TEST FOR CHILDREN’S EVIDENCE

S v HAUPT 2018 (1) SACR 12 (GP)

 

Evidence — Witnesses — Children — As complainants in sexual offences — Required to respond to and answer all questions — In light of inadequate responses, it could not be said that evidence clear and reliable in all material respects.

 

The appellant appealed against his conviction in a regional magistrates’ court of a count of attempted rape and one count of sexual assault. The record of the proceedings showed that the complainant, a girl who was 12 years old at the time of the offences and was testifying three years later, was unable to respond to some questions under cross-examination or gave replies to the effect that she would prefer not to respond to a particular question. The court appeared not to attach any weight to the inadequate responses.

Held

The state relied on the complainant’s evidence and it was accordingly imperative for her to respond and answer all questions put to her. In light of the inadequate responses it could not be said that her evidence was clear and reliable in all material respects. The trial court had therefore not applied the cautionary rules adequately in evaluating her evidence and this constituted a misdirection (see [18]). In the circumstances, the state had not proven its case beyond reasonable doubt and the appeal had to be upheld (see [26]).

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