The State v Kevin Moonsammy

On 26 December 2015, the accused, who was the grandfather of a 3-year-old complainant, was alleged to have raped the child in the evening in his room in the absence of the mother. After the alleged rape, a custodian woman with whom the child had been left became suspicious after noting the victim's strange way of walking. Upon examination, she allegedly discovered fresh sperms on the victim's pant and vagina. The victim disclosed that the accused had raped her when questioned. The custodian woman reported the matter to the victim's mother upon her return. The mother confronted the accused who denied the allegations but took no further action until 12 January 2016, when she discovered a foul-smelling discharge from the victim's vagina while bathing her. The victim again pointed at the accused when asked who had abused her. The accused was arrested and charged. He appeared at Bulawayo Regional Court on 24 February 2016 facing one count of rape in violation of section 65(1)(a)(b) of the Criminal Law (Codification and Reform) Act. He denied the charge and maintained his innocence throughout, stating he did not suffer from the disease the complainant had and that there were many women he could choose if he wanted to do such a thing.

• Whether the state proved the charge of rape beyond reasonable doubt
• Whether the complainant was a credible witness given the circumstances of her testimony
• Whether the trial magistrate properly assessed the accused's defence
• Whether the trial magistrate erred in allowing the complainant to undergo counseling in the middle of the trial
• Whether the trial magistrate provided adequate assistance to the unrepresented accused
• Whether the conviction was based on proper evidence or sympathy for the victim
• The application of the cautionary rule in sexual offences following S v Banana
• Whether DNA or forensic evidence should have been obtained

The conviction was quashed and the sentence set aside. The accused was found not guilty and acquitted.

The binding legal principles established are: (1) Allowing a witness to undergo counseling in the middle of a trial, particularly a child witness who has already shown reluctance to testify, has the potential of compromising and adulterating that witness's evidence, making it lose its purity; (2) A conviction cannot be sustained on the basis of finding a complainant credible where the record does not support such a finding and where the complainant's testimony was characterized by interruptions, postponements, and potential contamination; (3) A trial court must analyze both the state's case and the accused's defence - it cannot simply ignore the defence evidence without cogent reasons; (4) The failure to obtain available forensic or DNA evidence that could conclusively prove or disprove guilt, particularly where the accused challenges the state to obtain such evidence, may be fatal to a conviction; (5) Proof beyond reasonable doubt demands more than believing the complainant and disbelieving the accused - a defence succeeds wherever it appears reasonably possible that it might be true; (6) Trial courts have a duty to provide meaningful assistance to unrepresented accused persons in conducting their defence, including explaining and facilitating cross-examination; (7) Convictions based on sympathy for victims rather than on evidence meeting the beyond reasonable doubt standard are impermissible and will be set aside on review.

BERE J made important observations about the state of forensic investigations in Zimbabwe, noting that given the sprouting of DNA centres in the country, including at institutions of higher learning like NUST, there is absolutely no reason why investigating officers should not utilize this advanced and civilized way of carrying out investigations, particularly in murder and rape cases. The judge endorsed remarks made by MUSAKWA J about the absence of up-to-date forensic technology and DNA analysis in criminal investigations, noting that this may sometimes compromise the adequacy of evidence before courts and may result in guilty suspects getting off the hook or innocent people being convicted. The judge emphasized that "it cannot continue to be business as usual" in this regard. The court also observed that the reaction of the victim's mother in not immediately taking the child to hospital or reporting to police after allegedly receiving such a serious report from the custodian woman was inconsistent with normal practice, suggesting the report may possibly have been a fiction, which could lend credence to the accused's assertion that the custodian woman was setting him up.

This case is significant in Zimbabwean criminal law and procedure for several reasons: (1) It reinforces the principle established in S v Banana that while the cautionary rule in sexual offences has been abolished, courts must still exercise extreme caution in assessing evidence; (2) It establishes that allowing a witness, particularly a child complainant, to undergo counseling in the middle of a trial has the potential to contaminate and compromise their evidence - counseling should occur during investigations, not mid-trial; (3) It emphasizes that the trial court must properly analyze both the complainant's and the accused's evidence, and cannot simply ignore the defence; (4) It reinforces the duty of trial courts to provide meaningful assistance to unrepresented accused persons; (5) It highlights the importance of utilizing forensic and DNA evidence in sexual offence cases, particularly where such evidence could conclusively prove or disprove guilt; (6) It warns against convictions based on sympathy rather than evidence, reiterating that the state bears the burden of proving guilt beyond reasonable doubt and that an accused need only raise a reasonable doubt to succeed; (7) It demonstrates the review court's willingness to intervene where trial proceedings are fundamentally flawed and prejudicial to the accused.