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[2007] ZASCA 151
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S v Appels (303/07) [2007] ZASCA 151; [2007] SCA 151 (RSA) (28 November 2007)
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REPUBLIC
OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
NOT REPORTABLE
Case number: 303/07
In the
matter between:
OWEN
FLOYD APPELS ................................
Appellant
and
THE
STATE
................................
Respondent
CORAM
:
NUGENT
JA, HURT and KGOMO AJJA
HEARD
:
6
NOVEMBER 2007
DELIVERED
:
28
NOVEMBER
2007
Summary:
Appeal
against conviction for murder dismissed. No reasonable possibility
that accused's version may be true
Neutral
citation:
This
judgment may be referred to as
Appels
v The State
[2007]
SCA 151 (RSA)
_____________________________________________________________________
J U D G M E N T
_____________________________________________________________________
HURT AJA
[1] The appellant was
convicted of murder in the Regional Court, Kimberley. He appealed to
the full bench of the High Court but the
appeal was dismissed. He was
however given leave to appeal to this court against the conviction
only.
[2] At the commencement
of the trial, the appellant pleaded not guilty to the charge of
murder and reserved his defence. By the time
the appellant's case was
closed, though, the court was left with a narrow issue to resolve.
[3] It was common cause
that there was a party at the appellant's house on the night in
question. One of his guests was Mr Tyro Guys,
who lived diagonally
across the road. At about midnight Mr Guys' wife (to whom I will
refer as 'the deceased') walked across the
road to the appellant's
house in order to call her husband away from the party. While she was
in the course of doing this, an altercation
developed between her and
some of the guests at the party which led to the appellant's mother
intervening. The deceased and the appellant's
mother exchanged
insults and the appellant, in turn, intervened and told the deceased
to leave the premises. He escorted her, or
followed her, into the
street where the altercation continued. There the verbal dispute
turned into physical aggression. It is at
this point in the sequence
of events that material conflicts between the version of the State
and that of the accused emerged. But
it is not in dispute that the
appellant struck the deceased, while he was holding a glass in his
hand. After she had been struck,
the deceased was seen to be bleeding
profusely from the area of her neck. She made her way back into her
yard where she collapsed
and died a matter of minutes later.
[4] The District Surgeon,
Dr Olivier, who performed the post mortem examination, told the court
that she had identified the cause
of death as a gross loss of blood
caused by a laceration of the subclavian artery which is located
below the collarbone. She said
that the deceased had sustained three
injuries, a 1cm triangular-shaped laceration to the right of her
right eye, an 11cm relatively
superficial laceration extending from
immediately below the triangular laceration downwards to the corner
of the mandible and a 10cmx7cm
incised wound in the neck, extending
obliquely from below the right mandible to the vicinity of the notch
in the centre of the collarbone.
In response to questions by counsel
and by the court, she had said that she considered that these
injuries must have been caused
by at least two blows. However, on
more than one occasion, she made the concession that it was
'possible' that the injuries could
have been sustained by a single
blow. She expressed the firm view, though, that such a blow would
have had to be directed in a downward
direction.
[5] The
divergence between the State and defence versions was simply this.
According to the State witness, Emma Guys, the 16 year-old
daughter
of the deceased, the appellant struck the deceased twice. When the
first blow was struck, against the side of the deceased's
face, the
glass broke and the appellant immediately stabbed the deceased on the
neck with the broken remnant which was still in his
hand. The
appellant's version was that he had only struck one blow, not
realizing that he was holding the glass in his hand. The
significance
of this divergence is that if the appellant stabbed the deceased with
a broken glass in the vital area of the deceased's
neck, then the
only reasonable inference (and counsel were in agreement in this
regard) must be that he foresaw death as a possible
result and that
he had criminal intent in the form of
dolus
eventualis
.
That being so, the conviction for murder was correct. Such an
inference cannot properly be drawn, though, if the appellant struck
only one blow. In that case, the offence would have been culpable
homicide or assault with intent to do grievous bodily harm. To
secure
a conviction for murder, the State had to prove beyond reasonable
doubt that the appellant had acted with
dolus
eventualis
,
and, in the light of the restricted issue referred to, this equated
effectively to proof beyond reasonable doubt that two blows
were
struck. If, after a consideration of all the evidence, there remained
a reasonable possibility that the appellant had only struck
the
deceased once, he could not be convicted on the murder charge.
[6] In arguing the appeal
before us, Mr Nel, who appeared for the appellant emphasized two
aspects of the evidence adduced in the
trial court. The first was
that Emma had been a single witness to the attack on her mother, and
her evidence was by no means free
of blemish. The second was that Dr
Olivier had conceded that the injuries she had observed at the post
mortem could possibly have
been caused by a single blow. These two
features, counsel submitted, should have led the magistrate to
conclude that there was a
reasonable possibility that Emma might have
been mistaken and that, in fact only one blow was struck.
[7] In
S
v Van der Meyden
1999
(2) 79 (W),
Nugent
J discussed the test for a 'reasonable possibility' in these terms (
at p 82) :
'The proper test is that
an accused is bound to be convicted if the evidence establishes his
guilt beyond reasonable doubt, and the
logical corollary is that he
must be acquitted if it is reasonably possible that he might be
innocent. The process of reasoning which
is appropriate to the
application of the test in any particular case will depend on the
nature of the evidence which the court has
before it. What must be
borne in mind, however, is that the conclusion which is reached
(whether it be to convict or to acquit) must
account for all the
evidence. Some of the evidence might be found to be false; some of it
might be found to be unreliable; and some
of it might be found to be
only possibly false or unreliable; but none of it may simply be
ignored.'
[8] In his judgment the
magistrate acknowledged that Emma's evidence had to be approached
with caution. She was only 16 years old
at the time; she was a single
witness; she was the deceased's daughter, which fact, alone, must
have affected her ability to give
an objective and dispassionate
account of what she observed; there were conflicts between what had
been recorded in her statement
to the police on the day after her
mother had died and the evidence which she gave in court; and she had
contradicted herself on
occasions while giving that evidence. But,
having considered all of these aspects, he nevertheless concluded
that Emma was a truthful
witness. A court of appeal is, of course,
obliged to attribute considerable weight to such a finding. Nor, in
my view, is there any
basis to be found in the record for questioning
the magistrate's conclusion as to Emma's credibility. The crucial
part of her evidence
concerned a brief and simple sequence of events.
She observed the appellant's attack on her mother from a distance of
one or two
metres. She said she had covered her eyes when the first
blow was struck but that she had been watching when the appellant
administered
the second and she had seen that the glass in his hand
was already broken when he struck the deceased with it.
[9] The magistrate
considered the appellant's version and rejected it. The appellant had
demonstrated to the court the single blow
which he said he had
struck. It was described by the magistrate as a 'dwarsklap' ie a blow
which travelled in a horizontal plane
to the side of the deceased's
face. In discounting such a blow as the possible cause of the
deceased's injuries, the magistrate had
relied upon Dr Olivier's
evidence to the effect that if a single blow had caused all the
injuries, it would have been administered
in a downward trajectory to
the side of the deceased's head.
[10] Despite
the question of credibility, of course, the court had to be satisfied
that there was no reasonable possibility that Emma
had been mistaken
when she said that there had been two blows. This was an aspect which
the magistrate did not specifically mention
in his ex tempore
judgment. Mr Nel's
submission
was that the concessions by Dr Olivier to the effect that it was
possible that the deceased could have sustained all the
injuries as a
result of a single blow, had been overlooked (or possibly erroneously
discounted) by the magistrate.
[11] To deal with this
submission, it is necessary to consider the 'concessions' in their
context in the evidence. When asked by the
prosecutor whether one
blow could have caused the injuries, Dr Olivier's reply was ;
'Dit kon een handeling
gewees het. As dit van bo af was is dit moontlik dat dit kon een
handeling gewees het, maar nie met 'n soliede
glas nie.'
She made similar comments
at other stages during her examination-in-chief. Later, during
cross-examination, she elaborated on her
theory in the following
terms :
'Wat ek sou net oor wil
helderheid gee is dat, sou 'n person van bo af tipe van gesteek word
met 'n stuk glas dan kan dit een handeling
wees wat dan altwee
laserasies veroorsaak het. Wanneer 'n glas net breek op die gesig kan
die boonste een veroorsaak gewees het,
die een op die wang, want dit
was nie 'n baie diep laserasie nie, maar die een in die nek dan –
sou dan 'n tweede handeling
moes gewees het met 'n stuk glas.
(
HOF
)
En dit bring ons by mnr Jameson se stelling wat hy nou net gemaak
het. As die glas gebreek het met die kontak gemaak teen die wang,
maar hy breek so dat daar 'n stuk in die hand oorbly en met die
deurvoer van die klap kon dit die tweede wond . . .(tussenkoms)?
- -
- Dit is 'n moontlikheid ja, dit is.'
It is abundantly clear
that Dr Olivier's evidence on this aspect amounted to no more than
that a particular type of blow could possibly
have caused all the
injuries, and that was a blow with a downward trajectory. That
qualification can obviously not be ignored in
understanding what Dr
Olivier considered to be possible. At the stage when she gave her
evidence, the appellant had not testified
and, significantly, his
counsel did not put to Dr Olivier that the appellant would say that
he struck only one blow in a more or
less horizontal plane. There can
be no doubt whatsoever that if it had been suggested to Dr Olivier
that such a blow could possibly
have caused all the injuries she
would have replied firmly in the negative.
[12] The
suggestion that there was a reasonable possibility that the appellant
had struck only one blow can thus only be valid if
the appellant's
own evidence is ignored. That, as indicated in
S
v Van der Meyden
,
is not an acceptable approach. It follows that the magistrate was
correct in concluding that the State had discharged the onus resting
upon it.
[13] The appeal is
dismissed.
N V HURT AJA
CONCUR:
NUGENT JA
KGOMO AJA