IRREGULARITY NOT FATAL UNLESS FAILURE OF JUSTICE OCCURRED

Randell v S [2018] 1 All SA 845 (ECG)

Criminal law and procedure – Fraud – Conviction and sentence – Appeal – Alleged irregularity and misdirection – Section 322(1)(c) of the Criminal Procedure Act 51 of 1977 sets out the powers of a court of appeal – Court of appeal may make such other order as justice may require provided that “notwithstanding that the court of appeal is of the opinion that any point raised might be decided in favour of the accused, no conviction or sentence shall be set aside or altered by reason of any irregularity or defect in the record or proceedings, unless it appears to the court of appeal that a failure of justice has in fact resulted from such irregularity or defect”.

On being convicted on a charge of fraud, the appellant was sentenced to an effective term of four years’ imprisonment. The present appeal was based on certain alleged irregularities and misdirections committed by the court a quo.

Held – At issue was whether the irregularities and misdirections, if any, resulted in a failure of justice which vitiated the proceedings. But for the irregularities and misdirections contended for by the appellant, it is not contested that the State proved beyond reasonable doubt that his actions amounted to fraud.

Section 322(1)(c) of the Criminal Procedure Act 51 of 1977 sets out the powers of a court of appeal. In the case of an appeal against a conviction or on any question of law reserved, the court of appeal may make such other order as justice may require – provided that “notwithstanding that the court of appeal is of the opinion that any point raised might be decided in favour of the accused, no conviction or sentence shall be set aside or altered by reason of any irregularity or defect in the record or proceedings, unless it appears to the court of appeal that a failure of justice has in fact resulted from such irregularity or defect”.

The ground of appeal was premised on the provisions of section 35(3)(a) of the Constitution. The appellant contended that the extensive reference by the magistrate in his judgment to a certain judgment, without prior notice to the appellant that considerable reliance would be placed thereon, went to the core of what constitutes a fair trial. It was stated that the appellant did not receive a fair trial because he was not forewarned that the findings in the judgment referred to could be used against him resulting in the audi alteram partem rule not being adhered to. It was also argued that the trial court, in applying the judgment referred to, displayed bias against the appellant, and committed the same mistake as the court in the case in question.

The credibility findings and/or characterisation of the appellant as dishonest by the court a quo before reference to the judgment referred to by the appellant, dispelled the argument that the magistrate relied on the judgment in its findings. Even if the references to the other judgment were to be excised from the judgment, the conviction of the appellant would remain correct.

The appeal was dismissed.

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