S v MATHIKINCA 2016 (1) SACR 240 (WCC)

Evidence — Children — As complainants in sexual offences — Admissibility of complaint made by child — Where complainant does not testify, evidence of complaint inadmissible.

The appellant appealed against his conviction and sentence for a contravention of s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the Act) in that he had committed an act of sexual penetration with a 4-year-old girl. The conviction was based on a report that the complainant had made to her mother, as well as medical testimony that she had bruises on her legs and arms and fresh fissures and bruises in the anal area. The medical report indicated that she had said that the appellant had penetrated her vaginally with his finger. The complainant was not, however, called as a witness at the trial. The state requested the court during argument at the hearing of the appeal to remit the matter to the regional court for the hearing of further evidence.

Held, that it was trite law that the fact of a complaint and its terms were admissible in proceedings relating to sexual offences as establishing consistency in the complainant’s evidence and therefore supporting her credibility. However, if the complainant gave no evidence at all, neither the terms of the complaint nor the fact that it was made could be ordinarily admitted.
Held, further, that s 58 of the Act did not assist the state to prove a previous consistent statement, as the complainant did not testify, and neither could the state rely on s 3 of the Law of Evidence Amendment Act 45 of 1988, which provided for the admission of hearsay evidence, as the state had not laid any basis for leading such evidence.
Held, further, that it followed that the statements made by the complainant to her mother and the medical practitioner could not be relied upon by the state in their quest to prove the guilt of the appellant.
Held, further, as to the request by the state that the matter be remitted for the hearing of further evidence, that the court had been left completely in the dark as to the surrounding circumstances which led to the decision not to call the complainant as a witness. The onus was on the state to provide a satisfactory explanation for this failure, and it was in any event clear that the evidence, which the state belatedly wished to tender, was not merely of a formal or technical nature, but rather substantive evidence which went to the heart of the real dispute between the parties. The court had to ask why the appellant should, some three years after the trial in the regional court, be required to face a trial de novo caused solely by the state’s failure to properly present its case in the first instance. The conviction and sentence were accordingly set aside.