Brief Summary

Criminal Law — Murder — Conviction based on common purpose — Appellant's alibi defense rejected — Appellant convicted alongside co-accused for premeditated murder of deceased, with reliance on circumstantial evidence and alleged common purpose — Appeal upheld due to inadmissibility of co-accused's statements against appellant and insufficient evidence to support conviction — Conviction and sentence set aside.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a criminal appeal against conviction in the KwaZulu-Natal Division of the High Court, Pietermaritzburg. The appellant, Vuka Ishmael Sithunza, appealed against his conviction for planned and premeditated murder. The respondent was the State.

The matter arose from a trial in the KwaZulu-Natal Division of the High Court, Southern Circuit, Ramsgate, where Moodley J (sitting as court of first instance) convicted the appellant together with two co-accused (accused 2 and accused 3) of the murder of Sibusiso Victor Gumede. Each accused was sentenced to life imprisonment. All three accused sought leave to appeal against conviction and sentence, but the trial court granted leave only in respect of the appellant’s appeal against conviction. The appeal before the Full Court (Gorven, Seegobin and Olsen JJ) was therefore limited to whether the appellant was correctly convicted.

The general subject-matter concerned whether the appellant could be convicted on the basis of common purpose arising from a prior agreement, where much of the evidence implicating him depended (directly or indirectly) on extra-curial statements made by co-accused, and where the State otherwise relied primarily on circumstantial evidence (including cellular telephone records and evidence placing the appellant with the co-accused the day before the shooting).

2. Material Facts

On the morning of 20 December 2010 at approximately 07h30, the deceased, Sibusiso Victor Gumede, was driving a blue Nissan Skyline along a road in the Bhoyibhoyi area near Port Shepstone. One of the deceased’s sisters was at the Ndaleni bus stop when she saw the deceased’s vehicle approach. She then heard a shot, after which the vehicle careened into a field. The deceased was found wounded and was rushed to hospital, but did not survive.

It was common cause that the shot fired as the deceased approached the bus stop caused his death. It was also common cause on the evidence that two men were seen running from the scene, and that one of them fired the fatal shot.

Three persons were charged with the murder. The appellant was accused 1, and the two men seen running from the scene were accused 2 and accused 3. All three pleaded not guilty and raised alibi defences under section 115 of the Criminal Procedure Act 51 of 1977. The appellant’s alibi was that he was at his parental home in Harding (a considerable distance from the murder scene) from 23 November 2010 to 17 January 2011.

At trial, accused 2 and accused 3 were identified by witnesses (including the appellant’s sister and a 16-year-old witness, [K…] [M…]). In addition, the trial court admitted a contested confession by accused 2 and a contested pointing-out by accused 3, after conducting trials-within-a-trial. Those extra-curial statements, together with other evidence led against accused 2 and 3, established (in the trial court’s view) that they had agreed with others to murder the deceased and that they were the assailants at the bus stop.

In relation to the appellant, a contested statement attributed to him was ruled inadmissible after a trial-within-a-trial. After the rulings, it was agreed that evidence led during the trials-within-a-trial would generally be received into the main trial except for that led in the appellant’s trial-within-a-trial.

At the close of the State case, the appellant sought discharge under section 174 of the Criminal Procedure Act 51 of 1977, which was refused. The appellant then closed his case without leading evidence.

The admissible evidence against the appellant (once the co-accuseds’ extra-curial statements were excluded) consisted essentially of two features. First, [K…], who knew the appellant and whose evidence the trial court accepted, testified that on the afternoon before the murder he saw the appellant with accused 2, accused 3 and another person about 1.5 km from the scene, and that within minutes of that sighting a gunshot was heard from their vicinity. Second, cellphone records showed that between 05h45 and 09h45 on the morning of the murder, the appellant’s cellphone was used to communicate with accused 2 or accused 3 on at least 10 occasions.

As to disputed facts, the appellant’s alibi was disputed by the State and was found by the courts to be false. Records demonstrated that the appellant’s cellphone was used in the Port Shepstone and Marburg areas on the day before and the day of the murder, and (absent an explanation that he did not possess the cellphone) the inference was drawn that he was operating it. The evidence of [K…] placing the appellant near the scene the previous afternoon also contradicted the alibi.

3. Legal Issues

The central legal questions were whether, on the evidence admissible against the appellant, the State had proved beyond reasonable doubt that the appellant was guilty of murder on the basis of common purpose arising from a prior agreement.

This raised an interrelated set of issues about the law of evidence and the application of legal principles to proved facts. A key legal question was the extent to which the trial court could rely on extra-curial statements by co-accused (confessions, admissions, or pointing-out evidence) when determining the appellant’s guilt. Closely connected was whether the remaining circumstantial evidence (association with co-accused the day before, a gunshot heard in their vicinity, and repeated cellphone contact on the morning) was capable of proving the existence of a prior agreement to murder and the appellant’s participation in that agreement.

The dispute therefore principally concerned the application of law to fact (including logical inference from circumstantial evidence), framed by rules governing admissibility and the doctrine of common purpose (particularly common purpose based on prior agreement rather than presence at the scene).

4. Court’s Reasoning

The Full Court noted that the State accepted that the law was clear that extra-curial statements by accused 2 and accused 3 were not admissible against the appellant, regardless of whether such statements amounted to admissions or confessions. The court further noted that such statements are not partially excised to remove only portions implicating a co-accused; rather, as a matter of principle, they are excluded in their entirety as against the co-accused.

Because the trial court’s reasoning relied, at least in part, on matters that were only revealed by the extra-curial statements (including communications involving a person, Sphamandla Mzobe, whose involvement appeared only from those statements), the Full Court held that this reliance constituted a misdirection. Once the inadmissible material was excluded, the State properly conceded that the remaining evidence was insufficient to sustain the appellant’s conviction.

The Full Court nevertheless examined the admissible evidence and the trial court’s approach to circumstantial proof. It accepted that the appellant’s alibi was false, based on cellphone location records and evidence placing him near the scene the day before. However, the Full Court treated the falsity of the alibi as insufficient to supply the missing elements of the State’s case: the issue was not merely whether the appellant was untruthful about his whereabouts, but whether the State had proved the substantive elements required for guilt under the chosen theory of liability.

The court endorsed the general approach to circumstantial evidence articulated in S v Reddy & others 1996 (2) SACR 1 (A), read with the “two cardinal rules of logic” from R v Blom 1939 AD 188. On that approach, circumstantial facts must be considered cumulatively, but the inference of guilt must still be consistent with all proved facts and must exclude every reasonable inference other than guilt.

Applying these principles, the Full Court emphasised that the State’s case against the appellant depended on common purpose arising from a prior agreement. Since the appellant was not one of the two assailants, and accused 2 and 3 were identified as those who fled the scene and who were responsible for the shooting, the State could only secure a conviction against the appellant by proving, beyond reasonable doubt, that there was an agreement to murder the deceased and that the appellant was a party to that agreement.

The court referred to the requirements for common purpose summarised in S v Mgedezi & others 1989 (1) SA 687 (A), while noting that the requirement of presence at the scene does not apply where the State relies on a prior agreement. The court also stressed that, in line with authority including S v Jama & others 1989 (3) SA 427 (A), the elements of liability must be proved beyond reasonable doubt in respect of each accused, and the case against one accused cannot be determined by adopting a broad global approach that effectively imports inadmissible material from the case against others.

A significant aspect of the reasoning was the State’s argument on appeal that, because the trial court had made “findings of fact” (based on evidence admissible against accused 2 and 3) that an agreement existed to murder the deceased, those findings could be treated as binding “irrefutable facts” against the appellant even though the evidentiary basis for the findings was inadmissible against him. The Full Court rejected this argument as overlooking two fundamental principles. First, factual findings must be grounded in admissible evidence; there are no “free-standing” findings independent of the evidence supporting them. Second, any finding made against an accused must be based solely on evidence admissible against that accused. The Full Court illustrated the point by noting that if accused 2 and 3 had been tried separately and convicted on the basis of their own admissible evidence, those factual findings could not automatically be used to convict the appellant in a later trial.

Having rejected this reasoning, the court held that there was no evidence admissible against the appellant that an agreement to murder the deceased existed. The admissible evidence placing the appellant with accused 2 and 3 the previous afternoon, a gunshot heard shortly thereafter, and multiple cellphone contacts on the morning of the murder did not justify an inference, still less the only reasonable inference, that a murder agreement existed to which the appellant was party. The court considered that the trial court effectively assumed the existence of the agreement and then asked whether the appellant associated with it, which the Full Court characterised as placing “the cart before the horse”. Without proof of the prior agreement in the case against the appellant, the foundation for the common-purpose theory was absent.

On this basis, the court concluded that there was no evidence to support the conviction, and further expressed the view that the appellant should not have been put on his defence, implying that the section 174 discharge application ought to have succeeded on the admissible evidential material.

5. Outcome and Relief

The appeal was upheld. The Full Court set aside both the appellant’s conviction and sentence.

No separate order as to costs appears from the judgment, and the order was confined to setting aside the conviction and sentence.

Cases Cited

Mhlongo v S; Nkosi v S 2015 (8) BCLR 887 (CC).

S v Reddy & others 1996 (2) SACR 1 (A).

S v Mgedezi & others 1989 (1) SA 687 (A).

S v Sefatsa & others 1988 (1) SA 868 (A).

S v Yelani 1989 (2) SA 43 (A).

S v Jama & others 1989 (3) SA 427 (A).

R v Blom 1939 AD 188.

Legislation Cited

Criminal Procedure Act 51 of 1977 (section 115; section 174).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that extra-curial statements by co-accused are not admissible against the appellant and must be excluded in their entirety when determining his guilt. Once those statements were excluded, there was no admissible evidence proving a prior agreement to murder the deceased in the appellant’s case, which was essential for liability on a common purpose based on prior agreement. The remaining circumstantial evidence, even together with the falsity of the appellant’s alibi, did not exclude reasonable inferences other than guilt and did not establish the required agreement beyond reasonable doubt. The conviction and life sentence were therefore set aside.

LEGAL PRINCIPLES

A conviction of an accused must be based on evidence admissible against that accused, and findings made on the strength of evidence admissible only against co-accused cannot be transposed as binding “facts” against another accused.

Extra-curial statements (including confessions and pointing-out evidence) made by one accused are not admissible against a co-accused, and the exclusion is not achieved by excising only the implicating portions; rather, the statements are excluded in their entirety as against the co-accused.

In assessing circumstantial evidence, the evidence must be considered in its totality, but the inferential conclusion of guilt must satisfy the Blom logic rules: it must be consistent with all proved facts and must exclude every reasonable inference other than guilt.

Where the State relies on common purpose arising from prior agreement, it must prove beyond reasonable doubt not only the commission of the offence by the perpetrators but also the existence of the prior agreement and the accused’s participation in that agreement. Absent admissible evidence proving the agreement in the case against that accused, liability on that basis cannot be sustained, even if the accused’s alibi is shown to be false.

Sithunza v S (AR 340/2015) [2016] ZAKZPHC 9 (9 February 2016)