Maravi

Findlay wins rape case

Findlay wins rape case
By Laura Mushaukwa in Ndola
Friday April 25, 2008 [04:00]

SUSPENDED MMD Copperbelt chairperson Terence Findlay (right) was yesterday acquitted on charges of rape and possession of obscene material by the Ndola Magistrates’ Court. However, Findlay was found guilty of assaulting a 16-year-old girl and was fined K5 million by Ndola Principal Resident Magistrate Chilombo Phiri.

This is in a case where Findlay was indicted for rape contrary to the Laws of Zambia.
Particulars of the offence were that Findlay on unknown dates but between May 1, 2007 and June 2, 2007 in Ndola had unlawful carnal knowledge of a 16-year-old grade ten pupil of Kansenshi Secondary School.

On the second count, he was charged with possession of obscene material contrary to the provisions of section 177(1a) of the Penal Code Cap 87 of the Laws of Zambia.

It was alleged that Findlay on unknown dates but between May 26, 2007 and June 3, 2007 had in his possession a DVD film that tended to corrupt morals.


On the last count, he was charged with assault occasioning bodily harm contrary to Section 248 of the Penal Code CAP 87 of the Laws of Zambia.
According to the indictment, Findlay on June 2, 2008 assaulted his victim, causing her harm.

Findlay pleaded not guilty on all counts and 11 witnesses testified against him.
The 16-year-old girl who claimed Findlay raped and assaulted her narrated her ordeal before the court.

She told the court that on the fateful day, Findlay picked her up on her way home from school and they drove to town where he gave her a drink that he opened.

The girl added that she and Findlay then drove to Castle Lodge where Findlay booked a room. At this point the girl said she was feeling tired but later on in the evening she was surprised to find herself and Findlay naked in the same room.

She also recounted in court how she found herself naked and bleeding from her private parts on different occasions with Findlay's friend Zinho Latife and others in a room at Savoy Hotel.

The girl revealed that on one occasion, Findlay gave her a pornographic DVD dubbed Bwaski One to watch and on a different occasion he burnt her with a cigarette lighter on her buttock and arm after she refused to have sex with him.
Findlay was put on his defence after Magistrate Phiri found him with a case to answer on all the charges against him.

When the matter came up for defence on February 22, 2008 Findlay opted to remain silent and called seven witnesses.
In passing judgment, Magistrate Phiri said the onus was on the prosecution to prove their case beyond reasonable doubt.
She said she would acquit the accused person if she had any doubts after considering the case.

She added that for her to establish the guilt of the accused person on the charge of rape there was need for corroboration on some aspects to avoid the dangers of false complaints and that the ingredients of the commission of the offence of rape needed to be satisfied.

Magistrate Phiri cited the ingredients that needed to be satisfied on the first count as proof that Findlay had unlawful carnal knowledge with the girl without her consent.

She established that the evidence of all the prosecution witnesses did not corroborate with that of the girl and that the girl told her neighbour that she had a dream where she found herself naked with Findlay but never told her that the ordeal actually happened.

Magistrate Phiri noted that although the girl rightly identified Findlay, the doctor who examined the girl testified that the findings were inconclusive and that there was nothing to suggest the commission of the offence.

She said there was no evidence that the drink that Findlay gave the girl was doctored as no drink had been brought before court to prove the claim and that the girl was fully conscious when she saw Findlay book a room.

Magistrate Phiri was surprised at the manner in which the arresting officer turned a blind eye to all the other incidents where the girl was raped by the many men she mentioned.

She noted that the friend to the girl appeared not to know Findlay and pointed at somebody else during the identification parade.

It is on this basis that she acquitted Findlay on the charge of rape.
On the second count of possession of obscene material, Magistrate Phiri explained that to establish the guilt of the accused person, there needed to be proof of actual possession or constructive possession where the obscene material was with someone else but from the accused.

She ruled that the obscene material did not have any impact on the girl since she testified that she never watched the film.

Magistrate Phiri said she could not ignore the note attached to a letter the girl wrote to her grandmother talking about shooting a pornographic movie in Kitwe.

She observed that the arresting officer did not do his job by investigating the pornography matter so as to ascertain whether or not there could be a source of the pornographic film.
Magistrate Phiri also acquitted Findlay on this charge.

On the last count of assault, she found Findlay guilty saying the medical report showed that the girl had burns and the description of the house where Findlay burnt her after she refused to have sex with him matched the house where she led the court.

Magistrate Phiri dismissed as concocted, the story by Findlay's witnesses that on the material day they had visitors and there was no way the girl could have gone there.
She ruled that the girl knew the house very well, an indication that she had really been there.

In mitigation, one of Findlay's lawyers, Paulman Chungu said he was a first offender.
Chungu said Findlay and the girl clearly knew each other and the circumstances leading to the assault were unfortunate.

Chungu asked the court to exercise leniency saying the assault was not fatal.
Magistrate Phiri fined Findlay K5 million failure to which he is to face nine months imprisonment.

Findlay, who said he was happy that he had been acquitted on the charges that were very serious, paid the K5 million cash immediately.
However, Findlay said he could not comment on the assault charge as his lawyers had advised him not to.

Commenting on the judgment, the relatives to the girl said it was unfair and that rich people always got away with crimes.
There was near drama when the visibly distressed grandmother to the 16-year-old girl said she was going to reveal everything, as she had been quiet for a long time.
She was however whisked away by one of her other relatives.

But one of the defence lawyers Eric Silwamba said he was happy that the judgment vindicated their plea of innocence on behalf of Findlay.
On the assault conviction, Silwamba said they would study the judgment and obtain instructions later.

And Silwamba explained that he was not in court when judgment was being delivered because he was in the High Court library. “I was in the library strategising because we went to court with an open mind”, he said.

Labels: COURTS, TERRENCE FINDLAY

posted by MrK @ 3:53 AM