About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2013
>>
[2013] ZAGPPHC 109
|
|
S v Mcbride (A72/2012) [2013] ZAGPPHC 109 (3 May 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
number: A72/2012
Date:
3 May 2013
In
the matter between;
THE
STATE
...................................................................................
Applicant
and
ROBERT
MCBRIDE
.....................................................................
Respondent
LEAVE
TO APPEAL JUDGMENT
PRETORIUS
J.
[1]
The State applied for leave to appeal in terms of
section 311
(1) of
the
Criminal Procedure Act 51 of 1977
. This application was opposed.
[2]
Section 311
(1) provides:
“
(1)
Where the provincial or local division on appeal, whether brought by
the attorney-general or other prosecutor or the person
convicted,
gives a decision in favour of the person convicted on a question of
law, the attorney-general or other prosecutor against
whom the
decision is given may appeal to the Appellate Division of the Supreme
Court, which shall, if it decides the matter in
issue in favour of
the appellant, set aside or vary the decision appealed from and, if
the matter was brought before the provincial
or local division ...”
(Court’s emphasis)
[3]
The first ground of appeal according to the state is not based on a
legal point. In any event the state had conceded that the
inference
should be drawn that the making of the statements by the three
accomplice witnesses was related to the indemnity in the
Marco Singh
matter. The state conceded that there was a nexus between the making
of the statements in this case on 30 May 2007
and the making of
statements in the Marco Singh matter on 2 July 2007.
[4]
The question of the statement by Dr Moratioa not being allowed to be
presented as evidence in the court a quo is not a question
of law. It
did not play any role in the court a quo and was not presented in
this court and is thus of no importance. The state
chose to present
the medical certificate to the court a quo and withheld agreement to
have the statement by Dr Moratioa placed
before court.
[5]
The court found that there was other evidence available as to what
had happened at the party prior to the collision, but the
state chose
not to use any of it, although it had been clear that the three
accomplice witnesses’ evidence has been compromised.
This fact
can in no way be regarded as a question of law in terms of
section
311
(1).
[6]
The evidence of Professor van Gelder did carry substantial weight, as
there was no expert evidence from the state to contradict
his
evidence. This finding is not a question of law and does not qualify
the state to appeal, it was a factual finding.
[7]
In the circumstances, where the three accomplice witnesses were found
to be liars, there is no other evidence of the appellant’s
behaviour before the collision. This fact left the state with a motor
vehicle collision where the driver was injured and according
to some
witnesses smelt of intoxicating liquor. Professor van Gelder’s
evidence was clear that after he had considered the
state witnesses’
evidence that all the symptoms observed at the scene could point to
some other cause, such as hypoglaecemia
or concussion, which was not
refuted by the state.
[8]
This court is satisfied that the state has not raised any question of
law that should be considered by the Supreme Court of
Appeal.
[9]
The application for leave to appeal is dismissed.
C
Pretorius
Judge
of the High Court
I
agree,
L M
Molopa-Sethosa
Judge
of the High Court
Case
number A 72/2012
Heard
on 25 April 2013
For
the Applicant : Adv Du Plessis
Instructed
by Director of Public Prosecutions
For
the Respondent Adv GH Penzhorn SC
Adv
JE Howse
Instructed
by: Jose Nascimento
Date
of Judgment: April 2013