Mr N Tappoo for G P Shankar, Counsel for the Appellant
Mr S Anand for D Williams, Cl for the Respondent
JUDGMENT
The appellant was charged with the offence of indecent assault contrary to Section 148(1) of the Penal Code. He pleaded not guilty, but after hearing evidence the magistrate convicted him and sentenced him to 2 years imprisonment. He now
appeals against his conviction and sentence.
At first the appellant submitted his own grounds of appeal against sentence only, but at the hearing of the appeal counsel on his
behalf filed new grounds of appeal against his conviction. The main ground of appeal was that there was no, or no adequate corroboration
of the complainant’s story. Certainly the Magistrate did not specifically warn himself of the dangers of convicting on the evidence
of the complainant alone and he did in fact seek corroboration of the complainant’s evidence. He said “… it is desirable if not essential
in such cases to seek corroboration of such allegation.”
Of course the position is that corroboration of the complainant’s story should in practice always be sought and only in very special
cases could a conviction be supported without it.
The magistrate than said, “This corroboration can take many forms, but two which immediately come to mind are recent complaint and
evidence that the complainant was genuinely distressed immediately after the alleged assault.” This is a misdirection for of course
evidence of complaint does not amount to corroboration, and its only evidential value is to show consistency in the complainant’s
behaviour.
As to evidence of distress I need only to quote from the judgment of Parker, CJ in R v Knight (1966) 1 AER 647 at 649. “The distress shown by a complainant must not be over emphasized in the sense that juries should be warned that, except in
special circumstances, little weight ought to be given to that evidence.” In this case the distress shown by the complainant was
when her brother appeared, and as the appellant said, she agreed to a date but when she saw her brother she cried out. He has consistently
said this, and has consistently denied raping the complainant or indecently assaulting her. In the circumstances the magistrate should
have attached little or no weight to the evidence of distress, which was no more than part and parcel of the complaint.
There was no other evidence amounting to corroboration. Lies told by the appellant could do so, but the mere rejection of the appellant’s
story, which incidentally in this case, the magistrate seems to have done almost entirely on the basis of the appellant’s demeanour,
does not amount to corroboration.
If there had been other clear evidence of corroboration which the magistrate had not referred to, it might be open to this court to
find that if the magistrate had property directed himself on the question of corroboration he must have convicted the appellant.
This is not the case here. The magistrate has misdirected himself, and there is on the record no evidence which could amount to corroboration
other than the evidence of distress.
In the circumstances I have no alternative but to set aside the conviction and sentence passed on the appellant and acquit him.
G.O.L. DYKE
JUDGE
Lautoka
28th March, 1979
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