THE Supreme Court has thrown out an appeal against conviction and sentence by a paedophile who used to work at St Johns School in Harare who was jailed for sexually abusing four teenage boys who were under his supervision at different occasions.
David Edward Gardner, who also was Triathlon Zimbabwe coach, was found guilty of immoral indecent assault after he abused a 14-year-old boy at his Highlands home by fondling his genitals.
It was also proved that in November 2005, at Afdis Camp, Nyanga, Gardner committed an indecent act on another 14 -year -old boy during camping. In August 2006 in Lausanne, Switzerland , Gardner again abused another teenage boy under his care.
In the fourth count, prosecutors proved that in August 2006 in Budapest, Hungary, Gardner committed an indecent act upon the first complainant after he reached across to his bed and commenced to rub the boy's leg with his foot around the ankle area.
Gardener pleaded not guilty to the charges arguing that the complainants were being influenced by their parents to tarnish his image. His defence was also that he was being nailed because of the pending labour case he had against St John’s College.
In respect of the first count, he stated that he was not able to give particulars as the charge and outline of facts were vague and embarrassing. Twelve witnesses who included the complainants and their parents testified against him.
On the other hand, three witnesses testified for the defence. However, the magistrates found him guilty on the first three counts and sentenced him to a total of 24 months imprisonment of which 12 months were suspended for five years on condition that he does not commit a similar offense within that period.
Aggrieved by the verdict of the trial court, Gardner appealed to the High Court where he challenged witnesses' evidence as weak.
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He added that the sentence was severe and induced a sense of shock given the modern trends in sentencing. His appeal was thrown out by the High court which ruled in favour of the State noting that there was nothing to support the claim that there was a conspiracy against him.
The High Court also concluded that the evidence that was led was striking. Aggrieved, Gardner took the matter up to the Supreme Court. Among other things, he submitted that the court a quo misdirected itself in accepting the reasoning and findings of the trial court without first evaluating the evidence for itself.
He further argued that David Drury who was representing St Johns School, was allowed to correct one of the complainants’ statements whilst in the prosecutor’s office. But a three -panel bench comprising Justices Chinembiri Bhunu, George Chiweshe and Joseph Musakwa trashed his appeal ruling that Gardner had failed to raise the issue of prosecutorial misconduct during trial and before the court a quo.
“He has belatedly raised the issue with this court. The amended grounds of appeal have no merit. The appellant may have sought to argue that there cannot be said to be any corroboration of the complainants’ testimonies as a result of the prosecutor’s conduct.
“However, the appellant’s own conduct tends to corroborate the evidence of the complainants.
“In tendering his letter of resignation from the employment of St John’s College, the appellant apologized for what he called a “practical joke” that he played on one of the complainants in Switzerland where he had written “three laps to go” on the boy’s thigh while the boy was asleep at night.
“ The boy testified that the reason why he did not report the matter was because he was only 15 years old and was scared that no one would believe him. Similarly, all the boys, also testified that they were scared to report the incident.
“In the case of the first complainant, he was 14 years old and the report was made when he was 18. These explanations by the complainants were reasonable considering that they were still young and they had a special relationship with the appellant. The Supreme Court said the fact that the allegations came from three different complainants who were indecently assaulted at different places and on different dates is one that would ordinarily raise suspicion of such coincidence.
“Therefore, with regard to the above, we are of the view that the evidence of the three boys was enough to prove beyond a reasonable doubt that the appellant was guilty of the crimes involved and therefore, dispels any claim that the allegations were as a result of conspiracy.
“The appellant waited for a conviction and after it became apparent that the conviction would not likely be overturned, he sought to claim an irregularity which occurred before the commencement of the proceedings.
“In addition, corroborative evidence played a very essential role in proving the guilt of the appellant beyond a reasonable doubt. Therefore, there is no merit in the appeal,” said the judges before throwing out the appeal.
