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[2012] ZAFSHC 66
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S v Vries (265/2011) [2012] ZAFSHC 66 (26 March 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF
SOUTH-AFRICA
Review no: 265/2011
In the matter between:
THE STATE
and
WILLIAM VRIES
_______________________________________________________
CORAM:
VAN
ZYL J
et
DAFFUE J
_______________________________________________________
JUDGEMENT BY:
DAFFUE J
_______________________________________________________
DELIVERED ON:
26 MARCH 2012
_______________________________________________________
This matter came before
us by way of automatic review in terms of the provisions of Section
302 read with
Section 304
of the
Criminal Procedure Act 51 of 1977
.
The accused was
convicted by the Magistrate of Ficksburg on 20 April 2011 on a
charge of assault with intent to do grievous bodily
harm and on 10
May 2011 sentenced to pay a fine of R6 000-00 or to undergo 12
months imprisonment. A further 6 months imprisonment
was suspended
on certain conditions. The magistrate also declared the accused
unfit to posses a firearm in terms of
Section 103
(2) of Act 60 of
2000.
The matter was initially
placed before Van Zyl J, who queried the conclusion arrived at by
the magistrate in convicting the accused.
The magistrate responded
fully for which we thank him.
Van Zyl J put the
following questions to the magistrate:
“
2. Although
the judgment was clearly very thoroughly considered, can the
conclusion be correct? I mention a few aspects:
Is it not more probable that the
fight ensued as a result of the circumstances as testified by the
accused than those alleged
by the complainant?
Why would the crowd have attacked
the complainant if he was not the aggressor who started the fight
and who actually assaulted
the accused?
Are there not explanations evident
from the evidence for the contradictions between the evidence of
the accused and his witness?
In making certain negative
inferences from the accused’s failure to put certain facts to
the complainant regarding the
events, was due weight attached to
the fact that the accused was not legally represented?
Could the J88 pertaining to the case
which the accused opened against the complainant, not have possibly
provided corroboration
for the version of the accused? Should the
court not have assisted the unrepresented accused by ascertaining
whether the State
would not have conceded to the handing in of the
J88 as an exhibit? Alternatively and in the interest of justice,
should the
court not have called the doctor as a witness?”
The magistrate responded
as follows:
“
2.1 No,
because I have found the complainant to be a truthful witness unlike
the accused. For example the complainant did not hide
the fact that
he is the one who started assaulting the accused with a clenched fist
during the first fight. Further, after looking
at the circumstances
of this particular case as a whole I found beyond reasonable doubt
that the accused’s version is false
mainly because of his
afterthoughts, contradictions between the accused’s testimony
and that of his witness. For example
I found it to be an afterthought
on the part of the accused, his failure to put to the complainant the
main reason for this fight.
(According to the accused the complainant
was bitter because the ladies that accused found sitted (sic) with
the complainant at
the tavern were more friendlier to the accused
than the complainant and the complainant then told the accused that
the accused
was undermining him). When he was asked by the prosecutor
about his failure to put this question to the complainant, he did not
give a satisfactory answer. I also view it as a serious
contradiction, the accused’s testimony that he was hit five
times
by the complainant and this happened very fast whereas the
accused’s witness testified that the accused was hit nine or
ten
times by the complainant and this lasted for about ten to fifteen
minutes.
The only probable explanation for
the crowd to attack the complainant is because according to
complainant the crowd stays at
zone 1 and the accused also stays at
zone 1 so the crowd was taking the accused’s side and the
complainant stays at zone
2. (Please see: page 123 of the
transcribed record).
No, because there are serious
disparities between the evidence of the accused and that of his
witness. For example the accused
says he was hit five times very
fast by the complainant whereas the accused’s witness says
the accused was hit nine or
ten times and it lasted for about ten
to fifteen minutes.
Yes due weight was attached that
accused was not legally represented. I say so because despite the
fact that the accused was
unrepresented, he diligently and
effectively conducted his defence. He cross-examined the
complainant thoroughly on very relevant
aspects of the case. I even
commented during my judgment that the accused sounded like a person
who has a legal background.
(Please see: page 103 of my judgment).
The accused also did not use the services of an interpreter and his
command of the language
was perfect. Furthermore the meaning and
purpose of cross-examination was explained to the accused and he
understood therefore
he was fully aware of what was expected of him
during cross-examination of state witnesses. (Please see page 9 to
10 of the
transcribed record).
Further, the manner in which the
accused conducted his cross-examination indicates that he clearly
understood what was expected
of him during cross-examination of the
complainant hence I find his afterthoughts to be inexcusable.
The complainant admitted from the
onset that there was a fight between him and the accused on the
night in question. Therefore
the injuries sustained by the accused
during the course of this fight were never in dispute. Whether the
accused’s J88
had been admitted or not would not have taken
the accused’s case any further. Hence therefore I submit that
it was not
imperative for the court in the circumstances to call
the doctor.”
EVALUATION OF THE
MAGISTRATE’S JUDGMENT AND RESPONSES TO THE QUERIES OF VAN ZYL,
J:
The magistrate found
complainant to be an honest witness whilst the accused’s
version was found to be false. Although a
court on appeal or review
will not often disregard credibility findings of the court a quo,
this can and should be done if it
is apparent from the record that
such finding was based on a misinterpretation of the evidence. In
casu
, the following was either ignored, or undue weight was
given thereto:
Accused gave a clear
plea explanation, stating that he was actually assaulted by the
complainant, that he sustained injuries
to such an extent that he
became unconscious and was taken to hospital. He also mentioned the
fact that there was a pending
matter wherein he was the complainant
and the complainant
in
casu
, the accused. He alleged
that the complainant was assaulted by a crowd after he had been
injured by the complainant and that
the attack on him occurred
approximately 22H30 to 23H40 on the 27
th
of November
2010 and not the early hours of 28 November 2010 as alleged in the
charge sheet. He was released from the local
hospital at about
01H20 on the 28
th
November 2010. He confirmed his plea
explanation when he testified, save for the fact that he did not
have personal knowledge
of the assault by the crowd on complainant.
On complainant’s version he and the accused were involved in
a fight which
took place about 02H20 on the 28
th
of
November 2010. If the magistrate allowed the J88 pertaining to the
injuries suffered by the accused, the objective evidence
forthcoming from this document might have shown when accused was
treated and it might have corroborated the version of the
accused.
In so far as the accused wanted the document to be handed in as an
exhibit, the reasonable deduction to be made from
that is that he
was of the opinion that the information contained in the document
would corroborate his version. I shall deal
later herein further
with the magistrate’s refusal to accept the J88.
The complainant drank
half a bottle of whiskey the night before the incident occurred,
but wanted the court to believe that
he was only “mildly
drunk” or just mild. According to the accused, complainant
was drunk. His version as to the
state of sobriety of the
complainant appears to be more probable, bearing in mind how much
complainant had consumed according
to complainant’s own
version.
Notwithstanding the
fact that according to the version of complainant there were no
disputes or any animosity between them,
accused, on complainant’s
version, did the unthinkable by taking the glass from which
complainant was drinking his whiskey
and exited therewith from the
tavern. It is highly improbable that:
accused would have
done that bearing in mind that it was undisputed that security
guards were present and customers were
not allowed to remove
glasses from the premises,
complainant did not
object and/or followed the accused immediately to confront him,
accused would have
exited from the tavern for an unknown and inexplicable reason,
while on his way back to the entrance
and when complainant made
his appearance, to drop the glass and to start insulting
complainant, grabbing him on his clothes
without there being any
animosity whatsoever between the parties.
It is highly improbable
that the crowd would have attacked complainant with “
samboks
”
and “
knopkieries
” after he had
been seriously injured in his face by accused as described, causing
him to fall down. It is just as improbable
that he did not sustain
any further injuries through the actions of the crowd, armed with
dangerous weapons such as “
samboks
”
and “
knopkieries
”.
Prior to the altercation
and inside the tavern complainant was in the company of a certain
Geoff, who is also a friend and relative
of the accused. Complainant
was evasive pertaining to the accused’s questions in this
regard and the fact that the three
of them often socialized together
in the past. Accused’s version was that he met with
complainant and Geoff prior to the
altercation and that they were in
the company of two ladies unknown to him, but apparently friends of
Geoff and complainant.
One of the ladies was extra friendly towards
him and he speculated in evidence that this might have angered
complainant and that
this was the reason why complainant followed
him when he went outside the tavern, accusing him that he was
undermining him whereupon
complainant started assaulting him. This
version is much more probable than the version of complainant,
alternatively and at
best for the state, just as probable.
The magistrate
incorrectly found that accused’s version was fraught with
afterthoughts, improbabilities and contradictions.
The two so-called
afterthoughts relate to his failure to put to complainant in
cross-examination that two ladies were in the
company of complainant
and Geoff when he arrived at the tavern and secondly that
complainant accused him of undermining him before
he started his
assault. Too much should not have been made of this. Firstly, the
accused was undefended and although he did a
relatively acceptable
job in cross-examination for a lay person, it is apparent from the
record that he had his shortcomings
in defending himself. He,
inter
alia
, stated that “I am not well experienced in terms of
maybe these procedures” and conceded that he was not an
expert.
This is also evident from his inability to prove the
statement of the complainant before cross-examining him on the
contents
thereof. The fact of the matter is that he put it to the
complainant that they, he, complainant and Geoff, were friends and
that
they often socialized and had drinks together. Complainant’s
evasive responses on more than one occasion that he did not
know
created the impression that he denied that the accused socialized
with them at the tavern before the altercation occurred.
Technically
speaking, and if complainant was cross-examined by an experienced
lawyer, he might have put accused’s full
version to
complainant. On the other hand, it might just as well be argued that
it wasn’t necessary to do so in the light
of the apparent
denial that the three people were friends and that the accused was
in the presence of the other two that night.
The magistrate
incorrectly interpreted accused’s response when he was asked
by the prosecutor why he did not put the issue
of the ladies to
complainant. Accused did in fact put it to complainant that the two
of them were together with Geoff that night.
In so far as he did not
put to complainant that they were also in the company of two ladies,
he stated that he thought that he
would mention that in his
evidence. The reference to speculation had nothing to do with the
fact that the accused did not mention
the presence of the ladies,
but this was added to indicate that he wasn’t sure why he was
attacked by complainant and merely
speculated that it could be
because of the over-friendliness of one of the ladies towards him.
The magistrate was wrong
in finding that the accused evaded his questions pertaining to his
sobriety. In my view the matter was
fully and comprehensively dealt
with by the accused. The magistrate erred as well in respect of his
alleged contradiction with
reference to the phone call made to his
girlfriend. Although the accused replied in the negative when asked
whether he called
his girlfriend, he immediately in his next answer
gave a logical explanation and that is that she was not answering
the phone
and he presumed it was because of the noise which was
quite loud inside the tavern. What he obviously wanted to convey was
that
there was no contact between them and that he in fact tried to
contact her telephonically, but did not succeed.
The fact that Joseph,
with whom accused spoke prior to the altercation, did nothing to
stop the fight is not so strange. It is
common knowledge that many
people turn a blind-eye to events such as assaults as they do not
want to get involved.
The different versions
of accused and his witness is not of such nature that the magistrate
could find that the witness “actually
brought the accused’s
case to its knees”. It is apparent from the evidence that they
did not discuss the matter and
concocted a common story. It is
improbable that any person witnessing an assault would be able to
count the blows and more so,
to later on give a precise description
of the altercation. No evidence was tendered in respect of
visibility outside the tavern.
Also, no two people are expected to
give exactly the same account of an incident such as a fight or
altercation between two people.
Observations do differ. This is
experienced often, not only in court, but in everyday life. Accused
did not testify that he was
struck five times as the magistrate
mentions, but that “it was about 5”. His witness did not
testify that the accused
was struck nine or times. He said “
ek
skat dit so 10 of 9
”, clearly indicating an estimate.
According to the accused this assault took place within seconds
whereupon he fell to
the ground. His witness referred to a period of
ten to fifteen minutes. There is no indication that this person has
any idea
of time. The court could not have made a negative deduction
in respect of this apparent contradiction under the circumstances.
On the probabilities, and even if approximately ten blows were
thrown, it would not have taken ten to fifteen minutes, meaning
that
there was more than a minute in between blows. A fight in such slow
motion is just not probable. However, that does not
mean that the
witness lied, but his version should probably be ascribed to his
possible unsophistication. He was not questioned
by the magistrate
to establish whether he has any idea on the duration of ten to
fifteen minutes. It is often found that even
sophisticated people
have difficulty in the estimation of time and distance.
In so far as accused was
not corroborated by his witness in respect of whether the accused
conversed with Joseph outside the tavern,
it should be in borne in
mind that the witness was socializing with friends and listening to
the music. His attention was probably
not on the accused all the
time. The fact of the matter is that he witnessed the altercation
and assault on the accused. Accused’s
version is not only
corroborated substantially by him, but his version is also in line
with complainant’s version that
he hit accused with clenched
fists.
The accused’s
witness clearly mentioned that he did not look at the accused when
he fell down although he was in the vicinity
of the person that
phoned for an ambulance. The magistrate erred in blaming him for not
seeing that the accused was bleeding
or that there was blood on the
tar road. If he really wanted to assist accused in his defence he
could just as well testified
about extensive bleeding.
The accused explained
that he, save for the facial injuries which he described fully,
sustained injuries to his ribs. His witness
testified after the
accused fell down, he was kicked several times (three or four times)
by the complainant in the ribs. The
medical examination as recorded
in the J88 would have reflected the extent of the injuries
sustained. The magistrate’s
comments that the acceptance of
the J88 would not take the matter any further are unfortunate.
Complainant did not admit that
accused was injured as alleged by him
and in fact testified that he was unaware of the injuries. The
facial injuries might have
been found to be sustained through an
attack with clenched fists, but these were never admitted. Injuries
to the ribs could have
been ascribed to kicks. If such injuries were
reflected in the J88 of accused, complainant’s version would
have been shown
to be clearly false. Accused was of the view that
the J88 would support his version. It so often happens that J88’s
are
admitted as exhibits on behalf of the state by consent of the
accused’s representatives. In stead of making it so difficult
for the accused, the magistrate should have come to accused’s
assistance and requested from the prosecutor whether he would
agree
to the J88 being handed in and if not, the reasons for such refusal.
As a last resort, and in the event of the prosecutor
objecting, the
magistrate should have called the doctor to testify, even if the
matter had to be postponed. Such action would
have gone a long way
to ensure that justice was served. The magistrate’s failure is
so serious that, even ignoring the
other factors mentioned herein,
the conviction cannot stand.
On complainant’s
version he and accused were fighting each other with their bare
hands and he was using clenched fists.
He made no mention that he
was hit with fists. He could not give any explanation as to where
the bottle came from with which
accused him. The magistrate ascribed
this either to the fact that complainant had already consumed half a
bottle of whiskey when
the incident occurred, or that it could not
be expected of him to observe each and every movement of the accused
during the struggle.
The magistrate should have found that
pertaining to all the events, the complainant was to such an extent
under the influence
of alcohol that the reliability of his total
version was seriously undermined. Objectively speaking, one would
have expected
the two people fighting each other to be very alive
for each and every movement of the other in order to stay of any
offensive
and to attack when required. The complainant’s
failure to give an explanation in respect of the bottle is, together
with
all other aspects referred to herein, an indication of his
improbable, if not false, version.
CONCLUSION:
The complainant, being a
single witness, gave a version which cannot be described as clear
and satisfactory in every material
respect and his version was in
fact not corroborated at all. Accused’s version on the other
hand is much more probable.
The magistrate should have found that
there was a reasonable possibility that the accused’s version
was substantially true.
Consequently, he should have been acquitted.
Wherefore the conviction
and sentence are set aside.
_________________
J. P. DAFFUE, J
I concur:
_______________ C. VAN
ZYL,
J