Unsworn evidence of a child of tender years
After a successful voir dire examination, the evidence of a child of tender years may
be taken as sworn or unsworn. The sworn testimony of a child of tender years
does not require corroboration and is treated like any other sworn testimony.[1]Rule 15(1)[2]
provides that in both criminal and civil cases the evidence of young children
must be supported by other evidence. As a general rule, the
unsworn evidence of a child of tender years requires corroboration as a rule of
practice,[3]
although where the conditions stipulated under s 127(3)
or (7) of the Evidence Act[4]
are met, a trial court may act on the unsworn evidence of a child of tender
years, even if such evidence has not been corroborated.
A trial court
may, under s 127(3) of the Evidence Act,[5] act on the unsworn evidence of a
child without corroboration after warning itself of the danger of doing so, and
convict an accused if it is fully satisfied that the child is telling the
truth.[6]
The Court of Appeal, sitting at Mwanza in Magori Wambura v R,[7] had the occasion to construe the
provisions of s 127(3). In a joint judgment of the Court of Appeal delivered by
Mapigano Ag JA, the Court of Appeal held:
In
our construction this sub-section has clear reference to sub-section (2) and
the two subsections must, therefore, be read together. Sub-section (2) provides
for the reception of evidence of a child of tender years who does not
understand the nature of an oath but who is possessed of sufficient
intelligence and understands the duty of speaking the truth. It makes the
evidence admissible in any criminal proceedings though not given upon oath or
affirmation ….
Thus, the trial court should first be assured that a child possesses
sufficient intelligence and the duty of speaking the truth, even in a situation
falling under s 127(3), before acting on the evidence of a child of tender
years without corroboration.
Besides,
under s 127(7) in criminal proceedings involving a sexual offence in
which the only independent evidence is that of a child of tender years or of a
victim of the sexual offence, a trial court is allowed to receive that evidence
even if there is no corroboration.[8]
From this provision, after assessing the credibility of the evidence of a child
of tender years or the victim of a sexual offence on its own merits, the court
may convict an offender on the basis of that evidence even though such evidence
is not corroborated if the court is satisfied that the child of tender years or
the victim of the sexual offence is telling nothing but the truth. Although s
127(7) appears to waive the requirement of corroboration, as criticised in Herman Henjewele
v R,[9] the cases which have been decided after Herman Henjewele have held that corroboration may be dispensed with only where the trial
court is of the opinion that the conditions stipulated in s 127(7) have been
satisfied. [10] In Herman Henjewele the Court of Appeal remarked:
It is possible to understand why Parliament considered the
need for corroboration in sexual offences can be waived but, with respect, it
is difficult to appreciate the need to waive the all too important safeguards
contained in section 127(2) of the Evidence Act, 1967. Does it imply that the
evidence of a young child who might not know what it means to speak the truth in
their evidence can be taken by a court of law and such evidence be acted on to
found a conviction in a sexual offence? We think that it is important to
safeguard the integrity of judicial evidence which must not be so watered down
as to amount to a mockery of evidence.
The practical application of the
provisions of s 127(7) has been elaborated on by the Court of Appeal in the
recent case of Nguza Vicking & 3
Others v R,[11] where Kimaro JA, speaking for the
Court, observed:
From the wording of the section,
before the court relies on the evidence of the independent child witness to
enter a conviction, it must be satisfied that the child witness told nothing but the truth. This means that, there
must first be compliance with section 127(2) before involving section 127(7) of
the Evidence Act; ‘voire dire’
examination must be conducted to ascertain whether the child possesses
sufficient intelligence and understands the duty to speak the truth. If the
child witness understands the duty to speak the truth, it is only then its
evidence can be relied on for conviction without any corroboration otherwise
the position of the law remains the same, that is to say that unsworn evidence
of a child witness requires corroboration. (Emphasis original)
There are conflicting decisions in
the Court of Appeal regarding the effect of the omission to conduct voir dire examination. In Nguza Vicking (supra), the
Court of Appeal held that it was settled law the evidence of a child of tender
years which has been taken without conducting a voir dire examination should be treated as unsworn evidence which
requires corroboration. The court declared as per incuriam its decision in Sunday
Juma v R,[12] where it was held that in case of
the omission such evidence should be discarded.
There are,
however, several other decisions of the Court of Appeal to the effect that the
evidence of a child of tender years which has been taken without conducting voir dire is illegal and should be
discarded.[13]
In Jonas
Raphael v R,[14] where the trial court did
not conduct a voir dire examination,
the Court of Appeal held that the evidence of the child ought not to have been
taken, although the conviction was sustained because there was sufficient
evidence on record apart from the evidence of a child of tender years. The
Court of Appeal, speaking through Kaji JA, observed:
... It is common ground
that no voir dire test was conducted to determine whether she knew the
nature of an oath or whether she was possessed of sufficient intelligence to
justify the reception of her evidence and she understood the duty of speaking
the truth. … In the instant case the learned trial Magistrate neither conducted
any voir dire test to determine whether PW2 (aged 12) knew the nature of
an oath nor did he make any finding whether in his opinion, PW2 was possessed
of sufficient intelligence to justify the reception of her evidence and that
she understood the duty of speaking the truth. He simply recorded as follows:
PW2 …, 12 years,
Std I at Debu Primary School, states: ‘… This was not enough. Her evidence was
received improperly and should not have been relied upon.
Another example is from
the case of Shabani Madebe v R.[15] Here the appellant was convicted of an offence
of rape by a district court. The appellant usuccessfully appealed to the High
Court. One of the grounds on a second appeal to the Court of Appeal was that
the conviction was erronously based on the testimony of a small girl without
there being a voir dire examination. In its judgment delivered by Munuo
JA, the Court of Appeal held as follows:
It
appears to us that although the learned trial magistrate purported to conduct a
voire dire examination at page ten of the record of appeal, she lost
track and ended up prosecuting the case. This, she did, without making a
finding on whether the child knew the meaning of an oath, and, or the duty to
tell the truth and furthermore, whether the said child was possessed of sufficient
intelligence to justify the reception of her evidence. In that regard, the
trial magistrate failed to comply with the mandatory provisions of section
127(2) of the Evidence Act, 1967. This, in our view, was a fundamental irregularity which occassioned failure of justice.
(Emphasis added)
Together with another
ground, a retrial was ordered.
In
Dotto s/o Ikongo v R[16]
the appellant was charged with and convicted of the offence of rape contrary to ss
130(1)(2)(e) and 131(1) of the Penal
Code, as amended by Act 4 of 1998. He was sentenced to a 30 years’ term of
imprisonment. On first appeal to the High Court, the appeal was dismissed but
the in addition, the appellant was condemned to ten strokes of the cane, a fine
of 50,000 shillings and payment of 200,000 shillings compensation to (PW1) the
victim of the rape. The evidence against the accused was entirely that of the
complainant (PW1) who was a child of tender years. On appeal to the Court of
Appeal, the court was satisfied that trial magistrate did not conduct a voir
dire examination. The court held that PW1’s evidence was received
improperly and should not have been relied upon:
In the instant case, as already indicated, the trial magistrate
similarly recorded with regard to the evidence of PW1, N d/o C, a child of
tender age [sic]. Curiously, however, we are unable to understand what exactly
happened. While, on one hand, the original record shows that PW1 when examined
by the court stated to the effect that she was schooling [sic] at Nkuhungu
Primany School Std 6 and that she is a Christian, on the other hand, there
appears some scribbling and insertion of words which, both the learned Senior
State Attorney and Mr Stolla, learned counsel, doubted that they were added at
some stage later. We need not go further in speculating on what might have
happened in this regard. It would indeed be most undesirable in judicial
proceedings. Whatever might have happened, we are firmly of the view that no voir dire test was conducted.
Consequently, we agree with Mr Mwampoma, learned Senior State Attorney and Mr
Stolla, learned counsel, that the evidence of PW1 was improperly received, it
should not have been relied upon in convicting the appellant.
The Court
of Appeal quashed the conviction of the appellant as there was no other
evidence on which the conviction could be sustained:
The
next question falling for consideration is: What is the effect on the
conviction of the appellant if the evidence of PW1 is discarded from the rest
of the evidence? As observed earlier, at the time of the alleged rape, there
was no other witness who could testify to have seen the appellant sexually
assaulting PW1. The rest of the witnesses, namely PW2, PW3, PW4 and PW5
testified on what transpired after PW1 had been raped. In that situation, it
would follow that there is no evidence linking the appellant with the rape of
PW1. For this reason, we are respectfully in agreement with Mr Stolla, and Mr
Mwampoma, that on the evidence, the case had not been proved against the
appellant. While it may well be that PW1 was raped, there was no evidence to
show that she was raped by the appellant.
The
final example is the case of Hassani Hatibu v R.[17] The
appellant was charged with and convicted in a district court of an offence of
defilement of a girl under the age of 14 years’ contrary to s 136(1) of the
Penal Code, and sentenced to 20 years’ imprisonment and 12 strokes of the cane.
In addition, the appellant was ordered to pay 20,000 shillings in compensation.
The trial court convicted the appellant on the basis of
the evidence given on oath by a child of tender years, who at the time of the
trial was 13 years old, PW1, a Standard IV pupil. The appellant appealed to the
High Court. At
the High Court, it was urged that the decision of the trial court was wrong
because a voir dire examination of PW1 had not been conducted. The High
Court dismissed the appeal on the grounds that the evidence was sufficient and
there was no need for corroboration if the trial court believed in the evidence
of PW1. The Court of Appeal quashed the conviction because the evidence of a
child of tender years was improperly received in evidence and because there was
no other evidence on record to sustain the conviction:
It is
now settled that where in a criminal case involving the evidence of a child of
tender age, the trial court does not conduct a voir dire examination in terms of the provisions of section 127(2)
of the Act, the reception of such evidence is improper. Decisions of the
erstwhile Court of Appeal for East Africa and this Court … abound on this
point. More recently, this Court expressed the same view in Jonas Raphael v The Republic, Criminal
Appeal 42 of 2003 (unreported). In the same vein, in this case as there was no voir dire examination conducted on PW1,
her evidence was improperly received. It would follow that with the evidence of
PW1 discarded, there is no other cogent evidence upon which the conviction of
the appellant could be sustained.
In
light of these decisions of the Court of Appeal, it is doubtful to conclude
that the law was settled on this point, and the Court in Nguza Vicking ought to have referred the matter to
the Full Bench.
The Court of Appeal in Nguza Vicking (supra) was actually relying on the position stated in the case of Deemay Daati & 2 Others v R[18] that the evidence of a
child of tender years that has been taken on oath without conducting a voir dire
examination requires corroboration. In this case, the three appellants who were
acquitted by the trial district court were convicted of an offence of cattle
theft by the High Court on appeal. They were each sentenced to a term of five
years’ imprisonment and were further ordered to pay 75,000 shillings in
compensation for the two stolen bulls. They appealed to the Court of Appeal.
The evidence of PW2, who was ten years old, was taken on oath without there
being a voir dire examination. However, the evidence of PW2 was corroborated
with the evidence of PW3. It was urged on appeal to the Court of Appeal that
the provisions of s 127(2) had not been complied with. The Court of Appeal
accepted as a fact that a voir dire
examination was not conducted and went on to examine the legal consequences of
not conducting a voir dire examination:
It is settled law that the omission to conduct voir dire examination of a child of tender years brings such
evidence to the level of unsworn evidence of a child which requires
corroboration. Decided cases on this are numerous. See for instance: (1) Kilengeny Arap Kolil v R
[1959] EA 92; (2) Kisiriri Mwita s/o Kisiriri v R
[1981] TLR 218; (3) Dahiri Aly v R (1989) TLR 27. If we understood Mr Chadha,
he seemed to take the view that as a result of such omission, the evidence of
PW2 was rendered worthless. With respect, this is not the correct position of
the law. Under sub-section (2) of section 127 of the Evidence Act 1967, the
evidence of a child of tender years who, in the opinion of the court does not
understand the nature of an oath, the evidence may be received like the
evidence of any other unsworn witness. Such evidence however, requires
corroboration.
The Court of Appeal sustained the
conviction because there was evidence apart from that of a child of tender
years:
In this case, even if it is accepted that PW2 was such a witness,
namely that he did not understand the nature of an oath, his unsworn evidence
was fully corroborated by PW3. As a result, with the evidence of PW2
corroborated by PW3, we are satisfied that upon consideration and evaluation of
the evidence as the learned judge, did, the appellants would still be found
guilty of the offence as charged.
In broad terms, the ratio
decidendi stated in Deemay Daati is
that the omission to conduct voir dire examination of a child of
tender years brings the evidence of the child of tender years to the level of
unsworn evidence which requires corroboration. It seems that now, from this decision, the unsworn evidence of a child of tender years may be
made in three distinct situations:
(i)
on oath (but because of the failure to conduct a voir
dire examination it is deemed to be unsworn);
(ii)
after a voir dire examination, where the child does
not understand the nature of an oath, but is possessed of sufficient
intelligence and understands the duty of speaking the truth, and
(iii)
where a voir dire
has not been conducted at all.
The actual ratio decidendi in Deemay Daati is that the evidence of a child of
tender years taken on oath without conducting a voir dire examination is unsworn evidence which requires
corroboration. This may be noticeable from both Herman Henjewele v R,[19] and Benard Masumbuko Shio v R,[20] where it has been observed that Deemay Daati is an
authority for the proposition that the evidence of a child of tender years
which is given on oath without the court’s conducting a voir dire
examination is the one which should be treated as unsworn evidence that
requires corroboration.
In Deemay Daati, the Court of Appeal had rejected the argument that the
evidence of a child of tender years which has been taken without a voir dire examination ought to be
discarded because such evidence is ‘like the evidence of any other unsworn
witness’ and requires corroboration:
If we understood Mr Chadha, he seemed to take the view that as a
result of such omission, the evidence of PW2 was rendered worthless. With
respect, this is not the correct position of the law. Under sub-section (2) of
section 127 of the Evidence Act 1967, the evidence of a child of tender years
who, in the opinion of the court does not understand the nature of an oath, the
evidence may be received like the evidence of any other unsworn witness. Such
evidence however, requires corroboration.
But a year later, the same bench of the Court of Appeal which
decided the case of Deemay Daati with
the same judge delivering the judgment
of the Court of Appeal in Gasper Joachim
v R[21]
held that evidence of a child of tender years taken on oath without conducting voir dire test should be discarded. In
this case, the appellant was charged and convicted of the offence of unnatural
offence contrary to s 154 (1) of the Penal Code. At the trial the complainant,
a child of tender years testified that during the Karate and Kung-fu exercises
the appellant used to take the
complainant to his house and forced the complainant to have sex with him
against the order of nature. The medical examination report produced before the
court showed that the complainant had been sexually abused. The appellant
denied involvement in the offence. His appeal to the High Court was dismissed
and the appellant appealed to the Court of Appeal. One of his main grounds of
appeal was that the uncorroborated evidence of the complainant was improperly
received because no voir dire examination was conducted to
determine the competency of the child witness. On appeal to the Court of
Appeal, the appellant appeared in person and the counsel who represented the
Republic (respondent) supported the appeal. One of his grounds for not supporting
the conviction was that the evidence of the complainant, a child of tender
years which was taken without voir dire
examination ought to have been discarded and if such evidence was discarded
there was no leg upon which the
prosecution case could stand.
After addressing itself on the law and practice governing voir dire examination, the Court of
Appeal observed:
In this case upon close
examination of the record, we are with respect, in agreement with Mr Kagaigai,
learned Senior State Attorney that no voir
dire test was carried out by the trial magistrate before the evidence of
PW2 was received. What is gleaned from the record is that at the time PW2 gave
evidence there is no indication whatsoever that the voir dire test was carried out prior to the reception of his
evidence. What was recorded was that PW2 gave evidence on oath. PW2 being of
the tender age of 12 years, his evidence was, as Mr Kagaigai submitted,
received contrary to the mandatory
requirement of the law under section 127 (2) of the Evidence Act… As a result,
in that situation, it is our view that the evidence of PW2 should not have been
admitted and acted upon. We think, as an after thought, the trial magistrate
upon realization that a serious omission had been made in not complying with the
mandatory requirement of the law when PW2 testified, made remarks in passing at
the end of the judgment that he had no reason to doubt the testimony of PW2
whose evidence on oath was unshaken. Belatedly though the observation was made,
it goes without saying that this would not cure the breach of a mandatory
requirement of the law in failing to conduct the voir dire test.
The Court of Appeal then
held:
In the circumstances, the
evidence of PW2 having been admitted wrongly, it follows that it should have been
discarded. Consequently, with the evidence of PW2 discounted, there is no leg
as it were, upon which the case against the appellant would stand…..In a
similar vein, with the evidence of PW2 discarded, the need for invoking the
provisions of section 127 (7) of the Evidence Act, 1967….. relating to
corroboration would not arise.
It is therefore not settled
law ‘ that the omission to conduct voir
dire examination of a child of tender years brings such evidence to the
level of unsworn evidence of a child which requires corroboration’ because even
the same bench of the Court of Appeal
could not in a subsequent decision arrive to the same conclusion. However, it
is a matter of great concern that the Court of Appeal has for quite some time
been keeping a blind eye to this confusion. It is high time the matter be
settled once for all by the Full Bench of the court.
Although the legal position
is that the unsworn evidence of a child of tender years may require
corroboration, it doubtful to conclude that the unsworn evidence of a child of
tender years which has been taken without a voir
dire can be treated like the evidence of any other unsworn witness. This
holding of the Court of Appeal is problematic as it renders useless the
significance of conducting voir dire examination.
As demomstrated, there are abundant
authorities in which
the Court of Appeal has held that the evidence of a child of tender years which
has been taken without voir dire should be discarded.
It should be noted that in both Deemay Daati and Nguza Vicking the
Court of Appeal relied on the High Court decisions in Kisiri Mwita s/o Kisiri v R[22] and Dhahiri Ally (supra) for the proposition that the omission to conduct voir dire brings the evidence of a child
of tender years to a level of unsworn evidence of a child which requires
corroboration. It is only Kisiri Mwita which
is the authority for this proposition but in the light of the Court of Appeal
decision in Augustino Lyanga (supra) it is not good law. In Augustino
Lyanga, where the case of Kisiri was
cited but restrictively distinguished, the Court of Appeal held that the
evidence of a child of tender age ought not to have been received and the failure to
conduct voir dire examination was an incurable irregularity. In the end,
the Court quashed the conviction based on the unsworn evidence of a child and
ordered a retrial. As noted elsewhere,[23] Dhahiri Ally is
an authority for the proposition that the evidence of a child of tender years
wrongly received should be discarded. In both Dhahiri
Ally and Augustino Lyanga the courts have held that: where both findings have not been
made regarding the intelligence and the duty of speaking the truth of the child
of tender years, the evidence so received is illegal.
Furthermore, according to Deemay Daati and Nguza Vicking, the unsworn evidence of a
child of tender years, which has been taken without conducting a voir dire examination, cannot be relied
on to find a conviction unless there is corroboration. It
immediately comes to mind that the unsworn evidence of a child of tender years may not require
corroboration where the conditions stipulated in either s 127(3) or (7) have
been satisfied. It may be argued that the unsworn
evidence of a child of tender years which has been taken without a voir dire examination would not fall
within the exceptions established under s 127(3) or (7), because under these
provisions corroboration may be dispensed with.
A conviction would be
upheld if there is other evidence on record after the evidence of a child of
tender years has been discarded. In Nyasani s/o Bachana v R,[24] where the trial court did not
comply fully with the provisions governing voir dire, the Court of
Appeal for Eastern Africa upheld the conviction because there was overwhelming
evidence of the commission of the offence charged but observed that there
should be strict compliance with the provisions of the law because
non-compliance might result in the quashing of a conviction in the case where
the other evidence before the court was insufficient in itself to sustain the
conviction.[25]
The decision has been followed in a number of cases. For example, in
Sakila v R,[26]
where Platt J had this to say:
It is well established
that before the evidence of a person of tender years is admitted, a voir dire examination should be carried
out in order that the court may satisfy itself that the witness is possessed of
sufficient intelligence and he understands the duty of speaking the truth in
order to justify the reception of his evidence. And further that where it is
clear that he understands the nature of the oath, his evidence may then be
received on oath or affirmation. Where this procedure has not been carried out
and the evidence of a person of tender years is of a vital nature, it may be
that the omission may occasion a miscarriage of justice (see Kibangeny’s case [1959] EA at 95; Nyasani s/o Bachana v R [1958] EA 190, and Francis Matovu [1961] EA 260). These authorities show
that where there is no other evidence other than that of the child of tender
years, who has not been properly examined the conviction, cannot be sustained.
Therefore, where there has
been due compliance with the provisions of s 127(2) then, depending on
the circumstances of the case, corroboration may or may not be necessary. On
the other hand, where a voir dire
examination has not been conducted, according to the preponderance of
authorities a conviction is liable to quashed on appeal unless there is
independent evidence on record to sustain the conviction.
[2] Magistrates'
Courts (Rules of Evidence in Primary Courts) Regulations.
[3] Nyasani
s/o Bichana v R [1958] EA 190; Kibangeny Arap
Kollil v R [1959] EA 92; James Bandoma v R, Criminal Appeal 93 of 1999, Court of Appeal of Tanzania at Mbeya
(2003) (unreported).
[10] Vernard
Costa v R,[10] Criminal
Appeal 229 of 2007, Court of Appeal of Tanzania at Arusha (2007) (unreported).
See also Jafason Samwel v R, Criminal Appeal
105 of 2006, Court of Appeal of Tanzania at Arusha (2007) (unreported).
[13] See also Marco Gervas v
R, Criminal Appeal 54 of 2001, Court
of Appeal of Tanzania at Mwanza (2003) (unreported); Jackson Mlonga v R, Criminal Appeal 200 of 2007, Court of
Appeal of Tanzania at Dodoma (2008) (unreported).
[14] Criminal Appeal 42 of 2003, Court of Appeal of Tanzania at Dodoma
(2004) (unreported).
[15] Criminal Appeal 72 of 2002, Court of Appeal of Tanzania at Dar es
Salaam (2005) (unreported).
[25] Supra at pp 191–192.
[26] [1967] EA 403 at p 404.
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