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[1998] ZASCA 13
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S v Jackson (35/97) [1998] ZASCA 13; 1998 (4) BCLR 424 (SCA) ; [1998] 2 All SA 267 (A) (20 March 1998)
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REPUBLIC OF
SOUTH AFRICA
REPORTABLE
evdw/
Case
no: 35/97
IN THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
In the matter between:
RODNEY
JACKSON
Appellant
and
THE
STATE
Respondent
Court
:
Mahomed
CJ, Van Heerden DCJ, Olivier, Stretcher JJA
and Farlam AJA
Date
of Hearing
: 23
February 1998
Date of
Judgment
: 20 March
1998
JUDGMENT
2 OLIVIER
JA
At
the conclusion of atrial in a regional court the appellant was
convicted
of attempted
rape. He was sentenced to eighteen months imprisonment in terms
of
the provisions of
s 276(1)(i)
of the
Criminal Procedure Act 51 of
1977
and, in
addition
thereto, eighteen months imprisonment conditionally suspended for
five
years. He appealed
unsuccessfully to the then Cape Provincial Division of the
Supreme
Court of South Africa against both his conviction and the sentence
imposed by the trial
court. His appeal against the conviction and sentence now
serves
before us, leave having been granted by the court a quo.
The
complainant's evidence is the following. In the early hours of 26
December 1993, the
complainant, a slightly built 17 year old schoolgirl, accompanied by
her sister, R., and some friends, set off
to a park in
Sydneyvale,
Bishop Lavis in Cape Town to have some fun. They took a case of
3
beer
along. After a while the appellant, a married and well-built 24 year
old
policeman, arrived at
the scene with his car. He was known to the complainant.
The atmosphere was convivial and they drank the beer. The complainant
had one
beer.
Subsequently the appellant offered to take some of the girls for a
drive in his
car, at the
same time giving them driving lessons. The complainant, R. and a
friend, Brigitte, accepted the offer and off they went. After a
while, R. and Brigitte were dropped off in the park and the
appellant
and complainant drove to
another nearby park in Sly Road. The complainant was driving the car.
At this
park the
appellant instructed the complainant to stop the car. When she asked
why
they had to stop, he
replied that he wanted to finish the beer which he was
drinking. She stopped the car and he drank a few glasses of beer. He
tried to
kiss her, but
she turned away. He then told her that he had desired her for a long
time. After that he grabbed both her hands and,
with one of his
hands, raised them
above
her head. He overpowered her and proceeded to take off her plimsoles
and
4
he
lowered her jeans and panties to her ankles. Having succeeded in
removing
one leg of her
jeans completely, he lowered the driving seat on which she was
sitting, and heaved himself upon her. She tried to fight him off and
eventually
they ended up
on the back seat of the car. She started shouting and screaming, but
he put his hand over her mouth. She scratched him on the forehead. He
then
exposed his penis,
forced her legs apart and tried to have intercourse. He also
inserted a finger into her vagina. She pleaded with him, but he
persisted in trying
to
force himself into her, still lying on top of her. She became
hysterical,
screaming and
crying, and he desisted. She immediately jumped out of the car,
pulled up her panties and jeans, and ran off, leaving her plimsoles
in the car. She
ran to a
nearby house in search of help, but nobody opened the door. Two young
men then approached her but, because she was terrified, she ran away.
Eventually
she ended up
in the park where her sister and Brigitte were still enjoying
themselves with friends. She was still hysterical and crying, and
immediately told
5
R.
that she had been raped by the appellant. After a while he arrived at
the
park. The complainant
accused him of having raped her, which he denied. R.
tried
to assault him with a beer bottle and a friend removed the
complainant's
plimsoles
from the appellant's car. The police later found one of the
complainant's earrings in
the car. The complainant then proceeded to the home
of
the appellant's parents, there also complaining of having been raped
by him.
Later that
morning she and the appellant were separately examined by the
district-
surgeon.
The
complainant's version was supported by R.'s evidence, at least in
respect of the events
before and after the appellant's alleged conduct. This
evidence
confirmed that the complainant arrived at the park with her sister
and
friend; that they
drove about with the appellant and then returned to the park;
that
the complainant and the appellant then drove off; that she later
returned on
unshod feet
in a state of hysteria, complaining that she had been raped by the
6
appellant
and that she accused the appellant of having raped her when he
returned
to the park.
The
appellant's version of events is essentially different from the
complainant's. He said
that they were conversing in his car about intimate affairs. He
kissed her, and she did not resist, but returned
his attentions. They
both moved
to the
passenger seat, which he let down. She allowed him to lie upon her.
He
started petting her
breasts and private parts, while she remained fully clad. She
did
not resist. After about two or three minutes things started "hotting
up". Suddenly the complainant pushed him away,
got out of the
car and ran away. At
no
time did he expose his penis, take off her clothes, or put his finger
into her
vagina. The
appellant added that when the complainant accused him in the
presence
of R. and others that he had raped her, he denied having done so.
The
appellant denied having raped, or having attempted to rape, the
complainant.
7
When
the appellant was examined by the district-surgeon, later that
morning, scratch marks were found on his forehead and right ear. His
explanation for this is that his wife attacked him and scratched
him
on the forehead and ear
when she heard of the complainant's accusations against him.
According
to the evidence of the district-surgeon, the complainant was in
a
shocked and withdrawn condition when he saw her and she found the
examination painful. He could
not confirm that full penetration had taken place,
but there
were abrasions on her vaginal mucosa and buttocks, which are
reconcilable with unlubricated
sexual intercourse, but not readily reconcilable with
the
appellant's version of what happened.
The
complainant's mother testified that since the night in question the
complainant had become
withdrawn, had lost interest in her school work and had
in
effect dropped out of school.
The regional court magistrate
rejected the appellant's evidence as untrue
8
and unreliable and accepted the
complainant's version.
The
conviction was confirmed by the court a quo (Van Reenen J with
whom Van Deventer J concurred). Unfortunately, this judgment is
marred by a
misdirection.
Van Reenen J found that it was reasonable to assume that the
complainant had told the police in her statement that penetration had
occurred.
But
he pointed out that complainant in her viva voce evidence had
expressly stated
that she
did not know whether penetration had occurred and to what extent. The
learned judge, therefore, held that there was a discrepancy between
her statement
and her
evidence and that the prosecutor should have made her statement to
the police available to the defence. Van Reenen J stated
that because
this was not
done, an
irregularity had been committed and the credibility finding of the
magistrate should be ignored. Van Reenen J held that
the court a quo
was at
liberty to decide
the issue on the record before it. He came to the conclusion that
the appellant's version was irreconcilable with the complainant's
conduct in
9
running away from the car, leaving
her plimsoles behind, immediately
complaining of having been raped by him, and in presenting vaginal
abrasions not
readily
explicable on his version. Accordingly he upheld the magistrate's
verdict.
In my view, no
irregularity such as that found by the court a quo, was
committed.
It is pure speculation to say that the complainant used or would have
used the word "penetration" in her statement to the
police. Under cross-
examination
she repeatedly stated that, according to her understanding, she had
been raped, whether
penetration had taken place or not, because the appellant had
forced
or tried to force his exposed penis into her vagina without her
consent. It
is,
therefore, highly unlikely that she would have told the police that
"penetration
had
taken place", instead of rather saying that she "had been
raped". In any event,
a
court of appeal should not on the basis of mere assumptions and in
the absence
of clear
evidence find that a trial court has committed an irregularity. There
was
consequently no error
committed failure by the prosecutor in not handing the
10
complainant's
police statement to the defence, and no finding that an irregularity
had occurred should have been made.
In
the absence of an irregularity or misdirection, a court of appeal is
bound by the credibility findings of the trial court, unless
it is
convinced that the such
findings are clearly incorrect.
In
this Court it was argued on behalf of the appellant that the trial
court
misdirected itself
in not truly applying the cautionary rule in respect of the
evidence
of complainants in sexual cases. It was argued that the magistrate
merely paid lip service to the rule. Counsel for the
State gainsaid
this, but also argued
that
the basis, meaning and ambit of the cautionary rule should be
revisited. She argued that the rule, as it is now applied in
practice, is discriminatory towards
women,
should not be countenanced, is unnecessary, and unfairly increases
the
burden of proof
resting on the State in cases involving sexual offences.
The rule was expressed by the
Court in S v Snyman 1968(2) SA 582(A) at
11
585 C-H per Holmes JA as follows:
"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 -
the
recognition by the Court of the inherent
danger aforesaid;
and
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 . . .
Satisfaction
of (a) and (b) will not per se warrant a
conviction,
for the ultimate requirement is proof beyond
reasonable
doubt; and this depends upon an appraisal of
the
totality of the evidence and the degree of safeguard
aforesaid...
In this connection I respectfully agree with
12
the
observations of MACDONALD, A.J.P., in the
Southern
Rhodesian Appellate Division case of R v J,
1966(1)
SA 88 at p 90, to the effect that, while there is
always
need for special caution in scrutinising and
weighing
the evidence of young children, complainants
in
sexual cases, accomplices and, generally, the
evidence
of a single witness, the exercise of caution
should
not be allowed to displace the exercise of
common sense."
The
academic and legal literature on the history, raison d'etre and
justification of the said
rule is extensive and impressive. I have considered these
contributions, but in
view of the clear conclusions to which I have come, it is not
necessary to review them
in detail. I shall summarise my conclusions as follows:
The
notion that women are habitually inclined to lie about being raped is
of ancient origin. In our country, as in others, judges
have
attempted to justify the
cautionary
rule by relying on "collective wisdom and experience" (see
the
judgment of this
Court in S v Balhuber, 1987(1) PH H 22(A) as discussed in S v F,
1989(3) SA 847(A) at 853 et seq.; 854 F - 855 B. See also S v M
1992(2)
13
SACR
188(W)).
This
was
also the justification, before the reform of the law, in
the UK
(see R v Hester
1973 AC 296
at 309; Director of Public Prosecutions v
Kilbourne
[1973] AC 729
at 739 et seq). This justification lacks any
factual or reality-based foundation, and can be exposed as a myth
simply by asking:
whose
wisdom?
whose experience? what proof is there of the assumptions underlying
the rule?'
The
fact is that such empirical research as has been done refutes the
notion
that women lie
more easily or frequently than men, or that they are intrinsically
See esp S
v D and Another, 1992(1) SA 513 (Nmb HC) at 516 A-C; and the
references in Labuschagne
Versigtigheidsreel by
seksuele sake
Obiter
1992: 131 -
137; 1992:136.
Armstrong
Evidence in
rape cases in four Southern African
Countries
Vol 33 No 2 Journal of African Law 1989:183 says at 193 g-h:
"The
cautionary rule in rape cases is based on the principle that
women
are naturally prone to lie and to fantasise, particularly in
sexual
matters and that they are naturally vengeful and spiteful
and
therefore likely to point a finger at an innocent man just out
of
spite. There is absolutely no evidence that women are less
truthful
than men, or that they fantasise more or that they are
naturally
vengeful and spiteful. Such a suggestion is
misogynistic,
and should be dismissed out of hand. Therefore the
cautionary
rule is based on a principle which is discriminatory
towards
women, and inappropriate in countries committed to
equal
rights for men and women, and the rule should be
prohibited
on this ground alone. The cautionary rule has been
called a
lingering insult to women."
14
unreliable
witness.
2
An English
Law Commission Working Paper (No 115, 57-58) also found
no
evidence to substantiate the cliche that the danger of false
accusations is likely
to
exist merely because of the sexual character of the charge, and the
Supreme
Court of
California, in P v Rincon-Pineda
(14 Cal 3d 864)
, despite a detailed
examination of empirical data, found no evidence that complainants in
sexual
cases are more
untruthful than complainants in other cases. It concluded that the
rule was one without a foundation; that it was
unwarranted by law of
reason; that
it
discriminates against women, denies them equal protection of the law
and assists
in the
brutalization of rape victims by providing an unequal balance between
their
rights and those of the accused.
2
See also Colleen Helen Hall,
Sexual
Politics and Resistance to Law Reform: A critique of the South
African Law Commission Report on Women and Sexual
Offences
in
South
Africa
.
LLM Thesis, University of Cape Town, 1987:88;
Dianne
Hubbard,
A
critical discussion of the law on rape in Namibia
.
University
of
Namibia, Windhoek 1991:34.
15
The
New York Sex Crimes Analysis Unit carefully analysed all allegations
made to them over a period of two years. They found that the rate of
false
allegations for
rape and sexual offences was around 2 percent, which was
comparable to the rate for unfounded complaints of other criminal
offences (see
DJ Birch,
Corroboration in
Criminal Trials
:
a
Review of the Proposals of the Law
Commission's Working Paper
.
Criminal Law Review 1990:667 at 678 note 69).
The
oft quoted statement by Lord Hale CJ in the seventeenth century that
it is easy to bring a
charge of rape (and difficult to refute it) is, with respect,
insupportable.
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 its back on her;
she has to undergo the most harrowing cross-
examination
in court, where the intimate details of the crime are traversed ad
16
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.
3
It
is also sometimes said that the rule does not affect the State's
burden of
proof. This is
not correct. In R v W 1949(3) SA 772(A) Watermeyer CJ at 783
said that had the case been one of theft, the evidence would have
satisfied the test
of
proof beyond reasonable doubt; but because the case was one of sexual
assault,
the same
evidence would not suffice. In that case the accused was found not
guilty
because the case
against him had not been proved beyond reasonable doubt
although the trial court found strongly in favour of the truthfulness
of the
complainant and
against that of the appellant.
3
As regards Lord Hale's views, see Geis :
Lord
Hale, witches, and rape
27 British
Journal
of Law and Society 1978:90. In general see Fryer
Law
versus prejudice
:
views on rape through the centuries
,
vol 1, SA Criminal Law Journal 1994:74-
77.
I agree with the contrary view expressed by Frank J in S v D and
Another, su
pra
at 515 J, and with the similar views of Labuschagne, supra, 1992:136
and
Armstrong,
supra, 1989:182-183.
17
In
comparable modem systems, the cautionary rule and its variations have
been abolished.
In
Namibia, this was effected by the judgment of Frank
J
in S v D
and Another
,
supra, and in Canada by
s 8
, chapter 93 of the Criminal Law
Amendment
Act, 1974-75-76. (See Jeffrey G Hoskins
The
Rise and Fall of the
Corroboration
Rule in Sexual Offence Cases
,
vol 4 Canadian Journal of Family
Law 1983:173-214.)
In
the UK the obligatory nature of the rule was abrogated by s 32(1) of
the
Criminal Justice and
Public Order Act, 1994. (Discussed by Peter Mirfield
'Corroboration'
after the 1994 Act
in
Criminal Law Review 1995:448 et seq.)
In
New Zealand the rule was abolished by the Evidence Amendment Act
(No
2) of 1985 (See John Hatchard in Journal of African Law 1993:97 at 98
note 9), and in Australia
by s 62(3) of the Crimes Act (see
Law
Reform
Commission
of Victoria
:
Report
on Rape and Allied Offences : Procedure and
18
Evidence,
March 1988 : 39 par 94).
In
California it was held in P v Rincon-Pineda, supra, that the rule was
unwarranted by law or
reason (see also the discussion by John Hatchard, supra,
at 98
et seq).
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.
In
formulating this approach to the cautionary rule under discussion I
respectfully endorse the
guidance provided by the Court of Appeal in R v Makanjuola R
v Easton ([1995]
3 All ER 730
(CA)), a decision given after the
19
legislative
abrogation of the cautionary rule in England. Although the guidelines
in that judgment were developed with a jury system in mind, the same
approach,
mutatis
mutandis, is applicable to our law.
At p 732 f
to 733 a Lord Taylor CJ stated:
"Given
that the requirement of a corroboration direction
is
abrogated in the terms of s 32(1), we have been
invited
to give guidance as to the circumstances in
which,
as a matter of discretion, a judge ought in
summing
up to a jury to urge caution in regard to a
particular
witness and the terms in which that should be
done.
The circumstances and evidence in criminal cases
are
infinitely variable and it is impossible to categorise
how
a judge should deal with them. But it is clear that
to
carry on giving 'discretionary' warnings generally
and
in the same terms as were previously obligatory
would
be contrary to the policy and purpose of the 1994 Act. Whether, as a
matter of discretion, a judge should
give
any warning and if so its strength and terms must
depend
upon the content and manner of the witness's
evidence,
the circumstances of the case and the issues
raised.
The judge will often consider that no special
warning
is required at all. Where, however, the witness has been shown to be
unreliable, he or she may consider
20
it
necessary to urge caution. In a more extreme case, if
the
witness is shown to have lied, to have made
previous
false complaints, or to bear the defendant some
grudge,
a stronger warning may be thought appropriate
and
the judge may suggest it would be wise to look for some supporting
material before acting on the impugned
witness's
evidence. We stress that these observations
are
merely illustrative of some, not all, of the factors
which
judges may take into account in measuring where a witness stands in
the scale of reliability and what
response they should make at
that level in their
directions
to the jury. We also stress that judges are not
required
to conform to any formula and this court would
be
slow to interfere with the exercise of discretion by a
trial
judge who has the advantage of assessing the
manner
of a witness's evidence as well as its content."
Lord
Taylor CJ then formulated eight guidelines, the third of which is
particularly important for our purposes. It reads as follows (see p
733 c-d):
"(3)
In some cases, it may be appropriate for the judge
to
warn the jury to exercise caution before acting
upon
the unsupported evidence of a witness.
This
will not be so simply because the witness is
a
complainant of a sexual offence nor will it
necessarily
be so because a witness is alleged to
21
be an
accomplice.
There will need to be an
evidential
basis for suggesting that the evidence
of
the witness may be unreliable. An evidential
basis
does not include mere suggestions by cross-
examining
counsel
." (My emphasis.)
It follows
that the magistrate was not obliged to apply such a rule.
I
am not convinced that the trial court misdirected itself on the
evidence
before it, nor
that the decision was wrong. On the contrary, the guilt of the
appellant was proved
beyond reasonable doubt. The actions of the complainant were
consistent with the allegations made by her. The
abrasions found by
the
district-surgeon were
compatible with her evidence and difficult to reconcile with the
version of the appellant that he merely rubbed
the complainant's
private parts
without
using any force and while she was fully clad. His explanation of the
scratches on his forehead
and ear, uncorroborated as it was, would mean, if true,
that
the complainant was lying on this score. But how would she have known
that
he was injured, as
it was never suggested that she was present when he was
22
allegedly
scratched by his wife?
Furthermore,
on both versions the complainant fled from the car, leaving her
plimsoles there. This is
incompatible with the accused's version of consensual
and
non-violent love making. When the complainant reached her sister and
friends, she was
hysterical and immediately complained of having been raped.
The
district-surgeon also reported that when he examined her, she was in
a state
of shock. This is
incompatible with the accused's version.
There
appears, from the evidence, to be no reason why the complainant
would
have lied to her sister and friends, to the district-surgeon, to the
police and
to the trial
court. There was no enmity between the complainant and the accused
before the incident
occurred; on the contrary, they were driving around and he
chose
her to go with him for a further drive. He was a brother of her
friend. There
appears to
be no reason for falsely implicating the accused in a serious crime
and
for bringing shame and hurt upon herself.
23
In my
view, the appeal against the conviction must fail.
If
the sentence imposed by the trial court is open to criticism, it can
only be
that it sins on
the side of leniency. The complainant was at the time a young,
slimly
built schoolgirl. The accused was older, bigger and stronger. It
emerges
from the evidence
that she knew the accused was a policeman, and that she trusted
him
as a friend. His treatment of her was a despicable abuse of physical
strength,
and a violation
of friendship and trust. The fact that he was a policeman whose
duty
it was to uphold law and order and not subvert is, is an aggravating
factor.
He acted in a
manner unacceptable in our society, which is committed to the
protection of the rights
of all persons, including, pertinently, the right of women
to
their physical and moral integrity. Moreover, his actions had a
serious
detrimental effect on the psyche of the complainant.
24
In short,
there is no merit in the appeal against the sentence.
In the
result, the appeal against the conviction and sentence is dismissed.
I
concur
:
Mahomed CJ
Van
Heerden DCJ
Streicher
JA
Farlam AJA