News / Local
Sex 'convict' set free
24 Oct 2015 at 12:11hrs | Views
THE Bulawayo High Court has quashed the conviction and sentence of a 65-year-old man who was last year jailed 25 years for an alleged string of sex attacks on a girl, 16.
Neil Leach, of Suburbs, used his residence as a boarding house for pupils attending Girls College in Bulawayo.
He had turned his house - a stone's throw from the school - into a private boarding house, accommodating the alleged victim and three other girls.
Leach was convicted of three counts of aggravated indecent assault by Bulawayo regional magistrate Mark Dzira and sentenced to an effective 20 years in jail after five years were suspended on condition that he did not within that period commit a similar crime.
Leach, the court heard, on several occasions allegedly inserted his fingers into the girl's privates and would also force her to perform sickening sex acts on him with her mouth. It is alleged that all the sex attacks took place on Mondays when the victim was usually alone.
Justice Francis Bere set aside both conviction and sentence following an appeal that Leach filed on November 4, 2014, through his lawyer Advocate Tim Cherry, acting under the instruction of Hwalima, Moyo and Associates.
The lawyer argued that the conviction was largely based on uncorroborated evidence by the girl whose testimony was full of inconsistencies.
In his ruling, Justice Bere, who was sitting with Justice Martin Makonese during the criminal appeals court this week, said although the trial magistrate believed that Leach had sexually attacked the girl, there was no basis to substantiate the crime that was alleged to have been committed in 2013. "We're of the view that conviction can't be allowed to stand and in the circumstances the appeal is allowed and both conviction and sentence are set aside," ruled Justice Bere.
Leach, who is the appellant, in his grounds of appeal denied the charge, arguing that the trial magistrate, in his judgment, failed to explain the inexplicable three months delay by the girl in making the report.
He queried the girl's failure to report the alleged abuse at the earliest possible time given that she was in constant touch with her parents in Zambia.
"She communicated with her mother daily through e-mail and WhatsApp. There was no onus on the appellant to show a motive or reason for the complainant to have made a false report. The trial magistrate mentioned, but didn't criticise the complainant's evidence for failure to mention the alleged threat to kidnap her, in her evidence," said Leach.
He said the trial magistrate misdirected himself by basing his findings on perceived probabilities.
"The whole tenor of the judgment is that the trial magistrate based his findings more on what he perceived to be probabilities rather than proof beyond a reasonable doubt," argued Leach.
Adv Cherry said the sentence imposed on his client was grossly excessive and shocking.
He said the girl fabricated the story to justify her moving out of the boarding house to stay with her boyfriend. "It would've been impossible for Leach to abuse the victim at lunch time or to perpetrate the crime any other day without being noticed. The gardener and a maid were always at home during the day," argued Adv Cherry.
Nonhlanhla Ndlovu, for the State, concurred with the appellant's lawyer, saying she did not support Leach's conviction and sentence.
"It's submitted that the report of abuse was made after two months or so delay after the complainant's initial report that appellant had threatened to kidnap her. It's difficult to believe the complainant's averment that Leach fingered her private parts while forcing her to suck his p . . . in a face-to-face position. It's seemingly an impossible position for such an act hence the complainant isn't a credible witness," said Ndlovu.
She said Leach's conviction was unsafe, arguing that the trial court misconstrued the evidence.
"The respondent prays that the appeal against conviction should succeed and the conviction be quashed and sentence set aside," said Ndlovu in her heads of argument.
Allegations against Leach were that sometime in February 2013, the alleged victim was having lunch in the kitchen at the boarding house when Leach approached her. Leach then dragged the girl to his bedroom and when she tried to resist, he assaulted her once on the neck forcing her into his room.
While inside, Leach locked the door before he forcibly undressed the girl and thrust his fingers into her private parts. The court heard that Leach further ordered the girl to touch his privates before releasing her.
In March, he allegedly found the girl having lunch and dragged her to his bedroom and ordered her to suck his manhood as he thrust his fingers into the victim's genitals.
The court heard that a week later, Leach found the girl having lunch and pushed her to the floor and ordered her to suck his privates.
During the school holiday, the victim visited her parents in Zambia and narrated her ordeal.
Leach was arrested in May after the victim's father travelled from Zambia to file a complaint.
Neil Leach, of Suburbs, used his residence as a boarding house for pupils attending Girls College in Bulawayo.
He had turned his house - a stone's throw from the school - into a private boarding house, accommodating the alleged victim and three other girls.
Leach was convicted of three counts of aggravated indecent assault by Bulawayo regional magistrate Mark Dzira and sentenced to an effective 20 years in jail after five years were suspended on condition that he did not within that period commit a similar crime.
Leach, the court heard, on several occasions allegedly inserted his fingers into the girl's privates and would also force her to perform sickening sex acts on him with her mouth. It is alleged that all the sex attacks took place on Mondays when the victim was usually alone.
Justice Francis Bere set aside both conviction and sentence following an appeal that Leach filed on November 4, 2014, through his lawyer Advocate Tim Cherry, acting under the instruction of Hwalima, Moyo and Associates.
The lawyer argued that the conviction was largely based on uncorroborated evidence by the girl whose testimony was full of inconsistencies.
In his ruling, Justice Bere, who was sitting with Justice Martin Makonese during the criminal appeals court this week, said although the trial magistrate believed that Leach had sexually attacked the girl, there was no basis to substantiate the crime that was alleged to have been committed in 2013. "We're of the view that conviction can't be allowed to stand and in the circumstances the appeal is allowed and both conviction and sentence are set aside," ruled Justice Bere.
Leach, who is the appellant, in his grounds of appeal denied the charge, arguing that the trial magistrate, in his judgment, failed to explain the inexplicable three months delay by the girl in making the report.
He queried the girl's failure to report the alleged abuse at the earliest possible time given that she was in constant touch with her parents in Zambia.
"She communicated with her mother daily through e-mail and WhatsApp. There was no onus on the appellant to show a motive or reason for the complainant to have made a false report. The trial magistrate mentioned, but didn't criticise the complainant's evidence for failure to mention the alleged threat to kidnap her, in her evidence," said Leach.
He said the trial magistrate misdirected himself by basing his findings on perceived probabilities.
"The whole tenor of the judgment is that the trial magistrate based his findings more on what he perceived to be probabilities rather than proof beyond a reasonable doubt," argued Leach.
Adv Cherry said the sentence imposed on his client was grossly excessive and shocking.
He said the girl fabricated the story to justify her moving out of the boarding house to stay with her boyfriend. "It would've been impossible for Leach to abuse the victim at lunch time or to perpetrate the crime any other day without being noticed. The gardener and a maid were always at home during the day," argued Adv Cherry.
Nonhlanhla Ndlovu, for the State, concurred with the appellant's lawyer, saying she did not support Leach's conviction and sentence.
"It's submitted that the report of abuse was made after two months or so delay after the complainant's initial report that appellant had threatened to kidnap her. It's difficult to believe the complainant's averment that Leach fingered her private parts while forcing her to suck his p . . . in a face-to-face position. It's seemingly an impossible position for such an act hence the complainant isn't a credible witness," said Ndlovu.
She said Leach's conviction was unsafe, arguing that the trial court misconstrued the evidence.
"The respondent prays that the appeal against conviction should succeed and the conviction be quashed and sentence set aside," said Ndlovu in her heads of argument.
Allegations against Leach were that sometime in February 2013, the alleged victim was having lunch in the kitchen at the boarding house when Leach approached her. Leach then dragged the girl to his bedroom and when she tried to resist, he assaulted her once on the neck forcing her into his room.
While inside, Leach locked the door before he forcibly undressed the girl and thrust his fingers into her private parts. The court heard that Leach further ordered the girl to touch his privates before releasing her.
In March, he allegedly found the girl having lunch and dragged her to his bedroom and ordered her to suck his manhood as he thrust his fingers into the victim's genitals.
The court heard that a week later, Leach found the girl having lunch and pushed her to the floor and ordered her to suck his privates.
During the school holiday, the victim visited her parents in Zambia and narrated her ordeal.
Leach was arrested in May after the victim's father travelled from Zambia to file a complaint.
Source - chronicle
