“SPECIAL INTEREST”

CASE NO.: CC 08/2006

SUMMARY

THE
STATE versus NGHIDIPOHAMBA SHAANYENENGE

DAMASEB,
JP

31/07/2006

INFERENCES

20
Year old Accused charged with rape of a minor girl of 7 years. There
being evidence that she was previously sexually abused but not known
by whom. State failing to prove that such previous abuse not cause
of injuries to complainant seen by the doctors on day after alleged
rape by the accused. Court not entitled to draw inference that
injuries seen by doctors result of alleged assault by accused, when
facts also consistent with inference his version he did not rape
reasonably possible true. State failing to discharge onus and
accused found not guilty.

CHILD
TESTIMONY

Two
minor witnesses’ testimony not trustworthy. Two untrustworthy
accounts not capable of corroborating each other.

“SPECIAL
INTEREST”

CASE
NO.: CC 08/2006

IN
THE HIGH COURT OF NAMIBIA

In
the matter between

THE
STATE

and

NGHIDIPOHAMBA
SHAANYENENGE Accused

CORAM: Damaseb,
JP

Heard
on: 20/04/2006; 31/05/2006; 02/06/2006; 28/07 –
31/07/2006

Delivered on: 31/07/2006

JUDGMENT

DAMASEB. JP: [1]
The accused is charged with the rape of a 7 year old girl when he
was 20 years old. Since he was more than 3 years older than the
alleged victim, the indictment alleges the existence of coercive
circumstances. The accused denies the charge and has put every
element of the offence in dispute.

[2] The indictment alleges
that on or about 13^th November 2004 and at or near
Onamindi village in the district of Outapi, the accused did
wrongfully and intentionally commit a sexual act with the minor girl
(L.S) by inserting his penis in her vagina. The gravamen of the
accusation is that the accused, during the night of 13^th
November 2004, entered the hut where the complainant and other
children were sleeping, and asked to have sexual intercourse with the
complainant in return for 50 cents. It is alleged that the
complainant refused but the accused proceeded to have intercourse
with her anyway.

[3] The accused was arrested
on 14^th November 2004 and made a warning statement to the
Police. He said:

“On Saturday 13
November 2004 at 21h00, I went to the room of the kids where
they sleep to check my blanket. When entered I found my blanket, I
took it and go back to my hut. From there I sleep until tomorrow
morning. Morning my mother asked me, what I was looking in the room
of the kids. I replied her that I was looking my blanket. From
there she went and report me to the police. I didn’t had sexual
intercourse with the victim.” (sic)

[4] In addition to the two
medical doctors who examined the complainant, the state called the
complainant and another girl who was allegedly in the room with the
complainant when the rape is alleged to have taken place. I refer to
L.S as the ‘complainant’.

[5] The complainant is a nine
(9) year old female. She was 7 years old when the alleged rape
happened. I conducted an enquiry to establish if she understands the
nature of an oath. Being so satisfied, I had the oath administered
and she gave evidence under oath. She came across to me as a very
intelligent and articulate girl. She testified very clearly and
lucidly for a person of her age.

[6] Her evidence is to the
effect that she normally sleeps with two other girls in the same
room. She knows the accused as they live in the same house. They
all live with her grandmother, the mother of the accused. She said
the accused is her uncle. She testified that on the 13^th
November 2004 the accused came to her in the room where she sleeps
and said: “Let me eat there and I will give you 50 cents,” (or
words to that effect). The complainant said that she did not want
and thereupon the accused forcefully took off her panty and had sex
with her.

[7] She testified that the
accused put his penis in her vagina and she felt pain. Two other
girls (N and L) were in the room when this happened, according to the
complainant. The complainant testified that N went to tell the
grandmother who then came to the room. According to the complainant,
when the grandmother came inside the room, the accused was leaning
against the wall. After the incident, she testified, she was taken
to a doctor by the grandmother.

[8] The complainant testified
further that she and the other two girls were sleeping on the floor
covered in the same blanket when the accused came in. She testified
that she was in the middle (between L and N). She woke up at the
time the accused asked to have sex with her. She said that the
accused woke her by touching her and whispering to her.

[9] The complainant persisted
in cross-examination that the accused was in their room when the
grandmother came. She testified that when the grandmother came in
she said to the accused: “What did you do to the child?” The
accused did not respond, according to her. The grandmother then left
the room. It was at this point, she testified, the accused ran out
and went to his room. It was put to her by Ms Hitula, appearing for
the accused, that the accused will testify that he was never in the
room. The complainant testified too that there was sufficient
visibility in the room for her to identify the accused properly.

[10] The complainant further
testified that the other two girls did not see what the accused did
to her. She stated that she attempted to wake L but she did not
answer. The complainant said she did not scream when this happened
to her as she was afraid. The complainant dismissed the suggestion
put in cross-examination that it was another boy, not the accused,
who did this to her.

[11] The next witness was NN
whom I will simply refer to as N. She is 16 years old, much older
than the complainant. She must have been 14 years old around the
13^th November 2004. She goes to school and is in grade 6.
She knows both the complainant and the accused as they live in the
same household.

[12] N’s evidence is to the
effect that the accused, when he came in the room, “seduced” the
complainant and wanted to “do it” to the complainant the night of
the 13^th of November. She said the accused said to the
complainant: “Let me eat there so that I give you 50 cents” (or
words to that effect), thus confirming what the complainant heard.

[13] Initially, N testified
that only she and the complainant were in the room the night of the
13^th November. She said she was awake when the accused
entered the room and spoke to the complainant. According to N, she
heard the complainant say to the accused that she does not want, i.e.
to the suggestion to have sex with him for 50 cents. N said too that
she then left the room to report to the grandmother. The grandmother
then came and found the accused in the room. She said the
grandmother said nothing. According to her testimony, the accused
also said nothing and then left the room.

[14] In cross-examination N
maintained it was only she and the complainant who were in the room
when the accused came in. She said too that usually only the two of
them sleep in that room. She later changed her story and said L, her
younger sister, was also in the room on the fateful night.

[15] N testified that she was
in the middle between the complainant and L when the accused entered
the room, while the complainant lay towards the door, and L at the
back.

[16] N testified that she saw
the accused clearly as he entered the room as there was moonlight and
therefore sufficient visibility in the room. She insisted that she
was awake when the accused came in as sleep had not yet caught up
with her. According to N, the accused came in and lay down next to
the complainant while she was looking at what he was doing. She saw
him ‘seduce’ the complainant. N testified that she did not say a
word and went to report the matter to the grandmother. She said she
felt bad about what the accused did. N testified that when she went
to the grandmother she told her that the accused is in their room.

[17] N’s further evidence is
that when the grandmother came, the accused was not in their room.
She later said, when confronted with the statement she made to the
police, that when the grandmother came the accused was still in the
room. N said she did not see the accused do anything to the
complainant apart from seducing her. She maintained that L was
asleep at the time.

[18] The accused testified on
his own behalf and he called no other witnesses. He denied raping
the complainant. His version is that he had some days before the
13^th of November 2004, asked his mother for a blanket for
his own use. This blanket was in the room where the girls, including
the complainant, sleep. Some time early in the day of the date
mentioned in the indictment, he testified, he went to fetch that
blanket in the girls’ room. He testified that the girls were not
in the room at the time as they were in the kitchen preparing dinner.
He said that he fetched the blanket and took it to his room.

[19] According to the accused,
about 20h00 on the night of the 13^th of November 2004,
they all had dinner and he went to sleep thereafter. Early in the
morning of the 14^th November 2004, he testified, his
mother and N came into his room and his mother accused him of wanting
to rape the complainant. He denied the accusation and said he did
not even as much as touch the complainant. When the morning broke,
he was taken to the police, together with the complainant, and was
arrested. The accused denied that another girl, L, said by the
complainant and N to have been in the room at the time, was in fact
there. He maintained that she was away from home at the time
visiting relatives for the weekend. He also maintained that L
attended school at Namedi and stayed with her mother. The accused
maintained that the third girl who was in the room with the
complainant and N, was a girl named Nd who has a child of her own.

[20] When asked why the
complainant would accuse him falsely the accused said that the
complainant may have been raped by someone else and told to accuse
him. He maintained that he was on good terms with both the
complainant and N, except for the normal misunderstandings one would
expect amongst children. The accused said that he knew about the
girls who were in the room on the fateful night with the complainant
as he saw them leave the fire place together (after dinner) to go to
bed. The accused said too that when his mother and N came to his
room, accusing him of untoward conduct towards the complainant, he
initially thought they had come to him about the blanket he removed
from the girls’ room earlier that day.

[21] The accused then asked
the rhetorical question why the older girl in the room at the time
(Nd, the one with a child) did not make a report about the alleged
rape. I wish to mention that the presence of Nd in the room was
never put to the state witnesses to confirm or deny and therefore
carries very little weight.

[22] The state also called the
two medical doctors who examined the complainant following the
complaint of rape. The first was doctor Jasmine Norde Robert, a
Cuban national who testified with the help of a Spanish interpreter.
She is said, and admitted, to have great difficulty in writing and
speaking English. She is a specialist in general medicine and was at
the time under training by Dr Ndoukve Mannie, the principal medical
officer, who, together with her, conducted the medical examination on
the complainant.

[23] Dr Robert testified that
it was the first time she encountered a case like the present and was
not quite sure what to do and called for the help of Dr Ndoukve
Mannie. She confirmed conducting an examination on the complainant
on 14^th November 2004. She made the following findings:
complainant’s mental state was calm; there was ‘redness’ on
the labia minora and the vestibule; the hymen was perforated; the
examination of the vagina was ‘easy’ (1 finger) and she came to
the conclusion that this was a rape.

[24] In a further report
prepared jointly with Dr Ndoukve Mannie, Dr Robert made the following
additional entries: the labia majora and minora, and the vestibule
were reddish; and there was a whitish smelly discharge from the
vagina. No vaginal smears were taken because a rape kit was not
available. The joint conclusion of the two doctors was that this was
a case of rape and the complainant was ‘psychologically
traumatized’.

[25] Dr Robert was unable to
say how recent the injury to the complainant’s genitalia was. She
said though that the vaginal secretion and the reddishness on both
labia meant it was not very long ago. She said it was not normal for
a 7 year old girl to have a reddish labia and that it must have been
due to some sexual ‘play or manouvre’.

[26] In cross-examination Dr
Robert said she inserted her finger into the vagina of the
complainant during the examination. She observed all that was
recorded on the medical report, she said. They found no blood on the
clothing of the complainant, nor on the genitalia of the complainant.
All she saw was reddishness. Dr Robert testified further in
re-examination that the absence of blood on the genitalia may be as a
result of the fact that the complainant had washed in the meantime,
i.e. after the rape and before the examination. She also said that
the insertion of the penis into the complainant’s vagina may not
necessarily have caused blood, and that the hymen is a very thin
membrane that does not contain blood.

[27] Dr Ndoukve Mannie, for
his part, said Dr Robert was undergoing orientation under his
supervision at the time and made mistakes in completing the medical
report. He said he prepared the last part of the report with her
recording the findings made and to which I have already made
reference. Dr Mannie disagreed with Dr Robert’s finding that the
complainant was calm, saying she was traumatized and was restless as
they had to calm her down during examination; only to concede in
cross-examination that the complainant may just have been a shy girl,
not necessarily traumatized.

[28] Dr Mannie testified that
the injury to the hymen was ‘fresh’. He concluded therefrom it
was not an old injury. He attributed the whitish smelly discharge
from the complainant’s vagina to a possible ‘opportunistic
infection’ or a sexually transmitted disease. He said the court
need not make anything of the whitish smelly discharge. Further, for
his part, Dr Mannie said that he inserted the finger into the
complainant’s vagina during the examination.

[29] Dr Mannie also testified
that it was possible the complainant had been raped many times
before. He came to this conclusion because of the ease with which he
was able to insert his finger into the 7 year old complainant’s
vagina. This, he said, showed that this had gone on ‘repeatedly’.
Dr Mannie persisted that what he saw was consistent with the
complainant having been the victim of sexual abuse before the
incident that brought her to them.

That is the evidence that was
led in this case.

[30] The complainant and N,
(more so the complainant) are young witnesses and I must be satisfied
that their evidence is trustworthy. S v Engelbrecht 1993 NR
154 at 163 E-I.

[31] During argument I tried
to focus Mrs Miller’s attention to the difficulty the state faces
in this case; and it is this: the testimony of the complainant is
that she was raped by the accused on the 13^th November
2004. The complainant was at the time 7 years old. Any sexual act
with her by anyone with legal capacity would amount to rape. She
can, in law, not have consensual sexual intercourse. Dr Mannie
testified, for the state, that he was surprised by the ease with
which he was, during examination of the complainant, able to insert
his finger into the vagina of the complainant. Dr Robert’s
evidence also confirms that the entry of one finger into the
complainant’s vagina was easy.

[32] That suggested, according
to Dr Mannie, that this child had prior sexual experience before the
incident for which she was brought to him for examination. What
inference must the Court draw from this evidence? First, it shows
that this complainant had been the victim of sexual abuse prior to
the incident allegedly involving the accused. That raises the
further question: when did that happen? Was it long before or
shortly before the 13^th of November 2004? If it was long
before, say when she was so small that she did not know what was
happening to her, she could not have been reasonably expected to know
the identity of the perpetrator. If it was, however, say a month or
just a few weeks or even days before the 13^th of November
2004 further issues arise, in my view: (i) why did she not report
it? (ii) who was the perpetrator? (iii) why did the state not
deal with it in evidence and exclude the possibility that the
injuries observed by the doctors on the 14^th November 2004
were not the result of those prior rapes, especially when regard is
had to the uncontroverted medical evidence of the state that such
prior rape must have taken place.

[33] The crisp issue is this:
Is the only reasonable inference that can be drawn the one that the
injuries to the genitalia of the complainant occurred on the night of
the 13^th November 2004 and that it could only have been
caused by the accused? If I am unable to draw that inference, the
state has failed to discharge its onus. In view of the medical
evidence, it is an equally reasonable inference that the complainant
was the victim of an illegal sexual act before 13^th
November 2004 and that act or acts may be to explain for the injuries
to her genitalia.

[34] This is compounded by the
contradictions in the state’s testimony on very crucial aspects of
the case. The first point I wish to make is that the mother (or
grandmother) has not been called as a witness. She would, if
called, no doubt have shed some light if the story about the blanket
is true, who actually slept in the girl’s room that night, whether
L was present in the room or not; and where she found the accused
upon receiving the report of the rape.

[35] The complainant testified
that no-one-else in the room saw what the accused did to her. When
the accused came in she was asleep. She says he woke her up. N, on
the other hand, testified not only that she actually saw the accused
enter the room, but that she saw and heard the accused ‘seduce’
the complainant and, what is more, that the accused did not do
anything to the complainant apart from seducing her. N was clear in

her testimony that she was
awake throughout as sleep had not yet caught up with her. If N was
awake and saw what was happening, why did she not raise the alarm? N
was much older than the complainant. Why for example did the
complainant not raise the alarm? She was after all on her version
sleeping between tow girls, one of whom was 14 years old. I don’t
think it is enough to say the complainant was afraid without saying
what the reason for it was. In my view the state had a duty to
explain why she was afraid of raising the alarm. She was not alone
after all on her version.

[36] N also contradicted the
complainant in respect of who slept where. The complainant said she
was in the middle, while N maintains that it was she who was in the
middle. Who should be believed? This is crucial for where
exactly the complainant was at the time goes to an assessment of the
probabilities of whether the act could have been committed in the way
said by the complainant. If she was actually raped while in the
middle (between L & N), could N have failed to notice it?

[37] Another inexplicable
discrepancy in the evidence is where exactly the accused was when the
grandmother came after the alleged rape. As I said the grandmother
was never called. The state explained from the bar that she could
not be called because she was a negative influence in the case. No
evidence was led to that effect. She could have resolved the issue
of where exactly the accused was found. The complainant said the
accused was leaning against the wall when the grandmother came.
Initially N said he was not in the room but later retracted and said
he was in the room. Which one is the Court to accept? In any event,
what are the probabilities that a person who had just committed an
act of rape and knows that someone (N) had just left the room,
possibly to raise the alarm, would just wait in the room and only run
away when the grandmother arrived?

[38] N also said that the
grandmother said nothing when she came in, but the complainant said
that the grandmother confronted the accused and asked what he had
done to the complainant. The accused’s version, of course, is that
the grandmother came to his room and it was in his room that he was
confronted about the incident. Is that version displaced beyond
reasonable doubt?

[39] A Court of law is not
entitled to reason thus: The witnesses for the state are credible.
I believe their evidence. Therefore, since the accused says
something which contradicts their testimony, he is telling a lie and
therefore is guilty. Mrs Miller submitted during argument that in
order to not find the accused guilty as charged, I must find that the
two girls’ testimony is a complete fabrication. With great
respect, that is a completely wrong approach to the onus in a
criminal trial.

[40] When the law says that an
accused is presumed to be innocent, what is really meant is that the
burden of proving his guilt is on the prosecution. This requires a
clear conviction of guilt and not merely a suspicion, however strong
that suspicion. A mere fanciful doubt where it is not in the least
likely to be true, would not prevent conviction. As I understand the
law, a court of law is not entitled to draw an inference of guilt
from a set of facts, if the same facts are capable of an inference
inconsistent with guilt, or are consistent with an inference that the
accused’s version is reasonably possibly true. In that event the
state would have failed to discharge its burden of proof beyond
reasonable doubt and the accused would be entitled to his acquittal.

[41] The observation of
Silungwe, J (as he then was) in S v Shaanika 1999 NR 247 at
252-G, are apt. He said:

“In any event,
it is trite law that no onus rests on the accused to convince the
court of the truth of any explanation he gives. If he gives an
explanation, even if that explanation be improbable, the court is not
entitled to convict unless it is satisfied not only that the
explanation is improbable, but also that beyond any reasonable doubt,
it is false. If there is any reasonable possibility of his
explanation being true, then he is entitled to his acquittal.”

His Lordship also quoted, with
approval, the following dictum of Van der Spuy AJ in S v
Munyai 1986 (4) SA 712 (V) at 714 I – 715 A and 715 F – G:

“Although the
accused’s version of events is improbable and contradictory,
especially when he questioned the witness about the alleged robbery,
I am nevertheless of the opinion that the version of the accused
could reasonably possibly be true. Even if the state case stood as a
completely acceptable and unshaken edifice, a court must investigate
the defence case with a view to discerning whether it is demonstrably
false or inherently so improbable as to be rejected as false. There
is no room for balancing the two versions i.e. the state case as
against the accused case and to act on preponderances.”

[42] I have already warned
myself of the need to be satisfied of the trustworthiness of the
evidence of the young witnesses. I have pointed out the
discrepancies, contradictions and inconsistencies in the testimony of
the evidence of the state. True there is a contradiction between
the accused warning statement and his viva voce evidence about
when exactly he went to fetch the blanket from the girls’ room, the
warning statement placing him in the room at about the time the girls
were in the room. But is that enough to convict him? The accused
stuck to his version that he did not rape the girl from the day of
his arrest, and his evidence was not shaken in cross-examination. I
do emphasise that there is the unexplained matter of the previous
sexual abuse and how proximate it was to the 13^th of
November 2004.

[43] I have come to the
conclusion that I am not satisfied that the evidence of the two girls
is trustworthy for the reasons I have given. I am reminded of what
Hannah J said in Tuyenikelao Nande v The State FA 1/99 (at
page 7) of the unreported judgment:

“Suspect
evidence from one quarter can hardly be said to corroborate suspect
evidence from another. Common sense dictates that the mixture of one
impurity with another further contaminates, not cleanses.”

The untrustworthy accounts of
the two girls cannot corroborate each other.

[44] I am accordingly
satisfied that it is not the only reasonable inference that I can
draw on the facts that the injuries to the genitalia of the
complainant, seen by the doctors on 14^th November 2004,
occurred on 13^th November 2004 and that they were caused
by the accused. I have come to the conclusion that the state has
failed to prove the charge of rape against the accused beyond
reasonable doubt. I therefore acquit him.

_______________

DAMASEB, JP

ON BEHALF OF THE STATE:
Ms S Miller

Instructed By: Office
of the Prosecutor-General

ON BEHLAF OF THE
ACCUSED: Ms H Hitula

Instructed By:
Directorate of Legal Aid