S v McLaggan (CC70/2011) [2012] ZAECGHC 78; 2013 (1) SACR 267 (ECG) (4 October 2012)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)

CASE NO: CC70/2011

Date Heard: 28 September 2012

Date Delivered: 4 October 2012

In the matter between:

IAIN CAMERON McLAGGAN ..............................................................................Applicant

and

THE STATE .....................................................................................................Respondent

______________________________________________________________________

JUDGMENT

(APPLICATIONS FOR LEAVE TO APPEAL)

GOOSEN, J:

The applicant was convicted of rape on 20 August 2012 and sentenced on 28 September 2012. He now seeks leave to appeal against his conviction. The Director of Public Prosecutions, representing the State, also seeks leave to appeal, in terms of section 316B of the Criminal Procedure Act, 51 of 1977, against the sentence imposed on the applicant. Although both applications were made immediately after sentence was delivered both the applicant and respondent filed their respective notices of application for leave setting out the grounds upon which

leave to appeal was sought. I shall deal with each of these applications in turn hereunder.

The notice of application for leave to appeal filed on behalf of the applicant is a lengthy document comprising some 33 typewritten pages. The “grounds” of appeal are set out in 36 paragraphs, one of which consists of 57 sub-paragraphs. Although the respondent did not take issue with the form of the notice of application and this issue was not addressed in argument before me, I nevertheless consider it appropriate to deal with this aspect before addressing the merits of the application for leave to appeal.

In terms of section 316 of the Criminal Procedure Act an accused person convicted of any offence may apply for leave to appeal against such conviction or any resultant sentence or order. Such application must be made within 14 days after the passing of sentence or the making of the order. Subsection (4) provides as follows:

“(a) Every application for leave to appeal must set forth clearly and specifically the grounds upon which the accused desires to appeal.

If the accused applies orally for such leave immediately after the passing of sentence or order, he or she must state such grounds, which must be recorded and form part of the record.”

In S v Van Heerden 2010 (1) SACR 539 (ECP) at par. 17, Liebenberg J, dealing with an application for leave to appeal, held that the principles set out in relation to a civil application for leave in Songono v Minister of Law and Order 1996 (4) SA 384 (E) apply equally in criminal cases.

In the Songono matter, Leach J (as he then was) was called upon to consider what was required in an application for leave to appeal made pursuant to Rule 49(1)(b) of the Uniform Rules. The learned judge was there dealing with an application for leave in a form not dissimilar to that which is now before me, which he described (at 385C – E) in the following terms:

“In attempted compliance therewith the applicant filed a document headed ‘Application for Leave to Appeal’, in which he purported to set out the grounds upon which leave to appeal was to be sought. These so-called ‘grounds’ constitute a diatribe of some 17 pages criticising the judgment, analysing (at times incorrectly) certain of the evidence and the findings made, putting forward certain submissions and quoting various authorities. This lengthy, convoluted and at times disjointed criticism of the judgment did not clearly and succinctly spell out the grounds upon which leave to appeal is sought in clear and unambiguous terms - ….”

The learned judge then went on to set out the applicable principles (at 385F – 386B) in terms which bear repeating in full, as follows:

“I am not aware of any judgment dealing specifically with grounds of appeal as envisaged by Rule 49(1)(b); however, Rule 49(3) is couched in similar terms and also requires the filing of a notice of appeal which shall specify ‘the grounds upon which the appeal is founded’. In regard to that sub-rule it is now well established that the provisions thereof are peremptory and that the grounds of appeal are required, inter alia, to give the respondent an opportunity of abandoning the judgment, to inform the respondent of the case he has to meet and to notify the Court of the points to be raised. Accordingly, insofar as Rule 49(3) is concerned, it has been held that grounds of appeal are bad if they are so widely expressed that it leaves the appellant free to canvas every finding of fact and every ruling of law made by the court a quo, or if they specify the findings of fact or rulings of law appealed against so vaguely as to be of no value to either the Court or the respondent, or if they, in general, fail to specify clearly and in unambiguous terms exactly what case the respondent must be prepared to meet – see, for example, Harvey v Brown 1964 (3) SA 381 (E) at 383; Kilian v Geregsbode, Uitenhage, 1980 (1) SA 808 (A) at 815 and Erasmus Superior Court Practice B1-356-357 and the various authorities there cited.

It seems to me that, by parity of reasoning, the grounds of appeal required under Rule 49(1)(b) must similarly be clearly and succinctly set out in clear and unambiguous terms so as to enable the Court and the respondent to be fully and properly informed of the case which the applicant seeks to make out and which the respondent is to meet in opposing the application for leave to appeal. Just as Rule 49(3) is peremptory in that regard, Rule 49(1)(b) must also be regarded as being peremptory. In my view the lengthy and rambling notice of appeal file in casu falls woefully short of what is required. Mr Bursey suggested that grounds of appeal could be gleaned from the notice but that is not the point – the point is that the notice must clearly set out the grounds and it is not for the Court to have to analyse a lengthy document in an attempt to establish what grounds the applicant intended to rely upon but did not clearly set out. On this basis alone the application seems to me to me fatally defective and must be dismissed.”

These remarks and the principles espoused therein were specifically approved by the Full Court of this division in Xayimpi and Others v Chairman Judge White Commission (formerly known as Browde Commission) and Others [2006] 2 All SA 442 (E). The approach was also applied in a carefully reasoned judgment by Thring J in S v McKenzie 2003 (2) SACR 616 (C).

The notice of application in this instance sets out an elaborate discussion of and analysis of the minutiae of the judgment and the evidence which apparently exists to contradict it. At times the “grounds” are couched in exaggerated terms reflecting the apparent failings of the judgment. Reference is made to authorities and in many respects the so-called grounds of appeal are formulated as submissions ordinarily advanced in argument. The tone indicates a lack of respect.

Perhaps the clearest indication of this is to be found in a concluding submission which is presented as a “ground” of appeal. In it the applicant’s counsel asserts that:

“In generalised terms it is respectfully submitted that the Court allowed the State to repeatedly ambush the defence with new evidence, new facts and with applications such as in ito s158 (sic) of the Criminal Procedure Act: the Court was entirely aware that the Applicant was running on a very limited budget (despite this, 3 court days were wasted entirely at the instance of the State) and specialist witnesses were called in circumstances where the Applicant was unable to afford to call any witness to contradict or challenge such witness.”

The allegation contained in this submission is a serious one, the import of which cannot be ignored. The submission carries with it the imputation of deliberate bias exercised in favour of the prosecution. If that indeed were found to be substantiated it would constitute a grave failure of justice. If the applicant wished to raise this as a basis upon which leave to appeal was to be sought then the proper procedure would have been to have applied, in terms of section 317 of the Criminal Procedure Act, for a special entry relating to this alleged irregularity to be made into the record and thereafter to prosecute the appeal on such basis. That has not been done. Instead an inappropriate and groundless submission is made in a notice of application for leave to appeal which serves no purpose other than to impugn the integrity of the Court.

Legal practitioners are, of course, required to represent their clients fearlessly and ought never to baulk at confronting injustice even where it may earn the displeasure of a court. Yet they remain bound to comply not only with the rules of practice but also with the rules of etiquette and to ensure that their conduct meets the high standards of ethics the profession demands. Where they do not do so, they do not serve the best interests of their clients.

Notwithstanding my misgivings about the form of the notice of application for leave to appeal I do not consider that it would be appropriate to dispose of this application by striking it from the roll or postponing it so that the notice of appeal can be corrected. Such a course would prejudice the applicant for the failure by his legal practitioner to prepare an appropriate notice of application. In the light of what I set out hereunder regarding the merits of the application, the defects in the notice of application may be overlooked.

The test to be applied in determining whether or not leave to appeal should be granted is well settled. Leave to appeal will be granted where there is a reasonable possibility that another court may come to a different conclusion either on the facts or law or both. In this instance the finding that the state proved the guilt of the applicant beyond a reasonable doubt involved consideration of the evidence of a single witness on certain critical aspects. It involved also an assessment of the reliability of the complainant’s evidence in circumstances where it was common cause that she had been intoxicated; had suffered a series of seizures which would have had and did have an effect upon the complainant’s state of mind and her ability to recall and or relate events. The judgment also involved the consideration of the probabilities relevant to mutually destructive versions of events.

In the light of this it cannot, in my view, be said that there is no reasonable possibility that another court may come to different conclusions in respect of the various findings of fact made by me. I need not of course be persuaded that there is any probability that this may be so, only that it is reasonably possible. For this reason leave to appeal against the conviction must be granted.

Insofar as the application of the respondent for leave to appeal against the sentence is concerned, the essential ground upon which reliance is placed is that I erred in finding that substantial and compelling circumstances exist which would justify the imposition of a sentence less than that prescribed. The effect of this error was that I imposed a sentence which is too lenient having regard to the nature of the offence and the aggravating features attendant upon the commission of the offence.

An appeal court does not readily interfere with the exercise of a trial court’s discretion in the imposition of sentence. Where however the exercise of such discretion

is dependant upon a finding of fact regarding the existence or otherwise of substantial and compelling circumstances, I need only be satisfied that there is a reasonable prospect that a court of appeal may come to a different finding of fact in this regard. If so satisfied leave ought to be granted to appeal against the sentence imposed. In this instance I am indeed satisfied that there is a reasonable prospect that another court may find that those mitigating factors found to be present in this matter, even cumulatively considered, do not constitute substantial and compelling circumstances justifying the imposition of a sentence less than that prescribed by section 51(2) of Act 105 of 1997.

I accordingly make the following order:

The applicant is granted leave to appeal to the Full Court against his conviction on a charge of rape. The respondent is granted leave to appeal to the Full Court, in terms of section 316B of the Criminal Procedure Act, against the sentence imposed upon the applicant.

__________________________

GG GOOSEN

JUDGE OF THE HIGH COURT

APPEARANCES:

FOR THE APPLICANT: Mr T Price, instructed by Roelofse Inc

FOR THE RESPONDENT: Mrs N Turner, instructed by the

Director of Public Prosecutions