Evidence from children (Zimbabwe)
Approach of courts
Children often have vivid imaginations and have a tendency to fantasize. They may believe their fantasies and relate them as reality because they believe them. Immature children are also susceptible to suggestions made by others. In cases of sexual molestation of children parents may jump to wrong conclusions about the culprits and may prompt or intimidate their children into implicating the wrong persons. Alternatively, the persons prompting children may want maliciously to get other people into trouble. These risks are set out by Beck JA in his Legal Forum article at p 16.
In Musasa HH-52-02 the judge pointed out that while the evidence of child witnesses must be approached with caution, such caution must be creative or positive caution, where a judicial officer uses knowledge of psychology or other relevant disciplines in order to maximise the value of such testimony. Psychological research has established that young children do not fantasize about being raped and other unusual, horrific occurrences but that their fantasies and play are characterized by their daily experiences.
The child's mental development and maturity must be assessed very carefully. One has to be careful in applying the normal tests of credibility, such as demeanour, consistency and probabilities, to child witnesses. A seven year old cannot be expected to behave in the same rational way as an adult. When assessing the probabilities the court should take into account the child witness' age and maturity.
To overcome the dangers which are inherent in testimony from children, such as the danger arising out of their tendency to fantasize, the court is required to see whether from the evidence the events related by the child really did happen.
The courts will look to see if there is corroboration of the child's evidence implicating the accused. The existence of corroborative evidence is seen as being the safest assurance against wrong conviction. There is, however, no rigid requirement that a child's evidence must be corroborated. The court can convict on the basis of the uncorroborated testimony of a child witness, provided it is satisfied that the dangers inherent in founding a conviction on the child's uncorroborated evidence have been eliminated: Ponder 1989 (1) ZLR 255 (S); J 1958 (3) SA 699 (SR); Sikulite 1964(3) SA 151 (SR).
The court has the duty of ensuring that there is no unfair questioning aimed at overbearing, overpowering or confusing the child or trying to prompt the child unduly. The child should be allowed to respond naturally and spontaneously. When cross-examining a child witness the defence lawyer should display tact and sensitivity. If the defence lawyer tries to be savage in his questioning of such a witness, he is likely to be told to desist and will probably engender sympathy for the child which may impair the ability of the judicial officer critically to examine the nature of the child's testimony.
Approach of defence
When the State case hinges on the evidence of a child witness, the defence must carefully cross-examine that witness in order to try to discredit his or her testimony. The defence lawyer will not be permitted to engage in badgering and aggressive questioning of a witness of tender age. The defence lawyer is duty bound to probe and test the testimony of such a witness, but he must do so in a tactful and non-threatening manner. In any event, reducing a child witness to tears may well be counterproductive as this may simply to elicit sympathy for the witness from the judicial officer and may make the judicial officer less critical in his analysis of the testimony of this witness.
The vulnerable witnesses provisions may be invoked in respect of a child witness, particularly where a young child is the complainant in respect of an alleged sexual assault. When this happens the child may either give evidence through an intermediary or through a video link. This will obviously effect the nature of the cross-examination of the witness by the defence lawyer.
All the defects in the testimony of the testimony of the child witness must be highlighted in the summing up by the defence lawyer. If the testimony of the child witness is uncorroborated, the defence lawyer must emphasise the considerable dangers of reliance on the testimony of a young child, such as the tendency of children to fantasise and to believe their fantasies. If there is reason to suspect that the child has been influenced in his testimony by a parent or other adult, submissions dealing with this point should be made. Finally, based on these various factors, the defence lawyer will often have a very good basis for submitting that it would be completely unsafe to place reliance upon such testimony in order to convict the accused.