The criminal actions of a juvenile, dealt with in the Children’s Court, should not have been used during criminal proceedings in the Caledon Magistrate’s Court after the child became an adult and was convicted for housebreaking.
Western Cape High Court Judge Robert Henney, who took the matter on review, set aside the conviction and two-year-imprisonment sentence of Tyrone Olivier - a 19-year-old self-confessed burglar, who admitted to stealing eight cellphones from a premises.
Olivier, who elected to conduct his own defence, appeared in the Caledon Magistrate’s Court on a charge of housebreaking with intent to steal, and theft.
During Magistrates’ Court proceedings, Henney said, the prosecutor proved two “previous convictions” as reflected on the SAP69 Criminal Record against the accused. These two convictions - theft and contravening the Drug and Drug Trafficking Act were finalised in the Children’s Court.
Olivier, who was a child at the time, was referred to a Child Youth Care Centre by the same Magistrate who conducted the criminal proceedings in the housebreaking matter.
“It is apparent that the Magistrate was aware of this fact if not at the commencement of the hearing, at the very least at the time when he sentenced Olivier. This, in my view, disqualified the Magistrate from presiding over the matter and infringed the accused’ right to a fair trial...
“Similarly, in a case like this, where prior knowledge of the involvement of an accused when he was as a child in conflict with the law is considered as an aggravating factor in a later criminal case it is prejudicial to an accused.
Even more so, where the same Magistrate who has previously presided over the Children’s Court matter of an accused person, also in a later criminal trial, was the primary source of that information when he referred to it in the sentencing proceedings, when it was considered as a factor or aggravating circumstance during sentencing.
“Although prior knowledge of the previous conviction or prior conduct of an accused may not always result in the recusal of a presiding officer, especially in cases where an accused had pleaded guilty and the court convicts such a person on the strength of that guilty plea... It may not always vitiate those proceedings and lead to an injustice,” said Henney.
Henney said after questioning the magistrate, the magistrate submitted that “he did not have prior knowledge of the accused’s previous convictions as the Children Court proceedings were not of a Criminal Court in nature and in the result, there would be no criminal record of those proceedings.”
“That may well be so, but he had prior knowledge of the fact that the accused was a child in conflict with the law, with whom he had dealt during Children’s Court proceedings after the child was referred to that court by the Child Justice Court. This fact is evident during his interaction with the accused during the sentencing proceedings. He was the source of that information...
Both of the offences that ought not to have appeared on the SAP 69’s are recorded on the SAP 69’s (as previous convictions),” said Henney.
Henney set aside Olivier’s conviction and further ordered that the Office of the Director of Public Prosecutions requests SAPS Criminal Record Centre to remove any order of the Children’s Court against Olivier.
Cape Times