HIGH COURT OF LESOTHO
Mr Justice W.C.M. Maqutu on the 6th June 2005
Crime Sexual Offences Act 2004 - whether Section 182 (1) and Section
183 (1) of the Criminal Procedure and Evidence Act
1981 on attempted
crime apply - mens rea - where preparation ends — and
commission of offence begins.
case the accused was convicted with contravening section 3 (!) of the
Sexual Offences Act of 2003 and referred to this court
particulars of the charge are the following.
upon or about the 12th April 2004, and at or near Tereseng in the
district of Qacha's nek, the said accused did unlawfully
intentionally commit a sexual act with Matholoana Miriam Mohau, in
that he threatened verbally and through conduct the said
to have sexual intercourse with him, and did unlawfully apply
physical force to Matholoana with the intent to have sexual
intercourse and as a result he had direct or indirect contact with
her thighs, vagina, and some other part of her body. Thereby
committing the offence charged.
accused pleaded not guilty.
13th May 2004, the accused had been before me. I directed that
pro-deo counsel be obtained for him and postponed the matter
matter will be reviewed before sentence.
20th May 2005 Mr Seema appeared for the Crown while Mr Mokoko
appeared for the accused. It was agreed by both counsel that
claim to have been born in 1985 be accepted because the accused's age
had not been properly determined. Accused seemed
to be about 20 years
complainant (duly sworn) said she was a woman aged 71 years old. She
told the court she knows accused well and during the night
April 2004, the door opened, but it fell to the ground. The accused
came to her
to give him. When complainant asked what exactly he wanted to be
given. Accused told her he wanted to have sexual intercourse
her. Complainant then cried out. Accused took off the blankets that
covered complainant and strangled her so that she could
not make a
noise. As he did this accused forced himself onto her and took out
his penis. The complainant said she does not know
if accused inserted
the penis into her or penetrated her, because she was struggling to
shout for help. Just then her daughter
and a man came. The man held
accused and accused begged him to forgive him. A she was saying these
word the accused managed to
had been lit with a candle - so complainant told the accused she was
not mistaken. During cross-examination complainant
told the court
that accused even bit her during the struggle.
Mohau (duly sworn) told the court she was called by a child who gave
her a report that was house breaking at the home
of Pw2. It was
around 9pm. Pw2 went with Shusha in a rush to go and investigate. She
found the door of her house had fallen down.
Pw2 said she heard
complainant crying Sampo (the accused) is killing her. Accused rushed
out of the house, as he
so Shusha tried to catch him but the accused escaped. Accused had not
questions for Pwl.
Tsolane Khaseaneng (Shusha) was the next witness. Told the court
while he was drinking beer Pw2 asked him to accompany him to
because something was happening there. Pw3 told the court that he
accompanied Pw2 to her home. As she got to the door
of Pw2's house -
he heard some one crying for help. The door had fallen down. Pw3
knocked at the door - a voice inside said "Is
it Shusha, please
forgive me." He asked what was going on. There was no response
accused went towards him from inside the
house running away. Pw3 told
the court he tried to hold the accused but he escaped Pw3 told the
court it was at 9pm, the house
was lit and he knows the accused.
Pw3 said he had known accused for several years. Pw3 told the court
he did hold accused but accused got free from
him and escaped. Pw3
told accused he did not report to the chief but reported to the army
base where he worked because he thought
that is where complainant
would got help. Accused challenged the truthfulness of Pw3.
Rethabile Thamae the headman of the village. He told the court he
knows accused who is his neighbours child. Pwl and Pw2
at about 9 pm
came to his place and gave a report about what accused had done. When
accused came, he denied being responsible for
what was reported,
Police woman Mzamo told the court that he got a report that accused
tried to rape complainant.
medical shows complainant had bruises on the arms. These were caused
by an assault.
gave evidence. He told the court he was already in bed at 9 pm and
never went to Complainant's home. In the morning he was
Pw4 the chief and it was alleged by the complainant and Pw2 that he
had had sexual intercourse with complainant.
They wanted to admit
having done so. The complainant had merely told the chief some one
had while she was asleep forced himself
on her. When she cried Pw2
her daughter came and when she asked complainant what happened
complainant had said nothing. It was
Pw2 and Pw3 who told the chief
(Pw4) that they saw accused there.
cross-examination accused said Pw2 and Pw3 know him but not Pwl.
court found the accused guilty as charged. But Mr Mokoko counsel for
the accused argued that the evidence did not prove
an unlawful sexual act. The reason being that there was no direct or
indirect contact with the anus, breasts,
penis, buttocks, thighs, or
vagina of one person or any other part of the body.
argued that display of genital organs was a species of sexual offence
penalty is covered by Section 32 (a) (1) of the
Sexual Offences Act
2003 - an offence of which the accused was not convicted.
Consequently his taking out of his penis to display
it to complainant
is not relevant as does not form part of the particulars of his
that force could be implicit, direct or indirect, physical or
psychological in terms of section 2. This Act is fraught with
problems because its punishments at places lack proportionality. The
sentence of 10 years imprisonment seems to be mandatory for
an act described as a sexual act which may be deemed coercive. It
does not matter whether the individual complained or
some one's thigh or buttock in
that are deemed coercive - the sentence is the same - at least 10
I have in
mind what appears in Gordon Criminal Law 3rd Edition paragraph 36. 20
where a lewd, indecent or libidinous act occurs
where a male or
female places the hand of another on his or her private parts - the
sentence has to be a minimum of 10 years imprisonment.
other problems such as occurred partially in this case namely
exposure or display of genital organs by one person to
I believe (ordinarily) to be a sexual act more should be required
than mere exposure. As Gordon Criminal Law observed
"Where the exposure is made to a particular person or persons in
such a way as to indicate an improper motive on the part
accused, that is to say, where the exposure is a form of sexual
gesture or invitation, and is something from which the exposer
derives gratification, something which is for him a sexual act. This
form of indecent exposure is really an example of lewd practices
although it may be committed against adults, as where A exposes
himself to women in the street."
there are advantages in collecting all sexual crimes under one Act,
it seems greater specificity will have to be required
by the courts.
Indeed whether an act has sexual motives depends on inferences that
could be drawn from surrounding circumstances.
However, Mr Mokoko
circumstances" for section 3 (!) of the Sexual Offence Act 2003
to apply. There has to be contact at the parts
of the body specified
supported conviction. His starting point was that a 71 years old
woman was involved. The identity of the accused as the
could not be seriously doubted. In this he was impliedly supported by
defence counsel. Mr Seema felt the court should
infer from the
evidence that the thighs must have been touched. Evidence showed that
the struggle was interrupted ~ the only clear
evidence is that the
complainants arms were heavily bruised showed. The intention to rape
her was not only exhibited in words but
it was followed by physical
acts that were resisted desperately until help came to interrupt the
enquired from Mr Seema whether offences under the Sexual Offences Act
2003 were capable of being attempted like other
crimes. This was
particularly so because accused had been resisted even after he had
taken out his penis to the extent that he
could not get to the
complainants relevant parts.
case I was faced with what in the past was called rape. The Sexual
Offence Act of 2003 has however repealed the law in respect
and replaced it with several offences covering the same area. Accused
is charged with contravening section 3 (!) of the
Sexual Offences Act
2003 which in the past would have been rape. The only difference is
that penetration is no more essential.
Steps towards rape have become
part of one composite offence.
the accused has been convicted of contravening Section 3 (!) evidence
shows he did not actually succeed in reaching the
sexual parts such
as the breast or thighs of the complainant. Had the accused done so,
the offence would have been complete.
requested Mr Mokoko to address it on whether an attempted crime had
not been committed within the meaning of sections
182 (!) and 183 (2)
of the Criminal Procedure and Evidence Act of 1981 which provide:
"182. (1) If, on the trial of any person charged with any
offence, it appears upon the evidence that the accused did not
complete the offence charged, but that he is guilty of an attempt to
commit that offence, he shall not by reason thereof be entitled
acquittal, but a verdict may be given that the accused is not guilty
offence charged but in guilty of an attempt to commit that offence or
of an attempt to commit an offence of which he might under
be convicted on the charge..."
"183.(1) Any person who attempts to commit any offence against a
statute or statutory regulation is guilty of an offence and,
punishment is expressly provided thereby for such an attempt, liable
to the punishment to which a person convicted of actually
that offence would be liable."
drew the courts attention to the fact that rape had been abolished.
Consequently competent verdicts such as indecent assault
with intention to rape which could have been competent in terms of
section 187 of the Criminal Procedure and Evidence
Act of 1981 were
no longer competent
argument proceeded Mr Seema for the Crown ultimately conceded that
evidence as it stands does not disclose contravention of Section
(!) of the Sexual Offences Act 1981, it discloses an attempted crime.
Consequently accused should be found guilty accordingly.
expressed an intention to have sexual intercourse with complainant.
The complainant refused. Accused thereupon took
steps to forcibly
have sexual intercourse with her. They struggled during the struggle
which is supported by extensive bruises
on the complainant's arms,
accused took out his penis.
accused was about to over-power the complainant, they were
interrupted by some one who had come to investigate what was
consequently argued that the accused had passed the stage of
preparation to forcibly having sexual intercourse with complainant.
Mr Seema argued that accused was interrupted when he was in the
process of perpetrating the crime and had overcome or was about
overcome the resistance of complainant and therefore had taken out
his penis in order to have sexual intercourse with her forcibly
without her consent.
Mr Mokoko argued that the accused at best was preparing to have
sexual intercourse. Consequently Mr Seema for the Crown
was mixing up
preparation with perpetration. To this submission Mr Seema argued
that accused had not only passed the preparation
stage, accused had
in fact reached the threshold of the final stages of perpetration.
judgment the word rape will be used in its colloquial sense - which
is having sexual intercourse by a man with a woman against
consent. This conduct forms part of an offence called contravening
the provision of Section 3 (1) of the Sexual Offences Act
view I take of this act is
codifies all sexual offences and tries to relate them to each other.
Because it brings common law offences under one roof
it should be
applied under common law principles. Consequently (where the
objective was to have sexual intercourse) attempted crimes
Sexual Offences Act 2003 will be treated under Section 182 (1) of the
Criminal Procedure and Evidence Act 1981 not Section
Criminal Law 3rd Edition commenting on Scots Law at page 200
paragraph 6.20 says "Hume talks at one stage of 'ambiguous
with respect to which it is difficult to say where preparation ends
and perp etration begins.' " The learned author
is critical of
the idea of finding attempted crime to be committed when perpetration
is at its last stages. Criticizind the final
stage theory Gordon
Criminal Law 3' Edition 6.35 page 209 says.
"Another objection is that the theory probably makes it
impossible to convict anyone of attempting to commit a number of
common crimes. This result is contrary to the principle underlying
the rule that an attempt to commit any crime is punishable, and
contrary to current practice. Convictions for attempted rape, for
example, are not uncommon, but attempted rape cannot be
the final stage theory - either there has been penetration, in which
case the crime has been completed, or there has
not, in which case
the last act, penetration, remains to be done and the accused can
still change his mind and decide not to commit
better view is that cases of attempted crime cannot be the same
across the spectrum of criminal law. Each case is governed by
facts and the essentials of the particular crime under consideration.
I am therefore in agreement with what JM. Burchell
says in South
African Criminal Law and Procedure volume I General Principles of
Criminal Law 3rd Edition pages;
"The universal problem is to determine where preparation ends
and attempt begins - to draw a dividing line between 'the end
beginning and the beginning of the end'. Our courts have deliberately
refrained from laying down a test whereby the dividing
line can be
drawn in all cases.
Indeed, it is impossible to do so because so much depends upon the
facts of each particular case. It is only to be expected, therefore,
that there is little judicial harmony on this issue, and in the
circumstances it is unhelpful to compare and contrast the decisions
taken in cases of similar but different facts."
crime raises many fascinating and controversial issues. In England
they have the Criminal Attempts Act 1981. In Lesotho
we have the
abovementioned Sections 182 (1) and 183 (1) of the Criminal Procedure
and Evidence Act 1981. These Acts largely restate
the common law. The
practical problems are about where preparation ends and perpetration
In R v
Khan (1990) 2 ALL ER 783 Russell LJ in the English Court of Appeal
distinguished rape from attempted rape in the following
"The only difference between the two offences is that sexual
intercourse takes place whereas in attempted rape it does not,
although there has to be some act which is more than preparatory to
sexual intercourse. Considered in that way, the intent of the
defendant is precisely the same in rape and in attempted rape and the
mens rea identical, namely an intention to have sexual intercourse
plus a knowledge of or reckless ness as to the woman's absence of
In R v
Schoombie 1945 AD 541 at page 547 Watermeyer CJ said of attempted
"... in the case of interrupted crimes Of an attempt to commit
such crime is proved when the court is satisfied from all the
circumstances of the case that the wrongdoer, at the time he was
interrupted, intended to complete the crime and that he had at
carried his purpose through to the stage at which he was "commencing
the consummation" (of the crime)."
remains controversial where preparation end and perpetration begins.
Courts do not always agree. For an example in England in
Reference (N01 of 1992) 2 ALL ER 190 the court had been asked whether
the Crown has to prove (as a matter of law) that accused
attempted to penetrate the woman's vagina with a penis. The court's
answer was that the Crown did not have to prove this fact.
enough to adduce evidence of intent to rape and acts that show that
the accused was not merely preparing to commit the
but had begun committing the offence. - for example, in that case the
accused had dragged the victim up some steps, lowered
and interfered with the victims private parts.
case before me the accused had struggled with the victim who had
refused to have sexual intercourse with him, thrown her
on the floor,
bruised her arms during the struggle to get on top of her, taken out
his penis. Just as the victims resistance was
fading, he was
interrupted by some one coming to the investigate- That being the
case the proximate acts to sexual intercourse
remove any doubt that
the accused was no more preparing to rape the complainant, but was in
the final stages of perpetrating the
crime of forcibly penetrating
complainant with his penis when he was interrupted.
consequently found the accused guilty of attempted rape.
accused was only 19 years old at the time and he had already been in
prison for 11 months, I sentenced him to 6 strokes with
a light cane.
was to be administered after the accused had been medically examined.
Crown : Mr Seema
Accused : Mr Mokoko
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