WEIGHT OF FIRST REPORT IN SEXUAL OFFENCE WHEN INVOLUNTARY

S v VILAKAZI 2016 (2) SACR 365 (SCA)

Evidence — Sexual offences — First report of complaint — Admissibility of — Complainant only reporting offence to her mother after interrogation and subsequent hiding — Such not constituting evidence of voluntary or spontaneous first complaint but fact of coercion not on its own indication that allegation of rape fabricated.

Indictment and charge — Charge-sheet — Validity of — Date on which or period during which offence committed — If time when offence committed not material element of offence, failure to specify not rendering charge defective.

The appellant was convicted in a regional magistrates’ court of raping a 12-year-old girl. His case was transferred to the High Court for confirmation and sentencing. The court confirmed the conviction and, having found no substantial and compelling circumstances, sentenced the appellant to life imprisonment. The majority of the full court, on appeal to it, confirmed the conviction but reduced the sentence to 18 years’ imprisonment. In a subsequent appeal against the conviction to the Supreme Court of Appeal (with special leave) the appellant contended that the regional magistrate had misdirected himself by admitting the evidence of the complainant’s report of the rape to her mother, which had been elicited by force. It was submitted further that the state had failed to set out in the charge-sheet the specific dates on which the incidents of rape had happened. The charge-sheet referred to sexual intercourse between the appellant and the complainant as having occurred in March 2003 whereas the complainant’s evidence was that the appellant had had intercourse with her 10 times in March 2003.

Held, per Dambuza JA (Shongwe JA, Theron JA and Mathopo JA concurring), that where the first report of rape resulted from intimidation — as in the present case — it did not constitute evidence of a voluntary or spontaneous first complaint, but that did not render incomplete or insufficient the evidence led at the subsequent trial. The fact that there was coercion was not on its own an indication that the allegation of rape was a fabrication. The court had to consider whether the rest of the evidence proved the charge of rape beyond reasonable doubt.

Held, further, that even if the evidence of the complaint made to the complainant’s mother was omitted, on a consideration of all the other evidence, the appellant’s guilt was proved beyond reasonable doubt.

Held, further, that s 84(1) of the Criminal Procedure Act 51 of 1977 provided that a charge had to ‘set forth the relevant offence . . . with such particulars as to the time . . . at which [it] is alleged to have been committed’ as was reasonably required to enable the accused to plead. But if the time were not a material element of the offence failure to specify it did not render the charge defective. In the present case the appellant knew in no uncertain terms what case he had to respond to and no irregularity had occurred. Held, per Mhlantla JA (dissenting), that the circumstances in which the complaint was made were more serious than those mentioned in the cases referred to by the majority of the court. The mother had subjected her daughter to an interrogation, and, when she failed to provide a satisfactory report, gave her a hiding and insisted that she tell the truth. As it was at that stage that the complainant provided the identification of the appellant as the perpetrator, the possibility could not be excluded that the identification was provided in an attempt to save herself from a further hiding. In the light of these factors the report was wrongly admitted and should have been ruled inadmissible.

Held, further, that although it was so that a failure to specify the precise time of an offence did not render the charge defective if it were not a material element of the offence, the circumstances of the present case were somewhat different. The state had a duty to provide a charge-sheet that was more specific as there were discrepancies as to time in the evidence that were not clarified. Having regard to all the evidence, the state had not discharged the onus of proving the guilt of the appellant beyond reasonable doubt and he should have been acquitted.

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