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[2010] ZAWCHC 556
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Nicholson v S (11206/2008) [2010] ZAWCHC 556 (12 November 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No.: 11206/2008
In
the matter between:
RICARDO
ENRICO NICHOLSON
…............................................................
Appellant
and
THE
STATE
…........................................................................................
Respondent
JUDGMENT DELIVERED:
FRIDAY, 12 NOVEMBER 2010
SALDANHA,
J
[1.]
The appellant Mr. Ricardo Nicholson was charged in the Regional
Court, Wynberg with two counts of murder and one of attempted
murder.
He was convicted on the 9
th
September
2009 on all three counts and sentenced to an effective term of
imprisonment of twenty two and a half years. He was granted
leave to
appeal against both the conviction and the sentence.
[2.]
The charges arises out of an incident on the 17
th
of
December 2006 in Manenberg, Cape Town where the appellant was alleged
to have shot and murdered Mordecai Van Rooyen and Eirefaan
Peters and
is also to alleged to have attempted to murder Moegamat Adams by
shooting at him.
[3.]
The appellant was legally represented at the trial and having pleaded
not guilty on all three counts chose not to disclose
the basis of his
defence.
(4.J
The state tendered the evidence of 6 witnesses while the appellant
chose not to testify nor to call any witnesses in his defence.
[5.]
The central issue in appeal on the conviction is whether the state
had proved beyond reasonable doubt the identity of the appellant
as
having been the assailant on al! three charges.
[6.]
The appellant formally admitted in terms of section 220 of the
Criminal Procedure Act the identity of both the deceased. In
respect
of Mordecai Van Reenen the appellant admitted that the cause of his
death was a gun shot wound to the head of which he
died on the 17
th
December
2006. In respect of Eirefaan Peters the appellant admitted the cause
of death as being multiple gunshot wounds on the abdomen
and body and
that he had died on the 17
lb
December
2006. The appellant also formally admitted the contents and findings
of the medical legal post mortem examinations conducted
by a Dr.
Sandisa Potelwa on the 17
lh
and
19
,h
December
2006 and in which the causes of death of both deceased were recorded.
The appellant further admitted the contents of a
forensic affidavit
with regard to the ballistic findings in respect of two cartridges
which were found on the scene. A set of photographs
of the scene were
also admitted.
[7.]
The incident occurred in the early hours of the morning of the 17
th
December
2006 in Manenberg in an area well known for a high incidence of gang
activity.
[8.]
Mr. Adams the complainant on the third count testified that in the
early hours of the morning of the 17
th
December
2006 he was in the company of the two deceased while walking home
from a place from which they had just purchased drugs
for their use.
The appellant who appeared to have been in the company of other
persons approached them and accompanied them. It
appeared to Adams
that the appellant was known to the deceased and while walking along
Thames Avenue in the direction of Thames
Lane the appellant asked
them if they had any drugs for him to smoke. They replied that they
did not and during the course of the
conversation between the
appellant and the deceased Adams heard the appellant say that people
in the area had suspected him, the
appellant, of being a member of
the the Hard Livings "HL" gang. The appellant claimed that
he was in fact a member of
the Young Americans "YA" gang
and showed them a tattoo on his arm with the inscription "YA".
The appellant
was not known to him and Adams had asked one of the
deceased who the appellant was. He was told by them that the
appellant was
known as "Madora". Adams claimed that he saw
that the appellant was holding onto a gun in the pocket of his
jacket. He
described the handle of the gun as being black in colour.
As they approached the intersection of Thames Avenue and Thames Lane
the appellant said to them that they should look out for the police
who he claimed were driving around in the area. He thereupon
turned
around to leave them. As Adams and the deceased proceeded along
Thames Lane Adams suddenly heard gunshots and out of fear
all three
of them immediately ran. Van Rooyen fell and as Adams turned around
he saw the appellant with a gun in his hand running
and shooting at
them. Peters had run next to him and at some stage Peters also fell.
He continued running while the appellant gave
chase behind him. The
appellant gave up and ran away in the opposite direction. He
immediately went to Peters who laid not far
from Van Rooyen. Van
Rooyen appeared to be laying still while Peters had cried out in pain
and he saw that they had been shot.
Adams in a state of panic
immediately ran to the homes of the deceased to call their families.
He returned to the scene where one
of the family members of Peters
tended to him while the police and ambulance were called. Adams
claimed that he had subsequently
made a statement to the police and
informed them that the assailant was a person by the name of Madora.
He claimed that the appellant
had a cap on and that he could have
clearly seen his face. He also claimed that the incident occurred
while it was just beginning
to get light and that he was able to have
clearly seen the appellant.
[9.]
Adams further claimed that at a later stage he met the appellant
while in the cells at the Athlone Police Station. He claimed
that the
appellant had said to him that he did not really want to shoot at him
but that he had really targeted the deceased. Adams
said nothing in
response to the appellant. He claimed that the deceased were members
of the "26" gang and that the appellant
was also a member
of the same gang. Adams had not attended a formal identification
parade but was asked to identify the appellant
from a set of
photographs handed to him by the investigating officer Witbooi. He
identified the appellant on one of the photographs.
The set of
photographs of twelve faces was also handed into evidence with the
consent of the defence. One of the photograps on
which the appellant
had been identified was signed by Adams
[10.]
In cross-examination Adams conceded that in his statement to the
police he had stated that he was not certain if he would
have been
able to identify Madora if he saw him again. He claimed though that
he would be able to identify the tattoo marks of
the person. He
further claimed in the statement that Madora had on a woolen cap
which was up to his eyes. He also claimed that
he and the deceased
had been about five to seven minutes in the company of Madora as they
walked along Thames Avenue.
[11.]
He
disputed the version of an alibi by the appellant which was put to
him that the appellant had been at home asleep when the incident
occurred. It was also put to him that although the appellant had seen
him in the cells at the Athlone Police Station the appellant
would
claim that because the cell was very full he did not have the
opportunity of talking to Adams. The appellant would also claim
that
he did not know that Adams was to have been a witness against him.
[12]
Mrs.
Yvonne
Madat the mother of the deceased Van Rooyen testified that she was
taken to the scene of the incident but did not get out
of the vehicle
as she was traumatized by having seen her son laying dead on the
scene. She asked Adams what had happened and he
said that she should
speak to Peters. Peters said to her that it was "Madora"
who shot at them. The defence had no objection
to this hearsay
evidence being led.
[13.]
Madat did not know Madora and she had also made a statement to the
police.
[14.]
Police
Officer Carl Allies
testified
that he was one of the first policeman to arrive at the scene. He
found the two deceased laying near the corner of Thames
Avenue and
Thames Lane and one appeared to have been shot in the pelvic area and
the other in the back of the head. He claimed
that by the time he
arrived at the scene it had become much lighter and that the weather
had been clear. The one who had been shot
in the back of the head did
not respond to him while the other was able to speak. He asked Peters
for his details and also asked
him if he knew who had shot at them.
Peters claimed that it was Madora. Peters also explained to him that
they had been in the
company of Madora when the incident occurred. He
recorded the name Madora in his statement and he also testified that
he found
empty cartridges on the scene.
[15.]
The state tendered the evidence of
Constable
Jeffrey Martin Witbooi
who
was the second investigating officer in the matter. It appeared that
at some stage after the appellant had first been arrested
the charges
were withdrawn against him. One of the post mortem reports had not
been available and the magistrate had refused to
postpone the matter
further. The charges were therefore provisionally withdrawn against
the appellant. Witbooi continued with the
investigation of the matter
after it had been withdrawn against the appellant. He consulted with
all
of
the state witnesse and confirmed that the complainant Adams had said
to him that all he knew was the name of the person who had
shot at
them as Madora. Adams had subsequently found out who the appellant
was. Witbooi had arranged with Adams to attend a formal
identification parade but when he contacted Adams again Adams
informed him that he had since seen the appellant at the cells in
Athlone Police Station where the appellant had made certain
utterances to him. He therefore did not think it necessary to conduct
a formal identification parade except to show Adams a set of
photographs from which he identified the appellant. Witbooi claimed
that the appellant was known to him as a member of a gang in
Manenberg. He claimed that gang members had been profiled by the
Criminal Investigation Unit and records were kept of each of them. He
claimed that he knew the appellant by the name Madora and
when he
arrested the appellant again on the case that was the name the
appellant had given him. He also checked in the Criminal
Investigation Profile which confirmed the appellant's nickname as
been Madora. In cross-examination it was put to him that the
appellant would admit that he was a member of the 26's and that he
had also been a member of the Young Americans but that he had
since
attempted removing the tattoo because he did not want to belong to
any particular gang. He claimed that as a member of the
"26"
gang he was known as a "Madota" which is a name commonly
used amongst the 26 gang. Witbooi denied any
knowledge of the
appellant being referred to as Madota.
[16.]
It was also put to Witbooi that the appellant would confirm that he
had been questioned by the police about his background
as part of the
profiling process and that the appellant had informed them about his
schooling and his membership of gangs. The
appellant would deny
though that he had read and confirmed the details taken down in the
profile.
[17.]
Inspector
Rodney Calvin Abrahams
testified
that he was the initial investigating officer in the matter. The
complainant Moegamat Adams had made a statement to him
in which a
person by the name of Madora was identified as the assailant. He
claimed that he immediately recognized the name Madora
as that of the
appellant who was known to him. He thereafter checked the Criminal
Investigation profile records and confirmed that
the name Madora was
that of Ricardo Nicholson the appellant. He had also recalled that he
had previously been an investigating
officer in a case of
housebreaking in which the appellant had been involved in. He
thereafter arrested the appellant. In the subsequent
questioning of
the appellant the appellant confirmed to him that he was known by the
name Madora. He however did not take down
the statement of the
appellant in writing.
[18]
In cross examination he maintained that the appellant was known to
him as Madora He also claimed that he had worked for a very
long time
in the Manenberg area and was familiar with the known gangsters. He
claimed that he would not have easily forgotten a
nickname such as
"Madora". He denied that he had mistaken the appellant for
other persons who were known as "Madota's"
who are members
of the 26 gang. It was also put to him that the appellant's version
was that he was known as a "Madota"
in the context of being
a member of the 26 gangs and that he had also been a member of the
Young Americans.
[19.]
Police
Officer Frederick John White
testified
that he was part of the Criminal Intelligence Unit in the Manenberg
area. The unit's task was to profile known gang members
and to
discern patterns of criminal activity in the area. He claimed that on
the 20
lh
December
2006 he had met the appellant early in the morning prior to the
appellant attending court. He interviewed the appellant
and his
personal details and schooling was taken down. The various nicknames
given to him by the appellant such as "Cardo"
and "Madora"
were also recorded. Various tattoo marks on the body of the appellant
was also recorded and photographed-
The appellant had a "YA"
tattoo on his forearm and the words "agcha" and
u
boy"
was tattooed on his leg. The magistrate recorded from an inspection
of the appellant's arm that the tattoo marks YA was
still visible
although it appeared that the appellant had other markings over it.
White claimed that he was not involved at all
in the investigation of
the charges against the appellant and his task only related to
criminal intelligence and profiling. Two
pages of the profile
document were handed in as evidence with the consent of the defence.
In
cross
examination White claimed that he did not know of any other person in
the Manenberg area who was also known as Madora. He
claimed thai he
had known the appellant prior to the 20'
h
December
2006 and that he was known by the name Madora.
[20.]
The state thereafter closed its case whereupon the defence applied
for the discharge of the appellant in terms of section
174 of the
Criminal Procedure Act. The application was dismissed. The appellant
thereafter closed his case without tendering any
evidence.
[21.]
The
magistrate in his evaluation of the evidence indicated that he shared
the same concerns as the defence counsel about the identification
of
the appellant if it was only to be based on the photograph
identification. He did not regard such identification as reliable
and
attached were little weight to it. He however stated that he
understood why the police had not held a formal identification
parade
in the circumstances. The magistrate took into account that the name
Madora was given to the witness Adams by the deceased
when they
initially met the appellant. The name was also given by Peters to
both Mrs. Madat and the police officer Allies at the
scene as the
person who had shot at them. Adams himself had also testified that as
he had turned around while running he saw the
person known as Madora
shooting at them.
[22.]
The
magistrate dealt extensively in the evaluation of the evidence with
regard to the question as to whether the appellant had been
identified as the person Madora who shot the deceased and Adams. The
magistrate was impressed with Adams as a witness whom he had
observed
had not hesitated in answering questions especially where it
incriminated him. In that regard Adams had admitted that
they had
gone to buy drugs when he had accompanied the deceased. Adams also
admitted that he had been arrested in another case
and that is how he
landed up in the same cell with the appellant. The magistrate noted
that there was no suggestion by the defence
in cross-examination that
there was any reason or motif for the witness Adams to have falsely
implicated the appellant. Adams has
testified that he did not know
the appellant when they first met and that the name Madora was given
to him by one of the deceased.
He
also conceded that he had only seen the face of the appellant from
the eyes downwards and that he had said to the police that
he was not
sure as to whether he would have been able to identify the person
Madora again. However it only became clear to him
after the appellant
had approached him in the police cells at Athlone where the appellant
apologized for having shot at him, that
Adams was convinced of the
identity of the appellant as Madora. The magistrate correctly
approached the facial identification of
the appellant by Adams with
the necessary caution given the circumstances in which the incident
had taken place and the limited
opportunity for the observation of
the assailant by Adams. However the name Madora which was given to
the police during the course
of the investigation was clearly linked
to that of the appellant from not only the personal knowledge of the
three police officers
who knew the appellant as a member of the gangs
in Manenberg but also as the name that was recorded on the criminal
profile of
the appellant. The magistrate was satisfied that the
police officers had correctly linked the appellant to the name
Madora. Moreover,
Adams had testified that he had seen the "YA"
tattoo mark on the inner arm of the appellant. The tattoo mark
accorded
with that which the court observed on the appellant's arm in
the court. The court found that the observation supported Adams
identification
of the appellant. In the assessment of all the
evidence of the state the court was satisfied that there was
sufficient corroboration
by the police with regard to the
identification of the appellant as "Madora" and that of
Adams's evidence as having seen
the person Madora shot at him and the
deceased.
[23.]
However in the face of all the evidence of the state the appellant
elected not to testify. The question arises therefore is
whether the
state had successfully placed sufficienct evidence before the court
to secure a conviction on the evidence of only
the state witnessess.
In this regard see
S
v
Budda
& Others
2004 (1) SACR 9
(T)
in which the following were stated:
"Yet
there are, as has been held by the Supreme Court of Appeal and the
Constitutional Court, limits to this right (to silence)There
comes a
stage in a prosecution where an accused has a duty to tell her or his
story or to lead other evidence, which would show
that, for example^
the denial of participation is reasonably possibly true. The question
is, of course, whether that stage has
been reached in this case."
[24]
See
also
S
v
Chabalala
2003 (1) SACR 134
(SCA) Heher AJA
stated,
in
para
[20]. as follows:
'As
was pointed out in S v Mthetwa
1972 (3) SA 766
(A) at 769D: "Where
. . . there is direct prima facie evidence implicating the accused in
the commission of the offence, his
failure to give evidence, whatever
his reason may be for such failure, in general ipso facto tends to
strengthen the State case,
because there is nothing to gainsay it and
therefore less reason for doubting its credibility or reliability;
see S v Nkombani
and Another
1963 (4) SA 877
(A) at 893G and S v
Snyman
1968 (2) SA 582
(A) at 588G."
[25]
See also
S
v
Boesak
[2000] ZACC 25
;
2001 (1) SA 912
;
"The
fact that an accused person is under no obligation to testify does
not mean that there are no consequences attaching to
a decision to
remain silent during the trial. If there is evidence calling for an
answer, and an accused person chooses to remain
silent in the face of
such evidence, a court may well be entitled to conclude that the
evidence is sufficient in the absence of
an explanation to prove the
guilt of the accused. Whether such a conclusion is justified will
depend on the weight of the evidence.
What is stated above is
consistent with the remarks of Madala J, writing for the Court, in
Osman
and Another v Attorney-General, Transvaal
,
24 when he said the following:
'Our
legal system is an adversarial one. Once the prosecution has produced
evidence sufficient to establish a
prima
facie
case,
an accused who fails to produce evidence to rebut that case is at
risk. The failure to testify does not relieve the prosecution
of its
duty to prove guilt beyond reasonable doubt. An accused, however,
always runs the risk that, absent any rebuttal, the prosecution's
case may be sufficient to prove the elements of the offence. The fact
that an accused has to make such an election is not a breach
of the
right to silence. If the right to silence were to be so interpreted,
it would A destroy the fundamental nature of our adversarial
system
of criminal justice.'
[26.]
In considering the approach of the magistrate to the issue of
identification I am satisfied that he correctly found that the
appellant had been properly identified as the person Madora who had
shot at the deceased and the witness Adams. Moreover in the
face of
the evidence proffered by the state the appellant ought to have led
evidence in response thererto. During the course of
cross examination
his alibi and version was put to the state witnesses yet none of it
was confirmed under oath.
[27.]
In the result I propose to uphold the convictions of murder and that
of attempted murder.
Ad sentence
[28]
The provisions of the Minimum Sentence Act Act 105 of 1997 were
applicable to the charges. The magistrate however found that
the
murder of the deceased was not premeditated and therefore dealt with
the sentence as falling under Part 2 of Schedule 2 of
Act 105 of
1997. The accused was 23 years at the time of sentencing and had
lived with his family members. It appeared that while
he was awaiting
trial he became the father of twins who were living with their
mother. The mother of the children was unemployed.
The appellant had
been a member of a band from which he had earned some money. Counsel
for the appellant emphasised that the appellant
was brought up in an
environment which was plagued by gangsterism and violence and that he
did not enjoy the opportunities afforded
to others in his upbringing
and community. The appellant had left school in grade 9.
[29]
The magistrate having considered the appellant's circumstances
pointed to the prevalence of the crimes of violence in the Manenberg
area The magistrate also appeared to be mindful of the circumstances
in which the appellant had grown up in but did not find that
it was
an excuse for his conduct. It also appeared that the murder of the
deceased was gang related which lead to the deceased
being killed in
cold blood
[30]
The court did not find that the appellant's difficult upbringing nor
his personal circumstances constituted substantial and
compelling
circumstances that warrented a lesser sentence than the prescribed
sentence of less than 15 years on counts one and
two.
[31.]
The court however took into account the cumulative effect of the
three charges and the fact that the appellant had spent over
a year
and a half in custody awaiting trial.
[32.]
It is apparent from the magistrate's sentence that he had properly
weighed the appellant's personal circumstances with that
of the
seriousness of the offence and the interests of the public. It is
also apparent that the magistrate had tempered his sentence
with a
measure of mercy in ordering that half of the sentence of fifteen
years on the second count run concurrently with that of
count one.
The sentence of five years imprisonment on count 3 was also ordered
to run concurrently with that of count one. In the
result
I
also
propose to uphold the sentence and order as follows;
(1.)
The appeal against conviction and sentence is dismissed.
(2.)
The conviction on all three counts and the sentence imposed by the
magistrate
is confirmed.
SALDANHA
J
I
AGREE
GERBER,
AJ