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Greenwood v S (148/2012) [2013] ZAECGHC 97 (19 September 2013)

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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION (Grahamstown)


Case No: 148/2012

In the matter of:


COLIN ALAN GREENWOOD .................................................................................Applicant


And


THE STATE ............................................................................................................Respondent


Judgment on application for Leave to Appeal against dismissal of petition

DAMBUZA J:


[1] The applicant was convicted of seven counts of indecent assault by the East London Regional court. He was sentenced to 10 years imprisonment, four of which were suspended on certain conditions. Leave to appeal against the convictions was refused but the applicant was granted leave to appeal against the sentence imposed. The matter then came before us on petition when the applicant petitioned the Judge President of this Division. On 4 September 2012 we also refused Leave to appeal against conviction. The applicant now seeks leave to appeal to the Supreme Court of Appeal against our decision refusing Leave to Appeal. This application is opposed.


[2] In this application the applicant also seeks condonation of the late filing of this application, stating that he only became aware of the dismissal of his petition in November 2012 as the office of the Registrar failed to alert him to the decision. The application for condonation is not opposed. The applicant lodged his application for leave to appeal against the dismissal of his petition on 20 December 2012. We are satisfied that the delay in bringing this application was due to no fault on his part.


[3] On 29 August 2013 we heard full (oral) argument on the application. In essence the applicant contends that another court might grant leave to appeal against the conviction. Mr Price who appeared on behalf of the applicant relied heavily on Smith v The State 2012 (1) SACR 567 (SCA). Indeed the facts in Smith are substantially similar to the facts in this matter in that the applicant (accused) in Smith was also convicted of sexual offences. The trial court refused him leave to appeal against conviction but granted him leave to appeal against the sentence. As in this instance on petition he was refused leave to appeal against the convictions and was later granted leave to appeal against the refusal of the petition. Ultimately his conviction was set aside on appeal.


[4] The nub of the argument on behalf of the applicant is that another court might, in his favour, attach more weight to the discrepancies in the evidence of the young complainants and find that the evidence falls short of the standard of proof set in criminal cases (the complainants were 9 and 11 years old at the time of the trial).


[5] The discrepancies in the evidence of the complainants are admitted by the state. The state contends, however, that the magistrate dealt with these discrepancies but still found that the state had proved its case beyond reasonable doubt. Some of the discrepancies, the argument on behalf of the state went, emanate from the fact that the complainants were not always together at the same place when incidents complained of happened and the fact that they took a long time to report the incident should not

Count against the complainants.


[6] Without venturing into the merits of the case against the applicant I must first acknowledge that, having had the benefit of full oral argument on the matter we are indeed in a better position to consider the matter. And I am persuaded that the prospect is not far fetched that another court considering the application for leave to appeal might attach more weight to the discrepancies in the evidence, the contents of the medico-legal reports and various other aspects of the evidence and might reasonably conclude that the applicant should be granted leave to appeal against the convictions.


[7] Consequently:


  1. Leave is granted to the applicant to appeal to the Supreme Court of Appeal

against refusal of leave to appeal brought on petition.


_______________________

N DAMBUZA

Judge of the High Court




Tshiki J: I agree.




_______________________

PW TSHIKI

Judge of the High Court


Appearances:


Counsel for the Applicant: Adv T Price

Port Elizabeth


Instructed by: GM Nettelton

Grahamstown



Counsel for the Respondent: Adv J Engelbrecht

Grahamstown



Instructed by: The National Director of Public Prosecution

Grahamstown



Date Heard: 29 August 2013


Date Delivered: 19 September 2013