News / National
Sex 'fiend' (68)'s rape conviction quashed
16 May 2018 at 01:50hrs | Views
The Bulawayo High Court has acquitted and quashed the conviction of a 68-year-old man who was sentenced to 25 years for an alleged string of sex attacks on a 16-year-old girl.
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 in February 2014.
The court had heard that Leach, 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.
In his ruling, Justice Francis Bere, who was sitting with Justice Martin Makonese during the criminal appeal said the sentence was a poor conviction by the magistrate.
"When everything has been said about this case, one cannot help but come to the conclusion that the conviction was arrived at more out of sympathy with the victim than borne out of evidence led. Clearly the magistrate fell into error. This was a poor conviction and the concession made by the state against that conviction was well made," read part of the judgment.
Justice Bere said it was not necessary for the court to consider the appeal against sentence because that sentence was standing on nothing.
"In the result, the appeal succeeds. The conviction is quashed and the sentence is set aside. The appellant is found not guilty and acquitted," he ruled.
Justice Bere said there were cardinal errors made by the court a quo in the judgment.
"The first error that screams loudest was the magistrate's stout effort to try and determine the outcome of this case by relying on evidence based on probabilities as opposed to being guided by proof beyond a reasonable doubt. It is trite that in criminal procedure and in order for the court a quo to find against an accused person the proof required is proof beyond a reasonable doubt. There is no room in a criminal matter for the court to be guided by evidence weighed on the balance of probabilities," ruled Justice Bere.
He said the second error made by the trial court was its apparent failure to appreciate that the complainant's conduct looked at in its totality did not satisfy the requirements of the law as cited the Banana case (supra).
"Thirdly, the court a quo failed to appreciate that the inconsistencies in the complainant's evidence heavily militated against a finding of credibility in her favour. It is quite telling that despite all these highlighted issues having been presented to the court a quo during cross-examination of the complainant and during court addresses by the appellant's counsel the court chose to disregard same on uninformed basis," said Justice Bere.
He said he had noted serious inconsistencies in the complainant's evidence as she was reluctant to bring the allegations of abuse to her boyfriend and her best friend and even to her parents.
Leach, through his lawyer Advocate Tim Cherry, acting under the instruction of Hwalima, Moyo and Associates, 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.
Leach said the trial magistrate misdirected himself by basing his findings on perceived probabilities.
Mr Khumbulani Ndlovu, for the State, concurred with the appellant's lawyer, saying that in all probabilities of the case, the complainant dismally failed to pass the credibility which incidentally the lower court had triumphantly concluded had been established and used it as the main basis for conviction.
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 in February 2014.
The court had heard that Leach, 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.
In his ruling, Justice Francis Bere, who was sitting with Justice Martin Makonese during the criminal appeal said the sentence was a poor conviction by the magistrate.
"When everything has been said about this case, one cannot help but come to the conclusion that the conviction was arrived at more out of sympathy with the victim than borne out of evidence led. Clearly the magistrate fell into error. This was a poor conviction and the concession made by the state against that conviction was well made," read part of the judgment.
Justice Bere said it was not necessary for the court to consider the appeal against sentence because that sentence was standing on nothing.
Justice Bere said there were cardinal errors made by the court a quo in the judgment.
"The first error that screams loudest was the magistrate's stout effort to try and determine the outcome of this case by relying on evidence based on probabilities as opposed to being guided by proof beyond a reasonable doubt. It is trite that in criminal procedure and in order for the court a quo to find against an accused person the proof required is proof beyond a reasonable doubt. There is no room in a criminal matter for the court to be guided by evidence weighed on the balance of probabilities," ruled Justice Bere.
He said the second error made by the trial court was its apparent failure to appreciate that the complainant's conduct looked at in its totality did not satisfy the requirements of the law as cited the Banana case (supra).
"Thirdly, the court a quo failed to appreciate that the inconsistencies in the complainant's evidence heavily militated against a finding of credibility in her favour. It is quite telling that despite all these highlighted issues having been presented to the court a quo during cross-examination of the complainant and during court addresses by the appellant's counsel the court chose to disregard same on uninformed basis," said Justice Bere.
He said he had noted serious inconsistencies in the complainant's evidence as she was reluctant to bring the allegations of abuse to her boyfriend and her best friend and even to her parents.
Leach, through his lawyer Advocate Tim Cherry, acting under the instruction of Hwalima, Moyo and Associates, 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.
Leach said the trial magistrate misdirected himself by basing his findings on perceived probabilities.
Mr Khumbulani Ndlovu, for the State, concurred with the appellant's lawyer, saying that in all probabilities of the case, the complainant dismally failed to pass the credibility which incidentally the lower court had triumphantly concluded had been established and used it as the main basis for conviction.
Source - chronicle
