Forster Kaseke v The State

### Preamble
1
HH453-13
CRB B 1031/13
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FORSTER KASEKE

versus

THE STATE

HIGH COURT OF ZIMBABWE

MATANDA-MOYO J

HARARE, 26 November, 2013 and 2 December, 2013

Bail Application

E. Chatambudza, for applicant

E. Makoto, for respondent

MATANDA-MOYO	J. 	This is an application for bail pending appeal. The brief facts are that applicant was charged and convicted of contravening s 70 of the Criminal Law (Codification and Reform) Act [Cap 9:23] and was sentenced to 10 years imprisonment after the court a quo found him to be infected with the HIV virus. The applicant noted an appeal against conviction and sentence. At the bail hearing applicant correctly abandoned the appeal against sentence.

The factors to be considered by the court amongst others include applicant’s prospect of success on appeal, the likelihood of abscondment in light of the sentence imposed the liberty of the individual and the likely delay before the appeal can be heard. See State v Dzavo 1998 (1) ZLR 36 (S), State v Musasa SC 45/02.

Applicant appealed against conviction on the following grounds;

that the court a quo erred fundamentally in finding that the State had proved its case beyond a reasonable doubt that the applicant had committed the offence of having sexual intercourse with a minor

that the learned magistrate erred in failing to appreciate that there was adequate evidence led in the matter both in State case and defense case to prove that the applicant had reasonable cause to believe that the complainant was over the age of 16 years at the time of having consensual sexual intercourse. Applicant led sufficient evidence which discharged the onus on the issue of age of the complainant

Let me proceed to deal with applicant’s prospects of success on appeal. Applicant’s counsel argued that applicant has good prospects of success on appeal. Applicant submitted that he had every reason to believe that the complainant was above the age of sixteen. Applicant argued that he placed before the trial court evidence supporting his belief that the complainant was sixteen or above. Applicant’s evidence was that the complainant moved in the company of persons over sixteen. Those were her friends. She had other two boyfriends. The manner in which she invited applicant, prepared him a meal and later had sexual intercourse with him made applicant believe she was sixteen or above. The complainant’s behaviour was akin to that of a girl over sixteen.

The applicant submitted that it was shown in evidence that the complainant never advised the applicant of her age. I was referred to page 62 of the record where the complainant was asked during re-examination;

“Q –	Susan did the accused person known that you were doing Form 2 at that

particular time when he had intercourse with you?

A - 	I do not know

Q -	And did he know that you were in the same class with Kudakwashe

A - 	I do not know

Q - 	And did you tell accused person or did he know of your age?

A - 	No”

Applicant argued that from the above it is clear complainant never told him of her age.

On the other hand the respondent submitted that the court a quo correctly considered that the assertion that complainant was clever for her age and that she would move around with or in the company of older persons could hardly amount to reasonable cause for suspecting her to be above the age of 16 years.

On page 146 of the record the court a quo did find that the complainant was not a  credible witness. The court found as follows on page 146;

“In my view that departure from the truth by the complainant shows that she was not credible at all and should not be regarded as credible. She is a dangerous witness--------------”

The court a quo considered the birth certificate tendered by the prosecution which showed complainant was below the age of 16. Section 70(3) of the Code provides;

“It shall be a defence to a charge under subsection (1) for the accused person to satisfy the court that he or she had reasonable cause to believe that the person concerned was over the age of 16 years at the time of the alleged crime, provided that the apparent physical maturity of the young person concerned shall not on its own, constitute reasonable cause for the purposes of this sub-section.”

The onus of showing that applicant believed the girl was below the age of 16 was on him. Unfortunately no one dealt with the physical appearance of the complainant. I am aware that, the physical appearance on its own would not be of help. On top of the physical appearance the other factors had then to be taken into account. The magistrate found that the applicant failed to discharge the onus in either showing that he did not know or could not have known that the complainant was below 16. The magistrate however found that the complainant did badly by lying and the issue of her age could not have been discussed. The magistrate placed reliance on the fact that the complainant and Kuda (applicant’s brother) were in the same class. However the age of Kuda has not been revealed.

It is my finding that applicant has an arguable case on the question of whether from the evidence on file he discharged the onus of showing that he did not know the complainant was below the age of 16.

In State v Katsiru 2007 (1) ZLR 364 (H) the court had this to say;

“The abandonment of the cautionary rule in sexual cases does not mean a wholesale relaxation of the ordinary standard of proof beyond reasonable doubt which is meant as a safeguard against condemning the innocent together with the guilty in the difficult course of the due administration of justice. On the contrary, the courts must exercise special care and diligence when presiding over sexual cases. Proof beyond a reasonable doubt demands more than that a complainant be believed and the accused be disbelieved. It demands that a defense succeeds wherever it appears reasonably possible that it might be true (dicta per GILLESPIE J. in State v Makanyanga 1996 (2) ZLR 231 H at p 235”

The applicant is not challenging the sentence. If applicant’s appeal fails then applicant would have to serve 10 years imprisonment. This means that stringent bail conditions be imposed on the applicant to ensure attendance at the appeal hearing.

Accordingly bail pending appeal is granted on the following reasons;

that applicant deposit bail in the sum of $1 000.00 with the Clerk of Court, Harare Magistrates Court

that applicant resides at No. 87 Lawley Avenue, Belvedere, Harare until the appeal is finalised

that applicant surrenders any passport or travel documents in his possession

that applicant reports once every week that is every Mondays between 0900 hours and 1600 hours at Harare Central Police Station until the determination of his appeal.

Nyamushaya, Kasuso and Rubaya, applicant’s legal practitioners