IRREGULARITY – BIAS

S v LONGANO 2017 (1) SACR 380 (KZP)

Trial — Irregularity in — Appearance of bias — What constitutes — Presiding judge provided with psychologist’s report not handed in during proceedings in which psychologist did not testify — Perception inevitable that court would be unable to disabuse its mind of contents and integrity accordingly compromised — Irregularity committed.

Trial — Irregularity in — What constitutes — Recusal application — Failure to give reasons for dismissing application for recusal amounting to irregularity.

Trial — Irregularity in — What constitutes — Calling of witness by court in terms of s 186 of Criminal Procedure Act 51 of 1977 — Court calling witness not essential for determination of case without inviting submissions from parties before doing so — Irregularity committed.

 

In an appeal against a conviction in the High Court for murder and a sentence of 15 years’ imprisonment, the appellant raised a number of irregularities allegedly committed by the trial judge, that in his opinion were so gross that they vitiated the entire trial. He contended that the trial judge improperly failed to recuse herself when in possession of evidentiary material (a psychologist’s report obtained at the instigation of the state into his mental condition) not admitted during the proceedings; she then, after dismissing a recusal application, called the psychologist in terms of s 186 of the Criminal Procedure Act 51 of 1977 without inviting submissions from the parties; and failed to give reasons for not recusing herself.

Held, that the integrity of the court was compromised when the state furnished the report to the trial judge, which should not have been given to her if the witness were not going to testify. Once the information was given to the judge, there had to be an apprehension that the court would not be able to disabuse its mind of the report.

Held, further, that the appellant was entitled to be given reasons for the dismissal of the recusal application, and the failure to provide such reasons was irregular, particularly since the judge had previously stated that reasons would be provided. (Paragraph [19] at 391b–c.)

Held, further, that the state had conceded that the evidence of the psychologist was not necessary and, given the circumstances, it was difficult to determine why the trial judge had called him to give evidence and deemed him an important witness. (Paragraph [29] at 394b–d.)

Held, further, that the irregularities in the presiding judge not recusing herself, calling a witness not essential for the just decision of the case, and not giving reasons for any of her rulings, cumulatively constituted gross irregularities that resulted in a failure of justice. The conviction and sentence had to be set aside.

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