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[2007] ZAWCHC 49
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S v Krieling (SS256/2006) [2007] ZAWCHC 49; 2008 (1) SACR 84 (C) (20 August 2007)
|REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
Case
No: SS256/2006
In the matter between:
THE STATE
and
HENRY
KRIELING
Accused
Coram: Yekiso
J
Heard: 6
June 2007 & 1 August 2007
Delivered: 20
August 2007
Summary:
Quantum
of proof/sufficiency of evidence:
judicial officers to be vigilant in the assessment and the evaluation
of evidence to eliminate any possible risk of a conviction
on basis
of evidence of doubtful quantum.
Women
and children:
vulnerable members of society; whilst accepting that women and
children are vulnerable members of our society, their vulnerability
should not be allowed to be a substitute for proof beyond reasonable
doubt or cloud the threshold requirement of proof beyond reasonable
doubt.
REASONS
FOR THE ORDER GIVEN ON 1 AUGUST 2007
HANDED
DOWN ON 20 AUGUST 2007
YEKISO,
J
This is one of those
matters which relate to the committal of an accused person to the
High Court for consideration of an appropriate
sentence after a
conviction in the regional court of an offence referred to in Part 1
of Schedule 2 to the
Criminal Law Amendment Act, 105 of 1997
. The
accused was charged in the regional court, Parow, with one count of
rape. The allegation against the accused was that
on two separate
occasions on 9 October 2003, and at or near Durbanville, within the
regional division Western Cape, the accused,
an adult male person,
wrongfully and intentionally had sexual intercourse with the
complainant, one L, a female person, without
her consent. It
transpired in the course of trial that the complainant is the
accusedâs stepdaughter.
The trial, which
culminated in the conviction of the accused, commenced before Ms M C
Lehman, regional magistrate, Parow on 11 August
2005 and was
concluded on 7 March 2006, when the accused was convicted of rape as
charged. Once convicted, the magistrate became
of the view that
the offence of which the accused was convicted is an offence
referred to in
Part 1
of Schedule 2 to the
Criminal Law Amendment
Act which
carries potential punishment in excess of the jurisdiction
of the regional court, hence the referral of the matter to this
Court
for consideration of an appropriate sentence. The magistrate
adopted this view ostensibly because of the age of the complainant,
who was fourteen years of age when the offence was allegedly
committed and sixteen years of age when she tendered her evidence
at
trial. Thus the complainantâs age appears to have been the prime
consideration in the view and the conclusion of the magistrate
that
the matter be referred to this Court for consideration of an
appropriate sentence.
The view I take in the
matter is that there was not presented before the magistrate a
sufficient body of evidence on basis of which
a judicial officer
could return a verdict of guilt beyond reasonable doubt. Briefly
stated, the complainantâs evidence was
that on the day of the
alleged commission of the offence the accused had sexual intercourse
with her, on two separate occasions,
without her consent; on the
first such occasion sexual intercourse took place in the main
bedroom and on the second occasion in
her own bedroom; that the
accused was armed with a knife with which he threatened to harm her;
that the beds on each of the bedrooms
where sexual intercourse took
place were covered with bedspreads; that she had her menstrual cycle
at the time she was sexually
molested; that the accused did indeed
penetrate her on both occasions; that it was the first time she had
a sexual encounter in
her life and that the experience was extremely
painful; that apart from having washed her face, she did not wash
herself after
the incident but only changed her sanitary pad and,
finally, that after the accused had penetrated her, the accusedâs
penis was
full of blood and that she could see blood thereon.
When examined by a
medical practitioner later in the day, the latter could not find
any evidence of sexual assault; the medical
report tendered in
evidence does not contain any conclusion consistent with sexual
assault and this was verified in evidence at
trial by the medical
practitioner who examined her shortly after the incident; she threw
away the sanitary pad she had on despite
the probability that it
could have contained incriminating evidence of sexual assault which
probably could have been obtained through
DNA analysis; the
bedspreads on each of the two beds where the incident was alleged to
have taken place were seized by the police,
yet no evidence was
tendered to indicate whether or not any incriminating evidence was
found thereon arising from the analysis
thereof.
Once I had considered
this body of evidence, I addressed a letter to the magistrate and
raised with her the issues indicated in
the preceding paragraph. I
sought to ascertain from the magistrate whether the issues I raised
with her were not sufficient to
constitute doubt if the accusedâs
guilt was proved beyond reasonable doubt. In a lengthy response to
my query the magistrate
persists in her view that the accusedâs
guilt had been proved. With the greatest of respect, the response
by the magistrate
did nothing to allay the concerns I had in the
quantum of evidence on basis of which the accused was convicted.
It is specifically
for this reason that I could not confirm the
conviction and subsequently made an order setting the conviction
aside. When I made
the order setting the conviction aside, I
pointed out to the accused that such an order was not equivalent or
tantamount to an
acquittal. I specifically pointed out to the
accused that the State would be at liberty in future to recharge the
accused on the
same set of facts should the State wish to do so,
provided always that sufficient evidence would be tendered at any
subsequent
trial to justify a conviction.
Finally, may I point out
that conviction of an offence referred to in
Part 1
of Schedule 2 to
the
Criminal Law Amendment Act has
a potential to attract a heavy
punishment, particularly in the light of the seriousness of the
offences referred to in the aforementioned
Schedule. Judicial
officers ought to be vigilant in the assessment and the evaluation
of evidence to eliminate a risk of conviction
on basis of evidence
of doubtful quantum. The complainants in matters of this nature,
unfortunately, happen to be the most vulnerable
members of our
society. But, I have said it in the past, and I am saying it once
again, the vulnerability of this section of
our society should not
be allowed to be a substitute for proof beyond reasonable doubt or
to cloud the threshold requirement of
proof beyond reasonable doubt.
Judicial officers ought to and are expected to properly and
objectively evaluate evidence as a
whole and against all
probabilities in order to arrive at a just and fair conclusion.
Anything falling short of this test is
nothing other than
miscarriage of justice.
____________________
N J Yekiso, J