James Patrick Hibbert v The State

The appellant stood trial in the Regional Court, Mossel Bay, on charges of sexual assault and rape, read with the provisions of Act 105 of 1997. The incident was alleged to have occurred during the period December 2004 to January 2005. The appellant was charged on 30 May 2008. Despite pleading not guilty to both charges, he was found guilty and sentenced to an effective term of imprisonment of eight years. On 18 June 2009, immediately after judgment on sentence, the appellant applied for leave to appeal against the convictions, which was refused. He subsequently petitioned the Western Cape Judge President for leave to appeal against the convictions and sentence in terms of s 309C of the Criminal Procedure Act 51 of 1977. On 18 August 2009, the Western Cape High Court (Erasmus and Allie JJ) refused his petition. The appellant then applied to the high court for leave to appeal against its decision refusing leave to appeal. The high court granted leave to appeal to the Supreme Court of Appeal against the high court's refusal of his petition.

• Whether the Regional Court erred in convicting the appellant on charges of sexual assault and rape
• Whether there was a reasonable possibility that another court could reach a different conclusion to that of the trial court
• Whether leave to appeal should be granted against the convictions and sentence

The order of the Western Cape High Court (Erasmus and Allie JJ), dated 18 August 2009, was set aside. The appellant was granted leave to appeal against his convictions and sentence.

Leave to appeal in criminal matters should be granted where there is a reasonable possibility that another court could reach a different conclusion to that of the trial court. When the state concedes that such a reasonable possibility exists, the Supreme Court of Appeal will grant leave to appeal to allow the matter to be heard on its merits.

The court made no substantive obiter dicta observations in this judgment. The court noted that the high court 'apparently had second thoughts about its decision to refuse leave' when it subsequently granted leave to the appellant to appeal to the Supreme Court of Appeal against the high court's refusal of his petition, but this was a factual observation rather than a legal commentary. The court also stated '[n]o more need be said' after noting the state's concession, indicating that the matter was straightforward once the concession was made and required no further elaboration.

This case demonstrates the application of the test for granting leave to appeal in criminal matters, namely whether there is a reasonable possibility that another court could reach a different conclusion to that of the trial court. It illustrates the Supreme Court of Appeal's willingness to grant leave to appeal where the state concedes this possibility exists, ensuring that potentially meritorious appeals are heard on their merits. The case also shows the procedural pathway available to convicted persons who have been refused leave to appeal by both the trial court and the high court on petition.