Indictment and charge — Amendment of — By presiding officer without giving accused opportunity to address court on amendment — Failure constituting fundamental irregularity destroying validity of amendment

S v THAKELI AND ANOTHER 2018 (1) SACR 621 (SCA)

 

Indictment and charge — Amendment of — By presiding officer without giving accused opportunity to address court on amendment — Failure constituting fundamental irregularity destroying validity of amendment.

 

The appellants were indicted in a regional court on a charge of murder subject to the provisions of s 51(2) of the Criminal Law Amendment Act 105 of 1997. After they had pleaded and testified in their defence, the court amended the charge by deleting the reference to s 51(2), without giving them an opportunity to address the court in respect of the amendment, and then convicted them of murder under s 51(1). They were sentenced to 28 years’ imprisonment each. On appeal,

Held, that the failure to afford the appellants a full and proper opportunity to address the issue of the amendment to the indictment constituted a fundamental irregularity that infringed their fair-trial rights, and destroyed the validity of the amendment. It was not possible to say with certainty that they suffered no prejudice as a result of the amendment, and that they should have been sentenced in terms of s 51(2). (See [7].) The appeal against sentence was upheld and the sentences were altered to sentences of 15 years’ imprisonment.

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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.

DISPENSING WITH ASSESSORS IRREGULARITY

S v MATHE 2017 (2) SACR 63 (GJ)

 

Trial — Assessors — Absence of — Magistrate dispensing with assessors for lack of resources — Irregularity as envisaged by s 324 of Criminal Procedure Act 51 of 1977.

In a matter where the appellant had been convicted of murder in a regional magistrates’ court and sentenced to 20 years’ imprisonment, it appeared on appeal that the magistrate had decided, without any enquiry into whether the appellant required an assessor, that no assessor would be appointed ‘for lack of resources’.

Held, that the failure of the presiding officer to invoke the provisions of s 93ter of the Magistrates’ Courts Act 32 of 1944 was an irregularity as envisaged by the provisions of s 324 of the Criminal Procedure Act 51 of 1977. The conviction and sentence accordingly had to be set aside and the state was authorised to institute proceedings de novo

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.

FAILURE BY TRIAL COURT TO ALLOW CROSS-EXAMINATION

Gama v S [2016] 2 All SA 767 (GJ)

Criminal law – Robbery with aggravating circumstances – Appeal against conviction and sentence – Failure by trial court to allow cross-examination – Trial court, in not permitting cross-examination of two statements, failed in its duty and such failure vitiated the proceedings – Court held that there was clear prejudice to the appellant.

Criminal law – Robbery with aggravating circumstances – Doctrine of common purpose – Whether proved – Appellant would have had to actively do something in order to be guilty on the principle of common purpose.

The appellant was convicted of robbery with aggravating circumstances and sentenced to 15 years’ imprisonment. Appealing against the conviction and sentence, he contended that the trial court had erred in not permitting cross-examination on an unsigned statement of the complainant; accepting the credibility of the complainant and rejecting the credibility of the appellant; accepting the evidence of the two State witnesses that the appellant had participated in the robbery and rejecting the evidence of the appellant to the contrary; and in accepting the uncorroborated evidence of the complainant that a knife was used at the end of the robbery.

The grounds of appeal against the sentence were that the trial court had erred in failing to consider in relation to the question of exceptional circumstances whether it had been proved that the mens rea of the appellant extended to the use of the knife in the offence; and failing in relation to the question of exceptional circumstances, to give adequate weight to the relative youth of the appellant, the fact that he was a first offender and the conduct of the appellant on the scale of conduct that constitutes the offence of robbery with aggravating circumstances.

Held – The State did not prove beyond reasonable doubt that the appellant was party to the robbery of the complainant and the conviction of the appellant accordingly had to be set aside. Moreover, the trial court, in not permitting cross-examination of the two statements, failed in its duty.

On the question of whether the appellant had acted in common purpose with the other two perpetrators, it was submitted that the appellant would have had to actively do something in order to be guilty on the principle of common purpose. The Court found that there was no evidence to support a finding that the appellant should be convicted on the basis of common purpose.

The appeal was upheld and the conviction and sentence set aside.

PRESIDING OFFICER DESCENDING INTO ARENA -IRREGULARITY

S v LEEPILE 2016 (1) SACR 513 (NWM)

Trial — Presiding officer — Conduct of — Descending into arena of conflict — Presiding officer to guard against such conduct — Might create impression of partisanship or that issues pre-decided — Should not put attacking propositions to accused or cross-examine accused.

 

In an appeal against a conviction in a magistrates’ court it appeared from the record that the magistrate had on a number of occasions posed leading questions to a witness that were not in clarification and had put questions to the accused which were similar to the questions put to him by the prosecutor. It was contended by the appellant that he had not had a fair trial as a result of the bias by the magistrate and that the conviction had to be set aside.

Held, that, although a presiding officer was sometimes obliged to ask witnesses questions, it was important to guard against conduct which could create the impression that he or she was descending into the arena or was partisan, or had already decided issues which should only be decided at the end of the trial. Nor should a presiding officer put attacking propositions to an accused, as such conduct could create the impression that the presiding officer was acting as a cross-examiner. The irregularity established by the presiding officer’s descending into the arena in the present instance constituted a failure of justice that resulted in the appellant not having had a fair trial. The conviction accordingly had to be set aside.

DOES IRREGULARITY IN USING INTERMEDIARY AMOUNT TO FAILURE OF JUSTICE

ZF v S [2016] 1 All SA 296 (KZP)
Criminal law – Rape – Appeal against conviction and sentence – Use of an intermediary whilst the complainant gave evidence – Section 170A of the Criminal Procedure Act 51 of 1977 – Whether the use of the intermediary amounted to an irregularity and resulted in the evidence of the complainant being inadmissible and if it did, whether the balance of the evidence could sustain any of the convictions – Court found no reason why the use of an intermediary in the present matter resulted in the evidence given by the complainant being rendered inadmissible.

The appellant was charged with indecent assault, two counts of rape and assault with intent to do grievous bodily harm, and rape by way of a contravention of section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 read with section 51 of the Criminal Law Amendment Act 105 of 1997 and section 94 of the Criminal Procedure Act 51 of 1977. The complainant was his biological daughter. He pleaded not guilty to all the counts and gave no plea explanation but was convicted on all counts and was given an effective sentence of 17 years’ imprisonment.
The present appeal was against conviction and sentence.
At the outset of the trial, the State brought an application in terms of section 170A of the Criminal Procedure Act for the use of an intermediary whilst the complainant gave evidence. There being no objection from the prosecutor, the magistrate granted the application. On appeal, however, the appellant took the point that section 170A(1) did not entitle the magistrate to grant such an application because the complainant was over the biological and mental age of 18 years. That was said to amount to an irregularity which vitiated the proceedings.

Held – The first question to be determined was whether the use of the intermediary amounted to an irregularity. The ordinary grammatical meaning was that the section applies only to those under the biological or mental age of 18. Therefore, the use of the intermediary in this matter gave rise to an irregularity. The first question flowing therefrom was whether the irregularity resulted in the evidence of the complainant being inadmissible – and if it did, whether the balance of the evidence could sustain any of the convictions. The Court found no reason why the use of an intermediary in the present matter resulted in the evidence given by the complainant being rendered inadmissible. The irregularity was also found not to have led to a failure of justice.

On the issue of sentence, the Court found grounds to interfere only with the sentence imposed on the fifth count. The sentence on that count was set aside and replaced with one of 24 years’ imprisonment, with the sentences on the other counts running concurrently with that one.