WINDHOEK - An application for leave to appeal a rape conviction and 18-year jail term by a father convicted in April, 2010 of raping his then 17-year-old daughter was dismissed on Tuesday by Windhoek High Court Judge Naomi Shivute for failing to provide a reasonable explanation for the late filing of his notice to appeal.
The man who may not be named to protect the identity of the victim initially filed his notice to appeal even before he was convicted and sentenced which was consequently withdrawn, as you cannot appeal a decision not yet made. The man who is a nurse by profession allegedly used verbal force to compel the victim to go to his bedroom and have intercourse with him.
Judge Shivute rejected the arguments of the convict’s lawyer, Frieda Kishi, that the man was wrongly convicted because the trial court found that coercive circumstances existed as described in section 2 of the Combating of Rape Act which are the application of physical force either by threat or any other means.
The court however agreed with the argument advanced by State Advocate Palmer Khumalo that the coercive circumstances listed are not limited. She said that what is clear is that the father spoke in an angry voice when he called the victim to go and sleep in his room and the angry voice made the child obey.
The judge also rejected arguments by the defence counsel that the trial court erred by finding that although there were discrepancies in the testimonies of the State witnesses, those discrepancies were not material and that the trial court failed to consider material contradictions in the victim’s testimony, her statement to the police and the rest of the witnesses as “unmeritorious.”
According to Judge Shivute, the fact that the victim contradicted herself or was contradicted by other witnesses does not make her a liar or mean that her evidence should be wholly rejected. “I have evaluated the evidence and considered the nature of the contradictions, their number and their importance. I had also considered their implications in relation to the rest of the evidence and arrived at the conclusion as per the trial court’s judgment,” Judge Shivute further stated.
She went on to say the grounds that the trial court erred in law or in fact by finding that the applicant (convict) failed to give conclusive reasons why his daughter would falsely accuse him is without merit.
“The applicant suggested some reasons why the complainant allegedly made false allegations against him and the trial court in its judgment stated that the accused does not really have conclusive reasons why the complainant should falsely implicate him,” the judge said and continued: The court arrived at this conclusion because the accused stated among other things that the complainant implicated him maybe because he had beaten her.
According to Judge Shivute, the trial court stated that the complainant was an impressive, credible and reliable witness while on the other hand the accused did not impress the court as a witness, and the explanation he gave as to the motive of the complainant to falsely implicate him is unconvincing.
Judge Shivute further said the suggestion by the defence that there was a reverse onus on the complainant to prove rape does not carry any water and she therefore is of the view that as far as the conviction is concerned, the applicant has no reasonable prospects of success for another court to come to a different conclusion. With regard to the grounds on sentencing that the sentence is shocking and inappropriate as there were substantial and compelling reasons to deviate from the prescribed sentence, Judge Shivute found no merit in it. According to her, the complainant was under the age of 18 years old and the perpetrator is the complainant’s parent and no compelling and substantial circumstances were presented to court and as such the sentence imposed is in line with the provisions of the Combating of Rape Act.