R. v. Jairi s/o Mwipopo, Crim. Rev. 46-D-68, 27/5/68, Georges C. J.

R. v. Jairi s/o Mwipopo, Crim. Rev. 46-D-68, 27/5/68, Georges C. J.

Accused was convicted of defilement of a girl aged ten years. There was medical evidence that the girl had been sexually assaulted, and her mother testified that the child had promptly complained to her, but here was no evidence linking the accused to the assault except that offered by the girl herself. There was no examination by the court to discover whether she understood the nature of an oath, nor was there any examination to discover if she was sufficiently intelligent and understood the duty of telling the truth so that her unsworn evidence could be admitted.

            Held: (1) In case of this nature it is vital to consider the need for corroboration, and failure to do so is a fundamental error. If the magistrate “had examined the child, concluded that she could give evidence on oath, then in his judgment pointed out that there was no corroboration, warned himself of the danger of convicting when there was no corroboration, and then decided that despite that danger, he was so completely satisfied with the evidence of the complainant that he would convict, then his judgment would not have been faulted.” (2) “Corroboration, it must be stressed, is independent evidence connecting the accused person with the offence.” Neither evidence of a complaint by the girl, nor medical testimony that an assault has taken place, are corroboration; the former is not independent, and the latter does not connect accused with the violation.