RESPONSIBILITY OF PROSECUTOR AND INVESTIGATING OFFICER IN TRIAL

S v SEBOFI 2015 (2) SACR 179 (GJ)
Police — Duties of — Duty to investigate — Police officer involved in investigation ought to appreciate that axiomatic line of enquiry was circumstances which might offer corroboration or throw suspicion on truth or accuracy of complaint — Similarly, any response by accused is relevant and must be taken seriously and investigated — Investigating officers should ideally participate in running and presentation of evidence to court and should be active in assisting prosecution.
Trial — The prosecution — Duties of — Presentation of evidence — Case cannot be presented by pouring out jumble of random facts — Fair trial needs to be coherent and orderly — In matters as serious as rape charge, active role for investigating officer ought to be mandatory in terms of standard prosecutorial and police procedures.
Appeal — Powers of court on appeal — Remittal to court a quo in terms of s 304(2)(c)(v) of Criminal Procedure Act 51 of 1977 — Court not satisfied on appeal that fair trial had taken place and expressing no view on guilt or innocence of appellant — Highly relevant aspects not pursued in court a quo — Matter remitted and regional magistrate required to call for evidence in terms of s 167 and s 186 of CPA.

The appellant was convicted in a regional magistrates’ court of two counts of rape and was sentenced to life imprisonment. He appealed against the convictions as well as the sentence. After evaluating the evidence the court held that it could not be satisfied that a fair trial had taken place but expressed no view on the guilt or innocence of the appellant. The court remarked that the calibre of the case presentations, both prosecution and defence, was unacceptable for a case of this seriousness. A prosecutor could not present a case by just pouring out a jumble of random facts. This was unfair to a court and it retarded the aim of a fair trial which, apart from other factors, needed to be coherent and orderly. The defence fared little better: the cross-examination hardly plumbed the body of evidence and appeared to have no plan or objective and was either blind or inattentive to several material or potentially material details. The narrative of the testimony referred to relevant aspects which were ignored or overlooked. An adversarial process was founded on proper preparation and commitment to testing the testimony available. It was not served by treating the process as a clerical chore. These disturbing features troubled the court and if the forensic standards exhibited in this trial were typical of the regional court, it begged the question whether the regional court was a fit forum to hear matters of such a serious nature. Victims of rape, as a class of vulnerable people in our society, ought to have a reasonable expectation that their cases were taken seriously enough to be investigated properly and tried at a standard so that the guilty did not wriggle free because of superficial attention to detail by those who were responsible to protect them. In rape cases the most familiar scenario would be that the victim was a single witness and it was therefore a foreseeable and generic aspect of such cases. Accordingly any police officer who was involved ought to appreciate that an axiomatic line of enquiry was the circumstances which might offer corroboration or throw suspicion on the truth or accuracy of the complaint. Similarly, when a person accused of rape was confronted, what he said in response, whether a flat denial, an explanation or alibi, or whether he said nothing whatever, was relevant. Whatever rebuttal he offered had to be taken seriously and investigated and reported on in evidence to demonstrate whether it supported or destroyed the denial. Medical forensic tests had to be properly processed and reported on when they could resolve critical issues which might exclude a suspect from culpability.

The court remarked further that investigating officers should, ideally, participate in the running and presentation of the evidence to court and should be active in assisting the prosecution. Often versions were disclosed for the first time during cross-examination of state witnesses, or aspects of a witness’s evidence required amplification, qualification or simply explanation. These matters needed to be followed up and, if necessary, postponements sought to investigate the correctness or otherwise of the facts in question. A matter as serious as a rape charge, carrying the drastic sanctions which followed upon a conviction, fell into the category of matters in which an active role for the investigating officer ought to be mandatory in terms of standard prosecutorial and police procedures.
In the circumstances the court held that the interests of justice required remedial action in the present matter in the form of setting aside the conviction and remitting the matter for further evidence. The verdict of guilty was set aside and the case remitted to the trial magistrate in terms of the provisions of s 304(2)(c)(v) of the Criminal Procedure Act 51 of 1977, and the trial was to be reopened and the magistrate was to call for evidence in terms of ss 167 and 186 of the Criminal Procedure Act 51 of 1977 about the specimens taken at the medical examination and the laboratory test results, as well as alleged cellphone communications of the appellant and such records thereof that might exist.

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