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2016
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[2016] ZANCHC 31
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Williams v S (CA&R31/2016) [2016] ZANCHC 31 (10 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Reportable:
NO
Circulate
to Judges:
YES
Circulate
to Magistrates:
NO
Circulate
to Regional Magistrates:
NO
CASE
NO:
CA&R
31/2016
DATE
HEARD:
06/06/2016
DATE
DELIVERED:
10/06/2016
In
the matter between:
MARTIN
WILLIAMS
Appellant
and
THE
STATE
Respondent
Coram:
Olivier
J
et
Murray AJ
JUDGMENT
Olivier
J
[1.]
The
half-clothed body of the deceased, the 23 year old Mr Adam Van Wyk,
was found in a street in the dark of the night of 14 to
15 March
2008. At a later post-mortem examination the cause of death was
found to be multiple stab wounds to the chest of
the deceased.
The appellant was arrested the next day. He later appeared in
the Regional Court on charges of the robbery
(with aggravating
circumstances) of an unknown amount of money from the deceased (count
1) and murder (count 2). He pleaded
not guilty to both counts
and exercised his right to remain silent. At the end of a
protracted trial the appellant was convicted
on the charge of
murder. He was acquitted on the charge of robbery, on the basis
that he was given the benefit of the doubt
that the deceased may,
despite having received his salary earlier that day, not have had
money in his possession at the time of
the attack on him. The
Regional Magistrate found that there were no substantial and
compelling circumstances which would
justify a lesser sentence for
the murder and imposed the prescribed sentence of 15 years
imprisonment.
[2.]
The
Regional Magistrate subsequently granted the appellant leave to
appeal in respect of both the conviction and the sentence.
It
is not clear from the relevant judgment on what basis the Regional
Magistrate decided that there would be reasonable prospects
of
success with such an appeal. Reference was made, by the
Regional Magistrate, to submissions in heads of argument of the
appellant’s attorney at the time, but this does not form part
of the record.
[3.]
Adv.
Nel of Legal-Aid South Africa, in the best tradition of his
profession, conceded that the Regional Magistrate had correctly
accepted the evidence and version of the State witnesses, and
rejected that of the appellant. Mr Nel is to be commended for
this. The concession was properly motivated in his heads of
argument, in a manner indicative of a thorough analysis of the
record
and the evidence and of an appreciation of the holistic approach
which has to be adopted in the evaluation of evidence in
a criminal
trial like this.
[4.]
In
cross-examination of the state witnesses it was initially merely
denied that the appellant had been present when the deceased
was
attacked and killed. It was only after the closure of the state
case that counsel who initially represented him was replaced
and an
alibi defence was raised.
[5.]
Mr
Nel therefore restricted his argument, as far as the conviction is
concerned, to the inference drawn by the Magistrate that the
fatal
wounds were inflicted by the appellant.
[6.]
On
this basis it can, for purposes of the appeal and for consideration
of Mr Nel’s argument, be accepted that the deceased
had walked
down the street that particular night, and that the appellant had
followed him. The witnesses Kock and Eland were
at that stage
sitting in a stationary vehicle in that street. When the deceased
noticed the appellant following him he picked up
his pace, but so did
the appellant. The appellant caught up with the deceased and
caused him to fall. The deceased
then got up and ran away, with
the appellant in pursuit. At that stage nobody else was present
in the street. The two
of them disappeared around the corner in
the street, running down another street. The witnesses Kok and
Eland tried to follow
them, but experienced trouble to get their
vehicle started. When they eventually arrived at the corner they were
unable to see
the deceased or the appellant.
[7.]
The
body of the deceased was discovered not long thereafter, lying in the
street down which he and the appellant had disappeared.
[8.]
In
S
v Cwele and Another
[1]
the approach to be followed in assessing circumstantial evidence was
reaffirmed in paragraph [19]:
”’
In
assessing circumstantial evidence one needs to be careful not to
approach such evidence upon a piece-meal basis and to subject
each
individual piece of evidence to a consideration of whether it
excludes the reasonable possibility that the explanation given
by an
accused is true. The evidence needs to be considered in its
totality. It is only then that one can apply the
oft-quoted
dictum
in
R
v Blom
1939 AD 188
at 202-3, where reference is made to two cardinal rules
of logic which cannot be ignored. These are, firstly, that the
inference
sought to be drawn must be consistent with all the proved
facts and, secondly, the proved facts should be such that they
exclude
every reasonable inference from them save the one sought to
be drawn.’
The
state must therefore satisfy the court, ‘not that each separate
fact is inconsistent with the innocence of the [appellants],
but that
the evidence as a whole is beyond reasonable doubt inconsistent with
such evidence’
”
.
[9.]
This
does not, however, mean that fanciful and speculative inferences will
have to be excluded before an inference can be drawn
beyond
reasonable doubt.
“
The
fact that a number of inferences can be drawn from a certain fact,
taken in isolation, does not mean that in every case the
State, in
order to discharge the onus which rests upon it, is obliged, …
‘to indulge in conjecture and find an answer
to every possible
inference which ingenuity may suggest any more than the Court is
called on to seek speculative explanations for
conduct which on the
face of it is incriminating’
”.
[2]
[10.]
The
approach which a court of appeal will follow in respect of a trial
court’s factual findings is trite. They will
not readily
be interfered with, and indeed only where the record shows such
findings to be clearly wrong
[3]
.
[11.]
In
my view there is no basis at all for interfering with the inference
drawn by the Regional Magistrate, namely that the appellant
was the
person who had attacked and killed the deceased. The
appellant’s version, and his belated alibi defence, was
clearly
false and Mr Nel wisely did not argue that the Regional Magistrate
had erred in rejecting it as such. The appellant
had the
opportunity to play open cards about what had transpired between him
and the deceased after they had disappeared around
the corner and
down the street where the body of the deceased was subsequently
discovered. That information would have been within
the peculiar
knowledge of the appellant and, once his false version had been
rejected, he had not been entitled to speculation
in his favour
[4]
.
[12.]
The
appellant had various relevant previous convictions. He had
previously on no less than three occasions been convicted
of assault
with intent to commit grievous bodily harm, and also once on a charge
of robbery. He had been out on parole, after
having served
sentences of 5 years imprisonment and 3 years imprisonment in respect
of convictions of robbery and assault with
intent to commit grievous
bodily harm, when he committed the present crime.
[13.]
The
attack on the deceased was brutal. No less than 8 stab wounds
were inflicted on a person who was heavily under the influence
of
alcohol, to such an extent that he was staggering. The deceased
therefore clearly posed an easy target. The attack
was
completely unprovoked and when the deceased tried to run away the
appellant relentlessly followed him and stabbed him to death.
[14.]
The
Regional Magistrate accepted that the appellant had consumed alcohol,
but because of his false denial of involvement there was
no evidence
on his part of what role that may have played in the crime. The
Regional Magistrate concluded that, in the circumstances,
an
appropriate sentence would indeed have been imprisonment for a period
of 18 years, but because of the fact that the appellant
had spent in
2 years and 6 months in custody awaiting trial, imposed only the
prescribed sentence of 15 years imprisonment.
[15.]
Mr
Nel, once again responsibly and correctly, conceded that he could not
point out any misdirection committed by the Regional Magistrate
in
assessing whether there were substantial and compelling circumstances
which would justify a lesser sentence
[5]
.
[16.]
In
my view the appeal should in respect of both the conviction and the
sentence be dismissed and the following order is therefore
made:
THE
APPEAL IS DISMISSED AND THE CONVICTION AND SENTENCE ARE CONFIRMED
.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I
concur.
______________________
H
MURRAY
ACTING
JUDGE
NORTHERN
CAPE DIVISION
For the
Appellant: Adv. V.Z. Nel
(Legal-Aid,
Kimberley, Northern Cape)
For the Respondent:
Adv N.A. Mxabo
(Office
of the Director of Public Prosecutions, Northern Cape)
[1]
2013 (1) SACR 478 (SCA)
[2]
S v Dos Santos and Another
2010 (2) SACR 382
(SCA) para [34]
[3]
Compare
S v Monyane and Others
2008
(1) SACR 543
(SCA) para [15];
S v Kekana
2013 (1) SACR 101
(SCA) para [8]
[4]
Compare
S v Mkhize
1999 (2) SACR 632 (W)
[5]
Compare
S v PB
2013 (2) SACR 533
(SCA) para [20]