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[2006] ZASCA 165
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Director of Public Prosecutions, Transvaal v Mtshweni (52/06) [2006] ZASCA 165; [2007] 1 All SA 531 (SCA); 2007 (2) SACR 217 (SCA) (27 September 2006)
Links to summary
THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO: 52/06
Reportable
In
the matter between
THE
DIRECTOR OF PUBLIC PROSECUTIONS
TRANSVAAL
Appellant
and
ERIC
PAT MTSHWENI Respondent
Coram
: FARLAM, CLOETE, LEWIS JJA
Heard:
17 AUGUST 2006
Delivered:
27 SEPTEMBER 2006
Summary:
Where the presiding judge at a trial believes, albeit mistakenly,
that the evidence of a witness is essential to the just decision
of
the case, in terms of
s 186
of the
Criminal Procedure Act 51 of 1977
,
and fails to call such witness, he makes an error of law. If the
error is one on which the acquittal of an accused turns then there
is
a grave irregularity in the proceedings and the court of appeal is
bound to order a retrial on the same or amended charges. Question
of
law reserved answered in favour of the State, and institution of
retrial ordered.
Neutral citation: This case may be cited as DPP, Transvaal v
Mtshweni [2006] SCA 120 (RSA)
JUDGMENT
LEWIS JA
[1] The appellant in this matter, the Director of Public
Prosecutions, Transvaal (the State) has reserved a question of law
for
decision by this court in terms of
s 319
of the
Criminal
Procedure Act 51 of 1977
. The respondent, the second accused in the
court below, opposes the appeal. The application by the State for the
reservation of the
question of law was refused by the trial judge,
Seriti J, in the Pretoria High Court. The appeal on the question of
law reserved
lies before this court with its leave. Before setting
out the legal issue it is useful to outline the background.
[2] The respondent, Mr Eric Mtshweni, was charged with the murder of
Mrs A C Hennop, attempted murder of her husband, Mr Hennop,
attempted
robbery with aggravating circumstances of the Hennops, unlawful
possession of a firearm and unlawful possession of ammunition.
He was
acquitted on all counts. So too was his co-accused.
[3] The evidence led by the State established that the Hennops lived
on a small-holding in the district of Brits. Hennop testified
that
early in the afternoon of Friday 10 October 2003 he and his wife left
their home and travelled towards the town of Brits in
a light
delivery vehicle. Hennop was driving. While still on the gravel road
leading to the road to town the Hennops were ambushed
by two men. The
vehicle was stopped. One of the men approached the passenger side
where Mrs Hennop was sitting. The other, armed
with a firearm,
approached the driver’s side. Hennop, fearing that they would
be killed, asked his wife to find his firearm
which was apparently in
the vehicle. He had what he called ‘’n klein Browning
vuurwapentjie’ (a 6.35mm pistol).
[4] The assailant on Hennop’s side of the vehicle aimed his
firearm at Hennop’s head and fired. But as he did so, Hennop
leaned his head back and the bullet passed him and struck Mrs Hennop
on the right-hand side of her neck. Hennop then shot the assailant
twice in the head. The assailant and the other man ran off. They did
not take any property from the Hennops. Hennop managed to drive
home
and his wife was taken to hospital by an ambulance summoned by their
children. She died there some six weeks later on 23 November
2003 as
a result of the gunshot wound to her neck.
[5] The only factual issue in dispute at the trial was whether the
accused were the assailants, since Hennop could not identify them.
The State thus relied on circumstantial evidence to prove that the
accused were guilty of the offences charged. Both accused denied
all
knowledge of the crimes, and claimed to have been elsewhere at the
time the crimes were committed. Mtshweni testified that he
had been
in Soshanguve. There, so he said, he had been robbed and shot twice
in the head. He had been admitted to the Ga-Rankuwa
hospital for
treatment of two gunshot wounds to the head on Friday 10 October. On
Saturday 11 October, while in hospital, he was
placed under arrest by
Inspector van Tonder, the officer investigating the crimes committed
against the Hennops.
[6] Dr Mchenga, a dentist training at the time to be a maxillo-facial
surgeon, gave evidence for the State that he had removed a
bullet
from Mtshweni’s face on 1 March 2004. X-rays had revealed that
there were two bullets lodged in his head, one in the
right cheek and
one behind the left ear. The latter could not be removed without
adversely affecting Mtshweni’s health.
[7] Van Tonder testified that the bullet that was extracted and the
firearm used by Hennop had been sent to the ballistics unit in
Pretoria to determine whether the bullet had been fired by Hennop’s
firearm. The report from the ballistics expert, testified
Van Tonder,
stated that no determination could be made in this regard. The State
did not lead the evidence of the ballistics expert.
This is of
crucial importance to the question of law reserved by the State and I
shall revert to it. Van Tonder’s evidence-in
chief in this
regard was as follows.
‘
MNR BROUGHTON
[for the
State]:Goed, het u ‘n verslag ontvang van die ballistiese
eenheid aangaande die ontleding van hierdie 6.35 mm pistol
van mnr
Hennop en die koeëlpunt wat uit die regter wang van beskuldigde
nr 2 verwyder is? - - - Dit is korrek, u edele.
Volgens die ballistiese eenheid kon daar bepaal word of
die koeëlpunt uit die vuurwapen van mnr Hennop geskiet is? - -
- Nee,
u edele.’
[8] Counsel for Mtshweni did not object to the admissibility of this
evidence. And it was not disputed during the course of the trial
that
the ballistics report was indeterminate: it neither implicated nor
excluded Mtshweni as the person whom Hennop had shot.
[9] The State did not call the ballistics expert, says Mr Broughton,
because it appeared during the course of the trial, and prior
to
argument at the end of the defence case, that it would have been an
exercise in futility, adding nothing to the evidence. There
was other
evidence, in its view, that implicated Mtshweni.
[10] I shall not deal with all the evidence relied on by the State in
its attempt to prove that Mtshweni was indeed the assailant
who had
shot Mrs Hennop. It is in my view sufficient to deal with evidence
that the State regarded as conclusive.
1
This was evidence of a DNA match between three samples of blood
collected from the place where the shooting took place, on the same
day, and blood taken from Mtshweni when in hospital.
[11] The evidence as to the collection of the samples and their
testing was not contested by Mtshweni. His response was simply that
the conclusion had to be wrong. Sergeant Masilela,the DNA analyst who
tested the samples drew up a report which was tendered as an
exhibit.
Counsel for Mtshweni did not object to the admissibility of the
report, which complied with the provisions of
ss 212(4)(a)
and
212
(8)(a) of the
Criminal Procedure Act 51 of 1977
. The facts in the
report were confirmed in evidence by the expert.
[12] The ‘chain’ evidence relating to the collection,
sealing, safekeeping, sending and receipt by the forensic laboratory
in Pretoria was not placed in dispute. In brief, the evidence showed
that blood was found on three items on the scene of the shooting:
on
the soil in two places marked as D1 and D2 on a sketch plan drawn by
an Inspector Ramongane, and on a can (C2), also marked on
the plan.
The correctness of the plan was admitted in terms of
s 220
of the
Act. The samples were sent to the forensic laboratory where they were
analysed by Sergeant Masilela.
[13] A sample of blood was drawn by Dr Mabandla from Mtshweni in the
presence of Van Tonder. The sample was sealed with a serial
number
and signed by Mtshweni. It too, marked as ‘A’, was sent
to the laboratory, where it was received by an assistant,
Makaya, and
was analysed by Masilela. Masilela identified sample A as the same
blood found on the soil D1 and D2, and on the can
C2.
[14] As I have said, none of this evidence was disputed, Mtshweni
simply insisting that the result of the DNA analysis was incorrect.
He laid no factual basis for this. The State’s argument was
thus that there was irrefutable evidence that Mtshweni had been
the
assailant who had shot Mrs Hennop and whom Hennop had shot twice in
the head. It was accordingly not necessary to call the ballistics
expert who could do no more than explain that her findings were
neutral, and that this did not mean that the bullet extracted from
Mtshweni’s head had
not
been fired by Hennop’s
firearm.
[15] In argument at the end of the trial Mr Broughton for the State
tried to explain to Seriti J the decision not to call the ballistics
expert to give evidence. Regrettably, the trial judge did not
understand the argument. It was also made clear that the defence had
had sight of the report and had raised no objection to Van Tonder’s
evidence.
[16] The following extracts from the argument reveal the court’s
view on the importance of the ballistic evidence that could
have been
led. The quotation is preceded by a number of difficulties raised by
Seriti J with the State’s evidence and then
continues:
‘
COURT:
Then the last
question, where did accused no 2 [Mtshweni] get injured? Who shot at
accused no 2, because according to the ballistic
report, the bullet
that was removed from his face was not fired from the firearm of Mr
Hennop. The big question is, where did he
get injured? According to
the state evidence, that bullet that they found on accused no 2 was
not fired from the firearm of Mr Hennop.
If that is the position,
then my difficulty is, where did he get injured? If he was not
injured at the scene, then it means that
he must have been injured at
Soshanguve. As far as accused no 2 is concerned, that is my biggest
problem. If he was not shot by
the firearm that Mr Hennop had, then
it means that he must have been shot at Soshanguve. That is the only
evidence which is on record.
If I am going to accept that the bullet
that was found on his cheek, was not fired by Mr Hennop, then the
invariable conclusion
is that he was shot at Soshanguve. Once I
accept that he was shot at Soshanguve, then of course the entire
evidence of Martha Motsweni
[the aunt] must go down the drain. If
you can just address me on those six issues, because when I looked at
your heads, they were
not coming out that clearly.
MR BROUGHTON:
M’Lord,
firstly on the last question, I have dealt with the issue in my heads
of argument, my written heads of argument. M’Lord,
it is
important to bear in mind, the evidence was, it could not be
determined whether the bullet that was extracted from the face
of
accused no 2 was fired from Mr Hennop’s firearm.
COURT
: According to the
ballistic report.
MR BROUGHTON:
According to
the ballistic report, yes. Now, there is a big difference between, it
was not fired – a categorical statement
that it was not fired
from the firearm, and it cannot be determined. There is a big
difference between the two.
COURT
: It is not a question
of – the state has got the bullet, you have got the firearm,
the ballistic expert examines it and he
cannot tell me that this
bullet came from this firearm, and I have got another version this
side which says, this bullet here was
shot by people at Soshanguve.
MR BROUGHTON:
M’Lord,
there can be various factors that can lead to the ballistics expert
not being able to determine whether a bullet was
– or a
project[ile] was indeed fired from a certain firearm. The bullet
might be so damaged that one cannot determine whether
there are
sufficient points of – in English it is identifying features,
but in Afrikaans we note it as “klaskenmerke”.
There
might be various reasons why it cannot be established whether a
bullet was indeed fired from a firearm. It might be that
there were
not enough identifying features on the bullet.
COURT:
You are speculating
that point. I do not have any evidence.
MR BROUGHTON:
M’Lord,
the evidence is that it could not be determined. There is a
difference between, it could not be determined and a categorical
statement that the bullet was not fired from the firearm. If it was
so that – if it was in fact so that the bullet was not
fired
from Mr Hennop’s firearm, then … (intervenes)
COURT:
Let us go to the
evidence of the investigating officer as far as that is concerned,
unless I am the one who did not understand him.
MR BROUGHTON:
M’Lord,
his evidence was to the effect that it could not be determined
whether the bullet that was extracted from the face
of the accused
was discharged or fired from Mr Hennop’s firearm. His evidence
was not that the ballistics expert indicated
that the bullet was not
fired from Mr Hennop's firearm. The evidence was, it could not be
determined. Now, it is my respectful
submission that on the
probabilities, if it could be determined whether or not the bullet
was fired from Mr Hennop’s firearm
and it turned out that the
bullet was in fact not fired from Mr Hennop’s firearm, then
surely it would have been indicated
as such by the ballistics expert.
COURT:
Let me tell you what I
have in my notes, unless there is something wrong with my notes.
Ballistic report was received and it says
that bullet removed from
the cheek of no 2 was not fired from the gun of Mr Hennop.
MR BROUGHTON:
M’Lord,
my evidence – my notes reflect, and I think my learned friend
will confirm this, my notes clearly show that the
evidence of the
inspector was, it could not be determined whether the bullet was
fired from the firearm of Mr Hennop. Now, that
is what my notes
reflect. I specifically remember his evidence being to that effect.
It is my respectful submission that there is
a difference between a
categorical statement that is was not fired and it could not be
determined. If it was in fact not fired,
if it could be established
that the bullet was not fired from Mr Hennop’s firearm, then
the ballistics expert would have indicated
as much that the bullet
was in fact not fired from the firearm of Mr Hennop. There is a
major difference between, cannot be determined
and not fired. There
are various factors that can lead to that. The evidence of Inspector
van Tonder was clear in this regard.
He clearly stated, the
ballistics expert could not determine whether the bullet was fired.
Now, surely, if it could be determined
whether or not the bullet was
fired from the firearm of Mr Hennop, and it turned out, according to
the ballistics tests that the
bullet was in fact not fired from the
firearm, then the ballistics expert would have mentioned that the
bullet was in fact not fired
from the firearm.
COURT:
But then we are
speculating, and the state did not even give me that report. The
only evidence that I have is from Inspector van
Tonder
MR BROUGHTON:
M’Lord,
Inspector van Tonder is in possession of – he was the
investigating officer of the case. He had insight into
the document.
He was therefore in a position to state that it could not be
determined that the bullet was not fired – that
it could not be
determined that the bullet was fired. He was in a position to
testify, being the investigating officer and having
insight into the
document.
COURT:
And the state
preferred not to give me a copy of the ballistic report. Now we are
arguing about what the ballistic report is supposed
to have said.
MR BROUGHTON:
M’Lord,
it was not disputed by the defence that it was in fact so that it was
not – the evidence of Inspector Van Tonder
was clear in this
regard. He testified that according to the ballistics expert, it
could not be determined whether the bullet was
fired from the firearm
of Mr Hennop. That was never disputed by the defence. It is common
cause, it could not be determined. If
the defence contested that, it
would have come out in cross-examination, and the state would have
taken the aspect further by calling
in the ballistics expert to
clarify the issue, etcetera, but it was common cause that it could
not be determined whether the bullet
was in fact fired, and there is
a difference between cannot determine and it is in fact so, the
bullet was not fired. Then one still
sits with the DNA evidence. The
DNA evidence is solid objective evidence which connects the accused
to the scene. What the accused
has endeavoured or attempted to do,
he has raised a speculative hypothesis as to how his blood came to be
on three different exhibits
that were collected on the crime scene.
M’Lord, I have referred extensively in my heads of argument on
this issue, I have referred
the court to the case law dealing with
this. A hypothesis is not enough. If the accused puts forward a
certain proposition, there
has to be a factual basis for it. There
is no factual basis.’
[17] The transcript of the record shows that Mr Broughton was indeed
correct as to what Van Tonder had said. The evidence was read
back to
the court. Despite this, when Mr Broughton replied to the arguments
of counsel for the accused, he had yet again to explain
the meaning
of the indeterminate finding of the ballistics expert.
‘
MR BROUGHTON:
In
reply, firstly I think I should just deal with the issue of accused
no 2. The only inference one can draw from the evidence of
Inspector
Van Tonder was, it could not be determined – it is not a case
of that it was in fact not fired – it was common
cause, the
evidence was not disputed by the defence. It was common cause that
it could not be established or determined whether
the bullet was in
fact fired. So in my mind it is not material that the state did not
– that is the precise reason why the
state did not pursue the
issue further, because it was common cause between the state and the
defence.
COURT:
I am having a
difficulty of understanding exactly what is the full meaning of that
sentence. On my notes, in fact, when he gave evidence,
according to
my notes, I said that it was not fired from …
MR BROUGHTON:
But we have
listened to the evidence.
COURT:
I am just
trying to show you the confusion that that statement can possibly
cause. In my own mind I thought that was what he said.
MR BROUGHTON:
M’Lord,
with respect, there can only be one interpretation that one can
attach to it, that he was unable to determine, unable
to establish
whether the bullet was fired. If the bullet was in fact not fired
according to this test, he would have mentioned as
much in his
statement. A categorical statement would have been made to the
effect, the bullet was not fired from the firearm of
Mr Hennop.
COURT:
As the
statement is, it is not as clear as one would have expected it to be.
MR BROUGHTON:
M’Lord,
it is clear. The fact remains that it could not be determined. If
the bullet was not fired, then it would have been
stated by the
ballistics expert, the bullet was not fired from Mr Hennop’s
firearm. It would have been a categorical statement
to that effect.
It is not material to my mind that the state did not lead that
evidence. The state did not pursue it further because
it was not
disputed by the defence. It is common cause, and to my mind the only
interpretation, the only inference that can be drawn
is that it could
not be established, and therefore, since it was common cause, it was
unnecessary for the state to take the matter
further. It is not for
the state to close every avenue of escape that might be available.
COURT:
But the
question of the bullet is a very critical question. It is not a
peripheral issue.
MR BROUGHTON:
It would have
been a critical issue, had it been stated that the bullet was not
fired from Mr Hennop’s firearm. Then certainly
it would have
been a critical issue, but it could not be determined, and there is a
marked difference in the terminology, a marked
difference.
COURT:
Now we are
interpreting what Inspector Van Tonder said into English. He said it
in Afrikaans. We are now interpreting it into English.
He did not use
the words that we are currently using.
MR BROUGHTON:
M’Lord, I
asked him – I first of all confirmed that a report was obtained
on the analysis of the firearm of Mr Hennop
and the bullet extracted
from the face of the accused, and then my question was: “Kon
daar bepaal word”, in other words,
could there be determined or
established – “kon daar bepaal word of die koeëlpunt
van die beskuldigde se gesig vanuit
mnr Hennop se vuurwapen afgevuur
was”, and the answer was in fact no, “Nee”.
COURT:
I do not know why it
could not.
MR BROUGHTON:
M’Lord,
with respect, it was not disputed by the defence.
COURT:
I say it was not
disputed, but I do not know why they could not determine that.
MR BROUGHTON:
That might be
so, but had it been established that the bullet was not fired from
the firearm, it would have been stated as much, with
respect. I
think logic dictates, it would have been stated as such, on the
probabilities, and because the aspect as not taken further,
because
it was common cause, the state did not deem it necessary to take the
aspect further. Had it been stated by the ballistics
expert that the
bullet was not fired from the firearm, obviously then it would become
a very material aspect or issue, but even so,
the accused can still
not get past the DNA evidence. There is no evidence which shows that
his blood accidentally came to be on
certain of the exhibits found on
the scene. His blood was found on three different exhibits collected
on the crime scene. The accused
says he was never at the scene or
anywhere near the scene on the date in question, but he cannot
explain how it is that his blood
came to be on the exhibits.
COURT:
But then, should one
not - when one looks at that DNA test, would I be right to say that
one will have to look also at the circumstances
surrounding the
shooting itself, and also the fact that the bullet which was
extracted from the accused’s face, according to
the report, as
you put it, it could not be determined if that bullet was fired from
Mr Hennop’s firearm. I think that result
of the DNA test, that
cannot be looked at in isolation. All of them must be put into the
pot, and from there try and make out what
the probabilities are.
MR BROUGHTON:
M’Lord,
it could possibly be a problem if it was indicated by the ballistics
expert that the bullet was not fired from Mr Hennop’s
firearm.
Then possibly there could be a problem with the DNA evidence, but the
fact remains, there is no factual basis on which it
can be said that
there was a mistake made by the DNA analyst in analysing these
various exhibits. There is no factual basis. The
Supreme Court of
Appeal has made it clear . . . speculative hypothesis proffered by
the accused is not sufficient to raise reasonable
doubt. There must
be a factual basis supporting the proposition.
COURT:
I fully agree with you
on that point, but what I am trying to say is, DNA results, when one
looks at them, one must also take into
account the ballistics report.
MR BROUGHTON:
Correct,
M’Lord, but we are sitting with evidence that it is not a case
of the bullet was not fired, and the DNA evidence is
solid. The DNA
evidence is solid objective evidence, which has not been – no
fault can be found in the DNA evidence. There
was no mistake made.
There is no evidence to suggest that a mistake was made. That is
solid objective evidence. That is not subjective
evidence. That is
solid objective evidence which overwhelmingly places the accused on
the scene.
COURT:
I agree, but then if
at all there is other evidence which ends up creating a problem,
because up to now,
I am still wondering why
that bullet could not – why the ballistics expert could not
determine whether this bullet was fired
from this firearm. Up to
now, I am speculative in my mind as to what could be the reason. That
is my first difficulty. Then my
second difficulty, I was not even
given that report, to satisfy myself exactly, because now we are
trying to interpret what Inspector
Van Tonder is alleged to have
said, and all those difficulties could have been removed by the state
simply handing in that report.
MR BROUGHTON:
M’Lord,
it is my respectful submission that if the defence had – if it
was not common cause that it could not be determined,
then the state
would have proceeded further. It is my respectful submission that
the state did not have to take the aspect further
in the light
thereof, it was common cause, it could not be determined and the
court cannot – if you have regard to the probabilities,
if the
bullet was not linked – if the bullet was not fired, if it
could be found that the bullet was not fired from the firearm,
then
on the probabilities it would have been stated as much and evidence
would have been led in that regard, that the bullet was
not fired.
The defence in fact would have taken the aspect further. . . . If it
was clear, the defence in fact would have taken
the aspect further
because it would have been material to their defence and it would
have corroborated the version of the accused
as regards his alibi,
but it was common cause, it could not be determined. Now, there is a
major difference between the two. If it
was found that the bullet was
not fired, then possibly problems could arise with the evidence of
the DNA, but as things stand at
this stage, what do we have? We must
look at the evidence, the facts. What do the facts show, clearly?
That his blood is found on
the scene. There is no evidence suggesting
that the DNA analyst made a mistake. There is no factual basis for
the speculative hypothesis
proffered by the accused that his blood
may have accidentally come onto certain of the exhibits found on the
scene.’ (The emphasis
is mine.)
[18] The difficulty that Seriti J kept repeating in his questioning
underlies his decision. In concluding that the State had not
proved
that Mtshweni had been on the scene of the crime the judge said, in
his judgment:
‘
There is no evidence of a person injured at the
scene of the crime except the deceased and one of the assailants that
Mr Hennop shot
twice on the face. The ballistic report . . . was not
made available to the court and there was no explanation why same
could not
be made available to the court. There was also no
explanation from a state witness as to why it could not be determined
that the
bullet was not fired from the firearm of Mr Hennop.
The
only inference that can be drawn from the said facts is that accused
no 2 is not the person who was shot twice on the face by
Mr Hennop.
If not so, one would have expected that the ballistic report would
clearly indicate that the bullet extracted from the
cheek of accused
no 2 was fired from the firearm of Mr Hennop, or to indicate why it
could not be determined that the bullet was
not fired from the
firearm of Mr Hennop
’ (my emphasis).
The court continued:
‘
I am of the view that the DNA test results cannot
be safely relied upon because of the difficulties raised by the
ballistic evidence
. . . and the entire evidence led in this case.’
Further on the judge said:
‘
When the court looks at the version of accused no
2, the court finds the said version to be reasonably possibly true,
particularly in the light of the ballistic
report
. . .’ (my emphasis).
[19] Whatever view one has of the reasoning of the court (and the
apparent absence of logic in drawing inferences from the evidence
presented) there can be no appeal by the State against an acquittal
where the court has erred in evaluating the facts and drawing
inferences, even if the error is grave. In
Magmoed v Janse van
Rensburg
2
Corbett JA held that it is not competent for the prosecution to
raise as a question of law in terms of
s 319
of the Act the enquiry
whether a reasonable court could not have acquitted the accused.
[20] The State argues, however, that the judge erred in law: given
the view of the court that the ballistic report was crucial to
the
evaluation of the evidence, the court was obliged to call the
ballistic expert as a witness. The question of law is framed thus
by
the State:
‘
Was there not a duty on the Trial Court in terms
of
section 186
of the
Criminal Procedure Act 51 of 1977
to call the
ballistics expert who analysed Mr Hennop’s firearm and the
bullet extracted from the face of the respondent, to
explain why it
could not be determined whether the bullet in question was in fact
fired from the said firearm or not, where it appears
ex
post facto
and objectively considered that
the evidence of the said ballistics witness was essential to the just
decision of the case pertaining
to the Respondent, especially in the
light of the fact that the Respondent was shot twice in the face and
the DNA evidence overwhelmingly
incriminated the Respondent?’
[21]
Section 186
provides:
‘
The court may at any stage of criminal
proceedings subpoena or cause to be subpoenaed any person as a
witness at such proceedings,
and the court
shall
so subpoena a witness or so cause a witness to be subpoenaed
if
the evidence of such witness appears to the court essential to the
just decision of the case
’ (my
emphasis).
The State argues that the court below did consider the evidence of
the ballistics expert essential to the just decision of the case.
The
passages from argument and from the judgment cited above clearly show
this to be so. It is true that in his judgment refusing
to reserve on
the question of law Seriti J commented that he had not believed the
evidence to be essential to the just decision of
the case. He said:
‘
[T]he calling of a ballistic expert as a witness,
in my view, would not have advanced the state’s case in any
manner. The aunt
of the accused, who testified against the accused,
was found by the court, for a variety of reasons, to be an unreliable
witness.
Even if the ballistic expert could have given evidence and
explained to the court why he arrived at the decision that he did,
same
could not have led to the conviction of the accused.’
The passage is plainly inconsistent with both the judgment and the
statements made by the court during argument. Given the number
of
times that the judge, before giving judgment, expressed his view that
the state’s failure to call the ballistic expert was
critical,
the reliance on this failure in the judgment, and the failure of the
court even to mention the DNA evidence in the judgment
refusing to
reserve the question of law, I consider that the later statement that
the evidence was not essential was made without
having regard to the
proceedings at the trial and to the earlier judgment on the merits.
[22] In my view it is clear from the record that Seriti J did believe
that the evidence of the ballistics expert was essential to
the just
decision of the case and acquitted Mtshweni because there was no
explanation of the inconclusive finding. He had a duty,
in view of
his belief that it was essential to the just decision of the case,
himself to call the witness. Moreover it is apparent
from the
passages of the argument quoted above that Seriti J did not
understand the import of the ballistics report. He said as much.
All
the more so, therefore, did he have an obligation to call the witness
in order to understand that evidence. He was obliged in
terms of
s
186
, and thus as a matter of law, to have acted in terms of the
section.
[23] Counsel for Mtshweni, relying on
S v Gabaatlholwe
,
3
argued that the evidence of the ballistics expert was not in fact
essential to the just decision of the case: the witness could do
no
more than explain that her finding was neutral – indeterminate.
The court in
Gabaatholwe
said, in interpreting what ‘essential
to the just decision of the case’ means:
4
‘
[T]he court, upon an assessment of the evidence
before it, considers that unless it hears a particular witness it is
bound to conclude
that justice will not be done in the end result.
That does not mean that a conviction or acquittal (as the case may
be) will not
follow but rather that such conviction or acquittal as
will follow will have been arrived at without reliance on available
evidence
that would probably (not possibly) affect the result and
there is no explanation before the court which justifies the failure
to
call that witness. If the statement of the proposed witness is
not unequivocal or is non-specific in relation to relevant issues
it
is difficult to justify the witness as essential rather than of
potential value.’
[24] As Mr Broughton was at pains to argue during the course of the
trial, the ballistics expert’s evidence would in all
probability
have been equivocal and of no value. Objectively,
therefore,
s 186
seems to have no application. But Seriti J clearly
considered that it was essential: the acquittal turned on the absence
of the evidence.
The assessment of whether evidence is essential is
indeed left to the presiding judge.
5
It is his or her view that must be taken into account in determining
whether the court is under an obligation to call a witness:
S v
B.
6
The trial court in this case, given its firm view on the
importance of the ballistics report, was therefore under a legal duty
to
call the ballistics expert. Its failure to do so amounted to an
error of law.
[25]
Section 319
of the Act provides that if a question of law arises
‘on a trial’ the prosecutor (or the accused) may reserve
that question
for the consideration of the Supreme Court of Appeal.
The trial court was requested to reserve the question framed by the
State,
but declined. This court, as I have said, granted leave to
reserve the question so framed.
[26] The question is answered in the affirmative. The trial court was
under a duty to call the ballistic expert who compiled the
report on
the bullet extracted from Mtshweni’s head and on the firearm
which Hennop used to shoot at his assailant. That does
not end the
matter. In terms of
s 322(1)(a)
of the Act, in the case of any
question of law reserved the court of appeal may allow the appeal if
it thinks that the judgment of
the trial court should be set aside on
the ground of any wrong decision of the question of law.
Section
322(4)
provides that where the question of law has been reserved on
the application of the prosecutor in the case of an acquittal, and a
decision has been given by the court of appeal in favour of the
prosecutor, the court of appeal may make an order requiring steps
to
be taken under
s 324.
This in turn allows the court of appeal to
order that proceedings in respect of the same offences on which the
accused was charged
be instituted, either on the same or different
charges.
[27] The State asks that Mtshweni be retried on the same charges.
During the course of the appeal hearing this court asked Mr Manzini
for Mtshweni and Mr Broughton for the State to consider and deliver
further heads of argument on whether the provisions of the Act
which
permit a retrial after an acquittal are in conformity with the
Constitution. I am indebted to counsel
7
for their very full and useful heads of argument in this regard.
[28] Section 35(3)(m) of the Constitution provides that an accused
person has the right not to be tried for an offence in respect
of any
act or omission for which that person has previously been acquitted
or convicted – a right that entrenches the common
law right
expressed in the maxim ‘
nemo debet bis vexari pro una et
eadem causa
’. This is the right against double jeopardy
which gives rise to the defences of
autrefois convict
or
autrefois acquit
, both of which are found in the Act.
8
The right is of ancient origin and is almost universally applied. It
is based on two main values. First, the need to ensure that
matters
reach finality, both in the interests of an accused and of the State.
Second, the need to safeguard an individual against
State oppression
by placing constraints on the prosecuting authority to avoid
successive prosecutions for the same conduct.
9
[29] The provisions of the Act that permit the institution of
criminal proceedings against an accused person in terms of ss 322 and
324 are premised, however, on the basis that the trial in which the
accused was acquitted was vitiated by an irregularity such that
the
acquittal was not one on the merits of the charge.
10
Thus where an acquittal is based on the wrong answer to a legal
question a retrial does not in fact amount to double jeopardy.
Steytler,
11
commenting on the issue of double jeopardy, states:
‘
In asking whether an accused was acquitted, the
question is whether the accused was in jeopardy with regard to
culpable conduct? Where
an acquittal was based on a wrong answer to a
legal question, and not on the merits, an appeal on the question of
law, although militating
against an accused’s interest in
finality, cannot be said to be an abuse of the prosecutorial power.
To the contrary, it is
a proper application of state power to ensure
that the law is correctly applied . . . .’
12
[30] This principle was restated by the Constitutional Court in
S
v Basson
.
13
Ackermann J stated:
‘
In
McIntyre en andere v
Pietersen . . .
14
it was held that the purpose of the right contained in s 35(3)(m) was
to protect citizens against the possibility of repeated prosecutions
for the same conduct. The Court held that such protection was
necessary in the interests of fairness and also because of the public
interest in the finality of judgments. It follows that in the
circumstances where a retrial does not give rise to double jeopardy
the retrial will not amount to an unfair trial in violation of s
35(3)(m) of the Constitution.’
[31] In the supplementary heads of argument filed for Mtshweni,
counsel submits that an accused’s right to a fair trial ‘which
is guaranteed by the provisions of Section 35 of the Constitution in
relation to the issue of double jeopardy is not affected by
section
324 [of the Act]. Neither in English law, nor in Canadian or American
law has the protection against double jeopardy been
extended to cases
where an acquittal had resulted due to technical mistakes, lack of
jurisdiction or a reason other than a wrong
finding on the merits of
the case.’
15
[32] It is clear, therefore, that there is no argument before this
court that where a trial court has erred on a question of law,
the
institution of a new trial will infringe s 35(3)(m). The possibility
of double jeopardy does not arise.
16
And, as the State argues, there will be a serious miscarriage of
justice should a proper trial not ensue. It is not only an accused
whose interests must be protected by the criminal justice system.
There must be fairness to the public, represented by the State,
as
well. There must be fairness to the victims of the crime and their
families. In
S v Jaipal
17
the Constitutional Court said:
‘
The right of an accused to a fair trial requires
fairness to the accused as well as fairness to the public as
represented by the State.
It has to instil confidence in the criminal
justice system with the public, including those close to the accused,
as well as those
distressed by the audacity and horror of crime.’
[33] Mtshweni contends, however, that in this case there was in fact
an acquittal on the merits even if there was an error of law,
and
that a retrial will be an infringement of s 35(3)(m) of the
Constitution. But, as I have already said, the acquittal was based
on
the trial judge’s failure to call a witness whose evidence he
thought was essential to a just decision in the case. He did
not
comply with the legal obligation imposed on him by s 186: he erred in
law. There was thus a serious defect in the proceedings
that vitiates
the trial. A retrial on the same charges will not place Mtshweni in
jeopardy again: he was not in jeopardy in the trial
before the court
below because of that court’s error of law.
[34] The question of law reserved is thus decided in favour of the
State. The acquittal of the respondent is set aside and it is
ordered
that proceedings in respect of the same offences in respect of which
the respondent was acquitted may again be instituted
on the same
charges, suitably amended if necessary, as if the respondent had not
previously been arraigned, tried and acquitted:
provided that no
judge or assessor before whom the original trial took place shall
take part in the proceedings.
____________
C H Lewis
Judge of Appeal
Concur:
Farlam JA
Cloete JA
1
Mtshweni’s aunt, with whom he lived prior
to the shooting, testified as to admissions he had made to her. Her
testimony was
considered by Seriti J to have been unreliable. His
view is not borne out by an examination of the record, but the
evidence is
not crucial to the State’s case and I shall not
deal with it. In addition there is the fact that Hennop’s
undisputed
evidence was that he had shot an assailant twice in the
head, and that Mtshweni happened to have two bullets lodged in his
head.
2
[1992] ZASCA 208
;
1993 (1) SA 777
(A) at 817A-B.
3
2003 (1) SACR 313
(SCA).
4
Para 6.
5
See
Gabaatlholwe
para 8.
6
1980 (2) SA 946
(A) at 953A-B.
7
P J J de Jager SC drafted the heads of argument for Mtshweni.
8
Sections 106(1)(c) and (d).
9
See Nico Steytler
Constitutional
Criminal Procedure, A commentary on the Constitution of the Republic
of South Africa, 1996
(1998) p382ff,
cited without comment in the South African Law Commission’s
Third Interim Report on Simplification of Criminal
Procedure: The
right of the Director of Public Prosecutions to appeal on questions
of fact (2000) p 64.
10
The decision in
S v
Moodie
1961 (4) SA 752
(A) that where
there is a serious irregularity in the conduct of a trial there will
be a failure of justice that vitiates the proceedings,
such that a
new trial can be instituted, was approved in
S
v Basson
[2004] ZACC 13
;
2004 (1) SACR 285
(CC):
2005
(1) SA 171
para 60.
11
Op cit pp 386-7.
12
See also Iain Currie and Johan de Waal
The
Bill of Rights Handbook
5 ed p 788
13
Above para 66.
14
1998 (1) BCLR 18
(T).
15
Counsel relies on the following Canadian
authorities:
Regina v Century 21 Ramos
Realty Inc and Ramos
37 DLR (4) 649;
Hogg Constitutional Court of Canada
2 ed pp776-777;
The Canadian Charter of
Rights and Freedoms
ed Beaudoin and
Ratushny QC 2 ed pp 542—543; and
Corporations
Professionelle Des Medicinis Du Quebec v Thibault
(1998)
1 SCR 1033.
16
In
DPP v Viljoen
2005 (1) SACR 505
(SCA) this court, having granted an application
for the reservation of questions of law, ordered that proceedings in
respect of
the same offence in respect of which the respondent was
acquitted be instituted on the same, or a suitably amended, charge.
And
in
S v Katoo
2005 (1) SACR 522
(SCA), where a question of law had been reserved,
the court ordered that the respondent be retried on one of the
counts in respect
of which he had been acquitted.
17
[2005] ZACC 1
;
2005 (1) SACR 215
(CC) para 29. See also
Zanner
v DPP, Johannesburg
[2006] ZASCA 56
;
2006 (2) SACR 45
(SCA) para 21 where the court cited this passage.