S v CHIGOVA 1992 (2) ZLR 206 (H)

Flynote

Evidence — rape — discrepancies between the complainant's testimony and the State outline and between the complainant's evidence — in — chief and her testimony under cross-examination — effect of these discrepancies — lies by accused — when can be taken to be corroborative of complainant's allegations

Headnote

In an appeal against a conviction for rape counsel for the appellant sought to cast doubt upon the credibility of the complainant's testimony bypointing to discrepancies between the complainant's testimony and the contents of the summary of the State case and between the complainant's evidence - in - chief and her testimony under cross-examination. Particular stress was laid on a discrepancy regarding whether the complainant had personally made an arrangement to collect a letter from the accused orwhether her sister had made this arrangement. Other minor discrepancies were also pointed out.

Held, that a summary of the State case is different from an outline of defence. A defence outline is prepared on the instructions of the accused and is usually read over by, or to, him and then signed by him or on his behalf. Because of this, doubt may be cast on the credibility of the accused if his testimony is at variance with categorical statements contained in his defence outline. On the other hand, the complainant has no control over what a policeman decides is relevant to include in the State summary. The summary has not been compiled on the basis of her instructions. The complainant's credibility should not to be assessed on the basis of apparent conflicts on non-essential points between her viva voce testimony and a summary of the case prepared by someone else. To discredit the complainant because of discrepancies between the State outline and her testimony, the divergence between the two must be so gross as to be utterly irreconcilable, or her testimony must be patently false.

Held, further, persons unacquainted with rules of evidence who had not been warned to testify only on matters within their own personal experience and not to testify about matters reported to them not infrequently testified about matters reported to them by others as if they had personally experienced these matters. The discrepancy in the present case relating to the arrangement over the letter was explicable on this basis.

Held, further, that the trial court had rightly found that the complainant was a credible witness, despite minor discrepancies in her testimony.

Held, further, that lies told by an accused in his defence may be of such a character as to be indicative of a guilty mind and these lies could be taken as corroborative of the complainant's allegations.

Held, further, that in the present case corroboration of the complainant's evidence was to be found in the perjorative character of the appellant's testimony and the evidence of his witnesses who had obviously been suborned to support his false testimony.