APPEAL COURT WILL RARELY HEAR FURTHER EVIDENCE

S v WR 2015 (1) SACR 571 (GP)
Appeal — Application for hearing of further evidence — When to be permitted — Decision whether or not to receive further evidence under s 309B(5)(c)(i) of Criminal Procedure Act 51 of 1977, that of court which tried applicant — An appeal court rarely heard such evidence only — This court has power under s 19(d) of Superior Courts Act 10 of 2013 to set aside decision which subject of appeal — Application allowed.
The appellant was convicted in a regional court of six counts of sexual violation of his daughter, committed over a period of time when the complainant was between seven and eight years of age. He was sentenced to life imprisonment on four counts and to 10 years’ imprisonment on two counts. He appealed against the convictions, and before sentence was passed he applied to lead further evidence under s 309B of the Criminal Procedure Act 51 of 1977. The magistrate ruled that the application was premature and that it could only be entertained after sentence was passed. As the record was incomplete, the court reconvened and the magistrate stated that leave to appeal had been granted in order to allow the appellant to place further evidence before the high court. On appeal the court appointed an advocate to represent the complainant in the application to lead further evidence.
Held, that, in ruling that the application to receive further evidence should be heard by the court on appeal, the regional magistrate had erred. The decision whether or not to receive further evidence under s 309B(5)(c)(i) was that of the court which tried the applicant. Subparagraph (c)(ii) required the court granting an application to lead further evidence to evaluate that evidence, with reference, amongst other things, to the cogency and sufficiency of the evidence and the demeanour and credibility of the witnesses who gave it. An appeal court heard such evidence only rarely and did not enjoy the well-known advantages of a trial court in relation to the evaluation of the evidence in the context of the trial as a whole. The remedy in the present case was, however, not to merely send the matter back to the magistrate with a direction, as the interests of the complainant required that the case be disposed of with as little delay as possible. This court has the power, under s 19(d) of the Superior Courts Act 10 of 2013, to set aside the decision which is the subject of the appeal and render any decision which the circumstances may require. Held, further, that the complainant, who wanted to give further evidence, had presented different versions on the crucial issue of the conduct of the appellant in interviews, in court and in her affidavit used in support of the application to lead further evidence. It thus could not be said that the evidence in the affidavit was presumably true. As the case was one involving a child, her best interests had to be considered. Under s 28(2) of the Constitution, in every matter concerning children their best interests are paramount.
Held, further, that what took the present case out of the ordinary was that the complainant herself gave conflicting versions of what had happened to her, even before the trial began. There was no reason why the court should prefer one version over another in considering the application. The version presented by the complainant in her affidavit put up with the application to lead further evidence, might be true. The appellant was facing life in jail and it would be an affront to justice if he were denied an opportunity to investigate in court the evidence foreshadowed in the application. The application accordingly had to be upheld. The court ordered that the conviction and sentence be set aside, and the application to lead further evidence succeeded. The matter was remitted to the regional court to hear evidence from the complainant and the witnesses or any other party who might wish to adduce evidence relative to the issues arising from the affidavit in support of the application for leave to lead further evidence.

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