S v Kauluma (CC 19-2019) [2020] NAHCMD 548 (30 November 2020)



4552950243840REPORTABLE00REPORTABLEREPUBLIC OF NAMIBIAHIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEKCase No: CC 19/2019 THE STATEvPAULUS KAULUMANeutral citation:S v Kauluma (CC 19/2019) [2020] NAHCMD 548 (30 November 2020)Coram:USIKU, JHeard:23 January 2020; 18 – 19 May 2020; 05 June 2020; 05 – 07 October 2020; 27 October 2020; 30 October 2020Delivered: 30 November 2020Flynote:Evidence – Witness – Single witness – Rape – Evidence of single witness need not be perfect in every respect – Court must satisfy itself that the truth was told – Regard also be had to the rest of the evidence.Summary:The accused is charged with five counts of rape with therein alternatives, committing or attempting to commit a sexual act with a child under the age of 16 years. He pleaded not guilty to both the main and alternative charges. The allegations are that the accused raped his 10 year old daughter on various occasions. The complainant testified about the rape incidences as a single witness.Held:An accused can be convicted on the evidence of a single witness even if there are slight defects, provided the Court is satisfied that the truth has been told.ORDERHe is accordingly convicted as charged on the first, second, third, fourth and fifth counts.JUDGMENTUSIKU J:[1]The accused before Court stood charged with five counts of rape alternatively he was charged with the offence of contravening s 4 (a) of the Combating of Immoral Practices Act 21 of 1980 as amended – committing or an attempt to commit a sexual act with a child under the age of 16 years, read with s 1, 3 and 21 of the Combating of Domestic Violence Act 4 of 2003 further read with s 94 of Criminal Procedure Act, 51 of 1977.[2]After the charges were put to him, the accused tendered pleas of not guilty to the main charges as well as to the alternative charges. For the purposes of this judgment, I will not refer to the accused and the victim or mother’s name in order to protect the victim’s identity.[3]Mr Muchali, who appeared on the accused’s behalf, confirmed the plea of not guilty on the main charges as well as on the alternative charges. Indicating that they were in accordance with his instructions. [4]A plea explanation in respect of Counts 1, 2, 3 and 5 was to the effect that the accused did not at any point as alleged, have sexual intercourse with the complainant.[5]Further that in respect of the fourth (4) count, a plea explanation is to the effect that accused did not dispute to have had sexual intercourse with the complainant because he was too drunk after he had consumed liquor. Further, the accused did not dispute the fact that a domestic relationship exist between them, which is of a father and daughter.[6]The Summary of Substantial facts states as follows: That during the year 2017 and 2018, the accused on various occasions would have sexual intercourse with his ten year old biological daughter, whom he would accost and sexually assault when her mother was not at home. The victim, as a result of such sexual intercourse, fell pregnant and had to be subjected to abortion procedures on the 6th of July 2018.[7]The following documents were admitted into evidence by consent between the State and the defence as Exhibits: The indictment as Exhibit “A”. The summary of substantial facts and list of witness as Exhibit “B”. The State’s Pre-trial Memorandum as Exhibit “C”.(d)The reply to State’s Pre-trial Memorandum as Exhibit “B”. [8]Mr Khumalo appeared on behalf of the State.The State’s Case[9]Herein below is the Summary of the evidence of witnesses for the State.[10]Mr Ismael Mutorwa: He testified that he was employed by the Namibian Police at Walvisbay and attached to the Department of Scene of Crime. He has been in the force for the past eight years. [11]His duties are to take finger prints, as well as measurements at the crime scenes. He also collects and preserve evidence. He was trained at the Patric Iyambo Police College on how to follow footprints. His training was for six months.[12]On the 12 of June 2018, whilst on duty, he was contacted by a detective who requested him to attend to a crime scene. He complied and then took photographs of the alleged crime scene as explained to him by detective Ndinomupya. There were other persons present on the scene, the alleged victim as well as her mother. He took the photographs of the house, whereafter he was led to a room and also took photographs of the room. A bed was pointed to him by the victim which he also photographed. He later compiled a Photo plan which was tendered into evidence as Exhibit “E”. The defence did not object to the photo plan. [13]The photo plan compiled by detective sergeant Mutorwa with negative number 153/2018 consist of four photos in number.Photo 1:Indicates the house in Kuisebmund HNO 1221 Barber Street where the alleged incident took place.Photo 2:Indicates the entrance to the room where the alleged incident took place.Photo 3:Indicates the set-up of the room where the alleged incident took place.Photo 4:is the same as photo 3 andPhoto 5:is the same as on photo 4. [14]Mr Mutorwa conceded that apart from the photo plan he had compiled, he had no other evidence incriminating the accused. He did not collect any forensic evidence from the scene. [15]Selma Kauna Shangula: She is a Chief detective Inspector based at the Gender Based Violence department, Walvisbay. She has been with the force for 19 years. She came to know the alleged victim during 2018 after she had been referred to her by a social worker from the Ministry of Health and Social Services after an alleged rape incident. She proceeded to investigate a rape case and took the victim’s statement on 12 June 2018 at the Gender Based Violence Subdivision at Walvisbay. [16]The Statement was taken in the presence of a social worker who acted as the victim’s guardian at the time. With the use of artificial dolls, the victim demonstrated what transpired. The dolls used were anatomic dolls with the aim to clarify certain issues, and the terms the victim had used in the Afrikaans language by pointing out the body parts on the dolls referred to by the victim. [17]Photos were taken as the victim demonstrated what had happened, whereafter they were printed out and given to the investigating officer. A photo plan was then compiled by herself. The photo plan compiled by Detective Chief Inspector Shangula was admitted into evidence and market Exhibit “F”. Photo 1 of Exhibit “F” shows the victim holding the male doll, pointing to the body part (Penis which she referred to as “Piel”).[18]Photo 2 shows the victim indicating on the doll what she referred to as “Koekie”, (the vagina). Photo 3 shows the victim indicating the position in which she was when the accused person removed her pants. Photo 4 shows how the accused person was dressed prior to the incident(s). Photo 5 shows the position in which the victim and the accused person were laying on the bed. Photo 6 shows the victim illustrating how the accused person pushed his “piel” (penis) into her koekie/vagina (sexual act). Photo 7 shows the same position as in photo 6. Photo 8 shows the same position in photo 6 and 7 respectively.[19]Ms Shangula in cross examination explained that she took the victim’s statement in her mother’s absence in order to avoid any possible influence and also because the victim’s mother was a witness. She first had to build a relationship with the victim in order for the victim to feel at ease and communicate in a better relaxed mood.[20]According to her, the victim specifically made reference to the father who was disturbing her and made reference to the terms “piel” and “koekie” which she then demonstrated by using the anatomical dolls to show the human private organs. She explained that the incidences took place during 2017, January 2018, February 2018, April 2018 as well as May 2018 at their residence. [21]Ms Shangula’s testimony further indicates that according to the victim, she was threatened with physical assault by the accused if she ever told anyone what had transpired. She only disclosed what had occurred after her mother had confronted her whether she was having a boyfriend. That was when she told her that her father used to put his penis into her vagina. At that time, she was pregnant, though she did not know how far her pregnancy was. The rape acts were allegedly committed in the room while the other young siblings were asleep.[22]Johannes Kandenge: He was employed by the Ministry of Defence, at the Navy Department at Walvisbay at the time of the incident. The victim’s mother is his cousin and the victim is his niece. The accused has been married to his cousin and they have been husband and wife ever since. On 10 June 2018, he received a call from the victim’s mother requesting him to go to their house. He left for the victim’s house and arrived there at about 12pm.[23]At the house, he met the victim’s mother, the accused and their children. The victim’s mother requested the younger children to leave the house. After the younger children had left the house, the victim’s mother informed him that the victim was impregnated by the accused. He then asked the accused whether it was true. The accused responded by indicating that there was a day when he consumed liquor, whereafter he got home and found the children laying on the bed with their legs on top of each other. He decided to make them lay properly whereby in the process, he touched the victim on her legs, and further proceeded to touch her on her vagina. The accused persisted that he only touched her on the vagina. When he questioned him how the victim got pregnant by only being touched on the vagina, the accused did not respond. [24]After a while, the victim’s mother decided to call the accused’s cousin to also come to their house. The accused’s cousin arrived and was informed about the victim’s pregnancy by her father. The accused was again confronted by his cousin. He did not respond but kept quiet. As they pondered about what they should do, the accused suggested that the victim must go for an abortion as she was too young. He made reference to a certain concoction which the victim could drink in order to abort the fetus, though he could not say what the concoction was or where it could be obtained. [25]Mr Kandenge thereafter left for his house. Upon his arrival, he called the victim’s mother to go and see him. The victim’s mother arrived at his house and he advised her to instead take the victim to the local clinic.[26]According to Mr Kandenge, the victim related to him that the incidences occurred mostly when her mother was away from home. He persisted that the victim had explained to him that the incidences occurred on their bed, whereby the accused would get on her side of the bed where she laid.[27]As the trial progressed, an application was made by the State in terms of s 158 (A) of the Criminal Procedure Act 51 of 1977 to have the vulnerable witness testify in a victim friendly special arranged Court, because she was under the age of 18 years. Also that the Court be held in camera and a social worker be provided to be a support person. The application was granted without opposition from the defence.[28]In the meantime, the victim’s mother also testified before Court. Her testimony is very comprehensive. The accused married her on the 17 December 2011. They are still husband and wife. They were blessed with the first child (who is now the victim) born on the 9 May 2007. A certified copy of her birth certificate was admitted into evidence and marked Exhibit “H”.[29]During 2017 she got employment with Tunacor, a fishing company in Walvisbay. Since 3 June 2015, she has been mostly working on night shifts and would rarely work on day shifts. Apart from the victim, she and the accused also have two other children aged seven and three years respectively. They were also raising another child aged eight years old at the time.[30]Because of her night shift work, they had an arrangement that the accused would take care of the children during the night. During 2017, the victim turned 10 years old and she became aware that the victim had started to menstruate in December 2016. She became worried about the early menstruation as the victim was still too young. [31]She took it upon herself as a mother to constantly have an eye on her and to check when she had her menstruation each month. She also taught her how to take care of herself. She started to monitor her menstruation circle. During May 2018, the victim left for the north on holidays. She returned from her holiday in May 2018, before school started. She could not recall the exact date when the victim returned from the north, but she asked her whether she had her menstruation, to which she responded in the negative.[32]Having been told by the victim that she did not have her menstruation, she left it that way thinking that it could be a change in her menstruation circle and waited for a while. At the end of May 2018, when the victim still did not have her menstruation, she asked her whether she was having a boyfriend. The victim denied that she had a boyfriend. She became more concerned and decided to go and buy a pregnancy test kit, which she used to test the victim. The test came out positive and she again asked the victim if she had a boyfriend, which she again denied.[33]The victim’s mother informed the accused about the positive test whereafter she called in the victim in the presence of the accused. She again asked the victim if she had a boyfriend, which she denied. She then asked the victim whose pregnancy it was but she again kept quiet. She threatened to take the victim to the police station in order for her to explain who impregnated her. She became afraid and made the revelation that it was the accused who impregnated her. The victim further explained that when her mother left for duty at night, the accused would get on their bed and have sexual intercourse with her. The accused denied the allegations, whereafter the victim started to cry and shouted that it was her father who had sexual intercourse with her, and that she was telling the truth. According to the victim’s mother, accused admitted that he used to go to the children’s bed.[34]The victim’s mother thereafter decided to call in her cousin as well as the accused’s cousin. In the presence of the victim, her mother and her cousin, the accused admitted to have had sexual intercourse with the victim. Accused also admitted to have had sexual intercourse with the victim to his cousin who was called in by the victim’s mother, and asked for forgiveness.[35]When the accused’s cousin questioned him why he did so, he responded that he was drunk. The accused persisted that he did it only once, contrary to the victim’s version that it did not happened once but on several occasions. The accused blamed the devil spirit for his actions.[36]According to her, she took the victim to hospital and was referred to a social worker. The accused was then arrested on the 11 June 2018 and was remanded in custody. The victim was taken to hospital and the pregnancy was legally terminated.[37] The victim’s mother testified further that she did not ask the victim how many times the sexual acts had taken place between her and the accused, though the victim had told her that it did not happen only once. When she asked the younger children if they had seen what happed, none of them could confirm because they were asleep, they were also too young at the time. She was therefore not in a position to tell the Court with certainty how many times the accused had committed sexual acts with the victim. [38]The victim testified before Court in Camera. At the time of her testimony, she was aged 13 years old. The accused is her biological father. [39]According to her testimony the accused would get on their bed, which she shared with her younger siblings both boys. Accused would take out his penis and put it into her vagina and start to make movements. That started during 2017 and it continued during January 2018, February and also during May 2018. It was only after she returned from her holidays from the north, that the accused stopped to commit sexual acts with her. [40]The victim testified that she did not disclose what was going on due to fear of being assaulted, as her father had threatened her with physical assault, should she tell anyone about what was going on. She persisted in her testimony that the incidences of sexual intercourse happened on many occasions when her mother was away from their house on night shift duties.[41]The victim vehemently denied the allegation that accused had been drunk during the sexual acts and testified that accused did not smell alcohol at any given time. He had been sober when he engaged in the sexual acts with her. [42]Ms Martha Ndeshipewa Kakondo: She testified that she is a medical doctor qualified with an MBCHB from a Russian University in June 2015. She completed her internship in January 2018 in Windhoek, whereafter she was employed as a medical doctor from the 5 March 2018 at the Walvisbay State Hospital. As a doctor at the Walvisbay State Hospital, she worked at the Out Patient Department seeing day-to-day patients, as well as attending to chronic patients. She also did ward rounds. She would attend to other emergencies such as assault, rape and murder cases.[43]On 11 June 2018 whilst on call, she examined the victim and compiled a medical report which was handed in as Exhibit “I”. She recognised the report from her handwriting as well as her signature which appear on all pages. The victim’s history was narrated to her by the mother. The victim was 11 years old at the time.[44]Her observations was that the victim was stable and calm. She sat quietly as the mother did the talking. She had no injuries, neither fractures. She was not under the influence of intoxicating liquor. The victim was presented three months after the alleged incident. As such, she did not do the full examination. [45]According to the doctor, when she enquired from the victim about her last menstruation, she responded that it was during April 2018. She questioned the exact date in April. The victim’s pregnancy was confirmed through urine test whereafter a sonar was also done to confirm the urine test. The sonar confirmed that the victim was pregnant and it was an intrauterine pregnancy as opposed to ectopic pregnancy. The sonar showed a gestational sac with a fetal heart present. A foetus within the sac could be seen and one could also see the fetal heart’s movements. When the doctor did the measurements, the gestational age came to nine weeks, representing the size of the foetus. The victim was thereafter referred to a gynaecologist. [46]Having referred the victim to a gynaecologist, the doctor completed a form in which she stated that the victim had not been previously submitted to a medical practitioner in terms of s 6 (1) of the Abortion and Sterilisation Act of 1975 as amended with regard to the termination of pregnancy or abortion, whereafter she appended her signature on the form referred to. The form which is an affidavit was admitted into evidence and marked as Exhibit “K” before Court. When cross-examined by the defence, the doctor gave an opinion that the foetus would have been conceived somewhere towards the end of April 2018.[47]Joseph Haingura Siremo: He is a medical doctor having obtained a Bachelor’s degree in Medicine and Surgery in 2015 at a Russian University. He did a two year internship at the Katutura State Hospital whereafter he worked for a year and few months at the Department of Obstetrics and Gynaecology. During the course of 2018, a patient was referred from Walvisbay State Hospital to Katutura State Hospital for the termination of pregnancy. She is the victim herein, and came with a Court order for termination of pregnancy. The patient was 11 years old at the time. [48]As a result of the order, he inserted four tablets of cytotec in the vaginal opening of the victim in order to induce contraction and opening of the cervix for expulsion. After the cytotec tablets where inserted, he waited for the process to begin naturally until the foetus was expelled. Finally it was expelled and he confirmed that it was a foetus. The foetus was thereafter handed over to the investigating officer. [49]Having had the foetus expelled, he also had to confirm whether other products of conception were expelled such as membranes which comes with the foetus. A sonar was done to confirm whether everything was out. He discovered that not everything had come out and had to do a manual evacuation, by using an instrument which is inserted into the vagina to suction the membranes in order to prevent infection. He managed to do the manual evacuation whereafter another sonar was done to confirm that everything was out, which was indeed confirmed. [50]Tuyenikeleo Nakalemo: She is employed by the Ministry of Safety and Security at the National Forensic Science Institute as a forensic scientist. She holds a Bachelor’s Degree in Science from the University of Namibia obtained in 2008. Her duties are to do DNA analysis which starts with a process from the screening of exhibits after which DNA analysis is done. The screening would entail the examination of physical exhibits submitted to the National Forensic Science Institute, such as blood or semen on specific exhibits. She also attended to crime scenes. [51]With regard to the matter before Court, she was responsible to get the case from the administration and to take pictures for the chain of custody. She confirmed that the exhibits were received at National Forensic Science Institute in a good condition, sealed in the forensic evidence bags. The bags had not been tempered with. Pictures of the bags were taken and the exhibits were forwarded for DNA analysis by other scientists. After she had taken the photographs of the exhibits, she compiled a report which was designated as R1. (ie Report 1). She is the author of the report which bears her signature on all pages. The Report R1 was admitted into evidence and marked as Exhibit “L” containing photographs taken by herself. [52]The Report consisted of 6 pages with the logo, National Forensic Science Institute. The lab number for the case is 1696/2018. The CR Number is 22.06.2018 and the report was compiled on 12 March 2019. The case originated from Kuisebmund. The report further states that on 30 August 2018, exhibits were submitted to the National Forensic Science Institute by Detective Warrant Officer Skrywer of force number 06443 by hand.[53]The photograph of the application for examination form submitted to National Forensic Science Institute was allocated a lab number of 16169 of 2018. It also shows the exhibit that was submitted which is Exhibit “A”, a sample of oral easy collect and a swab for blood from the foetus sealed with number 15DBNA330355 in Exhibit bag FNC 30682.[54]Exhibit “B” was found sealed in, and it was a 1 sample of oral easy collect from the victim sealed with number 15DBNAA 2484 in exhibit bag FNC32812.[55]Exhibit “C” was 1 sample of oral easy collect from the suspect sealed with seal number 15 DBNAA2482 in exhibit bag NFC32810.[56]Exhibit “A” was found sealed in NFC30682 and the second photograph is the content that was found in the evidence bag, NFC32812, the first photograph is how the exhibit was sealed and the second photograph is the content that was found in the NFC bag.[57]Exhibit “C” found sealed in NFC38210 and the second photograph is the contents that was found in the evidence bag. Her findings were that sufficient amount of submitted exhibits remained for subsequent STR typing, which means that there were enough exhibits for DNA analysis which was then done by someone else.[58]In cross-examination Ms Nakalemo when confronted about why she did not compile her report in terms of the Criminal Procedure Act, persisted that at their genetic section they do not make use of affidavits as such, but their policy is to compile reports. According to her, it is only the chemistry and the ballistic sections that generate affidavits. On the issue why the R1 report was co-signed by another scientist, she testified that it was meant for purposes of quality assurance. Further it was her contention that the National Forensic Institute has a policy not to accept, or receive any exhibit that is not sealed or appear to have been tempered with. She confirmed that all the exhibits were properly sealed.[59]Mr Stefanus Tulonga Ndinomupya: He is a police officer employed at the Department of Gender-Based Violence Protection subdivision at Walvisbay. He has been in the force since 2009. On 11 June 2018, he arrested the accused at his house on a charge of rape which was reported at their offices by his wife. The accused was taken into custody and the victim’s statement was taken by Detective Chief Inspector Shangula. His right to remain silent and to get a lawyer of his own choice were explained to him in the language he understood well. Having been informed by the victim’s mother that the victim was pregnant by her father, the officer applied for the pregnancy to be terminated after consultation with Chief Inspector Shangula and the victim’s mother. The victim was then referred to Walvisbay State Hospital whereafter she was referred to the Katutura State Hospital, where the pregnancy was finally terminated. According to him, he received the product of conception from Dr Siremo which he took to the police mortuary. DNA samples were taken by a doctor, whereafter the foetus was placed in a forensic bag, sealed and handed over to him. He left with it to Walvisbay.[60]Due to the need to establish whether the victim was allegedly raped by her biological father, the officer obtained saliva sample from the accused in order to do further tests to determine paternity. These samples were forwarded to the forensic lab in Windhoek and a request for DNA test was made to determine the lineage between the sample from the accused, the foetus and the victim. [61]Mr Ndinomupya also testified that whilst at the police mortuary, he took photographs of the foetus and compiled a photo plan. He also took a statement from Dr Siremo and took possession of the victim’s medical card indicating the date of her admission to the Katutura hospital until the date of her discharge. The photo plan was admitted into evidence as Exhibit “M” and consisted with following items:Photo 1 of Exhibit “M” shows the red plastic bag containing the product of conception.Photo 2 shows the same plastic bag as in photo 1.Photo 3 shows the yellow container taken from the plastic bag in photo 1and 2 containing the product of conception. Photo 4 shows the same container in photo 3 with writings on the yellow container.Photo 5 is showing the same container as in photo 3 and 4.Photo 6 shows the product from the container in photo 5.Photo 7 shows the product of conception as seen in photo 6.Photo 8 shows the same product of conception (foetus) as seen in photo 7. [62]During cross-examination, the witness explained that the samples were kept at their offices in Walvisbay before they were forwarded to the National Forensic Science Institute for analysis. They had been kept safely in a refrigerator.[63]Maryn Swarts: She testified that she was employed at the National Forensic Science Institute as Head of the Genetic section from 2012 up until 18 March 2020 when she joined Journey Matt Enterprise as a Laboratory Sale Manager. [64]Whilst employed at the National Forensic Science Institute, her duties included administrative tasks and also the design and review of all evidence collection kits currently in use in Namibia. Amongst other duties, she was also tasked with opening and screening cases and doing DNA analysis. She was the sole reporting officer of the National Forensic Science Institute in terms of DNA evidence. By being the sole reporting officer, she further explained that this meant that the result of DNA analyses were interpreted by her and reports were generated based on the interpretation done on the DNA analysis. She further confirmed that the report on the DNA analysis carried out in this matter was indeed the one prepared by her for purposes of this specific case, through instructions and samples received by the National Forensic Science Institute in respect of this case.[65]Going through the report, she identified exhibit “A” to be a foetus, exhibit “B” is a sample taken from the victim and exhibit “C” a sample taken from the accused. These samples were used for comparison purposes and the DNA analysis resulted in the confirmation that the accused has a 100% probability to be the biological father of the victim and further that the accused also has a 100% probability to be the biological father of the foetus. In essence, she confirmed that the accused is both the father of the victim and the legally aborted foetus from the victim.[66]During cross-examination she was questioned on what standards the report generated by her and ultimately the National Forensic Science Institute were based on, with the view that the National Forensic Science Institute utilises computer software not accredited by any accreditation body in Namibia. She responded that the software programs utilised by the National Forensic Science Institute are based on international scientific standards and were never challenged in court to date. In other words, the universal principle upon which the software to analyse DNA used by the National Forensic Science Institute are assumed to be applicable in Namibia. She further testified and confirmed that the DNA profiles of accused being the father of the foetus and the victim cannot be excluded by scientific evidence at hand.The Accused P K[67]He testified in his own defence and elected not to call any witness. He briefly gave his background that he was born in 1972. He is currently 48 years old. He further testified that he was employed as a building contractor at Frans Buildings Construction. He is still married to the victim’s mother with whom he has three children. The victim is the eldest of the three children. He was residing with his family in Kuisebmund, Barber Street in a flat that he was renting from his employer.[68]He further testified that the room that they were residing in was not specifically demarcated. It was merely a room with two beds. He shared one bed with his wife whilst the toddlers would share the other bed. He confirmed that his wife commenced with night shift duties around 2017 when she obtained employment with Tunacor, and this remained up until he was arrested.[69]He confirmed that he was arrested on charges of rape of his biological child, being the victim in this matter. Regarding the rape allegations, he admitted that he indeed raped the victim. His defence is however that he had consumed alcohol referred to as “Tassenberg”. According to him, he arrived home late in the evening, whereafter one thing led to another, whereby the victim started to touch him around the rib area and mouth. That led him to have sexual intercourse with the victim.[70]He could not recall the quantity of alcohol he consumed. He also consumed a home brew alcohol beverage. He confirmed that he went home at around 20h00 in the evening and slept at around 23h00. He however could not recall the exact date, only that it was in April 2018.[71]He narrated that upon his arrival at home, he was still fine, however, when he finally went to bed, he became more drunk. According to him, he could remember everything well but his memory became challenged as he slept. When he woke up later that night, he became more drunk than earlier. His only explanation why he had sexual intercourse with the victim was due to the consumption of alcohol.[72]The accused related how the victim was sent to the north during school holidays and whilst there, the grandmother called them informing them that the victim was not eating due to lack of appetite. The victim’s unwillingness to eat continued even when she returned home from the north. They were troubled by the victim’s behaviour which led his wife to visit the pharmacy to buy a pregnancy test which confirmed that the victim was indeed pregnant. When the victim was confronted about who was responsible for the pregnancy, she confirmed that it was him. [73]With regard to the five counts of rape preferred against him, accused confirmed that he only had sexual intercourse with the victim around the month of April 2018, denying all the other incidences of the alleged rapes.[74]When confronted during cross examination whether he did not find it strange for the victim to be touching him on his ribs, accused responded that he did not find it strange due to his drunken state and could not withstand it and ended up engaging in sexual intercourse with the victim. Only later did he realise that what he has done was wrong. Accused denied having initiated the sexual act, blaming it on the victim. He also blamed the devil.[75]As alluded to, the accused is charged with five counts of rape. Alternatively, he is charged with contravening s 14(a) of the Combating of Immoral Practices Act 21 of 1980 as amended. Both main and the alternative charges are read with s 94 of the Criminal Procedure Act 51 of 1977. Further read with the provision of the Combating of Domestic Violence Act.[76]In order to secure a conviction in this case, the State is obliged to prove beyond reasonable doubt the commission of one or more offences by the accused person on each and specific count.Counts one, two, three and five [77]It is now common cause that the accused, whilst facing the different counts of rape alternatively the commission or attempting to commit a sexual act with a child under the age of 16 years, read with s 1, 3, and 21 of the Combating of Domestic Violence Act, these are read with s 94 of the Criminal Procedure Act 51 of 1977. He has denied to have committed these crimes on different occasions but admitted to have committed a single sexual act with the complainant only during the month of April 2018 which relates to the fourth count. [78]Contrary to the complainant’s testimony that the sexual acts were committed on different occasions firstly during 2017, January, February and March 2018, the sexual acts were committed at their house during the night when the complainant’s mother was at work on night duty making it difficult for the victim’s mother to find out. [79]It is common cause that the complainant’s evidence regarding the incidences of rape on various occasions by the accused is single witness and should therefore be treated with caution. However, s 208 of the Criminal Procedure Act 51 of 1977 provides for a conviction of any offence on the single evidence of any competent witness. It is also common cause that the cautionary rule that use to apply to the evidence of young children has since been abolished by s 2 (b) of the Criminal Procedure Act of 2003, by adding to s 164 of the Principal Act the following ss which provides …‘4. A Court shall not regard the evidence of a child as inherently unreliable and shall therefore not treat such evidence with special caution only because that witness is a child.’ [80]It therefore remains the Court’s duty to evaluate the evidence as a whole which must be done on the same basis as it would, regarding the evidence given by other (adult) witnesses. The proper judicial approach is therefore to consider each case on its merits and the question a Court must ask itself is whether the evidence of the young witness is trustworthy. From a number of decisions, it is clear that single evidence need not be perfect, but must be clear and satisfactory in every material respect (S v Arthman). At the end the Court must be satisfied beyond reasonable doubt that the truth has been told, despite the witness being an unsatisfactory witness in some respects. [81]Indeed, the proper approach in a criminal case is to consider the totality of the evidence, that is to say, to examine the nature of the State’s case, the nature of the defence’s case, the probabilities emerging from the case as whole, the credibility of all the witnesses in the case including the defence witness, and then to ask oneself at the end of all these, whether the guilt of the accused has been established beyond reasonable doubt.[82]The complainant in this case throughout her testimony persisted that the rapes were committed on various occasions and made reference to the year 2017 when she was first raped, it continued in the presiding months of January, February and March 2018 which clearly account for the incidences of rape the accused have been charged with, bearing in mind that the provisions of s 94 of the Criminal Procedure Act 51 of 1977 have been invoked. On the other hand, the accused’s version is a mere denial. Accused only seems to admit to the sexual act during the month of April 2018 because the victim fell pregnant and there is over whelming evidence through DNA testing done on the victim, the accused and the foetus. There is no plausible reason why the victim would fabricate a false story of being repeatedly raped by her father during 2017, January, February and March 2018. Though she could not with certainty indicate on which dates the sexual acts were committed, that should only be due to the lapse of time and one should not lose sight of the fact that the complainant at the time was a minor child aged between 10 – 11 years. She immediately told her mother that the sexual acts did not happen once but on several occasions at the earliest time she had the opportunity to do so. Her evidence was consistent and straight forward. [83]As regard the issue of coercive circumstance, the victim at the time of the sexual acts was aged 10 years, under the age of 14 years and the accused 46 years which means he was more than three years older than the victim. The accused and the victim lived together in the same house.[84]Furthermore, the complainant specifically gave details how the accused, her biological father, continuously committed sexual acts with her. She could not have consented to those sexual acts. Explicitly the victim explained the accused would take out his penis and put it into her vagina as she tried in vain to push him out, during those separate incidences, however due to fear, she did not tell anyone. She denied that the accused had been drunk.[85]On the other hand when accused testified, he blamed the complainant claiming that she was the initiator of the sexual act which occurred during April 2018, to which he had admitted. He has denied the rape allegations on the first, second, third and fourth counts respectively.[86]It must however be noted that during the cross examination of the complainant, such version of the victim having been the initiator was never put to her in order for her to either confirm or deny such allegations. The rule to put the defence case to State witnesses has long been a practice in our Courts and is followed to ensure that trials are conducted fairly; that witnesses have the opportunity to answer challenges to their evidence and that parties to the suit know that it may be necessary to call corroborating or other evidence relevant to the challenge that has been raised. S v Boesak where it was held that a Criminal Trial is not a game of catch-as-catch-can.[87]The accused in his testimony had demonstrated to the Court that he is not telling the truth about what had transpired, because he went on as far as denying the presence of Mr Kandenge at their house where he was confronted about the victim’s pregnancy. That fact was also not put to the witness when he testified before court neither to the victim and her mother.[88]With regard to the incident in April 2018 to which he had admitted, he raised a defence of having been intoxicated, though he could still recall all events that happened during that evening when he arrived at his house. It is trite that if one is so drunk that he/she is not conscious of what he or she is doing is not liable, because a muscular movement done in that condition is not a criminal act. That however is not the case before Court. [89]The accused as indicated was not so drunk so as not to appreciate what he was doing. The victim also testified that her father was not drunk and did not smell alcohol when they were in close proximity. The question begs an answer why the accused, if he was too drunk, could recall in detail about their child crying, the victim asking him to watch TV and then him refusing to give the remote control. Surely that cannot be the case if he was too drunk. The mere fact that the accused could not recall later what he did does not render his conduct criminally not responsible.[90]Accused committed the sexual acts with the victim whilst her mother was away on night shift, which was meant to hide those sexual acts so as not to be found out by his wife. With regard to the defence’s submissions that the victim did not scream or did not sustain injuries, it is not a requirement for one to suffer injuries to be said that she was raped. Furthermore, it is now common cause that swabs were taken and forwarded to National Forensic Science Institute for forensic analysis. Ms Maryn Swarts, a Chief Forensic Scientist, compiled the Report Exhibit “N” and concluded that the reference sample NFC – 32812 taken from the victim and reference sample NFC – 30682 which was a foetus and reference sample NFC – 32810 was taken from the accused and the sample designated as P K the accused herein. Through the DNA analysis, she made inferences that P K cannot be excluded as a possible biological father of the victim and also could not be excluded as a possible biological father of the foetus. [91]Hence she concluded that the accused being the biological father of the foetus is 100%. Such evidence is reliable when determining whether the accused had committed a sexual act with the victim resulting in the court ordering an abortion. It is also clear that the accused had intimidated the complainant as a young child physically and emotionally as a result of which she had given in to him. Accused could also not have entertained a bona fide belief that his daughter, who is a minor aged 10 years, had consented to sexual intercourse on any of the occasions.[92]It then follows that such submission by itself is no grant of consent, because if a man so intimidated by a women or girl as to induce her to resistance and submit to intercourse to which she is unwilling, he commits the crime of rape. It cannot therefore be argued that since the victim did not scream, she consented to have sexual intercourse with her own father. [93]Accordingly this court is satisfied that it was proven beyond reasonable doubt that the accused was not so intoxicated because of the liquor he had consumed to make him not know what he was doing when he had sexual intercourse with his daughter during the month of April 2018, to which he had actually admitted.[94]He is accordingly convicted as charged on the first, second, third, fourth and fifth counts.----------------------------------D N USIKUJudgeAPPEARANCES:STATE:Mr KumaloOffice of the Prosecutor-GeneralWindhoekACCUSED : Mr Muchali Instructed by Directorate of Legal Aid Windhoek ................
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