Durban - An Umhlanga businessman’s conviction and 15-year sentence for indecently assaulting a minor was scrapped by the Pietermaritzburg High Court on Thursday because the presiding magistrate was found to have been biased.
Durban Regional Court magistrate Delia Turner’s decisions during sentencing were also found to have been irregular and unfair.
Stewart Graham Hewitt, who is on bail, had been convicted in December 2010 and sentenced in November the following year for indecently assaulting a friend’s daughter from the time she was 8 until she was 12.
When she testified in 2010, she was 18.
Judge Themba Sishi said in his judgment, with which Judge Nompumelelo Radebe concurred, that remitting the matter for retrial would cause an undue delay which would be contrary to the interest of justice.
“An accused person is entitled to have his trial completed within a reasonable time.”
Commenting on what the ruling meant, a legal source said it did not leave the door open for Hewitt to be recharged.
This effectively meant that Hewitt was free and that was the end of the matter.
Judge Sishi said he was satisfied that the irregularities in the matter were of such a nature that Hewitt’s constitutional rights to a fair trial had been violated.
During the trial, the teenager was allowed to testify through an intermediary. The use of intermediaries, whereby children testify in a separate room and may be observed through a glass window by the court, is usually used for those under the age of 18.
Hewitt’s legal team at the time had not objected to this.
After he was convicted, he got rid of his old team and appointed a new one. They took issue with the fact that the teen was allowed to testify through an intermediary when she was over 18.
This became the subject of court applications.
Turner’s decision - to allow her to testify through the intermediary - was first taken on review to the high court, where the application was dismissed. Hewitt was later granted leave to appeal to the Supreme Court of Appeal.
But, before the appeal could be heard, Hewitt appeared in the regional court for sentencing to take place. His legal team asked the magistrate to postpone sentencing until the appeal had been heard. She refused. They then wanted to take this refusal on review to the high court. She again refused.
The legal team then withdrew from the case, which meant Hewitt was not represented.
Judge Sishi said that when Hewitt’s legal representatives wanted to take the matter on review, the magistrate said they could do so after the proceedings.
“It is clear from her response that she had made up her mind even before hearing the grounds for the review application.”
All the decisions she took on that day were unfair and irregular. Hewitt wanted a legal representative present when sentencing took place. Despite his saying he was not qualified to deal with sentencing, the magistrate went ahead.
“When a legal request for time to obtain legal advice is refused, any conviction which follows will almost certainly be invalid and set aside on appeal or review.”
The Mercury