11
[14]
The further evidence led by the State did not add to the evidence of the
complainant. An evaluation of the medical evidence is a convenient starting point. The
medical evidence does not prove the elements of the offence, ie that there was anal
penetration as alleged on approximately seven to eight times. The medical report
completed by the medical doctor who examined the complainant (J88) was admitted
into evidence by agreement. The medical doctor was not called. He had since died. He
noted his clinical findings ‘on anal examination on the skin surrounding the orifice’ as an
‘old bruise, no swelling, nor fissures/cracks’. He noted no abnormalities on the orifice
itself and noted that the tone was good. In his conclusions he recorded that ‘On clinical
examination the features are consistent with anal intercourse.’ There is no explanation
of what feature(s) he was referring to; but assuming that the feature was the old bruising
in the anal area, it is not clear how that established beyond reasonable doubt that anal
intercourse had indeed occurred. There was no evidence on the nature of the old bruise
and it was not established how an old bruise on the skin surrounding the orifice was
consistent with the alleged seven to eight incidents of indecent assault. The medical
report did not, as the trial court held, strengthen the State’s case. On the contrary it may
have detracted from his version. At best for the State, when viewed against the totality
of all of the evidence, the medical report was simply a neutral factor.
[15]
The evidence of both the mother and the grandmother also had its own
shortcomings. Their individual evidence was contradictory and they also contradicted
each other on pertinent issues. It is difficult to discern from the convoluted manner in
which they testified when exactly the first and the last incident occurred; what it is that
raised his mother’s suspicion that the complainant was abused; when she first noticed
the abuse; and whether the complainant voluntarily disclosed it to the grandmother, or
whether the mother observed strange behaviour on his part and because of that
requested his grandmother to question the complainant.
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