S v Otto (CA 90 of 1998) [1999] NAHC 18 (23 November 1999);
CASE
NO.: (P) I 989/98
NAMIBIA
SUGAR DISTRIBUTORS (PTY) LTD
HANNAH,
J.
1999/06/15
PRACTICE
„ of
documents. Reasons for and prineipfes governing disenssed.
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«
CASE
NO. CA 90/98
IN
THE HIGH COURT OF NAMIBIA
In
the matter between:
MICHAEL
OTTO APPELLANT
versus
THE
STATE RESPONDENT
CORAM:
TEEK,J.P.
et
SILUNGWE,
J.
Heard
on: 1999.11.01
Delivered
on: 1999.11.23
JUDGMENT:
SILUNGWE,
J.: This
is an appeal against both conviction and sentence.
The
appellant was charged before the Windhoek Regional Magistrate's Court
on an indictment containing two counts of rape and one of indecent
assault. The first and second counts alleged that on August 3, 1997,
at or near Brakwater in the District of Windhoek, the appellant
unlawfully and intentionally had sexual intercourse with Johanna
Basson, a 25 year old female, without her consent. The third count
(whose particulars I have not been able to see) charged him with
having indecently assaulted the said Johanna Basson on the same date
and same place. He pleaded not guilty to all the counts. Having been
tried, he was found guilty on the three counts and convicted as
charged whereupon he was sentenced to 12 years imprisonment, 3 years
of which were suspended on the usual conditions.
At
his trial, the appellant was legally represented and his defence was
a total denial of his involvement in the commission of either rape or
indecent assault in this matter. He is now prosecuting this appeal in
person but the respondent is represented by Ms Dunn.
The
State led evidence from 6 witnesses, including Johanna Basson
(hereafter referred to as the complainant), Emgard Mangani, the
complainant's friend, and Dr Nadine Agnew, a senior medical officer
responsible for examinations in rape cases; and performing forensic
and academic autopsies.
The
gist of the State case is that during the weekend of August 2-3,
1997, the complainant and her friend, Emgard Mangani, both of
Okahandja, were visiting her sister, Anna Basson in Windhoek.
During
the morning of Sunday August 3, 1997, the complainant and Emgard went
out to Chester's shebeen. At about 12h00, they indicated to Chester
their intention to look for a taxi so that they could get to the main
road to catch a lift for Okahandja. Chester then approached the
appellant with a request to take the two ladies up to a point where
they could catch a lift back to Okahandja, an arrangement that the
complainant later lived to regret. The appellant was agreeable.
The
appellant drove the complainant and Emgard, overshot where they had
intended to alight, went past van Eck Power Station and stopped under
a tree. The appellant occupied the passenger's seat in front of the
car while Emgard was in a back seat. The appellant got out of the
car, went over to the complainant's side, opened the door, pulled her
out and took her to the back of the car. Having torn the
complainant's skirt and panty, the appellant pushed his fingers into
her vagina, in full view of Emgard who had in the meantime come out
of the car. When Emgard attempted to intervene, the appellant kicked
her and she fled. The appellant then forced the complainant into the
car and had sexual intercourse with her on the back seat without her
consent. The complainant tried to struggle but to no avail.
Thereafter,
the appellant took the complainant to a dry river bed where he once
again had sexual intercourse with her without her consent.
Subsequently, and at the appellant's behest, the complainant was made
to suck his penis.
Later
on, as the appellant drove in a township, the complainant, after an
initial failure, succeeded in escaping and going back to her sister's
house by taxi. The sister, Anna Basson, observed that the appellant
looked strange and pale. On being asked what had happened to her, the
complainant gave an account of her ordeal. The only attire she had on
consisted of a shirt and a brassiere. Her panties were in her
brassiere but the skirt was on her shoulder; she had sustained
scratches; there was dust on her clothing; and she was crying. The
police were alerted and the complainant was medically examined.
Emgard
corroborated the complainant in material respects up to the time that
she had taken to her heels and added that thereafter, the appellant
picked her up in the vehicle and when she was in the back seat, she
noticed that the complainant was traumatized, looking down and
crying. That apparently offers an explanation as to why the
complainant did not notice her presence on that occasion. When the
appellant stopped and took the complainant towards the dry riverbed,
Emgard seized the opportunity and once again fled.
Dr
Agnew who examined the complainant at about 09h45 on August 4, 1997,
observed signs symbolizing that the complainant had been sexually
assaulted: the complainant's labia minora was swollen on both sides,
she had a white creamy discharge, and contusions were present on her
inner left thigh and on her knee.
The
defence case was that, although the appellant had been at Chester's
shebeen and had given a lift to the complainant and Emgard, he had
neither had sexual intercourse with, nor indecently assaulted the
complainant as alleged and that both the complainant and Emgard had
told lies in this regard. He maintained he had driven around the
township with the two ladies in an effort to obtain some money so
that he could drive them to Okahandja and that, in the process,
Emgard had become fed up and left the car. The appellant further
maintained that there had been a conspiracy against him, involving
the complainant, Emgard and Chester because he had indicated to
Chester that he had a big financial investment, their motive being
that he would give them some money in return for dropping allegedly
fake charges against him.
In
his judgment, the learned Regional Magistrate rejected the
appellant's defence and allegations of conspiracy; accepted the
State evidence; and had no hesitation in convicting the appellant on
all three counts.
In
arguing his appeal, the appellant still maintains his defence as
well as his allegations of conspiracy. I will later revert to this.
He
uncharacteristically levels accusations against his legal
representative whom he alleges acted without or adehering to his
instructions. I feel it is wholly undesirable to make any comments
on this allegation in the absence of any material to either confirm
or controvert it. In any event, the presiding officer's attention
was never drawn to the alleged conduct of the appellant's legal
representative.
The
appellant claims that the court a
quo erred
in convicting him, alleging that there were discrepancies between
the evidence of the complainant and that of Emgard.
The
learned Regional Magistrate was alive to this aspect as is
demonstrated by the following excerpt from his judgment at
(handwritten) page 183 lines 19-25:
"Furthermore
there may be some difference in the evidence of State witnesses and
I specially refer to the difference that the complainant was unaware
that the witness Emgard was again in the vehicle before she was
raped the second time. That can easily be (sic) explained and this
difference in evidence of witnesses is indeed a clear (sic)
indication to the Court that there is no conspiracy."
And
at handwritten page 180 lines 20-30, the following appears:
"The
witness Emgard's testimony confirms that of the complainant up to
that point where she was kicked and she then left. From there she
walked and then the accused person came from behind and again
instructed her to get inside into the car. Of that the complainant
was not aware that she was again in the car and that can be easily
(sic) explained by the fact that the complainant was in the state of
shock but she in any case witnessed the fact that the accused person
dragged complainant out of the car to nearby bushes and that he
again assaulted here there."
In
any event, it is clear that whatever discrepancies exist between the
evidence of the complainant and that of Emgard or of any other State
witness are immaterial. It follows that the appellant's conviction
cannot be faulted on that score.
I
now return to the question whether the court a
quo misdirected
itself in its rejection of the appellant's defence of total denial
and his allegations of conspiracy. This brings into focus the issue
of credibility, which is pre-eminently for the trial court to
decide. As a headnote in R
v
Dhlumayo
1948
(2) SA 677 (AD) aptly reads:
"The
trial judge has advantages - which the appellate court cannot have -
in seeing and hearing the witnesses and in being steeped in the
atmosphere of the trial. Not only has he had the opportunity of
observing their demeanour, but also their appearance and whole
personality. This should never be overlooked."
And
in Swain
v Society of Advocates, Natal 1973
(4) SA 784 (A) at 790H - 791 A, van Blerk, JA. remarked:
"But
as pointed out earlier this Court will be slow to disturb the
factual findings by the Court a
quo on
oral evidence unless sound reasons justify interference."
Although
there are no rules of law that define the circumstances in which a
finding of fact may be reversed, it is nevertheless a matter of
common sense rather than of logic that the appellate court is
impelled to recognise that the trial court is in many respects
better placed to make such findings in that it is able to hear the
witnesses and to observe their demeanour. Courts of appeal are thus
reluctant to disturb findings based upon credibility. However, such
findings may be disturbed where there has been a misdirection of
fact, for instance, where the reasons given in support thereof are
either unsatisfactory, in that they involve, inter
alia, a
clear non
sequitur; or
manifestly wrong, such as where a mistake of fact has been made or
some relevant facts or probabilities have been overlooked.
It
is evident, therefore, that where there has been a misdirection of
fact, the appeal court is at large to disregard the findings of the
court a
quo, in
whole or in part, according to the nature of the misdirection and
the circumstances of the particular case, and to come to its own
conclusion on the matter. See R
v Dhlumayo and Another (supra), per
Davis AJA at 701; and Anchor
Publishing Co (Pty) Ltd. and
Another
v Publications Appeal Board 1987
(4) SA 708(N), per Booyesen J at 731 F-G.
In
the present case, it does not appear to me that there was any
misdirection of fact. Hence, the court a
quo's findings
based upon credibility cannot be disturbed.
With
regard to corroboration, the injuries suffered by the victim of a
violent crime may furnish corroboration of his/her testimony; and so
also may emotional distress shortly after the incident provided the
trial court is satisfied that such emotional distress was genuine in
the sense that it was indeed the result of the fact that the witness
was the victim. See R
v
Trigg
(1963)
All ER 490; R
v Redpath (1962)
46 Cr. App. R 319; R
v
Knight
(1966)
1 WLR 230; and S
v Balhuber 1987
1 PH H22 (A) 44.
In
the matter under consideration, not only was Dr Agnew's evidence
consistent with the complainant's version of having been raped, but
the complainant's evidence was supported by Emgard in relation to
the first aspect of her indecent assault and her emotional distress
following the commission of the first rape; and by Anna Basson with
regard to her emotional distress after the commission of the crimes
on all three counts. No allegation whatsoever has been made to
suggest that the appellant's emotional distress was simulated. I am
thus satisfied that the appellant's emotional distress was
authentic.
On
the facts of the case and, regard being had to the preceding
discussions, I am left in no doubt that the appellant's conviction
on all counts was justified and so the appeal against conviction on
the said counts fails.
The
only outstanding issue for consideration relates to sentence. The
appellant complains that the presiding magistrate failed to take
into account his personal circumstances, for instance, that he was a
first offender; he was aged 40 years and that he had dependants.
However,
the appellant's complaint does not rest on a valid basis because the
court a
quo treated
his personal circumstances globally when it said at handwritten page
188, lines 25 -30:
"I
will take into account your personal circumstances and your personal
problems and I am well aware of the fact that if you are sent to
jail there will be some suffering for your children and for your
wife, for your whole family. But suffering and hardship (sic) are
the children of crime."
Further,
the appellant alleges that the presiding magistrate over-emphasized
the seriousness of the crimes committed at the expense of his
personal circumstances.
Once
again, this allegation is devoid of merit. What the court a
quo decided
in this connection essentually boils down to the fact that he found
that the nature and seriousness of the crimes committed outweighed
the appellant's personal circumstances. Evidently, the complainant
sustained some injuries, though not of a serious nature, as a result
of the incidence of rape perpetrated upon her by the appellant. To
add insult to injury, the appellant's commission of indecent assault
on the complainant was an abomination. All these crimes were taken
together for the purpose of sentence. In the view that I take, the
court a
quo's discretionary
imposition of the overall sentence of 12 years imprisonment cannot
be faulted.
Finally,
the appellant beseeches this Court to suspend one half or more of
the sentence. But the nature and seriousness of the crimes committed
and their prevalence which is judicially noticed - militate against
the appellant's argument. In any event, I do not consider that the
trial magistrate misdirected himself by the imposition of the
custodial sentence without suspending any part thereof. This ground
too fails.
The
order that I make is this:
the
appeal against conviction on all counts is dismissed; andso
also is the appeal against sentence.
SILUNGWE,
J.
I
agree.
TEEK,
J.P.
ON
BEHALF
OF
THF^APTFJXANT IN
PERSON
ON
BEHALF
of
thf
pfSPONDFNT MS
DUNN
Instructed
by: Office of the Prosecutor-General