Principles

·  Criminal Law—Indecent assault on child—Corroboration required by law of unsworn child’s evidence

·  Criminal Law—Indecent assault on child—Corroboration required by practice of sworn evidence of child

·  Criminal Law—Indecent assault on child—Corroboration—Complaint of child is not corroboration

The unsworn evidence of a six-year-old child complaining of indecent assault must in law be corroborated.
The complaint of a child, while admissible to confirm witnesses’ testimony in the witness-box or to support the allegation of no consent where that is relevant, does not constitute corroboration of the unsworn evidence of a child complaining of indecent assault.
Obiter dictum: Sworn evidence of a child complaining of indecent assault is required by practice in the Sudan to be corroborated.

Judgment

      Hassan Abdel Rahim PJ. October 6, 1964:—By virtue of my power under Code of Criminal Procedure, s. 256, I quash the finding and sentence and order release of accused for the following reasons:

      The only evidence adduced by the prosecution is the uncorroborated evidence of the six-year-old boy that he was sexually assaulted by accused, a policeman in Omdurman. Neither the medical evidence nor the tracker’s evidence supported the allegations by the child. No traces of the assault were found on the child; no tracks but those of the child were found at the alleged place of assault. In charges of sexual offences the unsworn evidence of a complainant child must as a matter of law and practice be corroborated in some material particular and by evidence which implicates the accused: 10 Halsbury, Laws of England 462 (3rd ed., Simonds, ‘1955); 1 Russell, Crime 716 (12th ed. 1964).

      In cases of rape and indecent assault the fact that the person assaulted made a complaint at the first possible opportunity and the particulars of the complaint are admissible as evidence for the prosecution, not to prove the truth of the matters stated in the complaint, but:

   a) to confirm the complainant’s testimony in the witness-box;

   b) to negative consent (when consent is an issue).

      10 Halsbury, Laws of England 468 (3rd ed., Simonds, 1955).

      Where the evidence of the child assaulted is on oath, corroboration is not essential in law, but is always looked for in practice: R. V. Berry (1924)

      18 Cr. App. R. 65 68; R. v. Freebody (1935) 25 Cr.App. R. 69.

*Court: M. A. Abu Rannat CJ and B. Awadalla J.

* Court: M. A. Abu Rannat C.J. and B. Awadalla J.

* Court: M, A, Abu Rannat C,J. and B. Awadalla J.

* Court: M. A. Abu Rannat C.J., M. A. Hassib J. and B. Awadalla J

* Dafalla El Radi Siddig D.J. and El Mahdi El Fahal D.J., members.

1 Coleman v. State, 25 S.W. 772 (1894), the Court of Criminal Appeals of Texas, on appeal from the District Court, Freestone County, stated, per Hurt P.J.: “It appears that appellant [Josh Coleman] was insisting upon a girl going with him to a dance. She expressed an unwillingness to go. The prosecutor, Dixon, stated to her that, if she did not want to go, she need not do so, whereupon appellant remarked: ‘What is it to you, you damned Alabama son of a bitch? Dixon replied that an Alabama son of a bitch was not afraid of a Texas son of a bitch. Appellant requested Dixon to repeat what he ‘had said. He did so. From this point on, the evidence is not harmonious. Two or three witnesses stated that, when Dixon repeated what he had said, appellant shot at him. The other witnesses stated that, when he requested Dixon to repeat what he had said, appellant began drawing his pistol, and did not shoot until Dixon was in the act of getting the gun. If either of these theories be true, appellant was evidently guilty of an assault with intent to murder. Appellant, however, swears that he did not fire, or attempt to lire, till Dixon was reaching for the gun. He does not deny that he drew his pistol before Dixon started for the gun. Upon the theory presented by the defendant’s testimony, the court [Rufus Hardy J.] charged the jury: ‘If, however, the said John Dixon was making an unlawful attack upon defendant before the defendant made any hostile demonstration towards said Dixon, and it reasonably appeared to the defendant, from all the circumstances and surroundings, that it was necessary to shoot at said Dixon in order to protect himself against said Dixon’s assault, and that the shooting on defendant’s part was done by defendant only because he feared impending danger from Dixon, then you will find the defendant justified on the ground of self. defence, and not guilty. If, however, the defendant began the difficulty by first drawing his pistol or attempting to draw it, with an apparently hostile intent. before any hostile movement by Dixon, he could not be justified on the ground of self-defence In (since in such case Dixon would have had the right to resort to violence to protect himself), even though defendant might have reasonably be lived at the. time he shot at Dixon (if he did) that his own life was in danger.’

Under the facts of this case this charge contains all the law to which defendant Is entit1ed that Dixon sprang for the gun, and would have shot the defendant if he could, may .all be true: but his acts-in this matter were made necessary to his own preservation by the conduct of defendant, for, when the appellant accompanied ‘ Dixon to repeat what he had said by drawing his pistol Dixon was     .perfectly Justified In springing to the gun. The judgment is affirmed.”

* Court: M. A. Abu Rannat C.J. and B. Awadalla J.

* Court: M. A. Abu Rannat C.J. and 8. Awadalla J.

* Court: M. A. Abu Rannat C.J.

SLJR 1965

1

[1] Court M.A Abu Rannat C.J. and B Awaddalla J.

[2] Court M.A. Abu Rannat C.J. M.A.Hassib and B. Awadalla J.