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[2012] ZASCA 188
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S v Raghubar (148/12) [2012] ZASCA 188; 2013 (1) SACR 398 (SCA) (30 November 2012)
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Case no
:
148/12
In the matter between:
GEALLAL RAGHUBAR
...................................................................................
APPELLANT
and
THE STATE
..................................................................................................
RESPONDENT
Neutral
citation:
Geallal Raghubar v The
State
(148/12)
[2012] ZASCA
188
(30 November 2012)
Coram:
Ponnan
and Tshiqi JJA and Mbha AJA
Heard: 1 November 2012
Delivered: 30 November
2012
Summary:
Indecent assault
–
complainant 14
years old
– failure to
comply with
s 164 read with
sections 162
and
163
of the
Criminal Procedure
Act 51 of 1977
–
failure to comply
with – effect of.
______________________________________________________________________
ORDER
______________________________________________________________________
On appeal from:
KwaZulu–Natal, Pietermaritzburg (Nicholson J and Vahed AJ
sitting as court of appeal):
The appeal is upheld.
The conviction and
sentence are set aside.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
TSHIQI JA (PONNAN JJA
AND MBHA AJA CONCURRING):
The appellant was
charged with indecent assault in the Verulam Regional Court,
KwaZulu-Natal on 18 February 2009. It was
alleged that ‘FROM
2000-2004 at or near PHOENIX in the district of Inanda, Regional
Division of KZN, [he] did unlawfully
and intentionally commit an
assault of an indecent character upon P
1
(6 YEARS) by
INSERTING HIS PENIS INTO HIS ANUS’. He was convicted and
sentenced to a term of ten years’ imprisonment.
His appeal to
the KwaZulu-Natal High Court, Pietermaritzburg on both conviction
and sentence was dismissed. His appeal is now
before us with the
leave of this court.
The complainant was 14
years old at the time of the trial. The indecent assault was alleged
to have been committed approximately
eight years ago. His date
of birth was confirmed by his mother and through his birth
certificate which showed that he was
born on 18 July 1994. He
testified through an intermediary and both the complainant and the
intermediary were seated in a separate
room with him testifying with
the aid of a closed circuit camera.
An issue that occasioned
concern to us on perusing the appeal record in the matter was
whether there had been proper compliance
by the trial court with the
provisions of
s 164
read with
sections 162
and
163
of the
Criminal
Procedure Act 51 of 1977
in respect of the complainant, the minor
child P. Both counsel were invited to file supplementary heads of
argument and advised
that at the hearing of the matter they had to
be prepared to address argument on that issue.
Sections 162
–
164
of the
Criminal Procedure Act provide
as follows:
‘
162 Witness
to be examined under oath
(1) Subject to the provisions of
sections 163
and
164
, no person shall be examined as a witness in
criminal proceedings unless he is under oath, which shall be
administered by the presiding
judicial officer or, in the case of a
superior court, by the presiding judge or the registrar of the court,
and which shall be
in the following form:
“
I swear that
the evidence that I shall give, shall be the truth, the whole truth
and nothing but the truth, so help me God.”
(2) If any person to whom the oath is
administered wishes to take the oath with uplifted hand, he shall be
permitted to do so.
163 Affirmation in lieu of oath
(1) Any person who is or may be
required to take the oath and–
(a)
who
objects to taking the oath;
(b)
who
objects to taking the oath in the prescribed form;
(c)
who
does not consider the oath in the prescribed form to be binding on
his conscience; or
(d)
who
informs the presiding judge or, as the case may be, the presiding
judicial officer, that he has no religious
belief or that the taking
of the oath is contrary to his religious belief,
shall make an affirmation in the
following words in lieu of the oath and at the direction of the
presiding judicial officer or,
in the case of a superior court, the
presiding judge or the registrar of the court:
“
I solemnly
affirm that the evidence that I shall give, shall be the truth, the
whole truth and nothing but the truth.”
(2) Such affirmation shall have the
same legal force and effect as if the person making it had taken the
oath.
(3) The validity of an oath duly taken
by a witness shall not be affected if such witness does not on any of
the grounds referred
to in subsection (1) decline to take the oath.
164 When unsworn or unaffirmed
evidence admissible
Any person, who is found not to
understand the nature and import of the oath or the affirmation, may
be admitted to give evidence
in criminal proceedings without taking
the oath or making the affirmation: Provided that such person shall,
in lieu of the oath
or affirmation, be admonished by the presiding
judge or judicial officer to speak the truth.
(2) If such person wilfully and
falsely states anything which, if sworn, would have amounted to the
offence of perjury or any statutory
offence punishable as perjury, he
shall be deemed to have committed that offence, and shall, upon
conviction, be liable to such
punishment as is by law provided as a
punishment for that offence.’
The reason for giving
evidence under oath
(s162)
, affirmation
(s163)
or admonishment
(s164)
is to ensure that the evidence given is reliable.
2
Section 192
of the
Criminal Procedure Act declares
generally that unless specially
excluded all persons are both competent and compellable witnesses.
A
witness is
competent to testify if his or her evidence may properly be put
before the court. If a child does not have the ability
to
distinguish between truth and untruth, such a child is not a
competent witness.
3
It is the duty of the
presiding officer to satisfy himself or herself that the child can
distinguish between truth and untruth.
The court can also hear
evidence as to the competence of the child to testify. Such evidence
assists the court in deciding (a)
whether the evidence of the child
is to be admitted, and (b) the weight (value) to be attached to that
evidence. The maturity
and understanding of the particular child
must be considered by the presiding judicial officer, who must
determine whether the
child has sufficient intelligence to testify
and a proper appreciation of the duty to speak the truth. The court
may not merely
accept assurances of competency from counsel.
4
The language used in all
three sections is peremptory.
The following exchange
is recorded between the magistrate and P when the latter entered the
witness stand:
‘
COURT: P,
please state your full names, your date of birth if you know, your
age and the grade that you are presently in.
INTERMEDIARY: What are your full
names, sir?
WITNESS: P.
INTERMEDIARY: You have to speak aloud.
WITNESS: P.
INTERMEDIARY: And what age are you?
How old are you?
WITNESS: 14.
INTERMEDIARY: Your date of birth? When
you were born?
WITNESS: 1994
INTERMEDIARY: The date.
WITNESS: 1994, 7
th
month,
18
INTERMEDIARY: What grade are you doing
now?
WITNESS: Nine
INTERMEDIARY: Grade 9.
COURT: 1994/7 and what day?
INTERMEDIARY: You said what date you
were born?
WITNESS: 18 July.
COURT: 18.
WITNESS: July.
The magistrate then
directed the following question to the appellant’s legal
representative:
‘
COURT: Okay.
Mr Ramouthar, are you prepared to accept the witness is competent to
give evidence?
MR RAMOUTHAR: That’s correct,
Your Worship.’
Firstly, it cannot be
accepted that the magistrate managed to determine merely from such
an elementary line of questioning pertaining
to the complainant’s
age, date of birth and level of education that the complainant was
competent to testify. Secondly,
the appellant’s legal
representative was not qualified to express an opinion on the
complainant’s competency. It
is not clear on what basis his
opinion was solicited by the magistrate nor on what basis he
expressed it. The magistrate reverted
to the complainant and posed
the following questions:
‘
COURT: Do
you believe in God, P?
WITNESS: Yes.
COURT: And do you believe that if you
promised God that you would speak the truth about something, that you
took an oath to God
to speak the truth, do you believe that if you
then went on and spoke lies, made up stories, getting somebody into
big trouble,
do you believe that God would know that you are telling
lies and that God would punish you for doing that?
WITNESS: Yes I do.’
The above leading,
compound question posed by the court is also not helpful. It was
impossible to gather from it whether the complainant
understood what
it means to speak the truth; what the oath means; and, the
difference between the truth and falsehood, nor the
consequences if
he did not speak the truth. All that the complainant could say in
response to the question was ‘yes’
or ‘no’.
The magistrate felt compelled to undertake an enquiry. No doubt on
seeing the child in the witness stand
she entertained certain doubts
that caused her to embark upon that enquiry. What was required of
her in embarking upon that enquiry
has been spelt out by the
Constitutional Court (per Ngcobo J) in
Director of Public
Prosecutions, Transvaal v Minister of Justice and Constitutional
Development & others
2009 (2) SACR 130
(CC) paras 165, 167
and 168 as follows:
‘
The practice
followed in courts is for the judicial officer to question the child
in order to determine whether the child understands
what it means to
speak the truth. As pointed out above, some of these questions are
very theoretical and seek to determine the
child's understanding of
the abstract concepts of truth and falsehood. The questioning may at
times be very confusing and even
terrifying for a child. The result
is that the judicial officer may be left with the impression that the
child does not understand
what it means to speak the truth and then
disqualify the child from giving evidence. Yet with skilful
questioning, that child may
be able to convey in his or her own child
language, to the presiding officer that he or she understands what it
means to speak
the truth. What the section requires is not the
knowledge of abstract concepts of truth and falsehood. What the
proviso requires
is that the child will speak the truth. As the High
Court observed, the child may not know the intellectual concepts of
truth or
falsehood, but will understand what it means to be required
to relate what happened and nothing else.
…
When a child, in the court's words,
cannot convey the appreciation of the abstract concepts of truth and
falsehood to the court,
the solution does not lie in allowing every
child to testify in court. The solution lies in the proper
questioning of children;
in particular, younger children. The purpose
of questioning a child is not to get the child to demonstrate
knowledge of the abstract
concepts of truth and falsehood. The
purpose is to determine whether the child understands what it means
to speak the truth. Here
the manner in which the child is questioned
is crucial to the enquiry. It is here where the role of an
intermediary becomes vital.
The intermediary will ensure that
questions by the court to the child are conveyed in a manner that the
child can comprehend and
that the answers given by the child are
conveyed in a manner that the court will understand.
As pointed out earlier, questioning a
child requires a special skill. Not many judicial officers have this
skill, although there
are some who, over the years and because of
their constant contact with child witnesses, have developed a
particular skill in questioning
children. This illustrates the
importance of using intermediaries where young children are called
upon to testify. They have particular
skills in questioning and
communicating with children. Counsel for the Centre for Child Law and
Childline was quite correct when,
in her reply, she submitted that
everything seems to turn upon the need for intermediaries when young
children testify in court.
Properly trained intermediaries are key to
ensuring the fairness of the trial. Their integrity and skill will be
vital in ensuring
both that innocent people are not wrongly convicted
and that guilty people are properly held to account.’
[9] Counsel for the State
was ultimately constrained to concede that the enquiry undertaken by
the magistrate fell far short of
meeting that suggested by the
Constitutional Court. Thus as Ngcobo J made plain in
Director
of Public Prosecutions,Transvaal v Minister of Justice and
Constitutional Development
(para 166):
‘
(T)he
evidence of a child who does not understand what it means to tell the
truth is not reliable. It would undermine the accused's
right to a
fair trial were such evidence to be admitted. To my mind, it does not
amount to a violation of
s 28(2)
to exclude the evidence of such a
child. The risk of a conviction based on unreliable evidence is too
great to permit a child who
does not understand what it means to
speak the truth to testify. This would indeed have serious
consequences for the administration
of justice.’
It follows that as no
reliance can be placed on the evidence of the complainant, the
conviction cannot stand.
[10] However, even
assuming that there was due compliance with the above provisions of
the
Criminal Procedure Act, the
conviction of the appellant could not
be sustained on the evidence. This case is one of those cases where
even on the merits there
were clear and blatant misdirections by the
trial court. Only a few of those will be mentioned below, to
illustrate the point.
[11] The cautionary rule
was applicable to the evidence of the complainant. He was a single
witness to the alleged indecent assault
and he was very young when
the offences were allegedly committed and during the trial. It
appears, however, that the court merely
paid lip service to the
cautionary rule because it ignored several contradictions in his own
testimony and that of the other State
witnesses. His evidence was
confusing and very difficult to follow. The charge sheet seems to
refer to a single incident of indecent
assault that occurred between
the years 2000-2004, yet the complainant when he testified started by
relating several incidents
of sexual abuse that allegedly occurred
when he was still six years old. He could not state specifically when
those incidents occurred.
Nor was it clear from the evidence of the
complainant or that of his mother or grandmother when the first or
the last incident
occurred. The other concern is that according to
him he was neither invited by the appellant nor coerced to visit the
appellant’s
home, yet he was unable to explain why he kept on
going back to the appellant’s home at his own instance for at
least the
four years stipulated in the charge sheet.
[12] Whilst I accept that
it is not unusual for young children to experience difficulties when
relating to the court what actually
happened with the precision
expected of an adult, especially pertaining to incidents concerning
sexual behaviour as well as incidents
that occurred a while ago. The
need for caution cannot be ignored. In
Viveiros v S
[2000] 2
All SA 86
(A) para 2, this court stated:
‘
In
view of the nature of the charges and the age of the complainants it
is well to remind oneself at the outset that, whilst there
is no
statutory requirement that a child’s evidence must be
corroborated, it has long been accepted that the evidence of
young
children should be treated with caution (
R
v Manda
1951 (3) SA 158
(A) at 163C;
Woji
v Santam Insurance Co Limited
1981 (1) SA 1020
(A) at 1028B–D); and that the evidence in a particular case
involving sexual misconduct may
call for a cautionary approach (
S
v J
1998 (2) SA 984
(A) at 1009B). For reasons which will presently emerge the present
case is plainly one which calls
for caution.’
[13] In
Stevens v S
[2005] 1 All SA 1
(SCA) para 1 this court cautioned:
‘
Courts
in civil or criminal cases faced with the legitimate complaints of
persons who are victims of sexually inappropriate behaviour
are
obliged in terms of the Constitution to respond in a manner that
affords the appropriate redress and protection. Vulnerable
sections
of the community, who often fall prey to such behaviour, are entitled
to expect no less from the judiciary. However, in
considering whether
or not claims are justified, care should be taken to ensure that
evidentiary rules and procedural safeguards
are properly applied and
adhered to.’
In para 17 it further
stated:
‘
As
indicated above, each of the complainants was a single witness in
respect of the alleged indecent assault upon her. In terms
of
section
208
of the
Criminal Procedure Act
51
of 1977
, an accused can be convicted of any offence on the single
evidence of any competent witness. It is, however, a well-established
judicial practice that the evidence of a single witness should be
approached with caution, his or her merits as a witness being
weighed
against factors which militate against his or her credibility (see,
for example,
S
v Webber
1971 (3) SA 754
(A) at 758G–H). The correct approach to the application of this
so-called “cautionary
rule” was set out by Diemont JA in
S
v Sauls and others
1981 (3) SA 172
(A) at 180E–G as follows:
“
There is no
rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness (see
the
remarks of Rumpff JA in
S
v Webber …
).
The trial judge will weigh his evidence, will consider its merits and
demerits and, having done so, will decide whether it is
trustworthy
and whether, despite the fact that there are shortcomings or defects
or contradictions in the testimony, he is satisfied
that the truth
has been told. The cautionary rule referred to by De Villiers JP in
1932 [in
R
v Mokoena
1932
OPD 79
at 80] may be a guide to a right decision but it does not mean
“that the appeal must succeed if any criticism, however
slender,
of the witnesses’ evidence were well-founded”
(per Schreiner JA in
R
v Nhlapo
(AD
10 November 1952) quoted in
R
v Bellingham
1955 (2) SA 566
(A) at 569.) It has been said more than once that the exercise of
caution must not be allowed to
displace the exercise of common
sense.’ (See further all the other authorities referred to
therein.)
[14] The further evidence
led by the State did not add to the evidence of the complainant. An
evaluation of the medical evidence
is a convenient starting point.
The medical evidence does not prove the elements of the offence, ie
that there was anal penetration
as alleged on approximately seven to
eight times. The medical report completed by the medical doctor who
examined the complainant
(J88) was admitted into evidence by
agreement. The medical doctor was not called. He had since died. He
noted his clinical findings
‘on anal examination on the skin
surrounding the orifice’ as an ‘old bruise, no swelling,
nor fissures/cracks’.
He noted no abnormalities on the orifice
itself and noted that the tone was good. In his conclusions he
recorded that ‘On
clinical examination the features are
consistent with anal intercourse.’ There is no explanation of
what feature(s) he was
referring to; but assuming that the feature
was the old bruising in the anal area, it is not clear how that
established beyond
reasonable doubt that anal intercourse had indeed
occurred. There was no evidence on the nature of the old bruise and
it was not
established how an old bruise on the skin surrounding the
orifice was consistent with the alleged seven to eight incidents of
indecent
assault. The medical report did not, as the trial court
held, strengthen the State’s case. On the contrary it may have
detracted
from his version. At best for the State, when viewed
against the totality of all of the evidence, the medical report was
simply
a neutral factor.
[15] The evidence of both
the mother and the grandmother also had its own shortcomings. Their
individual evidence was contradictory
and they also contradicted each
other on pertinent issues. It is difficult to discern from the
convoluted manner in which they
testified when exactly the first and
the last incident occurred; what it is that raised his mother’s
suspicion that the complainant
was abused; when she first noticed the
abuse; and whether the complainant voluntarily disclosed it to the
grandmother, or whether
the mother observed strange behaviour on his
part and because of that requested his grandmother to question the
complainant.
[16] The difficulties
encountered with the mother’s evidence can be illustrated
through the following excerpts from her evidence:
‘
When was it
when you saw those love bites --- When he was nine years old, he had
a love bite in his neck here.
When was it? Before you overheard the
conversation? --- Yes. I saw the baby quite a few times with love
bite, but I didn’t
think of anything. So, when I asked the
baby, P, he told me, “Mummy, Uncle Roy.” So I confronted
the guy and I called
him and asked him, “Why did you do that to
my child”. He says, “No, because my child is so nice and
chubby, who
wouldn’t want to do that to a baby like that”.
When was it when you confronted him?
When the baby was little. The baby was little, he
used to have those love
bites and when the baby was nine years, P was
nine years, he used to also have those love bites in between his
bodies.
What I want to know, as to when was it
when you confronted him? --- The man
Yes. That time,
that very first time when I saw the love bites on baby, baby was
about seven years.
Before you overheard the conversation
of P and his grandmother, did you speak about the problem that P was
having his grandmother?
Yes, I spoke to him. He
still refused to speak to me. P refused to speak to me. So, I was in
tears. So, I said
the only thing I could do is take the child to the
doctor. So, I phoned the police, I got the police at the door and
they asked
me to take him and go to the doctor.
What I want to know is, before you
overheard the conversation, did you speak to your mother in-law
about P?
Yes, yes, after the child spoke to my
mother-in-law.
No, before that? --- No.’
[17] The charge sheet is
not without its problems. It alleges that the indecent assault was
committed during 2000-2004, and prima
facie refers to one incident.
It does not specify when exactly the offence occurred. The evidence
of the complainant on the other
hand suggests that there were about
seven to eight incidents. Whilst it would be unfair to expect such a
young complainant to recall
the exact dates and occurrences with
precision, it is equally difficult for an accused person to defend
himself in such circumstances.
It is unfair to criticise an accused
who is faced with such sketchy details. It is not surprising that the
appellant found it extremely
difficult to proffer more detail in
support of his denial of the incident.
[18] The problems with
the evidence of the State witnesses are not the only issues that
arise in this appeal. The judgment of the
trial court is riddled with
several misdirections in its evaluation of the evidence. The trial
court adopted a skewed approach
in the manner in which it analysed
the evidence. All the contradictions in the State’s case are
explained and justified whilst
the same generosity is not shown to
the evidence of the appellant. The court was critical of the failure
by the appellant to disclose
his defence timeously and concluded that
it must have been an after-thought on his part. Such criticism was
unwarranted. As the
court stated in
R v Mtembu
1956 (4)
SA 334
(T) at 335H-336B:
The magistrate
in his reasons for judgment obviously takes the view that if the
evidence of the traffic inspector is accepted then
the accused was
guilty of driving to the danger of the public. In coming to the
conclusion that that evidence is to be accepted
he said that the
inspector either saw the accused drive as he says or he has come to
court to commit perjury. That is not the correct
approach. The
remarks of the late MILLIN, J., in
Schulles
v Pretoria City Council
,
a judgment delivered on the 8th June, 1950, but not reported, are
very pertinent to this point; he says:
‘
It
is a wrong approach in a criminal case to say “Why should a
witness for the prosecution come here to commit perjury?”
It
might equally be asked: “Why does the accused come here to
commit perjury?” True, an accused is interested in not
being
convicted, but it may be that an inspector has an interest in
securing a conviction. It is, therefore, quite a wrong approach
to
say “I ask myself whether this man has come here to commit
perjury, and I can see no reason why he should have done that;
therefore his evidence must be true and the accused must be
convicted.” The question is whether the accused's evidence
raises a doubt.
'
5
[19] The appellant
consistently denied the allegations and when asked by his counsel
specifically why the complainant would implicate
him falsely, he
proffered two possible explanations. In
Van
der Watt v S
[2010] 3 All SA 434
(SCA) para
16 this court stated:
‘
(I)t
is trite that an accused may tender an explanation why he believes he
has been falsely implicated and it may turn out another
reason
unknown to him exists or is more probable. The accused is called upon
to speculate, not testify on a matter of fact. In
such circumstances,
he cannot be blamed if it turns out that his explanation is found to
be wanting.
6
It
would therefore be wrong to criticise the appellant if it turned out
that this was not the reason. What is important is that
the appellant
was truthful when he relayed the incident to the court and the
incident cannot be ruled out as a possible reason
why the complainant
laid false charges against him.’
In
my view, when the appellant’s version is compared to the
evidence adduced by the state witnesses, there was no justification
for the rejection of his evidence.
[20] It follows, on
either approach, the conviction cannot be sustained. For even if all
of the evidence was properly before the
trial court, it did not
establish the guilt of the appellant beyond a reasonable doubt.
The appeal is
accordingly upheld.
The conviction and
sentence are set aside.
_______________________
Z L L TSHIQI
JUDGE OF APPEAL
APPEARANCES:
For Appellant: S Mngadi
Justice Centre, Durban
Justice Centre,
Bloemfontein
For Respondent: T S
Jacobs
Instructed by:
Director of Public
Prosecutions, Pietermaritzburg
1
To
protect the identity of the minor child I shall refer to him as P.
2
See
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development & others
2009
(2) SACR 130
(CC) para 166.
3
S
v L
1973 (1) SA 344
(C) at 348A–C; Alfred V. Lansdown and
Jean Campbell
South African Criminal Law and Procedure
vol 5
at p 740.
4
Alfred
V. Lansdown & Jean Campbell
South
African Criminal Law and Procedure
,
note 3 above at p 740.
5
See
also
S v Ramochela
1997 (2) SACR 494
(O) at 496
a
-
e
;
S v Kubeka
1982 (1) SA 534
(W) at 536D 537D and cases
there cited.
6