PRESIDING OFFICER DESCENDING INTO ARENA -IRREGULARITY

S v LEEPILE 2016 (1) SACR 513 (NWM)

Trial — Presiding officer — Conduct of — Descending into arena of conflict — Presiding officer to guard against such conduct — Might create impression of partisanship or that issues pre-decided — Should not put attacking propositions to accused or cross-examine accused.

 

In an appeal against a conviction in a magistrates’ court it appeared from the record that the magistrate had on a number of occasions posed leading questions to a witness that were not in clarification and had put questions to the accused which were similar to the questions put to him by the prosecutor. It was contended by the appellant that he had not had a fair trial as a result of the bias by the magistrate and that the conviction had to be set aside.

Held, that, although a presiding officer was sometimes obliged to ask witnesses questions, it was important to guard against conduct which could create the impression that he or she was descending into the arena or was partisan, or had already decided issues which should only be decided at the end of the trial. Nor should a presiding officer put attacking propositions to an accused, as such conduct could create the impression that the presiding officer was acting as a cross-examiner. The irregularity established by the presiding officer’s descending into the arena in the present instance constituted a failure of justice that resulted in the appellant not having had a fair trial. The conviction accordingly had to be set aside.

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