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[2017] ZAKZPHC 64
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Goddard v S (1493/17P) [2017] ZAKZPHC 64 (27 March 2017)
IN THE HIGH COURT OF SOUTH
AFRICA
KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
Case
No: 1493/17P
In
the matter between:
DARREN
MARC
GODDARD
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
Delivered
on: 27 March 2017
MNGADI
AJ
[1]
The
appellant appeals, in terms of s 65(1)(a) of the Criminal Procedure
Act 51 of 1977 ('the CPA'), against the decision of the
magistrate of
the Pietermaritzburg Magistrates' Court refusing the application for
the release of the appellant on bail, pending
the outcome of the
criminal proceedings against him. The appellant, having been arrested
on 25 June 2016, applied for bail on 18
July 2016 before the learned
magistrate to be released pending his criminal trial ('the first bail
application'). The learned magistrate
refused the application. The
appellant thereafter appealed the decision of the magistrate and on 6
September 2016 this court (per
Chili J) dismissed the appeal ('the
first bail appeal').
[2]
On
21 October 2016 the appellant instituted another application before
the magistrate to be released on bail ('the second bail
application'). It was claimed that there were new facts entitling the
appellant to bring an application for his release on bail.
The
learned magistrate, having heard the matter, refused the second bail
application. The appellant appeals against the refusal
to grant bail
in the second bail application, and this is what now lies before this
court.
[3]
In
the first bail application the state placed before the magistrate
four charges against the appellant. The contents of the charges
were
supplemented by an affidavit deposed to by the investigating officer.
Counts 1 and 2 relate to alleged contraventions of s
3 of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007 ('the Sexual Offences Act') read with the
provisions of ss 51
and with schedule 2 of the Criminal Law Amendment Act 105 of 1997
('the CLAA'). In count 1 it is alleged that
on an unknown date at
Scottsville in Pietermaritzburg the appellant committed an act of
sexual penetration with a 9 year old complainant
(N), by inserting
his genital organ into the genital organ of the complainant. In count
2 is it alleged that on an unknown date
at Scottsville in
Pietermaritzburg the appellant committed an act of sexual penetration
with a 7 year old complainant (K), by inserting
his genital organ
into the genital organ of the complainant. In count 3 it is alleged
that the appellant contravened s 5(1) of
the Sexual Offences Act in
that on an unknown date at Scottsville in Pietermaritzburg the
appellant sexually violated the minor
child complainant T, by
fondling his private part under his underwear. In count 4 it is
alleged that in 2016 at Scottsville in
Pietermaritzburg the appellant
sexually violated a 9 year old complainant (S), by touching his bum
without his consent. At the
hearing of the second bail application,
it was stated that further four charges or allegations have been
added to the case against
the appellant, but there were no
particulars furnished relating to those charges.
[4]
No
oral evidence was lead during the first bail application. The
appellant had elected to lead his evidence by means of an affidavit.
The state opposed the bail application also by placing before the
magistrate an affidavit deposed to by the investigating officer.
The
affidavit of the investigating officer in longhand and written in a
somewhat cryptic a manner stated as follows:
‘
There
is a pattern/modus and the evidence confirms consistent pattern.
Evidence against accused is made of victims' statement. They
all know
accused/medical reports and psychologists report. Similar facts in
all 3 cases disclosure made to different persons. Victims
are unknown
to each other and in different grades
There is
another case Alexandra case 516/06/2016 victim 10 years. 1st
appearance today,-Fear for safety of victims,-court has allowed
1
victim's name to be called out in court in presence of teachers who
came to support accused on 1st appearance
Accused if
released will interfere with witnesses and interrogation,-two further
cases are opened Alexandra CS 517/E 518/06/2016
under
investigation-pending disclosure ,counselling needed ,-three further
enquiries to be registered-pending investigation.
serious
allegations,-Public outrage, accused will flee if released ,-not
arrested /at place of residence,-more victims are coming
forward and
some to be traced ,-Health profession council of SA-registration
status suspended, He has been suspended , children
on list given
by the principal who the accused counselled
Facts of
the case are as follows: Alleged that minor victims were sexually
abused or raped by accused during counselling sessions
at school,-
Victim statement obtained from different individual -different
officer + psychologists reports; -Investigation incomplete.
Further 2
more dockets + 2 enquiries; For further investigation, crime scene +
medical examination for accused, DNA clinical swabs
to be taken
How
accused is linked: -modus operandi, consistent pattern, -Victim +
statements, psychologists ' reports, medical examination,
-All victim
name accused'
In my view, it is unfortunate that
the evidence by the state was presented in this manner and it was not
clarified by oral evidence.
Bail proceedings are a very important
stage in the criminal proceedings. They cannot be approached in a lax
manner.
[5]
The
appellant, in his affidavit, stated that he was 32 years old. He was
residing at a Farm Saxony where he was a tenant for the
past twelve
months. Prior to that he resided at other places in the area of
Pietermaritzburg. He stated that his family resides
at Cowies Hill,
Pinetown. He was not married. The appellant stated that he
matriculated with six A's and he was a prefect. He is
a qualified
teacher, having graduated at the University of KwaZulu-Natal and he
has a Master's Degree in Psychology. At the time
of his arrest he was
employed permanently at Scottsville Primary as a school counsellor.
He was earning R22 000 per month. The
appellant stated that he was a
keen sportsman with provincial colours in athletics, cycling and dual
Athlon. He provides coach
in MTB, track racing and spinning. He is a
keen photographer. He stated that since his arrest he has been
dismissed from his employment.
[6]
The
appellant stated that he denies all the charges against him. The
children, he counselled, were referred to him by other professionals.
He did not commit any unbecoming behaviour towards the children. The
appellant alleges that the charges have been fabricated and
that the
children have been influenced. He stated that he had no previous
convictions and he had no other cases pending against
him. He was not
a flight risk. He knew the complainants mentioned in the charges and
he had no intention of interfering with them.
The children are in the
custody of their parents.
[7]
The
learned magistrate refused the first bail application finding that
since the arrest of the appellant more complainants have
come forward
which indicates that they may have been too scared. Further, he
found, that the offences took place at school and
that the appellant
enjoys a lot of support from fellow teachers, therefore, it is most
probable that he may influence or tamper
with witnesses if he is
released on bail. He concluded that the appellant was a flight risk
as he had no fixed assets or permanent
residence of his own.
[8]
The
appeal court (Chili J) found that the learned magistrate had
misdirected himself in numerous respects. The court held that,
as a
result, the appeal court was required to consider the matter afresh.
It had to undertake its own analysis and come to a conclusion.
Chili
J concluded that the appellant had failed to discharge the onus on
him. The court stated that the appellant was facing very
serious
charges of rape of young children whose ages ranged from 7 to 9
years; when the offences were committed the appellant had
been placed
in
loco parentis.
The
likely hood existed that in the event of a conviction, the appellant
could in all probabilities be sentenced to a lengthy sentence
of
imprisonment. Offences of rape of children carry mandatory sentences
of imprisonment for life. Chili J remarked that it is tempting
to
state that the reason the appellant chose not to testify was because
he had something to hide. However, the appellant was in
a better
position to clarify this aspect. The learned judge stated that the
prosecutor alleged, and this was not contested by the
appellant, that
the charges in both the rape and the sexual offence were supported by
medical evidence. Further, the prosecutor
alleged that the
complainants were traumatised to the extent that they had to receive
counselling. Chili J held that the court
had to accept, in the light
of the uncontested submissions by the public prosecutor at the bail
hearing, that there was merit in
the allegations that the
complainants on counts 1 and 2 were raped.
[9]
The
appeal court, with respect to the learned judge, overlooked that the
submissions by the public prosecutor were not supported
by evidence;
i.e. these allegations were not based on evidence adduced before the
court, and hence they fall not to be taken into
consideration. The
appeal court dismissed the appeal against the refusal of the first
bail application on the basis that the state
had a strong case
against the appellant based upon the submissions made by the public
prosecutor, which submissions were, in my
view, not based on any
evidence. The appeal court, with respect to the learned judge,
overlooked the fact that the appellant had
not been furnished with
the contents of the docket or any other documentary evidence. He did
not know the contents of the statements
of witnesses, the medical
reports and/or the psychologists' reports.
[10] In
the second bail application the appellant submitted an affidavit and
also gave oral evidence. He
repeated the averments in his earlier
affidavit. He testified that the state's case against him was not
strong. The Deputy Director
of Public Prosecutions ('the OPP') , when
the docket was submitted to him, had pointed out the shortcomings in
the investigation,
inter alia,
statements of some complainants
had not been obtained; there was no evidence of as
modus operandi,
etc. The investigating officer testified that the other
complainants, after having received counselling, have made
disclosures and
have come forward. There were now eight charges. Most
of the deficiencies pointed out by the OPP have been attended to. He
stated
that he had obtained statements of witnesses in the remaining
six of the eight matters. One deficiency raised by the OPP related
to
the complainants making their statements in a question and answer
format. He stated that in the remaining two matters statements
will
be obtained if after counselling the disclosure are made. He stated
that the medical evidence showed evidence of a blunt trauma.
[11]
In
addition, the investigating officer stated that the appellant has
interfered with the crime scene by instructing persons to remove
and
destroy exhibits. He communicated by means of a letter with a person
who is now a complainant. The appellant in response stated
that he
asked that person to remove his stuff, which was not connected to the
case, for safe keeping. He stated that that person
has tried to
blackmail him stating that he must commit suicide and if he is a
coward, she will assist him, and that he must make
her a sole
beneficiary in his will. He stated that at that stage when he
communicated with her, she was not a state witness or
a complainant.
[12]
The public prosecutor in his address
stated that the questions around the residence of the appellant have
been cleared. The state
was now accepting that the appellant was not
a flight risk. Further, he stated that initially one of the grounds
on which bail
was opposed was that if released on bail the
appellant's life will be in danger, but now the state was also
abandoning that ground.
He insisted that the communication by the
appellant was an indication that, if released on bail, he will
interfere with the outstanding
investigation and with the witnesses.
In my view, there was no evidence of an attempt to destroy evidence
or to interfere with
state witnesses produced. The allegations were
not clarified and they were not supported by the evidence presented
to establish
interference. It was not explained why if it was known
that there was such evidence, the evidence was not seized. There was
no
statement by any person showing the appellant had actually
contacted them. The fact that the complainants were children who are
in the custody of their parents and the appellant had been dismissed
from his employment with the school indicates the unlikely
hood of
any interference.
[13]
The learned magistrate refused the
second bail application on the same reasons that it was necessary
that the appellant remain in
custody so that more victims will be
prepared to come forward and disclose. The reasons were found by the
appeal court, and I agree
with that finding, to constitute a
misdirection. The appellant was arrested on 25 June 2016 and the
first bail application was
refused on 18 July 2016. On 30 November
2016 the second bail application was refused. The potential
complainants, if any, had had
more than six months to come forward
whilst the appellant was in custody. Such a ground cannot, in my
view, be relied upon to refuse
bail to the appellant.
[14]
The appeal court dismissed the appeal
against refusal of bail on the ground that there was a strong case
against the appellant which
in view of the applicable sentence
renders him a flight risk. I have indicated above that, in my view,
there was no basis for such
a conclusion. However, the crimes
relating to the rape of minor children are very serious. They call
for a proper and thorough
investigation and a proper presentation of
the case. In terms of s 65(4) of the CPA, this court can only
interfere with the decision
of the magistrate if it is satisfied that
such decision was wrong. (see S
v De
Abreu
1980 (4) SA 94
(W);
Attorney
-General of Zimbabwe v Phiri
1988
(2) SA 696
(ZH) at 698C-D; S v Mpofana
1998 (1) SACR 40
(Tk) at
44b-c). The issue is whether it has been shown that there is a strong
case against the appellant. It was initially four
charges that were
preferred against the appellant. By the time of the second bail
application, there were a further six to eight
incidents/allegations
being investigated. The state, although not obliged to, did not
produce any evidence in support of the charges.
The investigating
officer did not indicate existence of strong evidence against the
appellant. The four initial charges, which
is probably the case with
all the charges, indicate the date, month and year of the commission
of the crime as 'unknown'. The only
evidence implicating the
appellant appears to be an allegation against the appellant made by
each child. There is no evidence of
the first report. The allegations
brought against the appellant are made subsequent to counselling
sessions. There is no DNA evidence.
These allegations are based on
the evidence of single child witnesses. It is required that such
evidence, to found a conviction
, must be approached with extreme
caution.
[15]
In
S v
Acheson
1991 (2) SA 805
(NM)
at 821G-H, it was held that in
hearing a renewed bail application, the court is entitled, indeed
obliged, to have regard to all
the circumstances which impact on the
issue when the new application is heard, which includes prior
evidence and information. The
renewed application will only be
properly judged with reference to the facts and circumstances which
were placed before the court
in the first instance (see also
S
v Mpofana
1998 (1) SACR 40
(TK) at
44g-j & at 45a-b). The learned magistrate was obliged to bear in
mind the decision and the reasons given by the appeal
court in the
first bail appeal (Chili J). The judgement of the appeal court was
required to be part of the information before the
magistrate. There
is no reference by the learned magistrate to the judgement of the
appeal court. It constituted a misdirection
not to take into
consideration relevant information. The learned magistrate was
obliged to consider the renewed bail application
in the light of the
evidence in the initial bail application, the first bail appeal
judgement and in the light of the evidence
adduced in the renewed
bail application.
[16]
Where an accused, as it is the case with
the appellant, is charged with an offence referred to in schedule 6
of the CPA, he carries
the burden of satisfying the court on a
balance of probabilities that exceptional circumstances exist which,
in the interest of
justice, permit his release on bail (see s
60(11)(a) read with schedule 6 of the CPA). It has been held that the
concept of exceptional
circumstances is indefinable. Its proof
appears formidable but promotes flexibility which is subject to
judicial control on a case
by case basis. Circumstances that may be
regarded as ordinary in one case may be treated as exceptional in
another. The section
should not to be interpreted to mean that the
procedure is punitive in that an accused who has demonstrated, with
reference to
usual circumstances governing bail applications, that he
will stand trial and will not cause harm to the administration of
justice
or society, should nonetheless be detained.(see
S
v 0/amini; S v 0/adla and other; S v Joubert and S v Schietekat
[1999] ZACC 8
;
1999
(2) SACR 51
(CC) at 78e-g;
S v
Mohammed
1992 (2) SACR 507
(C) at
513 h-j & 514a c).
[17]
The guidelines provided by the
legislature ins 60(4) to (8) of the CPA provide easy reference,
should all, or a substantial number
be present in favour of the
accused, he may well be said to have discharged the onus of proving
the existence of exceptional circumstances.
But the provision should
not be read as authorising random incarceration of persons who are
suspected of having committed schedule
6 offences, who are presumed
innocent until proven guilty in a court of law. The likelihood of
acquittal weighs heavily towards
discharging the onus (see
S
v Jonas
1998 (2) SACR 677
(SE) at
678g-i & at 679b-d). Looking at the evidence in its entirety, the
appellant, in my view, established the existence
of a substantial
number of factors in the guidelines in favour of granting bail.
[18]
Incarceration prior to a conviction with
all its irreversible indignities and consequences may not be resorted
to easily in a constitutional
democracy with an enshrined Bill of
Rights. It must be for a good reason. In particular, it must be to
ensure the integrity of
the administration of justice including
effective prosecution of crime and punishment of offenders (see
S
v
C
1998 (2) SACR 721
(C)). However,
an accused person cannot be kept in detention pending his trial as a
form of anticipatory punishment (see
S
v Acheson
supra 822A-B) . I come to
the conclusion that the appellant has shown the that there are
exceptional circumstances, in the interest
of justice, that permit
his release on bail.
[19]
The following order is made:
1.
The
appeal is upheld
2.
The
decision of the magistrate to refuse release of the appellant on bail
is set aside and replaced with the following:
'The accused is granted bail in
the sum of R10 000-00 subject to the following conditions:
(a)
The
accused attends the criminal proceedings on each and every occasion
until finalised.
(b)
The
accused does not; directly or indirectly; interfere with state
witnesses and/or the investigation of the criminal proceedings
against him.
(c)
The
accused is prohibited from travelling to outside South Africa without
the permission of the investigating officer and he is
ordered to
surrender his passport and/or travel documents to the investigating
officer prior to his release on bail.
(d)
The
accused does not stay away from his place of residence, the
particulars thereof having been furnished to the investigating
officer in writing, for more than three days in succession without
the permission of the investigating officer.
e) The
accused does not coach, train, teach, and or counsel any person below
the age of eighteen
years and does not visit, enter or access
facilities wherein persons below the age of eighteen years are
coached, taught, trained
and/or counselled.'
MNGADI
AJ
APPEARANCES
Case
Number
: A 6571/16
Appellant
:
Darren
Marc Goddard
Represented
by
: Mr Osborn
Appellant's
Attorneys
: Siva Chetty and
Company
033 342 9636
Respondent
: The State
Represented
by
: Adv. Khathi
Respondent's
Attorney
: The
Director of the Public Prosecution
Pietermaritzburg
Date
of Hearing
: 14 March 2017
Date
of Judgment
: 27 March 2017