S v Heslop

• Jurisdiction: South Africa
• Citation: 2007 (4) SA 38 (SCA)

S v Heslop
2007 (4) SA 38 (SCA)

2007 (4) SA p38

Citation	2007 (4) SA 38 (SCA)
Case No	216/2005
Court	Supreme Court of Appeal
Judge	Zulman JA, Cloete JA and Mlambo JA
Heard	November 23, 2006
Judgment	November 30, 2006
Counsel	M F Miller for the appellant.; T Seboko (with D D Dakana) for the State.

Flynote : Sleutelwoorde B

Criminal procedure — Appeal — Delay in finalisation of — Directors of Public Prosecutions in High Courts to put in place safeguards to ensure that appeals, especially those by unrepresented persons, not lost in system — Delays in finalisation of appeals deny justice to persons concerned and C should be avoided at all costs.

Criminal procedure — Appeal — Record — Preparation of — Delay and failure by Registrar of Court a quo to provide explanation for such delay — Appeal Court expressing such as unacceptable.

Criminal procedure — Evidence — Assessment of — Factual inferences — From D facts not canvassed in evidence — Court entitled to draw inference only where facts upon which such inference based fully ventilated during trial — On facts, trial Court misdirecting itself by drawing inferences from facts not canvassed in evidence.

Criminal procedure — Evidence — Assessment of — Factual inferences — From E location of gunshot wounds — Appeal Court cautioning that drawing of inferences from location of gunshot wounds as to how shooting incident must have transpired notoriously difficult and usually requiring expert evidence — On facts, trial Court misdirecting itself by drawing inference adverse to credibility of appellant from location of gunshot wounds.

Criminal procedure — Evidence — Witnesses — Credibility — Interference with F trial Court's findings on appeal — Credibility findings inconsistent with proved facts — Trial Court misdirecting itself by making credibility findings inconsistent with proved facts.

Criminal procedure — Evidence — Witnesses — Credibility — Interference with trial Court's findings on appeal — Demeanour — Appeal Court to show deference to G credibility findings of trial Court in respect of demeanour — However, where trial Court's favourable credibility findings not borne out by record, appeal court more likely to interfere on appeal with weight attached to such findings and ultimate conclusion based on such findings.

Criminal procedure — Evidence — Witnesses — Calling, examination and refutation H of — Cross-examination — Disallowance of — On previous inconsistent statement — Justifying application for special entry in terms of s 317 of Criminal Procedure Act 51 of 1977 — Such disallowance also resulting in accused not receiving fair trial and rendering conviction liable to be set aside on appeal on that ground.

Criminal procedure — Trial — Irregularity in — What constitutes — Constituted I by (1) applying incorrect standard of proof; (2) accepting State's version when inconsistent with unassailable fact; (3) failing to allow cross-examination; (4) making favourable credibility findings in respect of witness's demeanour; (5) drawing inferences from location of gunshot wounds; and (6) reasoning based on matters not canvassed in evidence — J Accordingly, conviction and consequent sentences set aside on appeal.

2007 (4) SA p39

Headnote : Kopnota

The Directors of Public Prosecutions of all High Courts should put in place A safeguards to ensure that appeals, especially those lodged by unrepresented accused, are not lost in the system. Delays in the finalisation of appeals in courts of appeal deny justice to the persons concerned by preventing a speedy disposal of their cases. Such delays are to be avoided at all costs. (Paragraph [2] at 41G - 42E.)

Some ten years after the appellant was convicted of three counts of culpable B homicide and sentenced to six years' imprisonment, the Registrar of the High Court made the trial record available to the Court of appeal. Despite a request by the appeal Court for an explanation from the Registrar for the delay in making the record available, no explanation was forthcoming.

Held, that it was unacceptable that the Registrar had simply ignored the appeal Court's request for an explanation for the delay in making the record C available and the matter had been referred to the Minister for investigation. (Paragraph [2] at 41J.)

Held, further, that the Court a quo misdirected itself in a number of respects:

(1)

In applying the civil standard of proof (para [10] at 44D - H);

(2)

in accepting the State's version when it was inconsistent with the proved facts, namely, the medical evidence as to the appellant's D injuries (para [11] at 44H - 45B);

(3)

in finding that the single eyewitness was corroborated by the ballistics report (para [12] at 45B - G);

(4)

in disallowing proper cross-examination of the witness's explanation for his previous inconsistent statement (para [12] at 45G - 46G);

(5)

in finding that the single eyewitness was an 'impressive witness' when E the record showed that his performance as witness was far from satisfactory (para [13] at 46H - 47E);

(6)

in its findings of fact (para [16] at 48A - J);

(7)

in rejecting the appellant's version of the shooting incident on the basis of where on his body he was shot (para [18] at 49B - G);

(8)

in failing to have regard to the appellant's obvious merits as a witness F (para [19] at 49G - I); and

(9)

in drawing inferences adverse to the appellant from facts not canvassed in evidence (paras [20] - [21] at 49J - 50E).

Held, further, in respect of (4), that, in disallowing proper cross-examination on the witness's previous inconsistent statement, the Court a quo committed a fundamental irregularity which would have justified an application for a G special entry in terms of s 317 of the Criminal Procedure Act. It nevertheless constituted a ground of appeal in that, in consequence of that irregularity, the appellant did not receive a fair trial and his appeal had to succeed on that ground alone. (Paragraph [12] at 46D - G.)

Held, further, in respect of (5), that, while an appeal Court was required to show deference to the credibility findings of the trial Court based directly or H indirectly on the demeanour of witnesses who testified before it, where the trial court made favourable credibility findings which were not borne out by the witness's evidence as it appeared from the record, the appeal Court would more readily interfere with the trial Court's findings as to the weight to be attached to the witnesses' evidence and its ultimate conclusion based on those findings. (Paragraph [13] at 47C - E.) I

Held, further, in respect of (7), that it was notoriously difficult to draw inferences from the location of wounds, even when the tracks of wounds were known, to establish how a shooting incident must have occurred. Expert evidence was usually required. (Paragraph [18] at 49B.)

Held, further, in respect of (9), that it went without saying that it was a requirement of a fair trial that, if a court intended drawing an adverse J

2007 (4) SA p40

A inference against an accused, the facts upon which that inference was based had to have been properly ventilated during the trial before the inference could be drawn. (Paragraph [22] at 50F.)

Held, accordingly, that it could not be said that the guilt of the appellant had been proved beyond a reasonable doubt. Furthermore, the failure by the Court a quo to allow proper cross-examination of the principal witness had the B effect of denying the appellant a fair trial. Appeal allowed and convictions and sentences set aside. (Paragraph [23] at 50G - H.)

Cases Considered

Annotations

Reported cases

President of the Republic of South Africa and Others v South African Rugby C Football Union and Others2000 (1) SA 1 (CC) (1999 (10) BCLR 1059): referred to

R v Ntshangela en Andere1961 (4) SA 592 (A): dictum at 599 applied

S v Cele1965 (1) SA 82 (A): dictum at 90H applied

S v Gentle2005 (1) SACR 420 (SCA): dictum at 430j - 431a applied

S v Jaipal2005 (1) SACR 215 (CC): dictum in para [39] applied D

S v M2006 (1) SACR 135 (SCA): referred to

S v Pretorius en 'n Ander1991 (2) SACR 601 (A): dictum at 609h - j applied

S v Senatsi and Another2006 (2) SACR 291 (SCA): dictum in para [11] applied

S v Shackell2001 (4) SA 1 (SCA) (2001 (2) SACR 185; [2001] 4 All SA 279): dictum in para [30] applied E

S v Stevens[2005] 1 All SA 1 (SCA): referred to

S v Trainor2003 (1) SACR 35 (SCA): referred to

S v Van Aswegen2001 (2) SACR 97 (SCA): referred to

S v Van der Meyden1999 (2) SA 79 (W) (1999 (1) SACR 447): dictum at 82D (SA) applied

Sefatsa and Others v Attorney-General, Transvaal, and Another F 1989 (1) SA 821 (A): dictum at 843F - 844B applied.

Statutes Considered

Statutes

The Criminal Procedure Act 51 of 1977, s 317: see Juta's Statutes of South Africa 2005/6 vol 1 at 1-403.

Case Information

G Appeal from a conviction in the Witwatersrand Local Division (Mailula J). The facts appear from the judgment of Cloete JA.

M F Miller for the appellant.

T Seboko (with D D Dakana) for the State.

H In addition to the authorities cited in the judgment of the Court, counsel for the parties referred to the following:

African Eagle Life Assurance Co Ltd v Cainer1980 (2) SA 234 (W) at 237E - 238A

Ex parte Die Minister van Justisie: In re S v Van Wyk1967 (1) SA 488 (A) I

Kgaleng v Minister of Safety and Security and Another2001 (4) SA 854 (W) at 866A - B

Kibido v S [1998] 3 All SA 72 (SCA)

National Employers Mutual General Insurance Association v Gany1931 AD 187 at 199

Ntsomi v Minister of Law and Order1990 (1) SA 512 (C) J

2007 (4) SA p41

R v Bird[1985] 1 WLR 816 (CA) A

R v Dhlumayo and Another1948 (2) SA 677 (A)

R v Difford1937 AD 370

R v Mtembu1950 (1) SA 670 (A)

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