Rape verdict, 15-year jail term vanish on appeal

ON Monday, Moses Tau-Nareb was still a convicted rapist and sentenced prisoner, with the unpleasant prospect of 13 more years of imprisonment ahead of him.

On Tuesday, all that changed within a minute or so. That was the time it took Acting Judge John Manyarara in the High Court in Windhoek to read out the result of an appeal in which he concluded that Tau-Nareb should not have been found guilty of rape and sentenced to a 15-year jail term in the first place.A simple but fatal gap in the prosecution case that had been presented to the Otjiwarongo Regional Court during Tau-Nareb’s trial prompted Acting Judge Manyarara to set aside his conviction and sentence on appeal.That gap was the absence of proper, direct evidence about the age of the girl that Tau-Nareb was accused of raping.He was charged with having raped a 13-year-old girl at Otjiwarongo on the evening of October 19 2003.According to the complainant in the case, she was sleeping on the stoep of her mother’s house that evening, with Tau-Nareb asleep nearby on another bed.She testified that she awoke during the night to find Tau-Nareb on top of her, having sexual intercourse with her.When she tried to push him off her, he placed a hand over her mouth.She testified that he also threatened to stab her with a knife if she told anyone about the incident, Acting Judge Manyarara recounted a summary of her testimony in his judgement on Tau-Nareb’s appeal.One of the other witnesses at the trial was a sister of Tau-Nareb, who told the court that when she confronted him after the complainant had reported the incident to her, Tau-Nareb cried and said he did not know why he had raped the girl.In the charge against Tau-Nareb it was alleged that he had committed rape by having committed a sexual act with the complainant under coercive circumstances, while she was asleep and was under the age of 14, with Tau-Nareb having been more than three years older than her.At his trial, Tau-Nareb denied that he had had sexual intercourse with the girl.He was eventually convicted of rape and on October 4 2004 sentenced to a 15-year jail term.Already at the start of the trial, however, a substantial mistake was made when the presiding Magistrate did not explain to Tau-Nareb, who was not legally represented, what the “coercive circumstances” referred to in the charge would mean, Acting Judge Manyarara decided.The fatal flaw in the State’s case against Tau-Nareb also flowed from this.”Contrary to the Magistrate’s belief, his failure to explain the meaning of ‘coercive circumstances’ to (Tau-Nareb) at the commencement of the trial constitutes a misdirection on his part,” Acting Judge Manyarara decided.He added: “In order for him to have found (Tau-Nareb) guilty of rape as charged, the Magistrate also had to find that the coercive circumstances as referred to in the charge sheet were that the complainant was ‘under the age of 14 years and that the accused was more than three years older than her’.”However, at the hearing of the appeal State advocate Leonie Dunn conceded – correctly, according to the Acting Judge – that the complainant’s age had not been proven at the trial.”(W)hat was crucial to the issue of coercive circumstances as alleged on the charge sheet was what the exact age of the complainant was on the date that the offence was allegedly committed,” Acting Judge Manyarara stated.”The failure to prove the complainant’s age amounted to a failure to prove coercive circumstances for the purpose of convicting the appellant, regardless of whether sexual intercourse did or did not take place.”Not only proof of the child’s age, but also corroboration of the claim that Tau-Nareb had confessed his guilt to his sister in the presence of another woman, might have strengthened the State’s case, he commented.From his reading of the trial record, though, he was not convinced that Tau-Nareb’s guilt had been proven or that Tau-Nareb’s sister had not conspired to falsely incriminate him as he claimed, Acting Judge Manyarara stated.Tau-Nareb’s appeal was argued by Deon Obbes.That was the time it took Acting Judge John Manyarara in the High Court in Windhoek to read out the result of an appeal in which he concluded that Tau-Nareb should not have been found guilty of rape and sentenced to a 15-year jail term in the first place.A simple but fatal gap in the prosecution case that had been presented to the Otjiwarongo Regional Court during Tau-Nareb’s trial prompted Acting Judge Manyarara to set aside his conviction and sentence on appeal.That gap was the absence of proper, direct evidence about the age of the girl that Tau-Nareb was accused of raping.He was charged with having raped a 13-year-old girl at Otjiwarongo on the evening of October 19 2003.According to the complainant in the case, she was sleeping on the stoep of her mother’s house that evening, with Tau-Nareb asleep nearby on another bed.She testified that she awoke during the night to find Tau-Nareb on top of her, having sexual intercourse with her.When she tried to push him off her, he placed a hand over her mouth.She testified that he also threatened to stab her with a knife if she told anyone about the incident, Acting Judge Manyarara recounted a summary of her testimony in his judgement on Tau-Nareb’s appeal.One of the other witnesses at the trial was a sister of Tau-Nareb, who told the court that when she confronted him after the complainant had reported the incident to her, Tau-Nareb cried and said he did not know why he had raped the girl.In the charge against Tau-Nareb it was alleged that he had committed rape by having committed a sexual act with the complainant under coercive circumstances, while she was asleep and was under the age of 14, with Tau-Nareb having been more than three years older than her.At his trial, Tau-Nareb denied that he had had sexual intercourse with the girl.He was eventually convicted of rape and on October 4 2004 sentenced to a 15-year jail term.Already at the start of the trial, however, a substantial mistake was made when the presiding Magistrate did not explain to Tau-Nareb, who was not legally represented, what the “coercive circumstances” referred to in the charge would mean, Acting Judge Manyarara decided.The fatal flaw in the State’s case against Tau-Nareb also flowed from this.”Contrary to the Magistrate’s belief, his failure to explain the meaning of ‘coercive circumstances’ to (Tau-Nareb) at the commencement of the trial constitutes a misdirection on his part,” Acting Judge Manyarara decided.He added: “In order for him to have found (Tau-Nareb) guilty of rape as charged, the Magistrate also had to find that the coercive circumstances as referred to in the charge sheet were that the complainant was ‘under the age of 14 years and that the accused was more than three years older than her’.”However, at the hearing of the appeal State advocate Leonie Dunn conceded – correctly, according to the Acting Judge – that the complainant’s age had not been proven at the trial.”(W)hat was crucial to the issue of coercive circumstances as alleged on the charge sheet was what the exact age of the complainant was on the date that the offence was allegedly committed,” Acting Judge Manyarara stated.”The failure to prove the complainant’s age amounted to a failure to prove coercive circumstances for the purpose of convicting the appellant, regardless of whether sexual intercourse did or did not take place.”Not only proof of the child’s age, but also corroboration of the claim that Tau-Nareb had confessed his guilt to his sister in the presence of another woman, might have strengthened the State’s case, he commented.From his reading of the trial record, though, he was not convinced that Tau-Nareb’s guilt had been proven or that Tau-Nareb’s sister had not conspired to falsely incriminate him as he claimed, Acting Judge Manyarara stated.Tau-Nareb’s appeal was argued by Deon Obbes.