The word ‘Unlawful’ does not constitute a key ingredient to an offence under section 11 (1) of the Sexual Offences Act

Williamson Karimi Njogu v Republic

Criminal Appeal No 31 of 2015

High Court at Kerugoya

R K Limo J

October 25, 2016

Reported by Phoebe Ida Ayaya & Nowamani Sandrah

Criminal Procedure- charges-defective charge sheet- where section 2 (1) of Sexual Offences Act creating the offence was not cited - whether faulting in the drafting of the Charge Sheet pointing out that section 2 (1) of Sexual Offences Act creating the offence was not cited rendered the charge fatally defective- Sexual Offences Act, section 2(1) ; Criminal Procedure Code (cap 75) section 382

Criminal law- defilement- elements of defilement-where touching on the thighs of a child deliberately and indecently constituted an indecent act in the spirit of law - whether touching on the thighs of a child deliberately and indecently constituted an indecent act-Sexual Offences Act sections 2(1)

Evidence law- child evidence –child of tender years -where the only evidence was that of a child of tender years, who was the alleged victim –duty of the Court to conduct a voire dire examination on a child of tender years-whether the evidence of the child was corroborated by someone else- how a trial court should receive such evidence – Evidence Act (cap 80) section 125 ;Oaths and Statutory Declarations Act (cap 15) section 19; Criminal Procedure Code (cap 75) sections 208, 302

Statutes- interpretation of statute- Interpretations of the Sexual Offences Act- whether the Court could interpret the words ‘unlawful’ and ‘and’ under sections11 (1) and 2 the Sexual Offences Act respectively-validity and effects of the interpretations- Sexual Offences Act sections 2 and 11(1)

Brief facts

The Appellant was charged with the offence of defilement contrary to section 8 (1) (4) of the Sexual Offences Act No. 3 of 2006. He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The Appellant denied both counts and the case preceded for hearing upon which the Appellant was acquitted of the principal charge but found guilty of the alternative charge and convicted to serve 10 years imprisonment. The trial court on the basis of the evidence tendered found that there was no evidence to support the main charge of defilement and gave him the benefit of doubt.  While dismissing the defence of alibi by the Appellant, the trial court found that the Appellant had both time and opportunity to commit the crime.

Issues

      i. Whether the word ‘unlawful’ constituted a key ingredient of an offence under the Sexual Offences Act in section 11(1).

     ii. Whether omitting a section creating the offence in the charge sheet rendered the charge fatally defective.

   iii. Whether in making the observation about the credibility of the witness belatedly at the stage of judgment was an error.

   iv. Whether in contending that the demeanor of the witness should have been recorded in the body of the proceedings was an error.

    v. Whether touching on the thighs of a child deliberately and indecently constituted an indecent act. 

   vi. Whether the Court could interpret the meaning of the words ‘and’ and ‘unlawful’ under sections 2 and 11(1) of the Sexual Offenses Act respectively

Relevant provisions of the law

Sexual offences Act

Section 2 (1)

Defines an “indecent act” as “unlawful intentional act which causes (of relevance to this appeal)

Any contact between any part of the body of a person with the genital organs, breasts or buttocks of another but does not include an act that causes penetration.

Held

1.     The word ‘unlawful’ did not constitute a key ingredient to an offence under section 11 (1) of the Sexual Offences Act.  What was key in that section was that the particulars had to reveal that the act complained of was intentional and indecent in nature.  The particulars of the count clearly revealed that the act that the Appellant was being accused of was intentional and indecent.  The word unlawful was relevant in the repealed section of the Penal Code (section 139) that placed importance to lack of consent as a key component in a charge of rape.

2.     Technically the charge and the particulars of the offence facing the Appellant as framed were sound in law and clearly revealed that an offence had been committed and the Appellant clearly knew what charges faced him at the trial.  There was no prejudice suffered in that regard.  But as to whether the charge and the particulars of the charge was supported sufficiently by the evidence tendered to justify the finding made by the trial magistrate was an issue that called for a separate consideration and determination. 

3.     The section cited by the charge facing the accused was the punitive part and it was necessary for the state to cite section 2 (1) of the Act, which created the offence upon which the Appellant was charged with.  However, the omission to cite the section that created the offence was not fatal to the prosecution case.  The defect was one of those defects that were curable under section 382 of the Criminal Procedure Code as the same did not prejudice the Appellant or occasioned a failure of justice.  The Appellant was also ably represented by counsel at the trial and was in a position to raise an objection about the same if he felt that he was prejudiced by the omission by the prosecution to cite the section creating the offence.  The Appellant was well informed of the charge facing him and was not prejudiced in defending himself. 

4.     The charge against the Appellant should have contained both sections 11(1) and 2 (1) of the Sexual Offences Act. The omission of section 2 (1) was not fatal.  The cited section in the charge was sufficient to reveal the nature of the charge facing the Appellant and the omission was minor and curable under section 382 of the Criminal Procedure Code.

5.     The doctor at the trial did not positively state that there was no penetration.  His evidence taken, as a whole was that he could not conclusively conclude that there was penetration.  That was where the trial magistrate missed the boat.  The doctor did not say that the minor was not penetrated.  What he said was that based on his findings he could not say for certain that penetration occurred.  It was clear therefore that the testimony of the doctor was indecisive and that was where the trial magistrate should have evaluated the exhibits tendered and the doctor’s own testimony to arrive at his own conclusion, which should have led him to conclude that penetration, had been established. 

6.     The conclusion of the doctor that the issue of penetration was not conclusive was in conflict with the other evidence tendered including the medical findings recorded on the 1^st page of the treatment chit (Exhibit 1). The doctor examined the complainant a few hours after the incident and examined her pants, which the witness had confirmed in her evidence that it was the same pants she wore before and after the incident.  According to the said doctor the pants had no bloodstains other than whitish discharge. According to the complainant in her own words ‘the Appellant took off his trouser, he took off her pants then raped me’. 

7.     The trial court in its judgment observed that the minor appeared truthful and found her credible.  That observation was key in light of the provisions of section 124 of the Evidence Act that provided that, a court could find a conviction based on evidence of the complainant only if that was the only evidence available and if the victim was found to be truthful based on reasons to be recorded.  The trial magistrate found the minor truthful because he found her credible, consistent and not shaken at all on cross-examination.  On the basis of that, and the fact that the doctor’s inconclusiveness was in conflict with the other cited evidence tendered before the trial court, the trial magistrate ought to have discounted the doctor’s evidence and concluded that penetration had been proved beyond reasonable doubt notwithstanding the inconclusive opinion of the said doctor.

8.     There were many schools of thought on where a trial court should record the demeanor of a witness.  There was a school of thought that the demeanor of a witness, how he/she behaved while testifying should be recorded in the body of the proceedings but in brackets to show that it was an observation by a trial court.  Another school of thought had it that the demeanor should not be part of the proceedings and should not therefore be in the body of proceedings but off the marginal lines to show that it was an observation made by the trial court besides what the witness was actually stating. The other school of thought was that the demeanor if it was important to the findings of the trial court should be recorded elsewhere on a separate sheet that would only help the trial court to remember the demeanor once it retired to write the judgment.  There was no hard and fast rule on that. 

9.     Recording the demeanour of a witness in the judgment was not belated or improper.  What was important was that a court on a demeanour of a witness made the observation but where it was made or recorded was immaterial.

10.  Having considered the evidence tendered by P.W. 2 (E W G) the village in charge who took up the report of defilement when it was made known to her and the evidence of P.W. 3 (J W N), the evidence tendered by the two witnesses corroborated the evidence of the complainant. 

11.  The Appellant had not alluded to being framed up by either the complainant or the other witnesses.  The witness had no reason to testify falsely against him.  That fact could only point to one direction, which was the fact that the evidence tendered by the prosecution strongly, supported the main charge of defilement facing the Appellant. 

12.  The trial magistrate appeared to have misdirected himself on a point of law by failing to properly evaluate the evidence tendered by the doctor because had he done so he would have found out that the conclusion made by the doctor that penetration was not conclusive, was as pointed out above questionable in view of the findings made on the treatment chit as a result of the medical examination conducted on the minor.

13.  Contrary to the contention by the Appellant, touching on the thighs of a girl or a woman deliberately and indecently constituted an indecent act.  That was the spirit of law in section 2 (1) of the Sexual Offences Act.  What the section precluded was an action that caused penetration. The trial magistrate was in error to find that the Appellant was guilty of indecent act when the evidence tendered showed that the act complained of caused penetration.

14.  In section 2 (1) of Sexual Offences Act, indecent act did not include an act that caused penetration.  The evidence tendered by the prosecution indicated that there was penetration. The absence of spermatozoa or bloodstains could not negate the fact that penetration had been established.  Penetration as defined under section 2 (1) meant either partial or complete insertion of the genital organ of a person into a genital organ of another person.  The complainant at the trial did testify that the Appellant inserted part of his penis into her vagina and that constituted penetration in view of the other evidence pointed out.

15.  The sentence meted out against the Appellant though lawful was on the basis of a conviction, which was wanting on the aspects highlighted. The framing of the particulars of the charge in the 2^nd count particularly the use of the conjunctive word ‘and’ made it necessary for the prosecution to prove that the Appellant had touched all the 3 parts pointed out in the particulars of the charge with his organ before a conviction could be found.  However, that point was now academic.

16.  The trial magistrate erred in making a finding on the alternative count or charge when the evidence tendered by the prosecution at the trial was as pointed established beyond reasonable doubt that the complainant had been defiled as indicated in the main charge.  The trial court ought to have properly directed itself on the evidence tendered and had it done so, it could have found the Appellant guilty of the main charge of defilement contrary to section 8 (1) (4) of the Sexual Offences Act No. 3 of 2006.  In that regard there would have been no need or legal basis to make a finding on the alternative charge.

Appeal dismissed

               i.         The conviction of the Appellant and the sentence meted out on the alternative count of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act quashed.

             ii.          The sentence of 10 years imprisonment set aside.

            iii.         Appellant convicted under section 8(1) (4) of the Sexual Offences Act No. 3 of 2006 and sentenced to serve 15 years imprisonment as provided by law.