WHEN criminal trials come unstuck because of technical failures by the prosecution, the public ought to worry. This week I was very worried indeed: two cases in completely different jurisdictions showed evidence of hopeless mistakes by the prosecution over such fundamental issues that you have to wonder about training – and whether there will be any follow-up with those who made the mistakes.

A look at the first of them today: it emerges through a case at the North West High Court, sitting in Mafikeng, where two judges of that division heard an appeal from a man convicted of rape: let’s call him PPS – his relationship with the girl he raped means she could be identified if his name is published.

He was sentenced to life imprisonment after an obscure regional court convicted him of raping of a 12 year old girl. He appealed, claiming that the trial court hadn’t formally inquired into whether the girl really understood the oath she took to tell the truth. In addition he said the girl’s evidence should have been more cautiously treated.

For her part the girl said that she was raped six times in the first few months of 2009, each time in a room where she was sleeping with some of her relatives as well as PPS. Each time he would get between her blankets, block her mouth with his hand, threaten her and then rape her. Because of the threats and the vulnerability of her family in relation to his – they were homeless relations whom he threatened to eject if she spoke out – she said nothing.

On the sixth occasion however one of her siblings woke and saw what was happening. That led to the matter being reported and to a medical examination of the girl. The physical evidence bore out her claims of repeated rape and she gave details of what happened on the other occasions. According to the evidence, there was a family meeting at which PPS admitted raping the girl – an admission he later contested, claiming he wasn’t at home on the nights when she claimed to have been raped.

The high court judges found no basis for him to complain about the conduct of the trial. But they picked up on a serious problem: despite the fact that the girl claimed she was raped on six occasions, and despite the physical evidence that this was so, the charge sheet reflected just one charge of rape.

The point here is that an accused can’t be convicted and sentenced for a crime with which he or she hasn’t been charged: if you’ve been charged with one rape, you can’t be convicted and sentenced for six.

The appeal judges said they had to comment on this ‘disturbing feature’ of the case: the charge sheet reflected only one count of rape while the prosecutor was clearly aware that the girl had been raped repeatedly. Moreover, asked the appeal judges, could the life sentence stand given that the accused was convicted of one count only?

They quoted other recent court decisions in which judges criticised the fact that ‘too frequently’ insufficient care is paid to drawing up a proper charge sheet. They said ‘slovenly’ charge sheets implied potential prejudice for the accused, hampered the fight against crime and brought the criminal justice into disrepute.

These judgments particularly mentioned the problem caused by a charge sheet alleging only a single count of rape where the evidence supports a ‘multiplicity of counts’. The accused could then properly be sentenced as a single count offender only, causing particular concern when the law says that people convicted of multiple counts get a higher minimum sentence.

This was exactly what happened in the PPS case, said the appeal judges. And as a result of his ‘slovenly charge sheet’ they had to consider whether a life sentence was appropriate for a single count of rape. After carefully considering whether they were bound by a judicial ‘trend’ not to impose life on a single count offender, they concluded that it was an appropriate punishment for PPS even without considering the other rapes that the girl claimed she experienced.

Of course the public should feel relieved that the accused did not escape punishment for the other times he raped this child, but it was a close thing when it need not have been. The courts see this problem far too often, and the blame lies squarely with those who draw up and approve the charge sheet.

PLEASE NOTE: The judgment in this matter is not being posted here yet as it is currently only available in a format that includes the names of all the parties including that of the rapist, the sister of the girl who was raped and their family members, and this would effectively identify the girl.