FURTHER EVIDENCE ON APPEAL

FURTHER EVIDENCE ON APPEAL

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AM v S [2017] 3 All SA 23 (GJ)

Criminal law – Rape – Complainant’s recanting of rape allegation – Appeal against conviction and sentence – Application to lead further evidence – Section 309B(5) and (6) of the Criminal Procedure Act 51 of 1977 – Test for acceding to such an application requires that there should be some reasonably sufficient explanation, based on allegations which may be true, why the evidence which it is sought to lead was not led at the trial – There should also be a prima facie likelihood of the truth of the evidence, which evidence should be materially relevant to the outcome of the trial.

Having been convicted of rape and sentenced to life imprisonment, the appellant appealed against both conviction and sentence. He subsequently applied to lead further evidence as contemplated in section 309B(5) and (6) of the Criminal Procedure Act 51 of 1977.

The complainant was a person with whom the appellant had been in a 7-year relationship from which two children were born. According to the complainant, after she had terminated the relationship, the appellant had abducted her in the street, took her to his home, assaulted her and raped her twice. She was rescued by her family the following day. The appellant alleged that the sexual intercourse with the complainant was consensual, but his version was rejected and he was convicted.

In seeking to lead further evidence, the appellant stated that the complainant had since recanted her claim of rape in an affidavit made to the police.

Held – The affidavit relied upon did not present a full explanation of what had actually occurred between the complainant and the appellant. The Court set out a number of questions which should have been addressed but were not. Based on the inadequate version presented, it could not be established that the recantation was voluntary and acceptable. The appellant’s application was thus flawed. As stated in case law, the test for acceding to such an application requires that there should be some reasonably sufficient explanation, based on allegations which may be true, why the evidence which it is sought to lead was not led at the trial. There should also be a prima facie likelihood of the truth of the evidence, which evidence should be materially relevant to the outcome of the trial. In the present matter, the requirement of a prima facie likelihood of the truth of the evidence was not properly addressed in the application. Despite that, it was still incumbent on the court to scrutinise all the circumstances to determine whether the interests of justice would be thwarted if the application were to be denied.

The history of the relationship between the complainant and the appellant was such that the possibility that the rape was an exaggeration, aimed at punishing the appellant could not be ruled out. As a result, the Court found it appropriate to set aside the conviction and sentence and allow the trial to reopened for further evidence. The appellant was to remain in custody pending the conclusion of the trial, subject to his right to apply for bail to the trial court.

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