Prescott v S [2007] ZAFSHC 148 (13 December 2007)

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[2007] ZAFSHC 148
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Prescott v S [2007] ZAFSHC 148 (13 December 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Appeal No.: A253/2007
In the appeal between:
LOUIS FRANCOIS
PRESCOTT
Appellant
and
THE
STATE
Respondent
_____________________________________________________
CORAM:
RAMPAI, J
et
MOCUMIE, AJ
_____________________________________________________
JUDGEMENT:
RAMPAI, J
_____________________________________________________
HEARD ON:
26 NOVEMBER 2007
_____________________________________________________
DELIVERED ON:
13 DECEMBER 2007
_____________________________________________________
[1] The appellant, Mr.
Louis Francois Prescott, comes to us on appeal against his conviction
as well as sentence. He was found guilty
of murder and sentenced to
15 years imprisonment. He also applied for condonation for the late
filing of his appeal. This we granted
with the consent of the
respondent.
[2] The appellant was
tried in the Bloemfontein Regional Court together with a certain Mr.
Stephanus Willem du Toit. They were charged
as accused number 2 and
1 respectively. The charge against them was that they had murdered
Noël Robert Manthe in Bloemfontein on
15 October 1997.
[3] The trial from which
this appeal originates started on 8 November 1999. Both of them
pleaded not guilty before Mr. J. H. Loubser,
the regional court
magistrate. Notwith-standing their pleas both of them were convicted
as charged on the 20
th
June 2002. On the same day each of them was then sentenced to 15
years direct imprisonment. The appellant is aggrieved by the verdict
and the punishment. His co-accused is not before us in these appeal
proceedings.
[4] The
version of the prosecution was narrated by no less than fifteen
witnesses, namely:
Mr. Jacobus Johannes
- police sergeant
Ms. Lizette Truter –
appellant’s partner
Ms. Noleen Pamela Nicol
– appellant’s mother
Mr. Clifford Lawrence
Squires – appellant’s stepbrother
Mr. Ryk Hendrik Myburgh
Haupt – victim’s fellow employee
Dr. Robert Gene Book –
state pathologist
Mr. Deon Britz –
police inspector
Mr. Lourens Jacobus
Botha – police inspector
Mr. Pieter Edward
Beckman – official photographer and police sergeant
Mr. Robert John Chapman
– police inspector
Ms. Adeline Scheschi –
police captain
Ms. Ansa Rossouw –
police superintendent
Ms. Charlene Otto –
police superintendent
Ms. Glynes Ann Manthe –
victim’s ex wife
There was wholesale
acceptance of the evidence of all these witnesses by the court below.
[5] Briefly stated the
prosecution’s case depended largely on circumstantial evidence.
None of the 15 prosecution witnesses gave
direct evidence of the
incident – in other words, the prosecution did not have any
eye-witness. The indirect evidence tendered
by the prosecution
showed that the victim Manthe was employed as a sales representative
by Auto Motor Equipment International in
Johannesburg. On the 13th
October 1997 the victim left his workplace on business errands to see
his business customers. He was
driving a Nissan 1400 LDV. On the 14
October 1997 nothing significant was heard of him. He was still out
on business as far as
his colleagues were concerned.
[6] On Wednesday, 15
October 1997 he called his colleague Mr. R H M Haupt from a rural
town to say that he was proceeding to Bloemfontein.
That was the
last time his colleague heard from him. He was never seen alive
again.
[7] On the Thursday, 16
th
October 1997 Sergeant J J Coetzee found the lifeless body of the
victim on the first floor parking area of Kloppers in the central
business district of Bloemfontein. On the same day Dr. R G Brooks,
the state pathologist, performed a post-mortem examination on
the
victim’s corpse. His finding was that multiple injuries caused the
victim’s death.
[8] The appellant’s
partner, Ms. Lizette Truter, saw blood on the appellant’s denim
pair of pants, his shirt as well as his pair
of tekkies. The
appellant told Ms. Lizette Truter that he was involved in a fight on
the scene of the murder. The blood-stained
denim and shoes of the
appellant were seized from Ms. Truter by Inspector L J Botha.
Sergeant P E Beckman took photographs “exhibit
b” of the scene.
He also assembled blood samples. Later on Inspector Chapman sent the
blood samples to the forensic science laboratory
at Delft in the
Western Cape.
[9] In the early hours of
the morning on 17 October 1997 the appellant was arrested. On the
same day he made a sworn statement in
Bloemfontein before Magistrate
Joubert. He made the sworn statement in terms of section 217, the
Criminal Procedure Act No. 51 of 1977
.
[10] Inspector Chapman
delivered among others the blood samples collected on the scene and
the pieces of the blood-stained pants of
the appellant and his friend
to the forensic science laboratory in Pretoria. There Captain
Sheschi carried out comparative DNA tipering
tests. The results of
the DNA test are set out in “exhibit e”. Her colleague, Captain
Rossouw also carried out DNA tests on
the wearing apparels – vide
“exhibit f” and “exhibit g”.
[11] In the Western Cape
superintendent Otto forensically analysed the blood samples extracted
from the victim and his two children.
She then went further. She
also carried a comparative DNA on the one hand – and the clothing
pieces of the appellant and his
co-accused on the other hand – vide
“exhibit l” and “exhibit j”.
Ms.
Manthe, the victim’s ex-wife, testified that she was the biological
mother of two children Noël Shaun Manthe and Lauren Ann
Manthe –
and that these children were the biological offspring of the victim.
She confirmed that blood samples were taken from
the victim’s
children.
[12] The appellant gave
no evidence. He called no witness. His version that he acted in
private defence remained embedded in the
outside statement which he
made to Ms. Joubert, the district court magistrate, in Bloemfontein
on 17 October 1997 which was handed
in by the defence together with
certain formal admissions. There the appellant’s case rested.
[13] It is trite law that
the prosecution bears the onus of proving all the elements of the
crime beyond reasonable doubt. See
S
v SINKANKANKA & ANOTHER
1963 (2) SA 531
(A). An accused person is not required to convince
the court about the truth of his version. If the version of an
accused person
is reasonably and possibly true, then the court has to
acquit him.
In the leading case of
REX v
DIFFORD
1937 AD 370
on 373 the court held:
¡°
It
is equally clear that no onus rests on the accused to convince the
Court of the truth of any explanation he gives. If he gives
an
explanation, even if that explanation be improbable, the Court is not
entitled to convict unless it is satisfied, not only that
the
explanation is improbable, but that beyond any reasonable doubt it is
false. If there is any reasonable possibility of his explanation
being true, then he is entitled to his acquittal, ..”
See also:
S
v JOCHEMS
1991 (1) SACR 208
AD.
[14] As regards
circumstantial evidence, the correct approach was enunciated in the
well known decision of
REX
v BLOM
1939 AD 188
on 202 where the two cardinal rules of logic were spelt
out as follows by Watermeyer JA:
¡°
In
reasoning by inference there are two cardinal rules of logic which
cannot be ignored:
(1) The inference sought to be drawn
must be consistent with all the proved facts. If it is not, the
inference cannot be drawn.
(2)
The proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn. If they
do not
exclude other reasonable inferences, then there must be a doubt
whether the inference sought to be drawn is correct.”
[15] Whenever
circumstantial evidence is tendered, it must constantly be borne in
mind that such indirect evidence is intended to
provide a logical
basis from which a fact in dispute may be deduced from the proven
objective facts – Hiemstra:
South
African Criminal Procedure
,
5
th
Edition by J Kriegler.
[16] As regards the
judicial treatment and evaluation of an outside court statement made
by an accused person the law was reiterated
in
S
v NDULI AND OTHERS
1993(2) SACR 501 (AD) at 505 f – h per Nienaber JA:
¡°
Once
introduced into evidence, an extra-curial statement of this nature
must be viewed and evaluated in its entirety, inclusive of
assertions
and explanations favourable to its author (R v Valachia and Another
1945 AD 826
at 835; S v Felix and Another
1980 (4) SA 604
(A) at
609H-610A; S v Khoza
1982 (3) SA 1019
(A) at 1039A-B; S v Yelani
1989
(2) SA 43
(A) at 50A-F). A statement made by a man against his own
interests generally speaking has the intrinsic ring of truth;”
[17] The law pertaining
to the effect of an accused’s failure to testify in a case where
the State relies on circumstantical evidence,
has been stated in many
decisions. In
S
v MAKHUBO
1990 (2) SACR 320
(O) at 322 e – f the court held per Van Coller
J:
¡°
Daar
moet ook gewys word dat indien die Staat se saak teen 'n beskuldigde
slegs op omstandigheidsgetuienis berus is 'n beskuldigde
se versuim
om te getuig ook 'n faktor wat saam met ander faktore in ag geneem
kan word om 'n afleiding van skuld teen hom te maak.
Anders as by
regstreekse getuienis teen die beskuldigde, sal by
omstandigheidsgetuienis versuim om te getuig nie soveel gewig dra
nie, en kan dit ook aan iets te wyte wees wat nie 'n aanduiding is
dat hy skuldig is nie. Sien S v Mthetwa
1972 (3) SA 766
(A) te 769.”
[18] In
S
v FRANCIS
1991 (1) SACR 198
(AD) at 203 h – i Smallberger JA had this to say
about an accused person’s election to remain silent:
¡°
While
an accused person's failure to testify may in appropriate
circumstances be a factor in deciding whether his guilt has been
proved
beyond all reasonable doubt, this is only so where the State
has prima facie discharged the onus upon it. A failure to testify
will
not remedy a deficiency in the State case such as the absence of
apparently credible implication of the accused (S v Masia
1962 (2) SA
541
(A) at 546E-F).”
[19] In
S
v BOESAK
[2000] ZACC 25
;
2001 (1) SACR 1
(CC) at par 28 Langa DP, as he then was, said the
following about an accused person’s fundamental right to silence
during criminal
proceedings:
¡°
[28]
In effect, this is a finding that in the absence of contrary evidence
or any suggestion of a forgery the evidence was sufficient
to prove
the authenticity of the letter. That is a finding as to the weight of
the evidence and the inferences that can properly
be drawn from it.
Whilst the evidence to the contrary need not be the evidence of the
accused, there can be no quarrel with the principle
that the absence
of contrary evidence is relevant to the evaluation of evidence relied
upon by the State for a conviction in a criminal
trial. It follows
therefore that in reaching its conclusion, the SCA was entitled to
have regard to the absence of an allegation
or evidence to the
contrary raising the issue of forgery.”
[20] As regards the
doctrine of common purpose the circumstances of a particular incident
and the actions of an accused person in
the absence of evidence
showing conspiracy between two or more co-accused the applicable
principles were set down in
S
v MGEDEZI AND OTHERS
1989 (1) SA 687
(A) at 705i - 706a per Botha JA.
[21] The court held as
follows in
S
v MAXABA EN ANDERE
1981 (1) SA 1148
(AD) at 1155 e – g:
¡°¡¦
waar
daar deelneming aan 'n misdaad is, elkeen van die deelnemers voldoen
aan al die vereistes van die betrokke misdaadomskrywing
voordat hy as
mededader skuldig bevind kan word. Moord is 'n gevolgsmisdaad. Indien
die Staat mededaderskap wil bewys, moet hy bewys,
nie alleen dat elke
deelnemer die nodige opset gehad het om die slagoffer te dood nie,
maar ook dat sy aandeel bygedra het, daadwerklik
of psigies, tot
veroorsaking van die dood.”
[22] On appeal the court
does not lightly interfere with the observations and evaluation of
oral evidence made by the trial court.
REX
v ABELS
1948 (1) SA 706
(O) and
S
v FRANCIS
1991 (1) SACR 198
AD at 204 c – e.
[23] The essence of the
dispute between the prosecution and the defence revolves around the
critical question as to whether the appellant’s
actions were
juridically responsible for the victim’s death. In an endeavour to
find an answer to these question three crucial
aspects of the
available evidence required thorough scrutiny. The first aspect is
the impact of the circumstantial evidence. The
second aspect is the
impact of the appellant’s extra-curial statement. The third aspect
is whether the appellant made common cause
with anyone to murder the
victim.
[24] In the first place
the appeal has to be considered against the backdrop of the indirect
evidence. Let me make one pertinent
remark right from the onset. At
this juncture the indirect evidence will be separately evaluated.
Its merits and demerits will
be exclusively scrutinized as if the
appellant did not make any extra-curial statement in the form of
exhibit “C”. When the
statement is left out of the equation what
remains is a very compelling case of objective facts that the
appellant had a case to
answer at the end of the prosecution case.
[25] The appellant came
home in the early hours (03h30) of the morning of 16 October 1992.
Ms. Truter observed that the appellant’s
shirt, pants and shoes
were blood-stained. She questioned him about it. She gathered from
him that he was involved in a fight before
he came home. In the
early hours of the same morning Sergeant Coetzee drove to the inner
city in response to a call. On the first
floor of a parking zone
belonging to Kloppers he found the victim’s corpse. The corpse was
soaked in blood. There were patches
of blood on the roof on the
floor and on the wall in the vicinity of the corpse. Not so long
afterwards Ms. Truter arrived at her
workplace. At or about 18h00
she heard about a man found dead at Kloppers near her workplace.
Later in the evening of that same
day she arrived home, and told the
appellant about the dead man and enquired from him whether there was
any connection between the
scene where he was involved in a fight and
the scene where the dead man was found. The appellant’s answer was
in the affirmative.
[26] The court
a
quo
said the following about the approach it had to adopt in dealing with
the circumstantial evidence:
¡°
Die
enigste ander aspek waaroor die Hof nog verder moet beslis is of die
Staat bo redelike twyfel bewys het dat beskuldigde 1 en 2
die persone
is wat die oorledene gedood het. In die verband is daar geen
getuienis van enige persoon wat die voorval gesien het
nie. Die
Staat maak derhalwe van omstandigheidsgetuienis gebruik. Wanneer
daar met omstandigheidsgetuienis gewerk word dan moet
die Hof na die
totaliteit van sodanige getuienis kyk by oorweging van welke
afleiding gemaak moet word. “Vergelyk in die verband
R
v DE VILLIERS
1944 AD
493
op 508.”
There is no doubt that
the court
a
quo
adopted the correct procedure.
[27] From there the trial
court proceeded to list a whole range of proven facts – vide page
217 : 21 – page 221 : 9. The court
then commented as follows at
page 221 : 16 – 22:
¡°
Dit
is geykte reg dat die bewese feite sodanig moet wees dat dit alle
ander redelike afleidings uitsluit behalwe die een dat die
beskuldigdes
1 en 2 die persone is wat die oorledene gedood het. Dit
is belangrik om daarop te let dat ‘n afleiding slegs redelik is as
dit
in ooreenstemming met die bewese feite is. Die Staat moet dus
nie elke moontlikheid wat daar mag bestaan uit te skakel nie.”
The law does not require
the state to eliminate every possible inference, which may be
remotely consistent with the proven facts.
It is only the most
reasonable and compelling of all the possible inferences that is
consistent with the proven objective facts
which really counts. It
is only that kind of an inference which is reasonably legitimate to
be drawn.
[28] The appellant was
involved in a physical fight on the roof parking of Kloppers. His
shirt, pants and shoes were tainted with
blood. A forensic sample of
his pair of jeans “exhibit F2” was analysed, and tested in the
forensic science laboratory at Delft
in the Western Cape. A
comparative analysis between the foreign blood sample detected on the
appellant’s pair of jeans on the
one hand and the known blood
samples of the victim’s children was conducted by means of DNA
tipering forensic science method.
The DNA testing was done by
superintended Charlene Otto. The results of the DNA tipering tests
revealed that the foreign blood on
the appellant’s pair of jeans
consisted of the same genetic matter as that of the victim’s
children.
[29] From the above
forensic conclusion, the only reasonable and compelling inference
which can legitimately be drown from all the
proven objective facts,
was that the foreign blood detected on the appellant’s denim cloths
as sampled by means of exhibit “F2”
was therefore the victim’s
blood. Mr. Pretorius, counsel for the appellant, correctly conceded
that such conclusion was inescapable.
Needless to add that the trial
court reached precisely the same conclusion. In my view the
circumstantial evidence presented against
the appellant in this case
was of such a forceful and compelling quality that it alone justified
the verdict that the appellant was
guilty of murdering the victim as
the trial court found.
[30] The indirect
evidence placed the appellant on the scene. It showed that he was
involved in the fight with the victim. It also
suggested, and this
is very important, that he was probably responsible for one or more
of the multiple bodily injuries the victim
sustained during the
course of such fight. In the absence of any explanation, written or
oral, the guilt of the appellant on a charge
of murder could
legitimately and reasonably have been inferred from the proven
objective facts. There could have been no sound grounds
for any
attack of such adverse inference.
[31] In the second place
I turn to consider whether, in view of the appellant’s extra-curial
statement, it could correctly be found
that the appellant was
criminally responsible for the killing of the victim.
[32] Mr. Pretorius argued
that the appellant did not merely place himself on the scene of the
fatal incident, but that he also gave
a sound explanation both for
his physical presence and physical participation in the incident. He
contended that the appellant’s
explanation about the course of
events on the scene and about the nature as well as the degree of his
physical involvement was not
only probable but also reasonably and
possibly true,
REX
v DIFFORD
supra
.
Accordingly he vigorously advanced the submission that the court
a
quo
misdirected itself in concluding otherwise.
[33] But Mr. Botha
disagreed. He forcefully contended that the appellant’s
explanation was ambivalent in the sense that some of
his averments
were true but others false. He contented that the aspects of the
explanation which were at variance with the proven
objective facts
stood to be rejected outright as improbable and not reasonably and
possibly true,
S
v YELANI
1989 (2) SA 43
(AD) at 50 a – f. He submitted that the court
a
quo
did
not misdirect itself in the manner it analysed and evaluated the
appellant’s statement.
[34] The crux of the
appellant’s explanation was that he was attacked and assaulted by
the victim and that he defensively did what
he did in order to repel
the aggressive violent and offensive attack. The offensive attack
was endangering his life – he stated.
The court
a
quo
rejected the appellant’s explanation of private defence as
improbable and false. At p 223: 10 – 21:
“
Beskuldigde 2 wil hê dat die Hof
moet glo dat die oorledene hom aangeval het en twee maal in die gesig
op sy oog en neus geslaan
het. Hy doen egter geen beserings op nie.
In verband met sy knie sê hy eers aan die Landdros, in Bewysstuk C,
bladsy 3 paragraaf
e, dat hy geen beserings het nie, ek haal aan “net
my knieë is seer van al die drinkery”.
In die verklaring self sê hy egter
dat sy knie uitgehak het toe hy na die oorledene geskop het en hom
mis geskop het. Dit is duidelik
dat hierdie weergawe van beskuldigde
2 met inagneming van die veelvuldige beserings wat die oorledene
opgedoen het so onwaarskynlik
is dat ek nie enige huiwering het om
dit as vals te verwerp nie.”
[35] I am in respectful
agreement. It is objectively strange that the appellant sustained
absolutely no injuries in the fight with
the victim, the man he
wanted the court
a
quo
to
believe was not only aggressive but also very strong and courageous.
The strange and baffling feature of the appellant’s explanation
is
the appellant’s friend, Stephanus who, according to the appellant,
was overpowered outclassed and outboxed by the victim, had
virtually
no single injury to show for the thorough beating he allegedly
received from the alleged aggressive, violent and powerful
victim who
had the guts to fight two comparatively young men. I pause to point
out that the victim was 46 years old, the appellant
23 years old and
his friend, Stephanus, much younger. He was only 20 years old.
Unlike the appellant and his friend, Stephanus,
the victim’s corpse
shows that he was thoroughly and brutally assaulted.
[36] Dr. R G Book
testified that the victim sustained all in all 47 injuries and that
he was struck the minimum of 32 times. These
proven objective facts
quietly tell a story completely different from the story the
appellant tries to sell. The story is hard to
sell. The court
a
quo
declined to buy it. I am not persuaded that the appellant’s
contention is one which on appeal, we can uphold.
[37] The objective
picture which emerges from the entire web of indirect evidence
strongly militates against the appellant’s claim
that he was in the
defensive mode when he hit and kicked the victim. The scene of the
murder and the photographs there taken and
those taken at the morgue
give “exhibit c” a whole new dimension. The court was entitled
to dichotomise the appellant’s statement
by accepting some aspects
which were in keeping with the proven objective facts and by
rejecting other aspects which were at odds
with such facts –
REX
v VALACHIA AND ANOTHER
1945 AD 826.
In my view the exculpatory portions of the appellant’s
statement were rightly jettisoned by the court
a
quo
.
[38] The trial court
after dismissing the appellant’s explanation concluded by saying
the following:
¡°
Die
Hof bevind as ‘n feit dat die enigste redelike afleiding wat gemaak
kan word wat in ooreenstemming is met die bewese feite,
is dat
beskuldigde 2 en hierdie ander persoon gesamentlik die oorledene
aangeval en hom doodgeskop het.”
I agree. The
introduction of the statement did not at all have any adverse impact
on the probative value and evidentiary weight
of the proven objective
facts. Instead of diminishing them the introduction of such
statement positively enhanced the value and
the weight of the proven
objective facts in a significant way.
[39] There was no
substance in the appellant’s contentions that he was so intoxicated
that he was possibly incapable of assaulting
the victim so brutally.
He was not as heavily intoxicated as all that in my view. Details of
precisely how much he had consumed
are very sketchy. However, some
of his actions were quite remarkable. They tend to suggest that he
was still very much capable
of thinking and acting like a normal
person in control of himself. He was able to kick the victim down, a
feat which his friend
had failed to achieve. He was able to see that
his friend’s shoes were tainted with the victim’s blood.
Apparently his friend
did not realise that. He was able to return to
the scene to ascertain the gravity of their criminal actions. I have
a suspicion,
and it is a very strong suspicion, that he and his
friend anxiously returned to the scene to erase possible
incriminating objects.
We know a belt was found on the roof of the
parking area. It was bloodstained. It is not unthinkable that an
object with which
the victim was repeatedly struck was probably
removed from the scene and disposed of. On the scene he realised
that the victim was
dead.
[40] He clearly
appreciated the wrong he had done just as he had right from the
beginning. From there he went home. He soaked his
bloodstained
clothes in water. His shirt, which was white in front, was obviously
bloodstained unlike his jeans and shoes because
they were not white.
It is not surprising the shirt mysteriously disappeared. The
appellant had a motive to dispose of such a highly
incriminating
article. The bloodstained clothes of his friend were also washed at
an awkward hour of the morning. It seems the
two friends had
colluded to destroy incriminating evidence as quickly as possible.
[41] It must be pointed
out that the two friends were supposed to have fetched Ms. Truter
from her workplace. They did not. Instead
they went straight home
from the scene. It does not seem to me that they had forgotten to do
so. I get the distinct impression
that the appellant did so on
purpose. He probably wanted to clean himself or wash his tainted
clothes in Ms. Truter’s absence.
But the plan did not work out.
She was already home when he got then. She immediately spotted the
bloodstains and confronted him
then and there. About sixteen hours
or so later she came back from work and told him a dead man had been
found on the scene and
advised him to report the incident to the
police. Two significant observations emerging from all this are:
First the appellant
did not volunteer to tell Ms. Truter about the
incident. Second, he did not volunteer to go to Captain Laux.
[42] To contend that
because he told Ms. Truter about the incident and also to contend
that because he intended to report the incident
to the police coupled
with his intoxication serve as credible safeguards of his reliability
as regards his explanation are hollow
contentions. The argument
sounds like an attempt to justify self-corroboration. In my view he
was quite capable of doing what was
done to the victim and fully
appreciating the possible consequences his criminal actions
notwithstanding his intoxication.
[43] The appellant did
not testify during his trial. He chose to exercise his right to
remain silent. He called no witness to give
evidence on his behalf.
He closed his case and abided by his extra-curial statement. In
S
v FRANCIS
1991 (1) SACR 198
(AD) at 203 h – i the court held per Smallburger
JA that where the prosecution has
prima
facie
discharged the onus that an accused person has
prima
facie
committed a crime, such an accused’s failure to testify may be
taken into account in ultimately deciding whether his guilt has
been
proved beyond reasonable doubt. Where, for instance, there is
apparently no credible implicating evidence against an accused,
his
failure to testify will not remedy such a material deficiency in the
prosecution’s case.
[44] On behalf of the
appellant it was submitted to us on appeal that his silence was of no
consequence in determining whether his
guilt had been proved beyond
reasonable doubt because the circumstantial evidence on which the
prosecution case depended was of such
a nature (weak quality) that it
could not correctly have been held that all the
facta
probanda
were proved beyond reasonable doubt.
[45] On behalf of the
prosecution it was submitted that the facts in the instant case were
truly representative of a class of appropriate
cases where the
failure to testify fortified the prosecution’s case against the
silent accused.
[46] About the
appellant’s failure to testify, the court below commented:
¡°
Wanneer
verder in ag geneem word dat bekuldigde 2 in die aangesig van hierdie
getuienis teen hom ook verkies het om nie (sic) getuig
nie is dit ‘n
verdere factor wat die Hof by die getuienis in die geheel moet
oorweeg.”
[47] The appellant’s
contention is premised on the argument that that his statement
adversely and materially weakened the substantive
force, in other
words, the probative value of the circumstantial evidence tendered
against him. I do not want to dwell on this contention
any longer -
save to repeat the earlier finding that I have already made. The
acceptance of the inculpatory averments together with
the rejection
of the exculpatory averments contained in the appellant’s
statements materially strengthened and supplemented an
already strong
prima
facie
case against the appellant at the conclusion of the prosecution case.
[48] Such a
prima
facie
case exclusively emerged primary from the indirect evidence. I have
earlier pointed out that counsel for the appellant conceded
the
forceful evidential impact of such circumstantial evidence. Apart
from saying that the record shows that the concession was
fully
justified and was very properly made, I will not refer further to the
impact thereof on such circumstantial evidence. But
this point I
have to make. Here, unlike in
S
v MAKHUBO
supra
the case against the appellant did not entirely depend on
circumstantial evidence. There was more to it. The statement of the
appellant
itself provided more ammunition. The effect of such
additional matter was quite devastating to the defence case. The
appellant’s
silence in these circumstances carried the same weight
as in the case of direct evidence containing credible implication of
an accused
in all material respects. In the instant case it was not
convincingly argued that any material deficiency existed in the
circumstantial
evidence. Inferentially the appellant’s wearing
apparels were bloodstained primarily during the cause of the vicious
assault of
the victim and perhaps secondarily while he and his friend
were dragging the victim who was profusely bleeding. However, to
suggest
that because there was no direct evidence as to precisely how
and at what stage the appellant became tainted was indicative of the
absence of
facta
probanda
is a thin argument.
[49] Nobody was in a
better position than the appellant to come forward in order to
explain that he was innocently stained.
There comes a moment in
a criminal trial when facts compel an innocent man to speak up. In
S
v BOESAK
[2000] ZASCA 112
;
2000 (1) SACR 633
(SCA) Smalberger JA
et
al
said:
At par [46]
“It is trite law that a court is entitled to find that the State
has proved a fact beyond reasonable doubt
if
a prima facie case has been established and the accused fails to
gainsay it,
not necessarily
by his own evidence, but by any cogent evidence. We use the
expression 'prima facie evidence' here in the sense in
which it was
used by this Court in Ex parte The Minister of Justice: In re R v
Jacobson & Levy
1931 AD 466
at 478 where Stratford JA said at
478:
' "Prima facie'' evidence in its
more usual sense, is used to mean prima facie proof of an issue the
burden of proving which
is upon the party giving that evidence. In
the absence of further evidence from the other side, the prima facie
proof becomes conclusive
proof and the party giving it discharges his
onus.'
[50] A
prima
facie
inference which flows from a
prima
facie
case can be rebutted by the real facts since an inference is a
deduced fact. The learned judges continued further:
At para [47]
“Of course, a prima facie inference does not necessarily mean that
if no rebuttal is forthcoming, the onus will have been satisfied.
But
one of the main and acknowledged instances where it can be said that
a prima facie case becomes conclusive in the absence of
rebuttal,
is
where it lies exclusively within the power of the other party to show
what the true facts were and he or she fails to give an acceptable
explanation.
In the present
case the only person who could have come forward to deny the prima
facie evidence that he had authorised, written
or signed the letter,
is the appellant. His failure to do so can legitimately be taken into
account.”
A year later in
S
v BOESAK
supra
Langa DP writing for the unanimous court approved of the above
decision of the SCA.
[51] Moseneke J at
paragraph 56 in
S
v THEBUS
2003 (10) BCLR 1100
(CC) put it as follows:
¡°¡¦
there
is no obligation to testify. The fact that she or he is not obliged
to testify does not mean that no consequences arise as
a result. If
there is evidence that requires a response and if no response is
forthcoming, that is, if the accused chooses to exercise
her or his
right to remain silent in the face of such evidence, the court may,
in the circumstances, be justified in concluding that
the evidence is
sufficient, in the absence depend on the quality of the evidence and
the weight given to that evidence by the Court.”
As I see it, a response
was certainly required from the appellant by the good quality of the
evidence and the credibly strong evidence
tendered. But it never
came.
[52] It was also
contended on behalf of the appellant that the appellant did not make
common cause with his erstwhile co-accused to
murder the victim as
the court
a
quo
found. This was the appellant’s third attack of the conviction.
His actions, so argued Mr. Pretorius, fell short of the requirements
of the doctrine of common purpose as enunciated in
S
v MGEDEZI AND OTHERS
1989 (1) SA 687
AD at 705i – 706c.
[53] But Mr. Botha
countered this argument. He said that the appellant’s biggest
problem as regards this leg of his challenge was
the fact that he did
not testify in the circumstances where the might of the evidence
presented to the court required an innocent
man to speak.
[54] The appellant’s
contention is not new. It was raised, considered but rejected at the
trial. The court below said the following
about the criminal intent
it deduced from the medical evidence of Dr. Book:
¡°
Dr.
Book het gevind dat daar twee meganismes van dood was, naamlik
bloedverlies en swelling en drukking van die brein. Die oorsaak
van
die oorledene se dood is as gevolg van veelvuldige beserings.
Dit is duidelik dat hierdie aanval op
die oorledene ‘n uiters gewelddadige en ‘n genadelose een was.
Volgens die mediese getuienis
was daar ‘n minimum van 32 houe na
die gesig en die kop van die oorledene gerig. Wanneer daar na die
aard en omvang van die hoofbeserings
gekyk word dan is dit duidelik
dat die persoon of persone wat dit toegedien het net een opset kon
gehad het en dit is om die oorledene
te dood.”
“Die Hof is verder tevrede dat die
twee beskuldigdes gesamentlik opgetree het met een gemeenskaplike
doel en dat hulle die skuld
vorm,
dolus
eventualis,
ten minste moes
gehad het toe die oorledene gedood is.”
[55] The conclusion was
justified. The appellant contended that he did not have the specific
intent to murder. He argued that if
that was his friend’s
intention, he did not share such common criminal intent with him. In
this case there was no proven prior
conspiracy to kill the victim.
Therefore the active conduct of the appellant on the scene needs a
careful scrutiny.
The
appellant actively participated in the kicking of the victim. He did
not do so alone. He kicked him, not once but a few times,
according
to his own statement. The kicking and, heaven knows what else, was a
collaborative criminal enterprise which the magistrate
characterised
as brutal, gruesome and merciless.
[56] The extremely cruel
manner in which the victim was killed underscores the murderous
intent of those involved. I want to stress
that in his statement the
appellant gave a somewhat vague account of what he precisely did and
the precise degree of his violent
involvement. All we now know is
that he brutally, gruesomely and mercilessly kicked the victim a few
times if not several times,
in addition to other ways he used to hurt
him. When the victim was down and out – this selfsame appellant,
who now claims he did
not intend killing, actively and willingly
helped his violent friend to shift the helpless and profusely
bleeding victim to a dark
spot. It may well be that this was done to
ensure that no passer-by would come along and render immediate
assistance to the helpless
man. He later returned to the scene with
his friend. He stated that they did so in order to check if
everything was still fine.
They had earlier left the horrific scene
behind. What it was that they expected to find still fine is
difficult to understand.
Together they walked away from a dead man
to wash away all the blood.
[57] The appellant had
ample opportunity to tell the trial court more about his precise and
true actions and to show how comparatively
minimal his violent role
was in the entire bloody episode. Instead of doing so he elected to
remain silent. His decision carried
with it certain adverse
repercussions (
S
v THEBUS
supra
).
He was present on the scene of extreme violence. He was fully aware
of the assault. He performed a number of acts through which
he
associated himself with the violent conduct of his friend. He surely
intended the victim to be killed judging by the crushed
face of the
victim alone. I strongly believe he did. But even if I am wrong,
there can be no doubt that at least he foresaw the
possibility of the
victim being killed but performed his aforesaid acts of violent
association with recklessness as to whether or
not the death of the
victim ensued. By actively participating in the assault he
undoubtedly demonstrated his intention to make common
cause with his
friend –
S
v MGEDEZI & OTHERS
supra.
[58] Two observations are
appropriate to make. First his friend was three years younger than
him. It is not unreasonable to suspect
that the appellant probably
played a more active and prominent role than his younger friend. The
appellant never intervened to restrain
his violent friend from
kicking the victim further for 15 long minutes. He stood by and
watched like a spectator and never saw it
fit to intervene. After
the assault he continued to perform further acts of association with
the conduct of his friend.
[59] If all this did not
boil down to a common purpose venture then nothing will. In my view
all the considerations relating to the
doctrine of common purpose
were present. On the facts there seems to be no valid ground for any
differentiation between the actions
of the two perpetrators involved.
There is no logical basis for apportioning the blame in a manner as
contented by the appellant.
Whatever the one actually did, however
big or small, was done for and on behalf of the other, all that in
the execution of a joint
criminal venture. I would therefore uphold
the conviction on this ground as well. This disposes of the first
leg of the appeal.
[60] I turn now to the
second leg of the appeal. In sentencing the appellant the court
a
quo
took into account the following mitigating factors:
That he was 28 years old
at the time he was punished but 23 years old at the time he committed
the crime; that he progressed to Standard
6 at school; that he had a
poor childhood; and that he was a first offender.
[61] The court
a
quo
also took into account the following the aggravating factors in
sentencing the appellant:
The gravity of the crime
of murder; the callous manner of this particular murder; the victim’s
excruciating pains; the general interest
of society which required
effective and meaningful punishment for those who kill its members.
[62] The court below was
fully aware that
section 51
of the
Criminal Law Amendment Act No. 105
of 1997
was not applicable at the time the appellant committed the
murder. The legislation was not yet in existence. The court
regretted
the fact that its maximum penal jurisdiction at the time
was limited to 15 years imprisonment. This demonstrates just what a
dim
view of the incident the court below took. This emphasises the
horrific nature of this murder.
[63] Counsel for the
appellant contended that the court
a
quo
misdirected itself by underemphasising the mitigating factors in
favour of the appellant. In particular he argued that the court
a
quo
failed to appreciate the influence of intoxicating alcohol in this
matter. The court did not ignore the evidence of Ms. Truter that
the
appellant was heavily intoxicated when he arrived home that morning.
But because the appellant himself did not testify the court
was not
able to quantify the extent of his intoxication in a sensible manner.
His actions before, during and after this incident
were not really
consistent with those of a man who was severely intoxicated.
[64] In
S
v KIBIDO
1998
(2) SACR 213
(SCA) at 216 g – j the court held that it was within
the province of a trial court to decide which factors must be taken
into account
in sentencing an offender and what weight to be attached
to each of the factors so considered. Bearing in mind that the
appellant
had already spent 5 years incarceration, a sentence of 15
years imprisonment exclusive of the incarceration period does seem to
be
a stiff sentence indeed. But I am not convinced that the
stiffness of the punishment in this instance amounts to a
misdirection.
It must be borne in mind that the sentencing of an
offender is a matter which first and foremost resides within the
discretionary
province of the trial court. On appeal we are not at
liberty to interfere with the proper exercise of a discretion on the
mere ground
that we would have exercised that discretion differently.
S v
MAKONDO
2002 (1) ALL SA 431
(SCA) at 431 e – f. In my view this is the
case where the natural indignation of society counted heavily against
the appellant
notwithstanding the mitigating factors present,
R
v KARG
1961 (1) SA 231
AD at 236 a – b. There exists no misdirection to
justify any appellate interference. For these reasons I am inclined
to uphold
the sentence as well.
[65] Accordingly I make
the following order:
65.1 The appeal fails
in
toto.
65.2 The
conviction and the sentence are confirmed.
_______________
M.
H. RAMPAI, J
I
concur.
_________________
B.C.
MOCUMIE, AJ
On
behalf of the Appellant: Mr. K. Pretorius
Instructed
by:
The
Justice Centre
BLOEMFONTEIN
On
behalf of the Respondent: Mr. D. Botha
Instructed
by:
Director of Public
Prosecutions
BLOEMFONTEIN
/em