REPORTABLE
REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK
JUDGMENT
Case No: CC 15/2008
In the matter between:
THE STATE
and
RALPH MZUVUKILE
MTSHIBE
Neutral citation: The
State v Mtshibe (CC 15/2008) [2012]
NAHCMD 91 (29 November
2012)
Coram: SHIVUTE, J
Heard: 08 –
16 March 2010, 01 September 2010, 18 – 19 October 2011, 03
November 2011, 16 – 20 July 2012, 23 July 2012 and 26 July 2012
Delivered: 29
November 2012
Flynote: Delay to
report - rape - No adverse inferences to be drawn-
Evidence - Evaluation
- of – mutually destructive versions state and defence
witnesses – Court must properly apply its mind – Court to
weigh, probabilities of versions – where doubts exists in
court’s mind – No apparent reason why accused’s
version should be rejected. Accused to be given a benefit of doubt –
Accused not guilty and aquitted.
Accused –
convicted – both counts.
Summary: Accused was
charged with rape – complainant delayed to report. The fact
that the complainant delayed to report should not be used as a weapon
to draw adverse inference against the complainant.
Evidence –
evaluation of two mutually destructive versions from the state and
defence witnesses. Where the court is faced with mutually
destructive versions, the court must properly apply its mind. This
involves inter alia, weighing up the probabilities of each version.
Where doubts exists in the court’s mind as to proof of guilty
of accused, such accused should be given the benefit of doubt. No
apparent reasons why the accused’s version should be rejected.
The accused is found not guilty and acquitted.
JUDGMENT
SHIVUTE J:
[1] The accused faces an
indictment containing several counts namely: Three counts of rape
contravening section 2 (1)(a) read with sections 1, 2, (2), 3, 5, 6
and 7 of the Combating of Rape Act, 8 of 2000 – Rape. One count
of assault with intent to do grievous bodily harm and two counts of
kidnapping. Particulars of offences are that:
1st
Count Kidnapping
In that upon or about 13
December 2003 at or near Luderitz in the district of Ludertiz the
accused did wrongfully, unlawfully and intentionally deprive Paulina
Blom, an 18 years old female, of her liberty of movement by carrying
her from Simon Pius’s place and detained her at the mountain at
a certain grave-yard.
2nd
Count Rape
In that upon or about 13
December 2003 at or near Luderitz in the district of Luderitz the
perpetrator did wrongfully and intentionally commit or continue to
commit a sexual act with Paulina Blom (the complainant) by inserting
his penis into the vagina of the complainant under the following
coercive circumstances:
By the application of
physical force to the complainant; and/or
Threatening by word or
conduct to apply physical force against the complainant; and/or
Threatening by word or
conduct to cause harm to the complainant under circumstances where
it was not reasonable for the complainant to disregard the threats;
and/or
Where the complainant is
unlawfully detained.
3rd
Count Assault with intent to do grievous bodily harm
In that upon or about 23
December 2003 and at or near Luderitz in the district of Luderitz the
accused wrongfully, unlawfully and maliciously assaulted Paulina Blom
by grabbing her and pulling her on the ground giving her then and
thereby certain wounds, bruises or injuries with intent to do the
said Paulina Bloom grievous dodily harm.
4th
Count Kidnapping
In that upon or about 17
December 2005 and at or near Ludeitz in the district of Luderitz the
accused did wrongfully, unlawfully and intentionally deprive Judith
Dora Afrikaner, a 19 years old female, of her liberty of movement by
detaining her in the mountains.
5th
Count Rape
In that upon or about 17
December 2005 and at or near Luderitz in the district of Luderitz the
perpetrator did wrongfully and intentionally commit or continue to
commit a sexual act with Judith Dora Afrikaner (the complainant) by
inserting his penis into the vagina of the complainant under the
following coercive circumstances; and
By the application of
physical force to the complainant; and/or
Threatening by word or
conduct to apply physical force against the complainant; and/or
Threatening by word or
conduct to cause harm to the complainant under circumstances where
it was not reasonable for the complainant to disregard the threats;
and/or
Where the complainant is
unlawfully detained.
6th
Count Rape
In that upon or about 17
December 2005 and at or near Luderitz in the district of Luderitz the
perpetrator did wrongfully and intentionally commit or continue to
commit a sexual act with Judith Dora Afrikaner (the complainant) by
inserting his penis into the vagina of the complainant under the
following coercive circumstances:
By the application of
physical forces to the complainant; and/or
Threatening by word or
conduct to apply physical force against the complainant; and/or
Threatening by word or
conduct to cause harm to the complainant under circumstances where
it was not reasonable for the complainant to disregard the threats;
and/or
Where the complainant is
unlawfully detained.
[2] Ms Mbome represents
the accused on the instructions of the Directorate of Legal Aid while
Ms Nyoni appears on behalf of the State.
[3] The accused pleaded
not guilty to the rest of the counts except the 3rd count
of assault with intent to do grievous bodily harm to which he pleaded
guilty and he was convicted as such.
[4] The accused disclosed
the basis of his defence in respect of counts 1 and 2 by stating that
he did not kidnap the complainant. The complainant went willingly
with the accused on the night of 13 December 2003 from Pius’
bar in order for the accused to take her to her sister’s home
because the complainant was new in town and did not know exactly
where she was. He was only playing a role of a good Samaritan. In
respect of counts 4 – 6 the accused stated that he had never
seen the complainant before. He only came to see her for the first
time when the accused was rounded up by the police and the
complainant was called by the police to identify the accused whilst
he was in a police van.
[5] Pauline Blom the
complainant in the 1st and the 3rd counts gave
evidence as follows:
On 13 December 2003 she
and her brother went to Simon Pius' place. They stayed there till
late. Between 23h00 and 24h00 her brother left her there to check on
a friend. Her brother took long to return. The accused approached her
and offered to take her home. She accepted the offer. They left the
bar. As they were leaving, the accused started to touch her on the
shoulder. She told him to leave her, but instead the accused grabbed
her and held her hands behind her back. Complainant released herself
from the accused’s grip. She ran into a certain yard which had
a gate open. Whilst she was entering the yard there was a man
standing at the doorway and he shut it.
[6] The accused who was
running after her got hold of her and held her hands behind her back
again. He forced her out of the yard by pushing her. He pulled her to
the mountains near the grave-yard. At the grave-yard, the accused
allegedly threatened the complainant by saying that if she did not do
what he said would kill her. He showed her a red pocket knife and
told her to lie down. She was resisting. However, the accused managed
to pull her underpants down with his right hand. He laid on top of
the complainant and had sexual intercourse with her by inserting his
penis into her vagina. After he completed to have sexual intercourse
with her he ordered her to stand up. He told her that he knew where
she was residing and offered to take her home. He took her up to the
gate of the house belonging to the complainant’s niece.
[7] When the complainant
entered the house, she reported to her niece that she was with a man
by the name Ralph. Since it was midnight her niece did not ask
further questions. Complainant could not tell her niece that she was
raped because she was too embarrassed to say it. The niece's
boyfriend was also in the room.
[8] After a week on 23
December 2003, the accused came to the place where the complainant
was residing. She was alone in the outside room. The accused came
knocking at the door. The owner of the house came from the main
house. The complainant and her niece were staying at the outside
room. The owner of the house asked what the accused was looking for
and he said he was looking for the complainant. The complainant
opened the door. By that time she did not know where the accused was.
She requested the owner of the house to call her niece’s
boyfriend. The owner of the house instructed the complainant to go in
his bedroom in the main house. The owner of the house got into his
car and drove away.
[9] After he had left the
accused reappeared. Complainant went in the main bedroom. She hid
behind the wife of the owner of the house who was disabled. The
accused came in the bedroom and pulled the complainant out. He
dragged her outside the house. Outside, the complainant screamed for
help. The accused released her. Complainant jumped over the fence and
ran into a certain house. The accused followed her. Complainant
jumped over a fence and went into another house. At that house there
was a boy and he tried to chase the accused away. Complainant ran to
the next house where she found a lady. The lady inquired from the
complainant whether she knew the accused and the complainant told her
that she did not know the accused. That woman telephoned the police
who came to take the complainant to the police station.
[10] At the police
station the complainant reported the incident regarding the accused
dragging her out of the yard and the rape that took place about a
week ago. Complainant was never examined by a doctor in connection
with the rape case. Complainant further testified that when the
incident happened she did not know Luderitz well because she had just
arrived in Luderitz on 1 December 2003.
[11] Karolina Daniels
testified that the complainant Blom ran into their house. It was the
first time for the witness to see the complainant. The accused was
following the complainant. The witness knew the accused before this
incident. The witness told the accused to leave. She inquired from
the complainant Blom whether she knew the accused. The complainant
said that she did not know the accused except that they met at Pius’
shebeen and the accused raped her at the grave yard. The complainant
told the witness that she did not report the matter to the police
because she did not know where the police station was. The witness
telephoned the police who came and took the complainant. When the
complainant arrived at the witness’, place she appeared to be
scared and she was barefoot. The accused was carrying the
complainant’s shoes.
[12] Mr Coleridge Lento
testified that on 23 December 2003 he heard a knock at Deborah
Mathys’ room. It was the accused knocking. The accused told the
witness that he was looking for a girl. The complainant jumped
through the window and ran to the witness’ room. The accused
followed the complainant in the witness’ room and grabbed her.
The witness left the house and when he returned he found the
complainant gone.
[13] Nicolene Daniels
testified that on 23 December 2003 she was at home washing clothes.
Whilst there she heard a noise. She looked around and saw the accused
person wrestling with the complainant. The accused was known to the
witness before this incident. The complainant released herself from
the accused and ran away. Her shoe fell down and she picked it up.
The girl jumped over the fence and ran into the house and locked
herself in the room. The accused followed her shouting that the
complainant was his girlfriend. The complainant screamed that the
accused was not her boyfriend and that he wanted to kill her. The
accused was closed out of the house. Whilst he was outside the house
he picked up a quarrel with one of the witness’ uncle. The
witness’ aunt called the police. The witness described that
when the complainant entered the house, she appeared to be confused,
full of dust and was crying.
[14] Francis Deborah
Matthys testified that the complainant Blom is her cousin. On 14
December 2003, the complainant came around 02h00 in the witness’
room. The witness was in bed with her boyfriend. When the complainant
entered she said something terrible happened to her but she will tell
her the following day. The witness forced the complainant to tell her
and the complainant told her that a certain Ralph wanted to stab her
with a knife. Complainant started to cry after she said that.
Complainant further said she wanted to run away from the person and
she fell on a broken bottle and it cut her on the hand. The witness
could not see the wound because it was dark. After that they both
slept. On 17 December 2003, the complainant asked the witness to
assist her to wring a cloth because the complainant was in pain. It
was at that stage that the witness realised that the complainant was
injured on her hand. She told the complainant to go to the clinic but
she refused.
[15] On 23 December 2003,
the witness was renting at Mr Coleridge’s house when she
received a report from Mr Coleridge that the accused was bothering
the complainant. Later on the complainant telephoned her from Woman
and Child Protection Unit. When the witness went there that is when
she heard for the first time that the complainant was raped. The
complainant was new in Luderitz at the time she was allegedly raped.
She (witness) testified that although she knew the accused, she never
invited him to her place.
[16] Sgt Petrus Nyaba
testified that he was the investigating officer in the matter of
complainant Blom. On 23 December 2003 the complainant was brought to
his office at Woman and Child Protection Unit by a charge office
member. The complainant had also reported the assault that took place
on 23 December 2003 and how it happened. The complainant furthermore
reported a rape case that took place on 13 December 2003 in a certain
room at the graveyard. The accused took her to the graveyard. She
stated that the accused threatened to kill her with a knife if she
did not comply with his instructions. She further told him how she
met the accused, what happened when they left the club in relation to
this case and what happened before and after the accused had sexual
intercourse with her. Sgt Nyaba’s evidence in this regard
corroborated the evidence of the complainant in relation to what she
had told the police. It was Sgt Nyaba’s further evidence that
where the complainant was allegedly raped was next to the tarred road
or main road and there was street light. The place is also near the
prison and the lights from the prison provided lights to the place
where the incident took place.
[17] According to Sgt
Nyaba, although he informed the scene of crime officers in
Keetmanshoop to visit the scene where the alleged rape took place,
they did not turn up.
[18] Mina Ntlai was
called by the state in respect of counts relating to complainant Dora
Judith Afrikaner and her testimony may be summarised as follows:
On 17 December 2005 in
the early hours of the morning her friend Jackie and her husband
dropped her home. As she was dropped off, she was approached by a
certain lady who was looking for the gambling house. The lady stated
that she was new in Luderitz. The lady appeared to be frightened and
worried. She was shivering. The witness asked her if all was well and
she explained to her that there was an uncle who wanted to rape her.
She then said she was raped by him. The lady was carrying a bag
containing clothes. The lady pointed at a white house next to a
double storey and said that she was raped at that house. The incident
took place at the outside room of that house.
[19] Ms Ntlai and her
companion decided to take the lady to the police station. On the way
Ms Ntlai asked the lady whether there was any proof to show that she
was raped. The lady stated to her that she cleaned her vagina with a
towel. Ms Ntlai advised the lady to give the information to the
police. When the lady showed Ms Ntlai the house where she was
allegedly raped Ms Ntlai was able to identify the house because, she
knew the house before and she was able to see it. The house is in the
same street where she was staying and it is the fifth house from her
residence. She was also aware that the accused was staying in the
said house. Ms Ntlai was aware that behind the white house there was
a structure made of planks and zink plates.
[20] The complainant in
the 4 – 6 counts Judith Dora Afrikaner testified that on 17
December 2005 she travelled from Windhoek to Luderitz to visit her
aunt by the name Susan Brinkman. Her mother gave her instructions
that when she arrives in Luderitz she must be dropped off at a place
called Photo Fun where her aunt was going to meet her. Unfortunately
the complainant did not arrive on time in Luderitz because the
vehicle by which she was travelling got a puncture.
[21] The complainant was
dropped off at Photo Fun opposite a disco place. It was the first
time for the complainant to visit Luderitz. She waited at Photo Fun
but her aunt did not turn up. The accused came to the place where she
was standing and she asked him whether he knew her aunt Susan
Brinkman. She requested him to assist her since it was her first time
in Luderiz. The accused agreed to take the complainant to the
gambling place where her aunt was supposed to be. The accused took
the complainant’s bag. As they were walking the accused was
asking the complainant’s name, how old she was and where she
was born. They walked but they did not come across a gambling place
although the accused indicated that there were three gambling places
in Luderitz. The accused took the complainant to a certain structure
behind a house. He told the complainant that she was going to sleep
at his house because it was getting late.
[22] The complainant
refused and walked away. The accused followed her. He offered to take
the complainant to town but instead he led her to a dark side of the
town. As they were walking he put the complainant’s luggage
down, grabbed her on the shoulder and pointed a knife on her neck and
made her to lie on the ground. The complainant screamed, because she
was scared of the knife. She pleaded with the accused not to kill
her. The accused pulled the complainant and told her to comply with
whatever he was telling her to do. He threatened to injure the
complainant should she scream. He pulled her to the mountain. The
complainant was covering herself with a towel. The accused took the
towel and told her to lie down on the towel. He undressed the
complainant and had sexual intercourse with her by inserting his
penis into her vagina. The accused ejaculated inside the complainant.
After he ejaculated, he told the complainant to get dressed.
[23] The accused took the
complainant to the room that was behind the house. He closed the
room, he undressed her and he again had sexual intercourse with her.
After he finished he told her that he was going to fetch some water
and that he would be back soon. He locked the complainant inside the
room. The complainant got dressed and threw her luggage or bag
through the window. She jumped through the window. She ran into the
second yard. Whilst she was there, she heard a car coming and people
talking. She ran to the people who were in the car. The car had
stopped at a certain house. The complainant asked for assistance from
these people and they took her to the police station. This piece of
evidence corroborates the evidence of Ms Ntlai that she and her
friends took the complainant to the police station.
[24] At the police
station the complainant was questioned but she was not in a position
to respond because she was in pain and tears. She was referred to the
office of Woman and Child Protection Unit. The complainant told the
people at Woman and Child Protection Unit what happened and that she
was helped by people who were in a Pajero vehicle. She and the
officers went to the place where the owner of the Pajero stays
because when the complainant described the vehicle they recognised
it. The lady who owns the Pajero vehicle explained to the officers
where they found the complainant and she took the complainant and the
officers to the house that was pointed out by the complainant as a
place where she was allegedly raped.
[25] The complainant
proceeded to testify that at the time she was approached by the
accused, there were street lights at Photo Fun. She clearly looked at
the accused. She gave a description of the accused as a little bit
tall; wearing a black beret; black jacket, grey trousers and boots.
He was also wearing dread locks or Rasta hair style. His complexion
was dark brown. At the structure behind the house she was able to see
the accused because the light was on. She estimated to have been in
the company of the accused for about an hour and half. She confirmed
that she pointed out the house to the lady where she was raped
because it was clear and the house was in the corner. She showed the
house where she was allegedly raped whilst she was at the place where
she found the lady who assisted her. The complainant further
testified that she indicated the spot where she was allegedly raped
at the mountain to the police and the structure where she was
allegedly raped at the white house. The police photographed the
scene.
[26] It was put to the
witness through cross-examination that the accused did not have a
Rasta hair style at any stage in his life. The witness responded that
he had a Rasta hair style.
[27] Daniel Hange a
constable in the Namibian Police testified that on 17 December 2005
at about 04h00 he was on duty when the complainant, Ms Afrikaner,
reported that she had been raped by an unknown man. She indicated
that she would be able to identify him if she saw him. The
complainant was crying; she appeared to be emotional. Her trousers
were full of dust. He calmed her down and she narrated the story to
him. He referred her to Warrant Officer Rosa Tjihavero of the Woman
and Child Protection Unit. The witness, Warrant Officer Tjihavero and
the complainant drove to town for the complainant to show them the
place where the incident happened. They drove around the area but the
complainant was unable to point out the scene of crime. Because of
the complainant’s failure to point out the scene of crime they
decided to look for the people who dropped the complainant at the
police station. They traced the vehicle that dropped the complainant
at the police station. One of the ladies who dropped the complainant
at the police station stated that they found the complainant in
Jakkalsdraai street and referred them to Mina Ntlai.
[28] On the way to Ms
Ntlai’s place the complainant told them to stop the vehicle
because she recognised the house where she was taken by the accused.
They went to the structure that was in the yard at the house, but
they did not find anybody there. The complainant described her
assailant to be dark in complexion whose height was about 1,70 to
1,80 cm tall, who had Rasta hair style and looked like Xhosa speaking
people.
[29] Warrant Officer Rosa
Tjihavero also testified and her evidence corroborates that of
Constable Hange as to what they were told by the complainant and how
the complainant identified the house where she was allegedly raped.
W/O Tjihavero also testified that the back room where she and Const.
Hange were taken by the complainant was not the only place where she
was raped. They proceeded to the second scene of crime but the
complainant’s state of mind started to deteriorate before she
pointed out the scene. Complainant was taken to the doctor. The
following day the complainant pointed out the second scene of crime
which was just a distance from the first scene of crime. The second
rape allegedly took place at the only mountain in front of the
accused’s place. Warrant Officer contacted Constable Hill from
the scene of crime unit to come and take photos of the alleged scene
of crimes.
[30] Warrant Officer
Tjihavero observed that at the time the complainant reported the
matter to her she was traumatized. He took custody of a towel which
the complainant allegedly used to wipe off sperms from her private
parts after the accused allegedly raped her. The towel was forwarded
to the laboratory for scientific examination.
[31] Warrant Officer
Tjihavero saw the accused at a later stage at the police station. The
accused had Rasta hair style, dark brown colour mixed and he is also
Xhosa- speaking. Warrant Officer Tjihavero testified that the
complainant pointed out the accused as the person who raped her at a
certain room at the police station. This is contrary to the evidence
of the complainant who testified that she pointed out the accused
when he was brought at her aunt’s home whilst he was in a
police van.
[32] The witness further
testified that she took the complainant Afrikaner to the doctor. She
also took a rape kit and a J88 form to the doctor who examined the
complainant. The witness identified the towel that was used to clean
the complainant’ and private parts after the accused allegedly
had sexual intercourse with the complainant as well as the underpants
that were worn by the complainant during the incident. The towel and
the underpants appeared to have what looked to her like semen at the
time they were given to her. The underpants and the towel were put in
an envelope to prevent contamination. During the examination of the
complainant, samples were taken namely blood samples, saliva swabs,
vaginal swabs introitus and vaginal swab extroitus. The rape kit of
the complainant that was sent for forensic analysis contained the
following:
1 x swatch from the
complainant’s clothing;
3 x swatches from the
towel;
Saliva swab from the
complainant;
Blood sample (dried) from
the complainant;
2 x vaginal swabs from
the complainant;
The accused’s rape
kit contained FTA™ card of accused, and
Saliva swab of accused.
[33] All the above
exhibits were put in forensic evidence bags and sealed properly and
were forwarded to National Forensic Science Institute by Sergeant
Sisamu on 7 July 2006.
[34] Warrant Officer
Petrus Nghihepa gave evidence that he took the accused to the doctor
after he was arrested in connection with this case. The doctor
examined the accused and the samples obtained from the accused were
put in a plastic evidence bag and sealed by the doctor. After the
doctor had examined the accused and the complainant, he was given
forensic bags for the accused and the complainant that were sealed
and put in envelopes by the doctor. He was given both rape kits for
the accused and the complainant for processing. He sealed the two
envelopes with seal numbers. The envelopes were not tampered with
whilst they were in his custody until when he took them to
Keetmanshoop for them to be forwarded to Windhoek. The witness
identified Exhibit 7, the form he completed in respect of the rape
kit of the complainant and the accused when he forwarded them to
Keetmanshoop Scene of Crime Unit. The envelopes containing the rape
kits were marked with seal numbers and CR number.
[35] The witness further
testified that apart from taking the accused person to the doctor for
the first time, he took the accused for the second time to the doctor
after the court made an order on 10 October 2011 for bucal swabs to
be taken from the accused. The accused was taken to the clinic at
Israel Patrick Iyambo Police College. The rape kit was opened in the
accused’s presence by the doctor. Doctors Ludik and Vasin
attended to the accused. Doctor Vasin took bucal swabs from the
accused. Thereafter it was sealed in his presence and put in a box.
The box was sealed as well and put in a laboratory bag that was also
sealed. The accused witnessed the whole process. After the bag was
sealed it was handed over to the witness who took it personally to
the National Forensic Science Institute for forensic examination.
Before the witness took the bucal swabs for forensic examination he
completed a form and wrote the CR. No, unit contact No, the name of
the person handling the exhibits and the laboratory number on it.
This form was identified and marked as Exhibit “H”. The
kit also had a seal number.
[36] Sgt Sisamu testified
that on 7 July 2006 he received two rape kits, one for the
complainant and another one for the accused with CR. No 38/12/2005
Luderitz from Sgt Goaseb and forwarded them to National Forensic
Institute where they were given a reference No. 555/2006. The rape
kits were not tampered with because they were still sealed when he
received them from Sgt Goaseb and they were not tampered with since
they were in his custody.
[37] Doctor Paul Stefan
Ludik the Director of the National Forensic Science Laboratory
testified that some samples were collected from the complainant
Afrikaner and the accused person for DNA analysis. Ten samples were
collected. However, only two out of the ten samples yielded
sufficient DNA results after their analysis. The purpose of the
analysis of the samples was to compare the samples found at the crime
scene with regard to its genetic content or the DNA content of the
known or reference samples. However, the result could not assist the
court in its current status. The known or reference samples did not
yield any DNA sufficient for matching purpose.
[38] The introitus
vaginal swab from within the vaginal vault of the complainant yielded
sufficient DNA for comparison purposes. Amongst others it yielded a
full male profile. There was no sample yielded from the known or
reference samples. Had there been any, it would have been compared to
the introitus vaginal swab sample.
[39] Counsel for the
state having considered the above scenario, she moved an application
in terms of section 37 (3) read with section 37 (1) of the Criminal
Procedure Act 51 of 1977 for the court to make an order for bucal
swab samples to be taken from the accused. The bucal swabs from the
accused if they are to be compared with the introitus vaginal swab
sample which has yielded a male profile could assist the court by
excluding or including the accused with certainty.
[40] The accused opposed
the application and indicated that samples were already taken from
him at the time of his arrest and sent for analysis. His fear was
that if samples had to be taken from him again for DNA analysis they
would be mixed up with the samples already taken.
[41] The court made an
order in terms of section 37 (1) (c) read with subsection (2) (a) of
the Criminal Procedure Act for the doctor to take samples of bucal
swabs from the accused to ascertain whether the body of the accused
has any mark, characteristic or distinguishing feature or shows any
condition or appearance after having considered the evidence placed
before it.
[42] After the order was
made, Dr Ludik testified further that the bucal swab samples were
obtained from the accused and they were forwarded to British Columbia
Institute of Technology in Canada for analysis and comparisons. The
samples were collected from the accused by Dr Vasin in the presence
of the witness as he (witness) was responsible for co-ordinating the
collection process. He also took photos of the whole process and
recorded all the steps taken. He compiled a photoplan after he
explained it in court it was admitted in evidence and marked as
Exhibit “J”.
[43] Doctor Jurie Voisen
Vasin confirmed the evidence of Dr Ludik that, he Dr Vasin, indeed
took the bucal swabs from the accused person. He explained the
procedure he used during the process and the whole process was shown
and explained to the accused. The collection kit used was in the
sealed box with a seal and the seal was intact. It had a barcode and
digital transcription along the barcode. The seal number on the kit
he used was 11NAAA0271. Dr Vasin had also compiled a medical report
form concerning the steps taken during the collection process. The
medical report by Dr Vasin was identified during evidence and
admitted as part of evidence and marked as Exhibit “L”.
He further identified the photo-plan compiled by Dr Ludik that was
admitted in evidence and marked as Exhibit “M”. According
to the witness, the sealed kit that was sent to Canada was the same
kit he used when he was collecting samples from the accused.
[44] Warrant Officer
Michael Goaseb testified that he attended to the scene of crime in
respect of complainant Afrikaner of which he took photographs. He
also received exhibits from Sgt Nghihepa. He received two rape kits
in respect of Afrikaner and the accused. The exhibits were sealed in
plastic bags and were not tampered with. He recorded the exhibits in
the exhibit register and forwarded them to Windhoek Scene of Crime
office. In Windhoek, he handed the exhibits to one of the sergeants.
He and that sergeant took the exhibits to the laboratory for further
investigation.
[45] Maryn Swart who was
employed as a Chief Forensic Scientist at Forensic Science Institute
in Windhoek testified that exhibits pertaining to CR No 38/12/2005
were submitted to National Forensic Science Institute by Sergeant
Sisamu. The report No. was 555/2006 - R1. A rape kit in respect of
the complainant and a rape kit in respect of the accused were
received. Exhibits were sealed upon examination. Exhibit “A”,
ABA card p 30 confirmed the presence of semen on the introitus
vaginal swabs. The ABA card p 30 confirmed the presence of semen on
the panties of the complainant and the ABA card p 30 confirmed the
presence of semen on the towel. (See page 392 of the record for the
explanation of the terms 'ABA card and p 30'). According to Ms Swart,
when exhibits are received at the laboratory, the standard procedure
is that photographs depicting the exhibits are taken in order to
indicate the condition in which the exhibits were received and later
to show it to the court. She identified photographs of the rape kits
before they were opened and the contents of the rape kits. The report
compiled by Ms Swarts was admitted in evidence as Exhibit ‘R’.
[46] After Ms Swarts
compiled a report on 16 March 2010, she received a request for DNA
examination. The exhibits were reprocessed and packed according to
standard procedures and sent for DNA analysis to British Columbia
Institute of Technology (BCIT) in Canada. On 14 December 2010, the
exhibits were subjected to further examinations. She referred the
court to report 555/2006 R 2. The rape kit of the complainant and
that of the accused were sent for DNA analysis. During the analysis,
a comparative sample to compare the evidence is needed to see whether
the accused is excluded or included. The blood sample from the
accused’s rape kit was transferred to the FTA card and sealed
in a forensic evidence bag number NFB12540. (For explanation of FTA
card see page 375 of the record). The FTA card of the accused was
sealed in evidence bag. The saliva swab of the accused was sealed in
forensic evidence bag No. NFB12539. Both evidence plastic bags were
sealed in NFB12541. The piece from the underpants of the complainant
was sealed in evidence plastic bag NFB125337. Three swatches of the
towel were sealed in evidence plastic bag NFB12536. The saliva swab
from the complainant’s rape kit was sealed in NFB12534. The
vaginal swab from the complainant’s rape kit was sealed in
NFBI2533. On 16 December 2010 the exhibits pertaining to this case
were sent to the BCIT for DNA analysis. The exhibits were sealed in
an overall forensic evidence bag NFE09387. When the exhibits are in
the bag mentioned above there is no evidence for them to be mixed and
contaminated.
The exhibits that were in
the forensic evidence bag NFB 12537, one swatch from the
complainant’s panty, NFB 12536 three swatches from the
complainant’s towel, and NFB 12535 a saliva swab from the
complainant’s rape kit, NFB 12534 blood sample (dried) from the
complainant’s rape kit; NFB 12533 - 2 vaginal swabs from the
complainant. Exhibit’s NFB 12540 which was an FTA card from the
accused there was blood on it, NFB 12539 saliva swab from the
accused. The report 555/2006 was marked as Exhibit “R”.
After the samples were sent to BCIT and examined, the accused’s
samples submitted for DNA analysis yielded insufficient result for
DNA comparisons and samples from the accused were collected and
resubmitted. These further samples were received from Warrant Officer
Nghihepa, namely one rape kit for the accused on 25 October 2011. The
exhibits were sealed upon examination in the tamper proof forensic
evidence collection bag marked NFM 01406. There were two seals one
was broken because when the medical officer receives the rape kit it
was normally sealed and he should break it. After the collection of
samples the rape kit has to be sealed with a new seal. This was the
reason why there were two seals in the forensic bag. There was also
an easy collect device and number 11NAAA0271EC within the box in a
sealed tamper proof forensic evidence bag, which was designated NFB
12467. The FTA was removed from the easy collect device and sealed in
the envelop 11NAAA0271EC. The evidence was sealed in forensic
evidence collection bag NFB12427 and this was submitted to the BCIT
in Canada for DNA analysis through courier services.
[47] The witness further
identified a report from BCIT that was marked exhibit “Q”.
In the report numbered 555/2006 R 3 exhibits, it was stated that the
BCIT report exhibit “Q” the items pertaining to this case
were received from Mrs M Swart on 3 November 2011 at BCIT NFE 09179
OCS courier. Exhibit FTA card is 11 NAAA0271EC which was in NFB
12428.
[48] Steen Hartsen from
BCIT, Vancouver, Canada gave evidence to the effect that he worked on
samples that were received from NFSI (Namibia) in relation to case no
555/2006. The samples were shipped to him via courier in two separate
batches. One was obtained in January 2011 and the other in November
2011.
[49] Three swatches were
received, vaginal swab introitus and vaginal swab extroitus. (witness
referring to samples from complainant’s rape kit exhibit ‘A’)
and a known sample referred to exhibit B (accused rape kit) which
contained blood sample and two additional saliva swabs. The witness
referred the court to the report dated 5 October 2011. The report of
the samples received in November was labelled 2011/D277/1. Another
sample was received namely NFTA card and a known sample on 3 November
2011. The report is labelled report number 2011/D277/2 dated 20
November 2011. According to the witness the samples received from
NFSI (Namibia) were not tampered with.
[50] The samples received
in January 2011 were in larger evidence bags that contained small
evidence bags. One of the bags was opened, closed and sealed with a
DHL seal and the other bag was not opened. There were two larger bags
containing small evidence bags. The two large evidence bags contained
the separate different cases. The samples were in separate individual
evidence bags inside the large evidence bags and when he examined
those smaller evidence bags as he was doing his analysis he did not
see any evidence of tampering on those small evidence bags as the
bags were sealed by NFSI. On 5 January the witness filled in a
receipt form which is entitled 'movements of the samples from the
National Forensic Science Institute in Namibia to the British
Columbia Institute of Technology'. The content of the movements of
samples form was read into the record and marked as Exhibit “N”.
[51] The witness further
testified that on 3 November 2011, he took possession of further
samples in connection whit this case which he received from Dr
Hildebrand. He photographed the evidence bag NFB-12427 from NFSI. He
had also received evidence bag NFB 12428. NFB 12428 contained NFTA
card. On the bags which were received from NFSL, there was a barcode
11NAAA0271EC. The witness identified case receipt form dated 3
November 2011 and marked as Exhibit O. All the samples which were
received in respect of this case on 5 January and 3 November 2011
were analysed by the witness. After he analysed the samples he
compiled two reports.
[52] The first Laboratory
report Exhibit “P” report No. 2011 – D 277-1 dated
5 October 2011 was read into record as below:
Subject: DNA testing
BCIT Laboratory file no.
2011-D277 External Agency file no. 555/2006. The following items
pertaining to this case were received from Mrs M Swart on 5 January
2011 at B.C Institute of Technology (Bag NFE-09387 via DHL Courier).
Exhibits no (external)
Swatch A2.1 BCIT exhibit No. 2011-D277-Q1 Source NFB – 12536
was submitted. DNA Swatch A2.2 external No. 2011-D277-Q2 (BCIT No,
source NFB – 12536, Swatch A2.3 external No, BCIT No. 2011 –
D 277-Q3 source NFB-12536.
Swatch A1 (external No.)
2011-D277 Q4 source No. NFB–12537. Vaginal swab extroitus
(external No) (BCIT No) 2011–D277–Q5 source NFB 12533;
vaginal swab Introitus (external No) 2011–D277–Q6 (BCIT
No) source NFB–12533. FTA card (Exhibit “B”)
(accused) (external No) (BCIT No) 2011–D277–K1 source
NFB–12540. Saliva swab external No. 2011–D 277– K2
(BCIT No) source NFB–12535; saliva swabs NFB–12539 BCIT
No. 2011–D277–K3 were submitted for DNA analysis.
However, blood sample
(external) (BCIT No) 2011–D277–K4 source NFB–12534
was not submitted to him for analysis. Exhibits were processed and
results interpreted (where applicable) in accordance with the
laboratory’s standard operating procedure.
[53] DNA conclusions were
as follows:
'(1) With respect to
exhibit K1 (FTA card; exhibit B):
(a) Sample K 1-1 cutting)
yielded insufficient amplifiable human DNA to proceed with STR
analysis.
(2) With respect to
exhibit K2 (saliva swab):
(a) Sample K2-1 (cutting)
yielded insufficient human DNA to proceeed with STR analysis.
(3) With respect to
exhibit K3 (saliva swab):
(a) Sample K3–1
(cutting) yielded insufficient amplifiable human DNA to proceed with
STR analysis.
(4) With respect to
exhibit Q1 (swatch; A2.1)
(a) Sample Q1–1
(cutting) yielded insufficient human DNA to proceed with STR
analysis.
(5) With respect to
exhibit Q2 (swatch; A2.2):
(a) Sample Q2 – 1
(cutting) yielded insufficient human DNA to proceed with STR
analysis.
(6) With respect to
exhibit Q3 (swatch A2.3):
(a) Sample Q3-1 (cutting)
yielded insufficient human DNA to proceed STR analysis.
(7) With respect to
exhibit Q4 (swatch; A1):
(a) Sample Q4–1
(cutting) yielded sufficient DNA to proceed with DNA profiling and
resulted in a mixed profile consistent with having originated from 3
individuals (at least one of which is male).
(i) The profile of the
female contributor designated as “female – 1”, is
suitable for comparison purposes.
(ii) The profile(s) of
the male contributor(s) are not suitable for comparison purposes.
(8) With respect to
exhibit Q5 (vaginal swabs Extroitus):
(a) Sample Q5 –
1(cutting) yielded insufficient human DNA to proceed with STR
analysis.
(9) With respect to
exhibit Q6 (vaginal swab Introitus):
(a) Sample Q6–1
(cutting) yielded sufficient DNA to proceed with DNA profiling and
resulted in a full profile that is suitable for comparison purposes.
The donor of this profile is male and is designated as “Unknown
male–1”, because there were no reference profiles. No
male reference sample to compare at the time. No sufficient
information or useable DNA to get a genetic profile and as such it
was deemed insufficient for comparison. purposes...'
[54] Mr Hartsen proceeded
to testify about the second report he compiled (report No.
2011–D277–2) dated 20 December 2011.
The subject of the report
DNA testing BCIT Laboratory file No. 2011–D277, external agency
file No. 555/2006. The following exhibits or items pertaining to this
case were received from Mrs M Swart on 5 January 2011 at British
Columbia Institute of Technology (Bag NFE–09387 via DHL
Courier).
Exhibit No (external)
Blood sample (Judith Dora) (NFB– 12534) BCIT Exhibit No.
2011–D277–K4 description blood sample source Judith Dora
- Known (complainant).
[55] The following items
pertaining to this case were received from Mrs M Swart on 3 November
2011 at British Columbia Institute of Technology (Bag NFE–09179
via OCS Courier).
Exhibit No (external).
FTA Card (11NAAA0271EC) (NFB–12428, BCIT Exhibit No
2011–D277–K5 description: FTA card, source: known male.
Analysis Requested:
Exhibits were processed
and results interpreted (where applicable) in accordance with the
laboratory’s standard operating procedures. This is s
supplemental report to report No. 2011–D 277-1 (dated 5 October
2011).
DNA Conclusions:
1. With respect to
exhibit K4 (Blood Sample; Judith Dora):
(a) Sample K4-1 (aliquot)
yielded sufficient DNA to proceed with DNA profiling and resulted in
a full profile that is suitable for comparison purposes. The donor of
this profile is female.
(i) The profile of the
female contributor (Q4-1, Swatch; “Female-1” as reported
in Report D277-1) matches that of the known sample (K4-1; Judith
Dora). The estimated probability of selecting an unrelated individual
at random from the CFS Caucasian population with the same profile is
1 in 9 billion.
2. With respect to
exhibit K5 (FTA Card; 11NAAA0271EC):
(a) Sample K5-1 (cutting)
yielded sufficient DNA to proceed with DNA profiling and resulted in
a full profile that is suitable for comparison purposes. The donor of
this profile is male and is designated as “known male–1”.
(i) The profile of the
male contributor (Q6-1, vaginal swab introitus; “unknown male
-1” as reported in Report D277-1) matches that of the known
sample (K5-1 “Known male-1”). The estimated probability
of selecting an unrelated individual at random from the FBI Caucasian
population with the same profile is 1 in 450 billion.
The report was admitted
in evidence and marked as exhibit “Q”.
[56] After the state had
closed its case the accused gave evidence under oath. He called no
witnesses. In respect of the complainant Paulina Blom the accused’s
evidence can be summarised as follows:
On 13 December 2003 the
accused was at Simon Pius’ Pub or bar socializing with his
friends from late afternoon until the late hours. He was drinking
with friends. Around 23h00 he saw the complainant seated and
requested her to dance with him to which she agreed. They introduced
each other. Whilst they were dancing, the complainant (Paulina Blom)
told the accused that she was knew in town and she did not know how
to get back home from the bar. She informed him that she was staying
with a cousin who was renting at the big man’s house known as
Uncle Coleridge. The accused offered to take her home since he knew
the house. The accused and the complainant walked to that house. She
knocked, entered the house and the accused also left.
[57] On a Friday, the
accused and the complainant met again at Eddy’s Bar. The
complainant was in the company of her cousin. The complainant told
her cousin that accused was the guy who escorted her home on 13
December 2003. Deborah is the name of the complainant’s cousin.
The cousin invited the accused to visit them on a Saturday. That the
cousin had invited the accused was denied by her. The accused
continued with his evidence by stating that on Saturday he visited
the complainant and her cousin. He found Deborah busy washing and the
complainant was standing on the doorway. The accused was given a
chair to sit and a drink and the three of them started to chat.
Accused and the complainant agreed to meet at Pius’ Pub the
following day but the complainant never pitched.
[58] On a Tuesday, the
accused went to the place where the complainant was staying in order
to take her out to the beach because when the accused escorted the
complainant the day they met the complainant informed him that she
had never been to the beach and the accused promised to take her
there. When the accused arrived at that house he found the
complainant in the company of the owner of the house. The complainant
told the accused to wait for her. She and the owner of the house went
inside the main house. The owner of the house drove to town. The
accused entered the main house and found the complainant with the
wife of the owner of the house. The owner of the house’s wife
asked what the accused was looking for. The complainant appeared to
have changed her mind to go to the beach and the accused suspected
the owner of the house of gossiping about him in front of the
complainant.
[59] The accused left
with the complainant. Whilst they were walking, the complainant went
into a certain yard. The complainant had made the accused to believe
that they were going together but instead she changed her mind whilst
on their way. The time the complainant went in the yard she tripped
and fell down. The accused decided to go and get the complainant from
the yard but the people who were there stopped him and they chased
him away. It was further the accused’s evidence that before he
and the complainant left the house of Mr Coleridge they had an
argument. He denied having argued with the complainant at any stage
whilst they were on the way. On 27 December 2003 the accused was
arrested whilst he was at home. The reason for the arrest was because
the complainant had laid charges against him. A rape charge that
allegedly took place on 13 December 2003 and a charge of assault that
allegedly took place on 17 December 2003.
[60] The accused disputed
having quarrelled with the complainant on the way from Pius’
Bar. He disputed that he held the complainant’s arms backwards
or that he threatened her with a knife. He denied that he ever
forcibly took the complainant to the mountain, because from Pius’
Bar he escorted the complainant home and left after she had entered
the house. He disputed that he took the complainant to the grave
yard, threatened to kill her and raped her. The accused testified
that he knew the owner of the house where the complainant was before
this incident and that he knew the complainant’s cousin by
sight.
[61] The accused further
testified that the complainant never jumped out of the room through
the window as it was testified by a State witness. He denied having
dragged the complainant from Mr Coleridge’s house and having
fought with her. The accused also denied that he had chased the
complainant up to Caroline Daniels’ house. He said he only
followed her when the complainant jumped over the fence. It was again
the accused’s testimony that on 13 December 2003 the
complainant went willingly with the accused when he escorted her
home.
[62] In respect of the
rape that allegedly took place on 17 December 2005 where, Judith Dora
Afrikaner is the complainant, the accused’s testimony is as
follows:
The accused said he was
at home from 23h00 at Jakkalsdraai in the outside room. The house had
had a white paint at the back but in front it was grey because it was
not painted. The accused’s room was made of corrugated iron
sheets. The accused disputed that he met the complainant Afrikaner on
17 December 2005 and took her to the mountain or to his room. He
denied having raped the complainant or having been near Club Step Inn
on 17 December 2005. The accused only came to know about the rape
case after he was arrested and taken to the hospital for examination.
From there the accused was taken to the complainant’s house
where the complainant pointed at him as the culprit. There has never
been an identification parade. The accused was the only person taken
to the complainant. The accused denied that he had a Rasta hair style
during 2005. The accused further testified that he does not agree
with the DNA result that linked him to the commission of the crimes.
[63] That concludes the
summary of the evidence presented by the state as well as by the
defence.
[64] I will briefly deal
with the submissions made by the respective counsel. Starting with
the submission of counsel for the state in respect of count 1
(kidnapping) and count 2 (rape) committed against the complainant
Pauline Blom, counsel for the state argued that the accused should be
found guilty in respect of counts 1 and 2. The state based its
argument on the grounds that although the complainant had consented
to being escorted home by the accused, the kidnapping started at the
stage when the accused and the complainant were outside Simon Pius’
Bar when the accused started to touch the complainant on her
shoulder. She protested, the accused grabbed her and held both her
hands behind her back. Thereafter the accused forcibly led her to a
grave-yard on top of a mountain where he kept her for about two hours
against her will.
[65] She referred this
court to the definition of kidnapping and that the offence of
kidnapping is committed even if the duration of confinement of the
complainant against her will was not for a long time. She referred
the court to authorities in this regard.
[66] As far as the rape
charge in respect of Ms Blom is concerned, counsel for the state
argued that after the accused took the complainant to the grave-yard,
the accused threatened to kill the complainant if she did not comply
with his instructions. The accused showed the complainant a red
pocket knife and instructed her to lie down. When she tried to
resist, the accused pulled down her under pants with his right hand
while his left hand was holding the knife. The accused had sexual
intercourse with her. Counsel for the state further argued that the
accused, by forcibly taking the complainant to the grave yard and by
threatening to kill her with a knife in order to induce her to submit
to a sexual act amounts to coercive circumstances.
[67] Counsel for the
state further argued that the issue of identity of the accused does
not arise because there is no dispute that it was the accused who
left with the complainant from Pius’ Bar. Although the accused
disputed having kidnapped the complainant and having raped her at the
mountain, the accused himself testified that after the complainant
left Pius’ Bar willingly with him he escorted the complainant
to the house where she was staying. Concerning the issue of
visibility at the place where the alleged rape took place, counsel
for the state submitted that the complainant testified that she could
see with the aid of streetlights that were coming from the road side.
Her evidence was collaborated by the testimony of Sgt Nghihepa that
the grave yard is next to the main tarred road and that there were
street lights.
[68] Counsel for the
state continued to argue that the complainant did not know the
accused before this incident. If it was true that all what the
accused did was to do the complainant a favour and take her home, the
complainant would have been grateful to this accused for the kind
gesture. The complainant when she arrived at home told her cousin
that something terrible had happened to her that night of the 13
December 2003. Complainant also testified that she was injured on the
hand when she fell on a broken bottle while she was running away from
the accused that same night. That was the reason she had to request
her cousin to assist her to wring her washing cloth. The evidence of
the injuries was corroborated by Deborah, the complainant’s
cousin. Counsel for the state argued further that the accused by
saying that on 17 December 2003 he visited the complainant and her
cousin on their invitation after the complainant introduced him as
the person who took her home on 13 December 2003 runs counter to the
totality of the evidence of the complainant. When complainant learned
that the accused was knocking at the door her reaction could not be
consistent with the accused’s version that he had come to pick
her up in order to take her to the beach.
[69] It was again counsel
for the state's submission that the fear and resistance put up by the
complainant on 23 December could only be attributed to the fact that
the accused had done something bad previously to her. Although the
complainant did not report that she was raped that night, no adverse
inference should be drawn against the complainant by her failure to
report immediately. It was counsel for the state’s further
submission that there is circumstantial evidence that tends to
support the complainant’s testimony that the accused person
raped her. When the evidence is looked in its totality the
explanation by the accused could not be reasonably possibly true.
Therefore, counsel for the state urged the court to reject the
accused’s version and convict him as charged.
[70] Counsel for the
state further argued that although the complainant is a single
witness the court may convict on the evidence of a single witness if
such evidence is clear and satisfactory. This court was referred to
several authorities concerning the approach of evidence of a single
witness, by the courts.
[71] As regards counts
4–6 in respect of complainant Judith Dhora Afrikaner, counsel
for the state submitted that after the accused offered to assist the
complainant to take her to her aunt’s place, instead the
accused took her to his room. He suggested that the complainant
should spend a night there. After she refused and turned back, he
grabbed her and ordered her to lie on the ground. He threatened her
with a knife. The complainant was kept for about an hour before she
managed to escape. The act of keeping the complainant against her
will amounted to a deprivation of complainant’s liberty of
movement which is an offence of kidnapping. The complainant saw the
accused at Photo Fun where there were street lights. Complainant
again testified that at the structure where she was taken there were
lights. It was further Counsel’s argument that the complainant
spent about an hour and half with the person who kidnapped her,
therefore, she had the opportunity to observe this person. The
visibility was good and the person was in close proximity to her.
[72] Furthermore counsel
for the state argued that the complainant identified the outside room
where she was taken by the accused and it happened to be the
accused’s room. Complainant described in detail the person who
kidnapped her. This Court was referred to authorities concerning
identification of accused person by witnesses. The Court’s
attention was also drawn to the fact that although the complainant
was a single witness her evidence was clear and satisfactory,
therefore the court should accept the evidence of the complainant on
the identification of the accused as the truth and the accused should
be found guilty of kidnapping the complainant Afrikaner.
[73] With regard to the
counts 5 -6 of rape in respect of Afrikaner counsel for the state
contended that the accused raped her on the mountain and when he
finished to rape her he took her to his room and raped her again. The
evidence of the complainant that the accused had sexual intercourse
with her was corroborated by other evidence. The complainant was
examined by the doctor and samples were collected from her. A rape
kit was prepared in respect of the complainant and forwarded to
National Forensic Science Institute in Windhoek. Semen was found on
the introitus vaginal swabs, towel and underpants of the complainant.
When the introitus vaginal swab of the complainant was examined by Mr
Hartsen from BCIT on 5 October 2011 male DNA was found on that swab.
The rape kit of the accused person that was forwarded to Canada with
that of the complainant on 5 January 2011 did not yield sufficient
DNA which could be used to compare with the male DNA found in the
vaginal swab of the complainant.
[74] Counsel for the
state submitted further the bucal swab that was collected from the
accused on 20 October 2011 was properly done and the whole procedure
was explained to the accused. The swabs that were collected from the
accused were forwarded to the British Columbia Institute of
Technology in a sealed tamper proof evidence bag. The swab collected
from the accused was analysed and compared with the male DNA that had
been found in the vaginal introitus swab of the complainant and in a
report dated 20 December 2011 it is indicated that the DNA on the
accused's bucal swab matched the DNA found in the vaginal introitus
swab of the complainant. In view of the DNA evidence, counsel for the
state argued that the state had proved its case beyond a reasonable
doubt that the accused is the one who committed these two sexual acts
against the complainant as charged.
[75] Counsel for the
state contended further that the two sexual act committed against the
complainant were committed under coercive circumstances as narrated
by her in evidence. Therefore the accused should be convicted of
committing the two sexual acts under coercive circumstances.
[76] On the other hand
counsel for the accused argued that in respect of the charge of
kidnapping of complainant Blom the complainant left Pius’ Bar
willingly with accused, therefore she was not kidnapped. The
complainant informed the accused that it was her first time to visit
Luderitz and complainant requested the accused to take her home since
she did not know her way home. The accused played a role of a Good
Samaritan by taking the complainant home.
[77] In respect of count
2 which is rape against Blom the accused did not rape the
complainant. Complainant only reported the rape against the accused
because of the incident that took place on 23 December 2003. It was
argued that the accused escorted the complainant home on 13 December
2003 as per her request. They met again after a week when the
complainant was in the company of her cousin and complainant’s
cousin invited the accused to visit them. This piece of evidence, as
previously mentioned, is of course disputed by the complainant and
her cousin. The accused obliged and went to the complainant’s
home to fulfil his promise. Counsel further submitted that the reason
for the accused to go to the place where the complainant was residing
on 23 December 2003 was to take the complainant to the beach.
[78] It was further
counsel's argument that the complainant testified that she did not
inform anybody concerning the rape that took place on 13 December
2003. However, her evidence was contradicted by Caroline and Nicolene
Daniels who testified that the complainant informed them that the
accused had raped her on 13 December 2003.
[79] Counsel went on to
contend that the complainant had ample time to report the matter but
she never did. She argued that the rape on the complainant was an
afterthought as a result of the incident that took place on 23
December 2003 after the complainant heard from other community
members about the accused’s alleged bad behaviour. She referred
to the testimonies of the Daniels’ sisters who testified that
the accused was a trouble maker in the community. In the light of the
above arguments counsel for the accused urged the court not to find
the accused guilty.
[80] Concerning counts
4–6 counsel for the accused submitted that it is her
instruction that the accused never went to Photo Fun on the date
complainant Afrikaner was allegedly kidnapped and raped and the
accused had never met the complainant in this matter. The accused
further gave instruction that he did not commit the said alleged
sexual acts on the complainant Ms Afrikaner and does not agree with
the DNA evidence linking him to the commission of the offence.
[81] After all the
evidence and arguments placed before me, I am called upon to
determine whether the accused person committed the five counts
preferred against him beyond a reasonable doubt. I will first deal
with the two counts alleged to have been committed on complainant
Blom. But before I attempt to answer this crucial question, I propose
to state facts that are common cause. It is common cause that the
complainant met with the accused on 13 December 2003 at Pius’
Bar. It is also common cause that the complainant was a visitor at
Luderitz. The complainant informed the accused that she did not know
her way home and the accused offered to take her home. It is not
disputed that the accused went to the place where the complainant was
staying on 23 December 2003. On this date accused admitted to have
assaulted the complainant and he was convicted of assault with intent
to do grievous bodily harm on the person of the complainant.
[82] Issues in dispute
are whether the accused did deprive the complainant of her liberty of
movement and whether the accused did commit a sexual act against the
complainant.
[83] Counsel for the
state rightly pointed out that the complainant is a single witness as
far as these charges are concerned, therefore her evidence should be
treated with caution. I am alive to the principles of law regarding
evidence of a single witness. In terms of section 208 of the Criminal
Procedure Act 51 of 1977, “an accused may be convicted of any
offence on the single evidence of a competent witness”. The
uncorroborated evidence of a single witness should only be relied
upon if the witness is competent and credible. The single witness’
evidence should also be clear and satisfactory.
[84] Although the
complainant is a single witness in this case, she is not mistaken
about the accused’s identity because the accused’s
identity is not in issue. The accused himself confirmed that he is
the person who escorted the complainant from Pius Bar up to the house
where she was residing. Again there is no evidence before this court
that the complainant was in the company of any other person when she
left Pius’ Bar.
[85] Regarding the
argument advanced by counsel for the accused that if it was true that
the accused raped the complainant, she could have reported to her
cousin and not to wait until 23 December 2003. In terms of section 7
of the Combating of Rape Act 8 of 2000 “in criminal proceedings
at which an accused is charged with an offence of a sexual or
indecent nature, the court shall not draw any inference only from the
length of the delay between the commission of the sexual offence or
indecent act and the laying of a complaint”.
The complainant in this
matter was 18 years old at the time of the alleged commission of the
offence. She explained to the court that she did not tell her niece
that that she was raped because she was embarrassed. At the time the
complainant arrived at her niece’s room her niece’s
boyfriend was also present and this could have contributed to her
failure to report. The fact that the complainant delayed to report
the matter cannot be used as a weapon to draw adverse inferences
against the complainant.
[86] Although there is no
medical evidence supporting that the complainant was raped, this does
not rule out that a sexual act was committed against the complainant.
Sexual act as defined in terms of section 1 (a) of the Combating of
Rape Act means among others:
(a) “the insertion
(even to the slightest degree) of the penis of a person into the
vagina or anus or mouth of another person.”
[87] There were no other
witnesses present when the alleged kidnapping and the alleged rape of
the complainant were committed. Therefore the court is faced with
versions by the state and the defence which are mutually destructive,
the court, must properly apply its mind. This involves, inter alia,
weighing up the probabilities of each version. Where this leads to
doubt in the court’s mind as to proof of the guilt of the
accused, such accused should be given the benefit of doubt.
[88] The accused denied
that he kidnapped and committed a sexual act against the complainant.
Although the probabilities of the case appears to favour the version
of the complainant, that after she left Pius’ bar she was only
in the company of the accused, and having properly weighing the
probabilities of each version I am not satisfied beyond reasonable
doubt that the state had proved its case and there is no apparent
reason why the accused’s version should be rejected. I
therefore decided to give the accused a benefit of doubt on both
counts of kidnapping and rape. The accused’s is found not
guilty and acquitted.
[89] Coming to counts 4–6
in respect of complainant Afrikaner, the accused’s defence is
that he did not commit the offences preferred against him because he
never met the complainant before this incident took place. He only
came to see her after he was arrested.
[90] The complainant’s
evidence is that she only met the accused for the first time on the
date of the incident. After she was allegedly raped she ran from the
accused’s room and met the people who came to her aid. After Ms
Ntlai inquired whether there was a problem with the complainant, she
reported that she had been raped and she pointed to a room at a
certain house in the corner where she was allegedly raped. That
structure happened to be the accused’s room. Although she gave
a description of her assailant, there was no identification parade
held. The accused was put in a van and taken to her in order for her
to identify him. The accused was the only person in the van and the
complainant had no choice but to point at the accused. The procedure
adopted by the police in the identification of the accused in this
instance is improper. The proper procedure was to conduct a properly
constituted identification parade where the witness, who indicated
that she could identify her assailant, should have been given an
opportunity to do so. Since there was no proper identification of the
accused, I will not rely on evidence of identification placed before
court.
[91] Complainant in these
three counts is again a single witness whose evidence should be
treated with caution. It is, of course, trite law that a court may
convict on uncorroborated evidence of a competent single witness if
the evidence is clear and satisfactory. In addition to the evidence
of the complainant, there is medical evidence that sexual intercourse
took place. This was supported by the fact that the complainant’s
underpants and a towel were found with semen. Complainant’s
evidence is that she was raped twice, at the room behind a certain
house and on the mountain.
[92] Although the
complainant is a single witness, I have no reason to doubt her
testimony that sexual acts were committed against her on the date of
the incident. The complainant appeared to be a reliable witness and I
am satisfied that the truth has been said. The only issue to be
determined is who committed sexual acts with the complainant.
[93] The complainant was
examined by a doctor after a report was made to the police. A rape
kit was collected and forwarded to the National Forensic Science
Institute for forensic examination. The scientific report by Ms Swart
confirmed the presence of semen on the towel and on the underpants.
The rape kit of the complainant was further forwarded to British
Columbia Institute of Technology in Canada for DNA analysis. The
accused was also taken to the doctor and a rape kit collected.
Samples contained in the accused’s rape kit collected from the
accused were forwarded together with samples of the complainant’s
rape kit for DNA analysis first to the laboratory in Namibia and
thereafter to BCIT Canada.
[94] The vaginal swabs
introitus from complainant yielded sufficient DNA to proceed with DNA
profiling and resulted in full profile that is suitable for
comparison purposes. The donor of this profile was male and was
designated as unknown male 1. Furthermore the cutting collected from
the complainant yielded sufficient DNA to proceed with DNA profiling
and resulted in a mixed profile consistent with having originated
from 3 individuals (at least one of which is male).
[95] The rape kit of the
accused that was forwarded to Canada on 5 January 2011 together with
the complainant did not yield sufficient DNA which could be used to
be compared with the male DNA found in the vaginal introitus swab of
the complainant. This led to further samples namely bucal swabs to be
taken from the accused for further DNA analysis. The samples
collected from the accused were forwarded to BCIT through Mrs Swart
from National Forensic Science Institute. In Canada the swab
collected from the accused were submitted for DNA analysis and
compared with the male DNA analysis that had been found in the
vaginal introitus swab of the complainant and it matched that of the
accused.
[96] Although the accused
said he does not agree with the DNA conclusion, there is no evidence
that the samples were tampered with and again there is no other
forensic evidence to rebut the findings of Mr Hartsen. According to
DNA conclusion the estimated probability of selecting an unrelated
female individual at random from the CFS Caucasian population with
the same profile is 1 in 9 billion and the estimated probability of
selecting an unrelated male individual at random from the FBI
Caucasian population with the same profile is 1 in 450 billion.
[97] In the light of the
forensic evidence, linking, the accused to the commission of the
offence, I am satisfied that the state has proved its case against
the accused person beyond reasonable doubt. The accused is indeed the
one who raped the complainant Afrikaner. These rapes were committed
under coercive circumstances because application of physical force
and threats of application of physical force existed.
[98] With regard to count
4, namely kidnapping, I am of the view that the intention of
depriving the complainant of her liberty was to enable the accused to
rape her. In the result, I find that the act of kidnapping is a
coercive circumstance. To convict the accused on the charge of
kidnapping and that of rape at the same time on the facts of this
case would amount to a duplication of charges. Therefore, the accused
is found not guilty and acquitted.
[99] For the fore going
reasons the verdict is as follows.
1. 1st count:
Not guilty and acquitted.
2. 2nd count:
Not guilty and acquitted.
3. 3rd count:
Guilty of assault with intent to do grievous bodily harm.
4. 4th count:
Not guilty and acquitted.
5. 5th count:
Guilty of rape as charged c/s2 (1) (a) of Act 8 of 2000.
6. 6th count:
Guilty of rape as charged c/s2 (1) (a) of Act 8 of 2000.
----------------------------------
N N Shivute
Judge
APPEARANCES
STATE : Mrs Nyoni
Instructed by the Office
of the Prosecutor-General
ACCUSED: Ms Mbome
Instructed by Directorate
of Legal Aid
S v Mtshibe (CC 15/2008 ) [2012] NAHC 323 (29 November 2012);