Intermediaries ruling overturned

THE issue of young victims of crime giving evidence through intermediaries has become a ping-pong match between judges in the province with two ruling that they have to be younger than 18 to qualify and another saying they don’t.

In a recent judgment handed down in an appeal by a man convicted of raping his own daughter, Judges Trevor Gorven and Sharmaine Balton effectively set aside a 2011 decision of their colleague Judge Dhaya Pillay who found the legislated age limit of 18 was “merely a guideline”.

The two appeal judges said this was not so, “and the legislature had intended to exclude adults” for whom there were other protections – such as the use of closed-circuit television – to reduce any potential trauma.

The issue came before Judge Pillay in a review application brought by Durban businessman Stewart Hewitt who, at the time, had been convicted in the Durban Regional Court of indecently assaulting a friend’s daughter from the time she was 8 until she was 12.

Although not raised during the trial, Hewitt changed lawyers and they took issue with the fact that the alleged victim had given evidence through an intermediary even though she was already 18.

Judge Pillay asked for submissions on the constitutionality of the legislation and whether it was a limitation to the rights of a child victim who testified only after she became an adult.

She then ruled that the age limit could not be inflexible and that a child aged 17 years and 11 months who was fearful of testifying would be “no less fearful a month later when she turns 18”.

She granted Hewitt leave to appeal against her ruling because it raised “important constitutional issues”.

Overturned

But the matter never went any further. Stewart’s conviction was subsequently overturned by two other judges who found the presiding magistrate had been biased throughout his trial and in insisting on sentencing him to 15 years’ imprisonment in the absence of his legal team.

But it has now raised its head in the appeal by “ZF” (he cannot be named to protect the identity of his daughter), who in 2010 was convicted of indecently assaulting and raping his daughter and sentenced to an effective 17 years behind bars.

The victim was 20 when she gave evidence through an intermediary, and again the accused raised no objection to this until he appealed.

In their ruling, the judges said the section was designed only for the benefit of children, and Judge Pillay’s ruling “was contrary to the principles of interpretation”. Case law dictated that the words in a statute be given their ordinary grammatical meaning “unless to do so would result in an absurdity”.

In this case, the ordinary grammatical meaning, that it applied only to those under the biological or mental age of 18, could not be absurd.

They said that Hewitt’s case had been “wrongly decided and should not be followed”.

They said, however, that while the use of an intermediary in the matter before them was an irregularity, it was not so severe to render the evidence inadmissible or to find that the accused had been unfairly tried.

“The answers given were hers. The reframing of questions was not said to have effected her evidence in any way,” they said, confirming the convictions.