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1991
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[1991] ZASCA 142
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S v Mitchell and Another (83/90) [1991] ZASCA 142; [1992] 1 All SA 332 (A) (6 November 1991)
In the matter between:
SHANE JOHN MITCHELL
FIRST
APPELLANT
TIMOTHY LEE BEDINGPIELD
SECOND
APPELLANT
and
THE STATE
RESPONDENT
Judgment by: NESTADT, JA
CASE NO. 83/90 CCC
IN THE SUPREME COURT OF SOUTH
AFRICA
(APPELLATE DIVISION)
In the matter between:
SHANE JOHN MITCHELL
FIRST
APPELLANT
TIMOTHY LEE BEDINGFIELD
SECOND
APPELLANT
and
THE STATE
RESPONDENT
CORAM
: VAN
HEERDEN, NESTADT et GOLDSTONE JJA
DATE HEARD
: 17 SEPTEMBER
1991
DATE DELIVERED
: 6 NOVEMBER 1991
JUDGMENT NESTADT, JA
:
At about 2 pm on Monday, 12 October 1987, a group of school children was
walking along the side of the Muldersdrift Road in the Randburg
district.
2/
2.
Amongst them was Ronnie Pitso, aged eight. A so-called land-rover approached
them. It is a vehicle the rear portion whereof has an
open boot where people can
sit or stand. Four persons including the two appellants were in this section. As
the vehicle passed the
children, first appellant stood up and threw what was
described in the evidence as a paving brick at them. The brick, which weighed
2,175 kilograms, struck Pitso on the forehead. It fractured his skull and
pierced his brain. He died from the injury.
These events led to first and
second appellants being charged with murder in the Witwatersrand Local Division.
They were respectively
accused 1 and 2. The trial came before ROUX-J. The
learned judge convicted appellants. Extenuating circumstances having been found,
they were each
3/
3. sentenced to ten years' imprisonment. First appellant's
appeal is against his sentence. Second appellant appeals against his conviction
and sentence. In both cases, leave to appeal was granted by this
Court.
Before separately considering the two appeals, it is necessary to
sketch the circumstances of the crime and of appellants in a little
more detail.
First appellant was at the time not guite 17. Second appellant was about to turn
19. Both were pupils at the Florida
Park High School. First appellant was in
standard eight. Second appellant was in matric. On the day in question they
played truant.
Instead of attending school, they, together with four friends and
first appellant's younger brother, went to a pleasure resort in
the area. The
party arrived there at about 10 am. They remained at
4/
4. the spot for about three hours. During this period they
had a braai. In addition appellants drank beer and smoked dagga. I deal
later
with what effect this had on first appellant. The seven of them left the resort
at about 1:30 pm in the land-rover. They were
on their way home. They stopped at
a roadside café to buy cigarettes and food. Before resuming their
journey, appellants and
two of the others picked up stones which were lying
outside the shop and loaded them onto the back of the vehicle. In the words of
one of them "We decided that we would throw them at pedestrians that we passed".
First appellant in addition picked up the brick.
He placed it on the floor of
the boot where he was sitting. They continued of their way. Within about five
minutes the group of school
children came into view. One of the four at the back
of the vehicle alerted the others to
5/
5.
the presence of the children by saying: "Check, check,
check". What first
appellant then did is described
by the trial judge as follows:
"Accused No 1 then picked up exhibit 1 (the brick) and hurled it, as if throwing
a discus at the group, as the Landrover passed.
He threw this missile when he
was at the closest point to the schoolchildren. The distance was estimated to be
three or four metres.
Accused No 1 appears to have stood up or half stood up to
make his throw...(H)e waited until he was at the closest possible range
from the
children before throwing exhibit 1."
Though
realising that deceased had been hit by the
brick and badly injured, the
driver of the land-rover
did not stop. When at their destination he
later
did, it was decided not to report the matter to the
police.
I turn to the appeal of first appellant
against his sentence of ten years' imprisonment. No
fault can be found with the trial judge's description
6/
6.
of the crime as an outrageous one. First appellant was convicted on the basis
that he deliberately took possession of the brick in
order to throw it at
pedestrians whom it was anticipated they would drive past; that he threw it with
the maximum force he could
muster; that he intended to hit one of the children
in the group; and that he knew that whoever the brick struck might as a result
be killed. The evidence fully bears out these conclusions. The crime is one
which surely evokes in the community a sense of shock
and disgust. This would be
heightened by first appellant's statement that he threw the brick because "I
thought it would be fun";
and that on seeing that the deceased had been struck,
he burst out laughing. Cohsider also first appellant's victim. He was an
innocent
child lawfully walking alongside the road on his way home from school.
Plainly,
7/
7. society must be protected against the sort of behaviour
that first appellant displayed. It cannot be too strongly condemned. There
was a
degree of planning and deliberation involved.
There are, however, certain
considerations which mitigate the moral blameworthiness of first appellant and
which therefore must, despite
the grievous nature of the crime, be taken account
of. They are the following:
(i) He was convicted on the basis of
dolus eventualis
only. (ii) One
of the extenuating circumstances found by the trial judge rested on the
principle (as he put it) that "people acting
together... tend to incite one
another". It was held that this applied to first appellant; that he probably
would not have
8/
8. acted as he did but for the fact that he was "part of an
excited group". It seems to me that regard can be had to this consideration
for
the purposes of sentence as well. (iii) First appellant's actions cannot be
judged as if he was an adult. He was not. As indicated,
he was still 16. (iv)
Coupled with his youthfulness and immaturity is the fact that he was not sober.
I do not propose to detail
what quantity of liquor he drank or how much dagga he
smoked at the resort. It suffices to deal with how he was affected by this
consumption of alcohol and drugs at the time of the crime. Based on the evidence
of one of first appellant's companions who gave
evidence for the State, ROUX J
found that
9/
9. first appellant was then "a bit happy"; that there had been "a mild
intake of liquor". Though first appellant admittedly "knew
what was going on
around (him)" (his conduct confirms this), I think the learned judge's approach
somewhat underestimates first appellant's
intoxicated condition. I leave aside
first appellant's evidence that he was "drunk". He was found to be a dishonest
witness. But
one must have regard to another State witness, a certain Craig
Goslin. He was one of those with appellants in the back of the vehicle.
The
trial court found him to be a credible and reliable witness. According to
Goslin, first appellant was "very drunk" when they
were about to leave the
resort and "still
10/
10. drunk" about 30-45 minutes later when the brick was thrown.
Another member of appellants' group was Valerie Schoeman. She too
(in her
evidence for first appellant) said that he was drunk (at the cafê). (v) It
does not seem as if first appellant (who
is a first offender) is an inherently
violent or aggressive person. That was the opinion not only of a probation
officer but also
of a clinical psychologist who interviewed him and who both
testified in mitigation of sentence. Their evidence was that first appellant's
behavioural problems stemmed from an unstable upbringing and a lack of parental
supervision and control; that he lacks self-discipline.
11/
11.
The nature of the crime was such that the retributive and deterrent aspects
of punishment require that first appellant be sentenced
to imprisonment.
However, having regard to the cumulative effect of the mitigating factors
referred to, I am of the opinion that
the sentence imposed was unduly severe. We
are therefore justified in interfering with it. The period of ten years is
appropriate
but I think that justice will be done if four years thereof is
conditionally suspended.
This brings me to second appellant's appeal against
his conviction. He was found guilty on the basis that he was a party to a common
purpose which embraced the throwing of the brick by first appellant. The
question that arises is whether this finding was correct.
I mentioned earlier
that stones were picked up outside the cafe by
inter alia
second
appellant and
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12.
then loaded on to the back of the vehicle. There can
be no doubt that this
was done pursuant to a common
purpose between appellants and their two
companions to
throw them at persons whom it was anticipated they
would
pass when they continued driving along the road.
With good reason the trial
judge accepted Goslin's
evidence that at the cafe the four of them
entered
into an agreement to this effect. His evidence is
this regard
reads:
"We decided that we would throw them at
pedestrians that we passed on our
way...
Tell me exactly what you
discussed as you
recall it? -- Well we all discussed that we
would throw
stones at the passing
pedestrians.
MR VAN DER MERWE
Was that between the four
of you? -- Yes. That was between me, Deane,
accused 1 and accused 2...
(W)ere all
four of you on the lookout for
somebody to throw stones at? -- That is
correct."
True to their design, when shortly after
they left the
cafe and a cyclist was encountered, second appellant
13/
13. threw one of the stones at him. Had the issue arisen, the other
three would on the basis of common purpose, also have been responsible
for
second appellant's actions. Similarly, had first appellant thrown one of the
stones at deceased, second appellant and the other
two would have been parties
to his crime. In both cases this would be so even though they acted individually
rather than in concert.
The throwing of a stone by any one of them would have
been imputed to each member of the group and not (as was argued) be regarded
as
the independent act of the individual perpetrator only.
But did the throwing
of the brick by first appellant fall within the ambit of the common purpose?
ROUX J's affirmative answer was
rightly not based on a finding that the
agreement to throw stones
per se
included the throwing of the brick. The
size of the
14/
14.
the stones was variously described as "big ones",
"medium sized stones",
"smallish stones", "about half
the size of a tennis ball" and "not more than
an inch
or two in diameter". Whatever their exact
proportions, there is
nothing to gainsay Goslin's
evidence that the brick was "in an entirely
different
category (to) any of the other stones...". The same
applies to
second appellant's attitude. He said:
"There is basicaily no comparison. (T)he stones were so small...compared to (the
brick)...(I)t could kill somebody whereas the ...stones
they were not of killing
potential...it is much bigger. It is a totally different
thing".
The dimensions of the brick, namely 16 cm in
diameter
and 5 cm thick bear this out. It is clear therefore
that first
appellant's actions in throwing the brick
involved means and consequences
different from those
contemplated by the parties to the agreement to
throw
stones. Obviously recognising this, the trial judge
15/
15. based his finding that second appellant was responsible for what
first appellant did on different reasoning. It was: (i) Second
appellant saw
first appellant pick the brick up and place it in the vehicle; (ii) he knew that
it was going to be thrown at someone
they passed; (iii) he saw first appellant
arm himself with the brick just as they approached the group of children; (iv)
he did not
try to stop first appellant from throwing it; (v) this was because he
regarded it as consistent with their common purpose; (iv) he
did not entertain
any belief that first appellant would throw the brick with the object of missing
the children; (vii) second appellant
thus foresaw the possibility that deceased
might be killed. I have come to the conclusion that the learned judge's approach
cannot
be supported. None of the State witnesses deposes to facts from which
it
16/
16.
can be inferred that second appellant saw first
appellant take possession
of the brick at the cafe or
that when they drove away second appellant
already
knew that first appellant was going to throw the brick
at someone.
The only evidence on these points is
that of second appellant himself. He
says:
"Now when you say you saw accused 1 throw
the paving brick,
was that the first time
that you noticed the paving brick or had
you,
EXHIBIT 1, or had you seen it before?
-- I might have seen it before but the
whole
thing was my, I did not pay, if I had seen
it I did not pay
attention to it lying
there.
Can you say at what stage you
might have
seen it in the journey? In other words
before you reached the
cafe, after you left
the cafe? -- I think after, probably after
we left the cafe...
Now
before...EXHIBIT 1 (the brick) was
thrown by accused 1 did you have
any
expectation that accused 1 was going to do
this, did you have any
awareness that
accused 1 intended throwing EXHIBIT 1?-- No,
no.
Did you encourage accused 1 in any
way to
throw EXHIBIT 1?-- No I did not.
So
when accused 1 threw EXHIBIT 1 it took
17/......
17.
you by surprise? -- Yes...
Well at this stage now you have already seen
accused 1 pick the (brick) up, not so? --
Okay, correct.
Yes and at that stage what did you do when
you saw accused 1 pick the (brick) up? -- I
did not do anything.
What did you think? -- I did not think
anything.
Mr Bedingfield in the light of what had
been
taking place.. -- I am not going
to think he
is going to be so stupid as to throw such a
big thing off the back of the
landrover...
I do not know why I did
not stop him,
because it never occurred to me that he was
going throw a stone like that to
kill
somebody, never, it never
occurred to me he
was going to kill somebody."
It is true that second
appellant was, with
justification, found to be an untruthful witness.
But
there would appear to be no reason to reject the
testimony I have
guoted. On this basis, second
appellant's guilt was not proved. Besides not
having
the reguisite
mens rea
, his mere presence at what may
be
regarded as the scene of the crime was insufficient
to establish an association by him with first
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18.
appellant's actions. Nor can this be inferred f rom the fact that af ter
deceased was seen to be struck, second appellant also laughed.
It follows that
second appellant's conviction of murder cannot stand.
The remaining question
is whether second appellant should not have been convicted of a lesser offence.
A conviction for culpable homicide
can be discounted if only for the reason that
it cannot be said that he was negligent in that he ought to have foreseen the
throwing
of a brick at deceased as a reasonably possible result of the common
purpose to throw stones. Nor can a verdict of a conspiracy (an
offence created
by sec 18(2)(a) of the Riotous Assemblies Act 17 of 1956) to assault deceased be
substituted. Whilst second appellant
may have so conspired, this would not be a
competent verdict on a
19/
19. charge of murder (cf
S vs Mavhunqu
1981(1) SA 56(A) at
68 D -
E; see too
Burchell and Hunt
: South African Criminal Law and Procedure,
vol 1, 2nd ed 490). Conspiracy is not an offence referred to in
sec 258
of the
Criminal Procedure Act, 51 of 1977
. And it does not include all the essential
elements of the crime of murder. So resort cannot be had to
sec 270
of the
last-mentioned Act. This leaves for consideration whether, arising from second
appellant's association in a common purpose
to throw stones, he cannot be
convicted of assault (with intent to do grievous bodily harm). Whilst the
doctrine of common purpose
is usually applied to murder, there is in principle
no reason why it should not apply to a crime such as assault. Throwing a stone
of the size mentioned at a person would undoubtedly constitute an assault.
Accordingly, had first appellant thrown a stone at
20/
20.
deceased, second appellant would, as indicated ealier, have on the basis of
common purpose been guilty of an assault. Does it matter
that first appellant
threw a brick instead? _ The general principle is that the liability of parties
to a common purpose depends
on whether the result produced by the purpetrator of
the act falls within the mandate and is not concerned with the means by which
the result is produced (
R vs Shezi & Others
1948(2) SA 119(A) at 128;
R vs Chenjere
1960(1) SA 473(FC) at 476 E - 477 A). A qualification to
this principle (at least in
dolus eventualis
cases) is that if the
consequence occurs in a way which differs markedly from the way in which it was
anticipated it might, the requisite
intent is lacking (
S vs Goosen
1989(4) SA 1013(A)). In
casu
, so it seems to me, the
Shezi
principle does not apply. Because of the different means employed by first
21/
21 .
appellant, his actions fell outside the scope of the common purpose. His
throwing of a brick at deceased therefore cannot for any
purpose be imputed to
second appellant (or the other two). To do so, on the basis of the unlawful
joint enterprise to throw stones,
would amount to an application of the
versari in re illicita
doctrine. Second appellant cannot therefore be
found guilty of an assault on deceased. He must be acquitted.
The following order is made: (1) Pirst appellant's appeal against
sentence
succeeds. His sentence of ten years' imprisonment remains but four years thereof
are suspended for three years on condition that
he is not convicted of any crime
committed during the said period involving an assault on a person for
which
22/
22.
imprisonment without the option of a fine is imposed. (2) The appeal of
second appellant succeeds.
His conviction and sentence are set
aside.
NESTADT, JA
VAN HEERDEN, JA )
) CONCUR GOLDSTONE, JA )