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[2013] ZAKZPHC 15
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Haripersadh v S (AR594/11) [2013] ZAKZPHC 15 (14 March 2013)
In the
KwaZulu-Natal High Court, Pietermaritzburg
Republic
of South Africa
Case No : AR594/11
In the matter between
Suresh Haripersadh
..........................................................................................
Appellant
and
The
State
......................................................................................................
Respondent
Judgment
Lopes J
[1] On the 13
th
September 2009 the appellant, a 56 year old male, was arrested and
charged with the crime of rape in that on or about the 24
th
August 2009 and near Malakazi he raped the complainant, a ten year
old girl. On the 9
th
March 2011 he pleaded not guilty and
on the 10
th
March 2011 he was convicted and sentenced to
undergo 12 years imprisonment.
[2] This matter comes
before us by way of leave to appeal granted by the learned magistrate
on the 15
th
July 2011.
[3] As the attitude of
the learned magistrate, which is demonstrated throughout the trial,
impacts upon the fairness and justice
of the conviction of the
appellant, it is unfortunately necessary to comment upon a number of
issues in that regard .
[4] When the charge was
put to the appellant the magistrate is recorded as saying to the
prosecutor :
‘
Don’t
worry with all the sections. Just put the charge against the
accused.
’
This is an unfortunate
approach on the part of the magistrate. The sections to which she
refers are those sections of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 2007
and
s 51
of the
Criminal Law
Amendment Act, 1997
. The provisions of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act, 2007
which are listed in
the charge are important and relate to definitions and the
applicability of various defences and the approach
to be adopted by
the magistrate with regard to the evidence. (It is unclear whether
the charge sheet intends to refer to
s 69
of the Act, or, whether
that was intended to be a reference to
s 60).
[5] The provisions of
s
51
of the
Criminal Law Amendment Act 1997
deal with the minimum
sentencing provisions for crimes such as rape. It is important that
every accused person should understand,
before the charge is put to
them,
that it is read together with any relevant
minimum sentencing provisions.
[6] That this is an
important factor is demonstrated by the fact that the prosecutor,
alive to the necessity that the appellant
be apprised of those
provisions, later asked the learned magistrate to enquire from the
appellant’s legal representative
whether he had explained the
provisions of
s 51
to the appellant. When the learned magistrate
asked the appellant’s legal representative whether he had
explained those provisions
to the appellant, he said that he had not.
The learned magistrate is then recorded as saying
‘
Please
do so. Proceed. Lead your evidence please. Please proceed.’
The attitude of the
learned magistrate, which is evident throughout the trial and to
which I shall refer to further below, demonstrates
an impatience to
get on with the matter and shows scant regard for the proper conduct
of the trial. It is unhelpful to have an
accused person plead to a
charge without fully understanding the nature and import of it. To
have the legal representative of an
accused explain the import of the
charge after it has been put and the accused person has pleaded,
is unhelpful. A full and proper explanation of the
various statutory provisions,
together with which
a common law charge is to be understood,
should
be fully explained to an accused person prior to the plea stage in
the trial. It is only when an accused person has a proper
understanding of the charge levied against them that they are able to
arrive at a reasoned decision as to how they should plead.
[7] When an accused
person is legally represented, the presiding officer may be inclined
to accept that the accused has been fully
appraised of the charge
which he faces and the implications of any statutory provisions
contained in the charge sheet, which, in
the ordinary course, one
would not expect an accused person to be familiar with or to be able
to understand without explanation.
However, where, as in this case,
the learned magistrate requires that the charge sheet be read without
reference to the statutory
provisions, and then becomes aware that
the appellant’s legal representative has not explained them to
him, but allows the
trial to continue anyway, then the learned
magistrate has failed in her duty to ensure that the appellant’s
rights are protected.
[8] Where, as in the
present matter, the learned magistrate became fully aware of the fact
that the legal representative of the
appellant had failed in that
duty, it was incumbent upon the learned magistrate to stop the
proceedings and ensure that the appellant
is properly apprised of his
legal rights before proceeding with the trial.
[9] The impatience of the
learned magistrate to have the evidence disposed of is indicated in
the following exchanges :
(i) when the appellant’s
legal representative was attempting to explain why the defence was
disputing the contents of the
J88 document the learned magistrate
interrupted him and stated :
‘
Lead
your evidence, please.
’
(ii) when the prosecutor
was leading the complainant’s mother, and before the prosecutor
had a chance to finish his examination
in chief the learned
magistrate asked :
‘
Any
further questions?
’
(iii) When the
appellant’s legal representative started cross-examining the
complaint, he questioned her on the distance from
where she met the
appellant on the day in question to his house, where he was alleged
to have taken her. When the complainant said
:
‘
It’s
very far
’
the legal representative
decided to leave that issue and the learned magistrate said :
‘
Yes,
a young child like this it is doubtful. Any further questions?
’
At this stage the
appellant’s legal representative had asked approximately ten or
eleven questions and had not yet begun to
deal with the issues in
dispute. After he had asked another five questions the prosecutor
objected to the fact that the complainant
was being asked a question
which she had already answered. The learned magistrate then stated :
‘
I
think move on. Any further questions?
’
(iv) The appellant’s
legal representative attempted to explore the relationship between
the appellant and the father of the
complainant. In particular when
he sought to explore the attitude of the mother of the complainant to
the friendship between the
father of the complainant and the
appellant, the learned magistrate intervened on a number of occasions
suggesting to the legal
representative that he had already canvassed
the relationship between the father of the complainant and the
appellant. After putting
to the legal representative three times that
he had already canvassed that issue she continued :
‘
Any
further questions based on the evidence that’s been given?
At that stage the legal
representative was attempting to explore the suggestion that the
mother of the complainant had a motive
for implicating the appellant
in the rape of the complainant. The motive was that she did not like
the fact that the father of
the complainant visited the appellant.
Given the instructions which were obviously given to the legal
representative it was incumbent
on him to explore this issue fully.
The legal representative cannot in any way be said to have been
bullying the complainant or
being unduly repetitive in his
questioning.
In my view the learned
magistrate’s interventions in the cross-examination of the
complainant were both unnecessary and demonstrated
again her
impatience to finish the trial.
[10] Immediately after
the previous interventions the learned magistrate questioned the
appellant’s legal representative regarding
the defence case.
She asked :
‘
Is
the accused denying seeing the child on that day or what?’
This followed an earlier
exchange where the learned magistrate had asked the legal
representative of the appellant whether he admitted
that the
complainant correctly identified him or whether it was necessary to
conduct a pointing out. She then requested that the
legal
representative record his answer as an admission.
[11] At the outset of the
trial, and after the appellant pleaded, his legal representative had
recorded that the defence elected
to remain silent, that there would
be no
s 115
statement forthcoming from the appellant, and that he
would make no
s 220
admissions.
[12] In my view it is
improper for the learned magistrate to have requested that something
put by the appellant’s legal representative
to the complainant
be recorded as a
s 220
admission. Judicial officers should not,
during the course of cross-examination, interfere with the legal
representative of an
accused in order to extract admissions regarding
the elements which the State is required to prove. If any question
which is asked
by a legal representative seems unclear it is
perfectly proper for a judicial officer to intervene in order to
obtain clarity on
the question. That is not what was occurring here.
[13] After the
complainant had completed her evidence the learned magistrate
suggested to the prosecutor that when it is necessary
to call a
doctor in a trial, the doctor should be phoned in the morning in
order to enable him/her to travel in order to avoid
court delays.
There was nothing improper in her doing this.
[14] However when the
appellant’s legal representative indicated that he wanted to
question the doctor the learned magistrate
said :
‘
Give
me the doctor’s name and telephone. Then I’ll phone him
or her quickly. Then while we ‘re testifying I am
hoping that
the doctor can then travel here. If you do it last minute, then it’s
very hard to get them. They go into theatre
and all sorts. What’s
the doctor’s name? I’ll stand down for a few minutes and
phone.
’
[15] Although the record
appears to indicate that the learned magistrate did not ultimately
phone the doctor, it is the attitude
of the learned magistrate and
her willingness to intervene in the prosecution case which is
alarming.
[16] It is not the
function of any judicial officer to ensure that witnesses attend
court by going to the lengths of telephoning
them and asking them to
attend. That is the function of the prosecutor, or, in the event that
a witness is called by the court,
by one of the legal representatives
involved in the trial or the court staff. It ill behoves a judicial
officer to descend into
the conduct of a prosecution by becoming
involved in arranging for the attendance of witnesses.
[17] The message, which
the learned magistrate was giving to the accused by her statement
that she would phone the doctor to ensure
his attendance, suggested
an association between the learned magistrate and the doctor which
immediately called into question the
impartiality of the court.
Although a judicial officer in criminal proceedings is not in the
position of a referee, and is occasionally
obliged to ensure that
witnesses are called, an accused’s perception of impartiality
on the part of the court must be carefully
and zealously guarded.
[18] The learned
magistrate’s conduct in this regard has the undesirable
consequence that it reinforces the overall impression
in the record
that she merely wanted to have the case disposed of as quickly as
possible. Whilst any steps to ensure the expeditious
conduct of legal
proceedings are to be applauded, they must always be subject to the
legal principle that justice must be seen
to be done.
[19] The fair and just
prosecution of the appellant was further hampered when the appellant
gave evidence. At the outset of his
evidence his legal representative
made it clear that the appellant had a hearing problem. In fact the
court recorded that everyone
would have to speak louder because the
appellant was hard of hearing. This was amply demonstrated by the
first series of questions
which were asked of him. He was asked
whether he knew the child that was giving evidence he said he did
not. He was then asked
whether he knew the complainant who was named.
He said :
‘
I
know the man.
’
and when he was asked to
speak louder, he said :
‘
I
know this man.
’
[20] The record shows
that it was then put to the appellant that it can be seen that his
mouth is moving and he is making sounds,
but that the words which he
is uttering cannot be heard. Although it is unclear from the record
it seems likely that this was put
to him by the learned magistrate
rather than his legal representative.
[21] The evidence of the
appellant demonstrates an extensive degree of confusion on his part
as to the basis of his defence. He
related two separate alibis, one
allegedly for the 24
th
August 2009, the date on which the
complainant was attacked. He testified that he had gone to work, he
had left work after a short
while going to the doctor before
returning home late in the afternoon. Repeating that this was the
24
th
August, it was put to him that the complainant said
that he had raped her on the 24
th
August 2009, and he was
asked whether this was the same day he was talking about when he went
to work, became ill and then went
to the doctor. The appellant
replied that it was not and that the day he went to the doctor was
not the same day the complainant
alleged she was raped. He then said
that on that day he had gone to work at 7.30 and finished at 4.30 in
the afternoon.
[22] Whether as a result
of his poor hearing, confusion over the instructions which he gave to
his legal representative, a level
of confusion in his own mind as to
the dates which were not dealt with properly in consultation with his
legal representative prior
to the trial, or simply that he was an
extremely poor witness because of his guilt, the evidence of the
appellant can only be described
as a shambles. Indeed, his evidence
was so poorly presented that it fell to be rejected without even the
appellant being cross-examined.
[23] It is clear from the
record that more should have been done, both by the appellant’s
legal representative and the learned
magistrate to ensure that the
appellant gave his evidence in a manner which adequately resolved the
suspicion that he may not have
been hearing the questions properly,
and if he did, that he properly understood the import of them.
[24] What is the result
of all of the aforegoing? Does it mean that the trial of the
appellant was so poorly conducted that he has
been prejudiced in his
defence and that it would be unsafe for this court to rely upon the
conviction, or is the evidence sufficient
to have convicted him in
any event?
[25] To answer this
question one also needs to look at the content of the remainder of
the evidence. The evidence of the complainant
is not satisfactory.
She gave evidence that she had only been raped once by the appellant,
and related how that had happened. However,
when her mother gave
evidence she said that the complainant had told her that the
appellant had put sellotape over her mouth and
tied her hands behind
her back when she was coming from school. This had formed no part of
the evidence of the complainant.
[26] The mother of the
complainant said that the complainant had told the social workers
that the incident occurred three times
to her (the complainant). The
complainant’s mother later said the doctor told her that the
complainant had said that she
was sexually abused three times. This
did not emerge in the evidence of the complainant.
[27] The learned
magistrate in her judgment records that she views these
contradictions in the evidence between the complainant
and the
complainant’s mother as being a case of omission on the part of
the complainant rather than contradiction, in that
she was not asked
about other days and did not mention that she had been raped on other
days. Be that as it may, one would have
expected the prosecution to
be alive to the number of times which the complainant had been raped
and to have asked questions which
would have elicited these facts.
That was not done.
[28] When the complainant
was asked whether the appellant had done one, two or three things to
her, she said :
‘
No
.
’
[29] In her evidence the
complainant, when asked whether her mother had made any comments
about her father visiting the appellant,
she said :
‘
She
would say that she didn’t like the fact that Suresh was
touching my breasts.
’
This was a remarkable
piece of evidence indicating some prior knowledge on the part of the
complainant’s parents of improper
conduct on the part of the
accused towards the complainant.This evidence was seemingly ignored
by the learned magistrate and the
prosecutor, and not in any way
dealt with in the evidence of the complainant’s mother.
[30] A further
disquieting aspect is the contents of the J88 Medical Examination
Form compiled by Dr S Govender on the 14
th
September 2009. This examination was apparently
conducted after the arrest of the appellant. Dr Govender concludes in
her report
that her findings are consistent with vaginal penetration.
This is despite the fact that every aspect of her gynaecological
examination,
as recorded in her report are recorded as ‘
Normal
’
,
‘
Nil
’
,
‘
Not done
’
or ‘
Not
examined
’
. The only exceptions to this are
the recording of clefts at four and seven o’clock and a
discharge which is white in colour.
The recordal of clefts is
consistent with the schematic drawing of her findings indicating
healed scars in those positions. No
expert evidence was put before
the court explaining what this meant, or how this contributed to the
doctor’s conclusions,
yet the learned magistrate was happy to
rely upon the doctor’s conclusions.
[31] The findings of the
doctor, however, appear to have been based on information conveyed to
her by the complainant’s mother.
This is evident from her
clinical findings where she records :
‘
History
from mother. A known male has sexually assaulted her child several
times. Dates and times are not known.
History
from child : a known male “raped” her.
No
further history
’
The notes by the doctor
appear to indicate that she asked the complainant’s mother when
the rapes had taken place, but the
complainant’s mother was
unable to say when. This is in apparent contradiction to the evidence
of the complainant’s
mother where she identified the date of
the 24
th
August as
being the date upon which the complainant was first raped. She refers
to that date, apparently because the complainant
had arrived home
late from school on that date and she had taken a sjambok to her
because she was late. At that time or later,
she noticed that the
complainant had wet herself. The complainant’s mother later
contradicted her evidence and said that
she only noticed in September
that the complainant was wetting herself,
whereupon
she examined her and noticed an injury on her private parts.
[32] Although I am not
suggesting that the complainant’s evidence should be
disbelieved in its entirety, nor indeed that the
complainant was not
raped, the conclusion with which one is left after reading the trial
record is an overwhelming feeling of disquiet.
[33] There is a
discourteous, unseemly and injudicious haste in the learned
magistrate’s conduct of the proceedings. This
placed an
unnecessary and unwarranted urgency on the proceedings and cast a
subliminal shadow of subtle pressure to move on at
pace, and was
applied to both the State and defence representative. Indeed, in this
court there was a concession by Mr
du Preez
, counsel for the
State, that it seems from the record that the appellant’s legal
representative was pressured into accepting
the J88 when he had
initially indicated that he wanted to question the doctor. This
resulted in an unquestioning acceptance of
the doctor’s
conclusions which seems to have been undesirable in the
circumstances.
[34] Given the conduct of
the trial, the behaviour of the learned magistrate, the conduct of
the appellant’s legal representative,
the lack of hearing on
the part of the appellant and the effect that this manifestly had
upon the evidence which he gave, I am
left with the conclusion that
this court cannot safely rely upon the conviction. This is not a case
where the appellant has demonstrated
his innocence, but rather that
interference by the learned magistrate, and the ineptitude of the
prosecution and the defence have
led to a situation where he did not
have a fair trial. This was also conceded by Mr
du Preez
.
[35] It is both sad and
regrettable that the administration of justice should have failed the
complainant in this matter. Judicial
officers should always be astute
to ensure that hearings are conducted in an appropriate way. They
should not allow their frustrations
and impatience to cause them to
dispense justice in undue haste, and with scant regard for the rights
of accused persons.
[36] The Registrar is
directed to deliver a copy of this judgment to the learned magistrate
for her to note the above comments.
[37] In the circumstances
the appeal succeeds, and I propose that the conviction and sentence
are set aside.
_________________
Lopes J
________________
Kruger J : I agree
_________________
VahedJ : I agree.
Date of hearing : 8
th
March 2013
Date of judgment : 14
th
March 2013
Counsel for the Appellant
: S Franke (instructed by Legal Aid)
Counsel for the
Respondent : R du Preez (instructed by the Director of Public
Prosecutions)