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1985
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[1985] ZASCA 84
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S v Cele (497/1984) [1985] ZASCA 84 (16 September 1985)
99/85
LL
Case No 497/1984
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
EDWARD DAVID CELE
Appellant
and
THE STATE
Respondent
CORAM
: JANSEN, VAN HEERDEN et GROSSKOPF, JJA
HEARD
: 6 SEPTEMBER 1985
DELIVERED
: 16 SEPTEMBER 1985
JUDGMENT
/
VAN HEERDEN, JA
...
2.
VAN HEERDEN, JA
:
The appellant, an adult male, was convicted on seven counts in the Durban and
Coast Local Division. On the second count he was found
guilty of murder. The
trial court held that there were no extenuating circumstances and consequently
the capital sentence was imposed.
Thereafter the trial judge (Thirion, J)
granted the appel-lant leave to appeal to this Court against his conviction and
sentence
on the second count.
On 25 April 1983 Detective Sergeant Zungu and a police assistant took the
appellant to premises in Westville. The appellant managed
to escape from
custody
and fled into a servant's room. After a while Zungu entered the room
and closed the door behind him. A witness then heard sounds of
a struggle coming
from the room. These were followed by the report of a firearm. Thereafter the
door opened and the appellant emerged
with
/Zungu's ...
3.
Zungu's pistol in his hands.
The dead body of Zungu was found lying in the servant's room. A
post-mortem
examination revealed that the deceased had died of a bullet
wound in his head. The entrance of the wound was to the left of the midline
at
the base of the occiput. A burn mark indicated that the muzzle of the firearm
was held no further than ten inches from the back
of the deceased's head when
the shot was fired.
The appellant was the only eye-witness to the killing of the deceased.
According to his testimony a scuffle ensued after the deceased
had followed him
into the room. During the course of the struggle both fell down on the floor.
When he was back on his feet the appellant
noticed the deceased's pistol on the
floor and picked it up. They then grabbed hold of each other. The deceased held
his hands round
the waist of the appellant who in turn had his arms round the
upper part of
/the ...
4.
the deceased's body. Whilst holding the deceased the
appellant's left hand clutched the pistol round the butt. His left index finger
was folded over the hammer and his left thumb was inside the trigger guard. The
appellant says that his only reason for so holding
the pistol was to deprive the
deceased of possession thereof. However, whilst he and the deceased were still
clutching each other
the pistol went off accidentally and the deceased fell
down.
The trial court rejected the appellant's explanation and held that he
intentionally shot and killed the deceased. One of the court's
reasons for
disbelieving the appellant was that in a written statement made to a magistrate
prior to the trial, and also when questioned
in proceedings under s 119 of the
Act, the appellant said that during the course of the struggle he had cocked the
pistol. According
to his testimony, however, the weapon was already cocked when
he picked it up from
/the ...
4.
the deceased's body. Whilst holding the deceased the
appellant's left hand clutched the pistol round the butt. His left index finger
was folded over the hammer and his left thumb was inside the trigger guard. The
appellant says that his only reason for so holding
the pistol was to deprive the
deceased of possession thereof. However, whilst he and the deceased were still
clutching each other
the pistol went off accidentally and the deceased fell
down.
The trial court rejected the appellant's explanation and held that he
intentionally shot and killed the deceased. One of the court's
reasons for
disbelieving the appellant was that in a written statement made to a magistrate
prior to the trial, and also when questioned
in proceedings under s 119 of the
Criminal Procedure Act, the appellant said that during the course of the
struggle he had cocked
the pistol. According to his testimony, however, the
weapon was already cocked when he picked it up from
/the ...
5.
the floor.
In the statement the appellant gave a rambling account of his movements
subsequent to the killing of the deceased. In regard to a
conversation with a
friend he said: "I further explained to him that my brother and myself had
committed murder in our own area".
At the hearing of the appeal it was common
cause that the appellant was referring to the killing of a civilian.
Before handing in the statement counsel for the respondent requested the
trial judge, in the absence of the assessors, to excise the
quoted sentence.
Counsel for the appellant objected and submitted that because it contained the
sentence in question the whole statement
was inadmissible. However, the trial
judge acceded to the request and ruled that the sentence be excised or suitably
covered so that
it would not be brought to the attention of the assessors. The
basis of the ruling was that excision of the sentence would not distort
the
/relevant ...
6.
relevant facts related in the statement, and that the
assessors should not be faced with the task of excluding from their minds
evidence
which might be prejudicial to the appellant. The trial judge made it
clear, however, that the sentence could be reintroduced as part
of the defence
case.
At the trial counsel for the appellant also raised an objection when the
prosecution proposed to hand in part of the record of the
s 119 proceedings in
the magistrate's court. It appears that the appellant was required under that
section to plead to most of the
charges on which he later stood trial in the
court a
quo
. However, he was also required to plead to a charge (count 6
in the magistrate's court) pertaining to the murder of the aforesaid
civilian.
For reasons which need not be set out, the appellant was later in a separate
summary trial indicted on that charge. In
the magistrate's court the appellant
was questioned with
/regard ...
7.
regard to all the alleged offences and a number of informal
admissions were made by him. During the course of the trial in the court
a
quo
counsel for the respon-dent sought to hand in (in terms of s 235 (1))
that part of the record of the proceedings which had a bearing
on the charges
preferred against the appellant in that court. Since his replies to the
questioning by the magistrate on count 6,
although irrelevant, might be
prejudicial to the appellant, counsel proposed to detach the pages of the record
which related to that
count. Counsel for the appellant objected on the ground
that the record contained inadmissible material (concerning count 6) and
that
hence no part of it was admissible. The trial judge ruled, however, that it was
permissible to hand in only the relevant part
of the record.
On appeal the main contention advanced by counsel for the appellant was that
both the statement made by the appellant and the record
of the s 119 proceedings
were
/inadmissible ...
8.
inadmissible. The contention was based on the same grounds as
the objections in the court a_
quo
. On analysis the submissions made by
counsel amount to no more than that if part of a document is inadmissible the
whole document
is tainted with inadmissibility. I cannot agree. No doubt proof
of a document which contains admissible and inadmissible matter does
not change
the nature of the inadmissible matter. Nor, however, is the whole document
rendered inadmissible because it also happens
to comprise objectionable
material. If such a document has been placed before a court, the most that can
be said is that an irregularity
may have been committed by the introduction of
inadmissible evidence.
In principle there is no reason why in criminal proceedings part of a
document may not be tendered in evidence. This does not detract
from the rule
that an accused is entitled to insist that the whole document be proved if
another part thereof is favourable to his
case.
/Thus ...
9.
Thus, if incriminating matter appears in a portion of a
statement, the accused is entitled to have another part, containing an
exculpatory
explanation, heard as well. But if a document contains matter which
has no bearing on the charge(s) against the accused, it is permissible
to prove
only the relevant part thereof. If such matter may be prejudicial to the
accused, the prosecution should indeed be at pains
to ensure, if possible, that
it does not come to the court's attention.
In the present case it is common cause that the sentence excised from the
appellant's statement and that part of the s 119 proceedings
relating to count 6
were wholly irrelevant in regard to the charges against the appellant in the
court a
quo
. The basis of each of the defence's objections was not that
the whole document should be handed in, but that no part thereof was
admissible.
It was accordingly necessary to place the documents before the trial judge in
order to obtain
/rulings ...
10.
rulings as to the admissibility of the relevant parts
thereof. Having rightly rejected the objections, the trial judge followed the
proper course by ruling that the irrelevant, but potentially prejudicial,
material should not come to the notice of the assessors.
Cf
S v Hlatshwayo
and Another
1976 (3) S A 814
(D).
Counsel for the appellant also submitted that the trial court erred in
rejecting the appellant's explanation that his thumb accidentally
pressed the
trigger of the pistol. There is no substance in this submission. Apart from the
fact that the appellant was in the view
of the court a poor witness whose
evidence was contradictory, it is inconceivable that whilst facing the deceased
the appellant would
have held the pistol in such a position that the muzzle
pointed at the back of the deceased's head, unless he intended to fire the
weapon. Furthermore, the fact that the appellant cocked the pistol is a very
strong indication that he intended to fire it.
/Counsel ...
11.
Counsel for the appellant wisely refrained from assailing the finding in
regard to extenuation. It is indeed clear from the evidence
before the trial
court that there were no extenuating circumstances.
The appeal is dismissed.
H.J.O. VAN HEERDEN, JA
JANSEN, JA
CONCUR
GROSSKOPF, JA