S v R.R and Another (13919/2013, 17/2013, BSH 9/2013) [2016] ZAWCHC 2 (7 January 2016)

S v R.R and Another (13919/2013, 17/2013, BSH 9/2013) [2016] ZAWCHC 2 (7 January 2016)

The conviction of accused no. 2 under count two for contravening s 5(2) of the Sexual Offences Act was incompetent because the charge sheet was fundamentally defective and did not identify any cognisable sexual offence. The charge sheet alleged an attempt to commit a sexual offence without specifying the offence, and the evidence established the commission of a choate offence under s 5(2), not an attempt. The High Court's power to amend charges on review is limited to amendments, not substitutions, and cannot be exercised where the essential character of the intended charge is not evident on the charge sheet. The fair trial rights of the accused require that he be informed of the charge...

Citation
[2016] ZAWCHC 2
Parties
Applicant: The State; Respondent: R.R.; Respondent: A.V.
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
7 January 2016
Case Number
13919/2013, 17/2013, BSH 9/2013
Procedural Posture
Criminal Review / Special Review of Convictions and Sentences
Outcome
Conviction and sentence of accused no. 1 for robbery with aggravating circumstances confirmed. Conviction of accused no. 2 under count two for contravening s 5(2) of the Sexual Offences Act set aside. Conviction and sentence of accused no. 2 for robbery with aggravating circumstances confirmed.
Judges
A.G. Binns-Ward, E.T. Steyn
Legal Topics
Defective Charge Sheet, Competent Verdict, Sexual Offences Act, Child Justice Act, Robbery With Aggravating Circumstances
Criminal Law Civil Procedure Defective Charge Sheet Competent Verdict Sexual Offences Act Child Justice Act Robbery With Aggravating Circumstances

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Parties

The State

Applicant

R.R.

Respondent

A.V.

Respondent

Procedural Posture

Criminal Review / Special Review of Convictions and Sentences

Legal Issues

  1. 1 Whether the conviction of accused no. 2 under count two for contravening s 5(2) of the Sexual Offences Act was competent given the defective charge sheet.
  2. 2 Whether the charge sheet could be amended on review to align with the proven offence.
  3. 3 Whether the sentence imposed on accused no. 2 remains appropriate after setting aside the conviction under count two.

Ratio Decidendi

The conviction of accused no. 2 under count two for contravening s 5(2) of the Sexual Offences Act was incompetent because the charge sheet was fundamentally defective and did not identify any cognisable sexual offence. The charge sheet alleged an attempt to commit a sexual offence without specifying the offence, and the evidence established the commission of a choate offence under s 5(2), not an attempt. The High Court's power to amend charges on review is limited to amendments, not substitutions, and cannot be exercised where the essential character of the intended charge is not evident on the charge sheet. The fair trial rights of the accused require that he be informed of the charge...

Court Disposition

Conviction and sentence of accused no. 1 for robbery with aggravating circumstances confirmed. Conviction of accused no. 2 under count two for contravening s 5(2) of the Sexual Offences Act set aside. Conviction and sentence of accused no. 2 for robbery with aggravating circumstances confirmed.

Orders

  • The conviction and sentence of accused no. 1 in respect of count one (robbery with aggravating circumstances) are confirmed on review.
  • The conviction of accused no. 2 under count two for contravening s 5(2) of the Sexual Offences Act is set aside.