Lawrence Machara v The State

The appellant (27 years old) was charged with three counts of rape of a 13-year-old complainant in contravention of section 65(1)(a) of the Criminal Law (Codification and Reform) Act. Both parties resided at the same property in Bulawayo, where the appellant's grandmother was the landlady and the complainant was a tenant. The state alleged that in mid-October 2011, the appellant raped the complainant on three separate occasions. The complainant borrowed money from the landlady on the appellant's instructions. The matter came to light on 8 December 2011 when the complainant's sister learned of the borrowed money and threatened to assault the complainant with a switch, whereupon the complainant disclosed the allegations. The appellant denied the charges, stating he never had sexual intercourse with the complainant and presented evidence that he had been circumcised during the relevant period. At trial, he was acquitted of rape but convicted of three counts of having extra-marital sexual intercourse with a young person under section 70(1)(a) and sentenced to 36 months imprisonment (12 months suspended).

• Whether the complaint in a sexual case was admissible in evidence
• Whether the complaint was made voluntarily without inducement or intimidation
• Whether the complaint was made without undue delay at the earliest reasonable opportunity
• Whether the complainant was a credible witness
• Whether the state proved the commission of any sexual intercourse beyond reasonable doubt

The appeal against both conviction and sentence was allowed. The conviction on all three counts of having extra-marital sexual intercourse with a young person was set aside and the sentence of 36 months imprisonment (12 months suspended) was quashed.

For a complaint in a sexual offence case to be admissible in evidence, it must satisfy two cumulative requirements: (1) the complaint must be made voluntarily, not as a result of questions of a leading, inducing or intimidating nature; and (2) the complaint must be made without undue delay, at the earliest reasonable opportunity, to the first person to whom the complainant could reasonably be expected to make it. A complaint induced by threats of physical assault fails the voluntariness requirement and is inadmissible. Once complaint evidence is inadmissible, if it forms the foundation of the state's case, the prosecution cannot succeed. Even after abolition of the cautionary rule in sexual cases, courts must carefully assess whether the complainant has told the truth, examining the evidence for consistency and probability.

The court observed that the prosecutor had a duty to establish precisely when the complaint was made and failed to do so adequately. The court noted it was "baffling" that despite numerous inconsistencies emerging in cross-examination, the prosecutor conducted no re-examination. The court commented that the medical report was "ineffectual as evidence" given the complainant's concession that she was not a virgin when the alleged offences occurred. The court expressed that the complainant's evidence was "redolent of contradictions and improbabilities" and that she was "blatantly not a credible witness," suggesting the trial magistrate should have dismissed her story "off hand in its entirety."

This case reinforces the strict requirements for admissibility of complaint evidence in sexual offence cases in Zimbabwean law, particularly emphasizing that both voluntariness and timeliness must be satisfied. It demonstrates the court's vigilance in ensuring that complaints induced by threats or intimidation are inadmissible regardless of other factors. The case also highlights the importance of credibility assessment in sexual offence cases following the abolition of the cautionary rule, requiring courts to carefully examine the complainant's testimony for consistency and probability. It serves as a safeguard against wrongful convictions based on coerced or unreliable evidence.