JUDGMENT

Spenser-Wilkinson J:

The facts and arguments sufficiently appear from the judgment.

In this case the Deputy Public Prosecutor appealed against the Order of the learned Magistrate binding over the accused in the sum of $100 to be of good behaviour for three months with one surety, upon a charge under s. 354 of the Penal Code.

The facts alleged were that the accused, who lived in the next room to the complainant, an unmarried woman, climbed over the partition between their rooms during the night and having first embraced the complainant threatened to stab her with a knife when she started shouting. The complainant thereupon continued to shout with the result that the accused then scaled the partition wall and went back into his room. At the conclusion of the case the learned Magistrate, having found that the charge was proved, without proceeding to record a conviction, discharged the offender under the bond just mentioned under the provisions of s. 173A of the Criminal Procedure Code.

The contention of the Deputy Public Prosecutor was that, where a person is found guilty of an offence under this section, it is necessary, for the protection of women and girls, that a severe sentence should be passed. I am not prepared to accept this as a general statement but I think it would be correct to say that if the whole of the evidence of the complainant in this case were true then it would not appear to have been a case in which the exercise of the discretion conferred by s. 173A of the Criminal Procedure Code was proper.

From the wording of the last paragraph of his grounds of decision, however, in which the Magistrate points out that it was a case where there was only the complainant's evidence against that of the accused and that there was no corroboration of the complainant's evidence it appeared to me that the Magistrate took the course he did really because he was in some doubt as to the guilt of the accused or at least to the extent to which he had committed all the acts complained of. This was wrong. If the Magistrate had doubts as to whether it was the accused who went into the girl's room or as to what actually happened there when he went into that room, that would have been a reason for giving the accused the benefit of the doubt and acquitting him or for altering the charge; but it could not be a good reason for exercising his discretion under s. 173A.

Whilst there is no rule of law in this country that in sexual offences the evidence of the complainant must be corroborated; nevertheless it appears to me, as a matter of common sense, to be unsafe to convict in cases of this kind unless either the evidence of the complainant is unusually convincing or there is some corroboration of the complainant's story. It would be sufficient, in my view, if that corrobration consisted only of a subsequent complaint by the complainant herself provided that the statement implicated the accused and was made at the first reasonable opportunity after the commission of the offence. In the present case, although the girl immediately complained that she had been molested, according to the evidence she did not name the accused as her assailant to any one. On the contrary she is alleged to have said that "someone" had molested her, thereby suggesting that she did not know who it was. Suspicion appears to have fallen on the accused merely because, when the other labourers came along in answer to the girl's cries the accused remained in his room until he was awakened and called out by his mother.

In addition to the lack of corroboration of the complainant's story there is also the fact that in the room with her were her two younger brothers aged five and seven. Neither of these two children was called as a witness nor was any evidence given to suggest that they remained asleep throughout the proceedings or otherwise to explain why they were not called. Finally there is a conflict of evidence between the complainant herself and the third