Johannesburg - The State botched prosecution in a case concerning the rape of a 5-year-old Springs girl by not calling the doctor who examined her to testify during trial.
As a result of this grave flaw, the North Gauteng High Court has had to set aside the conviction that led to the child’s father sentenced to life imprisonment in May 2017.
In his appeal application, the father pointed out an array of errors in the conviction judgment of the Springs Regional Magistrate’s Court.
The man cannot be named to protect the child’s identity. He was accused to have raped the child at their Springs home.
Denying the charge, his defence included accusing his daughter’s mother of coaching her to say he raped her.
His lawyers argued before Acting Judge George Avvakoumides that he was convicted on hearsay evidence because the examining doctor, referred to as Dr Riester, was not called to testify during the trial.
Riester was supposed to testify and be cross-examined on his findings detailed in the J88 form.
His J88 confirmed that the child had been raped. It said: “The conclusions show that the complainant’s hymen is irregular, redundant posterior edge, wide vaginal opening.
“Findings point to frequent episodes of vaginal penetration by (an) object such as a finger or penis.”
The doctor, who relocated to Germany, was not called to testify in the trial.
Instead, the prosecution team called a nurse who did not conduct the medical examination to testify on the contents of the J88.
The appellant argued before Judge Avvakoumides that this prejudiced him because his lawyer could not test the correctness of the findings and opinions under cross-examination.
It was not clear if Riester left the country before the father’s trial commenced. This was irrelevant in any case because means could have still been made for him to testify.
Defending its decision not to call the doctor, the State submitted that the nurse’s testimony was admissible because its intention was to prove that the child was raped.
The “probative value” of the nurse’s evidence was “high” because it was lifted directly from the medical records, the State added.
Judge Avvakoumides ruled against the admissibility of the nurse’s evidence, saying the trial magistrate erred in admitting it.
He said it was established that hearsay evidence must be admitted if it protected an accused’s fundamental rights to a fair trial.
“Notwithstanding my view that the trial court erred in permitting hearsay evidence, and despite the conclusions contained in the J88 form, the State failed to prove that the appellant is guilty of the charges against him,” said Judge Avvakoumides.
Though it was common cause that the child was raped, Judge Avvakoumides said his conscience did not allow him to leave the father jailed in light of the State’s shortcomings.
“During debate, both counsel agreed that in the light of the conclusions reached in the J88 medical form, despite the legal technicalities in regard thereto, the child was indeed molested.
“Regretful as it may be that a child of such tender age be subjected to the most despicable abuse, I cannot in good conscience, ignore the fact that the State did not discharge the onus resting upon it. Accordingly, the appeal must succeed,” he said.
“The appeal against the conviction is upheld and the sentence is set aside.”
The Star