KATEBE v THE PEOPLE (1975) Z.R. 13 (S.C.

SUPREME COURT

BARON, DC.J., GARDNER AND HUGHES, JJ.S.

7TH JANUARY, 1975

(S.C.Z. JUDGMENT NO. 3 OF 1975)

Flynote

Criminal law- Evidence - Corroboration - Applicability of cautionary rule to sexual

Criminal law - Alibi - Onus of prosecution to negative - Failure to investigate alleged alibi
- Effect of.

Headnote

The appellant was convicted of indecent assault on a female. The complainant alleged
that at 2235 hours on 1st August, 1974, the appellant, who was accompanied by a
friend, knocked at the door of her house and when she opened the door he said that her
younger sister wanted to see her. When she went outside the appellant grabbed her,
threw her to the ground and attempted to rape her. She shouted for help and the
barman of a nearby bar came to her rescue, where upon the appellant and his
companion ran away. The complainant said that she had known the appellant for a long
time and had seen him clearly in the moonlight.
The magistrate warned himself carefully of the danger of convicting on the
uncorroborated evidence of the complainant. However, he believed her evidence and
convicted in spite of the absence of corroboration.

Held:

(i) The general principle of the cautionary rule as to corroboration applies equally to
sexual cases as to accomplice cases.

(ii) If there are "special and compelling grounds" it is competent to convict on the
uncorroborated testimony of a prosecutrix.

(Machobane v The People [2] applied)

(iii) Where there can be no motive for a prosecutrix deliberately and dishonestly to
make a false allegation against an accused, and the case is in practice no different from
any others in which the conviction depends on the realiability of her evidence as to the
identity of the culprit, this is a "special and compelling ground" which would justify a
conviction on uncorroborated testimony.

(iv) Where a defence of alibi is set up and there is some evidence of such an alibi it
is for the prosecution to negative it. There is no onus on an accused person to establish
his alibi; the law as to the onus is precisely the same as in cases of self-defence or
provocation.

(v) It is a dereliction of duty for an investigating officer not to make a

proper investigation of an alleged alibi.

(1) R. v Baskerville (1916) 2 K.B. 658.

(2) Machobane v The People (1972) Z.R. 101.

(3) Lubinda v The People (1973) Z.R. 43.

For the appellant: In person.

For the respondent: A.M. Kasonde, State Advocate.

Judgment

BARON, DCJ.: delivered the judgment of the court.

The appellant was convicted of indecent assault on a female. On the facts deposed to
by the complainant the charge should have been attempted rape. The complainant
alleged that at 2235 hours on 1st August, 1974, the appellant, who was accompanied
by a friend, knocked at the door of her house and when she opened the door he said
that her young sister wanted to see her. When she went outside the appellant grabbed
her, threw her to the ground and attempted to rape her. She shouted for help and the
barman of a nearby bar came to her rescue, whereupon the appellant and his
companion ran away. The complainant said that she had known the appellant for a long
time and had seen him clearly in the moonlight.

The learned magistrate warned himself carefully of the danger of convicting on the
uncorroborated evidence of the complainant; however, he believed her evidence and
convicted in spite of the absence of corroboration. Clearly, as a matter of strict law, a
conviction on the uncorroborated evidence of the complainant in a sexual case is
competent. Although the cautionary rule of practice has long since become virtually a
rule of law (see for instance R v Baskerville [1]), if, as we said in Machobane v The
People [2], there are special and compelling grounds for so doing it is competent to
convict on the uncorroborated testimony of a witness with a possible interest to serve.
Machobane's case [2] was of course a case of stock theft and the witnesses in question
were witnesses whose evidence ought to have been treated with the same care as that
of accomplices; but the general principle of the cautionary rule applies equally in sexual
cases. The reasons for this caution in such cases are legion and it is unnecessary for us
to repeat them at length; obviously there are circumstances in which a woman will make
false allegations - in order to protect a boy-friend, or in circumstances where she may
fear the anger of a husband or a father. In the present case there is nothing to suggest
that any of these factors is present. We can see no motive for the prosecutrix in this
case deliberately and dishonestly making a false allegation against the appellant. This
case is in practice no different from any other in which the conviction depends on the
reliability of the evidence of a complainant as to the identity of the culprit, and this is a
"special and compelling ground" which would justify a conviction on the uncorroborated
testimony of a prosecutrix. We are satisfied that the learned magistrate was right, firstly
when he said there was no corroboration as to the identity of the culprit, and secondly
when he considered that this was a case when he could convict on the uncorroborated
testimony of the complainant if he believed her.

This however does not end the matter. The defence was an alibi. At the very outset of
the investigation the appellant told the police that he had been with his girl-friend at the
time of the offence. His evidence was- and the inference is overwhelming on the record
that he said this to the police - that she had been with him in the Rachel bar until 2230
hours, namely five minutes before the offence was committed, and that they went home
to the appellant's house where they remained together until 3 a.m. Quite clearly if this
evidence was true it was conclusive in favour of the appellant; yet the investigating
officer appears to have made no attempt to verify or disprove that evidence. The same
barman who came to the complainant's rescue was employed at the Rachel bar; but he
does not appear to have been asked either before the trial or even in court whether he
saw the appellant's girl-friend there, nor was any investigation made as to whether
anyone else who was in the bar that evening saw the appellant there with his girl-friend.
The only question directed to the barman on this issue was by the appellant in cross-
examination; he asked him whether he had seen the appellant in the bar, and the
witness confirmedthat he had.

In the case of Lubinda v The People [3] the learned Chief Justice said this at page 45,
line 26:

"In this case we are faced by the fact that the whole evidence for the defence has
been seriously prejudiced by a dereliction of duty on the part of the investigating
officers. Had an investigation of the alibi taken place it might have been in favour of the
appellants. We do not consider that the evidence given by the prosecution was such
that it was so overwhelming as to offset the prejudice which might have arisen from the
dereliction of duty."

Although in this case we do not think that the dereliction of duty was as serious as in
Lubinda's case [3], nevertheless in principle the comments of the learned Chief Justice
to which we have just referred apply with equal force. Had the investigating officer made
proper investigation of the alleged alibi the result would have been either conclusive
evidence in favour of the appellant, or equally, almost conclusive evidence against him
if it was established that no one had seen the appellant's girl-friend in the bar.

The law is clear that where a defence of alibi is set up and there is some evidence of
such an alibi it is for the prosecution to negative it. There is no onus on an accused
person to establish his alibi; the law as to the onus is precisely the same as in cases of
self-defense or provocation. In the present case the prosecution has made no attempt
to negative the alibi save to rely entirely on the evidence as to identity of the prosecutrix.
The learned magistrate has not directed his mind to this aspect of the case. He has
dealt with this question by dismissing the evidence of the appellant and his girl-friend as
a concoction. In particular he did not direct himself as to the onus and as to the
necessity for the prosecution to negative an alibi where evidence of it exists, and
particularly when it has been communicated to the police at the very outset of the
investigation. We are bound therefore to hold that the magistrate misdirected himself on
this issue, and this conviction can stand only ifwe can apply the proviso. This we are not
able to do in the present case. We do not doubt the sincerity and honesty of the
complainant, but in the light of all the evidence the possibility of an honest mistake on
her part cannot be ruled out. This appeal must therefore be allowed and the conviction
and sentence set aside.

Appeal allowed