Makasi German v. R., Crim. App. 173-M-68, 24/5/68, Seaton J.

Makasi German v. R., Crim. App. 173-M-68,   24/5/68, Seaton J.

Accused and another were convicted of rape. Complainant and a girl-friend had gone to graze cattle in the bush. They were joined by accused and his friend, and the four of them drank a can of local liquor called “moshi.”

Complainant lay on her back to relax, whereupon accused had sexual intercourse with her; he then invited his friend to take his turn, which the friend did. Complainant said she was aware of what was happening, but that she was too tired and intoxicated to prevent it. Her girl girl-friend told essentially the same story; but she admitted that she had agreed, that morning , with accused and his friend that she would meet them that afternoon, and bring a friend willing to have intercourse with them.

            Held: “It is not every participation in a crime which makes a party an accomplice in it, and … where a witness is an accomplice in a very secondary sense or has acted from relatively innocent motives, corroboration of such a witness’ evidence whilst desirable is not essential. In the present case, the girl friend is not in the same category as those participants of offences who may likely to swear falsely in order to shift guilt from herself, or in the hope of obtaining a pardon, although it might be inferred that she was not a person of blameless character.” [Citing Rex. v. Wangirwa (1944) 11 E.A.C.A. 93] In the present case, the real difficulty is that the magistrate did not direct himself to the problem of corroboration in sexual matters. “This is a rule of practice, if not in law,” and it is not clear that accused would have been convicted had the magistrate attended properly to the issue. Conviction quashed.