The accused was charged with rape of his seven-year-old granddaughter between the months of August to October 2008. The prosecution alleged that the accused did intentionally have unlawful sexual intercourse with a female seven-year-old minor who is incapable of consenting to sexual intercourse. The complainant, her brother who was sharing a bedroom with her during the rapes, the complainant’s aunt who the complainant first told of the rapes, a neighbor who had been told of the accused’s actions by his wife, the doctor who examined the complainant, and the constable all testified for the prosecution. The accused denied the charges and argued that all of the witnesses were lying, specifically that the children had been coached by the police. The Court discussed the elements that the Crown must prove in order for the accused to be found guilty of rape, namely (1) the accused must be identified; (2) there must be sexual intercourse; and (3) there must be lack of consent by the complainant. The accused was found guilty of rape. In sentencing, the Court found that the Crown proved that there were aggravating factors under Section 185(bis) of the Criminal Evidence Act (1938), namely, (1) the victim was a minor of a tender age; (2) the accused sexually assaulted the victim on more than one occasion; and (3) the accused stood in locus parentis to the victim and this abused the relationship of trust. The Court found the witnesses credible and found the accused guilty as charged.
Rex v. Simelane