(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. MOHAMED AHMED ABU BAKR

AC-CP-511-1966

 Principles

·  Evidence—Infant’s statement without oath—Corroboration required

Accused was convicted of acts of gross indecency under Penal Code. S. 319, on the statement of the seven-year-old boy.
Held: Accused must not be convicted on the unsworn statement of a seven- year-old boy without corroboration, which must come from an independent source.
 

Judgment

Advocate: Ahmed Suleiman for the accused

S E. Hassan I. (By authority of the Chief Justice), September 15, 1966: —The facts as they appear to me after reading the whole record inclusive of the police investigation arid magisterial inquiry are the following:

The boy who is about seven years of age was sent early evening by hIs mother to buy kerosene for one piaster from a nearby small canteen (Kushuk) owned and rim by accused. The boy delayed a lot and his mother looked outside and noticed that the canteen was closed. She thought that her son had gone to the market, which was not far away. Some time later the boy came carrying the kerosene, It seems to me, although it is not very clear from the record, that his mother shot him with several questions as an inquiry about his delay to which the boy told the following story:

“The accused took me inside the Kushuk. He took out his libas and asked me to take Thine out. Then he put his penis between my buttocks until he discharged. Then he cleaned my body with the napkin (Fota) and gave me the kerosene and asked me not to tell anybody.”

The boy’s mother did not report the matter the same evening. Next morning she told the boy’s father who reported the matter. The accused and the boy were sent for medical examination but no sperm could be traced on either. There were no signs of violence on accused’s penis. The boy had a scratch on his left thigh and some external bruises on the anus. The libas of both accused and victim and the napkin were sent to the laboratory in Khartoum and the result was negative. The court found accused guilty under Penal Code, s. 319.

As mentioned by advocate Ahmed Suleiman in his memorandum of appeal the court has relied wholly on the statement of the victim who is a young boy of seven years and who does not appreciate the nature of an oath.

No precise rule can be laid down as to the limit of age, or degree of knowledge and intelligence, which will exclude the testimony of infants. Their competency, however, depends not so much on years as ability to appreciate the nature of an oath and the Consequences of falsehood. Where a child in the opinion of the court does not understand the nature of an oath, his evidence may be received, though not on oath, if in the opinion of the court the child is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth. Such testimony, however, must be corroborated by some other material evidence in support thereof implicating the accused. “In R. V. Manger (1934) 25 Cr.App.R. 18, it was held that the unsworii evidence of such a child is not corroborated by the unsworn evidence of another child which itself requires corroboration,” and in “R. v. Evans (1924) 88 J.P. 196, it was held that the evidence of an unsworn child is not corroborated on a charge of carnal knowledge, by the fact that the child made a complaint as such corroboration must come from an independent source.” These rules are so important that they have been embodied in the Children and Young Persons Act, 1933, S. 38 (1).

The great reluctance of the courts to convict, and to uphold convictions in cases of this kind, unless the evidence is in all respects quite clear has long been a feature of Criminal Law. See R. V. Christie (1913) 9 Cr.App.R. 169.

As regards the complaint made by the boy to his mother shortly after wards in answer to her questions the law is as follows:

1. Complaints are admissible in sexual cases.

2. Both the fact and particulars of the complaint are admissible.

3.   Complaints are not evidence of the truth of the matters stated but only:

(a)      Of the consistency of the complainant’s conduct with the story she or he has told in the box; and

(b) As negativing consent where that fact is in issue;

(c)     Complaints must not have been elicited by questions of a leading or inducing or intimidating character.

If the circumstances indicate that but for the questioning there probably would have been no voluntary complaint, the answer is inadmissible. In the circumstances of this case and from the evidence of the victim’s father which I consider is direct evidence as to what his wife has told him the victim would not have told the story but for the questions of his mother.

Putting all these legal principles in mind I find that the evidence cannot justify conviction and it is very unsafe to rely upon it. I do not trace any corroboration to the material part of victim’s statement implicating the accused. The statement of the victim itself is not devoid of criticism in the circumstances I refuse confirmation of the finding and I order the release of accused forthwith. The President of the Major Court attention is drawn to the fact that the summary of salient facts should be written separately and not as part of the reasons for finding.