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[2008] ZASCA 147
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S v Morgan (271/2008) [2008] ZASCA 147; [2009] 2 All SA 158 (SCA) (27 November 2008)
THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case
No: 271/2008
No precedential significance
MARK ANTHONY
MORGAN Appellant
and
THE STATE
Respondent
Neutral
citation:
Morgan
v The State
(271/2008)[2008]
ZASCA 147 (27 November 2008)
Coram:
Mthiyane,
Heher and Ponnan JJA
Heard:
5
November 2008
Delivered:
27
November 2008
Summary:
Appellant
implicated by two members of a gang in a shooting and killing of a
fellow gang member – appellant perceived as member
of a rival
gang - evidence to be treated with caution to eliminate the risk of
false incrimination.
Alleged
conspiracy between witnesses to falsely implicate appellant found not
to exist – their evidence considered in its
totality found to
be acceptable despite contradictions.
___________________________________________________________
ORDER
On appeal
from:
High
Court, Witwatersrand Local Division (Full Court per Bham AJ, Blieden
and Makhanya JJ)
1 The appeal is
dismissed.
JUDGMENT
MTHIYANE JA
(HEHER and PONNAN JJA concurring):
[1] The
appellant stood trial in the Johannesburg High Court (Satchwell J)
with a co-accused, Kenneth Morgan (accused 1) on charges
which
included murder, attempted murder, unlawful possession of a firearm
and unlawful possession of ammunition in contravention
of ss 2 and 36
of the Arms and Ammunition Act 75 of 1969 respectively. The charges
arose out of an incident in Westbury on 30 November
2003 in which
Adrian Barris (‘the deceased’) was shot and killed. At
the time of the incident shots were also fired
at the deceased’s
friend, Godfrey Leghlo – hence the charge to attempted murder.
[2] The
appellant was convicted and sentenced to 15 years’ imprisonment
for the murder and six years’ imprisonment for
the attempted
murder, the latter to run concurrently with the 15 year sentence. In
addition, the appellant was sentenced to three
years’
imprisonment for the unlawful possession of a firearm and six months’
imprisonment for the unlawful possession
of ammunition, the latter to
run concurrently with the three year sentence imposed for the
unlawful possession of a firearm. It
was further ordered that half of
the sentences imposed in respect of the unlawful possession of a
firearm and ammunition were to
run concurrently with the sentence of
15 years’ imprisonment imposed for the murder. The appellant
was thus sentenced to
an effective term of imprisonment of 16 years
and six months.
[3] The state
alleged that the deceased was shot and killed by the appellant. The
appellant denied the allegations and raised an
alibi defence and
tendered a plea explanation in terms of
s 115
of the
Criminal
Procedure Act 51 of 1977
to that effect. He also denied that he shot
at Godfrey Leghlo or that he was in possession of a firearm and
ammunition.
[4] The trial
judge rejected the appellant’s alibi defence and accepted the
evidence of the three state witnesses, Leghlo,
Iva Kiranie and Aubrey
Baardman, who placed appellant on the scene and implicated him in the
offences of which he was subsequently
convicted.
[5] With the
trial court’s leave the appellant and his co-accused appealed
to the Full Bench of the Witwatersrand Local Division
against both
their convictions and sentences. Accused 1’s appeal succeeded
but the appellant failed in his appeal against
the conviction. The
appellant succeeded only in having his sentence reduced to an
effective term of imprisonment of 15 years.
[6] On appeal
the Full Bench (Bham AJ with Blieden and Makhanya JJ concurring)
found Satchwell J to have been correct in accepting
the evidence of
the three witnesses especially on the crucial issue of whether or not
the appellant was present at the scene at
the time of the shooting.
The Full Bench also found that on the evidence taken as a whole the
state had proved its case against
the appellant beyond reasonable
doubt.
[7] The
appellant was granted special leave by this court to appeal against
the conviction. Before considering the correctness of
the conviction
it bears mention that in its assessment of the evidence the trial
judge made no credibility findings and thus we
are not precluded on
appeal from making our own assessment of the evidence, with due
regard to the probabilities.
[8] Leghlo
testified that on the day of the incident he and the deceased were
returning from a ‘function’. As they were
walking along
Du Plessis Street towards Gavin Flats they observed Gato, who was
standing outside the building drinking beer. At
that point Leghlo saw
a white BMW motor vehicle belonging to accused 1 which had pulled up
in Du Plessis Street. Accused 1 was
behind the wheel while the
appellant and Ricardo were standing next to the vehicle at the
driver’s door. He then saw the
appellant and Ricardo receiving
two firearms from accused 1. Ricardo and the appellant tucked the
firearms underneath their shirts
and walked away from the vehicle
towards Gavin Flats. Accused 1 drove away.
[9] Leghlo heard
people screaming. He saw Baardman and Gato fighting. As Leghlo and
the deceased were on their way to where the
fight was taking place
Leghlo heard what sounded like a firearm being cocked. When he turned
to look he saw the appellant about
four metres behind them pointing a
firearm at him and the deceased. Leghlo touched the deceased alerting
him to the danger, shouted
and then jumped clear, as a result of
which he fell. While he was on the ground Leghlo heard a shot being
fired and saw the deceased
falling. Before falling the deceased had
had his firearm in his hand. Leghlo snatched it from him and started
firing back. After
a brief exchange of gunshots the appellant and
Ricardo fled from the scene. Leghlo then handed the firearm to
Baardman.
[10] Kiranie
told the court that she and her daughter were on their way to the
shop when she saw Leghlo and the deceased walking
along Du Plessis
Street. She then heard gunshots and saw appellant shooting at Leghlo
and the deceased. She saw the deceased falling
down and Leghlo take
the firearm from him and fire at the appellant. The appellant ran
away.
[11] Baardman
testified that on the day of the incident he and Pulen attended the
same function as Leghlo and the deceased. When
the deceased and
Leghlo left he and Pulen followed out of curiosity. He saw accused 1
in his white BMW motor vehicle in Du Plessis
Street and the appellant
and Ricardo standing next to it. When the two of them walked from the
vehicle towards Gavin Flats, they
had their shirts pulled over their
trousers but he did not see any firearms in their possession.
[12] Baardman
saw Gato standing alone near Gavin Flats, drinking beer from a
bottle. Gato approached Baardman and started swearing
at him and, for
no apparent reason started to assault him. A fight broke out between
them. While they were fighting Baardman saw
the deceased and Leghlo
approaching. However, before they arrived, Baardman heard a gunshot
go off and saw the deceased falling.
On turning he saw the appellant
shooting at Leghlo. He saw Leghlo fall and take a firearm from the
deceased and fire shots at the
appellant who turned and ran away
while continuing to fire at Leghlo. After the shooting Baardman went
to where the deceased had
fallen. Leghlo handed him the firearm.
[13] The
appellant testified in his own defence. He also relied on the
evidence of accused 1. It is convenient to refer first to
the
latter’s evidence. He told the court that on the day of the
incident he attended a soccer match at Westbury. After the
match he
took Gato, Ricardo and Josie to Du Plessis Street in his BMW motor
vehicle. He denied seeing the appellant at all. He
recalled seeing
Leghlo in the parking area adjoining Du Plessis Street before driving
away.
[14] The
appellant testified that he also attended the soccer match at
Newlands Stadium. He did not see accused 1 – he had
travelled
to and from the match on foot. Afterwards the match he escorted his
girlfriend to her home in Du Plessis Street. He thereafter
went home
where he spent the rest of the evening with a neighbour.
[15] The
appellant also relied on the evidence of two defence witnesses, Ms
Shereen Snell and Ms Ricordia Arends. These witnesses
do not however
take the matter any further. Snell testified that while she was with
Gato, Leghlo, Baardman and another person approached
them and started
assaulting Gato for no reason. She fled. After she reached home she
heard the sound of gunfire, and looking out
of her window, saw
Baardman and Leghlo arguing over two firearms. She had seen Leghlo
shooting at Gato as the latter ran away but
did not see the deceased
being shot or Leghlo being shot at. She could thus not say who was
responsible for these shootings, or
whether the appellant was present
at the time.
[16] Similarly
Arends was of no assistance. Her evidence related to an incident
involving the deceased which had nothing to do with
the offences of
which the appellant was convicted.
[17] In the
appeal before us it was submitted that in his defence the appellant
could take the matter no further than to assert
that he was not at
the scene at the time of the shooting. The appellant’s counsel
was critical of the evidence of Leghlo,
Baardman and Kiranie which he
dismissed as unreliable and riddled with contradictions. The
evidence, submitted counsel, should
not have been accepted by
Satchwell J. In addition, counsel cautioned that the evidence had to
be approached with caution as the
witnesses Leghlo and Baardman were
members of a rival gang, the Majimbo’s and the risk of false
incrimination was very real.
There is a lot to be said for this
submission as the witnesses Leghlo and Baardman were indeed avowed
members of the rival gang.
Although the appellant denied that he was
a member of the other gang, the Fast Guns, he was perceived by the
witnesses as a member
of this gang. Accused 1 was alleged by the
witnesses, to be the leader of the Fast Guns. Accused 1 admitted
membership of the gang
but denied that he was its leader.
[18] It is
convenient to deal first with the submissions relating to the
contradictions. There is no doubt that the witnesses Leghlo,
Baardman
and Kiranie contradicted themselves in certain respects. Both the
trial court and the court a quo were alive to this aspect
in their
assessment of the evidence. Bham AJ in dealing with the
contradictions in their evidence said the following in a passage
which I adopt:
‘
Whilst
it is important to consider, in determining whether the state has
proved its case beyond reasonable doubt, the component
parts of the
evidence tendered on behalf of the state, one should be careful not
to sink into the detail of such component parts
in a manner which
obviates the totality of the picture.’
It is however
clear that, despite the contradictions, their testimony on the
crucial question of whether the appellant was at the
scene and
whether he shot at and killed the deceased was unshaken. While Leghlo
came across as garrulous especially during cross
examination it
cannot be said that he was an untruthful witness. The criticism of
Kiranie as a witness is not without substance.
She was not an
impressive witness and no doubt, her evidence has value only in so
far as it is reliably confirmed. In the last
mentioned regard it is
important to evaluate that evidence which placed the appellant at the
scene.
[19] Did gang
rivalry play any role in the implication of the appellant in the
offences of which he was convicted? The potential
for deceit,
particularly in the case of Leghlo and Baardman, who were admittedly
members of the Majimbos, cannot be ignored and
consequently their
evidence has to be approached with caution. In the case of the three
witnesses Leghlo, Boardman and Kiranie
some assurance that their
evidence could be relied on is to be found in the fact that they
corroborate each other on the crucial
aspects of whether the
appellant was at the scene and whether he shot and killed the
deceased. Furthermore Kiranie was not a member
of either of the rival
gangs. She had no axe to grind with the appellant and no reason or
motive to implicate the appellant falsely.
In my view the admission
by accused 1 that he arrived on the scene shortly before the shooting
and dropped off Ricardo and two
other persons in Du Plessis Street
provides a measure of support for the evidence of Leghlo, Kiranie and
Baardman. All of the above
factors in my view serve to reduce the
risk of false incrimination.
[20] This brings
me to the question of the conspiracy theory advanced by counsel for
the appellant. The real question on this point
is whether the
witnesses, Leghlo, Kiranie and Baardman deliberately substituted the
appellant for the real killer in pursuance
of a conspiracy falsely to
implicate him. It was suggested by counsel that the three witnesses
must have come together at some
point and conspired to implicate the
appellant falsely.
[21] The
conspiracy theory was not accepted by the trial court. On the
probabilities it seems highly unlikely. If it occurred it
would not
have preceded the making of the statement to the police by Kiranie.
She told the court that after the shooting (which
occurred at about
18h00) she accompanied the deceased to hospital. She made a statement
to the police in a police vehicle at the
hospital later that evening
at about 20h00, implicating the appellant in the shooting. There is
no evidence that she met either
Leghlo or Baardman at any stage
before then. If the conspiracy theory is to be believed it would mean
that Leghlo and Baardman
would thereafter have had to tailor their
version of events to fit in with the events as described by Kiranie
in her statement.
Even the contradictions in their evidence negate
the suggestion. So far from supporting any theory of deliberate
fabrication and
thus a conspiracy between the eyewitnesses, the
discrepancies in their evidence point rather to honest and
independent observation
and recollection.
[22] A
persuasive aspect of the evidence of Leghlo was the fulsome and
coherent detail of his testimony which nevertheless contained
surprisingly little internal contradiction. It carries an overall
ring of truth rather than conveying the impression of a story
stitched together to serve an end. In short one is persuaded that he
lived through the nail-biting events that he described and
did not
deliberately exaggerate or tailor his version.
[23] On a
consideration of the evidence in its totality and in the light of the
probabilities the case against the appellant was,
in my view, proved
beyond reasonable doubt. (See
S
v Radebe
1998 (1) SACR 422
(SCA) at 426F-H) When the evidence of the three
witnesses is considered separately and individually there are
undoubtedly some
glaring weaknesses but when taken together there is
no doubt as to the guilt of the appellant. A further factor which
provides
a measure of support for the above conclusion is that, once
one accepts that the appellant was at the scene, the appellant’s
overall testimony is fundamentally undermined. The appellant was well
known to the three witnesses. All three say they saw him
at the
scene. Leghlo saw that he had a gun. Kiranie also saw him firing
shots from a gun. When all of these facts are taken together
they
allow if no other conclusion than that the case against the appellant
was proved beyond reasonable doubt.
[24] Finally, as
something of a throw away, counsel for the appellant submitted that
the deceased might have been shot by Ricardo.
In my view the
suggestion is speculative and fanciful. It was never put to any of
the state witnesses during cross-examination
and no evidence was led
to substantiate the point. In any event it is not incumbent upon the
state to eliminate every conceivable
possibility that may depend upon
pure speculation. (See
S
v Reddy
1996 (2) SACR 1
(A).) The witnesses were in no doubt that it was the
appellant who shot and killed the deceased.
[25] In the
result the appeal is dismissed.
__________________________
KK MTHIYANE
JUDGE OF APPEAL
Appearances:
For Appellant: E
Classen
Instructed
by:
David H Botha,
Du Plessis & Kruger Inc Johannesburg
Symington &
De Kok Bloemfontein
For
Respondent: (Ms) J Steyn
Instructed
by:
The Director
of Public Prosecutions Johannesburg
The Director
of Public Prosecutions Bloemfontein