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1986
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[1986] ZASCA 105
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S v Balhuber (30/1985) [1986] ZASCA 105 (25 September 1986)
LL
Case No 30/1985
IN THE SUPREME COURT OF SOUTH AFRICA
APPELLATE DIVISION'
In the matter between:
KURT BALHUBER
Appellant
and
THE STATE
Respondent
CORAM:
BOTHA, VAN HEERDEN et JACOBS JJA
HEARD:
18 AUGUST 1986
DELIVERED:
25 SEPTEMBER 1986
JUDGMENT
/BOTHA JA
2.
BOTHA JA
:-
The appellant was convicted in a Regional Court of rape and sentenced to 6
years
1
imprisonment- He appealed against his conviction and sentence
to the Transvaal Provincial Division, which (
per
SPOELSTRA J, KUPER AJ
concurring) dismissed the appeal against the conviction, but reduced the
sentence to one of 4 years' imprisonment,
of which half was suspended on certain
conditions. The appellant was granted leave by the Provincial Division to
prosecute a further
appeal to this Court against his conviction and his
sentence.
The scene of the alleged offence was a flat in Hillbrow, Johannesburg. The
complainant in the case lived there, on her own. At the
time she was a young
woman of 22 years. She was unmarried, but she had had a child. At the time of
the alleged offence she had a
steady relationship with a male friend, with whom
she consorted on intimate terms. She is a German immigrant
/to ...
3.
to this country. So is the appellant. He was at the time 24
years old and unmarried. His defence against the charge brought against
him by
the complainant was that she had consented to intercourse.
The complainant's account of the events on the night in question, as first
given by her in evidence, can be summarised as follows.
She went to a night-club
near her flat at midnight, in the company of some German friends of hers. She
was standing at the bar when
the appellant, whom she did not know, approached
her and began a conversation.
Inter alia
he told her how lonely he was,
that he had problems with girls in this country, and that girls did not seem to
like him. She was
apparently sympathetic and told him that there must be a
reason for that. After a while, however,' she became bored. As it was about
half
past twelve and as she had to go to work the next morning, she decided to leave.
The appellant offered to accompany her home,
/but ...
4.
but she told him that that would be stupid, because she lived
only two blocks away. He nevertheless insisted on walking with her.
When they
arrived at her flat, he said that he wanted to continue their conversation. She
replied that he could come up to her flat
for one cup of coffee, but that he
would have to go after that. In the flat, he talked about problems he had with
his family, After
a while she went to the toilet, and when she came back he
tried to hug her. She told him to stop it and that he must go. He then
told her
that he had nowhere to go. She said to him that he could sleep in "that other
bed" - there were two beds in her flat, one
near the toilet and one near the
window, and apparently she pointed to the one near the toilet. Having said that,
she went into the
toilet, undressed, and put on her pyjamas, consisting of a top
and pants. When she returned to the room, he was lying on the bed
near the
window ("my bed", she said). He was naked. She told
/him ...
5
him to leave. He became angry and accused her of being "just like all
those other girls, no one likes him", whereupon she told him
that it was no
wonder no one liked him. He then ripped off her pyjama pants. She wanted to
scream, but he started to strangle her
and told her that if she did not stop
screaming at once, he was going to kill her right there. She then kept quiet. At
this point
her evidence reads as follows:
"Then he raped me and then he made me touch his penis and he made me masturbate
with myself, he made me do oral sex, he hit me in
the face when I did not want to do it
He actually got more cross because he did not get any
reaction."
She wanted to get up but he assaulted her
by hitting her back onto the bed, and he said she was not going anywhere. She
told him that
she was just going to put off the lights, whereupon he let her go.
She went into the toilet and got dressed. She peeped through the
door and saw
that his eyes were closed. She left the flat, ran
/up ...
6.
up the street, and hailed a taxi, which took her to the
Hillbrow police station. She told two policemen at the desk of the charge
office
that she wanted to make a statement. They took her to Sergeant Smith, to whom
she made a statement.
That, then, is the gist of the complainant's evidence, as it was given at
first. I shall refer later to other details of what she
said, particularly under
cross-examination.
The policeman to whom she spoke first at the police station was Constable
Kent. He testified that she arrived at the police station
at about 6 o'clock in
the morning. She was in a state of shock. She tried to tell him what had
happened, but he could not understand
what she was saying. She was too upset to
talk. He called his colleague, Constable Vermooten. (Vermooten passed away
before the trial.)
The complainant spoke to Vermooten, who told Kent to take her
to the detectives.
/He ...
7.
He took her to Detective-Sergeant Smith. She told Smith that
she had been raped. Having obtained the address of her flat, Kent and
other
policemen went there. The time was about 06hl5 or 06h20. In the flat they found
the appellant in the bed, fast asleep. According
to Kent there was only one bed
in the flat. The appellant was woken up. He was dressed only in his underpants.
He was asked whose
flat it was, whereupon he replied that it was his flat. Kent
looked around in the flat and found only women's clothing, except for
a pair of
trousers lying on the floor. When the appellant was told to get dressed, he put
on a pair of denim trousers, but he managed
to do so only with difficulty. On
being questioned about the men's trousers on the floor, the appellant denied
that they were his.
Kent took those trousers along to the police station when
the appellant was taken there. It then transpired that the denim trousers
that
the appellant had put on, were in
/fact ...
8
fact the complainant's. Kent said that when they arrived back at the
police station, the complainant was still in a state of shock.
When she saw the
appellant, she again burst into tears.
Detective-Sergeant Smith testified that when the complainant was brought to
him from the charge office, he noticed that she was in
a state of severe shock.
She told him that she had been raped, but she was too shocked to speak properly.
He offered her a cigarette
in order to calm her. She then made a proper report
to him, whereupon he despatched Kent and Vermooten to her flat to arrest the
appellant. He then took down a statement from her, and afterwards he took her to
the district surgeon to be examined. The district
surgeon was not called by the
State. (I shall refer to this aspect of the case again at a later stage.)
The appellant's evidence was brief, both in chief and under
cross-examination. He said that he
/went ...
9.
went to the night-club at about 12 o'clock. He had something
to drink, then saw the complainant and went to her. She was also drinking.
They
entered into a conversation. He knew her. In fact, some months before they had
had intercourse with each other after he had
met her in the bar of a club or an
hotel. As to the conversation on this night, he could not remember what he and
the complainant
spoke about, because he had had too much to drink. After about
an hour the two of them went to her flat, she having invited him to
have a cup
of coffee there. In the flat they talked for a while and then they started
kissing each other. She went into the bathroom
to put on her night-clothes. He
undressed himself and lay down on the bed. She came from the bathroom and joined
him in bed. Then
they had sex together, "normal sex", and they both enjoyed it.
They had full intercourse. Afterwards, he fell asleep. Later (he could
not
say
/how ...
10.
how much later) she woke him and told him to get up and get
out of her flat, because he was too drunk. He objected, saying: "First
of all we
slept together and now you want to throw me out." He was angered by her conduct
because she had said, "in a very mean sort
of way, 'Get out of my flat.'" He
wanted to continue sleeping. She then slapped him, and he retaliated by slapping
her. He fell asleep
again, and was woken up when the police came. He denied that
he had forced the complainant to have sex with him, that he had torn
her pyjama
pants off, that he had choked her, and that he had threatened to kill her. There
were no problems between the two of them
until after the act of intercourse. He
offered no explanation for the fact that she objected to his being drunk
afterwards, while
she had not done so before. He could not give an explanation
for the fact that she had gone into the bathroom to put on her pyjamas
prior to
having intercourse. He
/said ...
11.
said that, because of his drunken condition, he could not recall the events
quite clearly before he became annoyed with her, when
she wanted to chase him
out of her flat, but that he could remember clearly what happened after
that.
After the appellant had testified, Detective-Sergeant Smith was re-called and
asked about the appellant's condition when he was brought
to the police station.
Smith said that the appellant smelt of liquor and that he noticed that he was
under the influence of liquor,
although the appellant carried on a normal
conversation with him.
The Magistrate in his judgment discussed the evidence in the case from two
points of view: the credibility of the two main witnesses,
and the probabilities
flowing from their evidence. Having summarised the evidence, he commenced his
discussion of it by remarking
that the most important question to be decided
/was ...
12.
was the question of credibility. He proceeded to pass some
remarks of a general nature about the assessment of witnesses' credibility
and
their demeanour and conduct in the witness-stand, and then turned his attention
to one particular criticism which had been levelled
against the complainant by
the attorney who had defended the appellant. That criticism was, with reference
to the fact that the complainant
was crying from time to time as she gave her
evidence, that she "was able to turn on tears at will". The Magistrate found
this "allegation"
to be "completely unfounded". He dealt with it at some length,
mentioning
inter alia
that the complainant had started to cry in her
evidence in chief, and observing that it was "extremely significant and also
important"
that the "state" in which she was, became "intensified" when she
testified about the appellant's attempt to force her to commit what
the
Magistrate referred to as "the unnatural sexual acts" with him (these are the
acts
/mentioned ...
13.
mentioned in the excerpt of the complainant's evidence that I
quoted above; I shall refer to them as the unusual sexual acts). The
Magistrate
then expressed the very firm conclusion that, having seen and heard the
complainant, there was no doubt whatsoever in
his mind that she was "genuinely,
extremely disturbed" when she gave her evidence and that her crying in court was
not due to play-acting.
Having disposed of that criticism of the complainant,
the Magistrate proceeded to state that there were "the important probabilities
of the matter" which had to be dealt with, and to express the view
that
"these probabilities favour the complainant's
version being true to such an
extent and to such a degree that there can in my view be no doubt whatsoever
that her evidence is in
fact true". The probabilities, the Magistrate said,
could best be dealt with by having regard to the appellant's version of what
had
happened; by pointing to the "extreme improbability" of his version
/being ...
14.
being true, the Magistrate considered, the probabilities of
the complainant's version being true would become apparent. Before I record
the
Magistrate's particular findings in regard to the probabilities, it will be
convenient to mention that at a later stage in his
judgment he reverted to the
complainant's evidence and her credibility in the context of her behaviour on
the night in question.
He said that one was dealing in this case with a woman
who was living, not in Victorian times, but during the period of the liberation
of women; that it would be extremely unfair to measure the present-day women's
behaviour and attitudes with the yardstick used by
courts of 100 years ago; and
that this could not be over-emphasised in dealing with the question of
credibility and the question
of probability. Having expatiated on that topic, he
concluded that although it might have been unwise for the complainant to invite
the appellant to her flat after a chance encounter, it
/was ...
15.
was not the unusual and exceptional behaviour which it might
have appeared to be if it were measured by the incorrect yardstick, and
that to
attempt to explain her behaviour in any other way would be to lose sight of the
actualities. I pause here to say that although
the Magistrate did not explicitly
say so, it is a fair assumption that, apart from a consideration of the
probabilities, the complainant
impressed him as being a credible witness. As far
as the appellant is concerned, the Magistrate did not comment on his demeanour
or the impression made by him as a witness. His evidence was rejected, and
rejected emphatically, solely on the basis of the improbabilities
which were
found to be inherent in his version of the events. An analysis of the
Magistrate's judgment shows that there were three
features of the appellant's
evidence on which he relied for rejecting it. The first was his evidence that
the complainant went into
the bathroom to change into her pyjamas prior
/to ...
16.
to having sex with him. In this regard the Magistrate posed
the rhetorical question: "Why this false modesty?" He said that such conduct
was
improbable and that the appellant's version did not ring true. The second
feature was the appellant's evidence that after he
had fallen asleep, the
complainant "for no rhyme or reason" became annoyed at his drunkenness and tried
to bundle him out of her
flat. The Magistrate said that this was unnatural
behaviour, it did not ring true, it was so improbable, so extremely unlikely
that
there could be only one inference and that was that this in fact was not
what had happened; the appellant's version accordingly had
to be rejected as
being false beyond reasonable doubt. The third feature was that the appellant's
evidence furnished no explanation
for the fact that the complainant would have
wanted to leave the flat in the early hours of the morning in order to have the
appellant
/arrested ...
17.
arrested by the police. The Magistrate said that the
suggestion that the complainant's conduct was attributable to the mere fact that
the appellant was drunk was nonsensical. He referred in this connection to the
police evidence - which he accepted - that when the
complainant arrived at the
police station she was "in a shocked emotional state". This, he found, was
obviously true, and having
regard to his earlier finding that her emotional
condition in court was genuine and not simulated, he said that he had no reason
to doubt that her condition when she came to the police station was also a
genuine condition. The only possible explanation, he reasoned,
was that some
traumatic experience must have taken place to cause this. It was ridiculous to
suggest that this was caused by the
appellant's drunkenness and unwillingness to
leave her flat. So, the Magistrate concluded, it could only have been caused by
the
appellant's assault and rape of the complainant.
/On ...
18.
On appeal to the Provincial Division it was argued on behalf
of the appellant that the complainant's evidence was unsatisfactory in
a number
of respects. SPOELSTRA J in his judgment dealt with these criticisms of the
complainant's evidence and, although he said
that her evidence on what ensued
after the appellant's assault on her had commenced, was "not very coherent",
found that the criticisms
were not material and did not carry any real weight.
The basis upon which the appeal against the conviction to the Court
a quo
was dismissed appears from the following passage in the judgment of SPOELSTRA
J:
"All these criticisms, whether individually or jointly, do not impress me as
grounds upon which the complainant's evidence must be
rejected or doubted. The
version of the appellant is in my view inherently improbable and could not be
accepted. It was rightly rejected
by the
magistrate."
Having now completed my survey of what
this appeal is about, I think I should say at once what, in
/my ...
19.
my judgment, will be decisive of the outcome of it. It is the
application to the particular facts of this case of the cautionary rule
which is
generally applied in our criminal practice to cases of sexual assault.
With regard to the cautionary rule in general, there are three decisions of
this Court to which reference must be made. In
R v Rautenbach
1949 (1) S
A 135
(A) SCHREINER JA said the following (at 143):
"Experience shows that especially in cases of sexual assault the impression made
by the complainant on the jury or other trier of
fact is likely to be a major
factor in the decision. It is a class of case in which, under the English
practice, it is the duty of
the judge to warn the jury of the danger of
convicting upon the uncorroborated
evidence of the complainant Although
I have found no full discussion of the matter in any South African decision,
judges do generally, and in my view properly, direct
juries on the same lines It is not
only the risk of conscious fabrication that must be guarded against; there is
also the danger that a frightened woman, especially
if inclined to hysteria, may
imagine that things have happened which did not happen at all. It would of
course be wrong to
/exaggerate ...
20
exaggerate the risks of a false accusation
in such cases
"
In
R v W
1949 (3) S A 772
(A) at 780 and
781 WATERMEYER CJ said the following:
" I am satisfied that in criminal cases
of the kind now in question the true rule does not insist that there must be
corrobo-ration of the complainant's evidence before
the accused can be legally
convicted. In rape cases, for instance, the established and proper practice is
not to require that the
complainant's evidence be corroborated before a
conviction is competent. But what is required is that the trier of fact should
have
clearly in mind that these cases of sexual assaults require special
treatment, that charges of the kind are generally difficult to
disprove, and
that various considerations may lead to their being falsely laid. Some of these
considerations are mentioned in
Rex v Rautenbach
(1949 (1) S A L R 135 at
p 143), but there are others which are more obviously applicable to a case like
the present one. Where pregnancy
has supervened and in that way it has become
necessary for the girl to explain her condition, she may be tempted to shield
some young
friend who is the actual wrongdoer and to implicate someone of
relatively sound financial standing who may be better able than the
actual
father of the child about to be born to provide it with maintenance. The
position is not materially different from that
created
/by ...
21.
by the cautionary rule applicable in the case of accomplices which was recently
dealt with by this Court in
Rex v Ncanana
(1948 (4) S A L R 399).
Although the nature of the special risk in sexual cases differs in certain
respects from that involved in
cases where the Crown relies on accomplice
evidence, what was said in
Ncanana's
case at pp 405/6 is applicable,
mutatis mutandis,
in cases of the present kind.
No doubt, applying what was said in
Ncanana's
case (
loc cit
), it
is permissible for a court to convict in these sexual cases even where there is
no corroboration of the complainant and even
where the accused has given
evidence and has not been proved to be a lying witness. But that is only the
position where the court
is fully appreciative of the risks involved and where
the merits of the complainant and the demerits of the accused as witnesses
are
beyond question."
In the above two cases the defence
of the accused was a denial of the alleged assault. In the next case,
R v D
and Others
1951 (4) S A 450
(A), the defence against a charge of rape was
one of consent. SCHREINER J A applied the cautionary rule to that situation.
With reference
to a direction to the jury by the trial Judge in that case
(BROOME JP) that
/" the ...
22.
" the law provides that no man can be
convicted of a sexual offence on a woman unless there is some corroboration of
the woman's story.",
SCHREINER JA remarked as
follows (at 456-7):
"As appears from
R v W
,
supra
at p 780, this statement as a
generalisation goes somewhat too far in favour of persons accused of sexual
offences- But as applied
to the circumstances of this case, and particularly in
view of the possibility, pointed out by BROOME JP, that the complainant, whether
consciously or unconsciously, had exaggerated the number and severity of the
blows that she received, the learned judge was on safe
ground in directing the
jury that there should be no conviction in the absence of
corroboration."
In the cases cited above some
examples are given of the risks against which the cautionary rule is. designed
to guard- In that connection,
and with a view to what is to be said later in
this judgment concerning the possible motives of a complainant in this type of
case
for laying a false charge, I would refer also to the following passages in
the judgment of LEWIS AJA in
R v J
1966.(1) S A 88 (S R, A D) at 92
A-D:
/"In ...
23.
" In the case of all females alleging sexual assaults, the need for similar
caution, in the absence of corroboration, flows from
the fact that such charges
are easily laid and difficult for the accused to disprove, and a multiplicity of
motives may exist for
their being falsely laid. This has been recognised since
time immemorial, and a classic example of such a false charge can be found
in
the Biblical story of Potiphar's wife and Joseph.
Apart from the danger of maliciously false
charges, it is also recognised
that, even with
adults, one may encounter cases of unfounded
allegations
of sexual assault which owe their
origin to flights of fancy
The main purpose, therefore, of applying the cautionary rule in cases involving
young children and in sexual cases generally, where
the commission of the
offence itself is not established by corroborative evidence, is to guard against
the danger of invention."
Against this background I
now turn to a consideration of the manner in which the Magistrate sought to
apply the cautionary rule in
this case. At the outset of his discussion of the
evidence, when, as I have said above, he referred to "the most important
question"
of credibility, he stated that "in this regard the State
/is ...
24.
is at an extreme disadvantage because of various safeguards
that we have in our legal system relating to cases such as this". He then
mentioned that the complainant was a single witness and that she was the
complainant in a sexual matter, and said that there were
cautionary rules
applicable to witnesses of this nature. He went on to say that he was not going
to "deal with" those rules at all,
because they were well known, but he
emphasised that he was bearing the rules in mind and that he was applying them
fully to the
question of the credibility of the witnesses and the "acceptability
of the evidence in the case or otherwise". From the rest of his
judgment it
appears that he on two further occasions referred to this topic, mentioning the
care which one had to exercise in dealing
with the question of credibility in
cases such as this and emphasising the cautionary rules which had to be applied
to the complainant
.
/On ...
25.
On reading the Magistrate's judgment one is reminded of what
was said by BOTHA JA in
S v Avon Bottle Store (Pty) Ltd and Others
1963
(2) S A 389
(A) at 393-4, -in a case relating to accomplice evidence:
"It appears from the magistrate's reasons for judgment that, while considering
the evidence of Mrs Field and other accomplices who
testified on behalf of the
State, he persistently warned himself expressly of the special danger of
convicting on accomplice evidence.
That was neither necessary nor sufficient.
What is necessary is that the judicial officer, who is also the trier of fact,
should
demonstrate by his treatment of the evidence of an accomplice that he has
in fact heeded the warning."
Following that approach
in the present case, the point of departure is to examine the Magistrate's
manner of treatment of the evidence
of the complainant, for it is obvious that
the proper application of the cautionary rule in this case required her evidence
to be
subjected to close and careful scrutiny. The Magistrate, however, did not
undertake such an exercise. That he did not, appears from
a perusal of the
complainant's evidence
/on ...
26.
on the record and from a comparison of that evidence with the
way in which the Magistrate dealt with it in his judgment, as summarised
earlier. As to the latter, it will have been noticed that the Magistrate
discussed two possible points of criticism of the complainant
only: her
emotional display and crying in the witness-stand, and her evidence that she
invited the appellant to her flat for coffee.
As to her evidence on the record,
an analysis of it reveals a number of unsatisfactory features. It is to a
consideration of these
that I now turn.
The complainant's description of the sequence of events from the commencement
of the assault on her, as given in her evidence in chief,
underwent a radical
change when she testified under cross-examination. In chief, she gave the
sequence of the appellant's acts as
follows: he tore off her pants; he strangled
her and threatened to kill her; he raped her; he wanted her
/to ...
27-.
to perform the unusual sexual acts with him; when she did
not submit, he became more cross and hit her; and after that she went to
the
bathroom under the pretext of putting out the light. Under cross-examination,
the sequence became as follows: he got up from
the bed and hit her; (it is not
clear in this account when he tore off her pants - she said at one stage that he
tore off her pyjama
top as well, but later changed that and said that he made
her take it ,off); he strangled her; he pushed her back onto the bed; he
hit her
and threatened her; he sat on her belly with his legs astride of her; he wanted
her to do the unusual sexual acts with him;
when she did not submit, he slapped
her; he then had intercourse with her; and after that she went to the bathroom.
Now when a woman
has gone through the harrowing experience of being raped and
she is called upon to relate the exact sequence of events, common sense
and
fairness demand that due allowance be made for imperfect
/recollection ...
28.
recollection of details. But in this case there appears to me
to be considerable doubt whether such a charitable explanation can account
for
the way in which the complainant transposed the act of intercourse and the
unusual sexual acts in the two versions of the events
which she gave in her
evidence. After all, the Magistrate noticed an intensification of her emotional
distress when she testified
in chief about the unusual sexual acts to which the
appellant had wanted her to submit. If she had had a strong feeling of revulsion
about that episode, I find it somewhat difficult to understand why she would not
have remembered whether that was the last thing
to have happened to her prior to
her going to the bathroom and leaving the flat, or whether the act of
intercourse had intervened.
' At the very least, the ring of truth which that
part of her evidence might have had, seems to be dimmed by the contradiction in
regard to it which appears from her two versions, and it lets in the
thought,
/however ...
29.
however tentative at this stage, that the episode might not
have happened at all, or that she may have been a willing party to it
(I shall
return to this aspect of the matter later). My feeling of disquiet about this
part of her evidence is heightened by two
apparently almost chance remarks that
she made in the course of her evidence. First, when she was asked how many times
the appellant
had had intercourse with her, she replied: "I do not know".
Secondly, she was asked whether, while the appellant was lying on top
of her, he
just had his hands at his sides, to which she responded: "He tried to get an
erection for himself, because after the intercourse
he did not have an
erection". Neither of these answers was investigated any further; they were
simply left in the air. I do not understand
them; they do not seem to fit in
with either of her versions of the events; and they suggest that her evidence
was not a full and
reliable account of what had really happened.
/In ...
30.
In cross-examination the complainant gave details of what
happened after her emergence from the bathroom in her pyjamas and before
the
commencement of the assault on her. She said that she went up to the bed where
the appellant was lying and sat down on it. She
explained her conduct as
follows:
" I went and I sat down and I said to
him 'it does not work like that, now you must go - I said to you you can sleep
in that other bed, but if you do it the way like you
think, if you think you can
do it like that, just make it and anything, then I must ask you to leave'. And
then I just sat down to
tell him that."
When
questioned as to why she sat down on the very bed where the appellant was lying,
she replied:
"That was my bed where I was sitting on." A little later in her
evidence she said:
"As I walked up to the bed he got up so I sat down and I said 'please
go'."
I consider this evidence of the complainant to
be highly /improbable ...
31.
improbable. The distinction drawn by the Magistrate between
Victorian times and the present period of the liberation of women, to
which I
referred earlier, can properly be used to prevent an adverse inference being
drawn against the complainant from having invited
the appellant in for coffee,
but it cannot adequately explain her conduct to which I have just referred. I do
not accept that a liberated
woman is either insensitive, or reckless, or stupid.
The complainant, on her evidence, had no sexual interest at all in the
appellant;
she had shortly before rebuffed him when he tried to hug her; she
must have known that he was sexually attracted to her; she had
told him he could
stay if he slept in the other bed; yet, she then without more ado changes into
her pyjamas, and when she finds
him lying naked on her bed, she sits down on it
in order to explain nicely to him that he should leave. In my judgment this
evidence
of the complainant casts a shadow of doubt
/over ...
32.
over the credibility of her entire version of the events.
Another important feature of the complainant's evidence relates to the time
factor. Initially, she had no difficulty in saying that
she had gone to the club
at midnight and that she and the appellant left it at about half past twelve.
When she was asked at what
time she fetched a taxi to go to the police station,
she at first replied that it was after 1 or 2 o'clock, but then corrected
herself
and said it was later, although she could not give the time. Under
cross-examination she said that when she and the appellant left
the club, it
must have been after 2 o'clock. She said also that when she asked the appellant
in the flat to leave and he said he
had nowhere to go, it was shortly, before 3
o'clock. She could not remember at what time she went to the police station. (We
know
from the police evidence that she arrived there at about 6 in the
/morning ...
33.
morning.) Thereafter her evidence as to times became vague.
The importance of this part of her evidence does not lie, however, in
the fact
that she was uncertain, contradictory, or vague; it lies in the fact that she
was unable, on her own evidence, to account
for a period of at least 3 hours
preceding the time of her visit to the police station. I should add that she was
given the opportunity
to explain the time lapse, but did not do so; she never
suggested that the appellant's assault on her took so long that it could
explain
why she arrived at the police station only at 6 o'clock; she simply maintained
that she did not fall asleep after intercourse.
And the reason why her inability
to explain the time lapse is important, is, of course, that it lends
considerable support to the
appellant's evidence, which does furnish an
explanation for the time lapse, namely that he fell asleep and was only woken up
later
by the complainant.
/The ...
34.
The complainant was emphatic in her evidence that the
appellant was not drunk; he was "walking straight" and his speech was
"allright";
she also said under cross-examination that he was sober. In my
assessment of her evidence, there is a real danger that she was deliberately
exaggerating the appellant's alleged state of sobriety, in view of the evidence
of Smith as to his condition when he arrived at the
police station, as referred
to earlier. As to her own condition, the complainant said that she was sober and
that her head was clear;
but when she was asked how much she had had to drink,
she replied: "I had exactly 5 gin and tonic". In her case I consider that she
was probably more under the influence of liquor than she was prepared to
admit.
Other unsatisfactory features of a minor nature can be found in the
complainant's evidence. For instance, she contradicted herself
as to the reason
given
/by ...
35.
by the appellant for the fact that he had nowhere to go;
and she contradicted the policeman, Kent, as to what
clothing she was wearing when she arrived at the police
station. I do not propose to enter into such details.
The matters discussed above are, in my view, sufficient
to justify the conclusion that the complainant's evidence
was unsatisfactory in material respects.
The Magistrate did not in his judgment advert
to any
of the aspects of the complainant's evidence dis-
cussed above. Nor did he deal with what I consider to
be two weaknesses in the manner in which the State pre-
sented its case against the appellant. The first re-
lates to its failure to call the district surgeon who
examined the complainant. The tenor of her evidence
under cross-examination was that she had told the doctor
at the time of the examination that the appellant had
tried to strangle her, and that she thought that the
doctor had found the marks of that assault on her throat
/The ...
36.
The prosecutor declined a request by the appellant's attorney
to make available the doctor's report for the purposes of cross-examination
and
intimated that questions as to what the complainant had told the doctor should
be put to the latter. Yet, when the State case
was closed, shortly thereafter,
the prosecutor told the Magistrate that the doctor would not be available for a
couple of weeks and
that the State would not call him, since it wished to avoid
a delay in the completion of the case. It is clear that evidence by the
doctor
of the presence of throttle marks on the complainant's throat would have
constituted strong corroboration of the complainant.
In the circumstances the
failure to call him must reflect adversely on the State case. The second point
relates to the complainant's
torn pyjama pants. The complainant was asked by the
prosecutor what had happened to the torn pants, and the reply was that she had
thrown them away. The matter was not
/investigated ..
37.
investigated any further. Yet, on the complainant's evidence,
those pants must have been on or next to the bed when she left the flat
to go to
the police. According to the evidence of Kent, he had a close look around in the
flat when he came there, taking note of
the clothing that was lying around. One
would have expected him to find the pants, if they were there. They would have
afforded corroboration
for the complainant. No attempt was made to explain why
Kent did not see the pants, nor why, if the complainant had mentioned them
to
the police, she was not asked to produce them. The State's failure to clear up
this point also reflects adversely on its case.
Turning to the appellant's evidence, it was mentioned earlier that the
Magistrate did not comment on the impression made by him as
a witness. His
cross-examination was cursory. Kent's evidence that the appellant had told him
that it was his flat and that he
/had ...
38.
had put on the complainant's denim trousers instead of his
own, was not put to the appellant at all. In the circumstances it would
be
unfair to use that evidence against the appellant.
Ex facie
the record
there is no reason to think that the manner in which he gave his evidence was in
any way unsatisfactory.
With regard to the improbabilities found by the Magistrate in the appellant's
evidence, as mentioned earlier, the first one can be
disposed of briefly. It
will be recalled that the Magistrate regarded it as improbable that the
complainant would have gone into
the bathroom to change into her pyjamas prior
to having voluntary intercourse with the appellant. I do not share this view. It
postulates
a kind of norm in sexual behaviour, whereby the complainant could
apparently have been expected, had she consented to intercourse,
to shed her
clothes in front of the appellant and to get into bed naked. I can see no
warrant for thus stereotyping
/the ...
39. the ways of a woman preparing for sexual intercourse.
The other two improbabilities in the appellant's evidence, upon which the
Magistrate relied so strongly for rejecting it, stand on
a different footing;
and they require the most careful consideration. The first, it will be
remembered, was that the complainant
would have woken up the appellant and tried
to chase him out of her bed and her flat, without any apparent reason, according
to the
appellant's own evidence; and the second, that she would then, following
upon a tiff and a reciprocal slapping, have gone off to
the police station to
lay a false charge of rape against him, while evincing signs of severe emotional
distress. It is clear, indeed,
that the appellant's own evidence does not
purport to provide any explanation for the complainant's conduct in the two
respects mentioned.
Taking his evidence at face value, therefore, her conduct
was inexplicable and strange; and to that extent his version of the events
was
undoubtedly
/improbable.....
40.
improbable. . The crucial question is whether the
improbabilities in his version are of sufficient weight to warrant the rejection
of his evidence as false beyond reasonable doubt.
For the purposes of considering this question it is necessary to revert to
the cautionary rule that calls for application in this
case, since an assessment
of the improbabilities in the appellant's version must perforce involve at the
same time an assessment
of the possibility that the complainant's charge against
him was false. Reference was made earlier to decisions in this Court from
which
it appears that the cautionary rule is based on the risk of false charges being
laid in cases of this nature, and in which
examples were given of possible
motives for invention on the part of a complainant. The factual situations dealt
with in those cases
are not really on a par with the facts in this case, nor are
the examples given there apposite in the present case. In
/my ...
41.
my view there can be no doubt, however, that the risk of a
false accusation is present in the circumstances of this case, even though
the
motive for it may not be readily apparent. There is a wide variety of possible
motives for invention and the laying of false
charges in cases of sexual
assault. The complexity of such motives and the difficulty of perceiving them
lie at the very foundation
of the cautionary rule. This is well illustrated by
Glanville Williams
in his lucid treatment of this topic, which is to be
found in
The Proof of Guilt
(3rd ed) at 158-178. (For a reference to this
work I am indebted to Hoffman and Zeffert,
S A Law of Evidence
, 3rd ed,
at 456 note 6.) The learned author says the following at 158-9:
"On a charge of rape and similar offences it is the practice to instruct the
jury that it is unsafe to convict on the uncorroborated
evidence of the alleged
victim. The rule applies to a charge of indecent assault, or any sexual offence,
including an unnatural offence
between males. There is a
sound
/reason ...
42.
reason for it, because these cases are particularly subject to the danger of
deliberately false charges, resulting from sexual neurosis,
phantasy, jealousy,
spite or simply a girl's refusal to admit that she consented to an act of which
she is now ashamed. Of these
various possibilities, the most subtle are those
connected with mental complexes. Wig-more , who recites a number of instances
where
women have brought false sexual charges against men, explains one of the
motivations as follows:
'The unchaste (let us call
it) mentality finds incidental but direct expression in the narration of
imaginary sex-incidents of which
the narrator is the heroine or the victim. On
the surface the narration is straightforward and convincing. The real victim,
however,
too often in such cases is the innocent man; for the respect and
sympathy naturally felt by any tribunal for a wronged female helps
to give easy
credit to such a plausible tale.'"
At 161 Professor
Williams
quotes the following extracts from
Wigmore
:
"In the light of modern psychology, this technical rule of corroboration seems
but a crude and childish measure, if it be relied
upon as an adequate means for
determining the credibility of the complaining witness in such charges. The
problem of estimating the
/veracity ...
43.
veracity of feminine testimony in complaints against masculine offenders is
baffling enough to the experienced psychologist. This
. . . rule is unfortunate
in that it tends to produce reliance upon a rule of thumb. Better to inculcate
the resort to expert scientific
analysis of the particular witness's mentality,
as the true measure of enlightenment. ... No judge should ever let a sex-offence
charge go to the jury unless the female complainant's social history and mental
make-up have been examined and testified to by a
qualified
physician."
The learned author proceeds to show that
it would be difficult in practice to give effect to
Wigmore
's proposals,
and concludes as follows (at 162):
"Improvements that may be made in testing the evidence of female complainants
are a matter for the future. In the meantime, the rule
requiring the
corroboration warning to be given retains its importance as almost the only way
by which the peculiar dangers of sexual
charges are reflected in the legal
process."
In the present case, the Magistrate, as
the trier of fact, should have warned himself of the inherent danger that the
complainant,
prompted by some hidden
/motive ...
44.
motive, might have preferred a false charge against the
appellant. He has not demonstrated in his judgment that he did so. As has
been
pointed out, he placed great reliance on the improbability of the appellant's
evidence relating to the complainant's prior conduct,
when she - as the
appellant alleged - without apparent cause demanded that he should get out of
the bed and leave the flat. It seems
to me that that conduct which the appellant
ascribed to the complainant is closely allied to the fact that she thereafter
charged
him with rape. Indeed, there is a pointer in that direction to be found
in the complainant's own evidence. When asked what she had
told the first two
policemen she came across at the police station, she replied: "I told the first
two that I had just got raped
and that they must please get that guy out of the
flat if he is still there". To some extent that confirms the appellant's
evidence
that she had wanted him to get out of the flat. In any
/event ...
45.
event, it seems to me that the prior conduct
which the appellant ascribed to the complainant falls to be assessed on the same
footing
as the subsequent charge that she laid against him. The laying of a
false charge, judged by objective standards, is an irrational
act, but the
intrinsic improbability of it is much attenuated in cases of sexual assault by
the knowledge, gained from experience,
that a variety of possible motives do
induce complainants to act in that way. In the same manner the weight of the
improbability
attaching at face value to the complainant's alleged conduct in
waking up the appellant and wanting to chase him out of her flat,
is
considerably lessened by a proper appreciation of the fact that irrational
conduct is not uncommon in sexual matters. In the present
case, a number of
possible motives for the complainant to have acted as the appellant alleged she
did, suggest themselves. She may
have been overcome by shame, disgust or remorse
(perhaps even alcoholic
/remorse ...
46.
remorse) at the fact that she had consented to intercourse
with the appellant; she may have been sexually frustrated because of the
appellant's drunken state (he may not have realised that they did not both enjoy
the act); she may have been filled with revulsion
at the unusual sexual acts to
which the appellant had wanted her to submit, whether or not she was a willing
party to such acts (as
distinct from the act of intercourse); or she may simply
have become afraid, with the coming of the morning, that her male friend
would
arrive at the flat. It is true that these possibilities are speculative and that
a court is not usually required to speculate
on possibilities having no
foundation in the evidence placed before it (c
f
S v Glegq
1973
(1) S A 34
(A) at 38 H), but if the appellant were telling the truth there was
no way in which he could have offered any explanation in evidence
for the
complainant's conduct, and possibilities of the kind I have mentioned are
inherently present in the cir-
/stances ...
47.
stances of a case such as the present. It is precisely
because of the difficulty of discerning hidden motives that cases of this nature
require special treatment. To quote again from
Glanville Williams
(at
160):
"The distinctive reason for the warning in sexual cases is that experience shows
that the complainant's evidence may be warped by
psychological processes which
are not evident to the eye of common sense. The danger of convicting on the
evidence of an accomplice
who is trying to minimise his own part in the affair
is obvious even
to an unintelligent person In
sexual cases, on the other hand, the danger is usually not
obvious."
In my view, therefore, the improbability
of the conduct ascribed to the complainant by the appellant was assessed much
too highly
by the Magistrate. Similarly, he attached too much weight to the fact
that the complainant left the flat in the early hours of the
morning to lay a
charge of rape against the appellant. If the appellant had in fact slapped her
in the course of a drunken tiff when
she had wanted him to leave the
/flat ...
48.
flat, as he testified, there is a real danger that she went
to the police in a fit of pique and vengeance, and, to get him out of
her flat,
falsely accused him of rape-On that basis, too, the police evidence that she was
in a state of emotional distress and what
appeared to the witnesses to be shock,
loses much of the impact it might have had otherwise. If she had acted in rage,
or even on
the supposition that she merely had some hidden motive for falsely
accusing the appellant, it is hardly to be expected that she would
not have
shown signs of anguish. In this regard I should make it clear that I do not
doubt the correctness of the Magistrate's observation
that the complainant's
distress in the witness-stand was genuine, nor his inference that it was also
genuine when she went to the
police. But that her distress was genuine means
only that it was not simulated. It would be extremely dangerous, in my opinion,
to
regard the complainant's genuine distress
/in ...
49.
in this particular case as a sufficient safeguard in itself
for accepting that she was telling the truth. Her distress might well
have been
induced by her private knowledge that her charge against the appellant was a
false one. There are cases, of course, where
evidence of a complainant's
distress at the time of making a complaint may be a powerful factor in
satisfying the cautionary rule.
Glanville Williams
gives a striking
example of such a case (at 163):
" it has been laid down that a trial
judge must not instruct the jury that the prosecutrix's previous complaint is
capable of corroborating her evidence given in the
witness-box, because a
witness cannot corroborate herself. The reason is only pseudo-logical, for it
misses the whole point of the
rule. Surely the jury should be entitled to take
account of any evidence which is persuasive to show that the charge is not a
fabrication.
Now the circumstances of a complaint made by the prosecutrix
shortly after the occurrence complained of may be most potent in this
respect.
If a young girl runs to her mother in overpowering distress , complaining of a
sexual attack; if it is evident that she
has been attacked,
and
/if ...
50.
if she names the defendant as the culprit, a man with whom she is acquainted so
that there is no possibility of a mistake on her
part in identifying him, the
risk of deliberate falsity in the charge - that she has spitefully substituted
the name of the defendant
for that of her real attacker -is surely negligible-
Much greater risks of false evidence are accepted as part of ' the everyday
course of the administration of justice."
(See also
the passage in the judgment of LEWIS AJA in
R v J supra
at 93 G-H.) In my
judgment, however, the present is not such a case. On the complainant's own
evidence there was an unexplained time
lapse of considerable duration from the
commission of the act of intercourse until the making of the complaint. On the
appellant's
evidence, something happened in between which could have induced the
laying of a false charge, as well as the signs of distress on
the part of the
complainant.
Counsel for the State referred us to the oft-quoted statement that "the
exercise of caution should not
/be ...
51.
be allowed to displace the exercise of common sense" (see e g
S v Snyman
1968 (2) S A 582
(A) at 585 G-H). Counsel's reliance on this
statement appears to me to ignore the fact that the application of the
cautionary rule
in the circumstances of this case in itself rests on the
exercise of common sense - a fact which I can only hope emerges clearly
enough
from what has been said in this judgment.
To sum up, then, in my judgment the Magistrate failed to apply the cautionary
rule properly. He assessed the complainant's evidence
too uncritically and he
assessed the improbabilities in the appellant's evidence too highly. The
Provincial Division fell into the
same errors. The appellant's evidence, though
improbable, could reasonably possibly be true.
The appeal is allowed. The conviction and sentence of the appellant are set
aside.
A.S. BOTHA JA
VAN HEERDEN JA
CONCUR JACOBS JA