R v Kalumkunya (Criminal Review Case 336 of 1940) [1940] ZMHCNR 11 (31 December 1940)

102 Vol. II] R. v. KALUMKUNYA. Cr im in a l R e v ie w Case No. 336 o f 1940. Indecent assault— corroboration o f child's story—evidence o f report cannot be given i f child does not give evidence. Evidence cannot be given b y a m other o f a com plaint made to her b y her child unless the child also gives evidence. The reason for this is that such evidence is merely evidence o f the consistency o f the child’s story but is not evidence o f the truth o f the com plaint. See also R. v. Wallwork (1958) 42 Cr. App. R ep. 153. L aw , C . J .: In this case it is not necessary to consider any question regarding corroboration o f the child’s story. She did not give evidence. The accused pleaded not guilty to the charge. The prosecution sought to prove the case against him by calling evidence as to the child’s complaint to her mother, and medical evidence as to the child’s physical condition. With regard to the mother’s evidence. This was n ot admissible as the child did not give evidence. T o follow the language o f P arke, B. in Regina v. Guttridge (9 Carrington and Payne’s R eports, a t p . 472) “ her evidence was not part o f the res gestae but m erely confirm atory evidence o f complaint by the child ” . It could not be used as p roof o f the particu­ lars o f the complaint (Regina v. Megson, 9 C. and P . 420). Such particu­ lars—in cases o f this nature— are only admissible in evidence as corrobor­ ating the credibility o f the prosecutrix and as evidence o f the consistency o f her conduct, and not as evidence o f the truth o f the charge alleged (R. v. Osborne (1905) 1 K . B ., p. 551). As regards the medical evidence. The m other’s evidence not being admissible, the evidence o f the doctor, o f itself, does not prove anything against the accused. In the circumstances the accused should not have been called upon to enter on his defence (section 190 Criminal Procedure Code). But having been so called upon, there does not appear to be anything in his evidence to establish the charge against him. The Attorney-General has intim ated that he cannot support the conviction. It is noted that the punishment imposed on the accused has been administered. Nevertheless, and for the above reasons the conviction is formally quashed and the sentence set aside.