SHOZI ANDREW v REPUBLIC 1987 TLR 68 (CA)

 

SHOZI ANDREW v REPUBLIC 1987 TLR 68 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Mustafa JJA, Omar JJA and Mapigano Ag JA

17 August 1987 B

Flynote

Evidence - Corroboration - Sworn testimony of a child of tender years - Child's evidence without corroboration- Whether may ground conviction - S. 127(5)

Evidence Act, 1967.

-Headnote

The appellant was convicted of wounding c/s 228(1) of the Penal Code and was sentenced to 8 months imprisonment. The conviction of the appellant was based primarily on the evidence of a child of 13 years. The appellant's appeal against conviction and sentence to the High Court was unsuccessful. He was given leave to appeal to the Court of Appeal.

Held: (i) In terms of section 127(2) of the Evidence Act, sworn testimony of a child of tender years does not need corroboration. It can be treated as any other sworn testimony, and it could form the basis of conviction;

(ii) as regards corroboration, the unsworn evidence of a child is governed by provisions of section 127(3) of the Evidence Act 1967.

Case Information

Appeal dismissed. F

No cases referred to.

Judgment

Mustafa, and Omar, JJ.A. and Mapigano, Ag. J.A.: The appellant was convicted of wounding contrary to section 228(1) of the Penal Code in the District Court of Shinyanga and was sentenced to 8 months imprisonment on 24.1.85 by the Resident Magistrate. The appellant was alleged to have caused severe injuries to the complaint PW1 Iddi Amadi, which, according to medical evidence, amounted to dangerous harm, H and one injury was termed grievous harm. PW1 was a child of 13 years of age at the material time and PW1 alleged he was assaulted by the appellant.

The trial magistrate examined PW1 in terms of sec. 127 (5) of the Evidence Act and was satisfied that P.W.1 knew the nature and meaning of an oath and P.W.1 gave evidence on affirmation.

The conviction of the appellant was based primarily on the evidence of P.W.1. Indeed the trial magistrate was impressed by P.W.1 as a witness. In his judgement the trial magistrate stated: But P.W.1 was thoroughly examined before he gave evidence on oath.

Although he is 13, he B appeared to know well the meaning and consequences of oath. In the witness box his credibility was not shaken at all during examination - in -chief, cross-examination, re-examination and finally examination by this court. This court had the opportunity to assess C his demeanour. He was nothing but a competent and credible witness.

The appellant's appeal against conviction and sentence to the High Court was unsuccessful. The appellant was given leave to appeal to this court out of time by the High Court which certified the following points of law for our consideration:

1. In what circumstances would the evidence of a child of tender years, given an oath or affirmation or without such oath or affirmation form the basis of a conviction in the E absence of corroboration?

2. Would failure by a court to state that it has warned itself be fatal to its decision?

We will deal with the appellant's appeal only on ground 6 which alleged that the High Court judge misdirected himself "on the evidence of children which need corroboration and which was lacking. Such evidence could not be basis of conviction". We refer to section 127 of the Evidence Act which deals in part with child witnesses.

 Section 127 (2) reads:

Where is any criminal cause of matter any child of tender years is called is a witness does not, in the opinion of the court, understand the nature of an oath, his evidence may be received, H though not given upon oath or affirmation, if in the opinion of the court, to be recorded in the proceedings, he is possessed of sufficient intelligence to justify the reception of his evidence and understanding the duty of speaking the truth.

(3) Notwithstanding any rule of law to contrary where evidence received by virtue of I sub-section (2) is given on behalf of the prosecution and is not corroborated by any other material evidence in support of A it, implicating the accused, the court may, after warning itself of the danger of doing so, act on that evidence, to convict the accused if it is fully satisfied that the child is telling nothing but the truth.

In our view, in terms of the above provisions, the sworn testimony of a child of tender years, does not need corroboration. It can be treated as any other sworn testimony. It is interesting to contrast this new development in our law with that in England regarding child witnesses. In Archbold Criminal Pleading and Practice 40th Edition para 1431 and para 1432 and para 1433 deal with corroboration of children's evidence. Briefly if evidence is given unsworn, corroboration is necessary as a matter of law. Where however the evidence is sworn (in which case although the evidence need not be corroborated as a matter of law) the jury should be warned of the danger of acting on uncorroborated evidence. They may convict on such evidence, if bearing the warning in mind, they are none the less convinced that the witness is telling the truth.

In so far as this appeal is concerned we are satisfied that the evidence of PW1 did not need corroboration and that it could form the basis of a conviction. In answer to the question of law posed by the High Court, we think that the sworn evidence of a child does not need corroboration and the unsworn evidence of a child is governed by the provisions of section 127(3) of the Evidence Act as regards corroboration.

Appeal dismissed.

1987 TLR p70