IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA HELD AT LOBATSE

Transcription

1 IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA HELD AT LOBATSE COURT OF APPEAL CRIMINAL APPEAL NO. CLCLB HIGH COURT CRIMINAL APPEAL NO In the matter between: RAPULA MOLEFE Appellant And THE STATE Respondent FOR APPELLANT: of the Court) FOR THE RESPONDENT: Mr. Attorney J. Salbany (at request Mr. Attorney A. Tjizera JUDGMENT CORAM: TEBBUTT J.P. LORD COULSFIELD J.A. MOORE J.A. TEBBUTT J.P: 1. The main issue in this appeal is whether a person who has unlawful carnal knowledge of another person who, because of the latter s age, is deemed 1

2 incapable of consenting to the act, is charged with rape under Section 141 of the Penal Code, can be convicted of defilement in terms of Section 147 of the Penal Code. 2. The appellant was charged before the Principal Magistrate at Molepolole with rape, it being alleged that on 9 September 2000 at Goonong Ward, Mmankgodi, he had intercourse with a girl, Phomolo Kekobelwe, without her consent. Phomolo was just under eight years old at the time, having been born on 10 November She told the trial court that on the day in question the appellant called her while she was playing with two friends and told her to undress. She did so. The appellant who was also undressed, then inserted his penis into her vagina. She only told her mother about this after some days because the appellant had told her that he would kill her if she told anyone. The mother reported the matter to the police who took the child for a medical examination. The doctor who carried that out confirmed from the state of her genitalia that the child had been sexually abused. 4. The appellant denied having had sexual intercourse with the child, averring in a unsworn statement that he had been at work on that day, which was a Saturday. The child insisted that it was the appellant who had abused her. 2

3 5. The trial magistrate found that the prosecution had discharged the onus of negativing the appellant s alibi. He also found from the child s evidence, as supported by the findings of the doctor who had medically examined her, that there had been penetrative sexual intercourse with the child. 6. The magistrate then went on to say the following: The next issue that would come for the court s determination would be whether the complainant consented to such intercourse or not. Nothing has been said about this in the prosecution evidence, except that accused person told complainant to undress and she complied before he had sexual intercourse with her. From that evidence it cannot be said whether she had consented or not. There cannot therefore be a conviction for rape in the circumstances of this case. 7. The magistrate accordingly acquitted the appellant of rape but because the child was under the age of 16 years, he invoked the provisions of Section 192 of the Criminal Procedure and Evidence Act (Cap 08:02) and found the appellant guilty of defilement in terms of Section 147 of the Penal Code and sentenced him to 12 years imprisonment. 8. The said Section 192 provides that where a person is charged with rape and the court is of opinion that he is not guilty of that offence but that he is guilty of an offence inter alia under Section 147 of the Code he may be convicted of that offence although he was not charged with it. 3

4 9. Section 147(1) in turn provides that any person who unlawfully and carnally knows any person under the age of 16 years is guilty of an offence, which carries a minimum sentence of 10 years imprisonment. 10. The appellant appealed to the High Court against both his conviction and sentence. His appeal was dismissed by Walia J who also refused him leave to appeal to this Court. He then brought an application in this Court for such leave, which came before me. 11. In the notice of appeal in his application the appellant contended, amongst other grounds, that the trial magistrate had erred in convicting him of defilement. Having once acquitted him of rape, so the appellant submitted, the court could not have convicted him of defilement because an eight year old is presumed to be incapable of consenting to sexual intercourse. He cited the decision of this Court in CHRISTOPHER KETLWAELETSWE v THE STATE CLCLB (unreported) as support for his contention. 12. In view of the fact that I felt that the appellant s contention merited the attention of this Court I granted him leave to appeal. The appellant was, however, unrepresented and as it would have assisted the Court to have counsel argue the matter, I requested Mr. Salbany to act pro amico for the appellant, which he kindly agreed to do. The Court expresses its appreciation to him for the 4

5 conscientious manner in which he approached his task and is grateful to him and to Mr. Tzizera, who appeared for the State, for their helpful arguments. 13. In the Ketlwaeletswe case the Court was required to consider the following question which had been referred to it, in terms of Section 15 of the Court of Appeal Act, by Walia J: Where a man has sexual intercourse with a young girl deemed incapable of consenting to the act, is the proper charge rape or defilement? The Court referred to a statement by Carpsovius, a leading writer on Roman- Dutch Law, which is, of course, also the common law of Botswana, that under Roman-Dutch law a girl below the age of 12 years is irrebuttably presumed to be incapable of consenting to sexual intercourse. That statement was written in 1772 and was expressly stated to be the law in South Africa in R v Z 1960(1) SA 739 (A) which approved a decision in 1907 which stated that the Transvaal and Cape courts had adopted Carpsovius s statement as the rule of the common law (see, SOCOUT-ALLY v R 1907 T.S. 336). So for centuries that has been the law. This Court in Ketlwaeletswe s case accordingly held that a girl (or also a boy) under the age of 12 years the limit being the completion of the child s twelfth year (see, The Law of South Africa 2 nd Edition Vol 6 para 273 and cases there cited) is irrebuttably presumed to be incapable of consenting to sexual intercourse and that Where a man has sexual intercourse with a young girl deemed incapable of consenting to the act the proper charge is rape. 5

6 The same would apply where a woman commits a sexual act, which would fall within the definition of rape in terms of Section 141 of the Penal Code, with a boy under the age of twelve. 14. Certain questions arise from this. The first is whether, where it is established that a child with whom an accused person has had sexual intercourse is below the age of twelve years, the element of intention or mens rea is inapplicable and need not be proved by the State. The second question is whether in such circumstances an accused person can be convicted of defilement. Both of these were raised by the appellant. 15. The element of mens rea in rape cases has engaged the attention of the Courts of South Africa and of England in a number of cases, the decisions in which, in England, have not always been harmonious. However, from the careful analysis of those decisions, the following principles emerge and would now appear to be established both in England and in South Africa, where, it requires to be repeated, the common law is the same as that in this country. 16. Rape is a crime of which intention is an element. There must be an intention to have unlawful carnal connection with a woman without her consent. Such intention must be proved as an essential element of the State case. This the South African Appellate Division held in R v Z supra at 745D in which it followed the 6

7 decision in that court of R v K 1958(3) SA 420 (A) where at 423 Steyn JA said (I translate from the Afrikaans wording): Because rape can only be committed with intention, the State had as a result to prove that the appellant s intention also included the complainant s lack of consent. 17. In R v Z, supra, Van Blerk J.A., who gave the main judgment, said this (again I translate from Afrikaans): It was necessary for the State to prove the elements of the offence namely sexual intercourse and absence of consent, as well as the intention with which the appellant committed the offence. Proof of his knowledge of the absence of consent is essential for a conviction. 18. Ramsbottom J.A. gave a concurring Judgemtn in R v Z. He said this at 745 E-F: The onus is on the Crown to prove that the accused had the necessary mens rea, and therefore the Crown must prove that the accused knew that the woman had not consented. Submission of course is not consent. That the accused had that knowledge may be proved in many ways, and proof that the accused was aware of the possibility of non-consent and was reckless whether the woman consented or not will suffice, but the necessary mens rea, like the other elements in the crime must be proved beyond all reasonable doubt. 19. The statement of the legal position in South Africa in regard to rape as laid done in R v Z, which has been followed and applied in numerous cases since, (see e.g. S v J 1989(1) SA 525 at 530 D and cases there cited) is also consonant with the legal position in England as set out by the House of Lords in DIRECTOR OF PUBLIC PROSECUTIONS v MORGAN (1975) 2 ALL ER 347(H.L) viz that the crime of rape consisted in having sexual intercourse with a woman with the 7

8 intention to do so without her consent or with indifference as to whether or not she consented. 20. From the aforegoing it becomes immediately apparent that the essential elements of intention and consent while inter-related in cases of rape, are separate and distinct concepts. Consent by the complainant may be absent but for an accused person who is charged with raping her to be convicted of doing so he must be proved to have had the intention to rape her in that he knew that she had not consented or was aware of the possibility that she had not consented but proceeded with the act of intercourse reckless whether she had consented or not. 21. It has been held that recklessness in the context of the criminal law on the part of the doer of an act can be established where there is something in the circumstances that would have drawn the attention of the ordinary prudent individual to the possibility that his act may cause criminal consequences but having recognized such risk, the doer goes on to do it (see, R v LAWRENCE (1982) A.C. 510 at 526 E) or aptly put colloquially as couldn t care less. 22. How does all this apply where the complainant is a child whose proved age is below the age of twelve and is therefore incapable of giving consent? It seems from all the authorities to be clear that the State must nevertheless establish the essential element of intention or mens rea in order to secure the conviction of an accused person charged with raping such child. The position cannot be equated 8

9 with an act which is specifically prohibited by Statute and where mens rea may be said not to apply. (see, R v NOCK 1947 (3) SA 392 (C)). The State must prove that the person knew that the child complainant had not consented or was reckless whether the child had consented or not. In such a case the necessary knowledge can be proved in many ways viz he knew that the child was under the age of twelve or that he knew that there was a possibility that the child was under that age but had carnal connection with her reckless whether she was under that age or not. 23. Once again it is apposite to quote from the judgment of Ramsbottom JA in R v Z at 745 F-H where, after referring to the necessity in cases of rape to prove intention, he proceeded thus: If that is right, how does it apply to the present case where actual non-consent had not been proved and where nonconsent, in law, has been proved by showing that the girl was under the age of 12? It seems to me to be clear that in a case such as the present the Crown, to prove knowledge of non-consent, must prove knowledge of the fact that caused the non-consent namely that the girl was under the age of 12. In such a case, too, the necessary knowledge can be proved in many ways, and if the Crown proves that the accused knew that there was a possibility that the child was under the age of 12 and had intercourse reckless whether she was under that age or not, the necessary mens rea will have been proved. Those remarks have equal application in this country. 24. It may, however, be the case that because of the size and apparent maturity of the child, either physically or by its behaviour and conduct, that the accused person avers that he or she had a reasonable belief that the child was over the age of 9

10 twelve. That occurred in R v Z where the child was tall for her age and where a doctor who examined her came to the opinion that she was 13 or 14 or even older. In such a case the onus still rests on the State to prove from all the relevant facts that the accused could not reasonably have had such a belief. The onus does not shift to the accused to prove the reasonable belief. Should the State fail to prove the absence of such belief, it will also have failed to establish the necessary mens rea and would be unable to secure a conviction for rape. 25. It will, however, nevertheless be able to secure a conviction for defilement unless the accused person is able to invoke the provisions of Section 147(5) of the Penal Code. As set out above Section 147(1) provides that any person who unlawfully and carnally knows any person under the age of 16 years is guilty of an offence. An essential element in the offence of rape is a lack of consent on the part of the complainant. This would, obviously equally apply to a complainant under the age of 16 years, either because the complainant is incapable of consenting, being under the age of twelve or because the complainant, who may be between the ages of 12 and 16 has, in fact, not consented to the sexual act. Defilement would therefore be an offence where despite the child consenting to, and being a willing participant in the act, is under the age of sixteen years. 26. Section 147(1) was one of a number of sections in the Penal Code relating to offences against morality that were either amended or introduced into the Code by Act 5 of The clear purpose of that Act was to substantially widen the ambit 10

11 of offences against morality and to provide increased sentences for those committing such offences, in order to curb the increase of crimes against women and children, both girls and boys. It also provided a safeguard against the notorious sexual vulnerability of young children and teenagers under the age of 16 both for their protection against persons who may seek to exploit that vulnerability, as well as for their own good in preventing them from engaging in sexual activity, particularly in the light of the present day prevalence of sexually transmitted diseases. 27. The Legislature, however, saw fit to recognize that where children between the ages of twelve and sixteen did consent to sexual activity, persons engaging in such acts with them may for a variety of reasons, such as the size, physical or mental maturity of the child or other factors the list is not exhaustive believe that the child is over the age of sixteen years and thus not commit the offence of defilement. It therefore enacted Section 147(5) of the Penal Code which provides that: It shall be a sufficient defence to any charge under this section if it appears to the court before whom the charge is brought that the person so charged had reasonable cause to believe and did in fact believe that the person was of or above the age of 16 years or was such charged person s spouse. 28. Where, therefore, an accused person has carnal knowledge of a child under the age of twelve and the State does not discharge the onus of proving that the accused could not have had a reasonable belief that the child was over the age of 11

12 sixteen, the court can still, even while acquitting the accused of rape, under the provisions of Section 192 of the Criminal Procedure and Evidence Act, convict him of defilement, unless the accused can convince the court that there exist grounds for believing that the child, whose proved age was under twelve, was of or above the age of sixteen. That would be a rare occurrence indeed. Of course none of this applies if the State proves that there was in fact no consent by the complainant. 29. In the present case it is clear that because of the child being clearly under the age of twelve the magistrate said she was obviously so young that no one could ever mistake her for a 16 year old and therefore incapable of giving consent, the magistrate erred in acquitting the appellant of rape. Having done so, however, he was not in error in resorting to the provisions of Section 192 of the Criminal Procedure and Evidence Act which state that where a court is of opinion that a person charged with rape is not guilty of that offence he may be convicted of defilement even though he was not charged with it. The magistrate rightly warned the appellant that he might be convicted of that offence before, in fact, finding him guilty of it. There was therefore no prejudice to the appellant. 30. The appellant has also contended in his grounds of appeal, that, apart from the fact that he should not have been convicted of defilement, the trial court erred in rejecting his alibi and that it erred in convicting him on the evidence of the child which, he submitted was uncorroborated. 12

13 31. In the appeal before Walia J in the High Court the same submission in regard to the defence of alibi was raised by the appellant. Walia J carefully considered the unsworn statement of the appellant that he was at work on the day of the alleged offence and the evidence of two witness called by the appellant to support this averment. The learned judge found that the magistrate was correct in finding the evidence of the one witness who could not swear positively to where he was on the fateful day unhelpful to the appellant and that of the other to have been untruthful. Moreover, the appellant had at no time told the investigating police officers that he was at work, which he could have been expected to do at the earliest opportunity, the defence having only been raised for the first time at the trial. Walia J accordingly found that the State had successfully dislodged the defence. Walia J s reasoning is sound and I agree with it. 32. On the issue of the complainant s evidence, the magistrate found that though only a child her evidence was given clearly and was not disturbed by the appellant s lengthy cross-examination of her. He found her to be a credible witness. An appellate court will only upset findings by the trial court if they are manifestly wrong. I have carefully read the record and can find, as Walia J also did, no basis for upsetting the magistrate s finding. Indeed, I agree with it. 33. The magistrate could therefore have found the appellant guilty on her uncorroborated evidence. However, there was, evidence from the complainant s 13

14 aunt that for some days the complainant had been distressed and crying and would not eat. She tried to find out the reason but it was only a day or two later during which time the complainant was still crying, that the latter revealed that the cause of her distress was the ordeal she had suffered at the hands of the appellant. It is clear that this distress was genuine for, as Walia J remarked, it is inconceivable that, given the age of the child, she could have feigned distress over a period of three days. It has been held that evidence of the distress of the complainant can properly be described as independent and can provide corroboration of a complainant s evidence in a rape case (see, BOIKOTLHAO v THE STATE (2001) 2 BLR 642(HC); MABOTE v THE STATE (2001) 1 BLR 187 (CA). 34. For the aforegoing reasons I find that the appellant despite being found not guilty of rape, was correctly convicted of defilement contrary to Section 147(1) of the Penal Code. His appeal against his conviction must therefore fail. 35. The appellant also appeals against his sentence of 12 years imprisonment. The magistrate in sentencing him pointed to the gravity of the offence and that it was becoming all too common. The appellant, he said, had furthermore taken advantage of the trust and innocence of a very young child to satisfy his lust. Such children needed to be protected and such excesses as the appellant had committed could not be condoned. Although the appellant, 27 years old, was relatively young and a first offender, those circumstances merited a more severe sentence than the mandatory minimum one of 10 years. 14

15 36. It is, of course, well-established that sentencing lies pre-eminently within the discretion of the trial court and that an appellate court will be slow to interfere with the exercise by the trial court of that discretion and will only do so where the trial court has materially misdirected itself or where the sentence is so excessive as to create a sense of shock. The magistrate in this case did not misdirect himself in any way and the sentence of two years above the mandatory minimum of 10 years, does not create a sense of shock. There can be no justification, therefore, for this Court to interfere with it. 37. One last aspect of this matter is this. The complainant, being nine years of age, did not take the oath before giving evidence but gave her evidence on admonition. The record reads, after the complainant gave her age and date of birth, as follows: I can distinguish truth from lies. Truth is the opposite of lies, I know. COURT: Witness will give evidence on admonition and is admonished to speak the truth nothing else but the truth. 38. Section 221 of the Criminal Procedure and Evidence Act provides that a witness who from ignorance arising from inter alia youth, is found not to understand the nature or to recognize the religious obligations, of an oath or affirmation may be admitted to give evidence on admonition. The presiding officer then shall admonish him to speak the truth, the whole truth, and nothing but the truth and shall further administer or cause to be administered to him any form of admonition which 15

16 appears --- to be calculated to impress his mind and bind his conscience 39. This Court has held in TSUANENG v THE STATE (2003) 2 BLR 60 at 63 D-E that the presiding officer must (i) admonish the child to tell the truth, the whole truth and nothing but the truth and (ii) go further by administering some form of admonition calculated to impress the child s mind and bind his (or her) conscience. In that case the child said, in addition to saying that she could distinguish truth from lies: I believe in God. I do not go to church. The court held that to be a sufficient compliance with Section In the present case, I am of the view that the admonition administered only just complied with the provisions of Section 221. It seems to me, however, advisable for presiding officers, in the case of a child witness, to ensure that either by reference to his or her religious beliefs or to his or her family or parental upbringing, he or she impresses on the child s mind the need to speak the truth and that his or her conscience will be affected should he or she not do so. The purpose of Section 221 is for the court to be satisfied that a child witness knew the difference between speaking and not speaking the truth and impressing on the child the need to speak the truth and nothing else. This also conforms to the situation in other jurisdictions. 16

17 41. In South Africa there is a somewhat similar section to Section 221 (see, Section 164(1) of the Criminal Procedure and Evidence Act No.5 of 1977 of that country). It has been held that the section requires that the court must enquire whether a child witness is able to distinguish between truth and falsity before admonishing it to speak the truth, the whole truth and nothing but the truth. It does not require the further requisite of the Botswana Act that the admonition must impress the mind and bind the conscience of the child. (See, S v N 1996 (2) SACR 225(C)cited with approval in SEYMOUR v S (1997) 4 ALL SA 644 (N) at 646. In England it was held that a child may testify if the court is satisfied that it entertains the danger and impiety of falsehood (see R v BRASIER (1779) 1 LEACH 199 quoted in Cross & Tapper on Evidence 8 th Edition p229). However, Section 33A of the English Criminal Justice Act of 1988 now provides simply that:- A child s evidence shall be received unless it appears to the Court that the child is incapable of intelligible testimony. The process of impressing on the child the need to tell only the truth requires in my view, therefore, a flexible and common sense approach by the court. 42. In the result the following order is made: (a) the appeal against the conviction and sentence is dismissed. 17

18 (b) the conviction and sentence of 12 years imprisonment, effective from 22 April 2003 are confirmed. DELIVERED IN OPEN COURT AT LOBATSE THIS ---- DAY OF JULY P.H. TEBBUTT JUDGE PRESIDENT I agree S.A. MOORE JUDGE OF APPEAL I agree LORD COULSFIELD JUDGE OF APPEAL 18