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[2012] ZASCA 198
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S v Musiker (272/12) [2012] ZASCA 198; 2013 (1) SACR 517 (SCA) (30 November 2012)
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Case no
:
272/12
REPORTABLE
In the matter between:
STEVEN MALCOLM MUSIKER
........................................................................
APPELLANT
and
THE STATE
....................................................................................................
RESPONDENT
Neutral citation:
Steven
Malcolm Musiker v The State (
272/12)
[2012]
ZASCA
198
(30 November
2012)
Coram:
Mthiyane DP, Leach and
Tshiqi JJA
Heard: 7 November 2012
Delivered: 30 November
2012
Summary: Assault with
intent to do grievous bodily harm
–
the
assault not placed in dispute – identity of the assailant
placed in dispute
–
appellant
identified as assailant – his alibi defence not challenged
–
versions of the State
and defence mutually destructive
–
onus
resting on the State not discharged
–
conviction not
sustainable.
_____________________________________________________________________________
ORDER
____________________________________________________________________________
On appeal from:
North
Gauteng High Court, Pretoria (Tlhapi and Kollapen JJ sitting as court
of appeal):
The appeal is upheld.
The order of the high
court is set aside and replaced with the following:
‘
The
conviction and sentence are set aside’.
_____________________________________________________________________________
JUDGMENT
____________________________________________________________________________
MTHIYANE DP AND LEACH JA
CONCURRING):
The appellant was
convicted of assault with intent to do grievous bodily harm in the
Magistrates’ Court and was sentenced
to a fine of R4 000 or 12
months’ imprisonment. A further period of 12 months’
imprisonment was suspended for five
years on condition that he was
not convicted of similar offences during the period of suspension.
In addition he was declared
unfit to possess a firearm. His appeal
to the North Gauteng High Court, Pretoria (per Tlhapi and Kollapen
JJ), against both the
conviction and sentence was dismissed. His
appeal is now before this court, with the leave of the high court,
against conviction
only.
The only point in issue
during the trial was and in the appeal before us is the identity of
the complainant’s assailant.
As the appellant’s defence
was an alibi,
most
facts
relating
to the assault were not placed in dispute.
The complainant, Mr
Motlana, was assaulted on 6 September 2007, between 20h30 and 21h00,
whilst he was walking on a street in
Brooklyn. He sustained injuries
in his eyes. His assailant inflicted the injuries by spraying him
with a pepper spray on his
face. A report completed by an authorised
medical practitioner (J88) describes the injuries as ‘bilateral
inflamed conjuctivis’.
Motlana identified the appellant as his
assailant. He stated that he recognised him as a security officer he
had seen previously
in the area where the assault took place but did
not know his name at that stage. During the assault he was able to
see him because
there was adequate lighting in the area and because
the assault took place approximately a metre and a half from him. He
described
his clothing as a pink shirt and khakhi shorts.
The appellant was
further implicated through the evidence of Mr Mabena, a car guard,
who works in the area. Mabena stated that
he witnessed the assault.
He also recognised the appellant as a security officer he had seen
before the incident on several occasions
in the area.
The appellant testified
in his defen
ce
and denied any
involvement in the assault. He confirmed that he was a security
guard and also worked in the area where the incident
occurred. He
stated that he ‘would have’ been in the area that day
around 18h00 and 18h30 and ‘would have’
left between
19h30 and 19h45 to go back home. He ‘would have’ been
home between 20h30 and 21h00. He ‘would
have’ been
wearing his uniform, a black trouser and a stripped golf shirt in
tones of grey and white. He recalled no incident
involving the
complainant on that day and at that time. The reason why he could
recall that he was at home on the day of the
incident was because it
was the anniversary of the death of his wife’s brother and he
had to give her emotional support.
He denied ever seeing the
complainant at any time before, other than the time he met him in
court for the first time. As for
Mabena, he agreed he had seen him
but could ‘not associate him with any specific incident’.
During questioning by
the magistrate he was asked to explain why he
stated that he ‘would have been at home’ and ‘would
have been
wearing his uniform’ instead of giving definite
answers to those questions. He acknowledged that he probably did not
express
himself well and that what he really meant was that he was
at home and was wearing his uniform. He closed his case without
calling
his wife.
It appears from the
judgement of the magistrate that the decision to convict the
appellant and for rejecting his alibi defence
was based on his
failure to call his wife, a misconstrued perception by the
magistrate that the appellant was not forthright
with his alibi and
had been positively identified by both the complainant and Mabena.
The magistrate in his judgment stated:
‘
What the
accused is submitting to the court is an alibi. He says at the time
when the State alleges and the complainant for the
State says this
happened, I was home, commemorating the anniversary of my
brother-in-law’s death, I had to be home. I would
have been
home with my wife because that is the day that her brother passed on.
That is an alibi.
Now the law is clear. When you have
the evidence of an alibi then the alibi, so to speak, must come and
testify. I have not heard
a single word as to why the wife of the
accused was not called to come and say 20:30 and 21:00 on the day of
the 6
th
my
husband was with me, we were commemorating the passing of my brother.
I have not heard why she is not in
court. Particularly in the face of the accused insisting that this
was so important that it would
have made it imperative for him to be
at home with his wife on that particular day, so as to mark the day….
This is what the accused says, but
there is no evidence to support that. The wife is not called….
She is an alibi witness. She is the
alibi, as we say, who would then refute the complainant’s
assertion as well as the witness
for the State’s assertion, the
second witness. She is one person who is in the most suitable
position to come and tell us
independently as to the whereabouts of
the accused. But she is not called….’
Then the magistrate
addressed the issue
of identity
as follows
:
‘
The fact of
the matter is that there are two witnesses who identified Mr Musiker
as being the attacker. One knows him. ... That
alone satisfies me as
to the identity of the person that they are fingering’.
The appellant
was
then
convicted
and sentenced
.
He thereafter applied
for
and was granted leave to lead further evidence in terms of
s 309B
5
(a)
of the
Criminal
Procedure Act 51 of 1977
1
to support his alibi
defence and to appeal against both the conviction and sentence. To
that end the magistrate resumed the trial
and received the evidence
of the appellant’s wife in terms of
s 309B
5
(c)
(i)
of the
Criminal Procedure Act. It
appears ex facie the record that
the failure to lead his wife’s evidence at the appropriate
time was as a result of incorrect
legal advice that his wife was not
a competent witness, but her evidence corroborated the version of
the appellant in all material
respects.
The essence of her
evidence was that the appellant was at home on the date of the
incident from approximately 19h00 to 19h10 and
did not leave home
after that. She stated that she was able to recall what happened
that day because the 6 September 2007 was
the anniversary of her
brother’s death. She was heart-broken and needed the comfort
of her husband. She did not, testify
earlier during the trial
because her husband had told her, relying on legal advice, that she
could not testify because she was
his spouse. In response to a
question suggesting that her husband was wearing a pink shirt she
stated: ‘My husband has
a phobia, he would never wear pink,
never ever’.
In response to the
question what the appellant was wearing on the day she stated: ‘He
would wear, he always wears his uniform.
It is the
black
t-shirt
with the emblem, the
S13
emblem and would either be a black trouser
or a denim trouser’. None of those material aspects of her
evidence were disputed.
Her cross examination was restricted to
a single question that did not challenge her evidence at all and
that is how she
remembered that her husband was at home on the day
of the incident.
When the matter came
before the high court it transpired that the magistrate had not
complied with the provisions of
s 309B
5
(c)
(ii)
in that he had not recorded his findings with regard to her
evidence. The high court (per Tlhapi and Kollapen JJ) remitted
the
matter to the trial court for the magistrate to comply with the
provisions of
s 309B
5
(c)
(ii)
of the
Criminal Procedure Act.
In
response the
magistrate gave the following reasons:
‘
Suffice to
say her evidence was led long after the conviction and sentence of
her husband, in accordance with the provisions of
the said section of
the Act.
I may as well make mention of the fact
that the probative value of her evidence was, in my humble view,
minimal. I treated it with
particular caution and circumspection.
In other words, in the circumstances
in which it was submitted, timing, content and context, it has not
swayed me from my original
finding and the subsequent sentence
imposed. For reasons I will presently mention, the conclusion on my
part, that it is tailored
to conveniently dovetail with the now known
facts, with the singular aim to exonerate the accused, doesn’t
seem to be remiss.
The motivation is undoubtedly there (the witness
being the spouse), and the damage it seeks to militate is enough of
an incentive.
I will presently elaborate:
Firstly, in what I will refer to as
the “original trial”, Mr Musiker was represented by an
advocate of the High Court
of South Africa. One would surmise that
since his defence was an alibi, this would have been ventured
vigorously. It was not.
Secondly, Mrs Musiker’s
recollection of her husband’s whereabouts on the day is
premised on the “sanctity”
of the day, and that it is
virtually religiously, observed by her with her husband always by
her side. It becomes more remarkable
then that the alibi evidence
was not recollected by both of them, and not submitted. To be
accused on the very day when for you
the world stops and you don’t
recall? It begs credulity.
Thirdly, Mrs Musiker is a well-known
figure in the area of the crime scene. He walks his beat there, with
his men, and the residents,
both formal and informal, know him well.
The workers too. If I recall, they even have a nickname for him. The
State witness fall
within this category. They were not seeing him
for the first time. They identified him. Still no alibi testimony in
any material
sense was led to counter this. The burden of rebuttal,
not proof, coming into play.
4. No reasons were ventured as to the
failure to lead the evidence of Mrs Musiker originally. No
impediments were placed before
the court, no time was requested, and
being a spouse living in the same house as the accused, her
whereabouts presented no discernible
challenges to the defence. Yet
her evidence was not led then
’
.
There is, with respect
to the magistrate
,
no
merit in the criticism regarding the belated decision to lead the
evidence of the appellant’s wife. The evidence by Mrs Musiker
that the appellant had obtained legal advice that she could not
testify was undisputed. The criticism gives no credence to such
undisputed evidence. His further criticism that the appellant was
not forthright in stating his whereabouts on the day of the
incident
is also without merit. From the onset, during the plea stage, his
legal representative responded to questions posed
by the court in
that regard as follows:
‘
COURT: Is he
also denying that he was there on the day on 6 September in Hatfield?
MR JANSEN VAN VUUREN: No your worship
he is not denying that he was not there, but he is denying that he
was there at the date and
at that time.
COURT: I see.
MR JANSEN VAN VUUREN: He was there,
that will come through in his evidence, but without going into the
evidence I can just indicate
quickly to the court, he is not denying
that he was … there on that day.
I
have not even consulted with him whether he was actually walking
around or whether he was outside but he was in that area
.
He will testify during the course of
the proceedings regarding the patrols he does, in which areas,
and
I assume that he will testify, I am not sure
,
that he must have been there to either drop off or pick up guards or
stop at a control point or what the case might be.
As I say, I am not giving any evidence
but I am quite sure that he will not testify that he was not in the
vicinity that day, but
he will indeed testify, to some extent, that
he was in that vicinity somewhere along that day.’ (My
underlining)
The fact that the
appellant’s legal representative had not
properly
consulted was not the
appellant’s fault
.
The
failure
to state the appellant’s defence with precision was also not
his fault. Whilst the appellant’s defence may
not have been
clear from the plea statement in terms of
s 115
of the
Criminal
Procedure Act, the
appellant disclosed during his testimony that he
was at home at the time of the incident and proffered an explanation
on why
he would have been at home. That explanation was not disputed
and was corroborated by his wife, albeit later on when she was
called. The conclusion that the alibi must have been an afterthought
was in the circumstances unwarranted.
The fundamental problem
with the decision of the magistrate is the approach he adopted in
regard to the evidence of the appellant,
his alibi defence and that
of the two State witnesses. He, with respect, failed to take into
account the fact that it was the
State that bore the onus to prove
the guilt of the appellant. Once the appellant raised the alibi
defence, that alibi had to
be accepted unless it was proved to be
false beyond reasonable doubt. That did not happen. The evidence of
the appellant’s
wife that he was at home at the time of the
incident was not challenged. The magistrate was faced with the
evidence of two State
witnesses who placed the appellant at the
scene of the incident and the appellant’s own evidence,
together with that of
his wife which placed him at home. In effect
the magistrate was faced with two mutually destructive versions.
This being the
case:
‘
The
magistrate had no sound reason to prefer the evidence of the
complainant [and Mabena] to that of the appellant’.
(
Petersen
v S
[2006]
JOL16082 (SCA) para 8).
This
court in
S
v Liebenberg
2005
(2) SACR 355
(SCA) paras 14 and 15 stated:
‘
(O)nce
the trial court accepted that the alibi evidence could not be
rejected as false, it was not entitled to reject it on the
basis
that the prosecution had placed before it strong evidence linking
the appellant to the offences. The acceptance of the
prosecution's
evidence could not, by itself alone, be a sufficient basis for
rejecting the alibi evidence. Something more was
required. The
evidence must have been, when considered in its totality, of the
nature that proved the alibi evidence to be false.
In
S
v Sithole and Others
1999
(1) SACR 585
(W)
the test applicable to criminal trials was
restated in the following terms at 590
g-i
:
“
There is
only one test in a criminal case, and that is whether the evidence
establishes the guilt of the accused beyond reasonable
doubt. The
corollary is that an accused is entitled to be acquitted if there is
a reasonable possibility that an innocent explanation
which he has
proffered might be true. These are not two independent tests, but
rather the statement of one test, viewed from two
perspectives. In
order to convict, there must be no reasonable doubt that the evidence
implicating the accused is true, which can
only be so if there is at
the same time no reasonable possibility that the evidence exculpating
him is not true. The two conclusions
go hand in hand, each one being
the corollary of the other. Thus in order for there to be a
reasonable possibility that an innocent
explanation which has been
proffered by the accused might be true, there must at the same time
be a reasonable possibility that
the evidence which implicates him
might be false or mistaken”.
See also
S
v Van Aswegen
2001
(2) SACR 97
(SCA)
.
Where a defence of an alibi has been
raised and the trial court accepts the evidence in support thereof as
being possibly true,
it follows that the trial court should find that
there is a reasonable possibility that the prosecution's evidence is
mistaken
or false. There cannot be a reasonable possibility that the
two versions are both correct. This is consistent with the approach
to alibi evidence laid down by this Court more than 50 years ago in
R
v Biya
1952 (4) SA 514
(A).
At 521C-D Greenberg JA said:
“
If there is
evidence of an accused person's presence at a place and at a time
which makes it impossible for him to have committed
the crime
charged, then if on all the evidence there is a reasonable
possibility that this alibi evidence is true it means that
there is
the same possibility that he has not committed the crime.”’
For these reasons there
was no basis for the magistrate to reject the version of the
appellant
nor to prefer, instead, that of the State witnesses. On this basis
alone, the conviction cannot stand.
Strictly
speaking that conclusion makes it unnecessary to deal further with
the matter, but one issue of concern that must be
mentioned is the
unacceptable
manner
in which the magistrate conducted the trial. A convenient starting
point is the failure by the magistrate to guide the
clearly
inexperienced defence counsel. It was clear from the onset, in the
manner in which the legal representative tendered
the plea on behalf
of the appellant, that he was inexperienced. I have already referred
to the convoluted
s 115
statement he proffered on behalf of the
appellant during which he informed the court that he had not
consulted with his client
and was not able to state his version with
precision. How the court proceeded and conducted a trial after
counsel had made such
an admission is inexplicable. During the
conduct of the trial there were again several instances that showed
that counsel was
not able to deal with issues that were pertinent to
the defence case. The presiding magistrate did not assist.
In
S
v Rall
1982
(1) SA 828
(A) at 831B-C this court, quoting the well-known dictum
of Curlewis JA in
R
v Hepworth
1928
AD 265
at 277, stated
:
‘“
A
criminal trial is not a game … and a Judge's position …
is not merely that of an umpire to see that the rules of
the game are
observed by both sides. A Judge is an administrator of justice, he is
not merely a figure-head, he has not only to
direct and control the
proceedings according to recognised rules of procedure but to see
that justice is done.”
Inter alia
a
Judge is therefore entitled and often obliged in the interests of
justice to put such additional questions to witnesses, including
the
accused, as seem to him desirable in order to elicit or elucidate the
truth more fully in respect of relevant aspects of the
case.’
The second area of
concern in this matter and probably the most disturbing aspect
concerns the unwarranted interruptions by the
learned magistrate
which, taken in totality, clearly undermined the fairness of the
trial.
During the
cross-examination of the complainant the defence counsel attempted
to question the complainant on what appears to have
been a previous
inconsistent statement. The court interjected and ordered him to lay
a basis therefor. Counsel, clearly because
of his inexperience,
abandoned that line of questioning; thereby missing an opportunity
to deal with the credibility of a State
witness. When counsel
attempted to ask the second State witness about his statement, the
court again interjected and asked counsel
to lay a basis for the
question. It became clear from the exchange between the court and
counsel that counsel was confused about
what to do exactly. Instead
of giving guidance on a very important aspect concerning credibility
of a witness, the magistrate
got agitated and in the process also
misled counsel. It is helpful to quote directly from the record to
illustrate the seriousness
of the misdirection by the magistrate:
‘
MR JANSEN
VAN VUUREN: As the court pleases your worship. May I then firstly
refer the witness to his affidavit that was made under
oath.
COURT: If you want to cross-examine
from the statement a person has made you have got to lay a basis for
such statement. You cannot
just dive into it.
MR JANSEN VAN VUUREN: Your worship, I
would lay a basis. The basis would be that this affidavit conflicts
with evidence.
COURT: If you want to cross-examine
from a document sir you have got to lay a basis. I am not talking
relevancy, but the basis.
MR JANSEN VAN VUUREN: Yes, your
worship. Sir, you said that he was working for a security company but
you cannot remember the name
of the security company, is that
correct? --- Yes.
Was he wearing, what clothes, was he
wearing a uniform on that night?
COURT: What is the relevance of this
line of questioning as to the assault Mr Jansen?
MR JANSEN VAN VUUREN: Your worship, I
want to confirm whether the person that the witness saw was indeed
the accused.
COURT: The person that who?
MR JANSEN VAN VUUREN: That the witness
allegedly saw.
COURT: Ja, but you are not asking him
about the accused, you are asking him about the complainant, if I
follow your cross-examination?
MR JANSEN VAN VUUREN: Yes.
COURT: How will he, knowing the
complainant, knowing that, identify the accused as you are saying?
MR JANSEN VAN VUUREN: Your worship,
what wrong would there be in asking the witness what …(intervenes)
COURT: Relevance, I do not have time.
Relevance?
MR JANSEN VAN VUUREN: Your worship…
(intervenes)
COURT: I will only allow questions
which are relevant. I will not allow any fishing expedition that is
taking me nowhere.
MR JANSEN VAN VUUREN: Indeed. How do
you know he was working for a security company? --- Because he used
to tell us that he is employed.
COURT: Still my question remains.
MR JANSEN VAN VUUREN: Indeed so your
worship, I would not take the matter any further….’
The above misdirection
is probably the most serious because the magistrate not only failed
to guide counsel but misled counsel
by questioning the relevance of
his line of questioning. First, the clothes the appellant was
wearing on the day of the incident
were pertinent to his
identification. Second, the magistrate was wrong in saying to
counsel: ‘Ja, but you are not asking
him about the accused,
you are asking him about the complainant, if I follow your
cross-examination?’ With respect to the
magistrate, that
question was dealing with the identity of the appellant and not the
complainant.
When counsel again
attempted to cross-examine the complainant about a statement he had
made to the medical doctor who had examined
him after the incident,
the court interjected and questioned what counsel sought to achieve
with that line of questioning. Counsel
explained that he sought to
show that the complainant was contradicting himself about the
identity of his assailant because he
had informed the doctor that he
did not know his assailant. The court asked: ‘where is the
contradiction?’, after
which counsel again abandoned that line
of questioning. Yet again a question dealing with credibility and
identity of the assailant
was aborted because of an unwarranted
interruption by the magistrate. The record is riddled with similar
interruptions from the
court and it
would
be
fruitless
exercise to deal with all of them.
In
S
v Rall
(supra)
this court refrained from defining precisely the limits within which
judicial questioning should be confined but mentioned
the following
useful limitations at 831H-832H:
A
judicial officer should so conduct the trial that his or her
open-mindedness, impartiality and fairness are manifest to all
those
who are concerned in the trial and its outcome, especially the
accused (see, for example,
S
v Wood
1964
(3) SA 103 (O)
at 105G;
Rondalia
Versekeringskorporasie van SA Bpk v Lira
1971
(2) SA 586
(A)
at 589G;
Solomon
& another NNO v De Waal
1972
(1) SA 575 (A)
at 580H).
The
j
udge
should consequently refrain from questioning any witnesses or the
accused in a way that, because of its frequency, length,
timing,
form, tone, contents or otherwise, conveys or is likely to
convey the opposite impression (see
Greenfield
Manufacturers (Temba) (Pty) Ltd v Royton Electrical Engineering
(Pty) Ltd
1976
(2) SA 565 (A)
at 570E-F;
Jones
v National Coal Board
[1957] EWCA Civ 3
;
(1957)
2 All ER 155
(CA) at 159F).
A
judge
should also refrain from
indulging in questioning witnesses or the accused in such a way or
to such an extent that it may preclude
him or her from objectively
adjudicating upon or appreciating the issues being fought out before
him or her by the litigants.
As Lord Greene Mr observed in
Yuill
v Yuill
[1945]
1 All ER 183
(CA) at 189B, if he or she does indulge in such
questioning –
'he, so to speak,
descends into the arena and is liable to have his vision clouded by
the dust of the conflict. Unconsciously he
deprives himself of the
advantage of calm and dispassionate observation
.
(See,
too, the
Jones
case
supra
at 159C -
E.) Or, as expressed by WESSELS JA in
Hamman
v Moolman
1968
(4) SA 340 (A)
at 344E, the Judge may thereby deny himself
- 'the full advantage usually enjoyed by the trial Judge
who, as the person
holding the scale between the contending
parties, is able to determine objectively and dispassionately, from
his position of relative
detachment, the way the balance tilts….’
A
j
udge
should also refrain from questioning a witness or the accused
in a way that may intimidate or disconcert him or her
unduly
influences the quality or nature of his or her replies and thus
affect his or her demeanour or impair his or her credibility.
[24] In S v
Scott-Crossley
2008 (1) SACR 223
(SCA) this court said that the
approach of the trial judge in conducting the trial was unfortunate
and misconceived ‘both
because he descended into the arena and
expressed a firm view as to the appellant’s credibility whilst
he was still testifying’
and that that was ‘plainly
desirable’.
2
[25] The skewed approach
adopted by the magistrate when he conducted the trial is also evident
in the manner in which he analysed
the evidence. His criticism of the
evidence of the appellant had no basis. For instance, he criticised
the fact that the appellant
stated that ‘he would have been at
home’ and that ‘he would have been wearing his uniform’.
Yet on the
same breath when he analysed the evidence about what the
appellant was wearing he criticised him for recalling that he was
wearing
his uniform. The magistrate rejected the evidence of the
appellant that he was wearing his uniform, presumably when he got
home
or when he was with his wife that evening, because according to
the magistrate ‘he was not at work. Why would he be wearing
a
uniform commemorating his brother-in-law’s death?’. It is
not clear why the appellant would not wear his uniform
at home nor
what led the magistrate to come to that conclusion.
[26]
Had
it not been for my conclusion that the appellant’s alibi was
wrongly rejected, these various factors, taken together,
may well
have justified a finding that the appellant had not had a fair trial.
In light of that decision, however, it is unnecessary
to reach a
conclusion in regard to this latter issue.
I
do not intend to deal with the judgment of the high court
.
Like the trial court, it adopted
a
wrong approach to the evidence, hence its decision
.
The
conviction
by the trial court cannot be sustained.
[26] I therefore make the
following order:
The appeal is upheld.
The order of the high
court is set aside and replaced with the following:
‘
The
conviction and sentence are set aside’.
______________________
Z L L TSHIQI
JUDGE OF APPEAL
APPEARANCES:
For Appellant: JJ
Strijdom SC
Instructed by:
Mark W Nixon Attorney,
Pretoria
Hill, McHardy &
Herbst Inc, Bloemonfontein
For Respondent: MT
Moetaesi
Instructed by:
Director of Public
Prosecutions, Pretoria
Director of Public
Prosecutions, Bloemfontein
1
Section
309B
5
(a)
(i)
of the
Criminal Procedure Act provides
:
‘
An
application for leave to appeal may be accompanied by an application
to adduce further evidence (hereafter referred to as an
application
for further evidence) relating to the conviction, sentence or order
in respect of which the appeal is sought to be
noted’.
2
Para
30.