Mornè Barnard v The State

The appellant was a 34-year-old police officer who stood trial on charges of rape, common assault and unlawfully pointing a firearm in the regional court, Welkom. On 23 March 2010, he was convicted of rape and sentenced to 15 years' imprisonment. The facts arose from an incident on 28 June 2008, when the appellant, while driving in Virginia, Free State, picked up the complainant who had signalled for a lift. He took her to his home where they had sexual intercourse. The central dispute was whether the intercourse was consensual. The appellant claimed it was consensual and that he believed the complainant was a prostitute. The trial court rejected his version and accepted the complainant's evidence, which was corroborated by medical evidence. The appellant had a previous conviction for assault, had been suspended from his employment since the charges were brought, and would likely be dismissed following conviction.

• Whether leave to appeal should have been granted by the high court against the conviction and sentence imposed by the regional court
• Whether the trial court erred in rejecting the appellant's version as not reasonably possibly true
• Whether the trial court failed to approach the complainant's evidence with the necessary caution and merely paid lip service to the cautionary rule
• Whether the sentence of 15 years' imprisonment was unduly excessive or shockingly inappropriate

The appeal was dismissed.

Where an accused obtains leave to appeal to the Supreme Court of Appeal against the refusal by a high court of a petition seeking leave to appeal against a conviction and sentence in the regional court, the issue before the SCA is whether leave to appeal should have been granted by the high court, and not the merits of the appeal itself. This is because the SCA does not have authority to entertain an appeal directly from the regional court. The test for whether leave to appeal should have been granted is whether there are reasonable prospects of success on appeal - that is, whether a court of appeal could reach a different conclusion to that of the trial court.

The Court noted, without needing to decide definitively, that when determining whether an appellant has prospects of success on appeal, it is necessary to briefly examine the merits, but it is neither necessary nor desirable to deal with the merits in great detail. The Court also observed the serious aggravating factors present in rape cases involving police officers, particularly the abuse of trust, the use of position and authority, and the prevalence of rape as a serious offence affecting the community.

This case reaffirms and clarifies important principles regarding the scope and nature of appeals from regional courts to the Supreme Court of Appeal via the high court. It confirms that the SCA does not have authority to entertain appeals directly from regional courts, and when considering an appeal against the refusal of leave to appeal by a high court, the issue is not the merits of the underlying appeal itself, but whether the high court should have granted leave. The case provides guidance on the application of the reasonable prospects of success test, and demonstrates the appropriate approach to assessing both conviction appeals (credibility findings, cautionary rule application) and sentence appeals in serious sexual offences cases, particularly where the offender is a police officer who has abused a position of trust.