Director of Public Prosecutions (Kwazulu Natal) v Henry and Others (305/07) [2008] ZASCA 63 (29 May 2008)

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[2008] ZASCA 63
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Director of Public Prosecutions (Kwazulu Natal) v Henry and Others (305/07) [2008] ZASCA 63 (29 May 2008)

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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Not
reportable
Case
no: 305/07
In
the matter between:
THE
DIRECTOR OF PUBLIC PROSECUTIONS
(KWAZULU-NATAL)
APPELLANT
and
ALECK
HENRY 1
ST
RESPONDENT
PRISHIKA
PILLAY 2
ND
RESPONDENT
S.N.
3
RD
RESPONDENT
______________________________________________________________
Coram: SCOTT,
MTHIYANE, CLOETE, MLAMBO JJA
et
MHLANTLA AJA
Date
of hearing: 19 MAY 2008
Date
of delivery:
29
MAY 2008
Summary: Power of
Court of Appeal to interfere with exercise of discretion as to costs
by court of first instance – only in event
of misdirection,
irregularity or no grounds on which court acting reasonably could
have made the order it did.
Neutral
citation:
Director of Public Prosecution v Henry
(305/07)
[2008] ZASCA 63
(29 May 2008)
J
U D G M E N T
SCOTT
JA/ ….
SCOTT JA:
[1] This is an appeal
against an order of costs granted against the appellant in review
proceedings in the High Court, Pietermaritzburg.
The order was
granted by Combrinck J with whom Balton J concurred. On a subsequent
occasion, in the absence of Combrinck J, Balton
J, with Koen J
concurring, granted leave to appeal to the full bench of that court.
Later, no doubt because such an appeal would
be incompetent, the
order was altered and leave was granted to this court.
[2] It is well
established that in awarding costs, a court of first instance
exercises a judicial discretion and a court of appeal
will interfere
only if the exercise of that discretion is vitiated by misdirection
or irregularity, or if there are no grounds
on which a court, acting
reasonably, could have made the order in question. Merely because the
court of appeal may have made a
different order is no justification
for interference. See eg
Naylor v Jansen
2007 (1) SA 16
(SCA)
para 14 and the authorities there cited.
[3] Against this
background, I turn to the circumstances in which the order appealed
against was made. On 24 February 2003 the third
respondent, a 27
year-old woman, to whom I shall refer as the complainant, consulted
the second respondent who is a clinical psychologist
and to whom I
shall refer as the ‘psychologist’. At the time the complainant
was experiencing marital problems and was suffering
from depression.
In the course of the consultation she reported that she had been
raped and indecently assaulted by the first respondent
when she was
10 years old, ie 17 years previously. Thereafter, she was assessed
and treated in the course of 14 further sessions.
Subsequently she
laid a charge of rape and indecent assault against the first
respondent.
[4] In due course the
first respondent was charged and given a list of witnesses the State
intended to call, one of whom was the
psychologist. The first
respondent requested particulars from the State. He asked to be
placed in possession of a copy of ‘every
document that [the State]
intends to use at the trial’. In response, the prosecutor furnished
the first respondent with a copy
of the psychologist’s report dated
31 October 2003. It contained details of the alleged rape and the
effect it had had on the
complainant. Under the sub-heading
‘summary’, the psychologist expressed the opinion that:
‘
[The
complainant’s] clinical picture is typical of an adult survivor of
childhood sexual abuse. She has tried to block out the
alleged
incident, that she at the age of ten, had no control over. She was
exposed to age inappropriate sexual knowledge which
distorted her
perception of sexual behaviour and resulted in her avoiding sexual
intimacy.’
On receipt of this
document the first respondent had every good reason to believe that
the psychologist would be called as an expert
witness to give
credence to the complainant’s veracity.
[5] The State was also
requested to indicate to whom it would be alleged the ‘so-called
first report’ was made. The answer given
was that it was the
psychologist. I mention that the psychologist’s report does record
that the complainant had informed her
husband before their marriage
that at the age of 10 she had been ‘molested’. However, the
request that ultimately resulted
in the litigation culminating in
this appeal was for the State to make available, in the event of the
psychologist being called
to testify, all her ‘working
documents/notes of the 11 sessions of psychotherapy and 4 sessions of
psychological assessment’.
The request was refused.
[6] The first respondent
then launched an application to compel the prosecution, alternatively
the psychologist, to hand over all
the files and documents in the
psychologist’s possession relating to the 15 sessions of
psychotherapy and assessment undergone
by the complainant. The
psychologist and the complainant gave notice of their intention to
intervene and oppose the order sought
on the grounds of the latter’s
right to privacy and confidentiality.
[7] The matter came
before the regional magistrate on 20 July 2004. Counsel for the first
respondent announced that the court would
be required to make a
finding which would involve a ‘fine balancing act’ between
certain entrenched rights. However, a preliminary
issue that arose
was the
locus standi
of the Legal Resources Centre to
intervene on the grounds of the ‘wider public interest’ which the
application was believed
to entail. In the course of the argument on
this issue the prosecutor made a statement which was subsequently to
gain importance
with regard to the question of costs. She is recorded
as saying:
‘
The
interests that are at stake here are that of the complainant of what
she had disclosed to the [psychologist] and to the State,
that is
confidential information, which the State is basically not going to
rely on Your Worship. The evidence of the [psychologist],
according
to the State, is basically that being the first report, because the
report was initially made to the [psychologist].’
In the event, the Legal
Resources Centre was recognised as having
locus standi
and the
parties proceeded to argue the application on the basis that it
involved balancing the first respondent’s right to a fair
trial
against the complainant’s right of confidentiality, privacy and
dignity. Of significance, are the following remarks of
the prosecutor
made in the course of her argument:
‘
Your Worship, in this
case a request for further particulars was made by the defence. They
were afforded statements of witnesses
that would testify in this
matter, as well as the report by the psychologist. Your Worship, this
is actually the evidence that
the State will be relying on to prove
the charges against the accused, which are simple Your Worship, which
are that of rape as
well as that of indecent assault.
Your Worship, the State
views the relationship of the [psychologist] with the client, with
the victim in this matter as that of
a confidential relationship.
Your Worship, what was discussed on a personal basis by the victim in
this matter to the psychologist,
the State is not relying on that
Your Worship, as it is a very confidential information.’
She added:
‘Your
Worship, the interest of the complainant in this matter must be taken
into consideration. My learned friend Mr Chetty,
has indicated that
the constitutional right of the complainant in the matter, that of
privacy, dignity as well as psychological
integrity must be upheld by
this Court, Your Worship. Furthermore, if the Court allows that the
eleven sessions that were held
by the psychologist and the client in
this matter, be handed to the complainant, the State will not rely on
those sessions. Because
as I have indicated earlier that these are
treated as confidential information.’
[8] On 30 August the
regional magistrate gave judgment in which she ordered copies of
some, but not all, of the documents requested
to be handed over to
the first respondent. The psychologist and the complainant thereafter
launched review proceedings in the court
a quo
to have the
order of the regional magistrate set aside. The latter chose to abide
the decision of the court. The first respondent
opposed the
application and filed affidavits. The State filed no affidavits but
at the last moment filed heads of argument and
was represented at the
hearing. The
amicus curiae
was represented by counsel and
filed a document setting out reasons for supporting the psychologist
and the complainant.
[9] At the hearing the
parties were ready to argue what promised to be a difficult issue
relating to the tension between, on the
one hand, the complainant’s
right to dignity, privacy and confidentiality and, on the other, the
first respondent’s right to
a fair trial. However, at the
commencement of proceedings, the learned judge presiding referred
counsel for the State to the statements
made by the prosecutor to
which I have referred above and sought clarity as to precisely what
the State’s attitude was in relation
to the evidence of the
psychologist. It was only then that it was made clear in unequivocal
terms that the State would not be calling
the psychologist to give
expert evidence as to the genuineness of the complaint’s account of
what had occurred and that the former’s
evidence was to be limited
simply to the report that the complainant had made to her that she
had been raped by the first respondent
when she was 10 years old. In
the result it became unnecessary for the court to decide the
constitutional issue that had been raised.
It was also common cause
that the regional magistrate had misdirected herself in proceeding on
the basis that it was only after
the 15 sessions of psychotherapy
that it finally came out that the complainant had been raped. It
followed that the decision of
the regional magistrate had to be
reviewed and set aside.
[10] On the question of
costs, Combrinck J said the following:
‘
In my
view, there was confusion as to the purpose for which the State
intended calling the psychologist. In reply to the original
question
as to whether the State intended to make use of the evidence of the
psychologist and a request for the more detailed report,
the State in
reply acknowledged that it intended calling the psychologist and
furnished a copy of her report. It was logical to
deduct from this,
that the State did not intend restricting the psychologist’s
evidence to that of the first report but intended
calling her as an
expert witness to testify to her conclusions reached after the
fifteen sessions with the complainant. The State
should, in my view,
have indicated clearly in answer to the request by the accused for
further particulars, that it only intended
calling the psychologist
for the restricted purpose of the so-called first report. I would
further have expected, after the launching
of the review proceedings,
that the State would file an affidavit indicating clearly the
restricted nature of the evidence relating
to the psychologist. It
did not do so. I do not think that the portions of the prosecutrix’s
address before the magistrate to
which I alluded earlier were
sufficient to bring to everybody’s knowledge that the State was
only going to call the psychologist
on the question of the first
report. Not even the magistrate understood it as such as is clear
from her judgment. I conclude therefore
that the State is liable to
pay the costs of the proceedings.’
[11] In this court
counsel for the State submitted that the prosecutor in the
proceedings before the regional magistrate had made
it clear what the
State’s attitude was. I cannot agree. Not only did counsel for the
other parties involved not understand this
to be the case but the
regional magistrate was similarly misled. There were several
opportunities for the State to correct the
misapprehension under
which everyone else concerned with the case was labouring. Had this
been done the application and the review
would have been unnecessary.
As previously stated, the court
a quo
exercised a judicial
discretion in ordering the State to pay the costs of the proceedings.
No acceptable ground has been advanced
for interfering with the
exercise of that discretion. In my view there is no merit in the
appeal and leave to appeal should never
have been granted.
[12] The appeal is
dismissed with costs.
_________
D
G SCOTT
JUDGE
OF APPEAL
CONCUR:
MTHIYANE JA
CLOETE JA
MLAMBO JA
MHLANTLA AJA