6
[13]
Of course the doctor could not have authoritatively testified as to how, exactly,
the complainant was penetrated. All he could do was to give an opinion as to his
clinical findings and the history related to him by the complainant and his mother.
Therefore his response to a question by the prosecutor as to whether it was his
‘conclusion that there was sexual intercourse with penetration’ must be understood
in this context. His response was ‘yes that is the possibility’ and ‘there are other
possibilities too’.
[14]
Clinical
findings
and
conclusions
drawn
by
doctors
who
examine
complainants in sexual assault cases are generally accorded significant weight by
our courts as an indication that sexual intercourse probably did or did not occur,
particularly in relation to young children. The identity of the perpetrator then becomes
determinable on its own merits. In this case there was never any evidence that the
injuries on the complainant’s private parts were caused by anything other than
sexual intercourse. The finding by the magistrate that the evidence proved beyond
reasonable doubt that the complainant was raped must be accepted to be correct. It
is my view therefore that the pertinent issue in this appeal is the magistrate’s finding
that the appellant was the perpetrator.
[15]
It was submitted on behalf of the appellant that the identification of the
appellant by the complainant as the perpetrator probably resulted from her mother’s
suggestions in the course of confronting her at home and when giving history to the
nurse at the clinic. The submission is also based on an entry in the J88 and the
evidence by the doctor that the complainant and her mother told him that the
complainant had been sexually abused by a relative. The entry in the J88 reads:
‘2006 January to 7 June she was sexually abused by a known gentleman, a relative.’
[16]
I agree that the complainant’s evidence as to the identity of the perpetrator
had to be considered carefully. She was a single witness who was a child. It is trite
that in sexual assault cases caution must be exercised when considering evidence of
young children who are prompted by leading questions on whether or by whom they
were sexually assaulted. Immaturity might cause the child to believe that the
suggestion is true.