FAILURE BY TRIAL COURT TO ALLOW CROSS-EXAMINATION

Gama v S [2016] 2 All SA 767 (GJ)

Criminal law – Robbery with aggravating circumstances – Appeal against conviction and sentence – Failure by trial court to allow cross-examination – Trial court, in not permitting cross-examination of two statements, failed in its duty and such failure vitiated the proceedings – Court held that there was clear prejudice to the appellant.

Criminal law – Robbery with aggravating circumstances – Doctrine of common purpose – Whether proved – Appellant would have had to actively do something in order to be guilty on the principle of common purpose.

The appellant was convicted of robbery with aggravating circumstances and sentenced to 15 years’ imprisonment. Appealing against the conviction and sentence, he contended that the trial court had erred in not permitting cross-examination on an unsigned statement of the complainant; accepting the credibility of the complainant and rejecting the credibility of the appellant; accepting the evidence of the two State witnesses that the appellant had participated in the robbery and rejecting the evidence of the appellant to the contrary; and in accepting the uncorroborated evidence of the complainant that a knife was used at the end of the robbery.

The grounds of appeal against the sentence were that the trial court had erred in failing to consider in relation to the question of exceptional circumstances whether it had been proved that the mens rea of the appellant extended to the use of the knife in the offence; and failing in relation to the question of exceptional circumstances, to give adequate weight to the relative youth of the appellant, the fact that he was a first offender and the conduct of the appellant on the scale of conduct that constitutes the offence of robbery with aggravating circumstances.

Held – The State did not prove beyond reasonable doubt that the appellant was party to the robbery of the complainant and the conviction of the appellant accordingly had to be set aside. Moreover, the trial court, in not permitting cross-examination of the two statements, failed in its duty.

On the question of whether the appellant had acted in common purpose with the other two perpetrators, it was submitted that the appellant would have had to actively do something in order to be guilty on the principle of common purpose. The Court found that there was no evidence to support a finding that the appellant should be convicted on the basis of common purpose.

The appeal was upheld and the conviction and sentence set aside.

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