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[2015] ZASCA 204
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Director of Public Prosecutions, Gauteng v Pistorius (96/2015) [2015] ZASCA 204; [2016] 1 All SA 346 (SCA); 2016 (2) SA 317 (SCA); 2016 (1) SACR 431 (SCA) (3 December 2015)
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Reportable
Case
No:
96/2015
In
the matter between:
DIRECTOR
OF PUBLIC PROSECUTIONS,
GAUTENG
APPELLANT
and
OSCAR
LEONARD CARL PISTORIUS
RESPONDENT
Neutral
citation:
Director of Public Prosecutions,
Gauteng v Pistorius
(96/2015)
[2015]
ZASCA 204
(3 December 2015)
Coram:
Mpati P, Mhlantla, Leach and Majiedt
JJA and Baartman AJA
Heard:
03 November 2015
Delivered:
03 December 2015
Summary:
Criminal Law and Procedure ─
appeal under s 319 of
Criminal Procedure Act 51 of 1977
─
conviction on a competent verdict to be regarded as an acquittal on
the main count and does not debar an appeal on a question
of law
reserved.
Legal
intention in the form of
dolus
eventualis
─ trial court
incorrectly applying the principles thereof ─ constitutes an
error of law.
Inference
of fact to be drawn from the totality of the evidence ─ trial
court not taking all the relevant evidence into account
in
determining the presence or otherwise of
dolus
eventualis
─ this also
constitutes an error of law.
On a
proper conspectus of all the evidence, the trial court ought to have
found that the accused had been guilty of murder and not
culpable
homicide, and that his defence of putative private defence could not
be sustained. Conviction of culpable homicide and
the sentence
imposed for that offence set aside under
s 322
of CPA and the
matter remitted to the trial court to impose sentence afresh.
ORDER
On
appeal from:
Gauteng Division,
Pretoria (Masipa J with two assessors sitting as court of first
instance):
1 The
first two questions of law reserved are answered in favour of the
Director of Public Prosecutions.
2 The
accused’s conviction and sentence on count 1 are set aside and
replaced with the following:
‘
Guilty
of murder with the accused having had criminal intent in the form of
dolus eventualis
.’
3
The matter is referred back to the trial court to consider an
appropriate sentence afresh in the light of the comments in
this
judgment.
JUDGMENT
Leach
JA
(Mpati P, Mhlantla and Majiedt
JJA and Baartman AJA concurring)
[1]
This case involves a human tragedy of Shakespearean proportions: a
young man overcomes huge physical disabilities to reach Olympian
heights as an athlete; in doing so he becomes an international
celebrity; he meets a young woman of great natural beauty and a
successful model; romance blossoms; and then, ironically on
Valentine’s Day, all is destroyed when he takes her life. The
issue before this court is whether in doing so he committed the crime
of murder, the intentional killing of a human being, or the
lesser
offence of culpable homicide, the negligent killing of another.
[2]
It is common cause that in the early hours of 14 February 2013 the
respondent, Mr Oscar Pistorius, shot and killed the 29 year
old Miss
Reeva Steenkamp at his home in a secured complex known as Silver
Woods Country Estate in the district of Pretoria. Pursuant
to this,
he was tried in the Gauteng Division of the High Court, Pretoria on
several charges, including one of the murder of Miss
Steenkamp.
Throughout the proceedings in the trial court, the respondent was
referred to as ‘the accused’ and,
for convenience, I
intend to do so as well. I trust that those near and dear to her will
forgive me if I refer to Miss Steenkamp
at times by her given name of
Reeva, although I shall endeavour to do so only where it is necessary
to emphasize her identity.
I shall otherwise refer to her simply as
‘the deceased’.
[3]
The proceedings in the trial court were attended by unprecedented
publicity. As far as I am aware, for the first time in the
history of
this country the trial was covered on live television (as was the
appeal in this court). Although I did not follow the
proceedings
closely, it was impossible not to learn that although it was common
cause that the accused had shot and killed the
deceased, the trial
court had found him not guilty of her murder but guilty of culpable
homicide. Contending that the trial court
erred on certain legal
issues, the Director of Public Prosecutions, with leave of the trial
court, now appeals to this court on
questions of law reserved,
arguing that the appropriate conviction would be one of murder.
[4]
It is necessary at the outset to clear a technical issue out of the
way. The appeal to this court relates solely to count 1
of the
indictment, namely, the alleged murder of the deceased. The
accused was not charged in the alternative with the lesser
offence of
culpable homicide. It was unnecessary for the State to do so as s 258
of the Criminal Procedure Act 51 of 1977 (the
CPA) provides that if
the evidence led on a charge of murder does not prove that offence
but the offence of culpable homicide (or
numerous other offences
unnecessary to mention for present purposes) ‘the accused may
be found guilty of the offences so
proved’. That is what
happened in the present case. The trial court held that the State had
not proved that the accused was
guilty of the murder but had shown
that he was guilty of culpable homicide. Relying on s 258 it
accordingly found him guilty of
the latter offence.
[5] The
appeal to this court relating to this conviction is brought in
respect of questions of law reserved under s 319 of the CPA.
That
section provides:
‘
(1)
If any question of law arises on the trial in a superior court of any
person for any offence, that court may of its own motion
or at the
request either of the prosecutor or the accused reserve that question
for the consideration of the Appellate Division,
and thereupon the
first-mentioned court shall state the question reserved and shall
direct that it be specially entered in the
record and that a copy
thereof be transmitted to the registrar of the Appellate Division.
(2)
The grounds upon which any objection to an indictment is taken shall,
for the purposes of this section, be deemed to be questions
of
law.’
[1]
[6]
Section 322 of the CPA prescribes the powers that may be exercised by
a court of appeal hearing an appeal relating to any question
of law
reserved under s 319. I shall deal with these provisions in more
detail in due course, but it suffices to mention at this
stage that s
322(4) provides that in an appeal by the prosecutor where a question
of law has been reserved in the case of an acquittal,
‘and the
court of appeal has given a decision in favour of the prosecutor, the
court of appeal may order that such of the
steps referred to in s 324
be taken as the court may direct’.
This
corresponds with the provisions of s 369 of the CPA’s
predecessor, Act 56 of 1955, which in turn reflected the wording
of
its predecessor s 374 of Act 31 of 1917. In
Solomons
,
[2]
following the decision in
Gani
,
[3]
this court held that the effect of s 369 of the 1955 Act was that the
State can only have a question of law reserved should there
be an
acquittal of the accused.
[7]
After
Solomons
and
Gani
, this
court held that an acquittal envisaged by s 322(4) had to be a total
acquittal, and that did not include a case in which
a competent
verdict had been entered in place of the charge upon which the
accused had been arraigned in the charge sheet. Thus
in
Seekoei
,
[4]
where an accused had been charged with housebreaking with intent to
rob and robbery with aggravating circumstances, but convicted
on the
competent verdict of the lesser offence of housebreaking with intent
to steal and theft with aggravating circumstances,
it was held there
had not been an ‘acquittal’ as intended by s 322(4).
The court went on to hold that in consequence
of there having been no
acquittal, the trial court had impermissibly reserved a question of
law for determination under s 319.
[8]
At first blush this decision seems to provide an obstacle to the
State’s appeal on points of law in the present matter
as,
although the accused was not convicted of the murder with which he
had been charged, he was convicted on the competent verdict
of
culpable homicide – and thus there was not a ‘total
acquittal’ on the murder charge making it permissible
for the
trial court to reserve points of law as it did. However, the matter
does not end there. As was argued by the State, the
accused could
quite easily have been charged with culpable homicide as an
alternative charge to that of murder. If that had been
done, and the
accused found guilty of culpable homicide, the court would have been
obliged to acquit him on the murder charge,
and in that event the
ratio of the decision in
Seekoei
would not operate to bar an appeal on a point of law in respect of
that charge.
[9]
The decision in
Seekoei
has
been a matter of controversy, and doubt has been expressed in this
court on the correctness of the reasoning.
[5]
It is after all somewhat artificial to regard an accused found guilty
of the lesser offence of culpable homicide not to have been
acquitted
of the more serious charge of murder. But any dispute on this has
been resolved by the decision of the Constitutional
Court in
Basson
.
[6]
In that matter, after considering the legislative history of s 319(2)
of the CPA, the court held that there is ‘nothing in
this
language to suggest that the State may only request the reservation
of questions directed at the conviction or acquittal of
the
accused’.
[7]
In the light of this, counsel for the accused accepted that the
limitation upon the State’s right to appeal on a point of
law
as prescribed in
Seekoei
could no longer be regarded as good law and that there could be no
objection to the appeal proceeding in respect of the points
of law
reserved in the trial court, notwithstanding the conviction of the
accused on the competent verdict of culpable homicide.
This
concession was correctly made.
[10]
In the light of this, I turn to the issues raised in the appeal. In
order to do so it is necessary to paint the factual backdrop
to the
points of law debated before us.
[11]
The accused was born with deformed legs, the fibula on each side
having been missing. Consequently, before his first birthday,
both of
his legs were surgically amputated below the knee and, since then, he
has had to rely on prosthetics. Despite such a severe
physical
handicap, he made his way bravely into the world and, at school,
although he described himself in evidence as having been
‘never
really much of an academic’, he participated in various sports.
It was during the course of rehabilitation from
a knee injury
sustained playing rugby that, in early 2004, he started training with
a biokineticist at the University of Pretoria
who encouraged him to
participate in a disabled athletics meeting. He did and the rest, as
they say, is history. It is unnecessary
to detail the accused’s
spectacular athletic career which followed. Suffice it to say that he
was awarded a sports bursary
by the University of Pretoria and
competed at an international level in both disabled and able-bodied
athletic events. He
won numerous international medals,
including gold medals at the Paralympics. Having persuaded the
International Athletic Federation
that he enjoyed no advantage by
using prosthetic legs, the accused represented South Africa in both
the Olympic and the Paralympic
Games of 2012. His athletic
achievements not only brought him international fame but also into
contact with charities, and for
his humanitarian work in the world of
prosthetic and prosthetic developments he was awarded an honorary
doctorate from the University
of Strathclyde in Glasgow.
[12]
The accused met the deceased on 4 November 2012 when they were
separately invited by a mutual friend to lunch at a motorcar
track-day event. She agreed to accompany him to the South African
Sports Awards function that evening. Romance quickly blossomed
and
they became intimate. As so often happens with romantic
relationships, especially in their youthful stages, theirs was
attended
by petty conflict and tensions as evidenced by a transcript
of text messages that had passed between them that was handed in as
an exhibit at the trial. But despite these hiccups, the deceased at
times slept over at the accused’s home.
[13]
She did so on the night of 13 February 2013. In the early hours of
the following morning, screams, gunshots, loud noises and
cries for
help were heard, emanating from the accused’s house. Within
minutes, a Mr Stander and a Dr Stipp, the latter a
medical
practitioner, arrived at the accused’s home. There they found
the accused in a highly emotional state, kneeling alongside
the
deceased who was lying on the floor at the foot of the stairs leading
to the sleeping quarters of the house. She had been carried
there by
the accused from an upstairs bathroom where the shooting had taken
place. She had been shot several times and was
mortally
wounded. The severity of her injuries was such that she was not
breathing and Dr Stipp was unable to find a pulse.
If she was
still alive at that time, she died soon after. In due course the
accused was charged with her murder in the Pretoria
High Court.
[14]
It was common cause at his trial that the accused was responsible for
the death of the deceased in that he had fatally injured
her when he
fired four shots with a 9mm pistol through the door of a toilet
cubicle in the bathroom adjacent to his bedroom. Relying
upon a web
of circumstantial evidence, including the screams that had been heard
before the sound of the shots that the accused
had fired, the State
attempted to persuade the trial court that the accused had threatened
the deceased during the course of an
argument, that she had locked
herself into the toilet cubicle in the bathroom to escape from him,
and that he had thereupon fired
the fatal shots through the door and
killed her.
[15]
The accused, on the other hand, alleged that he had awoken from his
sleep in the early hours of the morning. It was very warm
and, when
he sat up, he noticed that two fans he had earlier positioned near
the sliding door in the room leading onto a balcony
were still
running and the door was still open. Although it was dark in the
room, he was aware that the deceased was awake in the
bed next to him
as she rolled over and spoke to him. He got out of bed, brought the
two fans into the room, closed and locked the
sliding doors, and drew
the curtains. It was very dark in the room, the only light being from
a small LED on an amplifier at the
TV cabinet. He noticed a pair of
jeans lying on the floor, and had just picked them up in order to
place them over the amplifier
to cover the light when he heard the
sound of a window opening in the bathroom. The bathroom is situated
not directly adjacent
to the bedroom but down a short passage lined
with cupboards. He immediately thought that there was an intruder who
had entered
the house through the bathroom window, possibly by
climbing up a ladder. He quickly moved back to his bed and grabbed
his 9mm pistol
from where he kept it under the bed. As he did so, he
whispered to Reeva to ‘get down and phone the police’
before
proceeding to the passage leading to the bathroom. He was not
wearing his prosthetic legs at that stage and, overcome with fear,
he
started screaming and shouting both for the intruder to get out of
his house and for Reeva to get down on the floor and to phone
the
police. When he reached the entrance to the bathroom, he stopped
shouting as he was worried that the intruder would know exactly
where
he was. As he neared the bathroom he heard the toilet door slam.
Photographs of the bathroom showed that facing the passageway
entrance there is a shower cubicle immediately adjacent to a toilet
cubicle, the latter having an external window. The toilet cubicle
is
fitted with a door, and is very small. Also in the bathroom is a
triangular built-in corner bath, immediately to the left as
one
enters.
[16]
According to the accused, he had his pistol raised in a firing
position with his arm extended ahead of him. Peering around
the wall
at the end of the passage, he saw that there was no one in the
bathroom itself but that the toilet door was closed. He
alleged that
at that point he started screaming again, telling Reeva, who he
presumed was in the bedroom, to phone the police.
He then heard a
noise coming from inside the toilet and promptly fired four shots at
the door. After that he retreated to the bedroom
where he found that
Reeva was no longer there. It then dawned on him that it could be her
in the toilet. In panic he went back
to the bathroom and tried to
open the door, but found it to be locked. He then started screaming
for help, put on his prosthetic
legs, and unsuccessfully tried to
kick open the door. He then grabbed a cricket bat which he used to
bash out a piece from the
door, and seeing the key lying on the
toilet floor, he unlocked the door and found Reeva slumped with her
weight on the toilet
bowl. She was not breathing. He held her, and at
some point thought he heard her breathing. And so he pulled her into
the bathroom
before telephoning another resident of the estate, Mr
Stander, (the phone call was made at 3:19) followed by the emergency
number
of Netcare 911, a paramedic organisation (at 3:20), and then
the estate’s security (some 90 seconds later). He thereafter
carried Reeva down the stairs where he was found, first by Mr Stander
and shortly thereafter by Dr Stipp, when they arrived at
the house.
[17]
With ample justification, the court found the accused to have been ‘a
very poor witness’. His version varied substantially.
At the
outset he stated that he had fired the four shots ‘before I
knew it’ and at a time when he was not sure if there
was
somebody in the toilet. This soon changed to a version that he had
fired as he believed that whoever was in the toilet was
going to come
out to attack him. He later changed this to say that he had never
intended to shoot at all; that he had not fired
at the door on
purpose and that he had not wanted to shoot at any intruder coming
out of the toilet. In the light of these contradictions,
one really
does not know what his explanation is for having fired the fatal
shots, an issue to which I shall revert in due course.
There were
other inherent improbabilities in his version, some of which were
mentioned by the trial court in its judgment.
[18]
It is not necessary to examine the accused’s credibility in any
greater detail for purposes of this judgment as, despite
these
deficiencies, the trial court concluded that it had not been shown
that the State’s version ─ that there
had been an
argument between the accused and the deceased which had led to her
fleeing to lock herself into the toilet and him
then shooting her
through the door ─ was true beyond a reasonable doubt; and that
the State had not shown that the accused
had fired at the toilet door
for any reason other he had thought there was an intruder behind it.
It therefore concluded that it
could not be said that the accused did
not entertain a genuine belief that there was an intruder in the
toilet who posed a threat
to him, and therefore ‘he cannot be
found guilty of murder
dolus directus
’.
Although it is not clear from the judgment, this finding appears to
have been based on the reasoning that the accused could
not be found
guilty of murder with direct intent as he had not known Reeva was in
the toilet (the correctness of this latter conclusion
was not an
issue raised in this appeal).
[19]
Importantly, the trial court went on to find that the accused, in
shooting as he did, had not done so with so-called legal
intent or
dolus eventualis
(an
issue that lies at the heart of this appeal). However, it found that
the shooting had been unlawful and that, although the accused
had not
had the necessary intention to kill the deceased, he had done so
negligently and was therefore guilty of culpable homicide.
The
accused was thereupon sentenced to five years’ imprisonment
capable of being converted to correctional supervision
under s
276(1)(
i
)
of the CPA.
[20] It
was pursuant to this finding that the State sought, and obtained, the
trial court’s leave to appeal to this court
in respect of
questions of law reserved under s 319 of the CPA. The questions, so
reserved, were the following:
‘
1.Whether
the principles of
dolus
eventualis
were
correctly applied to the accepted facts
and the conduct of the accused, including
error
in
objecto.
2.
Whether the court correctly conceived and applied the legal
principles pertaining to circumstantial evidence and/or pertaining
to
multiple defences by an accused.
3.
Whether the court was correct in its construction and reliance on an
alternative version of the accused and that this alternative
version
was reasonably possibly true.’
[21]
It is probably wise at this stage to briefly explain the ambit of
this appeal and what this court may consider. As a general
rule, an
appeal is a complete rehearing, without the leading of evidence, in
which a trial court’s conclusions of both fact
and law may be
challenged by having regard to the evidence on record. As a general
rule, then, a person convicted of a crime may,
on appeal, challenge
the credibility of the witnesses who testified at the trial as well
as the factual findings made by the trial
court upon which the
conviction was based. The trial court’s conclusions on matters
of law relevant to the conviction may
also be disputed.
[22]
However, in a case such as this, where effectively the State seeks to
appeal against the acquittal of the accused (in this
instance on the
charge of murder) and the appeal is brought under the provisions of s
319 of the CPA, different considerations
apply. Of course the State
may well feel justifiably aggrieved by a trial court acquitting an
accused person when, on the facts
of the case, a conviction should
have followed, but in such a case, as was observed by Corbett CJ in
Magmoed
[8]
‘the traditional policy and practice of our law’ is that
an acquittal by a competent court in a criminal case is final
and
conclusive and may not be questioned in any subsequent proceeding.
[23]
Consequently, as opposed to an accused who has the benefit of
appealing against a conviction based on alleged incorrect factual
findings, the State may not appeal against an acquittal based solely
on findings of fact. And as Chaskalson CJ pointed out in
Basson
:
[9]
‘
Prior
to 1948 [the State] could also not appeal against a finding of law
made in a trial before a Judge which resulted in the acquittal
of an
accused person. In 1948 the
Criminal Procedure Act then
in force was
amended to make provision for the reservation of questions of law at
the instance of the State in terms substantially
similar to
s 319
of
the present Act
.’
[24] In
the light of these decisions, the State has no right to appeal save
where there is a statutory right bestowed on it to do
so. In this
instance its right is limited to the three questions of law reserved,
quoted above. This court cannot interfere, for
example, with the
factual decision made by the trial court rejecting the State’s
version that there had been a disagreement
between the appellant and
the deceased that led the deceased to hide herself in the toilet to
escape from him, before being shot.
The matter must therefore
proceed, as was accepted by the State, on the basis both that its
rejected version cannot be reconsidered
and that it has not been
shown that the
accused
had acted with the direct intention to kill the deceased. The State’s
case before this court therefore revolved primarily
on whether the
trial court had erred in regard to the issue of
dolus
eventualis.
[25]
It is necessary to explain certain of the issues that arise for
consideration in a murder case. Over the years jurists have
developed
what has been referred to as the ‘grammar of criminal
liability’.
[10]
As already mentioned, murder is the unlawful and intentional killing
of another person. In order to prove the guilt of an accused
on a
charge of murder, the State must therefore establish that the
perpetrator committed the act that led to the death of the deceased
with the necessary intention to kill, known as
dolus.
Negligence, or
culpa
,
on the part of the perpetrator is insufficient.
[26]
In cases of murder, there are principally two forms of
dolus
which arise:
dolus directus
and
dolus eventualis.
These
terms are nothing more than labels used by lawyers to connote a
particular form of intention on the part of a person who commits
a
criminal act. In the case of murder, a person acts with
dolus
directus
if he or she committed the
offence with the object and purpose of killing the deceased.
Dolus
eventualis
, on the other hand, although
a relatively straightforward concept, is somewhat different. In
contrast to
dolus directus
,
in a case of murder where the object and purpose of the perpetrator
is specifically to cause death, a person’s intention
in the
form of
dolus eventualis
arises if the perpetrator foresees the risk of death occurring, but
nevertheless continues to act appreciating that death might
well
occur, therefore ‘gambling’ as it were with the life of
the person against whom the act is directed. It therefore
consists of
two parts: (1) foresight of the possibility of death occurring, and
(2) reconciliation with that foreseen possibility.
This second
element has been expressed in various ways. For example, it has been
said that the person must act ‘reckless
as to the consequences’
(a phrase that has caused some confusion as some have interpreted it
to mean with gross negligence)
or must have been ‘reconciled’
with the foreseeable outcome. Terminology aside, it is necessary to
stress that the
wrongdoer does not have to foresee death as a
probable consequence of his or her actions. It is sufficient that the
possibility
of death is foreseen which, coupled with a disregard of
that consequence, is sufficient to constitute the necessary criminal
intent.
[27]
These are the basic principles to be borne in mind in considering the
first of the three legal questions reserved for decision
in this
appeal. The first relates specifically to whether the trial court
properly applied these principles to the facts that it
had found had
been proved. In considering whether it did, it is necessary to quote
fairly fully the trial court’s reasoning
relevant to whether
the accused had acted with
dolus eventualis
when he fired the
fatal shots through the door of the toilet cubicle. In this regard it
said the following:
‘
I
now deal with
dolus
eventualis
or legal
intent. The question is:
1.
Did the accused subjectively foresee that
it could be the deceased
behind the toilet door
and
2.
Notwithstanding the foresight did he then fire the shots, thereby
reconciling
himself to the possibility that
it could be the
deceased in the toilet
?
The
evidence before this court does not support the state’s
contention that this could be a case of
dolus eventualis
.
On
the contrary the evidence shows that from the onset the accused
believed that, at the time he fired shots into the toilet door,
the
deceased was in the bedroom while the intruders were in the toilet.
This belief was communicated to a number of people shortly
after the
incident.
’
After
recording that the accused had told the persons who first arrived on
the scene, including Dr Stipp and the police, that he
had shot the
deceased believing that she was an intruder, the court continued:
‘
Counsel
for the defence correctly argued that it was highly improbable that
the accused would have made this up so quickly and be
consistent in
his version, even at the bail application before he had access to the
police docket and before he was privy to the
evidence on behalf of
the State at the bail application.
The
question is: Did the accused foresee the possibility of the resultant
death, yet persisted in his deed reckless whether death
ensued or
not? In the circumstances of this case the answer has to be no.
Although during argument counsel for the state referred
to “a
good grouping” of bullets fired at the door as proof that there
was intention to kill the person behind the door
there was nothing in
the evidence to support this.
How
could the accused reasonably have foreseen that the shots he fired
would kill the deceased or whoever was behind the door? Clearly
he
did not subjectively foresee this as a possibility that he would kill
the person behind the door, let alone the deceased, as
he thought she
was in the bedroom at the time. The version of the accused was that
had he intended to kill the person behind the
door he would have
aimed higher at chest level. This was not contradicted.
To
find an intention to kill the deceased, in particular, would be
tantamount to saying, inter alia, that the accused’s reaction
after he realised that he had shot the deceased was faked; that he
was play acting merely to delude the onlookers at the time.
Doctor
Stipp, an independent witness who was at the accused’s house
minutes after the incident had occurred, stated that the
accused
looked genuinely distraught, as he prayed to God and as he pleaded
with him to help save the deceased.
There
was nothing to gainsay that observation and this court has not been
given any reason to reject it and we accept it as true
and reliable
.
This court also
accepts that there was no intention to kill the person behind the
door
.
It follows that the accused’s erroneous belief that his life
was in danger excludes
dolus
.
The accused, therefore cannot be found guilty of murder
dolus
eventualis
.’
(The italicised emphasis is mine.)
[28]
I find the reasoning in this passage to be confusing in various
respects. The rhetorical question ‘How could the accused
reasonably have foreseen that the shots he fired would kill the
deceased or whoever was behind the door?’ wrongly applies
an
objective rather than a subjective approach to the question of
dolus
.
The issue was not what was reasonably foreseeable when the accused
fired at the toilet door but whether he actually foresaw that
death
might occur when he did so. As Holmes JA emphasised in
Sigwahla
:
[11]
‘
The
distinction must be observed between what actually went on in the
mind of the accused and what would have gone on in the mind
of a
[reasonable person] in the position of the accused. In other words,
the distinction between subjective foresight and objective
foreseeability must not become blurred.’
Moreover,
the question indicates that the court found the presence of a person
behind the door not to have been reasonably foreseeable;
but this is
at odds with its subsequent conclusion that the accused was guilty of
culpable homicide on the basis that a reasonable
person in the same
circumstances would have foreseen the reasonable possibility that the
shots fired at the door of the toilet
might kill whoever was in the
toilet.
[29]
Furthermore, the finding that the accused had not subjectively
foreseen that he
would kill
whoever was behind the door and that if he had he intended to do so
he would have aimed higher than he did, conflates the test
of what is
required to establish
dolus directus
with the assessment of
dolus
eventualis.
The issue was not whether
the accused had as his direct objective the death of the person
behind the door. What was required in
considering the presence or
otherwise of
dolus eventualis
was whether he had foreseen the possible death of the person behind
the door and reconciled himself with that event. The conclusion
of
the trial court that the accused had not foreseen the possibility of
death occurring as he had not had the direct intent to
kill, shows
that an incorrect test was applied.
[30]
There was a further fundamental error. It is apparent from the
extract of the judgment quoted above, in particular the two
questions
posed at the outset and the passages that I have emphasized, that the
trial court’s consideration of
dolus
eventualis
centred upon whether the
accused knew that the person in the toilet cubicle was Reeva, and its
conclusion that
dolus eventualis
had not been proved was premised upon an acceptance that, as he had
thought Reeva was in the bedroom, he did not foresee that she
was the
person in the toilet. Simply put, the finding was that as the accused
did not realise that it was Reeva in the toilet,
he did not foresee
that his action in shooting could cause her death and he could not be
held guilty of her murder.
[31]
This finding goes to the heart of the first question of law reserved
ie whether the principles of
dolus
eventualis
, including so-called ‘
error
in objec
to’, were properly
applied. In this regard, it is necessary to stress that although a
perpetrator’s intention to kill
must relate to the person
killed, this does not mean that a perpetrator must know or appreciate
the identity of the victim. A person
who causes a bomb to explode in
a crowded place will probably be ignorant of the identity of his or
her victims, but will nevertheless
have the intention to kill those
who might die in the resultant explosion. Reverting to the lexicon of
a lawyer, this is known
as intent in the form of so-called ‘
dolus
indeterminatus
’ ie the killing of
an indeterminate person.
[12]
It is not a form of intention apart from
dolus
directus
or
dolus
eventualis
; it is merely a label
meaning that the perpetrator’s intention is directed at a
person or persons of unknown identity. A
perpetrator can therefore
act with
dolus indeterminatus
simultaneously with
dolus eventualis
.
For example, as Snyman points out,
[13]
and as this court has recently observed,
[14]
our courts have consistently held persons engaged in a wild shootout
in the course of an armed robbery to be liable for murder
on the
basis of their having acted with both
dolus
eventualis
and
dolus
indeterminatus
where persons were
killed as a result.
[15]
[32]
What was in issue, therefore, was not whether the accused had
foreseen that Reeva might be in the cubicle when he fired the
fatal
shots at the toilet door but whether there was a person behind the
door who might possibly be killed by his actions. The
accused’s
incorrect appreciation as to who was in the cubicle is not
determinative of whether he had the requisite criminal
intent.
Consequently, by confining its assessment of
dolus
eventualis
to whether the accused had
foreseen that it was Reeva behind the door, the trial court
misdirected itself as to the appropriate
legal issue.
[33]
This conclusion shows the fallacy in the submission of counsel for
the accused that the first question of law raised solely
a question
of fact. Since the question as to the form of the intention of an
accused in a case of murder invokes a factual enquiry,
at best for
the accused the first question reserved invokes an issue of mixed
fact and law. As there was an incorrect application
of the legal
issue, the first point of law reserved must be determined in favour
of the State.
[34]
A further issue which arises in respect of
dolus
eventualis
overlaps with the second
point of law reserved for decision, namely whether the legal
principles relating to circumstantial evidence
were correctly
applied.
As this court has pointed out,
[16]
while the subjective state of mind of an accused person in a case
such as this is an issue of fact that can often only be inferred
from
the circumstances surrounding the infliction of the fatal injury, the
inference to be properly drawn must be consistent with
all the proved
fact
. It is thus trite that a trial court
must consider the totality of the evidence led to determine whether
the essential elements
of a crime have been proved.
[17]
As Nugent J stated in
Van der
Meyden
,
[18]
a passage oft cited with approval in this court:
[19]
‘
The
proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond reasonable doubt, and the
logical corollary is that he must be acquitted if it is reasonably
possible that he might be innocent. The process of reasoning
which is
appropriate to the application of that test in any particular case
will depend on the nature of the evidence which the
court has before
it. What must be borne in mind, however, is that the conclusion which
is reached (whether it be to convict or
to acquit) must account for
all the evidence. Some of the evidence might be found to be false;
some of it might be found to be
unreliable; and some of it might be
found to be only possibly false or unreliable; but none of it may
simply be ignored.’
[35]
In
Magmoed
one of the parties had been an accused in previous criminal
proceedings during which he had made certain vital admissions
relevant
to the issues in the subsequent proceedings. An application
to use the evidence in the previous proceedings was ruled
inadmissible,
and the issue arose whether this ruling was an issue of
fact or of law. Corbett CJ held that the trial court, which had ruled
the
evidence to be inadmissible, had erred as a matter of law, and
that ‘it would have served the due administration of justice’
for the evidence to have been admitted.
[20]
[36]
There seems to me to be no difference in principle between the
exclusion of relevant evidence by ruling it inadmissible and
excluding such evidence, once admitted, by not taking it into account
to decide the issues in dispute. In either event the judicial
process
becomes flawed by regard not being had to material which might affect
the outcome. As much as excluding evidence on the
basis of
admissibility is a legal issue, it seems to me to also be a legal
issue should account not be taken of any evidence placed
before court
which ought to be weighed in the scales.
[37]
Illustrative of this, is the decision of the Canadian Supreme Court
in
R v B
,
[21]
to which counsel for both sides referred us. The accused in that case
had been charged with assault, an allegation they denied.
The trial
judge acquitted them but the Court of Appeal allowed the Crown’s
appeal and ordered a new trial. In doing so, it
acknowledged that
under the Canadian Criminal Code, similar to the position in this
country, it was not open to an appellate court
to consider the
reasonableness of a trial judge’s findings of fact, but stated
it could determine whether the trial court
had properly directed
itself to all the relevant evidence bearing on the relevant issues.
It held that the trial judge had ignored
certain evidence, or failed
to mention it and, in doing so, displayed a lack of appreciation of
the relevant evidence which could
have had a bearing on the result.
This justified an appeal court interfering with the decision. In a
further appeal, this time
by the accused, the Supreme Court of Canada
confirmed the order of the Court of Appeal. In doing so, Wilson
J stated that
although it had not been open for the Court of Appeal
to overturn the acquittal if it found it to be unreasonable or
unsupported
by the evidence, it could do so on questions of law and
that an appeal would lie where the question of law originates from
the
trial judge’s conclusion that he or she is not convinced of
the guilt of the accused because of an erroneous approach to,
or
treatment of, the evidence adduced at trial.
[22]
After referring to the judgment of the majority of the Canadian
Supreme Court in
Harper
[23]
in which the court had held that where the record, including the
reasons for judgment, discloses ‘a lack of appreciation
of
relevant evidence and more particularly the complete disregard of
such evidence’ a court of appeal could intervene, Wilson
J
cited with approval
[24]
the following comment of Marshall JA in a judgment of the
Newfoundland Court of Appeal in
R v
Roman
,
[25]
a case also involving an acquittal (a passage which counsel for the
accused conceded in this court would also amount to an accurate
reflection of our law):
‘
There
is a distinction between reassessment by an appeal court of evidence
for the purpose of weighing its credibility to determine
culpability
on the one hand and, on the other, reviewing the record to ascertain
if there has been an absence of appreciation of
relevant evidence.
The former requires addressing questions of fact and is placed
outside the purview of an appellate tribunal
. . . the latter enquiry
is one of law because if the proceedings indicate a lack of
appreciation of relevant evidence, it becomes
a reviewable question
of law as to whether this lack precluded the trial judge from
effectively interpreting and applying the law.’
[38]
In the present instance, although the
question of the accused’s intention at the relevant time is one
of fact to be determined
by inference, there regrettably does appear
to have been such ‘an absence of appreciation of material
evidence’ relevant
to that issue. In this regard, the failure
of the court to take into account the evidence of Capt Mangena , a
police forensic expert,
whose evidence as to the reconstruction of
the crime scene was found by the court to have been ‘particularly
useful’,
is of particular importance. Having regard to the
position of the bullet holes in the door, the marks the bullets left
in the toilet
cubicle and the position of the injuries on the
deceased’s body, and after making use, inter alia, of laser
technology, he
determined that the deceased must have been standing
behind the door when she was first shot and then collapsed down
towards the
toilet bowl. Although the precise dimensions of the
toilet cubicle do not appear from the record, it is clear from the
photographs
that it is extremely small. And it is also apparent from
the reconstruction and the photographs, demonstrating with laser
beams
and steel rods the path each bullet had travelled, that all the
shots fired through the door would almost inevitably have struck
a
person behind it. There had effectively been nowhere for the deceased
to hide.
[39]
In addition, Capt Mangena testified that the Black Talon ammunition
the accused had used was specifically designed for the
purpose of
self-defence. It would penetrate a wooden door without disintegrating
but would mushroom on striking a soft, moist target
such as human
flesh, causing devastating wounds to any person who might be hit. The
veracity of this is borne out by the photographs
depicting the
injuries the deceased sustained, correctly described by the trial
court as being ‘horrendous’.
[40]
All of this was circumstantial evidence crucial to a decision on
whether the accused, at the time he fired the fatal four shots,
must
have foreseen, and therefore did foresee, the potentially fatal
consequences of his action. And yet this evidence was seemingly
ignored by the trial court in its assessment of the presence of
dolus
eventualis.
Had it been taken into
account, the decision in regard to the absence of
dolus
eventualis
may well have been
different. In the light of the authorities I have mentioned, to
seemingly disregard it must be regarded as an
error in law.
[41]
Consequently, the first two questions reserved for decision must be
answered in favour of the prosecution to the extent that
I have
indicated. I thus turn to the third question, namely, whether the
trial court was correct ‘in its construction and
reliance of an
alternative version of the accused and that this alternative version
was reasonably possibly true’. The question
as posed is vague.
Questions reserved for decision under s 319 of the CPA should be
clearly formulated so that this court can identify
with precision the
legal issue it is called upon to decide. At best for the State, the
question asks no more than whether the accused’s
version
accepted by the trial court was reasonably possibly true. This is a
factual decision. As already set out, and on the strength
of the
authorities to which I have referred, a finding of fact falls beyond
the scope of what this court may decide under s 319.
In any event, in
the light of my findings in regard to the first two questions, the
third question, even if it can be construed
as being a point of law,
seems superfluous.
[42] To
summarise, in regard to the questions of law reserved for decision of
this court:
(1) The
principles of
dolus eventualis
, including
error in objecto
,
were incorrectly applied to the facts found to be proved relevant to
the conduct of the accused; and
(2)
The trial court did not correctly conceive and apply the legal
principles pertaining to circumstantial
evidence.
[43]
The question then becomes, what should this court do in the light of
these findings? The powers of a court in the case of an
appeal on a
question of law reserved are set out in s 322 of the CPA as follows:
‘
(1)
In the case of an appeal against a conviction or of any question of
law reserved, the court of appeal may-
(a)
allow the appeal if
it thinks that the judgment of the trial court should be set aside on
the ground of a wrong decision of any
question of law or that on any
ground there was a failure of justice; or
(b)
give such judgment
as ought to have been given at the trial or impose such punishment as
ought to have been imposed at the trial;
or
(c)
make such other
order as justice may require:
Provided
that, notwithstanding that the court of appeal is of opinion that any
point raised might be decided in favour of the accused,
no conviction
or sentence shall be set aside or altered by reason of any
irregularity or defect in the record or proceedings, unless
it
appears to the court of appeal that a failure of justice has in fact
resulted from such irregularity or defect.
.
. . .
(4)
Where a question of law has been reserved on the application of a
prosecutor in the case of an acquittal, and the court of appeal
has
given a decision in favour of the prosecutor, the court of appeal may
order that such of the steps referred to in section 324
be taken as
the court may direct.’
[44]
Under s 324 of the CPA, referred to in s 322(4), where there has been
a misdirection of law, as has occurred in this case,
proceedings in
respect to the same offence may again be instituted before another
judge and assessors. Accordingly, it is a permissible
option for this
court to set aside the conviction of culpable homicide on count one
of the indictment and order that the accused
be tried
de
novo
on that count. However, given the
protracted nature of the trial that has already taken place, the
issues that were involved, the
time that has already elapsed and the
unfairness that may result if witnesses have once again to
testify,
[26]
it would seem to me to be wholly impracticable and not in the public
interest to follow that course. Indeed neither side pressed
for such
an order.
[45]
Counsel for the accused drew our attention to the fact that the
accused has already served the period of direct imprisonment
envisaged by the period of correctional supervision imposed upon him
by the trial court, and argued that apart from answering the
questions of law, this court should exercise its discretion under s
322 to make no further order. However, in my view, that
too is
undesirable. The interests of justice require that persons should be
convicted of the actual crimes they have committed,
and not of lesser
offences. That is particularly so in crimes of violence. It would be
wrong to effectively think away the fact
that an accused person is
guilty of murder if he ought to have been convicted of that offence.
[46]
In my view, the option which most readily presents itself as being in
the interests of justice is to consider whether on the
facts found
proved, the trial court erred in drawing the inference it did as to
dolus eventualis.
This is so as in an appeal of this nature this court is in as good a
position as the trial court in drawing inferences of fact
from proven
facts.
[27]
In my view, then, the interests of justice require this court on an
acceptance of the facts found proved, if of the view that the
incorrect conclusion was reached in respect of
dolus
,
to set aside the conviction of culpable homicide on count 1.
[47]
The pertinent issue then becomes whether, on the primary facts found
proved, considering all of the evidence relevant to the
issue, and
applying the correct legal test, the inference has to be drawn that
the accused acted with
dolus eventualis
when he fired the fatal shots. In this regard the following
observation of Brand JA in
Humphreys
is
to the point:
[28]
‘
[L]ike
any other fact, subjective foresight can be proved by inference.
Moreover, common sense dictates that the process of inferential
reasoning may start out from the premise that, in accordance with
common human experience, the possibility of the consequences
that
ensued would have been obvious to any person of normal intelligence.
The next logical step would then be to ask whether, in
the light of
all the facts and circumstances of this case, there is any reason to
think that the appellant would not have shared
this foresight,
derived from common human experience, with other members of the
general population.
’
[48]
In arguing that the State had failed to show that the accused lacked
the necessary subjective intention in respect of both
elements of
dolus eventualis
,
counsel for the accused emphasised the accused’s physical
disabilities, the fact that he had not been wearing his prostheses
at
the time and that he had thus been particularly vulnerable to any
aggression directed at him by an intruder. He also placed
considerable emphasis on the psychiatric evidence that the accused
suffers from a general anxiety disorder, and would become anxious
very easily in a situation of danger, although he also has a ‘fight
rather than flight’ reaction. The argument appears
to have been
that in the circumstances that prevailed, the accused may well have
fired without thinking of the consequences of
his actions.
[49]
In my view this cannot be accepted. On his own version, when he
thought there was an intruder in the toilet, the accused armed
himself with a heavy calibre firearm loaded with ammunition
specifically designed for self-defence, screamed at the intruder to
get out of his house, and proceeded forward to the bathroom in order
to confront whoever might be there. He is a person well-trained
in
the use of firearms and was holding his weapon at the ready in order
to shoot. He paused at the entrance to the bathroom and
when he
became aware that there was a person in the toilet cubicle, he fired
four shots through the door. And he never offered
an acceptable
explanation for having done so.
[50]
As a matter of common sense, at the time the fatal shots were fired,
the possibility of the death of the person behind the
door was
clearly an obvious result. And in firing not one, but four shots,
such a result became even more likely. But that is exactly
what the
accused did. A court, blessed with the wisdom of hindsight, should
always be cautious of determining that because an accused
ought to
have foreseen a consequence, he or she must have done so. But in the
present case that inference is irresistible. A person
is far more
likely to foresee the possibility of death occurring where the weapon
used is a lethal firearm (as in the present case)
than, say, a pellet
gun unlikely to do serious harm. Indeed, in this court, counsel
for the accused, while not conceding
that the trial court had erred
when it concluded that the accused had not subjectively foreseen the
possibility of the death of
the person in the toilet, was unable to
actively support that finding. In the light of the nature of the
firearm and the ammunition
used and the extremely limited space into
which the shots were fired, his diffidence is understandable.
[51]
In these circumstances I have no doubt that in firing the fatal shots
the accused must have foreseen, and therefore did foresee,
that
whoever was behind the toilet door might die, but reconciled himself
to that event occurring and gambled with that person’s
life.
This constituted
dolus eventualis
on
his part, and the identity of his victim is irrelevant to his guilt
.
[52] As
a final counter to the State’s case, it was argued that
although the accused had not acted in private or so called
‘self-defence’ ─ there had in fact been no
attack upon him that he had acted to ward off ─ he had
genuinely but erroneously believed that his life was in danger when
he fired the fatal shots. As opposed to what is commonly known
as
self-defence, this is so-called ‘putative’ private or
self-defence. The principles relevant to these two defences
were
authoritatively dealt with by this court in
De
Oliveira
,
[29]
and were explained by Smalberger JA as follows:
‘
The
test for private defence is objective ─ would a reasonable man
in the position of the accused have acted in the same way
(
S
v Ntuli
1975 (1) SA
429
(A) at 436E). In putative private defence it is not lawfulness
that is in issue but culpability (‘skuld’). If an accused
honestly believes his life or property to be in danger, but
objectively viewed they are not, the defensive steps he takes cannot
constitute private defence. If in those circumstances he kills
someone his conduct is unlawful. His erroneous belief that his life
or property was in danger may well (depending upon the precise
circumstances) exclude
dolus
in which case liability for the person’s death based on
intention will also be excluded; at worst for him he can then be
convicted of culpable homicide.
On
appeal the unlawfulness of the appellant’s conduct was not in
issue. Accordingly the only issue was whether the State had
proved
beyond all reasonable doubt that the appellant subjectively had the
necessary intent to commit the crimes of which he was
convicted, in
other words, that he did not entertain an honest belief that he was
entitled to act in private defence . . .’
[53]
The immediate difficulty that I have with the accused’s
reliance upon putative private defence is that when he testified,
he
stated that he had not intended to shoot the person whom he felt was
an intruder. This immediately placed himself beyond the
ambit of the
defence, although as I have said, his evidence is so contradictory
that one does just not know his true explanation
for firing the
weapon. His counsel argued that it had to be inferred that he must
have viewed whoever was in the toilet as a danger.
But as was pointed
out in
De Oliviera
,
[30]
the defence of putative private defence implies rational but mistaken
thought. Even if the accused believed that there was someone
else in
the toilet, his expressed fear that such a person was a danger to his
life was not the product of any rational thought.
The person
concerned was behind a door and although the accused stated that he
had heard a noise which he thought might be caused
by the door being
opened, it did not open. Thus not only did he not know who was behind
the door, he did not know whether that
person in fact constituted any
threat to him. In these circumstances, although he may have been
anxious, it is inconceivable that
a rational person could have
believed he was entitled to fire at this person with a heavy calibre
firearm, without taking even
that most elementary precaution of
firing a warning shot (which the accused said he elected not to fire
as he thought the ricochet
might harm him). This constituted prima
facie proof that the accused did not entertain an honest and genuine
belief that he was
acting lawfully, which was in no way disturbed by
his vacillating and untruthful evidence in regard to his state of
mind when he
fired his weapon.
[31]
[54]
In order to disturb the natural inference that a person intends the
probable consequences of his actions, the accused was required
to
establish at least a factual foundation for his alleged genuine
belief of an imminent attack upon him. This the accused did
not do.
Consequently, although frightened, the accused armed himself to shoot
if there was someone in the bathroom and when there
was, he did. In
doing so he must have foreseen, and therefore did foresee that the
person he was firing at behind the door might
be fatally injured, yet
he fired without having a rational or genuine fear that his life was
in danger. The defence of putative
private or self-defence cannot be
sustained and is no bar to a finding that he acted with
dolus
eventualis
in causing the death of the
deceased.
[55]
In the result, on count 1 in the indictment the accused ought to have
been found guilty of murder on the basis that he had
fired the fatal
shots with criminal intent in the form of
dolus
eventualis
. As a result of the errors
of law referred to, and on a proper appraisal of the facts, he ought
to have been convicted not of culpable
homicide on that count but of
murder. In the interests of justice the conviction and the sentence
imposed in respect thereof must
be set aside and the conviction
substituted with a conviction of the correct offence.
[56]
Of course the accused has now served a portion of the sentence
imposed upon him in respect of the lesser offence of culpable
homicide. But the issue of what would be an appropriate sentence was
not debated before this court, quite properly, particularly
in the
light of the Constitutional Court’s judgments in
Nabolisa
[32]
and
Bogaards
[33]
as the matter must be sent back to the trial court for sentence to be
imposed afresh. In doing so, obviously whatever punishment
has
already been served by the accused in respect of the incorrect
conviction of culpable homicide will be taken into account.
[57]
Before closing, it is necessary to make a final comment. The trial
was conducted in the glare of international attention and
the focus
of television cameras which must have added to the inherently heavy
rigors that are brought to bear upon trial courts
in conducting
lengthy and complicated trials. The trial judge conducted the hearing
with a degree of dignity and patience that
is a credit to the
judiciary. The fact that this court has determined that certain
mistakes were made should not be seen as an
adverse comment upon her
competence and ability. The fact is that different judges reach
different conclusions and, in the light
of an appeal structure, those
of the appellate court prevail. But the fact that the appeal has
succeeded is not to be regarded
as a slight upon the trial judge who
is to be congratulated for the manner in which she conducted the
proceedings.
[58] The
following order is made:
1 The
first two questions of law reserved are answered in favour of the
Director of Public Prosecutions.
2 The
accused’s conviction and sentence on count 1 are set aside and
replaced with the following:
‘
Guilty
of murder with the accused having had criminal intent in the form of
dolus eventualis
.’
3
The matter is referred back to the trial court to consider an
appropriate sentence afresh in the light of the comments in
this
judgment.
_______________________
L E Leach
Judge of Appeal
Appearances:
For the
Appellant:
G C Nel (with him A Johnson, DWM Broughton and JS Grant)
Instructed
by:
Director of Public Prosecutions, Pretoria
Director of Public Prosecutions,
Bloemfontein
For the Respondent:
B Roux SC (with him S Jackson and R Adams)
Instructed
by:
Ramsey Webber, Johannesburg
Lovius Block, Bloemfontein
[1]
The reference to the Appellate
Division in the section must for present purposes be taken as an
appeal to this court.
[2]
R v
Solomons
1959
(2) SA 352
(A).
[3]
R v Gani &
others
1957
(2) SA 212 (A).
[4]
S v
Seekoei
1982
(3) SA 97 (A).
[5]
See
S
v Mene
1978 (1) SA
832
(A) at 838A-C.
[6]
S v Basson
2007 (1) SACR
566 (CC.
[7]
Para 148.
[8]
Magmoed v Janse van Rensburg
& others
[1992] ZASCA 208
;
1993 (1)
SACR 67
(A) at 101g-i.
[9]
S v Basson
[2004] ZACC 13
;
2004 (1) SACR
285
(CC) para 108.
[10]
See CR Snyman
Criminal
Law
5
th
ed (2008) at 29.
[11]
S v Sigwahla
1967 (4) SA 566
(A) at 570C-E.
[12]
Compare eg
S
v Mavhungu
1981 (1)
SA 56
(A) at 66H.
[13]
CR Snyman,
Criminal
Law
5ed (2008) at 200
- 201.
[14]
Nkosi v The State
(20727/14)
[2015] ZASCA 125
(22 September 2015) para 5.
[15]
See eg
S
v Nhlapo & another
1981 (2) SA 744 (A).
[16]
Inter alia, in
S
v Dlodlo
1966 (2) SA
401
(A) at 405G-H.
[17]
S v Libazi & another
2010 (2) SACR 233
(SCA) para 17.
[18]
S v Van
der Meyden
1999
(1) SACR 447
(W) at 449j-450c.
[19]
Eg
S
v Mdlongwa
2010 (2)
SACR 419
(SCA) para 11.
[20]
At 827G.
[21]
R v B
(G)
(1990) 56 CCC (3d) 181 (SCC); (1990) 2 SCR 57.
[22]
Para 28.
[23]
Harper v R
[1982] 1 SCR
2
, 65 CCC (2d) 193, 133 DLR (3d) 546 40 NR 255.
[24]
Para 34.
[25]
R v Roman
(1987),
38 CCC (3d) 385, 66 Nfld. & PEIR 319, 204 APR 319.
[26]
Compare
Magmoed
at 827I-J.
[27]
R v Dhlumayo
1948 (2) SA 677
(A) at 705-6,
S
v Crossberg
[2008] ZASCA 13
;
2008 (2)
SACR 317
(SCA) para 149 and
Minister
of Safety and Security & others v Craig & others
NNO
2011
(1) SACR 469
(SCA) para 58.
[28]
S v Humphreys
2015 (1) SA 491
(SCA) para 13.
[29]
S v De Oliveira
1993
(2) SACR 59
(A) 63i-64b.
[30]
S v De Oliveira
1993
(2) SACR 59
(A)
.
[31]
Compare
De
Oliveira
at 64H-65C.
[32]
S v Nabolisa
2013
(2) SACR 221
(CC) para 82.
[33]
S v Bogaards
2013
(1) SACR 1
(CC) paras 74 and 75.