PREVENTION OF CROSS EXAMINATION CONSTITUTING MISDIRECTION VITIATING TRIAL

S v JOLINGANA 2016 (2) SACR 404 (ECB)

Evidence — Witnesses — Cross-examination — Of state witness — On previous inconsistent statement to police — Requirement that basis be laid before embarking upon such cross-examination — Intervention by court that prevented cross-examination while defence counsel still in process of laying such basis constituting misdirection vitiating trial.

The appellant challenged his conviction in the High Court on a charge of murder and contended inter alia that he had not had a fair trial as the trial judge had prevented his counsel from cross-examining a state witness. The judge refused to allow the cross-examination as the witness had not ‘owned’ the statement. At that stage the cross-examination related to the inconsistency between her statement to the police and her evidence during examination-in-chief.

Held, that the records showed that when the objection was raised, defence counsel was still laying the basis for his cross-examination of the witness and there was nothing on the record pointing to the trial judge having afforded the appellant’s counsel the opportunity of addressing him on the objection raised. The impugned ruling constituted a misdirection and had resulted in a violation of the appellant’s right to a fair trial.

The conviction and sentence were set aside and the matter remitted to the trial court to start afresh.

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