S V NYIRENDA 2003 (2) ZLR 70 (H)

Flynote

Criminal procedure (sentence) - statutory offences - Sexual Offences Act c [Chapter 9:21] - s 3(1) - unlawful sexual relations with a minor factors to consider

Evidence — sexual cases — approach to — need to consider nature and circumstances of offence carefully — need for satisfactory explanation for unsatisfactory parts of complainant's conduct

Evidence - sexual cases - complaint - when admissible - reason why such evidence admitted

Headnote

The fact that a witness lied in some respects does not mean that the trier of fact has to disregard the witness's evidence in toto. The trier of fact is entitled to consider the witness's explanations for the unsatisfactory parts of his or her conduct. In a rape case, her testimony should be assessed on the basis that there is no standard reaction to a rape. Although the courts have moved away from the two-pronged "cautionary" test, the nature and circumstances of the alleged sexual offence must be considered carefully. Where the areas in respect of which the complainant moved away from the truth were areas fundamental to her story as a whole, it would be a serious misdirection for the magistrate to say that he finds the truth to lie somewhere else. In such a situation, the court does not find where the truth lies, it decides whether the witness on whose evidence the court is asked to rely is telling the truth.

Complaints in sexual cases are admitted to show consistency and to negative a defence of consent, but not as proof of their contents, nor to corroborate the, complainant. For the complaint to be admitted it must meet the following requirements: (a) it must have been made voluntarily and not as a result of questions of a leading and inducing or intimidating character; (b) it must have been made without undue delay but at the earliest opportunity which, under all the circumstances, could reasonably be expected, to the first person to whom the complaint could reasonably be expected to be made; and (c) the complainant must give evidence.

In a case of having unlawful sexual relations with a minor female, factors relevant to sentence include: (a) the age difference between the parties: the greater the difference, the more serious the offence; (b) the proximity of the minor to 16 years: the closer the minor is to 16, the less serious the offence; (c) whether the accused was in loco parentis; (d) whether the parties had any intention of marrying.