Tender age of rape witness helps convict win appeal

Articles: Tender age of rape witness helps convict win appeal

Posted by admin on Monday, May 10, 2004 - 07:02 AM

ONE of the basic difficulties encountered in prosecuting people accused of raping young children has again been highlighted in an appeal judgement in which the High Court has set aside a rape conviction and 17-year prison term.
Having been found guilty of the rape of a nine-year-old girl, Gabriel Boois was sentenced to 17 years' imprisonment, of which two years were conditionally suspended, in the Windhoek Regional Court on December 12 2001. On April 30, the label of being a convicted child-rapist was lifted from him:his conviction and sentence were set aside by Judge Nic Hannah, with Judge Annel Silungwe concurring. Boois can, in part, thank the tender age and youthful ignorance of his alleged victim for the turnaround in his legal fortunes. The High Court's appeal judgement shows once again how difficult it often is to prosecute a case in which the primary witness is a young child who may not be able to stand up to the scrutiny of a court that is required to weigh up the child's evidence and ability to testify truthfully. Part of the reason why the court allowed Boois' appeal was that the girl he was accused of raping when he was 42, and she was nine years old, was still so young and immature that she could not demonstrate that she knew the difference between the truth and a lie. The result was that she was not a competent witness in Boois' trial, the Judges decided. The additional result was that the evidence she gave to implicate Boois in the alleged rape should not have been allowed during his trial in the first place. The court also ruled that a medical report describing injuries that a doctor observed when the child was examined after the alleged rape was not correctly admitted as evidence. Boois, the court found, was not properly asked whether he actually admitted the findings in the medical report, and it was also not clearly explained to him that he was under no obligation to help the State prove its case against him. Judge Hannah commented in the appeal judgement that the failure to observe such "basic rules of fairness" with regard to the admission of the medical evidence was a matter of such gravity that the report was rendered inadmissible as evidence. In the absence of the report and of the complainant's evidence, the court decided that although there might have been strong suspicion against Boois, reasonable doubt over his guilt still existed. The child's evidence was ruled to have been inadmissible because, under questioning by the presiding Magistrate before she started to testify, she told the court that nothing would happen if she did not tell the truth or if she lied. She was nevertheless allowed to give evidence. According to the Criminal Procedure Act, any person who, "from ignorance arising from youth, defective education or other cause", is found not to be able to understand the nature and importance of taking an oath or affirming to tell the truth in court, may still be allowed to testify if he or she had been admonished by the presiding Magistrate or Judge to tell the truth, the whole truth and nothing but the truth. A prerequisite for such an admonition would be that a court would first have to establish whether a witness understands what it is to tell the truth. It was at that initial hurdle that the case against Boois had already stumbled, and, with the appeal judgement, finally crumbled. Deputy Prosecutor General Annemarie Lategan represented the State in Boois' appeal. Sisa Namandje appeared for Boois, at the request of the court.

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