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[2009] ZASCA 121
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Olawale v S (165/09) [2009] ZASCA 121; [2010] 1 All SA 451 (SCA) (28 September 2009)
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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case
No 165/09
No precedential significance
In
the matter between:
EMMANUEL
OLAWALE Appellant
and
THE
STATE Respondent
Neutral
citation: Olawale v The State
(165/09)
[2009] ZASCA 121
(2009)
Coram:
Mthiyane,
Mhlantla JJA et Wallis AJA
Heard:
11
September 2009
Delivered:
28
September 2009
Summary:
Criminal
Law â Robbery with aggravating circumstances â Appeal against
conviction and sentence of 10 years' imprisonment â
Evidence of
complainant not corroborated â Appellant's version reasonably
possibly true â Conviction and sentence set aside.
ORDER
____________________________________________________________
On
appeal from:
High
Court, Johannesburg (Epstein AJ, De Jager AJ
sitting
as a court of appeal.)
1. The
appeal succeeds.
2.
The
conviction and sentence are set aside.
JUDGMENT
MHLANTLA
JA (Mthiyane JA and Wallis AJA concurring):
[1] The
appellant, an electrical engineer, was convicted in the Johannesburg
regional court (Mr Pretorius) of robbery with aggravating
circumstances and sentenced to 10 years' imprisonment. His appeal
against both conviction and sentence was dismissed in the
Johannesburg
High Court (Epstein AJ, De Jager AJ concurring). The
appellant was, however, granted leave by the court below to appeal to
this
court against both conviction and sentence.
[2]
There is regrettably a paucity of detail on the record, mainly
because of the poor manner in which the evidence was elicited
from
the witnesses, but compounded by the poor quality of the recording
and the transcript. The essential facts which led to the
conviction
of the appellant are the following. The complainant testified that on
18 March 2006 at about 9 pm he was accosted by
the appellant and his
companion, whilst walking along the street near the corner of Claim
and Kaptijn Streets in Hillbrow. The
appellant allegedly produced
what he thought was a firearm, but which turned out to be toy gun,
pointed it at the complainant and
directed him to hand over his
cellphone to his companion. The complainant duly complied. After the
robbery, he shouted for help
and certain municipal workers came to
his rescue and apprehended the appellant, whilst the other man
escaped. The police arrived
and the appellant, who had been
assaulted, was arrested. According to the complainant, his girlfriend
was present when the incident
occurred. He did not know why this fact
was not recorded in his statement to the police.
[3] Mr
Nkosi Temba, a member of the Metro Police, testified that he was
performing patrol duties, with his colleagues, when they
were stopped
by the complainant. He found the appellant lying on the ground. The
complainant reported to him that he had been robbed
of his cellphone
and said he was alone when the robbery occurred and that the
appellant was one of the perpetrators. Mr Temba further
testified
that upon searching the appellant, he found pepper spray in the
appellant's holster and a toy gun lying on the ground.
[4] The
appellant testified that he was employed as a security guard
(commonly known as a bouncer) at Hilton Plaza Club, Hillbrow.
In the
course of duty he carried pepper spray. His task was to search
patrons when entering and leaving the club to ensure that
they did
not bring weapons inside. He denied the allegations against him and
averred that it was the complainant who had robbed
him. He said that
the complainant had falsely implicated him, because he had in the
past had altercations with the complainant
and his friends when they
visited the club.
[5]
The appellant described these altercations and suggested that they
provided some grounds for suspecting the complainant may
have had a
motive to falsely implicate him. These are the following. According
to the appellant, the first incident allegedly
occurred on 8 February
2006. Three unknown men, including the complainant, approached him.
They assaulted and robbed him of his
cellphone. He reported the
incident to the police and laid a charge of assault with intent to do
grievous bodily harm. At that
stage he was unable to identify the
suspects.
[6] According
to the appellant, he saw the complainant again on 24 February 2006
when he and his friends were on their way into
the club. He
recognised them as the same people that had attacked him on 8
February. He tried to search the complainant, but the
latter resisted
and a struggle ensued. In the course of the struggle he was stabbed.
He reported the incident to the police, that
night, and a statement
was taken at 12.30 am on 25 February 2006. A docket was opened with
case number 1759/02/2006, although for
some unexplained reason his
statement bore case number 1365/03/2006.
[7] His
third encounter with the complainant, prior to the alleged robbery,
was on 14 March 2006. He was again on duty searching
patrons who were
entering the club. He found a firearm in the complainant's possession
and, after a struggle, confiscated it.
He subsequently reported the
incident to his employer. On 15 March 2006 he and his employer handed
the firearm to the police.
An entry was made by the police in the
SAP 13 Register, under number SAP 13/443/2006, and a receipt was
issued to the appellant.
[8] The
incident on 18 March, which led to the appellant being charged, was
his fourth encounter with the complainant and his group.
Shortly
before the incident, he had seen the complainant and his friends and
believing them to be intent on causing trouble, borrowed
a gun used
to fire rubber bullets from a fellow worker and went home to put on
another shirt to conceal the gun. According to him,
he met the
complainant and his group as he got to his front gate, whereupon the
complainant demanded the return of the firearm
which had been
confiscated by him. He suggested that they go with him to the police
station, presumably to collect the firearm.
The group attacked and
stabbed him and then stole his money and cellphone. The police
appeared at the scene and the complainant,
who was present, falsely
implicated him. He was never afforded an opportunity to explain what
had happened.
[9]
The appellant's employer Mr Francis Nwandroi, when he testified,
corroborated the appellant's version that he carried pepper
spray at
work. He also confirmed that the appellant had made two complaints to
him about incidents that occurred at work and that
the appellant had
confiscated a firearm from the people he had had an altercation with.
This resulted in charges being laid at
the police station, that is,
an assault charge and a report about the handing in of the firearm.
He confirmed that the firearm
was handed in by him.
[10] The
trial court thought it would be in the interests of justice to call
the complainant's female companion and the investigating
officer to
trace the dockets referred to by the appellant. The complainant's
companion was not available and no explanation was
provided for her
unavailability. Constable Andrew Maluleke brought the relevant
dockets and SAP register in respect of the complaints
lodged by the
appellant. Exhibit A related to an incident that occurred on 24
February 2006 where the appellant was allegedly stabbed
with a bottle
at Hilton Plaza. The case number allocated to the matter was
1759/2/2006. The appellant also made a statement setting
out the
details of the incident. According to the statement he reported that
he had been stabbed and robbed of his possessions
and that the
suspect was a Nigerian and he would be able to identify him. An entry
in the SAP register no 13/443/2006 reflected
that Mr Nwandroi handed
in a firearm on 15 March 2006, with a note that it had been found
abandoned.
[11] The
trial, court having cautioned itself that the complainant was a
single witness, found him to be a credible witness. It
found that the
probabilities favoured the complainant's version and that he appeared
to be a simple person not capable of doing
what the appellant had
alleged. In regard to the appellant's complaint, the court observed
that in his police statement concerning
the incident on 24 February
the appellant had identified his attacker as a Nigerian, whereas the
complainant was a Zimbabwean.
The court found that this could not be
a mistake and that the appellant could not have been referring to the
complainant. Furthermore,
the court held that his employer's version
about the handing in of the firearm to the police differed from the
appellant's, placing
particular reliance on the note in the register
that the gun had been found abandoned. The trial court rejected the
appellant's
version on the basis that it was so improbable and beyond
belief that it could not reasonably possibly be true. The court below
accepted the trial court's conclusions and confirmed the appellant's
conviction.
[12] The
issue for decision is whether the State established the guilt of the
appellant beyond reasonable doubt.
[13] It
is a trite principle that in criminal proceedings the prosecution
must prove its case beyond reasonable doubt and that a
mere
preponderance of probabilities is not enough. Equally trite is the
observation that, in view of this standard of proof in
a criminal
case, a court does not have to be convinced that every detail of an
accused's version is true. If the accused's version
is reasonably
possibly true in substance, the court must decide the matter on the
acceptance of that version. Of course it is permissible
to test the
accused's version against the inherent probabilities. But it cannot
be rejected merely because it is improbable; it
can only be rejected
on the basis of inherent probabilities if it can be said to be so
improbable that it cannot reasonably possibly
be true.
1
[14] In
evaluating the evidence against the appellant, one must look at the
reliability and credibility of the witnesses, consider
if any of them
had a motive to falsely implicate the appellant and further look at
the probabilities of the State's version.
[15] The
State's case rested on the evidence of a single witness as to the
actual robbery. The evidence of a single witness has
to be clear and
satisfactory in every material respect. The evidence has to be
treated with caution. A court can accept the evidence
of a single
witness if it is satisfied that it is truthful beyond reasonable
doubt.
[16] Before
us counsel, for the appellant, submitted that the trial court erred
in accepting the evidence of a single witness when
there were
insufficient safeguards to do so. He further contended that the
regional magistrate's approach in comparing the two
versions was
incorrect and that it was not open to him to draw inferences without
any evidence from the appellant and finally that
the magistrate erred
in rejecting the appellant's version. Counsel for the respondent
supported the decision of the magistrate.
[17]
Regarding the first challenge, I agree that the evidence of the
complainant in regard to the actual robbery is not corroborated.
As
was said in
S
v Gentle
,
2
:
'by
corroboration is meant other evidence which supports the evidence of
the complainant, and which renders the evidence of the
accused less
probable
on the issues in dispute
.'
The
complainant testified that his girlfriend had been present during the
entire incident and when the police arrived. Mr Temba,
however, never
saw her. According to him, the complainant was alone and he did not
see anyone in the vicinity save for the appellant
and the
complainant. The issue of the presence of the complainant's female
companion was also not mentioned in the complainant's
statement. It
is clear, therefore, that the witnesses for the State contradicted
each other in regard to the presence of the complainant's
companion.
[18] The
State failed to call the complainant's female companion. No
explanation was furnished for her unavailability. It is not
known
whether she could not be traced or was unwilling to testify. One does
not know what she would have told the court. Would
she have
corroborated the complainant's version or given a totally different
version? In my view, the magistrate should have given
greater
consideration to this issue, especially since he had deemed it to be
in the interests of justice to call this witness.
[19] The
complainant had testified that municipal workers had apprehended the
appellant. Strangely enough none of these workers
were present at the
scene, when Mr Temba arrived, to corroborate the complainant's
version. Equally strange is the absence of curious
bystanders. In the
result all these potential sources of corroboration were absent.
[20] The
magistrate, and the court on appeal, found it highly unlikely that
the complainant would flag down the police if he had
been the
perpetrator. In my view, this is not the only inference that can be
drawn from this circumstance. It is also consistent
with the
complainant having attacked the appellant as alleged and thereafter,
when the police arrived, trying to create the impression
that he was
the victim to counter a charge of robbery by the appellant. The
complainant was never searched. It is thus not known
whether he had a
cellphone in his possession or not. If the complainant had no
opportunity to escape, upon the arrival of the police,
a better
option would be to falsely implicate the appellant as opposed to
running away and risk arrest. By running away, he could
have drawn
the attention of the police.
[21] In
so far as the finding regarding demeanour is concerned, it is so that
the trial court had the advantage of observing the
complainant while
testifying. In
S
v Kelly
,
3
the court held that there can be little profit in comparing the
demeanour only of one witness with that of another in seeking the
truth. There is no doubt that demeanour can be most misleading. In my
view it was dangerous to infer that because the complainant
appeared
simple he was not capable of devious behaviour, in the absence of
corroboration for that view. It seems to me that the
trial court made
a final evaluation of the complainant's evidence on his demeanour and
used it as some form of corroboration.
[22] In
my view, there were shortcomings in the complainant's testimony and
the court failed to approach his evidence with a sufficient
degree of
caution. There is nothing in the objective facts which corroborates
the complainant's version in regard to the actual
robbery. The
magistrate accordingly erred in concluding that the complainant's
evidence was satisfactory in every material respect
and that it was
safe to convict the appellant on the strength of uncorroborated
evidence.
[23] In
so far as the appellant's version is concerned, I do not find it
improbable that the complainant would falsely implicate
the
appellant. The reasons suggested by the appellant were not so
far-fetched that they could not reasonably possibly be true and
there
is no basis to reject them. The evidence of the appellant fits neatly
together. He told a complicated story with great detail
and provided
documentary evidence to support his contention. One cannot say when
considering his complicated version that it is
false. Indeed its very
complexity provides some reason for thinking that it might be true.
Why invent such detail and run the risk
of being shown to be a liar
when simple contradiction of the complainant would have served just
as well?
[23] It
is also impossible to reject his version as false beyond reasonable
doubt as there are objective facts in the following
respects:
(a) He
is employed as a bouncer and in the course of his duties carries
pepper spray;
(b) He
laid a charge at the police station and a police docket was produced.
The only discrepancy related to the nationality of
the person who
allegedly attacked him. In
S
v Heslop
,
4
Cloete JA pointed out:
'It goes
without saying that it is a requirement of the fair trial guaranteed
by s 35(3) of the Constitution . . . that if a court
intends drawing
an adverse inference against an accused, the facts upon which this
inference is based must be properly ventilated
during the trial
before the inference can be drawn.'
In
this matter the appellant was never afforded an opportunity to
explain why he referred to his attacker as a Nigerian. It is possible
that the police made a mistake. The magistrate drew an adverse
inference and made adverse credibility findings without any evidence
on this point from the appellant. His approach in this regard was
incorrect, as he ought to have brought the discrepancy to appellant's
attention and allow him to respond thereto.
(c)
The appellant confiscated a firearm and notified his employer, who a
day later handed the firearm in at the police station.
The only issue
related to the entry on the SAP 13 register that the firearm was
found abandoned. What is of importance and what
the magistrate
overlooked is the testimony of Mr Nwandroi that the appellant had
called him to pick up a firearm which had been
seized. That is
consistent with the appellantâs version.
(d) Lastly,
the appellant stated that his cellphone had been stolen. The police
searched him and no cellphone was found in his possession.
[24] In
my view, these objective facts are most important. The appellant's
version has some ring of truth and can reasonably possibly
be true. I
am accordingly not satisfied that the guilt of the appellant has been
proved beyond reasonable doubt. In the result,
the appellant's
conviction and sentence cannot stand.
[25] In
the result, the following order is made:
(a) The
appeal succeeds.
(b) The
conviction and sentence are set aside.
____________
___
N
Z MHLANTLA
JUDGE
OF APPEAL
Appearances:
For
Appellant R Krause
David
H Botha, Du Plessis & Kruger Inc
JOHANNESBURG
Symington
& De Kok,
BLOEMFONTEIN
For
Respondent P Nel
Director
of Public Prosecutions,
JOHANNESBURG
Director
of Public Prosecutions,
BLOEMFONTEIN
1
S
v Shackell
2001 (2) SACR 185
(SCA) para 30;
S
v V
2000 (1) SACR 453
(SCA) para 3.
2
2005
(1) SACR 420
(SCA) - para 18.
3
1980
(3) SA 301
(A) at 308B.
4
2007
(4) SA 38
(SCA) - para 22.