Chief Court Reporter
A jailed Murewa man cannot now appeal against both conviction and 20-year jail term imposed on him for raping his 11-year-old niece two years ago as the High Court rejected his application for condonation for late filing of the appeal since there was almost no chance that the trial magistrate erred considering the evidence.
The teacher had filed a chamber application for condonation of late noting of appeal and leave to prosecute the appeal against a judgment of a Murewa regional magistrate handed down on April 11 2019.
The prosecution partially opposed the application, but did concede that the sentence of 20 years could be too severe.
However, Justice Rogers Manyangadze threw out the application, finding that it was devoid of merit.
Given the credibility of the evidence adduced in the lower court, the judge found that it was most unlikely, in the circumstances, that the appellate court would upset the decision of the trial magistrate.
On his part, the man aged 44 and is an uncle to the minor girl had not satisfactorily showed in what manner the magistrates erred in his assessment of the testimony adduced at trial.
The trial court, in convicting and imposing a harsh sentence, had considered the serious breach of trust, as the man was a brother to the girl’s father.
The only reason the prosecution had conceded to partial granting of the application was that the magistrate should have suspended a portion of the 20-year sentence. No other submission had been made.
In this regard, it was the court’s considered view that the sentence was not so harsh to induce a sense of shock, given the extremely aggravating circumstances of the rape, said Justice Manyangadze in a judgment in which the man received a dressing down from the judge for his conduct.
“The applicant took unconscionable advantage of the vulnerable child who was staying with him and looking up to him for her livelihood,” he said.
An appellate court, said the judge, does not easily interfere with the trial court’s sentencing discretion.
“The intended appeal enjoys no prospects of success both in respect of conviction and sentence,” he said.
“In the circumstances, the application is devoid of merit and cannot reasonably be upheld.”
The court heard that at the time the offence was committed, the man’s wife and children had gone to Harare.
It was only the man and the girl at home. The court heard that when the girl retired to bed in the dining room, later during the night the girl was awoken from her sleep with her uncle raping her.
The following day, the man went with the girl to his other house at a school where he worked as a teacher.
His wife and children were still in Harare.
When the girl went to sleep in a spare bedroom, the man instructed her not to lock her door.
Fearing that the rape which took place the previous night could be repeated, the girl sneaked out and went to a neighbour’s house where she sought refuge for the night.
She explained to the neighbour what the man had done to her, resulting in the matter being reported the police leading to the man’s arrest.