(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. HASSAN OSMAN FARAH

AC-CP-694-1966

Principles

· Evidence—Corroboration evidence in sexual offences is very essential

To justify Conviction in sexual offences, e.g., unnatural offence under Penal Code, s. 318, it is very essential to have corroborative evidence to the victim’s story in any material way implicating accused.

Judgment

Advocate: Abdel Halim El Tahir…………………………………….. for accused

Salah E. Hassan 1. (By authority of the Chief Justice), February 13, 1967: —Unfortunately I do not find myself in agreement with the summary of salient facts as drawn by the learned President of the Court. As far as I can see from the evidence recorded, the facts, which are supported by material evidence, are the following.

On the evening of the incident, around 6.30, victim and his brother P.W.3 went to the shopping area of Hai El Nasr to buy sugar. When P.W.3 completed his purchase he did not find his brother, whereupon he went home. After he arrived at his house hi brother came carrying an ink-pot. He narrated to P.W.3 that it was given to him by accused who had carnal knowledge with him, inside his shop. P.W. took victim with him and went to accused’s shop and questioned accused whether he gave victim the inkpot and whether he fornicated him. Accused admitted the inkpot but denied the charge with disdain. P.W.3 went back and later informed his father, who reported the matter to the police. Victim was sent for medical examination anti the report was that part of the anus was slightly reddish, otherwise no traces of violence and no seminal fluid. Accused was arrested late at night and the result of the medical examination upon him was negative.

The accused was charged under Penal Code, S. 318.

All the material evidence tendered by the prosecution in this case is:

1. The story of the victim who is an eight-year-old boy.

2. The fact that accused gave victim an ink-pot containing some ink.

3.Accused closed his shop shortly after the alleged incident, I. about 8 o’clock in the evening.

4. Accused requested P.W.3 to hush the matter and not make a scene out of it.

5. The victim described the store in which the incident took place correctly.

6. The medical report described victim’s anus as slightly reddish.

I am afraid all this evidence is too weak to justify conviction of a sexual charge.

By way of comparison let us refer to Sudan Government v. Ali Fadlalla El Arabi (1961) S.L.J.R. 30. In this case a Major Court of an offence under section 318 convicted accused. The conviction was based on the following evi4,

1. Testimony of complainant, which was corroborated by his complaint to the police.

2. The medical evidence, which showed the complainant’s anal orifice, was inflamed as a result of penetration.

3. The violence on complainant, which reflected itself in the inflammation of his eye.

4. The fact that accused and complainant slept in one bed.

5. The fact that accused offered complainants father 75 piasters to induce him to drop his case.

The confirming authority rejected the evidence as not adequate and quashed the conviction. The confirming authority, acting Chief Justice M. I. El Nur, said: “It is almost a legal platitude that no charge is easier to conduct and more difficult to refute than a charge of rape or unnatural offence against children, and consequently the courts seldom convict upon uncorroborated testimonies of the alleged victim.”

Corroboration in sexual cases is very essential, Glanville Williams, Proof of Guilt, 140 (2nd ed., 1953), cites from Archbold, Criminal Pleading Evidence and Practice, 1949 (33rd ed., 1954):

“On a charge of rape and similar offences it is the practice to instruct the jury on the necessity for corroboration of the evidence of the alleged victim. The rule applied to a charge of indecent assault, or any sexual offence, including apparently an unnatural offence between males. There is a sound reason for the rule, because the sexual factor introduces a disturbing and unpredictable element into the evidence. So great is the danger of relying on such evidence if it is not corroborated that a jury that convicts in face of the warning may have its verdict upset by the Court of Criminal Appeal.”

The main witnesses in our present case are two children; the victim who is eight years old and his brother P.W.3 who is thirteen years old.

“Francois Gorphe, La Critique du Temoignage, 123 (2nd ed., 1927), says: “Children are suggestible and sometimes given to living in a world of make-believe. They are egocentric, and only slowly learn the duty of speaking the truth.”

Instances are reported of little girls who not only become willing partners in vice but are quite ready for spite of blackmail to get innocent men into trouble. Even if these dangers are not present, a child’s power of observation and memory tends to be even less reliable than that of an adult.

For all these reasons a child’s evidence must be considered with care and the legal council of prudence requires a special warning to be addressed to the jury upon it. The rule is, that it is dangerous to act upon such evidence unless it is corroborated in a material particular implicating the accused (see (1941) 8 Journal of Criminal Law, 306). Although this rule requiring corroboration of children is a sound and necessary one, no doubt it presents a formidable obstacle to the conviction of men who have been guilty of disgusting practices in private with such children but we should not forget the basic Roman maxim, that it is better for a guilty person to go unpunished than for an innocent one to be condemned. This maxim has been expounded later on by Sir Edward Seymour, Hale and Biackstone, etc.

The trial court looks to have been too much impressed with the evidence of the victim but whatever that impression may be this does not negative the need for corroboration by other evidence tending in the same direction. As Sir Iravers Humphreys commented respecting a case of similar nature in Criminal Days, 129 (London 1946). This rule should never be relaxed merely because the prosecutrix in the witness-box behaves like an angel and looks like a Madonna.”

In our present case there is no medical evidence to corroborate the evidence of P.W.2 (victim). The doctor ought to have been heard as a witness because there are myriad explanations for the redness on victim’s anus, several of which have been mentioned by accused’s advocate, in his memorandum of appeal. I do not see any other corroboration of victim’s story in any material way implicating accused. I therefore decide to quash the findings and sentence and order immediate release of accused.

The learned advocate for accused has been trying to argue that the conviction of a lesser offence, when a greater was charged is wrong, but I am afraid I disagree and Code of Criminal Procedure, s. 205 (1) (2) speaks for itself.