Following his acquittal today, Chilufya Tayali, said he was now a freeman.He was accused of raping Ruth Zulu Lesa at Barn Motel in Lusaka.
In his defense Tayali, gave a detailed account of a sexual encounter which he said was consensual.
Below is the submission he made to persuade the court to acquit him.
1) I stand charged with the offence of Rape contrary to section 132 of the Penal Code Chapter 87 of the Laws of Zambia.
The aforesaid section reads:
‘any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of the felony termed “rape”.
2) To secure a conviction the prosecution have to prove that
(i) I had sexual intercourse with Ruth Zulu Lesa
(ii) It was unlawful
(iii) It was without her consent or if with her consent it was obtained by force, threats ,intimidation, fear of bodily harm or means of false representations to the nature of the act or if married by impersonating the husband to Ruth.
3) Your Honour it is trite that the onus to prove an accused’s guilt is on the prosecution and it must be beyond reasonable doubt and there is no onus on the accused to prove his innocence.
4) The prosecutions also have to prove beyond all reasonable doubt each and every ingredient of the offence charged. The case of Mwewa Murono v The People (2004) Z.R. 207 (S.C.) echoes this sentiment where it was stated that:
‘In criminal cases, the rule is that the legal burden of proving every element of the offence charged, and consequently the guilt of the accused, lies from beginning to end, on the prosecution. The standard of proof is high. The case must be proved beyond all reasonable doubt’.
5) Your Honour, the prosecution have not discharged this burden to the required standard. It is on record that the complainant PW1 Ruth Zulu stated that there was no one else in the room present when the alleged rape occurred. There is no other evidence to collaborate the alleged rape. Further the Medical Report shows the results of rape as inconsistent with Rape and thus inconclusive. This entails the sexual intercourse was voluntary and not forced as alleged by the complainant. If it were forced there would have been bruises even for an adult woman.
6) It is worth noting Your Honour that PW1 stated that she was shouting and pushing me back when all this was happening. If it were true one or two people would have heard and come to inquire or rescue her. PW5 a porter from Barn Motel who was on duty that day said that he was not aware of any incidence relating to PW1’s claim.
7) Further none of the clothes worn on the day the alleged rape occurred were tendered as evidence to show whether they were torn or not.
8) Your Worship, delay in reporting a serious offence like Rape is a matter which be resolved in favour of the accused person but against the prosecution as it can entail concoction due to passage of time.
In Ndakala v The People (1974) Z.R. 19 (S.C.), the appellant was charged with rape, and the evidence against him was that of the woman who was raped, who was alleged to have been in the company of another woman. The appellant is said to have seized the complainant, knocked her down and raped her. After the incident both the complainant and her friend went to a club where they did not immediately make a complaint. In acquitting the accused it was held that
‘ It is extraordinary that no complaint was made until the appellant came to the club demanding these articles back. I think all three members of the court would find great difficulty in putting a reasonable and plausible explanation on this sort of behaviour. But in fact the learned magistrate did not deal with it at all. He did not ask himself the question: Was the behaviour of the complainant and her witness consistent with rape? Evidence is allowed to be given of recent complaint to show consistency and it helps the prosecution case; the corollary of that must also be accepted, that if there is no prompt report that must be weighed in the scales against the prosecution case’.
9) From the above case your Honour, it emerges failure to make a prompt report to the police is a fact that must be weighed against the prosecution. In this case, the prosecutrix did not make an immediate report given the fact that there were many people at Barn Motel but claimed she JUST called PW2, Dalio who is a Church-mate.
10) An event of rape as alleged is quite serious and the prosecutrix would have told nearby persons at the motel when she was let go by the accused as alleged if it is true that she was shouting while the whole ordeal was happening.
11) Your Honour she did not report to any of the persons nearby nor the people at home in person but has just talked of phoning people among them PW2 and 3 and no documentary evidence of the same calls has been produced in court.
12) It is also a testimony of both PW2 and PW3 that she never said she was raped. PW2 just said that she found a missed call the following day but only saw the prosecutrix days later at Church and that she looked shameful. Your Honour, the word shameful is just to general and does not in any way mean Raped. PW3 also just said that he was told that the Prosecutrix was forced into having sex with me, but there are no further details of how it happened. Both PW2 and PW3 cannot be considered witness of facts, because their testimonies lack details, clarity and it is simply hearsay.
13) Your Honour as in the case of Mwewa Murono v The People (2004) Z.R. 207 (S.C.), which has already been quoted above, these doubts should certainly be weighed in favour of my liberties.
14) It is trite your Honour that in sexual offences there has to be corroboration. As regards what collaboration is, in Christopher Nonde Lushinga v The People (2011) 2ZR (SC) it was said that:
‘there is no magical meaning in the word “corroboration”. It simply means evidence which confirms the commission of the offence and the identity of the perpetrator of that offence. Put differently; corroboration means supporting or confirming evidence’.
15) In Machipisha Kombe v The People (2009) ZR (SC), it was stated that:
‘in criminal cases of a sexual nature, such as rape and defilement, corroboration is required as a matter of law before there can be a conviction… As to the character of corroboration, Nsofu v The People (1), decided that:
(a) Corroboration must not be equated with independent proof; it is not evidence which needs to be conclusive in itself
(b) Corroboration is independent evidence which tends to confirm that the witness is telling the truth when she says that the offence was committed and that it was the accused who committed it.
(c) Where the evidence of a witness requires to be corroborated, it is nonetheless the evidence of the witness on which the conviction is based; the corroborative evidence serves to satisfy the Court that it is safe to rely on that of the witness.
16) In the People v Thomas Manroe (2011) 3ZR (HC). It was said that:
‘The general rule, therefore, in sexual offences is that there must be corroboration of both the commission of offence and the identity of the offender in order to eliminate the twin dangers of false complaint and false implication’.
17) The reasons for the requirement of corroboration as elaborated in Emmanuel Phiri v. The People (1982) Z. R 77, is that, in as much as there is always a danger recognised of a false complaint, the courts have consistently recognised even a greater danger, namely, the danger of false implication.
18) In the case in casu, there is no collaboration whatsoever, it is just the word of the complainant against that of my detailed account of a consensual sex intercourse, which falls far below the requirement of proof beyond a reasonable doubt in criminal cases.
19) Your Honour taking away the liberties of any person cannot be determined in such high obscure circumstances as presented by the prosecution. On the contrary, my detailed account of the material day proves clearly that we had consensual sex with the prosecutrix.
20) There is no other independent evidence to confirm the accusation. There were no eye witnesses to the alleged crime. The only other evidence is the medical report which does not confirm that fact thereby disproves it as it asserts that the allegations of Rape is inconsistent with the findings of the medical practitioner and thus inconclusive.
21) As countless cases like the Supreme Court cases of Abel Banda v The People (1986) ZR 105 (SC) and Chiyokoma v The People (1973) ZR 37(CA) among others illustrate, if there is any doubt raised after consideration of the evidence as to the guilt of the accused, that doubt must be resolved in the accused person.
22) Further it is trite that if there are 2 or more inferences, the court should adopt the one favourable to the accused unless otherwise. In Dorothy Mutale and Richard Phiri v The People (1997) Z.R. 51 (S.C.) it was pointed out that:
‘Where two or more inferences are possible, it has always been a cardinal principle of the criminal law that the Court will adopt the one, which is more favorable to an accused if there is nothing in the case to exclude such inference’.
23) Your Honour, there are two possible inferences in the case at hand as regards to what happened on the night of 16th July 2012 at Barn Motel. One inference is that the prosecutrix had sexual intercourse with me freely on other numerous occasions before. The other inference is that I used force to have sex with the prosecutrix. Your Honour this court should use the first inference as there is sufficient evidence on record that the prosecutrix and myself were sexual partners for a long time and that the prosecutrix on the fateful night was the one who called me, like she used to in many other cases. We drove all the way to Barn Motel and when we arrived, I went to the reception book a room while she waited patiently in the car.
24) The prosecutrix claimed to have been protesting for being at Barn Motel and even made a phone call when she realized that I took long to come back. Your Worship, surely the prosecutrix could have left the car and found any other possible means to get to her home.
25) Your Worship, after booking a room, I had to go and check it (the room) if there was hot water, as per her requirement, in the company of a hotel attendant (PW5) in full view of the prosecutrix as she sat in the car which was parked between two builds of the reception and the room. She never complained or left the car, instead she waited patiently.
26) After changing the room I had to move the car to bring it near the room while the prosecutrix sat in the car and I told her that we are changing the room because the other room had no hot water. Still this provided an opportunity for her to protest or leave the car when we stopped on the room which had hot water.
27) Your Worship, the prosecutrix was invited to the room and she willingly came out of the car, walked to the room, closed the door behind her and locked it.
28) Your Worship, PW1 lied on facts that she thought I was going to repair computers. How possible would that be since it was at night and we were going into the room. Any reasonable person would not expect me to repair computers in a hotel room at night.
29) Your Worship it is reasonable to expect some torn clothes or underwear if PW1’s testimony was true that I over powered her and forcibly removed the clothes from her body. This certainly entails consensual or at least doubt which must be weighed in my favour in case such as the one I am facing.
30) In the case of Haonga & Others vs. The People (1976) Z.R. 200 (S.C.) it was stated that
‘ It is trite that where a witness has been found to be untruthful on a material point the weight to be attached to the remainder of his evidence is reduced; although therefore it does not follow that a lie on material point destroys the credibility of the witness on other points (if the evidence on the other points can stand alone) nevertheless there must be very good reason for accepting the evidence of such a witness on an issue identical to that on which he has been found to be untruthful….’
31) Your Worship it is on record that PW1 admitted that she was my sexual partner for a period of over 8 months and had had sexual intercourse with me before in a vehicle and hotels rooms a number of times. She knew or ought to have known that I was booking a room for sexual activity like before.
32) PW1 knew she was going to have sexual intercourse with me because the fore play actually started in the car at her instance. We consensually had sexual intercourse.
33) Further Your Honor, as a woman I had had sex with a number of times, I was not desperate to force her because I knew she would still call me sooner than later.
34) The prosecutrix found herself caught up in between two men (myself and the boyfriend who was known to her families and friends). She desperately wanted to get married to one of us so she gambled on how to drop one, especially the boyfriend, without denting her imagine. Unfortunately her way of communication with the boyfriend, about our sexual relationship, went amiss because she could not tell the truth that she willingly had sex with me, not once but many times.
35) The boyfriend could not contain the news that another man had had sex with his wife-to-be so he wanted to punish me, by reporting to a senior friendly police officer even though he was doubtful of succeeding in court because he had no evidence.
36) The intention of the boyfriend is very clear in his letter which he wrote to me and has been I submitted in Court as part of my evidence. The boyfriend wanted to punish me.
37) It is also clear that the boyfriend was doubtful of my crime but wanted to try his luck. But such an act should not be tolerated because the case I am charged with, carry a long custody sentence. Malicious prosecution should not be used to settle scores between two men over a woman.
38) Due to the lack of proper evidence, I was only accosted by the police after over a month from the alleged date of crime.
39) My innocence is very clear long before I even knew the case has been reported to the police in the reply to PW3 on facebook.
40) The arresting officer struggled PW6 failed to explain how he made up his mind to arrest me. He said that he made up his mind based on what he was told by the prosecutrix that she sat on the chair and not on the bed. This is does not make any reasonable conjuncture and it is simply hearsay which does not suffice as evidence in such a serious case.
41) It is also in PW1’s testimony that she never told anyone that she was raped. The word she used was violated which is not the same as the charge I am facing.
42) The Prosecutrix’s conscience was not clear after releasing that I was being falsely prosecuted which made her tender and apology to my niece DW2. She released she had hurt her friend by implicating his uncle.
43) Your Worship, I have endeavoured to show this court that the prosecution has not established the case against me beyond a reasonable doubt. It has been demonstrated that there was no collaboration of the offence as there were no witnesses and no the medical report was inconclusive. Various doubts have been raised in this case.