Gabriel v. R. Crim. App. 49-A-72; 10/3/72; Bramble J.

 

Gabriel v. R. Crim. App. 49-A-72; 10/3/72; Bramble J.

The appellant was convicted on a charge of defilement of a girl under 12 years of age contrary to section 135 (1) of the Penal Code and sentenced to twelve (12) months imprisonment. In his judgment the trial magistrate correctly stated the position when he said that: - ‘The only evidence there is against the accused is of the complainant. This evidence being of a young child and having being received without oath requires corroboration being independent evidence implicating accused in the crime.’ He went on to say, however:- ‘I have warned myself of the danger of convicting on uncorroborated evidence but I come to the conclusion that being satisfied that the memory of complainant is good and therefore that  she remembers accused and that it is accused who defiled her, I do convict accused as charged.’

            Held: (1) “In sexual offences corroboration is required as a matter of practice but, where a court is satisfied of the truthfulness of the complainant and has warned itself of the danger where there is no corroboration it my convict. This is in a case where the complainant has given testimony on oath. Where the testimony of a young child is not given on oath there cannot be recorded a conviction if there is no corroboration. Section 127(2) of the evidence Act reads:

‘Where in any criminal cause or matter any child of tender years called as a witness does not, in the opinion of the court, understand the nature of an oath, his evidence may be received, though not given upon oath or affirmation, if in the opinion of the court, to be recorded in the proceedings, he is of sufficient intelligence to justify the reception of his evidence, and understands the duty of speaking the truth. Provided that where evidence received by virtue of this subsection is given on behalf of the prosecution, the accused shall not be liable to be convicted unless such evidence is corroborated by some other material evidence in support therefore implicating the accused.’ Since the evidence of the complainant was received in accordance with this section the proviso applies. There was nothing implicating the appellant other than the complainant’s evidence and corroboration was required as a matter of law. There was none.” (2) Appeal allowed.