‘Flaws’ in counsellor bail hearing

2016-09-01 13:05
Both the state and the defence have claimed there were shortcomings in the original bail proceedings of a school counsellor  who has been charged with rape.

Both the state and the defence have claimed there were shortcomings in the original bail proceedings of a school counsellor who has been charged with rape. (File)

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Both the state and defence for the ex-school counsellor charged with rape have slammed the bail proceedings in which he was denied bail.

The criticisms emerged during a bail appeal by the counsellor in the high court on Wednesday, against the decision of Pietermaritzburg magistrate M. Boi­khutso refusing him bail on July 18.

While defence advocate Brad Osborne on Wednesday urged the high court to find the counsellor is “deserving” of bail, KZN deputy director of public prosecutions Sandesh Sankar said he failed to prove he should get bail, in spite of admitted shortcomings in the original bail proceedings. “There is an onus on him [the counsellor] to show that there are exceptional circumstances allowing his release on bail, and he has not shown these exist,” he said.

Judge Nkosinathi Chili will decide on Thursday whether to grant the counsellor bail or not.

Some of the alleged shortcomings that were highlighted during legal arguments on Wednesday were the alleged “poor quality” of the magistrate’s judgment and assessment of the evidence; the fact that the investigating officer compiled a sketchy affidavit listing in point form his objections to bail, and evidence on which the state’s case was based without explaining or elaborating on them; the fact that the magistrate and the prosecutor had allowed his affidavit to be handed in to court in that form; as well as the fact that the counsellor himself also chose not to testify in person, and his evidence could not be tested in cross examination.

Both Osborne and Sankar agreed that in light of “misdirections” in the bail proceedings, the judge is free to reassess the evidence and decide the issue of bail.

Osborne said Boikhutso was wrong on many factual issues.

He criticised her, for example, for taking media reports into consideration in her judgment, even though they did not form part of the evidence, and said this showed she was influenced by outside factors.

Osborne said another fact found by the magistrate that was not supported by evidence, was that the counsellor had “enjoyed the support of fellow teachers” at his former school and could therefore interfere with witnesses.

He said this was “based on speculation”, adding the counsellor cannot interfere with any of the alleged victims as he has been dismissed. He also said the magistrate incorrectly found the counsellor was a “flight risk” merely because he rented and did not own his property.

Osborne said the law does not preclude people who rent their properties from getting bail. He said the investigating officer did not give reasons for alleging the counsellor was a flight risk, but simply stated this as a fact.

He said Boikhutso did not consider if any of the alleged concerns of the state could be cured by strict bail conditions.

He told the judge the case is complex and will involve a great deal of medical and psychological evidence, and the evidence of young children.

“Far better to impose strict and inconvenient bail conditions, than for him to languish in custody pending trial just for the convenience of the state,” he said.

Sankar said it was undesirable for lower courts to hear bail applications by way of affidavits, and said “it should stop” if this is a routine occurrence.

He said the high court could use this as an opportunity to send a message to the lower courts about how they should deal with bail matters.

While agreeing that the bail judgment and the handling of the bail proceedings was “poor”, Sankar said this did not mean the counsellor should get bail.

He suggested that the fact that the counsellor did not testify showed he had something to hide.

He did not give detailed responses to the charges facing him, but simply offered a bare denial that could not be tested in cross examination, said Sankar.

The same applied to the counsellor’s claim (in his affidavit) that he did not have the financial means to flee the country. Sankar said this evidence could be tested if the counsellor was cross examined, because he could be questioned on whether any family members were in a position to help him.

Sankar said it is only in “rare” circumstances that the mere handing in of an affidavit was sufficient to discharge the onus resting on an accused person to justify getting bail. “This case is not one of those rare instances,” he said.

AT the time of the bail proceedings, the former counsellor was facing two counts of rape and two of sexual assault of primary pupils at the Pietermaritzburg school where he worked. Three more charges were added at a later stage, but do not form part of the bail appeal.

Read more on:    pietermaritzburg

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