BY JENNIFER KUSAPA
THE Magistrate court has acquitted charges against a 15-year-old boy accused of committing a sexual offence against a six-year-old child.
Principal Magistrate Augustine Aulanga dismissed the case after the prosecution failed to prove the charges.
The defendant, a juvenile of 15 years is charged with one count of attempted rape contrary to section 136F (3) (b) of the Penal Code (Amendment) (Sexual Offences) Act 2016 and one count of sexual intercourse contrary to section 139 (1) (a) of the Penal Code (Amendment) (Sexual Offences) Act 2016.
The victim is a 6-year-old girl and since the defendant is a juvenile, her name was suppressed.
Magistrate Aulanga said on May 3rd 2021, the accused was arraigned on the two charges.
He pleaded guilty to the attempt rape and pleaded not guilty or denied the charge of sexual intercourse.
Aulanga in his judgment said in every criminal trial, the prosecution has the onus of proving the case beyond reasonable doubt.
“There is no onus on the defendant to prove his innocence or anything at all. If the defendant decides to remain silent, as he did in this case, he can exercise that right and allow the prosecution to prove the case.
“I have perused the Medical Reportsof the victim and noted that she was examined on 28th October 2020, 19 days after the alleged incident. Dr Donna Marie Wate found that the hymen was opened which is indicative of penetration. Despite the finding, the Reports did not state whether that alleged penetration was believed to have occurred on the 9th of October 2020.
“There was no medical findings on the timing/date of the incident. The Reports are only helpful in so far as to confirm that there was vaginal penetration on the victim but they fell short to conclusively establish when the penetration was believed to have occurred. This evidence is important because it will show that it was the defendant who had sexual intercourse with the victim that day. I find the failure of the prosecution to adduce evidence from that Doctor to establish this important nexus unfortunate”, Aulanga said.
Aulanga said in a sexual offence case like the present one, it is incumbent on the prosecution to adduce evidence from the Doctor to provide detailed explanations on that crucial evidentiary point. The prosecution should not accept the Medical Reports on face value. The Medical Reports often times are unhelpful because they lacked detailed explanations compared to the oral evidence of the Doctor in person if called in Court.
He also said the important evidence to determine whether the defendant had sexual intercourse with the victim is that of the victim.
“I have carefully considered her evidence, unfortunately, she was not consistent with her evidence. Also, I noted the failure of the prosecution to elicit evidence from the victim in a number of crucial aspects.
“I accept and is conscious of the fact that this is a difficult case involving a young 6-year-old child who is a victim of a serious sexual offence. I accept she is very young and not matured, and her level of understanding is very limited. Of course, she can be easily swayed or attracted to give contrary answers to the questions if she fails to concentrate or understand due to her immaturity. However, proof of the case beyond reasonable doubt depends on the credibility and coherence of the evidence produced. That is the cardinal rule in every criminal trial”, Aulanga said.
Therefore, considering all the evidence before the court Aulanga finds the accused not guilty on the sexual intercourse charge, the prosecution has failed to discharge that burden and for this reason, the defendant is to be given the benefit of the doubt.
“I therefore returned a verdict of Not Guilty to the defendant for the charge of sexual intercourse with a child under 15 years of age, contrary to section 139 (1) (a) of the Penal Code (Amendment) (Sexual Offences) Act 2016”, Aulanga said.
Meanwhile in regards to the charge of attempted rape sentencing, submissions will be set for a later date.
Monica Rehomora of the Office of the Director Public Prosecution appears for the crown while Sholto Rodney Manebosa of the Public Solicitor’s Office represents the accused.
