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[2010] ZAWCHC 470
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Grootboom v S (A244/2010) [2010] ZAWCHC 470 (10 September 2010)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
CASE
NUMBER: A244/2010
DATE:
10 SEPTEMBER 2010
In
the matter between:
NEIL
GROOTBOOM
…........................................................................
Appellant
and
THE
STATE
….................................................................................
Respondent
JUDGMENT
WRAGGE,
AJ
:
On
5 June 2007 the appellant, Neil Grootboom, was convicted in the Cape
Town Regional Court of the murder of Shahied Benting,
("the
victim") on the night of 19 March 2000. The appellant was
sentenced to a period of 15 years direct imprisonment.
The appellant
appeals against his conviction, only, with the leave of the court a
quo.
The
Trial
:
I
believe that it is important for the purposes of determining this
appeal that a short description of the trial proceedings be
given.
At the commencement of the trial both the appellant and his
co-accused, Royston Price ("Price"), were represented
by
the same legal representative, namely Mr Catsicadellis. Both the
appellant and Price pleaded not guilty to the single charge
against
them. On behalf of his clients, Mr Catsicadellis gave a short
explanation of plea to the effect that both the appellant
and Price
denied that they had any involvement in the murder.
A
post-mortem
report
was handed in and its contents were admitted as proof in terms of
sections 212(7) of the Criminal Procedure Act. It appears
from the
post-mortem
report
that the forensic pathologist, Dr Van der Heyde, examined the body
of the victim on 20 March 2000 and found the cause of
death to be a
penetrating gunshot wound to the victim's head. Dr Van der Heyde was
also able to recover the bullet that had caused
the victim's death.
The
State led the evidence of three policemen, Constable Bailey,
Inspector Rossouw and Sergeant Delport. All of the policemen
testified that they had attended at the scene of the shooting in
Glider Crescent, Factreton and that they had been given a
description of the alleged perpetrators. Inspector Rossouw and
Sergeant Delport, together with Sergeant Isaacs, set off in search
of the alleged perpetrators. The found the appellant and Price in
Lugmag Avenue, Factreton, a short distance from Glider Crescent
and
arrested them. Inspector Rossouw testified that he searched Price
and found in his possession a Rossi .38 special revolver
from which,
it transpired, the shot that had killed the victim had been fired.
After
Sergeant Delport had completed his evidence the trial was postponed.
When the trial recommenced Mr Catsicadellis advised
the Court that
problems had arisen which rendered it necessary for him to apply to
withdraw as the legal representative of both
the appellant and
Price. Mr Catsicadellis explained that neither the appellant nor
Price had consulted with him properly since
the beginning of the
case. He had asked them to attend at his offices, but they had not
done so. New information had since come
in to his possession, which
rendered it impossible for him to continue to act for the accused.
Mr Catsicadellis' application
was granted and for the remainder of
the trial the appellant and Price were separately represented.
The
State then called a fourth policeman, Sergeant Isaacs, who confirmed
the evidence given by Inspector Rossouw and Sergeant
Delport in most
respects. A ballistic report was thereafter handed in as evidence.
According to the report, a spent bullet found
at the scene of the
murder, as well as the spent bullet removed from the victim's head,
had been fired from the Rossi revolver
which, according to the
evidence of the police, had been found on the person of Price. The
contents of the ballistic report were
formally admitted by the
defence.
The
fifth witness called by the State was Moegsien Benting who was the
uncle of the victim. He testified that on the night of
the murder,
he and the victim were walking along Glider Crescent on their way to
buy drugs. The appellant and Price walked towards
them. Benting and
the victim greeted the appellant and Price. The appellant then
pulled out a revolver and pointed it at them.
Shots were fired and
Benting ran away, leaving the victim behind. He confirmed that it
was the appellant who had shot the victim.
Under cross-examination
he confirmed also that when the shooting occurred, Price stood
alongside the appellant, but did not have
the firearm.
Under
cross-examination by the appellant's legal representative, Benting
was referred to a statement that he had made to the police.
His
evidence had been that he had made the statement on the day
following the incident. (This is although the Commissioner of
Oath's
attestation, on the statement bears the date 31 May 2000, over two
months after the incident occurred). In the statement
Benting had
declared that two shots were fired. He also stated that he did not
know if the shots were fired by Price or the appellant,
but only the
appellant had a gun. Benting confirmed once again that it was the
appellant who had fired at them. The State then
closed its case.
Price
then gave evidence which no doubt came as a surprise to the
appellant. He testified that on the evening of the incident
he was
at his grandmother's house in Sunderland Street, Factreton. He had
been at his grandmother's house for the weekend and
they had been to
the funeral of his uncle. The same night he had accompanied the
appellant to the house of the appellant's wife
in Acre Road in
Factreton. On their way there, as they were walking through Glider
Crescent, he needed to relieve himself and
went behind a bush.
Whilst he was doing this, the victim and Benting arrived on the
scene. He was doing up his trousers when
he heard shots. He ran
towards the group and saw Benting run away. He did not see the
victim, but saw that the appellant had
a firearm in his hand. The
appellant pressed the firearm into Price's hands and told him to
take the firearm and to run away.
When
they got to Lugmag Avenue, the police arrived and instructed them to
stand still. Price threw the revolver into a nearby
strip of veld,
but the police saw him doing this, arrested him and recovered the
firearm. He denied that, as the police had testified,
the weapon was
found in his possession. Under cross-examination it was put to Price
that the appellant would testify that the
two of them had gone to
visit the appellant's wife in Acre Road and that on the way back
they had been arrested in Lugmag Avenue.
It was put to him that the
appellant would say that at no stage had they walked down Glider
Crescent. Price denied this and said
that he had never visited the
appellant's wife. The Court also pointed out to Price that his
evidence differed from what he had
told his legal advisor. Price
testified that during the period that he and the appellant had had
the same legal advisor, the
appellant had threatened him and said
that he should not tell the truth.
The
appellant thereafter gave evidence. He testified that on the night
in question he met Price in the backyard of a house and
asked Price
to go with him to visit the appellant's wife in Acre Road. They duly
went to the house of the appellant's wife where
the appellant went
inside to visit his wife, leaving Price outside. When he emerged,
Price had left, but he thereafter coincidentally
met Price in Lugmag
Avenue, running towards him. He confirmed that the revolver had been
found in Price's possession. He denied
that he and Price had ever
been in Glider Crescent.
Lawrence
Williams was then called by the appellant to give evidence on his
behalf. The taped record of Mr Williams' evidence has
gone missing,
but the magistrate was able to reconstruct Mr Williams' evidence
from his notes. Mr Williams testified that he
knew the appellant and
was also aware of the shooting incident in Glider Crescent on 19
March 2000. He had heard the shots and
he had run to the scene of
the shooting where he was arrested. When he was at the police
station the appellant and Price were
brought in. He testified that
he had seen the appellant and Price in Glider Crescent before the
incident. They were walking in
the direction of Acre Road and went
past him. He asked the appellant where they were going and the
appellant told him that they
were going to his girlfriend's house.
Under cross-examination he testified that he heard the shots
approximately five minutes
after he had seen the appellant and
Price. His house was in Glider Crescent between the scene of the
shooting and Acre Road.
The appellant then closed his case.
The
Judgment
:
The
magistrate drew attention to the evidence of the police to the
effect that the revolver used to shoot the victim had been
found in
Price's possession and the evidence of Price that whilst he had had
the revolver in his possession, he threw it into
the veld when the
police arrived. He held this discrepancy to be of little relevance
because Price admitted that the revolver
had been in his possession
at one time. The magistrate placed emphasis on the evidence of
Benting regarding the circumstances
in which the shooting of the
victim had occurred. He found the discrepancies between the contents
of the statement made by Benting
and his evidence not to be
material.
The
magistrate recognised that the State's evidence of the circumstances
of the shooting was solely that of Benting, a single
witness, but
held that his evidence could not be regarded in isolation. He
emphasised that Benting's evidence corroborated the
version of the
shooting given by Price in his evidence. The magistrate thereafter
focused on the evidence of Price. He stated
that he recognised the
dangers inherent in assessing the evidence of a co-accused and
referred specifically to the judgment of
Miller
,
JA in
S
v Dladla
1980(1)
SA 526 (A) at 529A-E, and held that it was necessary to exclude the
possibility that Price was not attempting to transfer
blame to the
appellant and so put himself in a better light.
The
magistrate referred to the statement by Benting and, although the
Commissioner of Oath's attestation was dated 31 May 2000,
more than
two months after the shooting, he accepted Benting's evidence that
he had made the statement after the incident. The
appellant and
Price were in custody at that time and in the magistrate's view
there was no opportunity for Price and Benting
to conspire together
to implicate the appellant in the crime. He found, therefore, that
it was so unlikely that Benting and Price
could have conspired to
implicate the appellant that this possibility could be excluded. He
also considered the appellant's evidence
and pointed out that in
material respects his evidence was in conflict with that of his own
witness, Lawrence Williams. Whereas
the appellant had testified that
he had been at his wife's house in Acre Road when the shooting
occurred, Williams testified
that he had seen the appellant and
Price passing his house on the way to Acre Road some minutes before
the shooting occurred.
The
magistrate accordingly found that the risks involved in accept the
evidence of Price were reduced, because his evidence had
been
corroborated by that of Benting. He also took into account the
unlikelihood of there having been a conspiracy between Price
and
Benting and the material contradictions in the version that the
appellant had apparently given to Mr Catsicadellis and which
had
been put to the witnesses and his evidence. The magistrate
recognised, however, that the fact that Price made common cause
with
the appellant during the first part of his evidence, raised a
question as to his credibility. He found, however, that Price
had
given a version as to how the weapon had come into his possession
which was most convincing and his evidence was confirmed
in material
respects by that of Benting.
Having
regard to the aforegoing the magistrate concluded that there was no
room, on the grounds of the quality and weight of the
evidence
adduced by the State, to find that there was a reasonably
possibility that the appellant's version was the truth. Having
found
that the doctrine of common purpose did not apply, the magistrate
acquitted Price and convicted the appellant of murder.
The
Appeal
:
Mr
Theunissen
,
who appeared on behalf of the appellant, submitted that the
magistrate had erred in the following respects:
(a)
The Court erred in using, as its point of departure, the evidence of
Price, the co-accused. The magistrate should instead
have focused on
the evidence of Benting, a single witness.
(b)
Benting's evidence was unsatisfactory in a number of respects:
(i)
Benting
was a gangster and the shooting was clearly a gang affair. Benting
may, therefore, have had some reason to give false
evidence to the
effect that the appellant and not Price, shot the victim.
(ii)
The
magistrate erred in accepting Benting's evidence that he had made
his statement to the police on the day after the shooting
(which
would have been 20 March 2000). It was clear from the statement that
it had been made on 31 May 2000, over two months
after the shooting.
It was submitted that this was an indication that Benting was an
untruthful witness. It was submitted further
that there were
indications that the magistrate accepted the evidence of Price
uncritically and perhaps too enthusiastically.
In this regard:
(a)
After the appellant had given evidence, the magistrate revoked his
bail. It appeared from the record [page 162 (7-15)] that
Price's
advocate may have made submissions to the magistrate in chambers
with regard to his client's safety. It was submitted
that this
constituted an irregularity and provided an indication that the
magistrate had already been persuaded that the appellant
had shot
the victim.
(b)
The magistrate found Price's explanation of how the firearm came to
be in his possession convincing, whereas there must be
doubt that
Price's evidence in this regard was untruthful.
With
regard to the evidence of Price, it was submitted that there were a
number of factors that cast doubt on the truth of his
evidence:
(a)
His evidence differed from the instructions that he had obviously
given to Mr Catsicadellis, his first legal representative.
(b)
He had every reason to lie and to implicate the appellant because he
had to find a way of explaining why the revolver had
been in his
possession.
(c)
His evidence that he had thrown the revolver away before the police
arrived was contradicted by the evidence of Rossouw, Delport
and
Isaacs, all of whom testified that the firearm was found on his
person.
Ms
Rafels
,
who appeared for the State, agreed that the magistrate had erred in
concentrating on the evidence of Price and thereafter seeking
support for Price's evidence in the evidence of Benting. She
accepted that the magistrate's point of departure should have been
Benting's evidence. Ms
Rafels
submitted,
however, that Benting's evidence should be accepted. The
contradictions were not material and his evidence was confirmed
by
Price in its central respect, i.e. that it had been the appellant
who had had the revolver in his possession and who had fired
the
shot that killed the victim.
She
submitted further that as far as the contradictions between the
evidence of Benting and Price were concerned, it had to be
borne in
mind that Benting and Price testified more than six years after the
murder had taken place and that it would, therefore,
have been
surprising if their evidence had been consistent in all respects.
She submitted further that it was unlikely that Price
had tailored
his evidence to coincide with Benting's evidence, because Mr
Catsicadellis had withdrawn as the appellant's and
Price's legal
representative
before
Benting
had given evidence. Although there was nothing in the record which
suggests that Mr Catsicadellis withdrew because Price
had implicated
the appellant in the shooting, it is reasonable to assume that this
was indeed the reason.
Mr
Rafels
submitted
in conclusion that it was evident that the magistrate had regarded
Benting as a single witness and had applied the cautionary
rule in
assessing his evidence. Such contradictions as there were in
Benting's evidence and between his statement made to the
police and
his evidence, were not material.
This
appeal
The
appeal in this matter is against the magistrate's findings of fact.
It is well established that a court of appeal should approach
the
matter aware that the trial court was in a better position than the
appeal court to make reliable findings of fact. In the
absence of a
demonstrable and material misdirection by the trial court, its
findings of fact are presumed to be correct and will
only be
disregarded if the recorded evidence shows them to be clearly wrong.
(
S
v Hadebe & Others
1997(2)
SACR 641 (SCA) at 645e-f). If there has been a demonstrable and
material misdirection by the trial court, a court of appeal
will be
free to come to its own findings instead of the trial court. (
R
v Dhlumavo
1948(2)
SA 677 (A) at 706,
R
v Tusini & Another
1953(4)
SA 406 (A) at 412B-G).
In
my view the concession by the State that the magistrate erred in
focusing primarily on, and unreservedly accepting, the evidence
of
Price, a co-accused and possible accomplice, whereas he should
properly have given consideration and applied the cautionary
rule to
the evidence of Benting, was well made. I agree with Mr
Theunissen
's
submission that it is evident from the judgment that the magistrate
appears to have paid lip service to the cautionary rule
as regards
the evidence of Price. Price's evidence was open to attack on a
number of grounds. His evidence was contrary to what
he had clearly
instructed his legal representative, Mr Catsicadellis, at the
beginning of the trial. This may well be explained
by his initial
alliance with the appellant. However, I do not find his explanation
as to how the revolver came to be in his possession
"uiters
oortuigend".
His
evidence that he threw the revolver away is also contrary to the
evidence given by the policemen who arrested the appellant
and
Price. Price also had a strong possible motive for implicating the
appellant, namely to escape conviction himself, and he
also had to
find a way of explaining why the revolver had been in his
possession. In my view, therefore, the magistrate's primary
reliance
on, and acceptance of, the evidence of Price to convict the
appellant, constituted a material misdirection which entitles
this
Court to consider the evidence afresh and to make its own findings.
As
I have indicated above, it seems to me that the proper approach in
the present matter is to evaluate Benting's evidence as
a single
witness in order to determine whether his evidence meets the
standard required by law and should be accepted. Looking
at the
evidence as a whole, the ultimate question is whether the State
discharged its onus of proving beyond reasonable doubt
that the
appellant fired the fatal shot. Whilst section 208 of the Criminal
Procedure Act allows for the conviction of an accused
on the
evidence of a single competent witness, it is well established that
such evidence should be treated with the utmost care.
However,
there is no mechanical rule which applies to the assessment of such
evidence. It is necessary to weigh the evidence,
consider its merits
and demerits and having done so, to decide whether the evidence is
trustworthy, even though there may be
shortcomings or defects or
contradictions in the testimony. (
S
v Sauls
1981(3)
SA 172 (A) at 180E-G,
S
v Webber
1971(3)
SA 741 (A) at 758G-H). It is necessary to guard against separating
the evidence into compartments. The conclusion whether
to convict or
not, must be based on all the evidence. (
S
v Van den Mevden
1999(1)
SACR 447 (W) at 449f-450a,
S
v Cornick
2007(2)
SACR 115 (SCA) at para [41]). It is also necessary to have regard to
the inherent probabilities of the appellant's version.
(
S
v Stevens
[2005]
ALL SA 1
(SCA) at para [26]).
In
my view the fact that Benting was a gang member and that the
shooting may have been related to a gang war, is not a factor
which
casts doubt on Benting's credibility. Under cross-examination he
testified that he was no longer a gang member. The only
reason put
to Benting as to why he might implicate the appellant in the
shooting, was that they both used to be gang members
and that
Benting still had something against the appellant. What that
"something" might have been was not put to Benting,
who
denied that he had any reason to implicate the appellant.
By
the time that the appellant testified six months had past since
Benting had given his evidence and the appellant had retained
a
third legal representative, Ms
Van
der Westhuizen
.
The appellant, therefore, had ample time to consider why Benting
might want to implicate him in the shooting. During his evidence
in
chief he testified that Benting lied to the Court, because they were
members of opposing gangs. He testified further, however,
that on
the weekend of the shooting he had not had any problems with any
gang member, including Benting.
Under
cross-examination by Price's legal representative, the appellant
testified that the gang warfare that he had referred to
in his
evidence in chief had occurred many years previously, that he had no
problems with Benting and that he could not say why
Benting would
want to implicate him in the shooting. With regard to the submission
that Benting must have lied about the date
upon which he made his
statement to the police, whilst I would not go so far as the
magistrate did in accepting Benting's evidence
in this regard
unequivocally, in my view this evidence cannot be rejected as being
untruthful. In his evidence in chief he testified
that he told the
police about the incident on the day after it had occurred and that
the police took a statement on that day.
Price's
legal representative put to Benting that he had made his statement
on 31 March 2000 (I assume that he must have misread
the date of the
Commissioner of Oath's attestation which was 31 May 2000). Benting
testified that he could not remember the precise
date upon which he
made the statement. One has to ask why he should lie in this
relatively unimportant regard. Furthermore, having
regard to the
fact that more than six years elapsed between the incident and the
date that he gave his evidence, it would be
unsurprising if Benting
had an unclear recollection of precisely when he made the statement
to the police.
The
remaining ground upon which Benting's evidence was criticised was
that it was inconsistent with the statement that he had
made to the
police. Mr
Theunissen
agreed
that the suggestion made to Benting during cross-examination that,
whereas he testified that it was the appellant who had
fired the
fatal shot, in his statement he had testified that he did not know
if it was Price or the appellant who had shot at
Benting and the
victim, was without merit. In his statement Benting declared that
the appellant had pulled the firearm out of
his raincoat pocket and
had shot at Benting and the victim. He stated further that he and
the victim had then turned and ran.
There were further shots and it
was in respect of these shots that Benting could not say whether
they were fired by the appellant
or Price, save that it was the
appellant who had a firearm.
Mr
Theunissen
,
however, submitted that whilst Benting had testified that he and the
victim had merely greeted the appellant and Price before
the
shooting occurred, in his statement he had declared "ons het
vir Neil-hulle gegroet, waarop Neil gemeld het dat ons,
ek en
Shahied, lankal nie vol is nie". (Benting testified that, in
gang parlance, this indicated that there was friction
between them).
It was submitted that Benting's failure to refer to this in his
evidence provided an indication that he was being
untruthful. I do
not agree. When cross-examined on this aspect by Price's legal
representative, Benting stated that the incident
had occurred a long
time ago and he could only remember the important facts. I do not
find this to be unreasonable, given the
time that had elapsed
between the date of the shooting and when Benting gave his evidence.
(
S
van Janse van Rensburq
2009(1)
SACR 221 (C) at para's 14 and 15).
In
summary, I do not consider that the various criticisms of Benting's
evidence have any great merit and, in my view, certainly
do not
justify a rejection of his evidence. Benting's evidence as to the
identity of the shooter is also corroborated by the
evidence of
Price, albeit that such evidence must be approached with great
caution. It may be suggested that Price, who testified
six months
after Benting, had sufficient opportunity to tailor his evidence to
coincide with Benting's evidence. Benting, however,
made his
statement to the police, identifying the appellant as the shooter at
the latest on 31 May 2000, being the date of the
attestation of the
Commissioner of Oath's. Until the hearing was adjourned on 2
December 2002, however, the appellant and Price
had made common
cause that they had not been involved in the shooting in any way at
all. It was during the period December 2002
till April 2003 that Mr
Catsicadellis was presumably placed in possession of instructions
which made it impossible for him to
continue as the legal
representative of both the appellant and Price.
The
reasoning of the magistrate which led him to conclude that it was
highly improbable that Benting and Price could have conspired
to
implicate the appellant in the shooting therefore, has validity,
whether or not Benting's statement was made on the day following
the
incident or on 31 May 2000. There is, however, less reason to doubt
Price's evidence that both he and the appellant were
present
together at the scene of the shooting. On the appellant's own
evidence, they were together not long before the shooting
and then
"coincidentally" very shortly thereafter. Benting was
never in any doubt that he and the victim encountered
two men,
namely the appellant and Price. Furthermore, the evidence of the
police was that they immediately started searching
the neighbourhood
for two alleged perpetrators as opposed to a single person.
The
question which arises is whether, bearing in mind the dangers of
accepting an accomplice's evidence and Price's possible motive
to
exonerate himself, Price's evidence should be accepted as providing
corroboration for Benting's evidence that the shooter
was the
appellant. The only other possible inferences are that, although the
appellant was present, Price fired the fatal shot,
or the two men
involved in the incident were Price and an unknown person. Neither
of these scenarios accords with Benting's clear
evidence as to the
appellant's presence and role in the shooting, whilst the second
scenario has Price falsely substituting the
appellant for the true
gunman in the shooting. I regard these scenarios as far fetched.
In
my view, notwithstanding the dangers inherent in accepting the
evidence of an accomplice and the not insubstantial criticism
of
aspects of Price's evidence, in the light of the factors which I
have mentioned I consider that, at the least, Price's evidence
as to
the identity of the shooter can be accepted as providing
corroboration for Benting's evidence on this issue. Regarding
Benting's evidence on its own terms, I do not find anything therein
which suggests that he was being untruthful or that his evidence
should not be accepted. I have dealt with the criticisms earlier in
this judgment. Furthermore, his evidence reads well and he
stood up
well to cross-examination. In my view his evidence meets the
standard for the acceptance of the evidence of a single
witness,
namely that it is satisfactory in all material respects.
The
evidence of the appellant on the other hand, was unsatisfactory in a
number of respects. In the first place his evidence differed
from
what his legal representative, Mr
Catsicadellis,
put to the State witnesses. In short it was put to the State
witnesses that his evidence would be that he and Price
were walking
together down Lugmag Road when a group of people ran by. A police
van then stopped alongside them and they were
searched. The police
persistently asked the appellant and Price whether they knew where
the men who had run past, were. No firearm
was found on either of
their persons, but the police found a firearm when searching a
nearby strip of veld with their torches.
He and Price were then
handcuffed and put into the police van, while the police went off in
search of the group of men. The appellant
was struck in the mouth
with the butt of a pistol.
The
appellant's evidence, however, was that he and Price went to the
house of the appellant's girlfriend, where they parted. He
left his
girlfriend's house and encountered Price running towards him along
Lugmag Road. The police thereafter arrived and found
Price in
possession of the firearm. He denied that he had been assaulted by
the police. He also agreed with the evidence of the
police that
Lugmag Avenue was quiet and that he and Price were the only people
on the street. The appellant's evidence was also
contradicted by
that of his own witness, Williams. It seems that the magistrate
misconstrued the appellant's evidence as being
to the effect that
the appellant was with his girlfriend in Acre Road when the shooting
occurred. In fact the appellant testified
that he was in Ventura
Crescent when he heard the shots. Williams testified, however, that
he had seen the appellant and Price
in Glider Crescent before the
shooting. The appellant denied that he and Price had ever been in
Glider Crescent together.
When
one has regard to the probabilities, in my view the case against the
appellant is strengthened. Neither the appellant nor
any other
witness could suggest any plausible reason why Benting might lie,
both in his statement to the police and his evidence,
and implicate
the appellant in the shooting of the victim. I take into account the
evidence that gunshot residue tests were carried
out on both Price
and the appellant but no positive results were found. There was,
however, no expert ballistic evidence and
thus this fact is of
limited, if any, assistance to the appellant.
In
the light of Benting's evidence, corroborated as it is by Price's
evidence in material respects (most notably the identity
of the
shooter), and the inherent probabilities, I consider that the
evidence of the appellant must be rejected as being not
reasonably
possibly true. Even if I am wrong in concluding that reliance can be
placed on Price's evidence as corroboration for
Benting's evidence
of the identity of the shooter, I am satisfied that Benting's
evidence was such that the appellant could be
safely convicted on
its strength alone. I am satisfied, therefore, that no reason exists
to interfere with the magistrate's finding
that the State had proved
beyond reasonable doubt that the appellant was guilty of the murder
of Shaheed Benting. I would accordingly
dismiss the appeal against
the conviction.
WRAGGE,
AJ
BOZALEK.
J
:
I agree. The appeal against conviction is dismissed.
BOZALEK.
J