NO NEED FOR CAUTIONARY RULE IN SEXUAL ASSAULT

De Beer v S [2016] 3 All SA 746 (GJ)

 

Criminal law – Rape – Sentence – Prescribed minimum sentence – Entitlement of trial court to depart from prescribed minimum sentence stipulated in Criminal Law Amendment Act 105 of 1997 – Court is allowed to depart from the prescribed minimum sentence should it find that there are substantial and compelling circumstances present which indicate that the imposition of a minimum sentence would not be in the interests of justice.

Criminal law – Rape – Single witness – Applicability of cautionary rule – Court confirming that there is no basis nor need for the courts to apply the cautionary rule when dealing with a case of sexual assault – Matter must be decided simply on whether proof of guilt beyond reasonable doubt has been established.

Evidence – Cross-examination – Duty of a cross-examiner to put to a witness that there are material contradictions between her evidence and the evidence of other witnesses, and that on the reliance of those contradictions it would be contended that she was not being candid with the court.

The appellant was convicted of the rape of his 8-year-old step-daughter. He was sentenced to 15 years’ imprisonment, five of which were suspended on condition that the appellant was not convicted of sexual offences during the period of suspension. It was further ordered that the appellant’s name be entered in the sexual offenders register.

The appellant successfully applied for leave to appeal his conviction as well as for bail pending his appeal. At the hearing, the court placed the appellant on notice to indicate why his sentence should not be increased if this Court were to find that his conviction was safe and in order.

Held – The evidence of the complainant was focused and direct, and when she was cross-examined she did not contradict herself in any material way. Although the appellant argued that the evidence of the complainant in court contradicted what she had said during interviews with a forensic social worker, the Court found the differences in the evidence not to be so material that they resulted in contradictions of fundamental facts. Furthermore, the evidence of the social worker was hearsay and the evidence of the complainant in court was direct. The evidence of the social worker was never put to her, nor was there an application to recall the social worker. A fundamental principle of cross-examination is that it is the duty of a cross-examiner to put to a witness that there are material contradictions between her evidence and the evidence of other witnesses, and that on the reliance of those contradictions it would be contended that she was not being candid with the court. That was not done in this case. The Court pointed out that despite the youth of the complainant, and the need to protect her from cross-examination which was unduly aggressive or hostile, there are safeguards in the judicial process to ensure such protection.

The final contention of the appellant was that the court a quo failed to adequately take note that the evidence against him was really presented by a single witness and was therefore subject to the cautionary rule. According to the appellant, had the court a quo done so, it would have concluded that the State had failed to prove its case beyond reasonable doubt. The Court explained the development of the law in that regard. It stated that the general approach of our courts to the evidence of a single witness in cases involving sexual offences such as rape has been that the uncorroborated evidence of a single competent and credible witness will be sufficient for conviction where the evidence of the single witness is clear and satisfactory in every material respect. Although that has been interpreted to mean that the courts have adopted a cautionary rule that has to be applied to the evidence of a single witness, such approach has often not served the interests of justice. The Court emphasised that the proof required for a safe conviction has to be beyond reasonable doubt. There is therefore neither basis nor need for the courts to apply the cautionary rule when dealing with a case of sexual assault. The practice of applying the cautionary rule in sexual offences cases should not be part of a legal order that strives to treat all persons with equal respect, and the practice is no longer allowed in our law.

It was found that the evidence of the appellant’s culpability for sexually assaulting the complainant was overwhelming. His failure to testify left that evidence unchallenged. He was, therefore, guilty of the charge on which he was indicted.

In terms of the Criminal Law Amendment Act 105 of 1997, a prescribed minimum sentence of life imprisonment applied in respect of the offence in question. In imposing a lesser sentence, the trial court did not explain why it had departed from the prescribed minimum sentence. The court is allowed to depart from the prescribed minimum sentence should it find that there are substantial and compelling circumstances present which indicate that the imposition of a minimum sentence would not be in the interests of justice. The trial court committed a material misdirection by imposing a sentence that fell far short of what was called for in terms of section 51(1) of the Criminal Law Amendment Act. The present Court held that the sentence imposed by the trial court was unduly lenient.

Although the appellant maintained that this Court had no power to interfere with the sentence imposed as the State had failed to cross-appeal against it, the Court stated that it was vested with the power to mero motu increase the sentence imposed by the magistrate. Finding no substantial or compelling reasons to depart from the prescribed minimum sentence, the Court set aside the sentence imposed by the trial court and replaced it with one of life imprisonment.

NEW LAW

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