CRI/A/25/80

IN THE HIGHT COURT OF LESOTHO

In the Appeal of :

THABANG MAKHAKHE

V Appellant

REX Respondent

REASONS FOR JUDGMENT

Filed by the Hon. Justice F.X. Rooney on the 5th day of August, 1980.

The appellant, a policeman, appeared before the Subordinate Court for the District of Butha-Buthe on the 28th December, 1979 charged with having committed the crime of rape on the 18th January the same year. He pleaded not guilty. He was represented at the trial by Advocate G.N. Mofolo. On the 26th February, 1980, the appellant was convicted and sentenced to 9 months imprisonment. He was released on bail pending appeal to this Court.

On the 1st August I allowed the appeal and set aside the conviction and sentence. These are my reason for that decision.

The complainant 'Mamoeletsi Mkoko said that she had been overcome with force and had sustained injuries "on the cheek between her thighs and in the arm pit". She was examined by a doctor on the day following the alleged rape and again three days later as Sgt. Lebasa (PW 1) had told her that one of the forms was not completed. In cross-examination, the complainant alleged that the appellant had bit her and that the mark had been seen by the doctor. Later she said that the doctor was not present on the first day, and that it was only after the week-end that she was examined. She said the doctor took a note of her injuries,

Sgt. Lebasa, who on the 19th January investigated the complaint, said that the complainant "had some scratches on the neck" The

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The sister of the complainant 'Matsoarelo (PW 3) said that immediately after the alleged rape, the woman had injuries on her thighs where she had been pinched. She had other injuries on the shoulder blade near the neck. These were scratches. She had a bite mark behind the left shoulder. In contrast to this evidence, the mother of the complainant, who saw her daughter on the 19th January said "I saw her thighs had some bruises. That is all. I saw no scratches."

Before closing the Crown case, the prosecutor informed the Court that the doctor who examined the complainant had gone overseas and was not available to give evidence. Adv. Mofolo said that he was prepared to consent to the admission in evidence of the medical report prepared by the missing doctor. The prosecutor said that such a course "could prejudice the Crown". The magistrate made no order or comment other than the remark in his reasons for judgment that "sexual intercourse is not disputed, and therefore medical evidence is not necessary to prove rape".

It was a grave irregularity for the public prosecutor to suppress evidence in his possession which might have supported the case made by the appellant that the woman was a consenting party. The magistrate ought not to have tolerated the excuse that the medical report might "prejudice the Crown". He should have exercised has authority and insisted on its production It must now be assumed that medical report which was withhold did not support the allegation that the complainant suffered bruises or bites or scratches or any injuries whatsoever. The magistrate's conclusion that he had no reason not to believe the story told by the Crown witnesses who saw the scratches when they were fresh was a misdirection, as not all the witnesses saw scratches and the complainant herself made no mention of them.

The Crown case was that the appellant called at the home of 'Mamoeletsi after 8.00 p.m. on a rainy night ostensibly with a message from Sgt. Lebasa. The complainant was preparing for bed. She was wearing a petticoat and a shawl, but was otherwise naked. The complainant told the appellant that it was late at night and that she had a visitor who was her elder sister. The appellant shone a torch in the face of the visitor, who was already in her bed. He then asked the complainant to come out side so that he could tell her what Sgt. Lebasa had to say. They stood at the doorway and discussed the matter which concerned a case before a local court.

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The complainant took the policeman into another house or flatwhich was nearby. This room contained a bed and other furniture.The complainant put on the light. A discussion ensued in the course of which the woman asked the appellant if "he had come for love affairs or sleeping". He said he wanted to sleep, so, having indicated that he could sleep alone in the flat, she prepared to leave him. She was then attacked and overpowered, her sister coming to her rescue in response to her screams.

There was no reason why the complainant should have left her own room at that hour of the night to discuss business matters with the appellant in a bedroom. Her attire was an invitation to intimacy. She was casting her fate to the wind and if as the appellant maintains he and the complainant were lovers from time to time, then all this casts gave doubt upon the complainant's allegations. The consent or otherwise of the complainant to sexual intercourse was the only issue before the court a quo, upon which issue the medical evidence, although of vital importance, was wrongly excluded from proper consideration by the magistrate.

JUDGE

F.X. ROONEY

5th August, 1980.

For Appellant : Mr. Mofolo

For Crowns Mr. Peete.