The accused stands accused of one count of attempted rape and one count of sexual assault. At
the end of the proceedings, certain pieces of evidence form part of the record of the proceedings.
The complainant, a girl who was 12 years old at the time of the offences and who was testifying
three years later, was unable to respond to some questions under cross-examination or gave
replies to the effect that she would prefer not to respond to a particular question. The complainant
also admitted during testimony that, even though the accused allegedly committed several
indecent acts over time, she never told anybody about it. It was only after being prompted by her
mother that she confirmed that the accused had touched her. It had to be suggested by her
mother that the accused had touched her. Medical evidence was also given by Dr Rawat, who
conducted an examination on her and recorded his findings on the J88 medical form. The
accused and his father testified for the defence and his version is a bare denial of the allegations
against him.
1.1 What does section 227 of the Criminal Procedure Act 51 of 1977 state about the court’s
function when evidence of the character of a complainant is to be led in cases of an indecent
nature? (10)
1.2 In view of the fact that the complainant is not only a single witness, but also a minor child, how
should the court approach her evidence? (10)
1.3 Discuss the principles that govern the admissibility of Dr Rawat’s evidence. (5)
1.4 Do you think the state will be able to prove its case beyond a reasonable doubt? Discuss with
reference to the general considerations that may be important when a court weighs up the
evidence as a whole or evaluates the evidence at the end of a trial. (5)
1.1)
The following evidence will not be adduced by the court:
Evidence regarding the previous sexual experience or general conduct in the past or
present of a complainant will not be accepted by the court.
The following evidence will be adduced by the court:
Evidence relating to the sexual experience or conduct with regards to the offense in
question will be adduced.
The following questions will not be accepted by the court in cross examination:
Furthermore, during cross examination, the court will not allow any questions regarding
the previous sexual experience or general conduct in the past or present to be directed
towards the complainant, accused or other witnesses.
Such questioning and evidence will be permitted by the court only under the following two
exceptions:
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, 1.) By application of any party to the proceedings, the court has granted leave to
adduce such evidence or allow such questions to be asked.
2.) If the prosecution brings forward such evidence.
With regards to an application lodged in terms of the first exception described above, the
following conditions will apply:
The court will only approve such an application if it is sufficiently established that
such questions or evidence is relevant to the proceedings in question.
Before considering such an application, the court may instruct any party to the
proceedings whose presence is not necessary to be absent from the proceedings.
According to Section 227 (5) (a) to (g):
In deciding whether the questions or evidence which have been requested to be
adduced will be accepted, the court will first examine if such questions or evidence:
Are in the interests of justice, with due regard to the accused person's right to a
fair
trial.
Are in the interests of society in encouraging the reporting of sexual offenses.
Relate to a specific instance of sexual activity relevant to a fact in issue.
Are likely to rebut evidence previously adduced by the prosecution.
Are fundamental to the defense of the accused.
Are not substantially outweighed by its potential prejudice to the complainant's
personal dignity and right to privacy.
Are likely to explain the presence of semen or the source of pregnancy or
disease or any injury to the complainant, where it is relevant to a fact in
issue.
The court will not approve such an application if such questions or evidence are
requested to be adduced with the intention of suggesting that because of the sexual
nature of the complainant’s conduct or experience, the complainant is either:
More likely to have consented to the offense being tried, or
Less worthy of belief.
This study source was downloaded by 100000845738910 from CourseHero.com on 04-23-2022 07:31:45 GMT -05:00
https://www.coursehero.com/file/69354248/LEV-Assignment-1pdf/
the end of the proceedings, certain pieces of evidence form part of the record of the proceedings.
The complainant, a girl who was 12 years old at the time of the offences and who was testifying
three years later, was unable to respond to some questions under cross-examination or gave
replies to the effect that she would prefer not to respond to a particular question. The complainant
also admitted during testimony that, even though the accused allegedly committed several
indecent acts over time, she never told anybody about it. It was only after being prompted by her
mother that she confirmed that the accused had touched her. It had to be suggested by her
mother that the accused had touched her. Medical evidence was also given by Dr Rawat, who
conducted an examination on her and recorded his findings on the J88 medical form. The
accused and his father testified for the defence and his version is a bare denial of the allegations
against him.
1.1 What does section 227 of the Criminal Procedure Act 51 of 1977 state about the court’s
function when evidence of the character of a complainant is to be led in cases of an indecent
nature? (10)
1.2 In view of the fact that the complainant is not only a single witness, but also a minor child, how
should the court approach her evidence? (10)
1.3 Discuss the principles that govern the admissibility of Dr Rawat’s evidence. (5)
1.4 Do you think the state will be able to prove its case beyond a reasonable doubt? Discuss with
reference to the general considerations that may be important when a court weighs up the
evidence as a whole or evaluates the evidence at the end of a trial. (5)
1.1)
The following evidence will not be adduced by the court:
Evidence regarding the previous sexual experience or general conduct in the past or
present of a complainant will not be accepted by the court.
The following evidence will be adduced by the court:
Evidence relating to the sexual experience or conduct with regards to the offense in
question will be adduced.
The following questions will not be accepted by the court in cross examination:
Furthermore, during cross examination, the court will not allow any questions regarding
the previous sexual experience or general conduct in the past or present to be directed
towards the complainant, accused or other witnesses.
Such questioning and evidence will be permitted by the court only under the following two
exceptions:
This study source was downloaded by 100000845738910 from CourseHero.com on 04-23-2022 07:31:45 GMT -05:00
https://www.coursehero.com/file/69354248/LEV-Assignment-1pdf/
, 1.) By application of any party to the proceedings, the court has granted leave to
adduce such evidence or allow such questions to be asked.
2.) If the prosecution brings forward such evidence.
With regards to an application lodged in terms of the first exception described above, the
following conditions will apply:
The court will only approve such an application if it is sufficiently established that
such questions or evidence is relevant to the proceedings in question.
Before considering such an application, the court may instruct any party to the
proceedings whose presence is not necessary to be absent from the proceedings.
According to Section 227 (5) (a) to (g):
In deciding whether the questions or evidence which have been requested to be
adduced will be accepted, the court will first examine if such questions or evidence:
Are in the interests of justice, with due regard to the accused person's right to a
fair
trial.
Are in the interests of society in encouraging the reporting of sexual offenses.
Relate to a specific instance of sexual activity relevant to a fact in issue.
Are likely to rebut evidence previously adduced by the prosecution.
Are fundamental to the defense of the accused.
Are not substantially outweighed by its potential prejudice to the complainant's
personal dignity and right to privacy.
Are likely to explain the presence of semen or the source of pregnancy or
disease or any injury to the complainant, where it is relevant to a fact in
issue.
The court will not approve such an application if such questions or evidence are
requested to be adduced with the intention of suggesting that because of the sexual
nature of the complainant’s conduct or experience, the complainant is either:
More likely to have consented to the offense being tried, or
Less worthy of belief.
This study source was downloaded by 100000845738910 from CourseHero.com on 04-23-2022 07:31:45 GMT -05:00
https://www.coursehero.com/file/69354248/LEV-Assignment-1pdf/
