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[2012] ZASCA 70
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Keyser v S (634/11) [2012] ZASCA 70; 2012 (2) SACR 437 (SCA) (25 May 2012)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 634/11
Reportable
In the matter between:
HEINRICH
CARL KEYSER
….......................................................................
APPELLANT
and
THE STATE
…............................................................................................
RESPONDENT
Neutral citation
:
Keyser v State
(634/11)
[2012] ZASCA 70
(25 May 2012)
Coram:
HEHER,
SNYDERS, WALLIS JJA, McLAREN AND SOUTHWOOD AJJA
Heard:
9 May 2012
Delivered:
25 May
2012
Updated:
Summary: Criminal
Procedure – appeal – charges referring to
unconstitutional presumptions – necessary to examine
whole of
the trial record to determine whether a failure of justice or
unfairness in the conduct of the trial has resulted.
Criminal procedure –
Drugs and Drug Trafficking Act 140 of 1992
– dealing –
courier importing 6.5 kg of cocaine – sentence.
____________________________________________________________________________________
ORDER
On appeal from:
South Gauteng High Court
(Johannesburg) (Jajbhay and Mathopo JJ sitting as court of appeal):
The appeal against the
conviction and sentence is dismissed.
_______________________________________________________________________
JUDGMENT
_____________________________________________________________________
HEHER JA (SNYDERS, WALLIS
JJA, McLAREN AND SOUTHWOOD AJJA):
[1] This is an appeal
from the late Jajbhay J and Mathopo J sitting on appeal from a
judgment of a regional magistrate. The appeal
is with leave of the
court a quo, with Lamont J sitting vice Jajbhay J.
[2] The appellant, a 35
year old married man, was arrested at Johannesburg International
Airport on 10 December 2004. He had just
boarded a flight to Cape
Town having earlier that morning arrived in Johannesburg on a Varig
flight from Sao Paolo, Brazil. He
was charged with, and subsequently
convicted of, dealing (in the sense of importing) in 6545 grams of
cocaine in contravention
of
s 5(b)
of the
Drugs and Drug Trafficking
Act 140 of 1992
. He was sentenced to imprisonment for 20 years. This
appeal is against conviction and sentence.
[3] The grounds of appeal
against the conviction are two-fold. First, the appellant submits
that the trial was voided in its entirety
by the fact that the charge
to which he pleaded (and which was not afterwards amended) informed
him that the State would rely on
ss 20
and
21
of the Act. These
sections contain reverse onus provisions that have been declared
unconstitutional in various cases.
[4] In
Daniels v S
(125/11
[2012] ZASCA 71
(25 May 2012), the judgment in which is delivered
today, I have explained that a criminal conviction can only be set
aside on the
ground of irregularity after consideration of the whole
record in order to determine whether a failure of justice or an
unfair
trial has resulted from that irregularity. The mere inclusion
in a charge sheet of references to statutory provisions that have
been declared unconstitutional, whilst irregular, does not per se
mean that there has been a failure of justice or an unfair trial.
[5] The shortcomings in
the charge in the present appeal are a case in point. The appellant
does not allege and the record disproves
that reference to the
unconstitutional reverse onuses influenced the conduct of the
prosecution or his own response in any way.
It is clear that the
magistrate had no resort to the impugned provisions in arriving at
his judgment. If the ‘taint’
flowing from the error is
discounted, as the authorities require, the same conclusion of guilt
must inevitably have followed. The
appellant’s reliance on the
irregularity is no more than technical as it did not deprive him of a
fair trial.
[6] Second, the
appellant’s counsel went on to submit, with marked skill, that
the state had nevertheless failed to prove
the case beyond a
reasonable doubt. Despite his best endeavours I remain unpersuaded
for the reasons that follow.
[7] The state case
established without contradiction that a rucksack weighing 27kg was
placed by the appellant on a flight from
Sao Paolo to Johannesburg.
When it arrived in Johannesburg it was found to hold 13 plastic bags
containing clothes soaked in a
cocaine solution, and a shampoo bottle
holding what appeared to be a cocaine-loaded condom. When the
clothing had been washed and
the separated solution analysed it was
found to contain 6,5kg of cocaine. The State also led evidence of
incriminating statements
said to have been uttered by the appellant
to the investigating police officer after his arrest. All this called
for an answer
from the appellant. The defence he relied on under oath
was that he was an innocent courier exploited by persons unknown to
him.
[8] A general overview of
the evidence will assist in an understanding of the respective
strengths and weaknesses of the parties’
contentions.
[9] The appellant lived
in Cape Town. He had lost his employment at a night club, as a
‘bodyguard’ in the ‘security
field’. There is
apparently little demand for such workers in South Africa. A friend,
one Selsa, arranged job interviews
for him in Argentina and Brazil,
though he apparently speaks little Spanish and no Portuguese. Selsa
provided half of the return
airfare to South America, that is about
R4000. Selsa was not called to confirm or explain his generosity or
his general interest
in the appellant’s welfare.
[10] The appellant
travelled to South America with one small overnight bag. He also
returned with the same bag. He had intended,
he testified, to spend
about a week away. Instead, he stayed more than a month.
[11] Neither job
interview was productive. In Brazil the prospective employer was not
even available but sent an agent (‘Joe’)
on his behalf,
for a purpose not clearly explained in the evidence. Be that as it
may, Joe not only invited the appellant to spend
time with him in
Manaus but also of his own volition paid for his return air fare from
Sao Paolo to that city and, apparently,
his accommodation in a hotel.
Manaus is, according to the appellant’s evidence about a ten
hour flight from Sao Paolo. (The
atlas shows it to be on the
upper/central Amazon about 2000km distant.)
[12] Precisely how the
appellant employed his time in Manaus was unexplored in the
cross-examination (which, I am sorry to report,
was, as a whole,
extremely superficial). After a week or so the appellant decided to
return home with a promise that the prospective
employer would
interview him in Cape Town early in the following year.
[13] Before he departed,
Joe asked the appellant, ‘as a favour’, to carry a
rucksack containing clothing to Johannesburg.
The bag, unlocked and
unaddressed, was to be left on the carousel in the customs hall at
Johannesburg airport before the appellant
exited customs. It would
there be collected by or for someone called Diego. The appellant
apparently found nothing strange in this
arrangement and he asked no
questions, notwithstanding his admitted awareness that South America
was a source of the drug traffic
and that unsuspecting persons were
used to promote the transfer of illicit drugs from South America to
South Africa.
[14] According to the
appellant he opened the rucksack handed to him by Joe at his hotel in
Manaus before leaving for the airport.
He found, by pushing his hand
right to the bottom of the bag, that it was ‘jam-packed’
with clothing and contained
nothing else. Neither bag nor contents
gave off a noticeable smell. The appellant checked the bag in at
Manaus airport and collected
it on the conveyor belt on arrival at
Sao Paolo airport the next morning. He immediately deposited it ‘for
safe-keeping’
and only collected the bag again when he checked
in that afternoon for the flight to Johannesburg. The rucksack
weighed 27kg. From
the time of handing the bag over to the airline
representatives in Sao Paolo until his arrival in Johannesburg he did
not see the
bag. At no stage did he notice a change in the weight or
shape of the bag or its contents. As requested, the appellant
abandoned
the bag on the carousel in the customs hall.
[15] Deliberately or
inadvertently he also left, attached to it, a luggage tag bearing his
name and flight number. Thus, Inspector
Mars of the SA Police,
engaged in a routine check and finding the unattended luggage, had no
difficulty in tracing the appellant
to his internal flight to Cape
Town from which he was removed moments before its departure. What
followed was the subject of some
disagreement in court.
[16] According to Mars
when he first found the bag and checked it he became aware of an oily
smell perhaps caused by brake fluid.
He was aware that such fluids
are used by smugglers to deter sniffer dogs. On placing the bag under
X-ray it was not possible to
identify the contents because of its
density. He unzipped the bag and could see a package wrapped in
plastic in it. He cut a hole
in the package, releasing a strong
chemical odour such, as in his experience, emanates from a large
amount of cocaine.
[17] Mars accompanied the
appellant back to the police offices at the airport. On the bus he
explained to the appellant that he
had found a bag from Sao Paolo
that possibly contained cocaine and that the appellant had booked the
bag in himself as the name
tag showed. The appellant confirmed that
and said that he had booked it in for another person named Beiro in
Sao Paulo and it contained
clothing. He explained that he had been
told to bring the bag to Johannesburg and leave it in the customs
hall where someone would
collect it. Mars then arrested the
appellant.
[18] Before Mars took a
warning statement from him, the appellant repeated his version adding
that there was clothing inside the
bag for a friend. He said he had
checked it himself.
[19] The evidence in
chief of Mars continued:
‘
The
photographer came to the office and I started opening the bag and
while we took out the bag there was some other clothing inside
that
has already been worn. I asked him is the clothing his. At that stage
he said no he does not know what was inside the bag.
I then told him
about DNA testing that we can prove that the clothing that is inside
that he did wear it or there could be traces
of him in that clothing.
He then told me yes the clothing inside the bag except for the
packages he did wear it and it is his clothing.
The photographer then
took pictures of all the exhibits inside the bag. I took out all
these packages. There was clothing like
denims and T-shirts all
wrapped in plastic and then there was in between there was another
plastic with oil inside with a very
strong smell like brake fluid
like I said I think that was to deter any if there were dogs that
could pick up the scent of cocaine.
I took photographs of all these
packages with this sticky substance that I know it is a cocaine
paste.’
.
. . The clothing that he said it is his clothing I put in other bags
and that was also put in the safe. After he told me that
he did wear
the clothing and it is his I did not send if off for DNA testing. . .
On
the 13
th
of the 12
th
month I took all these bags to
forensic to be analyzed. After photos have been taken I was busy in
my office with the administration
work on this docket. The suspect
then voluntarily told me again that a person who lives with Cell was
a person who sent him out
to South America.
Say
again? – Cell. He just gave me the name Cell.
Cell.
– Yes Your Honour and this person send him out to South America
and the bag he brought back was for him. He would have
been paid 5
000 dollars for bringing in the bag and his instructions
(intervenes).
PROSECUTOR
:
How much? – 5 000 dollars US dollars. The instructions was that
not to take the bag out of the customs area because there
is people
in the vicinity he has got that will take the bag out of the customs
area. I also gave him an opportunity to phone someone
of which he
then phoned the Cell person and he also phoned a guy by the name of
Frederick. While talking to this person on the
phone from the one
side of the conversation I heard on my side is that this person knew
what he was doing in South America and
what he was arrested for.’
Later Mars added:
‘
Your
Honour when I arrested him he said he was employed but he lost his
job. He worked as a I think it is a bouncer or a guard at
a club. At
that stage he was not employed.
And
as he was not employed at that particular stage did he tell you where
is he getting money to travel like this? – Your
Honour like I
said he told me that Cell introduced him to go and get cocaine on the
other side and he came back. So obviously a
syndicate paid for his
ticket as well.’
[20] Mars also testified
about a conversation that he had with the appellant while unpacking
the bag:
‘
Your
Honour like I testified in the beginning he said the bag with the
clothing everything does not belong to him but after I opened
it and
I started unpacking the stuff then he showed some of the clothing
inside belongs to him that he did had it on and this is
one of the
T-shirts as well as the other photos I testified about. This T-shirt
in particular was right underneath all these packages.
So the
packages had to be the T-shirt had to be put in first before all the
packages was placed on top.’
According to the witness
the clothing that the appellant had identified as his own was not
sent for forensic analysis ‘because
there was not any cocaine
inside’.
[21] The appellant denied
in his evidence that any of the clothing in the bag had been worn by
or belonged to him or that he had
admitted that to Mars. He claimed
that when the policeman threatened to send the clothing for DNA
testing the appellant said he
was welcome to do so and that he would
not find anything that belonged to him. That, he supposed, was why
Mars had left the threat
unfulfilled.
[22] Nor did the
appellant, so he said, tell Mars that he was to be paid 5000 dollars.
His version was as follows:
‘
So
I said to him well if you work in South America I can earn anything
from 5 000 dollars and up working there as a bodyguard so
we had a
bit of an argument about that as well and that is the only 5 000
dollars that I mentioned to him while I was there.
COURT
:
Were you able to speak Spanish a bit before you went over? – Ja
I could do basic on sessions your worship because of my
friends in
Cape Town they are all Peruvians so I can communicate a little bit.’
[23] That the appellant
physically brought the drugs into South Africa was not in question.
The only disputed matter was his state
of mind in so acting. To
resolve this uncertainty the evidence for the State and the defence
must be evaluated as a whole. The
process of inferential reasoning
has been the subject of wide debate as is elucidated in, for example,
The South African Law of Evidence
, 2ed, by D T Zeffert and A P
Paizes at 99
et seq
. I propose to employ the principles
discussed in
S v Reddy and Others
1996 (2) SACR 1
(A) at
8c-9e. If, having done so, there remains a reasonable possibility
that the appellant innocently conveyed the drug laden
rucksack from
South America to Johannesburg his appeal must succeed.
[24] It seems to me that
there is no single instance in the evidence in respect of which it
can be found, as a likelihood, that
the appellant’s evidence on
a material aspect is true. On the contrary, his bona fides is
undermined by the inherent improbabilities
attaching to each
individual step of the evidence and ultimately overwhelmed by the
totality. The steps to which I refer are these:
(i) the reasons and
justification for his visit to South America;
(ii) the payment of his
travel costs for that trip;
(iii) the uncertainty of
the arrangements for his job interviews;
(iv) the extension of his
stay in South America from one week to nearly five weeks;
(v) the invitation to
Manaus by a person with whom he was barely acquainted;
(vi) the payment for his
air fare and accommodation;
(vii) the last-minute
request to carry clothing to Johannesburg;
(viii) the nature of the
instructions for carrying out the request;
(ix) the haphazard
entrusting of an extremely valuable consignment to the ignorant
appellant;
(x) the alleged naivete
of the appellant which was inconsistent with his awareness of drug
smuggling from South America;
(xi) the opportunity for
planting the drugs in the bag and the unlikelihood of drug smugglers
entrusting the cocaine to someone
who might suspect something and
convey his suspicions to the authorities;
(xii) the failure of the
appellant to realise that the contents of the bag had been replaced
with something other than mere clothing;
(xiii) the weight of the
bag, which was in itself at odds with its perceived contents.
[25] Although I consider
a determination of the respective credibilities of Insp Mars and the
appellant unnecessary for the discharge
of the prosecution’s
onus, there are two additional aspects in which the former was
favoured by the probabilities. These
are:
(i) the reason that Mars
did not carry out his threat to send the loose clothing in the bag
for DNA testing; it is more likely that
such action was rendered
unnecessary by the appellant’s admission that certain of the
clothing was his (as Mars testified)
than that Mars was dissuaded by
the appellant’s assertion that because the clothing was not
his, nothing would result from
such testing (as the appellant
testified);
(ii) if the appellant
were innocent he would surely have pressed upon Mars full information
as to the persons who promoted his trip
and those whom he met in
South America; but he did neither.
[26] I should add that,
in evaluating the probabilities, the context required an underlying
assumption, not supported in evidence,
that the persons behind the
export of illegal drugs into South Africa might consider it
worthwhile and feasible to set up carriage
by an innocent courier
into whose luggage drugs with a street value of at least R2 million
had been introduced. That context notwithstanding,
the gross weight
of improbability was sufficient to leave no reasonable doubt that the
appellant was a willing and informed participant
in the scheme for
importing the drugs into South Africa.
[27] In consequence the
appeal against conviction cannot succeed and it is dismissed.
[28] The magistrate
sentenced the appellant to imprisonment for 20 years. The High Court
confirmed the sentence. The appellant’s
counsel directed his
argument to the excessive weight of the sentence.
[29] The appellant was a
first offender, temporarily separated from his wife and five-year old
daughter. He was held in custody
for almost eleven months before the
conclusion of his trial. Having obtained a substantial number of
credits toward a university
degree, he is obviously both reasonably
intelligent and, given the nature of his employment, worldly-wise.
Since risk and reward
are necessarily the two poles of a drug
courier’s existence it is fair to assume that he made a
rational decision which favoured
the latter. At his trial he showed
neither contrition nor remorse testifying (in mitigation!), ‘I
do not see myself as a
threat to society . . . I am not a criminal in
any way’. His insight is clearly limited, which does not bode
well for his
prospects for rehabilitation.
[30] The sentence was
undoubtedly a heavy one. In this regard much of what was said in the
judgments of Lewis AJA and Olivier JA
in
S v Jimenez
2003 (1)
SACR 507
(SCA) concerning the correct approach to sentencing
drug-dealers can be applied
mutatis mutandis
to the facts of
this case and need not be repeated. To my mind the most significant
distinguishing feature is the quantity of the
drugs carried in by the
appellant. While the street value (well over R2 million according to
the expert evidence) is materially
more than in
Jimenez
and
the other authorities referred to by counsel, more important is the
number of lives potentially affected by the abuse of the
drug. The
appellant must have reconciled himself to sowing the seeds of
destruction, directly and indirectly, in the lives of a
substantial
number of people, including children. That consideration alone far
outweighs his personal circumstances and justifies
a very long
incarceration.
[31] All matters
considered, 20 years’ imprisonment does not evoke any disquiet
in me. It is, in fact, a condign punishment.
[32] The order is as
follows:
The appeal against the
conviction and sentence is dismissed.
_________________
J A HEHER
JUDGE OF APPEAL
APPEARANCES
APPELLANT: J H v d B
Lubbe
Van Wyk Oosthuizen
Attorneys, Krugersdorp
A P Pretorius &
Partners, Bloemfontein
RESPONDENT: C E Britz
(Ms)
The National Director of
Public Prosecutions, Johannesburg
The National Director of
Public Prosecutions, Bloemfontein