Rex v Kinei (Cr.A. Nos. 137 and 138 of 1936 (consolidated).) [1936] EACA 124 (1 January 1936)

# COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, C. J. (Kenya); DALTON, C. J. and HEARNE, J. (both of Tanganyika).

### REX, Respondent (Original Prosecutor) $\overline{1}$

# CHEROP A. KINEI AND KIPKOECH A. KINEI Appellants (Original Accused).

#### Cr. A. Nos. 137 and 138 of 1936 (consolidated).

Rape—Adult complainant—Corroboration of complainant's statement—Direction to jury or assessors.

Held (14-11-36).—That, on a charge of indecent assault or any sexual offence, even though the person against whom the offence is alleged to have been committed be an adult and not a child of tender years, the jury or assessors should be directed that it is not safe to convict upon the uncorroborated testimony of the complainant, but that if they are satisfied of the truth of complainant's evidence, they may after paying attention to that warning nevertheless convict.

Held Further. That, in the absence of such direction a conviction for rape cannot stand.

Held Further.—That, the evidence of a person, the victim of an offence, is not on the same plane as that of an accomplice.

Rex v. Freebody (25 Cr. App. R. 69) and Rex v. Crocker (17 Cr. App. R. 46) applied, and \*Rex v. Silvester Lobo, Cr. App. No. $23/27$ (unreported) explained.

Appellants, absent, unrepresented.

Branigan, Crown Counsel (Tanganyika), for Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).-The appellants were convicted by the Supreme Court of Kenva of rape. The complainant, as was described by one of the assessors, was a grown-up woman. The evidence against the prisoners was that of the complainant herself. Her conduct in complaining that the the appellants who were known to her were the guilty parties was consistent and the learned Judge formed the impression that she was an absolutely truthful witness. There was some evidence besides of identification by smelling the appellants' garments, but it was not relied on by the learned Judge. The appellants were convicted on the evidence of the woman and in the absence of such independent corroboration as was referred to in the case of Rex v. Silvester Lobo, Cr. App. No. 23/27\*. In that case this Court said, "Evidence of a complainant may perhaps induce a

<span id="page-0-0"></span>\* Note.-The judgment in Rex v. Silvester Lobo, Cr. App. No. 26/27, before a Bench of this Court consisting of Sir Jacob Barth, C. J. (Kenya), Pickering and Sheridan, JJ. (both of Kenya), is appended.

jury properly directed on the practice to require corroboration to find the accused guilty without such corroboration. In our judgment the effective form of corroboration required by practice in cases of rape is corroboration as to some material fact in the case". Before the High Court of Uganda, the learned trial Judge had directed himself that, "in cases of rape on small children, the Court requires the story told to be corroborated and that the best corroboration is a complaint made to her parents within a reasonable time". The Court of Appeal in criticising this direction said, "Corroboration is as a matter of practice although not as a matter of law required. We are not, however, prepared to agree that a complaint within a reasonable time is the best corroboration or is in fact corroboration at all within the meaning of that expression as used in section 159 of the Evidence Ordinance (Cap. 14, Laws of Uganda). A complaint together with its terms is admissible for the purposes of showing the consistency of the story told by the prosecutrix and as evidence of the facts in issue". Now in Lobo's case it must be remembered that the Court was considering the question of corroboration in the case of a complaint made by a small child and in so far as what was said may be considered applicable to corroboration in cases where the prosecutrix is an adult, its dictum is not binding, not having been necessary for a decision of the case before it. In subsequent cases before this Court, it would appear that there was a misapprehension as to what was decided in Lobo's case. In the case of Mashanja $s/o$ Washina, Cr. App. No. 137/35 (unreported), this Court said "Following the rule of practice as to corroboration stated by the Court in the case of $\text{Re} x$ v. Lobo (supra), the necessary corroboration as to the commission of the offence and by the accused exists", and the appeal was dismissed. In so expressing what Lobo's case decided there was a misapprehension which would have become apparent had it been necessary to argue the question of corroboration; the prosecutrix was an adult. In $\text{Re}x$ v. Ramazani bin Mawingu, Cr. App. 26/36 (unreported), it was stated that, "the practice of this Court is to require corroboration in sexual cases". In that case the prosecutrix was 12 years of age. Our comment on that case is that the reference to the practice of the Court must be to what was decided in Lobo's case and as what was decided in that case did not go to the length, as a binding vdecision, of deciding that corroboration was essential in every case where the prosecutrix is an adult, it is open to us to state what the law in our opinion is. It was decided in the case of *Freebody* $(25 \text{ Cr. A. R. 69})$ that, "On a charge of indecent assault or any sexual offence even though the person against whom the offence is alleged to have been committed be an adult and not a child of tender years, the jury should be directed that it is not safe to convict upon the uncorroborated testimony of the complainant, but that if they are satisfied of the truth of the complainant's evidence, they may, after paying attention to that warning nevertheless convict". This headnote in our opinion represents the

/mot

proper direction to be given by a Judge in East Africa whether sitting with a jury or assessors in the case of a sexual offence. when the prosecutor or prosecutorix is an adult. As against any argument that sexual cases on the issue of corroboration should. be treated on the same lines as those in which the case rests on accomplice evidence, Mr. Branigan has referred us to the case of William Crocker (17 Cr. A. R. 46), in which the Court of Appeal. said, "The law regarding the corroboration of the evidence of accomplices has been referred to ... but this Court cannot. accept the contention that the evidence of a girl, the victim of the offence, is on the same plane with that of the evidence of an. accomplice. The objection in such a case as this is not on the grounds of complicity, but because the case is one of an oath grounds of compactory, our secures are appropriately grounds of seeing:<br>against an oath . . . The jury had the opportunity of seeing: and hearing the witnesses, and there are perosns—especially young persons—who somehow are able to convey the fact that. the story they tell is true and here, after the learned Judge's. warnings, the jury came to the conclusion that the girl's story was true and ought to be acted upon". The law as set out in the two English cases to which we have referred is in our opinion. the law applicable in East Africa.

Having stated the law the question is whether the convictions. ACS: Having stated the law the question is whether the contribution<br>in the present case can stand. There is no note showing that the learned Judge summed up to the assessors directing them as<br>to the danger of convicting on the complaint of the prosecutrix without independent corroboration nor is there anything in the judgment suggesting that he warned himself. In the absence of such a warning the convictions cannot stand and accordingly the: appellants are acquitted.

$\n *エ*$

#### Rex v. Silvester Lobo, Cr. App. No. $26/27$ .

JUDGMENT.—This is an appeal from the High Court of Uganda. The appellant was charged with and convicted of twocharges of rape committed on the same girl, Peiary, a child of about 7 years of age, the daughter of Melaram, a Sub-Assistant. Surgeon, on the 7th and 14 August last. The appellant was sentenced to 4 years rigorous imprisonment in respect of the offence: committed on the latter date. No sentence was imposed in. respect of the first charge. The evidence of the girl was that on the occasions in respect of which the charges were framed, shehad gone to the accused's house with her brother and sister to. play and that the accused had taken her into his room and had. had connection with her.

It is in evidence that the accused, who had no children, used. to give the girl, Peiary, books, bananas and sweets and that the children often went to the accused's house.

As to the first charge, Peiary said that the accused penetrated her and hurt her very much and that he made her cry a lot. She said she told her mother. The mother's evidence is

that once Peiary complained to her. The substance of that complaint is not given by the mother, who took no action except to tell Peiary that she must not speak like that or mention it to In cross-examination the mother said she did not anvone. believe Peiary and could see no physical signs. Peiary went with her father on the 7th August, the day on which this first offence was alleged to have occurred, for a drive to Arua in a lorry presumably after the alleged offence. She made no complaint and did not appear distressed. She herself said there was no blood. So far as this charge goes, it rests entirely on the evidence of Peiary and the fact that she made some complaint to her mother. a complaint which was disbelieved because there were no physical signs.

On the 14th August, she and her brother and sister were called over by Lobo. Melaram on his return from the hospital saw two of the children on Lobo's verandah but not Peiary. He called Peiary, who answered from inside and came over within two minutes from the direction of appellant's dining room. Melaram saw nothing peculair about Peiary and she made no complaint. The next day the girl's mother made a statement to Melaram, who examined the girl and found pus in her vagina. The mother's attention had been attracted by the girl frequently rubbing her parts. Peiary was sent for examination on the 15th August and was examined by Dr. Dennard on the 16th August. She was found to be suffering from gonorrehea which was in the doctor's opinion of some 14 days standing. The girl's hymen was ruptured and her vagina was large for a child of that age. The state of the vagina did not indicate any violence. The accused was also examined and found to be in a state in which he might or might not infect a female with gonorrehea. It is in evidence that the accused's house is some 50 feet from Melaram's house and that no calling out by Peiary was heard on the second occasion. There is no evidence of any calling out on the first The girl denied that she had had connection before occasion. and averred that she was sore for many days after the first offence. The mother's evidence is as stated above to the effect that she saw no physical signs. The learned Judge directed himself that in cases of rape on small children the Court requires the story told to be corroborated and that the best corroboration is a complaint made to her parents within a reasonable time. Corroboration is as a matter of practice although not as a matter of law required. We are not, however, prepared to agree that a complaint within a reasonable time is the best corroboration or is in fact corroboration at all other than within the meaning of that expression used in section 159 of the Evidence Ordinance (Cap. 14) Uganda. A complaint together with its terms is admissible for the purpose of showing the consistency of the story told by the prosecutrix and not as evidence of the facts in issue. Evidence of a complaint may perhaps induce a jury properly

NOT ASSESSORS

directed on the practice to require corroboration to find the accused guilty without such corroboration. In our judgment the effective form of corroboration required by practice in cases of rape is corroboration as to some material fact in the case. The medical evidence in this case appears to be in the appellant's favour for it proves that gonorrehea was developed in nine days after the alleged first offence to such an extent that the medical witness was of opinion that it must have been contracted about fourteen days before the examination, that is about five days before the alleged first offence occurred.

In view of the absence of any physical signs on the girl when examined by her mother after the first alleged offence and the absence of any form of corroboration of the alleged second offence we are of opinion that the convictions must be quashed and the accused acquitted.