William s/o Petro v. R., Crim. App. 32-D-68, 21/2/68, Georges C. J.

William s/o Petro v. R., Crim. App. 32-D-68, 21/2/68, Georges C. J.

Accused was convicted of burglary [P. C. s. 294(1)] and inde assault (P.C. s. 135). The burglary charge did not specify the felony which accused intended when he broke into the house, but here was evidence that the indecent assault had taken place after the breaking. The prosecution case rested primarily on the testimony of complainant; a child of 11 years, and her sister who was nine years of age. During voir dire examination, complainant testified that it is wrong to tell a lie, and the magistrate relied upon this in finding that she understood the nature of an oath. Complainant’s sister, who did not testify under oath, was not examined as to her understanding of the duty to speak the truth. The magistrate relied upon the testimony of the sister to corroborate that of complainant as to the indecent assault.

            Held: (1) The burglary charge should have set out the felony which accused had intended to commit, but the failure to do so may be cured on appeal if not prejudicial. [Citing Crim. Proc. Code, s. 346; R. v. Bakari bin Yusuf, 7 E.A.C.A. 63]. In deciding whether the error was prejudicial, “one should be guided not by the under fined possibility of the accused having been prejudiced, but by some suggestion which a reasonable man could accept that there had been prejudice to the accused.” Here the felony was specified in the second count and there was no prejudice. (2) When a child is called as a witness, two separate questions arise: First, does the child understand the nature of the oath; and second does the child understand the duty to speak the truth, and is the child of sufficient intelligence to justify reception of the evidence not on oath. The second question arises only if the first is answered negatively, and the two should not be confused. (3) It is a general rule that corroboration is required of a complainant’s evidence of a sexual offence, but corroboration is not required as a matter of Law if the relying on such testimony and gives his reasons for so doing. (4) The unsworn testimony of a child itself requires corroboration an cannot be used as corroboration of the testimony of the complainant of a sexual offence. (5) In this case, the magistrate did not properly consider the matter of corroboration and the error was prejudicial. (6) Evidence of burglary need not be corroborated even though the felony intended was a sexual offence which by itself would normally require corroboration. Conviction for indecent assault quashed, conviction for burglary confirmed.