DOES IRREGULARITY IN USING INTERMEDIARY AMOUNT TO FAILURE OF JUSTICE

ZF v S [2016] 1 All SA 296 (KZP)
Criminal law – Rape – Appeal against conviction and sentence – Use of an intermediary whilst the complainant gave evidence – Section 170A of the Criminal Procedure Act 51 of 1977 – Whether the use of the intermediary amounted to an irregularity and resulted in the evidence of the complainant being inadmissible and if it did, whether the balance of the evidence could sustain any of the convictions – Court found no reason why the use of an intermediary in the present matter resulted in the evidence given by the complainant being rendered inadmissible.

The appellant was charged with indecent assault, two counts of rape and assault with intent to do grievous bodily harm, and rape by way of a contravention of section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 read with section 51 of the Criminal Law Amendment Act 105 of 1997 and section 94 of the Criminal Procedure Act 51 of 1977. The complainant was his biological daughter. He pleaded not guilty to all the counts and gave no plea explanation but was convicted on all counts and was given an effective sentence of 17 years’ imprisonment.
The present appeal was against conviction and sentence.
At the outset of the trial, the State brought an application in terms of section 170A of the Criminal Procedure Act for the use of an intermediary whilst the complainant gave evidence. There being no objection from the prosecutor, the magistrate granted the application. On appeal, however, the appellant took the point that section 170A(1) did not entitle the magistrate to grant such an application because the complainant was over the biological and mental age of 18 years. That was said to amount to an irregularity which vitiated the proceedings.

Held – The first question to be determined was whether the use of the intermediary amounted to an irregularity. The ordinary grammatical meaning was that the section applies only to those under the biological or mental age of 18. Therefore, the use of the intermediary in this matter gave rise to an irregularity. The first question flowing therefrom was whether the irregularity resulted in the evidence of the complainant being inadmissible – and if it did, whether the balance of the evidence could sustain any of the convictions. The Court found no reason why the use of an intermediary in the present matter resulted in the evidence given by the complainant being rendered inadmissible. The irregularity was also found not to have led to a failure of justice.

On the issue of sentence, the Court found grounds to interfere only with the sentence imposed on the fifth count. The sentence on that count was set aside and replaced with one of 24 years’ imprisonment, with the sentences on the other counts running concurrently with that one.

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