S v De Graaff (488/90) [1991] ZASCA 140 (27 September 1991)

S v De Graaff (488/90) [1991] ZASCA 140 (27 September 1991)

The majority (Nestadt JA, Grosskopf JA concurring) held that, despite contradictions between the complainants, the essential elements of indecent assault were proved beyond reasonable doubt. The appellant's own evidence confirmed much of the complainants' version, and the opportunity and inclination to commit the offences were established. The cautionary rule was satisfied, and the appellant's explanations were not accepted as reasonably possibly true. The appeal was dismissed. In dissent, Nienaber JA found the evidence too thin and contradictory to sustain a conviction, holding that the discrepancies between the complainants undermined their reliability, and the appellant's explanation...

Citation
[1991] ZASCA 140
Parties
Appellant: David Barry De Graaff; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 September 1991
Case Number
488/90
Procedural Posture
Criminal Appeal / Appeal Against Conviction
Outcome
Appeal dismissed (majority); dissenting judgment would have upheld the appeal and acquitted the appellant.
Judges
Nestadt, F H Grosskopf, Nienaber
Legal Topics
Indecent Assault, Cautionary Rule, Credibility of Child Witnesses, Mens Rea, Fair Trial Rights
Criminal Law Indecent Assault Cautionary Rule Credibility of Child Witnesses Mens Rea Fair Trial Rights

Case Brief

Summary, issues, holding and outcome

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Parties

David Barry De Graaff

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction

Legal Issues

  1. 1 Whether the evidence of the complainants was sufficiently reliable to sustain a conviction for indecent assault.
  2. 2 Whether the cautionary rule applicable to child witnesses in sexual offence cases was properly applied.
  3. 3 Whether the appellant acted with the necessary mens rea to commit indecent assault.

Ratio Decidendi

The majority (Nestadt JA, Grosskopf JA concurring) held that, despite contradictions between the complainants, the essential elements of indecent assault were proved beyond reasonable doubt. The appellant's own evidence confirmed much of the complainants' version, and the opportunity and inclination to commit the offences were established. The cautionary rule was satisfied, and the appellant's explanations were not accepted as reasonably possibly true. The appeal was dismissed. In dissent, Nienaber JA found the evidence too thin and contradictory to sustain a conviction, holding that the discrepancies between the complainants undermined their reliability, and the appellant's explanation...

Court Disposition

Appeal dismissed (majority); dissenting judgment would have upheld the appeal and acquitted the appellant.

Orders

  • The appeal is dismissed.