what could
be part of a penis in her mouth. Because of the angle from which it
was taken, it is difficult
to say with certainly that the face
is that of the complainant, but her evidence that the appellant had
put his penis into
her mouth and that the exhibit in question
shows that incident, was not specifically disputed in
cross-examination and
the appellant agreed that the face in the
picture is hers. Her evidence that it is a picture of herself should
accordingly
stand.
In the witness box
Ms L[...] was taken through exhibits B and C only. She identified the
face of the complainant on exhibits C2
and C5 but for an undisclosed
reason did not attempt to identify anything on C1.
On
C3 is depicted a pair of buttocks with a penis between them. She
boldly declared
"This
is C[...]'s bud
(read
"butt")
and
there is anal penetration."
Asked
how she knows that it is of the complainant, she stated
"Because
I recognise it from the other pictures."
C3
is badly out of focus but the one thing that is clear about it, is
that it does not show anal penetration. Her statement that
she could
recognise it from other pictures is nonsensical because apart from
the bad focus, there is no other picture on which
she could remotely
have identified that part of the complainant's anatomy. In respect of
C4 she said that it is the complainant's
vagina and that Ms
G[...] had told her that it looked like that
"....after
he was finished..."
with
the complainant. Ms G[...] never examined her daughter and could not
identify any picture that did not show the complainant's
face.
This witness seems to have simply sucked this evidence from her
thumb.
C6
shows an erect penis placed between two buttocks. On the photo a foot
(presumably of the owner of the penis) is also visible,
but it is not
in direct light and not properly in focus. The witness once
again declared that it shows anal penetration (which
cannot be
seen on the photograph) and that Ms G[...] had
"...said
she can identify him by his foot.....it is definitely his foot."
Not
only is it patently clear that the photo is not clear enough for the
foot to be identified as belonging to a particular person,
but Ms
G[...] did not go any further in her evidence than saying that it
could possibly be the appellant's foot.
There is no feature
by which any of these photos can be identified as being of the
complainant. According to the complainant's mother
Ms L[...] had
never been in her house before and the latter did not testify
that she had ever seen the complainant naked so
that she could
recognise any part of her body in a photograph.
Ms L[...]'s evidence
can therefore safely be ignored.
A
feature common to all the photographs in the exhibits is the absence
of pubic hair. Col. Freitag said that she had extracted the
photographs that
could
be
of
child pornography from the computer. She was not asked what made
her think that the selected material depict children and
I suspect
that she simply selected pictures on which no pubic hair was
visible. I could not find anything on any of those
photographs to
indicate that they were of prepubescent children and not of
adult females with shaved pubic areas. To illustrate
this I
can refer to the evidence of Ms G[...] when she was referred to
exhibit C1. She said that the vagina shown on this
photograph
could not be hers. The reason that she advanced was not that it could
be recognised as that of a child, but that
it was
"clean
shaved and I never shaved myself clean."
It should be kept in
mind that Col. Freitag had selected the exhibits from close to a
thousand other pornographic pictures and that
we do not know for
example whether there were other similar pictures of females
with an appearance similar to that of the
victim.
The
complainant's mother was quite fair in her evidence when asked if she
could identify persons on the photographs. The closest
that she came
to make a positive identification where the face of the
complainant was not visible was in respect of exhibit
C6, where
she said that the buttocks visible on the photo may be those of
the complainant, because she could see red dots
on them and the
victim had scabies at the time and that “...
her
whole body was fully covered in the scabies....".
Looking
at the exhibit
I
can
see a pinkish area around the buttocks (which is probably due to
the colour quality of the photograph, which shows the body
in
shades of pink and turquoise), but there is no indication of any red
spots on any part of the body on that or any other photograph
in the
exhibits.
I
find it necessary to comment on two aspects of this case. Firstly, in
an application to review the proceedings in the court
a
quo
and
which was not proceeded with, the appellant complained about Mr
Sikhutshi, the Legal Aid lawyer provided to him. He stated that
he
had on several occasions requested an Afrikaans speaking lawyer
because he found it difficult to communicate properly with Mr
Sikhutshi. The trial proceeded without an interpreter and
Afrikaans-speaking witnesses were questioned in English by
Mr Sikhutshi.
Apart from him, everybody involved in the case
was Afrikaans speaking and the endless translations and
explanations of questions
and answers by the bench to him and to
witnesses illustrated that language was a serious problem. What
he (and the appellant)
tried to say in English was often meaningless
and one wonders how much he understood when the Afrikaans evidence
was not explained
to him. Although he did his best for his
client, Mr. Sikhutshi was clearly out of his depth and was often
bullied by the bench.
A case in which the accused faced three
sentences of life imprisonment obviously cried out for
the appointment of a more senior
legal representative. Some
examples are referred to in this judgment.
More disturbing was
the approach of the presiding magistrate. Unfortunately she seemed to
be unaware that a criminal trial is a
quest for the truth and lost
sight of the essential requirement of impartiality. More about
this later.
Keeping in mind my
remarks above about the seriousness of the crime in question I now
move on to consider the evidence of the complainant.
The first thing that
struck me about the evidence of the complainant's mother was that she
never mentioned finding any indication
of distress or trauma about
the incidents on the part of the victim when she asked her about
what the appellant had done to
her. She testified in chief that she
had asked her child whether the appellant had touched her
inappropriately, which she
confirmed. The following is then recorded
at p. 58:
"When she
told you that, was she citing or was she normal or was she shocked? —
I think she was shocked.
Why do you say
so? — For me finding out or knowing this."
It appears further
from her evidence in cross-examination (at p.73) that the complainant
felt bad about being found out more than
anything else and was
ashamed of what had happened and would not talk about it or tell
her mother about it. She further testified
(p. 75) that there was
never any change in her child's behaviour or emotional state and
that she had done very well at school
all the time and failed only
one term.
That
term was ".....
the
second term last year."
(record
p. 81), which was in 2010, and about nine months after the dates
alleged in the charge sheet. The complainant herself testified
that
she had never failed any grade, but only one test, which seems more
probable in view of her mother's evidence that her scores
were always
better than 60%.
In her evidence the
complainant stated that she participated in these activities with the
appellant because he had told her that
there would be trouble if she
did not do as he told her. It is not clear on her evidence that
she acted out of fear or that
the threat was repeated on any
subsequent occasion. It is in any event not her version that
there was any form of compulsion
on every occasion. Apart from the
alleged threat there is no indication in her evidence of how she
felt about the incidents
- no expression of fear, disgust,
embarrassment or any other negative emotion. That also appears from
the two photographs in the
exhibits on which her facial expression
can be seen and which show no sign of fear, anguish, embarrassment,
disgust or any other negative
emotion. Based on the above
evidence there is a strong suspicion that the victim was not
an unwilling participant in the events.
I am fully aware that
she was at the time only ten years old and that the absence or
otherwise of her consent is irrelevant
as an element of the
commission of the offence. It must, however, be an important
factor in considering an appropriate sentence.
As could be expected
of a child of her tender years, her evidence was not above criticism.
The first mystery was her evidence that
she could only remember that
these incidents had taken place on 31 August and 18 September
2008, which was a year earlier
than the dates on which the
photographs mentioned in the charge sheet were taken according
to col. Freitag. Those are the
dates that she mentioned in the
statement that she made to the police on 2 November 2009. Since
that was two months after
the dates on the photographs, she (and
her mother) should have been able to reconstruct the dates when her
mother was away
on her course and the incidents occurred. No
attempt was made to establish where the two dates mentioned by her
come
from.
As far as count 5
(exposing a child to pornography) is concerned, she was briefly taken
through her evidence without going into
more than the essential
details. The images in question were not produced in court and were
not mentioned by col. Freitag
in her evidence. The complaint's
evidence that the appellant showed her a DVD of naked men and
women and also images of himself
and her mother having intercourse
was undisputed in cross-examination and the appellant tried to
explain it away with a story
that the complainant had walked
into the room while he was busy copying pornographic material to the
computer. Her evidence
that she was shown these images is more
convincing, since she would not otherwise have known of the existence
of that material.
Their existence was confirmed by Ms G[...] and not
disputed by the appellant in his evidence. In view of the
appellant's plea
of not guilty the failure to cross-examine on this
point is difficult to understand and it is not clear whether it
was a mere
oversight, due to a lack of experience on the part of
his attorney or because of a conscious decision not to dispute the
allegations
in count 5. The evidence clearly justified the
conviction on this count.
The prosecutor took
the complainant through the six photographs in exhibit C one by one.
The background against which her evidence
should be considered is
that she testified on 24 May 2011, which was 20 months after the
date on which, according to col.
Freitag, they had been taken. In
reply to a question by the court she stated that the appellant
had never shown them to her
and that she had not seen any of them
after they had been taken.
On exhibit C5 her
face is clearly visible and recognisable and the face on C 2 could
arguably be hers. Her identification of these
two exhibits was not
attacked in cross-examination. The other four pictures are however
a different kettle of fish. Not only
are the pictures not clearly in
focus, but there is no distinguishing feature whatsoever about
the parts displayed in them
by which anybody could recognise them as
belonging to a specific person. None of them show any pubic hair,
with which aspect
I have dealt above. She nevertheless in
respect of each one of them baldly stated that the body parts
appearing on them were
hers and, where applicable, that of the
appellant. No attempt was made by either the prosecutor or the court
to test
the correctness of her identification or to find out on
what she based her identification. Realising this problem, the
court
asked her (record p.105) how she recognised the photographs and
her answer was simply "
Want hy het dit geneem
.".
That probably means that she assumed that they were the images made
by the appellant and that she could not recognise any
feature on any
of them. She confirmed that he had not shown her the photographs
after taking them and her answer was accepted
without further
testing.
Exhibit C4 for
example shows a hairless female genital area which she baldly
identified as hers. On it two fingers are visible on
the one side of
the opening and one on the other. When asked (record p.104)
whether she knew whose fingers they are, she answered
without
hesitation that the one is hers and the others "syne" (referring
to the appellant). Looking at the fingers
on the photograph, however,
the first discernable feature about them is that they are of
practically exactly the same size
and clearly not those of a grown
man and a ten-year-old child. There is no indication in the
record that the appellant is
an abnormally small man and on a
wedding picture of the appellant and Ms G[...] in exhibit E it can be
seen that his hands
are at least the same size, if not bigger,
than those of the complainant's mother. The appellant pointed out in
his evidence
that on at least one of the fingers in the picture
a cuticle is clearly visible (as is the case with the fingers of both
of the
hands that are visible on exhibit D10) and that his
fingers have no visible cuticles. He was not asked to show his
fingers
to the court, which means that his statement was accepted.
When Ms G[...] was asked (record p. 63) whether she could
recognise
those same fingers, her answer was "Not really".
In view of the
complainant's evidence that she had not seen any of the pictures
taken by the appellant before, her identification
of these pictures
must be pure guesswork and wholly unreliable.
Exhibit D consists
of photographs of a nature similar to those in exhibit C. D19 shows
the complainant in a pose similar to the
one in C5 and her face is
clearly recognisable. Nevertheless the complainant was not referred
to exhibit D at all and apart from
the general evidence of col.
Freitag no other witness dealt with any of the images in it.
The complainant was
quite clear and in fact adamant that the appellant had only placed
his penis against her anus and vagina and
never penetrated her. She
never testified about the artificial penis that, according to exhibit
B, had been used on her by
the appellant "sometimes before
raping" her. She also testified that she had been examined
by a doctor who found
that she was still a virgin.
In
this regard I find it necessary to comment on the strange attitude of
the court
a quo.
In
a rape case medical evidence, often in the shape of a form J88, is
almost without exception of crucial importance. More in
particular in the present case it would have been important for the
trier of fact to check on the correctness of the complainant's
allegation that she had never been penetrated. Expert medical
evidence would also have obviated the need for the court to
speculate and make a layman's finding on the question whether
what the court noticed on some of the photographs constituted
penetration. That doubtful finding made the difference between
two sentences of imprisonment for life and a sentence for what
could
not have been more than an indecent act with a minor in terms of
the Act. One would therefore have expected the court
to not only
welcome the form J88, but also to call the doctor as a witness in
terms of sec. 186 of the Criminal Procedure
Act if the
prosecutor did not do so.
What happened in
this case though, is that defence counsel attempted to cross-examine
Ms G[...] on the contents of the J88 that
had been provided to him by
the prosecutor. There could have been no doubt that it came from
the police docket and related
to the doctor's examination of the
complainant. The court interrupted him, informing him that he
could not be allowed to cross-examine
the witness on the
document unless the State was going to hand it in as an exhibit.
The prosecutor then informed the court
that it was accompanied
by a statement in terms of sec. 212(4) and that it may as well be
handed in by the defence. That
persuaded the court to look at
the form, noticing that according to the J88 the person examined
was named C[...] B[...], and
ruled that no cross-examination of
the witness on the report would not allowed.
Eventually, and
after the case of the appellant had been closed, the court allowed
his counsel to reopen his case and hand in the
document with the
consent of the prosecutor. According to the doctor's report
the complainant's hymen was intact and there
was no sign of
penetration. As was the case when the defence made the first
attempt, it was obvious that the form was in respect
of the
complainant. It turned out that the doctor who examined the
complainant confused her name with the address where she
lived, being
B[...] street.
The result of this
is that one does not know what would have emerged from the
cross-examination of the complainant's mother about
the contents of
the form and one is left with the uncomfortable feeling that it was a
deliberate attempt by the court to exclude
evidence that may have
been to the advantage of the accused.
In
a similar vein it is necessary to refer to another incident during
the cross-examination of the complainant. She confirmed that
she had
been consulted by a social worker who had compiled what sounded like
a victim impact report on the basis of their
consultation. In a
case of this nature a court would normally regard such a report
as essential information and the prosecutor
would in any event have
been duty bound to make it available to the defence if she did
not intend to use it in the State case.
When Mr Sikhutshi on behalf
of the appellant (unnecessarily) sought the court's leave to use
the report, the prosecutor surprisingly
objected on the basis that it
was not evidence before the court. Without even inviting the attorney
to address the court on the
question the court simply ruled that if
the social worker was not going to testify, that line
of cross-examination could not
be allowed. Equally surprisingly,
Mr Sikhutshi accepted this ruling without demur. There is of
course no basis on which defence
counsel can be prevented from asking
a witness whether he or she had told another witness or for that
matter any other person
something, and if it is denied, to
present the evidence of that other person in order to prove the
dishonesty of the witness.
What is particularly disturbing in
this instance is the almost inescapable inference that the prosecutor
was hiding information
that would have assisted the defence and
that the magistrate was a knowing party to it. It is, for example,
not inconceivable
that it may have appeared from the report that the
complainant or her mother had been the instigator of the events
in question,
which would have been an important factor for a
just decision in the case. It is simply incomprehensible why the
court
a quo
deliberately
closed its eyes to this important information.
These are two
respects in which the trial of the appellant was blatantly unfair and
which are very nearly serious enough to justify
his acquittal on that
ground alone. The magistrate and the prosecutor would both be
well advised to think again about their
duly to be fair to an accused
person.
Not much needs to
be said about the evidence of the appellant. In his evidence in chief
(p.133) he was asked whether he had put
his penis in the
complainant's mouth, as depicted on exhibit C1. His surprising answer
was that he could not remember any
such thing. Any normal person
would obviously be able to remember whether he had done such a
thing, unless there were so many
other similar incidents that he
was unable to recollect whether that had also been done. There
was an unconvincing attempt
to suggest that some other unidentified
person had had access to the computer and may have been responsible
for the offending material
on it. What remains unexplained in his
evidence, however, is how some unidentified person (who must
have been a male) would
have had sufficient access to his cellular
phone to take the pictures and why he or she would thereafter
have taken the trouble
to copy them to the appellant's computer. Many
of the relevant parts of his evidence were never put to any of the
state witnesses
and many crucially important parts of the
evidence of state witnesses were not attacked in cross-examination.
The magistrate quite
rightly rejected his evidence as false
beyond reasonable doubt.
That leaves one to
consider what was proved on the State case. Count 5 is the easiest to
dispose of: the complainant's evidence
that the appellant had showed
her images of her mother and stepfather (and also of other men and
women) having sex, was in effect
undisputed. This charge was clearly
proved.
Counts 4 and 7 can
be considered together. Both charges are limited to six images. In
count 4 it is alleged that he used the complainant
for the purposes
of producing 6 images of child pornography and in count 7 that
he had in his possession six images of children
engaged in sexual
activity or in a display of genitals. The prosecutor never made
any attempt to identify the images in question
but it is clear that
the charge sheet had the six images in exhibit C in mind. It
should not be expected of a court to fish
out of the 50
photographs submitted in exhibits C, D and E the six on which the
State intended to rely to prove these two counts.
As stated
above, exhibit C6 clearly shows the face and genital area of the
complainant. I have already found that exhibit
C2 coupled with
the complainant's undisputed and uncontradicted evidence that it is
of herself with the appellant's penis
in her mouth constitutes the
necessary proof. Due to the similarity of exhibit D19 to C5 it
is clear enough that the former
is also of the complainant. Whether
the court should assist the State or not by finding that D19 is
intended to be included
in the pornography contemplated in counts
4 and 7 is really of no consequence, since the commission of the
offence will have
been proved whether the appellant produced and
possessed one, two or six offending photographs. I have already found
that the bald statements of the complainant identifying the remainder
of the images in exhibit C as being of herself are insufficient
and unreliable but the conviction on counts 4 and 7 should stand.
That brings me to
the three charges of rape in counts 1, 2 and 3. In terms of the
Sexual Offences Act any form of sexual penetration
is sufficient to
constitute rape. In these three charges the State relies on
oral, vaginal and anal penetration respectively.
Apart from the
complainant's direct evidence, the allegation of oral
penetration in count 1 is corroborated by exhibit C2.
Her evidence
that it is her face that appears on the exhibit was agreed to by
the appellant and her statement that it is his
penis that appears on
it was not effectively challenged or contradicted by the
appellant. In addition the evidence of col.
Freitag establishes that
the photograph was taken on his cellular phone and copied on to the
computer. The commission of the act
was proved beyond reasonable
doubt and because of the age of the complainant her consent
is irrelevant. The conviction on
this count was clearly correct.
On counts 2 and 3
there is the repeated statement by the complainant that she was never
penetrated anally or vaginally and that
the appellant only put his
penis against her anus and vagina. Some corroboration for this
evidence can be found in the doctor's
report and affidavit which were
belatedly allowed in as evidence.
There
is some merit in the view of the court
a
quo
that
the complainant is only 13 years old and does not know what the law
requires in order to constitute rape. That can however
not be the
final word on the topic. If the court was not satisfied with her
evidence that she had not been penetrated, she
should have been
asked her understanding of what penetration is and the meaning of the
term in law should have been explained
to her. In the end the
court disregarded her express evidence that there had never been any
penetration on the strength of its
own interpretation of what can be
seen on exhibits C1, D12 and D20 in respect of count 2 and on
exhibits C6, D14and D 17 in
respect of count 3. There was no attempt
by any witness to identify anything in exhibit D, apart from the
evidence of col.
Freitag that the images had been copied from
the appellant's cellular phone. It is impossible to say that they had
not been
copied to his camera from some other source or that he
had taken them of other females. Exhibits C1 and C6 are accordingly
the only two that need to be further considered.
Exhibit C1 is not
fully in focus and although a female sexual opening can be recognised
in it, it is not beyond doubt that the other
object is a penis - it
may as well be an artificial penis or some other similar object.
It is furthermore by no means clear
that the photograph actually
shows penetration. Because of the curved shape of the labia
there is no clear definition of where
exactly the opening of the
vulva begins. It is risky for a court to find that in
circumstances such as the present penetration
has been proved beyond
reasonable doubt. The finding that penetration was proved is
recorded at p. 201. At p. 197 the court
found that the appellant
as a layman could not express an opinion on the question whether the
penis shown in exhibit D17
is circumcised or not and that the
defence should have adduced expert medical opinion on this aspect.
Nevertheless the
court did not hesitate to make what is probably a more difficult
finding to make without the benefit of expert
medical evidence and
without even inviting argument by counsel on the question.
The same objections
apply in respect of the finding by the court that anal penetration is
visible on exhibit C6, with the added
problem that the anus of the
victim is not even visible on the photo.
Even if the finding
of penetration could be sustained, there remains the problem that the
complainant's bald statements that the
genitals shown in exhibit C
(apart from C2 and C5) are those of the appellant and herself
are unreliable. I
have dealt with that aspect
earlier and there is no need to repeat it here.
The result is that
the guilt of the appellant was not proved beyond reasonable doubt on
counts 2 and 3 and those two convictions
should be set aside. In view
of the rest of her evidence (that was not really disputed) that
the appellant had placed his
penis against her vagina and anus, a
contravention of sec. 5(1) of the Sexual Offences and Related
Matters Amendment Act,
no.32 of 2007 has been clearly proved and
he should have been convicted of that offence.
In mitigation of
sentence Mr Sikhutshi informed the court that the appellant had been
in custody awaiting trial for 18 months. He
was 35 years old and a
first offender. At the age of 8 he was adopted into a family
where he was maltreated and also abused
by an older stepsister. He
was furthermore sodomised on several occasions at the boarding
school that he attended. His work
history was not placed on record
but he had been a soldier at the air force base for two years before
the incidents in question.
I must assume that it appeared from the
victim impact report that was withheld by the prosecutor
and suppressed by the court
that, apart from other
possibilities, the offences had no negative impact on
the complainant. In his address Mr Sikhutshi
referred to "the
pre-sentence report", but it is not clear whether one had
been prepared and if so, whether it was
before the court.
The
court remarked in passing sentence that each individual comes before
the court from a different background and manner of coping
with
trauma and that it is extremely difficult for ".....even a
highly
trained
individual such as a judge or magistrate to comprehend full)/ the
range of emotions and suffering a particular victim
of sexual
violence may have experienced."
That
is exactly the reason why it is so regrettable that the
magistrate disallowed the report to which Mr Sikhutshi tried to
refer.
Finding
that there are no substantial and compelling justifying the
imposition of a lesser sentence, the court imposed three sentences
of
life imprisonment on the first three counts and, taking the other
counts together for the purposes of sentence, a sentence
of ten
years' imprisonment. The court dealt at some length with the
prevalence and seriousness of rape as a crime and the
consequences
for its victims and also with the breach of the position of
trust in which the appellant was
vis-a-vis
his
stepdaughter. These factors are more fully considered in some of
the judgments to which the court was referred in argument.
I
am acutely aware of all those factors and wish to make it clear
that nothing that I say in this judgment is intended
to detract
from the gravity of the problem. The unfortunate background of the
appellant as a child did not carry much weight
with the court
and were dismissed with the statement that it was his responsibility
to get himself some help. If this factor
had been properly addressed
in a considered pre-sentencing report, it would probably have
carried more weight with the court
and would probably have lead
to a different result. Although his attorney did not mention it in
his address on sentence, it
appears from the record that the
appellant's wife has since started living with the man with whom the
appellant suspected
her of having an affair. That means that he
has lost his wife with whom (according to her evidence) he had a
very good marriage,
and also his family. It is also set out in his
application for condonation of his failure to launch his
application for leave
to appeal that he could only do so
after receiving his pension money from the defence force, which
means that his employment
was terminated.
An
important factor that the court seems to have overlooked is the
gradation of seriousness of different kinds of rape as considered
in
S v. Abrahms,
2002(1) SACR116 SCA
and
several subsequent cases, as well as the principle of
proportionality that has received more attention in a number of
recent judgments. The range of the degrees of seriousness in
kinds of rapes has been widened by the recent introduction of
the Sexual Offences Act. In terms of the Act any form of
penetration is now classified as rape and is subject to the
prescribed minimum sentences for rape. That includes
fellatio
and
probably
cunnilingus
as
well,
if the tongue of the perpetrator should enter between the outer
lips of the vulva of the victim. In terms of the Act,
what would
previously have been no more than the performance of an indecent act
with a minor is now elevated to the status
of rape and subject
to a much heavier sentence. It was obviously the intention of
the Legislator that an indecent act with
a minor should now be
visited with a heavier sentence if it involves any form of
penetration. One wonders though if it can
really be the intention
that in the case of
cunnilingus
a
literal
slip of the tongue could make the difference between a sentence of
something like five years' imprisonment and one
of imprisonment
for life.
Considering the
different degrees of seriousness of the offence, I have recently read
a judgment of a case in which an adult male
had grabbed a
twelve-year-old girl who had been playing with her friends, dragged
her into some bushes and violently raped
her, causing her
serious injuries. Most observers will agree that, absent any
unusual features, that would be a crime deserving
the heaviest
sentence that a court can impose. Comparing the circumstances of
the present rape to that one, the principle
of proportionality
makes it clear that the present case does not justify the
imposition of imprisonment for life - one simply
feels that the
circumstances of the present crime do not call for the heaviest
sentence that a court can impose.
The personal
circumstances of the appellant, the fact that he is a first offender
who spent 18 months in custody awaiting trial,
the nature of his
offence and the limited effect that it had on the complainant and
the serious consequences that his offence
already had for
himself, cumulatively constitute substantial and compelling
circumstances that justify the imposition of a
lesser sentence.
All the different
offences committed by the appellant in my view constitute a single
course of conduct, probably committed with
the intention of
eventually having full sexual intercourse with the complainant with
her consent. For that reason it seems
appropriate that all the counts
of which he has been convicted should be taken together for the
purpose of sentence. I do
not think that the appellant is a hardened
criminal and believe that he has more than learnt the necessary
lesson from the
time that he has already spent in prison, but
there should be a suspended sentence hanging over his head to prevent
a possible
repetition.
I propose the
following order:
1. The
convictions of rape on counts 2 and 3 are set aside and convictions
of contravening sec. 5(1) of Act 32 of 2007 are
substituted for
them.
2.
The sentences imposed by the court
a quo
are
set aside and the following is substituted for them:
A. Counts 1, 2,
3, 4, 5 and 7 are taken together for the purpose of sentence and the
accused is sentenced to ten years' imprisonment,
five of which are
suspended for five years on condition that the accused is not
convicted of an offence involving a sexual
act with a minor and which
is committed within the period of suspension.
B. This sentence
shall be deemed to have been imposed on 3 June 2011.
F.G.
PRELLER
JUDGE
OF THE HIGH COURT
I agree.
P.P. M F KGANYAGO
ACTING JUDGE OF THE
HIGH COURT
It
is so ordered