The appellant and his co-accused Tichavaona Chiutsi were convicted of rape as defined in s 65(1)(a) of the Criminal Law (Codification and Reform) Act. The complainant was a mentally incompetent female person. The complainant testified that Tichaona took her bag and forced her to drink a beverage containing raspberry and Zed flavours, after which she felt dizzy. Tichaona then raped her twice in the appellant's room. The appellant's role was to caress the complainant's body from her breasts to her thighs during the rape, and he was present in the room smoking cigarettes while the rape occurred. The rape took place in the appellant's room where he was the occupier. The appellant claimed he was mentally disabled and was taken advantage of by his co-accused. Medical reports indicated he had mental retardation with an IQ score of 51, reflecting intellectual disability. The appellant was sentenced to 5 years imprisonment of which 2 years were suspended on condition of good behaviour. He appealed both conviction and sentence.
The appeal against both conviction and sentence was dismissed in its entirety.
A person can be convicted as an accessory or accomplice to rape under s 76 of the Criminal Law (Codification and Reform) Act where he: (1) is the owner or occupier of premises where rape occurs; (2) knowingly permits another to commit rape on those premises; (3) actively participates in the crime even in a limited capacity such as by caressing the victim; and (4) witnesses the rape without taking steps to prevent it. Mental retardation or intellectual disability (including a low IQ score) does not automatically establish a defence of mental disorder or defect under s 227 of the Criminal Law (Codification and Reform) Act if the accused can demonstrate through his conduct and testimony that he could fully appreciate the nature and consequences of his actions. To successfully raise a defence of mental disorder or defect, the accused must: (1) properly raise the defence; (2) lead expert oral evidence to establish the mental condition; and (3) demonstrate on a balance of probabilities that the mental condition prevented appreciation of the wrongfulness or consequences of the conduct. An accused is presumed sane until the contrary is proved on a balance of probabilities.
The court observed that the State's concession under s 35 of the High Court Act was not ultimately accepted. The court noted that medical and psychological reports, while relevant, must be tested through oral expert testimony to have proper evidential value in establishing mental disorder or defect. The court commented that the appellant's defence outline implicitly demonstrated an alert mind cognisant of what is right or wrong, even while attempting to shift blame to the co-accused. The court also observed that although there was some confusion in the complainant's testimony, the fact that her mother focused on fondling of breasts while the complainant testified to fondling from breasts to thighs was merely a matter of detail and of no material significance.
This case clarifies the law on complicity in sexual crimes under s 76 of the Criminal Law (Codification and Reform) Act in Zimbabwe. It establishes that an occupier who knowingly permits rape on his premises and actively participates even in a limited way (such as caressing the victim) can be convicted as an accessory or accomplice to rape. The case also provides important guidance on the threshold for establishing a mental disorder or defect defence under s 227 of the Criminal Law (Codification and Reform) Act, holding that intellectual disability or being a slow learner does not automatically constitute a defence if the accused could appreciate the nature and consequences of his actions. The judgment emphasizes the need for proper expert evidence through oral testimony to establish mental disorder as a defence, and that the defence must be properly raised and substantiated.