S v Pullen

• Jurisdiction: South Africa

S v Pullen
2019 (2) SACR 605 (ECG)

2019 (2) SACR p605

Citation	2019 (2) SACR 605 (ECG)
Case No	CA&R 3319/2013
Court	Eastern Cape Division, Grahamstown
Judge	Griffiths J and Rugunanan AJ
Heard	July 31, 2019
Judgment	August 29, 2019
Counsel	JW Wessels for the appellant.; Z Molomba for the state.

Flynote : Sleutelwoorde

Rape — Of mentally disabled person — Proof of — Expert evidence of clinical psychologist flawed because of inadequate compliance with requirements of questionnaire — No other evidence produced to show that accused must have known that complainant was mentally disabled — H Conviction and sentence set aside — Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, s 1.

Headnote : Kopnota

The appellant was convicted in a regional magistrates' court of raping the complainant, and was sentenced to life imprisonment, the magistrate finding that the complainant was mentally disabled as defined in s 1 of the I Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.

On appeal the appellant contended that the sexual intercourse was consensual and that he was unaware that the complainant was mentally disabled. In seeking to prove that she was indeed mentally disabled, the state called a clinical psychologist who conducted a cognitive assessment of the J

2019 (2) SACR p606

complainant A and compiled a report on her findings of the 22-year-old woman. In her report she estimated the complainant's mental age to be between the ages of 6 and 7. She had used general sexual-knowledge questioning and stated that the complainant was very shy and uncomfortable to discuss sexual issues. Under cross-examination, it appeared that, in completing the general-knowledge questionnaire, she had left out several B introductory sections. The psychologist acknowledged that if she had dealt with the questions in those sections it could have alleviated the complainant's reluctance to talk about sexual matters, and she conceded that she had missed an opportunity there. In respect of the other evidence, the magistrate found that the appellant knew the complainant and her family, and held that his denial of being aware of her mental disability was inconsistent and improbable.

Held, C that there was a duty on the clinical psychologist to have ensured that the questionnaire was complete and accurate. The failure to do so meant that the conclusion regarding the definitional category of mental disability ascribed to the complainant was distorted and her testimony rendered unreliable. (See [8].)

Held, further, that nothing emerged from the record that could be of assistance D in deciding whether the complainant's mental disability was such that she was unable to appreciate the nature and reasonably foreseeable consequences of a sexual act. In effect, the state adduced no evidence that the appellant knew that the complainant was mentally retarded. His denial that he knew the complainant was mentally disabled was not pertinently challenged in cross-examination, and the failure to challenge such evidence E left the party who called the witness entitled to assume that the unchallenged testimony was accepted as correct. (See [9] and [14].) The magistrate had been palpably incorrect in rejecting the appellant's evidence and the appeal against conviction and sentence had to be allowed. (See [20].)

Cases cited

President of the Republic of South Africa and Others v South African Rugby Football Union and Others F 2000 (1) SA 1 (CC) (1999 (10) BCLR 1059; [1999] ZACC 11): dictum in para 61 applied

Prinsloo v Road Accident Fund 2009 (5) SA 406 (SE): referred to

R v Blom 1939 AD 188: applied

R v Difford 1937 AD 370: dictum at 373 applied

S v Kubeka G 1982 (1) SA 534 (W): dictum at 537F – G applied

S v Mnguni 2014 (2) SACR 595 (GP): referred to

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

S v Van der Meyden 1999 (1) SACR 447 (W) (1999 (2) SA 79): dicta at 448g – h and 449a applied

Schneider NO and Others v AA and Another 2010 (5) SA 203 (WCC): H referred to.

Legislation cited

Statutes

The Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, s 1: see Juta's Statutes of South Africa 2018/19 vol 1 at 2-580.

Case Information

JW Wessels I for the appellant.

Z Molomba for the state.

An appeal from a conviction and sentence in a regional magistrates' court for an act of sexual penetration of a mentally disabled person, under the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. J

2019 (2) SACR p607

Order A

(i)

The appeal against conviction and sentence is allowed.

(ii)

The conviction and sentence imposed by the magistrate are set aside.

Judgment

Rugunanan AJ (Griffiths J concurring): B

[1] The appellant was charged with two counts of rape in the regional court in Port Elizabeth. The offences were alleged to have been committed on 13 January 2013 when he committed acts of sexual penetration with the complainant NQ. In count 1 it was alleged that he penetrated her anus with his penis and in count 2 it was alleged that he C vaginally penetrated her. At the commencement of the trial on 13 October 2015 the appellant pleaded not guilty to both counts. He was acquitted on count 2, but convicted on count 1, for which a sentence of life imprisonment was imposed on 28 November 2018, the magistrate having found that the complainant was mentally disabled as defined in the Criminal Law (Sexual Offences and Related Matters) Amendment Act [1] D (the Sexual Offences Act). The appeal to this court is in terms of the appellant's automatic right under s 309(1) of the Criminal Procedure Act [2] and lies against his conviction and sentence.

[2] It was common cause during the trial that the appellant did have E sexual intercourse with the complainant when he penetrated her per anum, albeit alleging, on his version, that it was consensual and that he never knew she was mentally disabled. The magistrate rejected this version as false and found that sexual intercourse was not consensual because the appellant knew the complainant was mentally disabled.

Mental disability F

[3] In s 1 of the Sexual Offences Act the definition of a person who is mentally disabled reads as follows:

'''[A] person who is mentally disabled'' means a person affected by any mental disability, including any disorder or disability of the mind, to the G extent that he or she, at the time of the alleged commission of the offence in question, was —

(a)

unable to appreciate the nature and reasonably foreseeable consequences of a sexual act;

(b)

able to appreciate the nature and reasonably foreseeable consequences of such an act, but unable to act in accordance with that H appreciation;

(c)

unable to resist the commission of any such act; or

(d)

unable to communicate his or her...