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[2004] ZASCA 71
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S v Hammond (500/03) [2004] ZASCA 71; [2004] 4 All SA 5 (SCA) (3 September 2004)
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Last Updated: 4 September 2004
THE SUPREME COURT OF APPEAL
OF SOUTH
AFRICA
Case number : 500/03
REPORTABLE
In the matter between :
ANGELO
HAMMOND APPELLANT
and
THE STATE RESPONDENT
CORAM : BRAND, CLOETE JJA, COMRIE AJA
HEARD : 23 AUGUST 2004
DELIVERED : 3 SEPTEMBER 2004
Summary: Evidence ─ sexual misconduct cases ─ the purpose for which evidence
of a first report in a sexual misconduct case may be used, analysed and defined.
_________________________________________________________
JUDGMENT
CLOETE JA/
CLOETE JA:
[1] Much
confusion has been caused by the common law rule of evidence which permits the
fact and contents of a complaint in a sexual
misconduct case to be put before a
court. The requirements for admissibility of such evidence are not in issue in
the present appeal.
Its permissible use is.
[2] The appellant was
convicted of rape by a regional magistrate and sentenced to ten years
imprisonment. An appeal to the Cape High
Court was dismissed on the basis that
there was no misdirection by the magistrate. In fact the magistrate misdirected
himself in
several fundamental respects. The court a quo refused leave to
appeal further but granted bail to the appellant pending an application to this
court for such leave. The application
was made and granted.
[3] The
evidence was to the following effect. The appellant, with his friends, came
across the complainant and her friends at the
beach at about noon on the day in
question, which was a Sunday. The complainant and her friends were drinking
beer. The appellant
and his friends were drinking wine, which they shared with
the complainant and her friends. At about four pm the complainant left
with the
appellant and his friends in the appellant’s motor car. He had promised to
give her a lift home to Mitchells Plain.
She had to collect her children, who
were with what she termed her ‘parents-in-law’ (presumably the
parents of her divorced
husband) because the children had to attend school the
following day. Instead, the appellant drove to Crossroads where beers were
purchased and thereafter, to Westridge where brandy was purchased. The
complainant admitted drinking four glasses of brandy mixed
with Coca Cola as
well as several beers during these detours. When they left Westridge, instead of
taking her home, the appellant
drove back to the beach ─ according to the
complainant, despite her protestations and according to the appellant, with her
express consent.
[4] The central dispute revolves around what happened
next. It is common cause that the appellant had sexual intercourse with the
complainant at a sandy place about fifteen metres from the vehicle. According to
the complainant, the appellant dragged her by her
hair during the course of
which she stumbled and gashed her leg, and despite her protestations (she says
she was hysterical) and
the resistance she put up, he raped her. According to
the appellant, he made amorous advances towards the complainant whilst they
were
in his motor car, she reciprocated and they had consensual sexual intercourse.
The appellant’s version was that the complainant
had gashed her leg
earlier, when she stumbled and fell. The appellant also said that the
complainant suggested that they return to
her house so that they could continue
their liaison. The appellant’s evidence that the complainant was a willing
party was
corroborated by a defence witness, Mr Mitchell. Mitchell, a close
friend of the appellant, was with the appellant and the complainant
when they
returned to the beach. He said that he sat in the back seat of the vehicle and
that after the appellant and the complainant
had sat together in the front seat
for a while, the two of them walked off together. He specifically denied the
complainant’s
version that she had been dragged away by her hair. It is
common cause that whilst the two of them were having sexual intercourse,
Mitchell walked over to them and asked the appellant how much longer they were
going to be.
[5] It is also common cause that after the appellant and the
complainant had had sexual intercourse, the appellant’s vehicle
became
stuck in the beach sand. A Land Rover arrived with four fishermen in it. Two
─ Messrs Steyn and English ─ gave
evidence on behalf of the State.
Steyn, somewhat hesitantly, estimated the time of their arrival to have been
around nine to ten
pm. Both said that the complainant approached them, alleged
that she had been raped, attempted to climb into their vehicle and asked
them to
call the police. According to Steyn:
‘She looked ─ she looked
very wild and haggard... She looked like she had been partying the whole
afternoon... [S]he was
a bit teary... She was teary. She was crying... It is
just her hair looked very wild like she had just woken up... She looked like
she
was partying.’
According to English:
‘She was upset and her
hair was all wild and things... she was upset, she ─ I think she was
crying, ja. And anyway we
proceeded to help these guys to get their car out of
the sand. And in that time she wanted to get into the van and she was mumbling
on about, you know, that she has been raped and things... She was upset. To my
mind she was upset, but I know ─ I am not a
person with a breathalyser or
anything but to my mind she looked like she had been drinking, she had [had]
alcohol of some sort.’
[6] The fishermen pulled the
appellant’s vehicle out of the sand. Both Steyn and English said that the
complainant did not want
to leave with the appellant. Steyn said that he did not
believe her story that she had been raped and the complainant confirmed that
this had indeed been her impression. When the appellant’s vehicle got
stuck in the sand again, one of the fishermen called
the police ─
apparently because they wanted to get rid of the complainant.
[7] The
police, including Inspector McNabb, arrived at the scene. McNabb said that he
was in the charge office when the call to render
assistance was received at
about 11 pm and that he was at the scene about 10 minutes thereafter. McNabb
said further that the complainant
was considerably upset, that he had talked to
her after he had put her in the front seat of the patrol van and that during
this conversation
she began crying.
[8] The appellant and his three
companions were arrested. They and the complainant were taken to the police
station. The complainant
was later taken by Inspector Hendricks from the police
station to the district surgeon, who examined her at 1:15 the following morning.
The doctor testified that such injuries as he found to the complainant’s
private parts could have been sustained during consensual
intercourse. He also
confirmed that the gash on her leg was consistent with both the State and the
defence versions as to how it
had occurred.
[9] The magistrate found that
the complainant was a very good witness. He went on, however, to point out
unsatisfactory aspects of
her evidence but concluded that he could not find that
her evidence was untruthful. The magistrate also found that despite the state
of
the complainant’s sobriety, he could safely rely on her evidence,
particularly in view of the finding by the district surgeon
─ who, the
magistrate said, had examined the complainant shortly after the incident ─
that she was ‘not drunk’.
But Inspector McNabb, who had served in
the police force for 9 years, said bluntly and without qualification, both in
his evidence-in-chief
and under cross-examination, that the complainant was
drunk; Inspector Hendricks said that when he went to collect the complainant
at
about 1 am to take her to the district surgeon, she was asleep in the charge
office; it was in fact at least two and possibly
more than four hours after the
incident when the district surgeon examined the complainant; and the district
surgeon readily conceded
in cross-examination that she could have sobered up in
the meantime. Inspector McNabb’s evidence also impacts adversely on
the
complainant’s credibility. She claimed that she was sober and that her
faculties had not been impaired even although she
had had what she termed a
little drink (‘’n drinkie’) ─ which she defined as six
beers or a bottle of brandy.
In view of the quantity and variety of alcohol
which she had imbibed and the evidence of Inspector McNabb, her evidence as to
her
sobriety falls to be rejected.
[10] The magistrate found that the
appellant had not contradicted himself; said that he had given his evidence very
clearly; and commented
that he had sketched a very good picture for the court of
what had happened. He was obviously a good witness. The magistrate further
found
that there were no material contradictions between the evidence of the appellant
and the defence witness, Mitchell. But the
magistrate said that Mitchell did not
impress him at all. This view was based partly on the fact that Mitchell, as a
co-accused,
had been present in court until he was discharged at the end of the
State case and also the fact that he had constantly looked towards
the appellant
and his attorney before answering questions in cross-examination. The first
point of criticism cannot carry much weight
as Mitchell was presumably not
present when the appellant gave his evidence-in-chief or was cross-examined,
otherwise this would
no doubt have been brought out by the prosecutor and would
have been cause for comment by the magistrate. Of course Mitchell was
present
when the appellant’s version was put to the complainant; but that was also
his version and he was cross-examined on
it. So far as the second point of
criticism is concerned, the magistrate obviously considered that
Mitchell’s demeanour left
much to be desired but there is no suggestion
that he was being prompted by the appellant or his legal representative and he
was
not in any way tripped up in cross-examination. Despite his shortcomings,
his evidence does provide corroboration of the appellant’s
version that
he, the appellant, had not dragged the complainant out of the vehicle by her
hair and that she was a willing party;
and Mitchell was peculiarly well placed
to give this evidence as he was sitting immediately behind them in the
appellant’s
motor vehicle before they had sexual intercourse, he saw them
leave and he went over to them whilst they were in the act.
[11] The
magistrate gave essentially two reasons for convicting the appellant. The one
which requires some detailed consideration
appears from the following passages
in the judgment (which I have translated):
‘The court must weigh the
totality of the evidence. The court cannot adopt a compartmentalized approach to
each witness’s
evidence. The court must, as I have mentioned, have regard
to the evidence as a whole, the complainant right through the whole spectrum
up
to the end of the evidence of the defence witness. And if the court [has regard
to] that evidence, the court must look at the
probabilities in this case that a
woman, who was quite willing to go and have further intercourse, would suddenly
say, well now,
I was raped... The court must ask itself, is this conduct of the
complainant consistent with the probabilities in this case. The
court has
considered the evidence, and weighed it. There is absolutely no reason why this
woman, shortly after she had had consensual
sexual intercourse, would suddenly
complain or would shout that she had been raped.’
This approach by the
magistrate constitutes a fundamental misdirection as to the purpose for which
the evidence of a complaint in
a case of sexual misconduct such as the present
may be received.
[12] It is often said that the fact that a complainant
in a sexual misconduct case made a complaint soon after the alleged offence,
and
the terms of that complaint, are admissible for two purposes, namely, to show
the consistency of the complainant’s evidence,
and to negative consent:
See eg R v M 1959 1 SA 352 (A) 355G-H.
[13] In the seminal
English case of R v Lillyman [1896] 2 QB 167 Hawkins J, giving the
judgment of the court (the other members being Lord Russell of Killowen CJ,
Pollock B, Cave and Willis JJ)
said at 170:
‘It is necessary, in the
first place, to have a clear understanding as to the principles upon which
evidence of such a complaint,
not on oath, nor made in the presence of the
prisoner, nor forming part of the res gestae, can be admitted. It is clearly not
admissible
as evidence of the facts complained of: those facts must therefore be
established, if at all, upon oath by the prosecutrix or other
credible witness,
and, strictly speaking, evidence of them ought to be given before evidence of
the complaint is admitted. The complaint
can only be used as evidence of the
consistency of the conduct of the prosecutrix with the story told by her in the
witness-box,
and as being inconsistent with her consent to that of which she
complains.’
The learned judge continued at 177:
‘The evidence
is admissible only upon the ground that it was a complaint of that which is
charged against the prisoner, and
can be legitimately used only for the purpose
of enabling the jury to judge for themselves whether the conduct of the woman
was consistent
with her testimony on oath given in the witness-box negativing
her consent, and affirming that the acts complained of were against
her will,
and in accordance with the conduct they would expect in a truthful woman under
the circumstances detailed by her.’
[14] Lillyman was
followed in R v Osborne [1905] 1 KB 551 where Ridley J, delivering the
judgment of the court (the other members being Lord Alverstone CJ, Kennedy,
Channell and Phillimore
JJ) said at 557-558:
‘By the judgment in
Reg. v. Lillyman it was decided that the complaint was admissible, not
as evidence of the facts complained of, nor as being a part of the res gestae
(which it was not), but as evidence of the consistency of the conduct of the
prosecutrix with the story told by her in the witness-box,
and as being
inconsistent with her consent to that of which she complains. Mr Marchant argued
upon this that the reasons so given
were one only, and that the consistency of
the complaint with the story given by the prosecutrix was material only so far
as the
latter alleged non-consent. If, however, that argument were sound, the
words in question might have been omitted from the sentence,
and it would have
been sufficient to say that the complaint was admissible only and solely because
it negatived consent. We think,
however, if it were a question of the meaning of
words, that the better construction of the judgment is that while the Court
dealt
with the charge in question as involving in fact, though not in law, the
question of consent on the part of the prosecutrix, yet
the reasons given for
admitting the complaint were two─first, that it was consistent with her
story in the witness-box; and,
secondly, that it was inconsistent with
consent... [I]t appears to us that, in accordance with principle, such
complaints are admissible,
not merely as negativing consent, but because they
are consistent with the story of the prosecutrix.’
[15] In Kilby
v R [1973] HCA 30; [1973] 1 ALR 283 (High Court of Australia) Barwick CJ (in whose judgment
McTiernan, Steven and Mason JJ concurred) said at 287 lines
27-46:
‘[E]vidence of a complaint at the earliest reasonable
opportunity is exceptionally admitted only as evidence of consistency
in the
account given by the woman claiming to have been raped: that is to say, it is
admitted as matter going to her credit (see
R v Lillyman [1896] 2 QB 167,
per Hawkins J at 170; [1895-9] All ER Rep 586; Sparks v R [1964] AC 964,
at 979; [1964] 1 All ER 727). Because the account with which the complaint is
said to show consistency is an account of intercourse without consent, it has
often
been said that the evidence of the complaint is evidence negating consent.
In my opinion, this manner of expressing the function
of the evidence of
proximate complaint is not correct: though, as it shows consistency in her
account of rape, the fact of the complaint
buttresses her evidence of no consent
or, as it was said in R v Lillyman, supra, is inconsistent with consent.
At times also it is said with technical inaccuracy that the evidence of such a
complaint is corroborative
of the woman’s evidence of the rape. It is
quite clearly not so corroborative (see R v Christie [1914] AC 545;
Eade v R [1924] HCA 9; (1924) 34 CLR 154; 30 ALR 257), though it is so spoken of in
American literature (see Wigmore on Evidence, 3rd ed, vol IV,
p 219, para 1134 and p 227, para 1137; vol VI, p 173, para 1761).’
The
learned Chief Justice then embarked on a careful analysis of Lillyman,
Osborne and several English textbooks, in the course of which he said the
following (289 lines 35-49; 290 lines 12-29; and 292 lines 1-8):
‘In my
opinion, nothing in this judgment [ie Lillyman] lends any support to the
proposition that evidence of the making of the complaint is evidence of any fact
other than the fact of
the making of the complaint itself and of the terms in
which it is claimed to have been made. When Hawkins J in the first of the
two
passages which I have quoted from Lillyman’s Case [that at 170
quoted in para [13] above] spoke of the evidence of a complaint as being
inconsistent with consent he was not, in my
opinion, intending to place its
admissibility upon a second and different ground from that of its tendency to
show consistency in
the conduct of the prosecutrix. He was merely indicating the
extent of its effect on the credit of the prosecutrix.
In my opinion, the
error which has been made by text writers and in subsequent decisions is in
treating this remark of Hawkins J
as if it did set up a second and independent
ground of admissibility. In my respectful opinion, it did not.
...
In any
case, to say that Lillyman’s Case recognizes that the evidence of a
proximate complaint may be used to negative consent is to make an ambiguous
statement. If it means
that in so far as a complaint tends to buttress the
evidence of the prosecutrix that what occurred did occur without her consent
and
in so far as belief in truth of her statement would negative consent, it may be
an acceptable statement, though, I think, prone
to be, as it has proved to be,
misleading. If, of course, it means that the evidence of a complaint is direct
evidence negativing
consent, I am of opinion that the statement is completely
unwarranted, both in point of precedent so far as Lillyman’s Case
is concerned and in point of logic. It is true that Ridley J in R v
Osborne [1905] 1 KB 551; [1904-7] All ER Rep 54, treated the evidence of
proximate complaint as admissible on two grounds, founding himself on
Lillyman’s Case. He did not intend to depart from the decision or
to enlarge its reasoning. But as I have indicated, Lillyman’s Case
does not really warrant the conclusion that there are two distinct grounds of
admissibility of evidence of proximate complaint. Always
the basic authority for
the contrary proposition in the texts and in the decisions has been
Lillyman’s Case.
...
The admission of a recent complaint in
cases of sexual offences is exceptional in the law of evidence. Whatever the
historical reason
for an exception, the admissibility of that evidence in modern
times can only be placed, in my opinion, upon the consistency of statement
or
conduct which it tends to show, the evidence having itself no probative value as
to any fact in contest but, merely and exceptionally
constituting a buttress to
the credit of the woman who has given evidence of having been subject to the
sexual offence.’
[16] The authors of one of the leading English
textbooks, Cross and Tapper on Evidence (eighth ed.), support the
conclusion reached in Kilby and say at 300:
‘Both in
Lillyman and in Osborne reference was made to the complaint being
used to show consistency with the victim’s testimony, and being
inconsistent with
consent. In Kilby v R, it is submitted rightly, the
High Court of Australia emphasised that this could not be taken to mean that it
amounted to evidence
of the absence of consent, nor its absence to evidence of
consent. That would be to make the very hearsay use of the complaint warned
against by Hawkins J, in Lillyman. The correct view is that the
victim’s testimony is evidence of lack of consent, and the complaint does
no more than support
the credibility of the victim in so testifying.’
I
respectfully agree. The remarks made by this court in M’s case to
which I referred in para [12] above are not a bar to the conclusion I have
reached in as much as that case was concerned
with the consistency of the
complaint and not with whether a complaint can negative consent, as Schreiner
ACJ made clear at 355G-H;
and the question whether the latter purpose is
separate from and independent of the former, did not arise for
decision.
[17] I return to the reasoning of the magistrate in the present
matter set out in para [11] above. It would have been correct for
the magistrate
to have had regard to the fact of the complaint and its terms as establishing
consistency in the complainant’s
evidence and therefore supporting her
credibility. But that is not what the magistrate did in the passages quoted. The
magistrate,
in weighing up the totality of the evidence, had regard to the
complaint and its terms as constituting a probability in favour of
the State
case which tended to disprove consent, which was an issue ─ indeed, the
only issue ─ in the case. That is not
permissible.
[18] The
magistrate’s second reason for convicting the appellant may be dealt with
comparatively briefly. The magistrate reasoned
as follows: Both of the fishermen
Steyn and English said that the complainant’s hair was ‘wild’;
the complainant
said that she had been pulled by her hair from the vehicle to
the place where she was raped; her version was the only explanation
before the
court for the condition of her hair; and the appellant’s evidence that he
did not notice her hair was an attempt
by him to conceal the truth from the
court. I find this reasoning entirely unconvincing. A woman who has been
drinking steadily since
noon, who is inebriated and had just had sexual
intercourse on the beach, is likely to look more than a little unkempt. There
was
furthermore no particular reason for the appellant ─ as opposed to the
fishermen, who were suddenly confronted by the complainant
─ to have
particular regard to the complainant’s hair at any stage, and his denial
that he had done so is accordingly
an unsafe basis for a credibility finding
against him. This is particularly so in view of the specific denial by the
defence witness
Mitchell that the appellant had dragged the complainant by her
hair.
[19] The magistrate also found corroboration for the
complainant’s version in the evidence of the district surgeon that her
leg
had been gashed whilst she was being dragged from the car to the place where the
appellant had sexual intercourse with her. That
finding ignored the evidence of
the district surgeon in cross-examination that this injury was equally
consistent with the appellant’s
version that the complainant had stumbled
and fallen earlier. Bearing in mind the inebriated state of the complainant, the
appellant’s
version is not improbable. The injury to the
complainant’s leg provides no corroboration of her version and the
magistrate’s
finding to the contrary was a misdirection.
[20] The
magistrate did not emphasize the emotional state of the complainant, coupled
with the facts that she wanted to climb into
their vehicle and was not willing
to leave with the appellant, as testified to by Steyn and English, or the
evidence of Inspector
McNabb that she was considerably upset. Such evidence
(unlike evidence of a complaint and its terms) is admissible to prove absence
of
consent, as is clearly established by two decisions of this court. In S v S
1990 (1) SACR 5 (A) this court held at 11a-c and 12a-c:
‘Na die
gebeure op die plaas het die appellant die klaagster teruggeneem na haar
koshuis. Daar het sy vir ‘n wyle voor
die deur bly staan, en toe na
‘n vriendin, Louise Nel, in ‘n ander koshuis gegaan en aan haar
vertel dat sy verkrag is.
Louise Nel het ‘n besondere grafiese beskrywing
van heirdie besoek gegee. Sy sê dat die klaagster by haar kamer ingebars
het sonder om te klop, en dat sy in ‘n erge geskokte toestand voorgekom
het ─ asof sy die dood self aanskou het. Die
klaagster het nie die
appellant se naam aan Louise Nel genoem nie daar sy gesê het dat die man
verloof was, en sy nie sy verloofde
in die verleentheid wou stel nie. Sy het
egter vir haar vertel hoedat sy deur dié man na die plaas genooi is om na
“tapes”
te gaan luister, en hoe hy haar daar verkrag het. Hierdie
getuienis waarin die uiters geskokte toestand waarin die klaagster verkeer
het
steeds beklemtoon word, is nie wesenlik in kruisverhoor aangeval nie, en dit is
ook nie voor ons betoog dat die landdros verkeerd
was om dit te aanvaar nie. Dit
bied ongetwyfeld sterk stawing vir die klaagster se getuienis dat sy verkrag
is.
...
Hierbenewens word sy [the complainant] gestaaf deur die getuienis
van Louise Nel, en, tot ‘n mindere mate, deur die getuienis
van haar
geneesheer en van die verteenwoordiger van “Rape Crisis” met wie sy
gesels het. Die uiters geskokte toestand
waarin Louise Nel haar gevind het kort
nadat die appellant haar by haar koshuis afgelaai het, is sekerlik nie op die
getuienis van
die appellant verklaarbaar nie. Dit strook volkome met die
getuienis van die klaagster dat sy verkrag was, en dit blyk trouens dat
dit op
geen ander redelike veronderstelling verklaarbaar is nie.’
In S v
Jackson 1998 (1) SACR 470 (SCA) this court held at
477g-h:
‘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.’
It must be emphasized that in neither case did this court say
that the fact or contents of the complaint corroborated the complainant’s
evidence or created a probability in favour of its acceptance. In each case the
court had regarded the complainant’s emotional
state and her conduct as
creating that probability. The references to the complaint in the passages
quoted from the S case were part of the narrative of the sequence of
events. The reference to the complaint in Jackson must be interpreted as
showing consistency on the part of the complainant and no
more.
[21] Caution must be exercised when the emotional state of a
complainant is taken into account. The English cases on this point are
collected
and discussed in Ramesh Chauhan (1981) 73 CAR 232. In one of those cases,
Redpath (1962) 46 CAR 319 at 321-2 Lord Parker CJ said:
‘It
seems to this court that the distressed condition of a complainant is quite
clearly capable of amounting to corroboration.
Of course, the circumstances will
vary enormously, and in some circumstances quite clearly no weight, or little
weight, could be
attached to such evidence as corroboration. Thus, if a girl
goes in a distressed condition to her mother and makes a complaint, while
the
mother’s evidence as to the girl’s condition may in law be capable
of amounting to corroboration, quite clearly the
jury should be told that they
should attach little, if any, weight to that evidence because it is all part and
parcel of the complaint.
The girl making the complaint might well put on an act
and simulate distress. But in the present case the circumstances are entirely
different.’
The circumstances in Redpath were that the
distressed condition of the little girl who had been the subject of the assault
was observed by someone whom the little
girl did not know to be
there.
[22] I should perhaps say for the sake of completeness that
evidence of the distressed state of the complainant is also admissible
to show
that sexual contact took place, where this is denied. The facts in Ramesh
Chauhan provide a good example. In that matter the appellant accompanied his
sister to premises where she had applied for employment, and
while she was being
interviewed he waited in another room where a female employee was working alone.
They entered into conversation,
whereupon it was alleged by the victim that the
appellant touched her breast and tried to kiss her. She extricated herself and
ran
upstairs to the ladies’ lavatory crying. A fellow employee heard her
cries and followed her. The victim explained to her fellow
employee what had
happened. The police later interviewed the appellant who admitted being alone
with the victim but denied that any
incident had taken place in which he had
touched her. He maintained that when she left the room she had been behaving
normally. The
appellant was charged with indecent assault. At the end of the
prosecution case counsel for the appellant submitted that there was
insufficient
corroboration for the issue to be left to the jury. The recorder ruled that the
jury were entitled to regard the victim’s
distressed condition described
by the fellow employee as corroboration if they thought it right to do so. The
appellant was convicted.
The Court of Criminal Appeal held that the evidence had
sufficient weight to be left with the jury, who were carefully and properly
directed on the need for corroboration and the possibility of regarding the
evidence of distress as corroboration. The appeal was
dismissed.
[23] In
the present matter, the evidence as to the complainant’s emotional state
is of little ─ if any ─ assistance,
in as much as it may have been
due to other factors. Her friends knew that she had left the beach with
complete strangers at about
4 pm. It had became late. She was intoxicated. She
would have had some explaining to do to her ‘parents-in-law’ as to
why she had failed to collect her children during the afternoon so that they
could attend school the following day. And her fiancé,
whom she said she
would have seen that night, would no doubt have asked questions as to her
whereabouts ─ particularly if he
had seen her in the condition testified
to by the two fishermen, Steyn and English. Or she may have been overcome by
remorse, perhaps
induced by the quantity of alcohol she had consumed. All of
these possibilities have a factual foundation in the evidence led, as
required
by Jackson at 477c-d.
[24] On the face of it, the
complainant’s conduct would, on the appellant’s version, appear
improbable (and this is what
led the magistrate and the court below into error):
One moment she was happy to have sexual intercourse and even to continue their
involvement at her home; the next moment she was upset and looking to the
fishermen for assistance. Such a change in attitude would
indeed be improbable
in a person who was behaving rationally. But the complainant was not. She left
the beach with the appellant
because he was going to take her home so that she
could fetch her children. Yet when there had already been a detour to
Crossroads,
she was quite happy to continue the party: She did not walk home
from Westridge, as she admitted in cross-examination she could have.
She further
admitted that at Crossroads she called for a pair of pliers to cut off her
engagement ring, because, according to her,
it was pinching her. And according
to the appellant, whilst they were at Westridge, the complainant climbed out of
the vehicle and
urinated on the ground in front of a queue of men who were
waiting to be served at the shebeen. The complainant denied this conduct
but,
when asked in cross-examination why she had not mentioned the detour to
Westridge in her evidence-in-chief, she said that she
had forgotten about it.
Her evidence on this point was unsatisfactory. In all the circumstances it would
be unsafe to find that the
change in the complainant’s attitude which must
have taken place on the appellant’s version, renders that version
improbable
─ much less false beyond a reasonable doubt.
[25] To sum
up: The complainant did make a report to the fishermen that she had been raped,
as one would have expected her to do.
That is a factor which supports the
consistency of her evidence and therefore supports her credibility. She was also
upset and unkempt
shortly after the incident, when the fishermen arrived. She
was still upset when the police arrived. As against these facts, she
was drunk
and had behaved irrationally earlier that afternoon, and several reasons
appearing from the evidence suggest themselves
as to why she may have been in
the emotional condition she was and why she may have behaved as she did. She was
furthermore a single
witness. Aspects of her evidence were unsatisfactory and
she lied as to the state of her sobriety. A cautionary approach to her evidence
was required for that very reason: Jackson at 476f and 476i-477a. By way
of contrast, the appellant’s evidence was beyond reproach. There is
furthermore no gainsaying
the fact that his version was corroborated by
Mitchell, even if one approaches the latter’s evidence with reservations
(because
he was a good friend of the appellant) and with caution (because of his
demeanour). The magistrate’s two reasons for convicting
the appellant,
namely, the state of her hair and the probability constituted by the complaint
she made to the fishermen, cannot be
sustained. In all the circumstances, it
cannot be said that the appellant’s guilt was proved beyond reasonable
doubt.
[26] The appeal succeeds. The order of the court a quo is
set aside and the following order substituted:
‘The appellant’s
conviction and the sentence imposed are set aside.’
________________
T D CLOETE
JUDGE OF
APPEAL
Concur: Brand JA
Comrie AJA