Absence of doctor sets rape convict free

Mpho Mokwape | Wednesday February 10, 2016 17:06

 

Mmera Lekgetho had appealed a 10-year sentence slapped after his conviction for rape.

Justice Frederik Jacobus Brand said it was necessary for the trial court, before accepting the medical report as evidence, to have advised the accused of his rights to insist on calling the doctor.

Brand said if Lekgetho had been told that he could insist on the doctor being called to testify, he (Lekgetho) would have had the opportunity to cross-examine the doctor, with a view to strengthening his case. “Since he was not given that opportunity we cannot exclude the real possibility that the outcome would then have been different, hence we are bound to set the conviction aside,” he said. Brand explained that under the Criminal Procedure and Evidence Act, the accused had the right to demand that the doctor be called if he wished to do so and the trial court had erred in not calling the doctor to give evidence on his findings. “In this particular instance the appellant was unrepresented and could not be expected to be aware of his rights as contained in the aforementioned provision and question why the doctor was not called,” he said. Brand noted that in other instances the exclusion of a medical doctor would make no difference to the outcome of the case and the medical report could be tendered without necessarily calling the doctor. However, in Lekgetho’s case, the situation was different.  “First there were remarks by the medical doctor which in normal circumstances could potentially be used, even by a cross examiner of rudimentary skills, in favour of the accused’s case at the time,” Brand said.

Lekgetho had also argued that he was not told anything about his right to cross-examine witnesses, to which Brand said if the right and importance of cross examination had been properly explained, Lekgetho could maybe have used the opportunity to do so.

“When a person is on trial for a serious offence and does not have the advantage of legal representation, I consider that it is essential that the magistrate should offer advice by way of explaining court procedure to such a person because if not, the accused would be under severe disadvantage,” he said.