SEXUAL OFFENCE – COMPLAINT AFTER CHILD THREATENED BY MOTHER

S v GANGA 2016 (1) SACR 600 (WCC)

Sexual offences — Proof of — Admissibility of complaint made by complainant — Complaint made only after child victim threatened by mother — Rule that evidence of complaint inadmissible where not made voluntarily should not be applied inflexibly — Careful examination of all facts and circumstances required.

Sentence — Life imprisonment — When appropriate — Life sentence reserved for cases devoid of substantial factors — In casu, accused convicted of three sexual offences involving young girls — No expert evidence presented of emotional and psychological harm — Cumulative effect of accused’s personal circumstances not considered — Sentence replaced with sentence of 15 years’ imprisonment.

On appeal against both the convictions and sentences the appellant contended inter alia that the evidence of the complainant on the third count was unreliable as she had only implicated him after her mother had threatened her. Therefore, her report about the sexual assault had not been made voluntarily. It was contended further that the trial court had misdirected itself as regards sentence in that it failed to take into account that he was 43 years of age at the time of the offences; had been gainfully employed prior to his arrest; was a first offender; had three minor children whom he supported; and had been in custody for 18 months prior to sentence being imposed.

Held, as regards the reliability of the evidence of the child witness on the third count, that the terms of a complaint made by a complainant in a sexual offence is admissible for two purposes, namely to show the consistency of the complainant’s evidence and to negative consent. Although the complaint would not be admissible if it were made as a result of intimidation, suggestion or conduct towards the complainant which negated the element of voluntariness, courts should be cautious in not rushing into a strict application of this rule. A careful examination of the facts and circumstances of the particular case was required before coming to the conclusion that the statement of a victim in a rape or sexual assault was inadmissible because said victim had been threatened to make it.

On the facts of the present matter the evidence of the child ought not to be excluded and was not inadmissible on the basis that it had been coerced or obtained by intimidation or suggestion. The answers that she gave to her mother, on being confronted in the way that she was, did not have to be considered as proof of her story or of the incidents that she testified about. Although her evidence was simplistic, it was clear and absent of fantasy and suggestion. Moreover her evidence about the appellant’s modus operandi, ie playing games with the girls before engaging in his sexual conduct with them, was substantially corroborated by the evidence of the complainant on the second count. The appeal against the convictions was dismissed.

As to sentence, it was regrettable that the state had not presented expert evidence about the emotional and psychological harm that the respective victims suffered. The court a quo had further failed in the circumstances to give proper consideration to the approach adopted by the courts in similar matters, namely that the life sentence ordained by the legislature should be reserved only for cases devoid of substantial factors. It was this court’s impression that the trial magistrate had decided to impose the prescribed sentence of life imprisonment as a matter of course unless the personal circumstances of the appellant disclosed it to be exceptional. Such an approach was not permitted and the nature and degree of the misdirection enabled the court to interfere and reconsider sentence.

Although the incidents were closely connected in time, place and circumstances, it was not necessarily appropriate for them to be taken together for the purpose of sentence, since they were subject to their own statutory sentencing structure. In all the circumstances the court imposed a sentence of 15 years’ imprisonment on the first count and terms of two and three years’ imprisonment on the second and third counts, respectively. It was ordered that those sentences would run concurrently with the sentence on the first count.

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