R v Kalumkunya (Criminal Review Case 336 of 1940) [1940] ZMHCNR 11 (31 December 1940)
The mother's evidence was inadmissible since the child did not testify, and the medical evidence alone was insufficient to prove the charge; thus, the conviction could not stand.
Source-derived case information.
- Citation
- [1940] ZMHCNR 11
- Parties
- Prosecution: Republic; Accused: Kalumkunya
- Court
- High Court of Northern Rhodesia
- Jurisdiction
- Zambia
- Case Number
- Criminal Review Case 336 of 1940
- Procedural Posture
- Criminal Review / Appeal/review
- Outcome
- Conviction quashed and sentence set aside
- Legal Topics
- Indecent Assault, Corroboration, Admissibility of Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Prosecution
Kalumkunya
Accused
Procedural Posture
Criminal Review / Appeal/review
Legal Issues
- 1 Whether a mother's evidence of a child's complaint is admissible if the child does not testify
- 2 Whether medical evidence alone is sufficient to prove the charge
Ratio Decidendi
The mother's evidence was inadmissible since the child did not testify, and the medical evidence alone was insufficient to prove the charge; thus, the conviction could not stand.
Court Disposition
Conviction quashed and sentence set aside
Orders
- Conviction quashed
- Sentence set aside
Full Case Text
Judgment text and source record
1 paragraphs
102 Vol. II] R. v. KALUMKUNYA. Cr im in a l R e v ie w Case No. 336 o f 1940. Indecent assault— corroboration o f child's story—evidence o f report cannot be given i f child does not give evidence. Evidence cannot be given b y a m other o f a com plaint made to her b y her child unless the child also gives evidence. The reason for this is that such evidence is merely evidence o f the consistency o f the child’s story but is not evidence o f the truth o f the com plaint. See also R. v. Wallwork (1958) 42 Cr. App. R ep. 153. L aw , C . J .: In this case it is not necessary to consider any question regarding corroboration o f the child’s story. She did not give evidence. The accused pleaded not guilty to the charge. The prosecution sought to prove the case against him by calling evidence as to the child’s complaint to her mother, and medical evidence as to the child’s physical condition. With regard to the mother’s evidence. This was n ot admissible as the child did not give evidence. T o follow the language o f P arke, B. in Regina v. Guttridge (9 Carrington and Payne’s R eports, a t p . 472) “ her evidence was not part o f the res gestae but m erely confirm atory evidence o f complaint by the child ” . It could not be used as p roof o f the particu lars o f the complaint (Regina v. Megson, 9 C. and P . 420). Such particu lars—in cases o f this nature— are only admissible in evidence as corrobor ating the credibility o f the prosecutrix and as evidence o f the consistency o f her conduct, and not as evidence o f the truth o f the charge alleged (R. v. Osborne (1905) 1 K . B ., p. 551). As regards the medical evidence. The m other’s evidence not being admissible, the evidence o f the doctor, o f itself, does not prove anything against the accused. In the circumstances the accused should not have been called upon to enter on his defence (section 190 Criminal Procedure Code). But having been so called upon, there does not appear to be anything in his evidence to establish the charge against him. The Attorney-General has intim ated that he cannot support the conviction. It is noted that the punishment imposed on the accused has been administered. Nevertheless, and for the above reasons the conviction is formally quashed and the sentence set aside.