R. v. Mustafa Abdallah, Crim. Rev. 131-D-69, 3/12/69, Georges C. J.

 

R. v. Mustafa Abdallah, Crim. Rev. 131-D-69, 3/12/69, Georges C. J.

The accused in this case was charged with reckless and negligent acts c/s 233 (d) of the Penal Code. There was evidence that a dog belonging to the accused had attacked and killed hares which were kept in a “den” or hutch at an upper primary school. The principal witness for the prosecution was a girl aged 9 years. The District Magistrate examined her before allowing her to testify. One would have expected that the purpose of this examination would have been to discover whether or not she understood the nature of an oath so as to be allowed to testify on oath. That particular question was never put. The magistrate allowed her to give unsworn evidence.

            Held: (1) “It must always be borne in mind that before allowing a child giving evidence two matters are of importance. In the first place the child should be examined to find out whether or not he or she understands the nature of an oath. If the child does not understand the nature of an oath then the magistrate seeks to discover whether or not the child is sufficiently intelligent to under stand the duty of speaking the truths. If the child does, then the evidence can be taken unsworn. Quite clearly in this case the magistrate though that the child fulfilled the second requirement and the record of the examination shows that she did. She might also have said that she understood the nature of an oath if she had been asked, in which case she could have given sworn testimony. There are obvious advantages to having testimony on other. The unsworn evidence of a child has to be corroborated before it can be acted upon. This requirement seems to have escaped the attention of the District Magistrate and nowhere in his judgment in there reference of it. Fortunately the oversight is not vital since there was in fact corroborative evidence ….” (2) “I am satisfied that even on the case put forward by the prosecution the accused ought not to have been convicted of the offence charged. Looking at the section, it is clear that a conviction is possible if the person recklessly and negligently omits to take the requisite precautions. There was no evidence that the accused knew that his dog was fierce or that it was likely to attack hares. All the evidence indicates that it was an average dog which wandered in the neighborhood of the accused’s shop without causing any trouble to anyone. It would also appear that the hutch in which the hares were kept was not particularly strong, nor were they kept in such a place that they could not easily

be reached by a stray dog which happened to be attracted. It could not be said to have been reckless and negligent of the accused to omit to tie his dog. The section does not contemplate imposing criminal liability on the owner for every wrongful act committed by his pet. If it is known that the dog is fierce then it would be reckless and negligent of him not to take precautions to confine it. It is otherwise where he has no such knowledge, as in this case. Accordingly the conviction recorded by the District Magistrate is quashed and the accused is discharged.”