Goba v The People (ZR 113 (CA)) [1966] ZMCA 14 (15 November 1966)

GOBA v THE PEOPLE (1966) ZR 113 (CA) COURT OF APPEAL BLAGDEN CJ, DOYLE JA, RAMSAY J 15th NOVEMBER 1966 Flynote and Headnote [1] Evidence - Juvenile's tes�mony - Procedure for admission - Sec�on 120 of Juveniles Ordinance construed. When a child 'of tender years' is brought forward as a witness, the court must conduct a voire dire to determine whether the child understands the nature of an oath, and, if not, whether the child (1) is of sufficient intelligence to jus�fy the recep�on of his evidence; and (2) understands the duty of speaking the truth. Failure to carry out this procedure will result in the appellate court's discoun�ng en�rely the child's evidence. Case cited: (1) Makhanganya v R 1963 R & N 698. Statute construed: Juveniles Ordinance (1956, Cap. 8), s. 120. McLellan - Shields, for the appellant Shoniwa, State Advocate for the respondent Judgment By the court: The appellant was convicted of the murder of his wife Agata Phiri on the 11th March, 1966, at or near Msiafumbe Village in the Feira District of the Central Province and sentenced to death. There was no dispute that the appellant's wife died shortly a�er being struck a number of blows by the appellant. Dr Gore, who conducted a post - mortem on the deceased's body, gave the cause of death as shock following mul�ple injuries, fractures of the rib and haemothorax, and the presence of blood in the right thoracic cavity. He emphasised that considerable force would be required to cause some of the injuries. G [1] The principal witness for the prosecu�on was a young girl, Z , who was the appellant's and the deceased's daughter. She was aged approximately ten years. Sec�on 120 of the Juveniles Ordinance, Chapter 8 of the Laws, prescribes that when in any proceedings against any person for any offence, 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 on oath if in the opinion of the court he is possessed of sufficient intelligence to jus�fy the recep�on of his evidence and understands the duty of speaking the truth. It follows from this provision that where a court of trial has before it a child of tender years, as was the case here, it is incumbent upon the court to conduct what is technically known as a voire dire that is to say an inquiry, to find out first whether the witness does or does not understand the nature of an oath, and if in the opinion of the court the witness does not understand the nature of an oath, then a further inquiry to see whether 1966 ZR p114 BY THE COURT the witness is of sufficient intelligence to jus�fy the recep�on of his evidence, and, most important, that in addi�on he understands the duty of speaking the truth. The record before us does not indicate that the learned trial judge here went through this procedure. We therefore sent for the transcrip�on of the belt recording in the proceedings, which confirmed that although the judge did ask the witness certain ques�ons about herself, he did not inquire into the maters which he should have inquired into in accordance with the provisions of s. 120 (1) of the Juveniles Ordinance. In the case of Makhanganya v R [1], the court had a somewhat similar situa�on before it, and procedure which a court of trial should follow in similar circumstances was very clearly and concisely set out by Forbes, F. J. at 702, where he says: ' In my view the duty of a court when faced with a child witness is (a) to inquire as to the age of the child and if necessary assess its age; (b) to inves�gate, by ques�oning the child, whether the child understands the meaning of an oath; and (c) if the answer to (b) is nega�ve, to inves�gate whether the child understands the difference between truth and falsehood, and the need to speak the truth. The record should show these inquiries (which, depending on the circumstances, need not be lengthy) and the conclusion reached by the judge. Unless a voire dire is carried out as I have indicated, a trial court cannot be sa�sfied that a child is fit to be sworn, or even to give evidence unsworn; and unless the voire dire is recorded an appellate court cannot be sa�sfied that the trial court has appreciated and carried out its duty.' We are quite sa�sfied here that no proper voire dire was carried out and the effect of that is that we have to discount the evidence of the witness Z en�rely. The judge placed great reliance on G her evidence, but there was in fact other evidence. There was the evidence of the witness Petrol Tizola who went to see the deceased together with Z injured and was s�ll alive. A�er he had seen her he returned to the village to report to the village headman, and later that day he saw and indeed apprehended the appellant. He asked the appellant what he had done, the appellant first of all said that he had done nothing. Then he was taxed with bea�ng his wife, and he said, 'I slapped her once'. The witness then �ed up the appellant assisted by others, and explained to him that he was doing so because he had killed his wife at the garden. To this the appellant made no reply. not long a�er the deceased had been G This evidence does not carry the case much further, but subsequently the appellant made a statement to the police which was admited in evidence a�er a trial within the trial had been held to determine its admissibility. In that statement the appellant said, 'I admit the charge that I killed my wife with a handle of an axe with an axe fixed to it. Firstly I hit her with a clay pot and I then took a handle of an axe with an axe fixed to it, and hit her on the head. I hit her again, and she fell to the ground, and I hit her again, lastly I hit her on her ribs. I killed her because we had been troubling each other.' 1966 ZR p115 BY THE COURT In addi�on to that there was the evidence of the appellant himself at the trial. In substance his story was that he had been away from home selling fish for some �me, and he had just returned. When he handed the proceeds of his sale to his wife she became annoyed and threw the money into the bush. She then accused the appellant of having had sexual intercourse with other women. The quarrel then developed into a fight which the appellant said his wife started by striking him in the face. He struck back, his wife fell to the ground, and the appellant then le�. Under cross - examina�on the appellant gave more details of this fight. There were many contradic�ons in his evidence, but there emerged from it the admission that he had struck her three blows some of which were on the head; that he had punched her in the ribs, and that he had used as weapons a s�ck and a clay pot. In effect the appellant was saying that he had been grossly provoked by his wife, and indeed atacked by her. It is clear, on his own admission, that his means of retalia�on were grossly out of propor�on to any provoca�on or atack he may have received. We have considered whether in this case we should allow the appeal, and send the appellant back for re-trial. Undoubtedly on the evidence which I have related leaving out the tes�mony of Z G , the appellant could have been convicted of murder, but we cannot say he would inevitably have been convicted of murder. We can, however, say beyond peradventure that he would inevitably be convicted of manslaughter. We think that in all the circumstances of this case jus�ce will be met here by allowing the appellant's appeal and quashing his convic�on and sentence. We subs�tute a convic�on for manslaughter. As regards sentence this was a savage and murderous atack on a completely defenceless woman. The sentence we pass is one of twelve years' imprisonment with hard labour, which will run with effect from 11th March, 1966. Appeal allowed and, sentence of manslaughter substituted 1966 ZR p116