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[2008] ZASCA 133
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S v Street (164/08) [2008] ZASCA 133; [2009] 1 All SA 576 (SCA) (26 November 2008)
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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
Case No: 164/08
No precedential significance
In the matter between:
JONATHAN STREET
APPELLANT
v
THE STATE
RESPONDENT
Neutral citation:
Street
v The State
(164/08) [2008] ZASCA
133 (26 November 2008).
CORAM:
LEWIS JA and
LEACH and MHLANTLA AJJA
HEARD:
12 November
2008
DELIVERED:
26
November 2008
Summary: Appeal against conviction of being an accessory
after the fact to murder. Court
a quo
making
factual findings not justified on the evidence. Conviction replaced
with one of common assault and sentence reduced to an
appropriate
punishment for assault.
_______________________________________________________________
ORDER
_______________________________________________________________
On appeal from: High Court, Johannesburg
(Jajbhay
and Mabuse JJ sitting as court of appeal).
(1) The appeal succeeds to the extent set out below.
(2)
The
appellant’s conviction as an accessory after the fact to murder
and the sentence of five years’ imprisonment are
set aside. The
order of the court below is replaced with the following:
‘
(a) The appeal succeeds.
(b) The accused’s conviction and sentence of 15
years’ imprisonment are set aside and replaced with the
following:
“The accused is convicted of
common assault and is sentenced to a fine of R6 000 or six months’
imprisonment, half
of which is suspended for three years on condition
that he is not convicted of an offence involving an assault committed
during
the period of suspension and for which he is sentenced to
imprisonment without the option of a fine.”’
______________________________________________________________
JUDGMENT
______________________________________________________________
LEACH AJA (LEWIS JA and MHLANTLA AJA concurring)
[1] On 29 December 2002, Patrick Perreira Caetano died
after having been stabbed during an incident which occurred in
Kyalami. The
appellant was subsequently charged with the murder of
the deceased and tried in the regional court. It was common cause
that the
deceased died as a result of a stab wound to the stomach.
Although the appellant admitted having punched the deceased on the
night
in question, he pleaded that he was not guilty of murder and
denied having inflicted the fatal wound. However, despite there
having
been no credible evidence that he had stabbed the deceased,
the appellant was convicted as charged and sentenced to 15 years
imprisonment.
[2] The appellant appealed to the high court which held
that in the light of the contradictory evidence which had been led,
as more
fully set out below, the state had failed to prove beyond a
reasonable doubt either that the appellant had been the person who
had inflicted the fatal wound or that he had acted with a common
purpose with the person who had done so. But while the high court
concluded that the appellant’s murder conviction could
therefore not stand, it found that he had been an accessory after
the
fact to the deceased’s murder. It therefore altered the
conviction to one of the latter offence and imposed a sentence
of
five years’ imprisonment. With leave of the high court, the
appellant now appeals to this court against his conviction
as an
accessory after the fact.
[3] The state’s main witness was one Guil Yahav, a
man who admitted to having severely assaulted the deceased with a
knife
on the night in question. It appeared that the deceased had
injured Yahav’s one eye several years before and, although the
deceased had undertaken to pay Yahav R75 000 towards his medical
expenses incurred as a result, he had failed to do so.
[4] Yahav testified that on the evening in question he
learned that the deceased was at a restaurant known as the Blueberry
Grill,
and proceeded there in order to confront him about not having
paid him as he had promised. He also decided he needed someone to
call the deceased out of the restaurant so that he could have a word
with him in private and, with that in mind, he telephoned
the
appellant and asked for his help. Although the appellant was on his
way to a casino in the company of two friends, Theuns Kingma
and
Francois Moller, he agreed to assist.
[5] It is common cause that the appellant drove to the
Blueberry Grill together with Kingma and Moller. By the time they
arrived,
Yahav had already confronted the deceased and was talking to
him outside the restaurant. When the appellant and his two companions
approached, and the deceased suddenly found himself facing up to four
men rather than one, he panicked and ran off. Kingma and
Moller set
off in pursuit while Yahav and the appellant, after speaking to a
security guard who had approached to inquire what
was happening,
followed shortly afterwards.
[6] What next occurred is a matter of considerable
dispute. According to Yahav, they found that Kingma and Moller had
assaulted
the deceased and knocked him to the ground. Yahav
testified that he went up to where the deceased was lying on the
ground and,
using a large knife he had earlier taken from a bag the
deceased had been carrying, slashed the deceased’s face. Having
done
so, he handed the knife to Kingma. The appellant then took the
knife from Kingma, apparently with the intention of also attacking
the deceased. Seeing this, Yahav grabbed hold of him and attempted to
pull him away from the deceased. However, the appellant slipped
his
grasp and plunged the knife into the abdomen of the deceased as he
lay on the ground. Yahav said that he had extracted the
knife from
the deceased’s body and went off with it. Later, when driving
away from the scene, he threw it out of the window
of the vehicle.
[7] The appellant’s version of the incident was
materially different. He alleged that when Yahav had telephoned him,
he had
asked him to come and fight the deceased. When he, Kingma and
Moller arrived outside the restaurant and saw Yahav with the
deceased,
Yahav told him that he had contacted a policeman friend who
was on his way to the scene and who had said that they should keep
the deceased there until he arrived. While he agreed that the
deceased had run off pursued by Kingma and Moller and that he and
Yahav followed shortly afterwards, he stated that Kingma, Moller and
the deceased were standing together when they reached them.
He told
the deceased to stand still as the police were on their way, but when
the deceased heard this he tried to escape. The appellant
said he had
physically restrained the deceased from making off and, when the
deceased unsuccessfully tried to hit him, had punched
him hard on the
nose, causing him to collapse to the ground. Yahav then proceeded to
kneel on the deceased’s chest and slash
his face with a large
knife. Kingma intervened and, grabbing hold of Yahav, pulled him away
from the deceased. In the process,
Yahav dropped the knife and the
appellant picked it up. Kingma and Moller then headed back to where
their vehicle was parked. The
deceased’s face was bleeding so
profusely that the appellant was overcome by nausea. He told Yahav
that he wanted no part
in what was going on, threw the knife down and
followed them, leaving Yahav with the deceased. When the appellant
reached the spot
where he had left his vehicle he found that Kingma
and Moller had already driven off. Shortly thereafter, Yahav returned
and gave
him a lift home. About an hour later, Yahav telephoned him
and told him that he had spoken to his friend, the policeman, who had
told him that the deceased had died as a result of a broken bone in
his nose which had penetrated the brain. He understood this
to mean
that the deceased had died as a result of the blow he had struck him.
[8] There were therefore two mutually destructive
versions before the trial court as to who had been responsible for
the fatal stab
wound. On the state’s case it was the appellant,
while on the appellant’s version, although he had not been
present
when it was inflicted, it must have been Yahav. The high
court found that the trial court had erred in rejecting the
appellant’s
version as false beyond a reasonable doubt and held
that the state had accordingly failed to show that the appellant was
guilty
of murder and that such conviction could not stand. However,
the high court went on to conclude:
‘
There can be no question
either that the appellant did participate in the assault of the
deceased as well as the concealment of
the knife that had inflicted
the fatal wound. He thus made himself guilty of being an accessory
after the fact of that crime. He
did not report the true facts of the
crime to the police immediately after the event. In fact he colluded
with Yahav in trying
to conceal important evidence and furnish
incorrect statements. In the circumstances the appellant should have
been convicted of
being an accessory after the fact of murder.’
[9]
The
findings that the appellant had concealed the knife used to inflict
the fatal wound, and that he had acted in collusion with
Yahav to
conceal important evidence by furnishing incorrect statements, are
startling, to say the least. In regard to the concealment
of the
knife, on the state’s version it was Yahav, and not the
appellant, who threw it away. On the appellant’s version,
all
he did was drop the knife near the scene. On either version, the
appellant did not attempt to conceal it and the finding that
he had
done so amounted to a gross misdirection. So was the finding in
regard to the furnishing of incorrect statements to the
police in
collusion with Yahav. There is no evidence on record as to either
what the appellant had told the police or from which
it can be
inferred that he had colluded with Yahav in attempting to conceal
relevant evidence, nor was it ever suggested that he
had done so.
[10]
In addition, in regard to the appellant’s alleged failure to
immediately report the incident to the police, on his version
which
has not been shown to be false, he learned of the death of the
deceased only an hour or so after he had returned home. He
was then
brought under the impression that he, and not Yahav, had been
responsible for the deceased's demise. As he was unaware
that Yahav
had killed the deceased, he could not have been guilty as an
accessory after the fact to that crime. In any event,
once under the
impression that the deceased had died because he had punched him on
the nose, and that he was a potential suspect,
he was under no
lawful obligation to implicate himself or to provide the police with
a statement. Consequently, even if he did
fail to immediately report
the incident to the police, he cannot be found guilty as being an
accessory after the fact to the deceased's
murder.
[1
1]
In the light of these considerations, and having regard to the
evidence on record, the finding that the appellant was guilty
as an
accessory after the fact is insupportable and counsel for the
respondent conceded, correctly, that the appellant had been
wrongly
convicted of that offence.
[12] On the other hand, while the conviction as an
accessory and the sentence imposed in that regard cannot stand, the
appellant
on his own version had neither been entitled to physically
restrain the deceased from leaving the scene nor to punch him in the
face, and in doing so he unlawfully assaulted the deceased. Under s
258(e) of the Criminal Procedure Act, common assault is a competent
verdict on a charge of murder and it was conceded by both sides
before this court that the appellant should have been found guilty
of
that offence. It was also suggested by both sides that, as the
appellant is a first offender who has been on bail pending this
appeal, a sentence of direct imprisonment is not called for and that
a robust fine, with a period of imprisonment for several months
as an
alternative, would be appropriate.
[13] I agree with this suggestion. I also consider that
it would be best to suspend a portion of the sentence to act as an
inducement
for the appellant to desist from similar conduct in the
future.
[14]
The
appellant’s conviction as an accessory after the fact to murder
and the sentence of five years’ imprisonment are
set aside. The
order of the court below is replaced with the following:
‘
(a) The appeal succeeds.
(b) The accused’s conviction and sentence of 15
years’ imprisonment are set aside and replaced with the
following:
“The accused is convicted of
common assault and is sentenced to a fine of R6 000 or six months’
imprisonment, half
of which is suspended for three years on condition
that he is not convicted of an offence involving an assault committed
during
the period of suspension and for which he is sentenced to
imprisonment without the
option of a fine.”’
_______________
L E LEACH
ACTING JUDGE OF APPEAL
APPEARANCES:
For Appellant: E S Classen (Attorney)
Instructed by
David H Botha, Du Plessis & Kruger Inc; Johannesburg
Symington & De Kok; Bloemfontein
For Respondent: D Vlok
Instructed by
The Director of Public Prosecutions; Johannesburg
The Director of Public Prosecutions; Bloemfontein