S v NCUBE 2014 (2) ZLR 297 (H)

Flynote

Evidence — sexual cases — child witness — approach to be taken to — unlikelihood of child making serious allegation without any basis — children's fantasies normally coloured by ordinary experiences

Headnote

The dangers inherent in children's testimony have been said to be the following: (a) that children's memories are unreliable, particularly for detail; (b) that children are egocentric and not likely to consider the effect of their statements on others, particularly school children; (c) that, children are highly suggestible; (d) that children have difficulty in distinguishing fact from fantasy; (e) that children make false allegations, particularly of sexual assault; and (f) that children do not understand the duty to tell the truth.

While the evidence of child witnesses must be approached with caution, such caution must be a creative or positive caution, where a judicial officer uses knowledge of psychology or other relevant disciplines in order to maximize 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 ordinary daily experiences. It is highly unlikely for very young complainants to make serious allegations without any basis at all. There is certainly no psychological research or medical case study material which suggests that children are in the habit of fantasizing about the sort of incidents that might result in court proceedings; for example, observing road accidents or being indecently assaulted. Unusual fantasies are seen by psychiatrists as highly suspicious: the cognitive and imaginative capacities of three-year-olds do not enable them to describe anal intercourse and spitting out ejaculate, for instance. Such detailed descriptions from small children, in the absence of other factors, should be seen as stemming from the reality of the past abuse rather than from the imagination.