S V MUNEMO 1992 (2) ZLR 222 (S)

Flynote

Evidence — rape — young child complainant — child giving evidence well but warning signs present — need for corroboration or support for D complainant's evidence in such cases — child complainant infected with gonorrhea — accused should have been told about this and invited to undergo medical examination.

Headnote

The appellant was convicted of rape. The State had alleged that when he was 16 years of age he had raped a 7-year-old girl. In setting aside the conviction:

Held, that although the complainant had given her evidence well and although there was medical evidence that someone had sexually interfered with her, there were warning signs arising out of her conduct after the rape which made it unsafe to convict the accused. She had not complained of rape to her parents and had not shown signs of distress. The sexual interference had only been discovered some time later when her mother had questioned because she had found stains on her underpants suggesting to her mother that she had a sexually transmitted infection and that she may have been raped. There was no assumption in our law that a girl of that age cannot possibly lie about such matters. There was a possibility that the complainant had been a willing party and there was a danger that she had falsely accused the appellant of rape in order to cover up some form of sexual experience with another child or adolescent. As there was no evidence to corroborate or support the evidence of the child pointing to the appellant as the culprit, the conviction and sentence had to be set aside.

Held, further, that had been a failure of justice in that the appellant had not been informed that the complainant had a sexually transmitted disease so that he had the chance to be medically examined and by doing so perhaps establish his innocence. The investigating officer had also lost a golden opportunity to test whether the appellant was the culprit by inviting him to undergo a medical examination. Had the appellant refused, an adverse inference might well have been drawn from his refusal. Had he agreed, the discovery of a similar infection would have enormously strengthened the case against him whereas had he been found not to be so infected, the case against him would have been considerably weakened.