S v MCGOWN 1995 (2) ZLR 81 (S)

Flynote

Appeal — leave to appeal — principles — applicant must not only have arguable case but one of substance — leave to appeal against sentence — should not be approached on same basis as application to appeal against conviction

Headnote

The applicant was convicted by the High Court on two counts of culpable homicide and acquitted on three others. He was sentenced to a term of imprisonment on the first count and to a fine on the second count. An application to the trial judge (GARWE J) for leave to appeal against conviction and sentence was refused. On application to a judge of the Supreme Court for leave to appeal:

Held, that the decision whether or not to grant leave to appeal depends on the prospects of success. If the prospects are reasonable, the applicationshould be granted; otherwise it should be refused. It is not enough to make out an "arguable" case, for there are very few cases which are not arguable in the wide sense of the word, but the authorities in South Africa seem to regard there being a reasonable prospect of success if the case is arguable, in the sense that there is substance in the argument. Where there is substance in the argument, there must ipso facto be a reasonable prospect of success.

Held, further, that at the stage of an application for leave to appeal, the judge was not being called on to decide finally whether the argument was sound. At this stage he was looking at the judgment, not the whole record, though it might be possible at this stage of an application to say that an argument had no substance or that the law was firmly against the applicant.

Held, further, that the facts were complex, with experts on both sides giving evidence about which it was very difficult for a layman in the field to say with any certainty who was right. There were also conflicting views about what the trial judge had found as regards the cause of death on one of the counts. On the other count, there was insufficient information to enable the Supreme Court to make a positive finding at this stage.

Held, further, that an application for leave to appeal against sentence should be treated less rigidly than one to appeal against conviction, because assessment of sentence is one of the more difficult tasks with which a judicial officer is faced. This case, which involved an experienced anaesthetist being prosecuted for the deaths of patients who had undergone surgery, was an unusual one and without precedent. It was not the sort of case for which there was a "normal" sentence.

Application granted.