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2012
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[2012] ZAKZPHC 76
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Housten v S (136/2012) [2012] ZAKZPHC 76 (7 December 2012)
1
IN THE KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO. 136/2012
In the matter
between:
CARL DENVER
HOUSTEN
.................................................................
Appellant
and
THE STATE
.........................................................................................
Respondent
_______________________________________________________________
JUDGMENT
_______________________________________________________________
GORVEN J
The appellant was
charged with one count of rape as defined in the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007
. The
rape was alleged to have taken place at gunpoint on 11 September
2009 at the flat of the complainant, a 31-year-old woman,
in
Newlands East. The appellant pleaded not guilty but was convicted
and sentenced to eight years’ imprisonment. The appeal
is
against conviction only, with the leave of the learned regional
magistrate.
The state relied on
two witnesses and a medical report. The first witness was the
complainant and the second was her boyfriend
of the time, Mr
McKenzie. The medical report was handed in by consent and the
contents were admitted in terms of
section 220
of the
Criminal
Procedure Act 51 of 1977
. I will revert to this below.
The complainant
testified that she was at her flat with Mr McKenzie during the
evening of the day in question. At approximately
22h45, he went to
purchase beer. Shortly afterwards, she heard a knock on the door
and, when she opened it, saw the appellant.
There was a security
gate between the appellant and her. The appellant, calling her by
name, asked where her boyfriend was. She
told him that he had gone
to purchase beers. He then told her to open the gate in a soft
voice. After she opened the gate, he
pointed a firearm at the back
of her head and told her that if she screamed, he would shoot her
and her boyfriend. He gestured
that she should enter the bedroom and
followed her. He then said ‘Do me a favour and take your panty
and everything off’.
She then lay on the bed at his
instruction and he raped her. He then indicated that he wanted anal
intercourse and when she refused
he said ‘Oh, you don't do it?
Okay, never mind.’ She said that the firearm was pointed at
her head during the encounter.
He then told her to shut up and never
tell her boyfriend or anyone, dressed and left. She remained in the
bedroom crying on the
bed. After a few minutes her boyfriend
returned, saw her crying and asked what was wrong. When she did not
tell him, he smacked
her on her legs and asked again. She then said
to him that she was missing her twin brother, who had died some
years before that.
They then went into the kitchen and the boyfriend
drank alcohol but the complainant did not partake. She said that
they partied.
She also said that she just sat and cried. She told
her boyfriend what had happened after five days. He then phoned the
police
and went to see them that day. They sent her to the doctor
that same day.
Mr McKenzie gave
evidence that he left the flat to purchase beer at approximately
22h45. On his return, he asked the complainant
to open the door and
gate for him which she did. She was, at the time, in the kitchen and
was crying. In response to his enquiry,
she told him that she was
missing her deceased twin. Before he left to purchase the beers,
they had been drinking together in
the flat and she had had about
two glasses of alcohol and he had had about one beer. Five days
after the incident, she told him,
out of the blue, that she had been
raped by the appellant, mentioning him by name. He testified that he
had seen the appellant
at approximately 21h00 on the evening in
question just outside the flats. This changed under
cross-examination to his having
seen the appellant at that time at a
friend's house which was a tavern.
The report of the
medical examination of the complainant is dated 25 September
2009, 14 days after the incident. The report
states that no
extra-genital injury was noted. It states that the findings are
consistent with genital penetration. It also records
that the
complainant informed the medical practitioner that she had had
consensual intercourse three days before the examination.
The appellant was
the only witness called in defence. In both his bail application and
at the outset of the trial when explaining
his plea he raised an
alibi defence. He denied having visited the complainant on the
evening in question. He had last been to
her residence about five or
six years before for her late brother's funeral. He denied having
raped the complainant. He stated
that he knew the complainant well
and had been very friendly with her deceased brother. He had seen
her and Mr McKenzie during
the afternoon at the tavern consuming
alcohol on the day in question. He had left the tavern at
approximately 19h00 and had gone
home to watch a documentary with
his family on the September 11 tragedy since it was the anniversary
of that event. The documentary
ran from 21h00 to 22h00 and he
thereafter went to bed. When he left the tavern the complainant and
Mr McKenzie were still there.
There had previously been no problems
between himself and the complainant except that he had refused to
buy her a beer on a few
occasions, the last one being approximately
two weeks prior to the incident. He knew that the complainant had
been shot in the
head approximately ten years earlier and that,
since that time, her thought processing had been a bit slow.
The
crime of rape is a serious scourge on our society. It is, in
essence, a crime of violence involving the assertion of power
over
women by the rapist. It has rightly received annual focus at this
time of year in the
16
Days of Activism for No Violence Against Women and Children.
The
founding values of our constitution include human dignity, the
achievement of equality and non-sexism.
1
The
Bill of Rights enshrines every person’s ‘inherent
dignity and the right to have their dignity respected and
protected’.
2
The
crime of rape clearly negates that right in a most fundamental way.
The
previous approach of our courts to evidence by rape complainants,
was to invoke a cautionary rule when assessing that evidence.
Holmes
JA articulated in
S
v Snyman
3
in
the
following way:
‘
Unlike
an accomplice in a criminal trial, a complainant in a sexual case is
not
ex
hypothesi
a
criminal. Nevertheless in respect of both of them there exists an
inherent danger in relying on their testimony. First, various
motives
may induce them to substitute the accused for the culprit. Second,
from their participation in events which actually happened,
each has
a deceptive facility for convincing testimony, the only fiction being
the deft substitution of the accused for the real
culprit. Hence in
sexual cases there has grown up a cautionary rule of practice
(similar to that in accomplice cases) which requires-
(a) the recognition
by the Court of the inherent danger aforesaid; and
(b) the existence of
some safeguard reducing the risk of wrong conviction, such as
corroboration of the complainant in a respect
implicating the
accused, or the absence of gainsaying evidence from him, or his
mendacity as a witness….’
Amongst
other things this approach clearly negated the right to equality
mentioned above. It is thanks to the values in our Constitution
that
this approach has been decisively rejected in
S
v Jackson
4
in
trenchant terms:
‘
In
my view the cautionary rule in sexual assault cases is based on an
irrational and out-dated perception. It unjustly stereotypes
complainants in sexual assault cases (overwhelmingly women) as
particularly unreliable. In our system of law, the burden is on
the
State to prove the guilt of an accused beyond reasonable doubt –
no more and no less. The evidence in a particular case
may call for a
cautionary approach, but that is a far cry from the application of a
general cautionary rule.’
And, in dealing with
the equally irrational belief that complainants cynically cry rape
more readily than those who make false claims
in other offences,
Olivier JA said this:
‘
Few
things may be more difficult and humiliating for a woman than to cry
rape: she is often, within certain communities, considered
to have
lost her credibility; she may be seen as unchaste and unworthy of
respect; her community may turn their back on her; she
has to undergo
the most harrowing cross-examination in court, where the intimate
details of the crime are traversed
ad
nauseam
;
she (but not the accused) may be required to reveal her previous
sexual history; she may disqualify herself in the marriage market,
and many husbands turn their backs on a “soiled” wife.’
5
To this I would
respectfully add that in sexual assault cases a double cautionary
rule was often invoked; that applying to single
witnesses and the one
now rejected. This was because such cases overwhelmingly rely on a
single witness because the brazenness
of the perpetrator does not
often extend to committing the offence in the presence of any other
witnesses. This made it exceptionally
difficult for the state to
obtain a conviction. It is believed that rape survivors often chose
not to press charges as a result
of these impediments, to their
detriment and that of justice in society.
Having said this,
there is an unacceptable tendency in certain sectors of our society
to assume that, if someone is charged with
the crime of rape, that
person must be guilty. This is probably at least partly as a result
of the impediments mentioned above
and is, to that extent,
understandable. It finds expression in comments within the media and
in public demonstrations outside
courts in support of convictions in
rape cases. If a person accused of rape is acquitted, the response
of such people is that
an injustice has been perpetrated and that
rapists should not be allowed to go free. This attitude is inimical
to the proper
functioning of the criminal justice process. It
substitutes the decision of the court of public opinion for that of
a court of
law. It is designed to place pressure on a court of law
to convict a person when the evidence may not support such a
conviction.
If a conviction does not follow the court is criticised
for siding with rapists against rape victims.
At
the heart of the criminal justice system is the presumption of the
innocence of an accused person until convicted in a court
of law.
This presumption, accepted in almost all jurisdictions in the world,
has been enshrined in S 35(3) of the Constitution.
6
This
has been clearly embraced and explained by the Constitutional Court
in the following terms:
‘
The
purpose of the presumption of innocence is to minimise the risk that
innocent persons may be convicted and imprisoned. It does
so by
imposing on the prosecution the burden of proving the essential
elements of the offence charged beyond a reasonable doubt,
thereby
reducing to an acceptable level the risk of error in a court's
overall assessment of evidence tendered in the course of
a trial.’
7
As
Olivier JA said in
Jackson
,
8
the
burden is on the State to prove the quilt of an accused beyond
reasonable doubt. This was spelt out more recently in ringing
terms:
‘
In
open and democratic societies that have adversarial criminal justice
systems similar to ours, the centrality of this right to
a just
criminal process has been strongly emphasised. The requirement that
the State must prove guilt beyond a reasonable doubt
has been called
the golden thread running through the criminal law and a prime
instrument for reducing the risk of convictions
based on factual
error. The very first judgment of this Court affirmed the
significance of the principle of not convicting a person
if a
reasonable doubt as to his or her guilt existed.’
9
This sometimes has
the unfortunate consequence that accused persons who may well be
guilty are acquitted on the basis that a reasonable
doubt exists as
to their guilt. But courts cannot succumb to beliefs of the general
public which has not evaluated admissible evidence
in a court of law
because the outcome may be criticised. With that in mind, I turn to
the evidence in this matter.
The
complainant was a single witness as to the occurrence of the
incident in question. It is so that an appeal court seldom will
seldom interfere with findings of fact unless there have been
misdirections on the part of the trial court. This is not an
inflexible approach, As was said in
R
v Dhlumayo & Another
:
10
‘
10.
There may be a misdirection on fact by the trial Judge where the
reasons are either on their face unsatisfactory or where the
record
shows them to be such; there may be such a misdirection also where,
though the reasons as far as they go are satisfactory,
he is shown to
have overlooked other facts or probabilities.
11. The
appellate Court is then at large to disregard his findings on fact,
even though based on credibility, in whole or in part
according to
the nature of the misdirection and the circumstances of the
particular case, and so come to its own conclusion on
the matter.’
11
In the present
matter it is my view that the learned Magistrate misdirected himself
in his findings of fact. First, his judgment
was premised on a
finding that it was proved that a rape had taken place on the
evening in question. His evaluation of the evidence
took place on
that basis. Apart from the evidence of the complainant, however,
there is absolutely no evidence that this was
the case. The report,
whose contents were admitted as true, did not even go so far as to
say that his findings were consistent
with rape. He said that his
findings were ‘consistent with genital penetration’. But
he also recorded that, three
days prior to his examination which
took place 14 days after the incident, the complainant had engaged
in consensual sexual intercourse.
In these circumstances, it would
be extremely surprising if his findings were not consistent with
‘genital penetration’.
The doctor was not called to give
evidence. There is a worrying tendency not to call expert medical
witnesses to testify. The
state satisfies itself with handing in
reports with or without an admission that the contents are accurate.
This is often so
in circumstances where the findings and reasons for
the findings could make the difference between an acquittal and a
conviction.
It
is necessary to recapitulate briefly the approach of courts to
medical evidence. First, this usually involves giving opinion
evidence. For such evidence to be admissible, the person giving it
must be an expert in the field. This is because it is only
such an
expert who can give the court information to which it does not have
access.
12
In
addition, the expert witness must not only give her or his opinion,
but must give reasons why this opinion has been arrived
at for it to
be admissible and of any use. The following was said of this need:
‘
As
I see it, an expert's opinion represents his reasoned conclusion
based on certain facts on data, which are either common cause,
or
established by his own evidence or that of some other competent
witness. Except possibly where it is not controverted, an expert's
bald statement of his opinion is not of any real assistance. Proper
evaluation of the opinion can only be undertaken if the process
of
reasoning which led to the conclusion, including the premises from
which the reasoning proceeds, are disclosed by the expert.’
13
The process of
reasoning may be a matter of ordinary logic but may also involve the
application of scientific principles. The evidence
would, if a person
was not an expert, be inadmissible because it is the sole preserve of
a court of law to arrive at a decision
on the facts. The opinion of a
person is, therefore, generally not relevant or of inadequate
relevance. Experts are allowed to
give opinion evidence because they
can both arrive at facts in their field which are material to the
matter in dispute and explain
the significance of the facts.
When medical
reports are handed in without the expert witness being called, the
significance of factual findings and the reasons
for them might not
form part of the report and most certainly cannot be interrogated by
way of cross-examination or clarifying
questions by the court. In
the present matter, no reasons were given in the report for the
finding in question. It may be that,
if the doctor in question had
been called to testify, he could have given evidence distinguishing
features of genital penetration
by way of consensual sexual
intercourse from genital penetration by way of rape and have
explained which of the two was, in his
opinion, more likely to have
taken place and why he formed that opinion. The medical report
handed in studiously avoids any finding
that it was consistent with
rape, even though it was reported to the doctor that this had taken
place. I am of the view that
the report is of no assistance. If the
doctor had been called, it may have led to a basis for the finding
by the magistrate that
a rape had taken place. As it is, the finding
of the magistrate that the appellant could not dispute that the
complainant had
been raped has no basis in the medical evidence and
amounts to a misdirection.
In the second
place, the magistrate misdirected himself in ignoring serious
contradictions in the evidence of the complainant.
I will list only
a few. She initially testified that the appellant produced a firearm
only once the gate to the flat had been
opened. This was
contradicted at a later stage when she said that he had banged the
firearm on the gate and pointed at her before
he entered. She
initially stated that she did not consume alcohol after Mr McKenzie
returned to the flat, saying that she had
only cried while he drank.
Under cross examination she said the following: ‘I said we
were drinking that when Illy brought
the beer I didn't drink. But
maybe after that I said "You know what, let me have a glass."’
She initially indicated
that the appellant gestured to her to go to
the bedroom before the rape took place. She was specifically asked
whether or not
the appellant told her to do so and she emphatically
denied this. At a later stage she testified that the appellant had
told
her to go to the bedroom. She initially testified that the
appellant had ejaculated but later indicated that she did not know
whether or not this had happened. She first denied that she had been
at the tavern that afternoon but later conceded that she
had been
there, as the appellant later testified. She first said that the
appellant had visited her flat many times after the
death of her
brother but later conceded that the last visit had been around the
time of his funeral as was the evidence of the
appellant.
The third
misdirection was that the magistrate failed to consider the
contradictions between the evidence of the complainant and
that of
other evidence relied on by the state. She testified that, after he
had purchased the beers, Mr McKenzie located her
in the bedroom
where she was crying. In order to find her there, he must have
gained access to the flat himself. He said that
she allowed him into
the flat and was crying in the kitchen at the time. Her evidence
that, after laying a charge with the police
five days after the
incident, she went immediately to the district surgeon is
contradicted by the date of the examination which
says that the
visit took place fourteen days after the incident. A further concern
is the fact that the complainant not only
took five days to report
the incident but only presented herself for medical examination a
further nine days later. No explanation
for this conduct was sought
or proffered.
Contradictions are
not necessarily an indication that no reliance can be placed on the
evidence of a witness or witnesses. However,
these are material
contradictions. It can hardly be imagined that the complainant would
not remember whether a firearm was banged
on the gate and produced
prior to her opening the gate or whether it was only produced after
she had opened the gate. She did
not claim that she could not
remember whether the appellant had gestured to her to enter the
bedroom or had instructed her to
do so, emphatically denying the
latter. It seems difficult to believe that she could not recall
whether or not she had consumed
alcohol after the incident. Her
emphatic denial and subsequent testimony that she had a glass or two
cannot both be correct.
This is also true of her testimony as to
whether she visited the tavern that afternoon.
In contrast, the
appellant had raised a detailed alibi defence as early as his bail
application. He was not shaken in cross-examination.
There was
nothing inherently improbable in his defence. The magistrate ought
to have found that h is evidence was reasonably
possibly true and
given him the benefit of the doubt.
In the light of the
above, it is my view that the magistrate erred in finding that the
state had proved beyond reasonable doubt
that the appellant raped
the complainant. The state case simply did not pass muster.
In the result, the
appeal is upheld and the conviction and sentence of the appellant are
set aside.
I agree:
______________________
KOEN J
Date of hearing: 29
November 2012
Date of judgment: 7
December 2012
For the appellant:
JE Howse, instructed by Prathima Jairajh & Company
For the respondent:
V Alamchand
1
Section
1 of the Constitution of the Republic of South Africa, 1996.
2
Section
10 of the Constitution.
3
1968
(2) SA 582
(A) at 585 C-H.
4
1998
(1) SACR 470
(SCA) at 476
e-f
.
5
Jackson
at 475
e-g
.
6
This
section reads as follows: ‘Every accused person has a right to
a fair trial, which includes the right…to be
presumed
innocent….’
7
S
v Manamela & another (Director-General of Justice Intervening)
2000 (3) SA 1
(CC) para 26 (references omitted).
8
See
fn 4.
9
S
v Baloyi (Minister of Justice & another intervening
[1999] ZACC 19
;
2000 (2)
SA 425
(CC) para 15 (references omitted).
10
1948
(2) SA 677
(A) at 706
11
In
President of the Republic of South Africa & others v South
African Rugby Football Union & others
2000 (1) SA 1
(CC)
para 78-80, the Constitutional Court upheld the approach in that
matter and the dictum in
S v Kelly
1980 (3) SA 301
(A) at
308B-D which questioned the sacred cow of credibility findings by
trial courts in the following terms: ‘In any event,
as counsel
conceded in a homely metaphor, demeanour is, at best, a tricky horse
to ride. There is no doubt that demeanour - ''that
vague and
indefinable factor in estimating a witness's credibility'' (per
Horwitz AJ in
R v Lekaota
1947 (4) SA 258
(O) at 263) - can
be most misleading. The hallmark of a truthful witness is not always
a confident and courteous manner or an
appearance of frankness and
candour. As was stated by Wessels JA in
Estate Kaluza v Braeuer
1926 AD 243
at 266 more than half a century ago in this Court:
“
A
crafty witness may simulate an honest demeanour and the Judge had
often but little before him to enable him to penetrate the
armour of
a witness who tells a plausible story.''
On
the other hand an honest witness may be shy or nervous by nature,
and in the witness-box show such hesitation and discomfort
as to
lead the court into concluding, wrongly, that he is not a truthful
person.'
12
Ruto
Flour Mills (Pty) Ltd v Adelson (1)
1958 (4) SA 235
(T) at 237B.
13
Coopers
(South Africa) (Pty) Ltd v Deutsche Gesellschaft Für
Schädlingsbekämfung MBH
1976 (3) SA 352
(A) at 371F-H.