Barnard v The State

The appellant, Mornè Barnard, stood trial in the Regional Court, Welkom, on charges of rape, common assault and unlawfully pointing a firearm. He was convicted of rape on 23 March 2010 and sentenced to 15 years’ imprisonment. The incident occurred in the early hours of 28 June 2008 when the appellant, then an off‑duty police officer, picked up the complainant in Virginia, Free State, and took her to his home where sexual intercourse occurred. The central factual dispute at trial was whether the intercourse was consensual. The appellant claimed it was consensual and that he believed the complainant to be a prostitute. The trial court rejected his version, accepted the complainant’s evidence, which was corroborated by medical evidence, and convicted him. His petition for leave to appeal against conviction and sentence was refused by the Free State High Court. He thereafter obtained leave to appeal to the Supreme Court of Appeal against the High Court’s refusal of leave.

The appeal against the High Court’s refusal to grant leave to appeal was dismissed.

The case reaffirms the procedural principle governing appeals to the Supreme Court of Appeal from a High Court’s refusal of leave to appeal, clarifying that the SCA considers only whether leave should have been granted and applies the test of reasonable prospects of success. It also illustrates the approach to credibility findings in rape cases and the limited circumstances in which appellate courts will interfere with sentence.