De Besch v S (KS 26/09) [2009] ZANCHC 64 (6 August 2009)

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[2009] ZANCHC 64
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De Besch v S (KS 26/09) [2009] ZANCHC 64 (6 August 2009)

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THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE HIGH
COURT, KIMBERLEY)
Case No: KS
26/09
Delivered:06-08-09
In the matter between:
THE STATE
V
ROMANO DE BESCH
JUDGMENT
MJALI A J
:
The accused is charged
with the murder of Desmond Alfred Solomon. It is alleged that on or
about 7 November 2008 at Delta Street,
Kimberley, the accused
unlawfully and intentionally killed the deceased by stabbing him
with a knife.
The accused pleaded
guilty and in his statement in terms of section 112 of the Criminal
Procedure Act gave his version of how
the murder took place and
further confirmed that the implications of section 51 of Act No. 105
of 1997 were explained to him
and that he understands them.
The crux of the
accused’s version briefly summarised is as follows, at the crucial
time, the deceased provoked him by swearing
at him, smoking and
finishing his cigarette that he had given to Candice to light for
him and further grabbing him with his collar
and slapping him with
an open hand. This prompted the accused to take out his knife and
stab the deceased several times without
aiming at a particular part
of his body. He foresaw the possibility that the deceased might
suffer serious injuries which can
also result in his death. Despite
this possibility he continued stabbing him.
The state rejected the
plea and applied that a plea of not guilty be entered. Accordingly a
plea of not guilty was entered. Before
the state proceeded, counsel
for the accused made certain admissions in terms of section 220 of
the Criminal Procedure Act 51
of 1977 (CPA).
The admissions made in
terms of section 220 of the CPA were the following,
all the admissions made
in the statement made in terms of section 112. (That statement was
handed in as exhibit A.)
the identity of the
deceased,
the fact that the
deceased sustained no further injuries from the scene of crime until
a post mortem examination was conducted
on his body,
the contents and
findings of the post mortem. (The post mortem report was handed in
by consent as Exhibit B).
the photo album and its
contents as well as the plan . (This was handed in as Exhibit C).
Exhibit D is the statement of admissions
in terms of 220 of the CPA.
The evidence is largely
common cause.
The
only issue here is whether the accused had the actual intention to
kill Desmond Alfred Solomon when he attacked and stabbed
him or
whether he only realised that he might die and persisted with his
attack upon him notwithstanding his appreciation of
that risk. In an
attempt to prove its case, t
he
state led the evidence of two witnesses, namely, one Candice Matio
and Richard Januarie.
The accused’s version
of provocation by the deceased is in conflict with that of Candice
who is the only witness pertaining
to the crucial time prior to the
stabbing of the deceased. Richard was still inside watching TV.
According to Candice the accused
who was standing in the corner
outside his father’s premises, called her. She refused to go to
him. At that time she was chatting
to the deceased.
The accused entered the
yard with a knife and stabbed the deceased on both sides of the neck
as well as on the head. At the time
he was stabbed, the deceased
enquired from the accused as to why he was stabbing him. At some
stage the accused left the premises
and later returned and stabbed
the deceased on the back. As to how many times altogether the
accused stabbed the deceased, Candice
testified that she was not
certain but only saw four times.
According to her the
deceased had not provoked the accused at all prior to the stabbing.
Cross examined by the defence Candice
denied any issue about a
cigarette and the swearing by the deceased. She mentioned that the
deceased did not smoke. She further
denied that the deceased grabbed
and slapped the accused. There was no bad blood or a grudge between
the accused and the deceased
and also between the accused and the
state witnesses. Infact the accused used to ask for a lighter to
illuminate his cigarettes.
Candice further mentioned that it is the
deceased and not the accused who mentioned the word “poes” to
her.
Richard could neither
confirm nor deny that the deceased swore at the accused, smoked the
accused’s cigarette and further grabbed
and slapped him as at the
crucial time he was watching TV. He had asked the deceased to wait
for the programme he was watching
on TV to finish and before he
would meet him outside as per the deceased’s request. The deceased
went and stood outside with
Candice.
He could hear them
chatting as the door of the “voorhuis” wherein he was watching
TV was open.
Approximately five
minutes after the deceased left the house, he heard a strange voice.
Not long thereafter the deceased jumped
inside the house with blood
oozing and closed the door. He noticed that somebody was pushing the
door from outside. He later
realised that it was the accused as the
door opened and the accused entered and stabbed the deceased on the
head. He could not
say with certainty how many times the accused
stabbed the deceased on the head (he said it could have been once or
twice).
Thereafter the accused
left the premises. Richard tied a towel around the neck of the
deceased to stop bleeding and assisted the
deceased to go outside to
get fresh air. He laid him down on the stoep on his side facing the
wall and proceeded towards the
gate in an attempt to summon help for
the ambulance and the police. It is at this stage that the accused
returned and went straight
to the deceased who was already subdued
and stabbed him on the back with a knife.
The accused denied
pushing the door open and entering and stabbing the deceased inside.
According to him, when he stabbed the
deceased, the deceased held
him and they both fell on the spot marked C on photo No. 2 in the
album. He further denied that
after leaving the premises, he
returned to inflict a stab wound at the back of the deceased.
After the defence case,
the court called the photographer of Exhibit C, one constable
Morakanele. His evidence is that he noticed
blood inside the house
and it was not just drops of blood but a pool of blood inside.
In this particular
matter it is necessary to refer to the State’s burden of proof and
the way in which a court should approach
the evidence where a court
is faced with two conflicting, in some instances, mutually
destructive versions.
In
S
v Ntsele
1998 (2) SACR 178
(SCA) [also reported at
[1998] 3 All SA
517
(A)
At
182b–f
the Supreme Court of Appeal dealing with the onus of proof on the
State, the adequacy of proof and the trial court’s evaluation
of
evidence. Eksteen JA says the following:
“
Die bewyslas wat in
‘n strafsaak op die Staat rus is om die skuld van die aangeklaagde
bo redelike twyfel te bewys – nie bo
elke sweempie van tywfel nie”.
In
Miller
v Minister of Pensions
[1947] 2 All ER 372
op 373H – Denning R
dealing with a similar question stated:
‘
It need not reach
certainty, but it must carry a high degree of probability. Proof
beyond reasonable doubt does not mean proof
beyond the shadow of a
doubt. The law would fail to protect the community if it admitted
fanciful possibilities to deflect the
course of justice. If the
evidence is so strong against a man as to leave only a remote
possibility in his favour which can be
dismissed with the sentence
‘of course it is possible, but not in the least probable’, the
case is proved beyond reasonable
doubt.’
In
S
v Singh
1975 (1) SA 227
(N)
the court discussed the approach of a court where there is a
conflict of fact. The learned Judge says the following at 228F–H:
“
it would perhaps be
wise to repeat once again how a court ought to approach a criminal
case on fact where there is a conflict of
fact between the evidence
of the State witnesses and that of an accused. It is quite
impermissible to approach such a case thus:
because the court is
satisfied as to the reliability and the credibility of the State
witnesses that, therefore, the defence witnesses,
including the
accused, must be rejected.
The
proper approach in a case such as this is for the court to apply its
mind not only to the merits and the demerits of the State
and the
defence witnesses but also to the probabilities of the case.
It is only after so applying its mind that a court would be justified
in reaching a conclusion as to whether the guilt of an accused
has
been established beyond all reasonable doubt.”
An extremely helpful
summary also appears in the headnote of the judgment in
S
v Radebe
1991 (2) SACR 166
(T) at 167j–168h
.
The summary reads thus:
“
A criminal court
does not judge an accused’s version in a vacuum as if only a
charge-sheet has been presented. The State case,
taking account of
its strengths and weaknesses, must be put into the scale together
with the defence case and its strengths and
weaknesses. It is
perfectly correct that the State case cannot be determined first and
if found acceptable regarded as decisive.
The State case, if it is
the only evidentiary material before the court, must in all cases be
examined first in order to determine
whether there is sufficient
evidentiary material in respect of all the elements of the offence
and whether there is not perhaps
in any event a reasonable possible
alternative hypothesis appearing therefrom. Precisely the same
approach is applicable if the
defence puts forward a version. Taking
into account the State case, once again it must be established
whether the defence case
does not establish a reasonable alternative
hypothesis. That alternative hypothesis does not have to be the
strongest of the various
possibilities (that is, the most probable)
as that would amount to ignoring the degree and content of the
State’s onus. The State’s
case must also not be weighed up as an
independent entity against the defence case as that is not how facts
are to be evaluated.
Merely because the State presents its case first
does not mean that a criminal court has two separate cases which must
be weighed
up against one another on opposite sides of the scale. The
presentation of the two cases in that sequence is the result of
considerations
of policy and effectivity. The criminal court
ultimately has a conglomerate of evidentiary material before it which
is indicative
of facts against or in favour of the innocence of the
accused. Some exculpatory facts may appear from the State case whilst
incriminating
facts might appear from the defence case, for example
admissions made during cross-examination. The correct approach is
that the
criminal court must not be blinded by where the various
components come from but rather attempt to arrange the facts,
properly
evaluated, particularly with regard to the burden of proof,
in a mosaic in order to determine whether the alleged proof indeed
goes beyond reasonable doubt or whether it falls short and thus falls
within the area of a reasonable alternative hypothesis. In
so doing,
the criminal court does not weigh one ‘case’ against another but
strives for a conclusion (whether the guilt of the
accused has been
proved beyond a reasonable doubt) during which process it is obliged,
depending on the circumstances, to determine
at the end of the case:
(1) where the defence has not presented any evidence, whether the
State, taking into account the onus,
has presented a prima facie case
which supports conclusively the State’s proffered conclusion; (2)
where the defence has presented
evidence, whether the totality of the
evidentiary material, taking into account the onus, supports the
State’s proffered conclusion.
Where
there is a direct dispute in respect of the facts essential for a
conclusion of guilt it must not be approached: (a) by finding
that
the State’s version is acceptable and that therefore the defence
version must be rejected; (b) by weighing up the State
case against
the defence case as independent masses of evidence; or (c) by
ignoring the State case and looking at the defence case
in
isolation.”
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 that 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.” (See also S
v Trainor
2003 (1) SACR 35
(SCA) at 40h–41a; S v Van Aswegen
2001
(2) SACR 97
(SCA) at 101b.)
From the aforegoing it
must at this stage already be clear that there is no onus on an
accused to convince a court of any of the
propositions advanced by
him. It is for the State to prove the propositions false beyond
reasonable doubt.
With regard to the
question of provocation, it must be said from the very onset that
given the pleasant circumstances existing
between the parties, it is
improbable that the accused would simply pounce at the deceased
without a reason. It is probable that
he was provoked on the day of
the incident.
The crucial question
remains, i.e whether the State has proved beyond reasonable doubt
that the accused had a direct intention
to kill the deceased when he
stabbed him.
Dolus being a subjective
state of mind, the several thought processes attributed to an
accused must be established beyond any
reasonable doubt, having due
regard to the particular circumstances of the case
(see
S v Ngubane
1985 (3) SA 677
(A) at 685A–F; S v Stigling en ’n
ander
1989 (3) SA 720
(A) at 723C–D; S v Bradshaw 1977 (1) PH H 60
(A); S v Sigwahla
1967 (4) SA 566
(A) at 570A; S v Sephuti
1985 (1)
SA 9
(A) at 121; S v Maritz (supra) at 417b–e; S v Mamba
1990 (1)
SACR 227
(A) at 236j–237e).
In
S
v Sigwahla
1967 (4) SA 566
(AD) at 569–570A
it was stated as follows:
"
Stabbing
cases are usually a matter of degree and intention must not be
inferred by hindsight from the fact of death. The part of
the body
injured is relevant."
From the evaluation of
the evidence as a whole the objective facts support the state’s
version. Importantly, the number of injuries
inflicted on the
deceased as well as their position as reflected in the post mortem
report accords with the evidence given by
the two state witnesses.
The pool of blood inside the house lends credence to the evidence
Richard that the deceased jumped
inside the house during the attack
and that he was bleeding extensively. That deceased bled extensively
is clear from the pictures
as well as the pale internal organs noted
during the post mortem examination.
On the other hand the
defence version is totally at odds with the objective facts.
According to the accused the deceased held
him when he stabbed and
they both fell on the spot marked C on photograph No.2 in the photo
album. The deceased according to
the accused never entered the house
after being stabbed. As mentioned earlier this version is negated by
the pool of blood that
was found in the house. Further having regard
to the position of all the injuries sustained by the deceased (all
being on upper
part of his body) as well the position of the spot on
which the deceased (according to the accused) fell it is improbable
that
the blood would spill inside the house to the extent of forming
a pool.
Further in all the
photos in the album the deceased was clearly bleeding profusely. The
accused whose version is that the deceased
hugged him has a clean
shirt on the top part with only spots of blood in the bottom part.
Apart from the objective
facts, the state witnesses corroborate each other on the following
facts
That the Richard wrapped
a towel around the deceased’s neck to stop bleeding.
That the accused
returned and stabbed the deceased on the back.
When this wound was
inflicted the deceased was already subdued.
The position at the
back of the deceased tallies with the version of the witnesses.
So much has been made
about the contradictions in the state’s evidence. Such
contradictions relate to the fact that Candice
never mentioned that
she screamed when the deceased was stabbed yet Richard mentions this
in his evidence. It suffices to say
this contradiction is not
material at all. A further contradiction was in the fact that
Candice never mentioned that the deceased
ran into the house when
the accused stabbed him. She also did not mention the issue of the
pushing of the door. This in my view
has been dealt with abundantly
when I dealt with the objective facts. Another contradiction relates
to the lighting in the scene.
This again in my view is not material
as the witnesses could see what was happening and also what they
corroborate each other
on what they saw. Further what they saw
tallies with the objective evidence.
I am satisfied that upon
a conspectus of the evidence in particular the fact that the accused
forced his way into the house and
further stabbed the deceased
further returned to the premises and inflicted a further wound at
the back of the deceased coupled
with the number, site and the
nature of the injuries
1
the only reasonable inference, is that the accused had a direct
intent to kill the deceased.
Accordingly the accused is found guilty of murder with dolus
directus.
I come now to the issue
of sentence.
Section 51(2), read with
Part II of Schedule 2, of the Act requires the imposition of a
minimum sentence of 15 years’ imprisonment
unless
“
substantial and
compelling circumstances exist which justify the imposition of a
lesser sentence”.
The meaning of the term
“substantial and compelling circumstances” justifying the
imposition of a lesser sentence was set
out court in
S
v Malgas
2001 (1) SACR 469
SCA.
In brief, the court held that in determining whether there are
substantial and compelling circumstances, a court must be conscious

that the legislature has ordained a sentence that should ordinarily
be imposed for the crime specified, and that there should
be truly
convincing reasons for a different response.
But it is for the court
imposing sentence to decide whether the particular circumstances
call for the imposition of a lesser sentence.
The circumstances
envisaged by the expression “substantial and compelling
circumstances”, need not be exceptional but must
provide truly
convincing reasons or weighty justification for imposing less than
the prescribed sentence, or they must induce
the conclusion that the
prescribed sentence would in the particular case be unjust or
disproportionate to the crime, the offender
and the legitimate needs
of society.
Such circumstances
include those factors traditionally taken into account in sentencing
– mitigating factors. Of course these
must be weighed together
with aggravating factors.
When deciding whether
there are substantial and compelling circumstances the court is
enjoined to consider all of the above factors,
including the
personal circumstances of the accused, the interests of society and
the gravity of the offence and to give due
recognition to the fact
that when “considering sentence the emphasis was to be shifted to
the objective gravity of the type
of crime and the public’s need
for effective sanctions against it.
The factors advanced on
behalf of the accused as substantial and compelling circumstances
are that
The accused was 23 years
of age at the time of the commission of the offence; the accused was
born on 23 June 1985.
He pleaded guilty
although the plea was later changed to that of not guilty;
He stated in his
statement in terms of
section 112
of the
Criminal Procedure Act that
he is sorry for what he did;
He has been in custody
from 7 November 2008 to date (06 August 2009).
At a very tender age he
witnessed the killing of his mother (being stabbed in 1992) by his
very own father.
He has had a
dysfunctional background in that his father gave knives to him and
his two brothers to stab each other. He went up
to standard 6 at
school.
His aunt in whose
custody he was form 1995 despite numerous requests, could not get
any assistance from the social workers pertaining
to the counselling
of the accused and his two brothers.
I take it in the
accused’s favour that there was some amount of provocation by the
deceased on that day.
I turn to consider the
question whether the above factors amount to substantial and
compelling circumstances which justify the
imposition of a lesser
sentence as contemplated in section 51(2) of the Criminal Law
Amendment Act.
In my view the above
factors cannot be considered in vacuo, but due weight must be given
to them in the context of the given case
and together with all of
the other factors before the court, such as the aggravating features
of the case and the interests of
the community.
The accused is not new
to crime involving violence. The suspended sentence that was imposed
on him when convicted with Assault
GBH did not deter him from
committing violence against other people.
Murders are all too
common. Society requires protection from those who use violence and
dangerous weapons to resolve their problems.
The sentence imposed
must send a deterrent message to those who seek solutions to their
problems in violence.
Taking all these factors
into account, i.e. His unfortunate background, his relative
youthfulness, the fact that he was provoked,
he pleaded guilty and
has expressed remorse, the fact that he has been in custody for more
than nine months. the seriousness
of the offence with which he has
been convicted as well as the savage manner in which this murder was
committed, I am satisfied
that although the accused should be given
a lengthy sentence of imprisonment, a sentence of 15 years would be
unjust.
There are substantial
and compelling circumstances justifying the deviation from the
prescribed minimum sentence.
In my view a sentence
of 10 years’ imprisonment would send a strong deterrent message to
the community, but would also take
account of the very difficult
personal circumstances of the appellant.
In the result the
accused is sentenced to 10 years imprisonment.
_____________
MJALI A
ACTING JUDGE
1
1,5 cm diagonally aligned penetrating wound over
the right side of the neck. The tract of this wound passes from
right to left
in an inferior and medial direction. It incises
through the musculature of the neck and partially severs the
internal carotid
artery. It terminates posterior to the artery.
1cm diagonally aligned penetrating
incised wound over the left side of the neck. The tract of this
wound passes from left to right
in an inferior and medial direction.
It incises through the musculature of the neck and partially servers
both the internal jugular
vein and the vertebral artery at its
origin. It terminates within the surrounding musculature.
A 0,5 cm incised wound over the left
scalp. The wound does not penetrate the skull and is not fatal.
A 2cm horizontally aligned incised
wound over the to of the scalp. This wound does not penetrate the
skull and are not fatal.