R v H No. DCCRM-03-445 - [2003] SADC 153

R v TJH
[2003] SADC 153
Judge Simpson
Criminal

The accused, TJH, was charged with the offence of unlawful sexual intercourse with a person under the age of 12 years and, in particular, it was alleged that on 17 January 2003 at Quorn, he had sexual intercourse with C, a child under the age of 12 years, by inserting his fingers into her vagina.
At the commencement of the trial on 21 October 2003, an application was made by the prosecution on the voir dire, pursuant to section 34CA of the Evidence Act 1929 (“the Act”), for evidence to be admitted from witnesses, to whom the alleged victim had complained, of the nature and contents of the complaints related to the alleged offence.
C was born on 8 July 2000. At the time of the alleged offence, C was two and a half years old. Complaint was made by C to her grandmother, on the same day as the alleged offence, and to her mother, on the following day. Although C was present at court, no statement had ever been taken from her and there was no intention to call her as a witness.
I ruled that the evidence should not be admitted. These are my reasons.
The Law
Section 34CA of the Act provides:
(1) Subject to subsection (2), where the alleged victim of a sexual offence is a young child, the court may, in its discretion, admit evidence of the nature and contents of the complaint from a witness to whom the alleged victim complained of the offence if the court, after considering the nature of the complaint, the circumstances in which it was made and any other relevant factors, is of the opinion that the evidence has sufficient probative value to justify its admission.
(2) Such evidence may not be admitted at the trial unless the alleged victim has been called, or is available to be called, as a witness.
In section 4 of the Act, “young child” is defined to mean a child of or under the age of 12 years. “Sexual offence” includes any offence involving unlawful sexual intercourse.
A complaint by an alleged victim of a sexual offence is admissible at common law only where the complainant gives evidence of the commission of the offence and only for the purpose of showing consistency of the conduct of the complainant in making the complaint and of statements made at the first reasonable opportunity and the evidence given in court.
To be admissible at common law, the complaint must be voluntary and spontaneous and not elicited by leading, inducing or intimidating questions. It must be made at the first reasonable opportunity. (R v Corkin (1989) 50 SASR 580 at 581, 587)
The introduction of section 34CA of the Act, and other amendments, including the provision authorizing the giving of unsworn evidence by a child, and enhancing its status, introduced at the same time, were designed to facilitate proof of offences against young children. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v H No. DCCRM-03-445

Details

AGLC: R v H No. DCCRM-03-445 [2003] SADC 153
Case: [2003] SADC 153
Decision Date: 29 October 2003

CaseChat Overview and Summary

In the case of R v TJH, the defendant, TJH, was charged with the offence of unlawful sexual intercourse with a child under the age of 12 years. It was alleged that on 17 January 2003, TJH had engaged in sexual activity with C, a child under the age of 12, by inserting his fingers into her vagina. The prosecution sought to admit evidence of complaints made by C to her grandmother and mother, alleging that TJH had sexually assaulted her. This application was made pursuant to section 34CA of the Evidence Act 1929.

The primary legal issue in this case was whether the court should admit the evidence of the complaints made by C to her grandmother and mother, in accordance with section 34CA of the Evidence Act. This section allows for the admission of evidence of the nature and contents of the complaint from a witness to whom the alleged victim complained of the offence, provided that the court is satisfied that the evidence has sufficient probative value to justify its admission and that the alleged victim has been called, or is available to be called, as a witness.

The court considered the nature of the complaints made by C, the circumstances in which they were made, and any other relevant factors. The court found that while C’s complaint to her grandmother appeared to be spontaneous and voluntary, her complaint to her mother was made the following day and may have been influenced by her parents' reactions to the injury identified by Dr Moten. The court was also concerned about C’s young age, which raised questions about her language competency and the accuracy of her reported complaints. Furthermore, the court determined that C, who was just over three years old at the time of the trial, did not have a sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, nor the difference between the truth and a lie. As such, she could not give unsworn evidence and could not be regarded as being available to be called as a witness.

In conclusion, the court held that the evidence of the complaints made by C to her grandmother and mother was not of sufficient probative value to justify its admission. The court refused to exercise the discretion conferred by section 34CA of the Evidence Act to admit evidence from C’s grandmother and mother, of the nature and contents of the complaints to them regarding the alleged offence. Consequently, the evidence of the complaints should not be admitted.

Orders