S v GARDENER 1982 (2) ZLR 290 (S)

Flynote

Criminal procedure — evidence-sexual — cases — where complainant's evidence is unsatisfactory in certain respects — probabilities of the matter — relevant to deciding whether witness is truthful — not to be used to decide where truth lies — necessity in any case for court to be satisfied that danger of false incrimination has been eliminated.

Headnote

Where, in a case which depends on the credibility of a witness, the court finds that the evidence of the witness is untruthful in fundamental respects, it is a serious misdirection for the court to say that it finds the truth to lie elsewhere. In such a situation, the court does not find where the truth lies; it decides whether the witness on whose evidence the court is asked to rely is telling the truth. It should not examine the probabilities and on the basis of its conclusions in that regard decide where the truth lies. The probabilities are used to decide whether the witness is telling the truth. What the court may not do is reject the evidence of the witness and decide on the basis of the probabilities that the truth lies somewhere else. This is particularly so in sexual cases where, if the evidence of the "suspect" witness is disbelieved, the matter is at an end and the question of corroboration of or support for her testimony does not arise.

In any event, in a sexual case, even if the complainant is found to be a credible witness, the accused is entitled to his acquittal unless the complainant is corroborated or there is something about the circumstances of the particular case which satisfies the court that the danger of false incrimination inherent in such a case has been eliminated.