7
[17]
In her evidence, the complainant denied that she told the doctor that she was
raped by a relative. The complainant’s mother could not recall what her response to
the doctor’s question as to the identity of the culprit was. On the other hand, the
doctor insisted that what he wrote was information given by the complainant and her
mother. In my view the reference to a relative makes no sense in view of the fact that
the complainant had already identified the appellant as the perpetrator to the nurse
and to the police. The magistrate’s finding that the reference to a relative was
probably a misunderstanding between the doctor and the complainant and her
mother is, in my view, correct. From the record it appears that the complainant’s and
the appellant’s families were relatively closely associated. They attended the same
church; the complainant’s mother discussed her concerns about the appellant’s
behaviour with the appellant’s wife more than once; and she left her home keys at
the appellant’s home when she went away. During cross examination both the
complainant and her mother appeared to have intimate familiarity with the appellant’s
home circumstances; for example, they knew that the appellant’s children had their
own television set. Hence my view that a misunderstanding probably crept into their
description of the perpetrator to the doctor; more so that there is no evidence that the
discussion between the doctor, the complainant and her mother was conducted
through an interpreter. Another patent example of a misunderstanding is the recordal
by the doctor of the complainant’s age as eight years. It is relevant that English is not
the first language of the complainant, her mother and the doctor. Further, the person
to whom the complainant first divulged the incident was a trained professional who
calmed her down and coaxed her, not by focusing on the identity of the perpetrator,
but by alerting her to dangers of sexually transmitted diseases and HIV.
[18]
A further leg on which the appeal stands relates to the dates on which the
incident happened. As stated, the charge was that the appellant raped the
complainant during the period 1 to 28 February 2006.The examining doctor testified
that he was told by the complainant and her mother that the rape occurred during the
period February to 7 June 2006 as recorded on the J88. The submission on behalf of
the appellant was that this uncertainty about the date of the incident was prejudicial
to him and rendered his trial unfair. I do not agree. It is correct that a charge must set
forth the relevant offence in such manner and with such detail as to be reasonably
sufficient to inform the accused of the nature of the charge to enable an accused to