Republic v Hasani Saidi [1984] TLR 226 (HC).

REPUBLIC v HASANI SAIDI 1984 TLR 226 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Mapigano J

November 15, 1985

CRIMINAL REVISION 1 OF 1984 G

Flynote

Criminal Practice and Procedure - Charges - Essential element of offence left out - Defective - When defect may vitiate proceedings.

Evidence - Corroboration - Failure of magistrate to warn himself of the danger to convict without corroborative evidence - When fatal to proceedings.

-Headnote

The accused was charged with and convicted of the offence of rape. He was sentenced to three years' imprisonment. The case file was sent to the high court for confirmation of sentence. The learned judge who examined the record of the proceedings was of the opinion that the charge was I defective because the particulars of the offence did not allege that there was no consent on the part of the woman or that her consent was obtained by force or by means of threats or intimidation or by fear of bodily harm. He was also under the impression that the evidence adduced by the prosecution stood uncorroborated. B 

Held: 

(i) Where a substantial miscarriage of justice has not flown from the defect, the provisions of s. 346 of the Criminal Procedure Code can be brought into play and the conviction be sustained; (ii) in this case the accused understood the substance of the case he was meeting as such the defect did not lead to a substantial miscarriage of justice and thus curable under sS. 346 of the Criminal Procedure Code; (iii) it was not necessary for the trial magistrate to warn himself of the danger of convicting without corroborative evidence because there was sufficient corroborative evidence. 

Case Information 

Order accordingly. 

No case referred to. 

L. Mapalala for the Republic. 

[zJDz]Judgment 

Mapigano, J.: It seems that the learned judge who examined the record of these proceedings was of F the opinion that the charge was defective and under the impression that the evidence adduced by the prosecution stood uncorroborated. With regard to the charge the learned judge was absolutely right and it is only proper that Miss Mapalala counsel for the Republic has readily conceded the point. The accused Hasani Saidi was brought to the District Court at Kilosa charged with the offence of rape c/ss. 130 and 131 of the Penal Code. The particulars of the offence as set out in the charge sheet averred that "Hasani Saidi charged on the 17th day of June, 1983, at about 16.00 hrs. at Miyombo village, Kilosa district, H Morogoro Region, did have carnal knowledge of one Hagali w/o William". Quite obviously, the charge omitted an essential ingredient of the offence of rape, namely the allegation that there was no consent on the part of the woman, or that her consent was obtained by force or by means of threats or intimidation or by fear of bodily harm. This flaw escaped the attention of the learned district I magistrate and I may charitably attribute his oversight to his failure to pause sufficiently to peruse the particulars. 

It is elementary that every criminal charge should set out all essential constituents of the offence A alleged. However, it does not necessarily follow that every defect in the charge will vitiate the proceedings or the judgment. In a proper case, that is, where a substantial miscarriage of justice has not flown from the defect, the provision of section 346 of the Criminal Procedure Code can be B brought into play and the conviction be sustained. This, in my opinion and in agreement with counsel for the Republic, is exactly such a case. The accused understood the substance of the case he was meeting, especially after the complainant Hagali had given her testimony. What's more, it was not his line of defence that Hagali had consented to the intercourse. Should I, therefore, find C that the evidence against him was credible and sufficient to support the conviction I would apply the provision of section 346 above and refrain from disturbing the conviction. Hagali was a married woman and she lived in Miyombo village. Her evidence shows that at about 4 p.m. on 17/6/83 she was alone at her shamba guarding it against the incursion of wild pests. The accused, a fellow-villager and an acquaintance, called at the shamba and swiftly caught her and his strong hand went over her mouth to stifle or prevent an outcry.  

Then he shoved her down, took off his trousers and in another instant penetrated her and ejaculated inside her. It was easier: she was not wearing any underpants. Her sister in-law appeared at the scene but by then the accused had already indulged his passion and was fleeing. Hagali picked herself up and promptly went to her F balozi to lodge a complaint against him, and thence to the police who had her medically examined on the morrow. Akiza Yohana (PW2), the said sister in-law, told the court that she saw the accused running off from the scene holding his trousers. Saidi Mfaume (PW3) the balozi confirmed that the complainant G approached him and made a report that she had just been ravished by the accused. He observed bruises on her lips and back. And a medical report also showed that she had sustained a bruise around her upper lip adjacent to the nose. The accused flatly denied any involvement in the offence. He denied meeting the complainant on H that day and he did not know why she came to frame him. No, he said, there was no bad blood between them. No, he added, she was not mentally unsound. The learned magistrate believed the prosecution evidence and held that the charge was clinched. He convicted the accused of the offence and handed down a sentence of imprisonment for three years subject to confirmation by this court. I turn to the question of corroboration. 

In any sexual offence, if the person against whom the offence is alleged to have been committed is an adult, the court should warn itself that it is not safe B to convict on the uncorroborated testimony of the complainant but that if it is satisfied of the truth of the complainant's evidence it may nevertheless convict. This, as Miss Mapalala pointed out, is a rule of practice and not a rule of law. Evidence in corroboration need not be direct. It is sufficient if C it is circumstantial evidence connecting the accused with the offence, otherwise many such crimes could not be brought to justice. And depending upon the case, evidence in corroboration can consist of one single piece of evidence or several pieces viewed as a whole. D The conventional wisdom about that rule came from the 17th century English jurist Sir Mathew Hale, who wrote that "rape is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, the never so innocent". The rationale is the difficulty of disproving a false accusation and the possible damage to a man's reputation, especially if his E community is small and orthodox - belief oriented. And that for a multitude of reasons women may accuse men of sexual assaults to extort money, force marriage, satisfy a childish desire for notoriety, attain personal revenge or obviate a sense of shame after consenting to unseemly intercourse.  

Fearful of false charges and in this century much under the sway of Freudian notions about female fantasies, the Western law constructed protections around a rape accused that were, it is said, the envy of murder accused. There has been a change in attitude in some countries. In some Western jurisdictions the law no longer believes that words of a woman are not to be trusted and when a woman proclaims herself a G victim of rape her testimony receives the same respect as that accorded any man. However, some bizarre cases have unfortunately, given a kind of shudder to that viewpoint. The example par excellence is Detson's. A woman called Cathleen Webb happened to declare this year that she had H lied in 1979 when she accused Detson of raping her. Her testimony and the evidence found on her body and her clothes had the poor man sent to prison for 25 to 50 years! That is perhaps by the way. Our law here still faithfully observes Hale's admonition. I The trial magistrate did not stop to warn himself of the danger to convict without corroborative evidence. In my view, it was not necessary for him to do so. There was sufficient corroborative evidence. 

There was the evidence of A Akiza who saw the accused running off from the scene holding his trousers. There was the evidence of the balozi that the complainant showed up sustaining a bruise on her back and lips, which was consistent with her mouth having been gripped as she had recounted, and which also B was a manifestation of a forced sexual intercourse. I am in respectful agreement with the view expressed by the Republic that the evidence led against the accused was sufficiently positive and tangible to found the conviction. I therefore leave the conviction to stand. Rape is an enormous crime, no doubt. In Tanzania it is punishable by imprisonment for life with or C without corporal penalty. That demonstrates the intensity of the feeling of disgust with which the legislature views it. Incidentally other jurisdictions, olden and modern, express more intense opprobrium. To a great measure that is due to the stigma that is attached to the victim, if unfairly, D the humiliation and trauma that the victim invariably experiences the violation of her freedom of sexual choice and the threat which it poses to the security and morality of society. Ancient Babylonian law considered it a theft of virginity and its servants meted out hefty penalties. E According to the Code of Hammurabi a rapist was to be seized and slain. As to the Biblical Hebrews, both victim and villain shared the same fate of death by stoning. The first book of the Bible, Genesis, narrates the raping incident of Jacob's daughter Dinah and the violent retaliatory action taken by Jacob's sons on the rapist and his tribe. In Britain and USA convicted rapists F receive long prison sentences. A sentence of three years for rape cannot, in my view, be regarded as excessive or as wrong in principle. This was not a story of a young man and a woman going out for a dance, being fond of each other, and things getting out of hand. It was a deliberate planned and violent sexual attack. Indeed, it might be that the magistrate erred on the score of leniency. The G sentence is duly confirmed.

Order accordingly. H

1984 TLR p231

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