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1991
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[1991] ZASCA 193
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S v Oliver (196/1990) [1991] ZASCA 193 (29 November 1991)
LL
Case No 196/1990
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
ANDREW JOHN OLIVER
Appellant
and
THE STATE
Respondent
CORAM: BOTHA, VIVIER et F H GROSSKOPF JJA
HEARD
: 14 NOVEMBER
1991
DELIVERED
: 29 NOVEMBER 1991
JUDGMENT
BOTHA JA
:-
2.
The appellant was convicted of murder by a
Judge and
assessors in the Witwatersrand Local
Division, and, extenuating circumstances having been
found, sentenced by
the trial Judge to 8 years'
imprisonment. With the leave of the trial Judge, the
appellant appeals
against his conviction and sentence.
It is common cause that the appellant caused
the death of the deceased, Justin Smith, by firing two
shots from a pistol at him. The shooting took place
during the early
evening of 9 December 1987, at a house
in Kew, Johannesburg. The deceased was 24 years of age
when he died. At
the time of the shooting the
appellant was just two weeks short of his
24th
birthday.
The events leading up to the shooting are
summarized in the judgment of the trial Judge as
follows:
"The accused, the deceased and witness Gino Allasio and other witnesses attended
the Highlands North High School together. The
3.
house at 116 8th Road, Kew, is owned by Mrs
Machetto, who occupied a
separate portion of
the house. The larger portion of the house
was
occupied by the deceased, the accused and
the said Gino Allasio, each of whom had a
separate bedroom and was liable
for a third
share of the rent, payable at the beginning
of each month to Mrs
Machetto.
During December 1987 it is common cause that the accused was in
arrears with his share of the rent. This apparently worried Mrs Machetto
who
asked the deceased and Gino to get in touch with the accused whom she had not
seen for a few days, and get him to attend to the
matter. They agreed to do so.
The accused was an habitue at a restaurant known as Hammersley's Bar and they
looked for him there.
They were accompanied by Gino's girlfriend.
According
to Mr McFarland, the owner of the restaurant, the accused was out on an errand
for Mr MacFarland's brother, and on his return
to the restaurant there was a
confrontation over the guestion of rent between the deceased, Gino and the
accused, in the course of
which the accused's drinking problem and the question
of his treatment for it at an institution were discussed. The tenor of this
discussion was obviously a humiliation for the accused, particularly as it
occurred in a public place and in the presence of Gino's
girlfriend, and was
accompanied by threats that the accused would be beaten up and his television
and hi-fi set should be sold or
pawned.
Matters appeared, however, to have been settled on the accused's undertaking
to
4.
arrange for payment of the rent. An arrangement was also made that they would
all meet later that evening at the house of a
mutual friend, one David Fine. The deceased drove Gino and his girlfriend to the
house of Gino's parents and then proceeded to the
house in Kew. The accused, who
had obtained the money for the rent, arrived before the deceased at the house in
Kew."
The only eye-witness as to the
events that
occurred when the deceased arrived at the house was Mrs
Machetto. The
following summary of her evidence, which
was not challenged on behalf of the
appellant, appears
in the judgment of the trial Judge:
"She states that at about 19.15 on the day in guestion she was at home, when she
heard a shot. She went outside to investigate and
saw the deceased opening the
gate. She heard the deceased say: 'Olly (referring to the accused) , do you want
to come and move your
car?' She called out to the deceased: 'Heavens, I heard a
shot. Something has happened in the house.' The deceased replied: 'Don't
worry.
It's only Olly.' The deceased then walked down the driveway towards the f ront
door when she saw him put out his hand in f
ront of him and heard him say:
'Olly, can we talk about this?' She heard at that stage a second shot and saw
the deceased fall to
the ground at the entrance to the house, that is to say,
the accused
5.
fell in a half-seated position, one hand
behind him; the other clutching his stomach.
The beceased then called to her and
said:
'Get an ambulance.' She went in
to her side
of the house and telephoned the Bramley
Police Station. She returned to the scene
and saw the accused's motor car, a blue
Passat, being driven away."
The evidence given by the appellant was
summarized
by the trial Judge as follows:
"He referred to a history of humiliation and occasional physical assault that he
had suffered at the hands of the deceased, which
had continued since their
schooldays. The deceased was clearly the dominant personality in the management
of what was referred to
as 'the commune', and the court is prepared to accept
the accused's version, corroborated as it is by the evidence of Gino, as to
the
insult and humiliation, suffered by him over a long period.
The accused went on to say that at the meeting at Hamersley's Bar the deceased
played a more prominent and aggressive role than that
depicted by Mr Allasio;
that he was again insulted there by the deceased outside the restaurant, on
leaving it. He had also been
told that his television set had already been
pawned to cover his portion of the rent. He said that he obtained the rent money
from
an Autobank and from Gino and returned to the house. His explanation of the
shooting is as follows: He says that he feared that in
spite of the fact that he
had
6.
obtained the rent money he would be beaten up
by the
deceased when the latter arrived at
the house. He armed himself with the
deceased's fire-arm in order to scare the
deceased away, and he says that he did not
expect to use it and did not know how to do
so. While he was fiddling with the weapon
in
the passage , he says a shot went
of f
accidentally, striking the ceiling.
The accused went on to say that he heard the sounds of the deceased and Mrs
Machetto talking outside. He went to the entrance of
his bedroom; the front door
was open; and he said to the deceased: 'Don't come any closer.' The deceased
stood still for a second
and then said: 'Olly, let's talk about it.' The
deceased moved forward, the accused stepped back, and then, to quote his own
words,
' a shot went off. I did not intend shooting and can't remember pulling
the trigger. The first shot was accidental.' The deceased
fell to the ground and
shouted to the landlady: 'Hurry up and get an ambulance.' 'I turned and before I
could move I was tackled
from behind by the deceased. We wrestled arm-in-arm.
Another shot went off in the course of the wrestling down the passage and we
bumped into a cupboard at the end. The deceased went limp; he tore off my shirt;
and I ran away."
A post mortem examination of the body of
the
deceased revealed the presence of two gunshot
wounds.
Both' of them were entrance wounds. One was situated
7. about five
centimetres above the left nipple of the deceased, and the other in the
deceased's back. It is clear that the appellant
fired three shots: the first
bullet went into the ceiling, the second struck the deceased in front of his
chest at the time when
the appellant and the deceased were facing each other at
the front door of the house, and the third hit the deceased in the back
whilst
the appellant and the deceased were inside the house (struggling, according to
the appellant's evidence).
The trial Court was not favourably impressed with
the appellant as a witness. It found that his memory failed him, or purported to
fail him, in respect of many crucial points. He was unable, or declined, to
explain how the two shots which struck the deceased were
actually fired. The
trial Court did not consider that the appellant was frank with it when dealing
with this part of the case. It
rejected as "not credible" his evidence that he
took the weapon out of fear,
8.
expecting to be beaten up by the deceased, and that he wanted to scare off
the deceased. It concluded that he took possession of the
weapon while waiting
for the deceased to arrive at the house, with the intention of shooting the
deceased, and that he carried this
intention into effect. That was the basis
upon which he was convicted.
In argument before this Court counsel for the
appellant advanced four alleged irregularities in the conduct of the trial as
the main
basis of his attack on the appellant's conviction. I proceed to deal
with them in turn.
Counsel's first point related to the calling of witnesses
by the trial Judge. After the appellant had concluded his evidence, but
before
his counsel at the trial had closed his case, counsel for the State applied for
leave to re-open the State case by calling
further evidence. The application was
refused. The evidence was then led of a number of witnesses on
9.
behalf of the appellant, who testified, in the main, to the effect that the
appellant was of a meek apd mild disposition and not given
to violence or
aggression. When the appellant's case was closed, prosecuting counsel applied to
the trial Judge to exercise his powers
in terms of
section 186
of the
Criminal
Procedur.e Act 51 of 1977
by calling four witnesses, whose names were supplied
and of whom counsel said that he believed that they could assist the Court on
the question of the character of the appellant with regard to violence. The
trial Judge granted the application. In the event, only
three of the witnesses
were called, and it turned out (as a perusal of the record shows) that their
evidence was of practically no
consequence in the trial. However, counsel for
the appellant who appeared in this Court (he did not appear at the trial)
contended
that the assessors might have been influenced by the evidence in
question. He argued that the trial Judge ought not to have acceded
to the
State's
10. application under
section 186
, since there was no basis on which
the trial Judge could have considered that the evidence in question was
"essential to the just
decision of the case", in accordance with the concluding
part of the section. The argument is misplaced. The second part of
section 186
deals with the situation where the trial Judge is imperatively enjoined
("shall") to call a witness whose evidence appears to be
essential to the just
decision of the case. It is obvious that the State's application had not been
founded on that part of the section,
and that the trial Judge did not purport to
advert to it at all. The application was plainly based on the first part of the
section,
which confers on the trial Judge a discretion ("may") at any time of
the proceedings to call any person as a witness. In that context
counsel sought
nevertheless to argue that the manner of the exercise of the Judge's discretion
in this case constituted an irregularity,
on the ground that the
11.
Judge was thereby, as counsel put it, affording the
State
"a second bite at the cherry", having regard to
the fact that the meek and non-violent character of the
appellant had been
canvassed in cross-examination of
the State witnesses, and to the fact that the State's
prior application to
re-open its case had been refused.
(It does not appear f rom the record that the prior
application was
directed at the same object as the
application now under consideration, but I shall simply
assume that it was.) There is no substance in this
line of argument. The calling on the appellant's
behalf of a number of
witnesses as to the appellant's
character added a new dimension to that line of
enquiry, and it could quite understandably have
prompted the trial Judge to consider that a balancing
of the scales of justice rendered it advisable to hear
a possible other side of the story, as was foreshadowed
in the State's application. But, however that may be,
it is not the function of a court of appeal to consider
12.
how it would itself have exercised the discretion. The
discretion vested
in the trial Judge and the manner of
its exercise, it is clear, is assailable
on limited
grounds only. No such grounds as would warrant interference by
this Court have been shown to exist in this case. Counsel's first point
accordingly fails.
It was argued in the second place that the trial Judge
should, under
section 186
, have called for medical evidence on the effects of
the joint intake by a person of alcohol and a medical substance called Epanutin,
and that the trial Judge's failure to do so constituted an irregularity. The
argument was based, in the first place, on the evidence
of the appellant that at
the relevant time he was taking Epanutin tablets every morning and that he had
partaken of liquor during
the day in question, and, in the second place, on the
evidence of Mrs Labuschagne, a qualified criminologist who was called to testify
on the appellant's behalf. In the course of
13. her evidence she said that it
was well known that Epanutin had a sedative effect, and she suggested the
possibility that the appellant's
state of anxiety at the time of the shooting
could have been worsened "by mixing Epanutin with alcohol", and that his
"capacity to
act as a free moral agent was somehow,due to medical factors,
compromised". Counsel argued that the combined intake of the medication
and
alcohol may well have been the cause of what he called the appellant's "somewhat
erratic behaviour" on the day in question, and
that the trial Judge was
accordingly obiiged
mero motu
to cause this aspect of the case to be
investigated further. There is no merit in the argument, for a number of
reasons. One is that
Mrs Labuschagne is no expert on the effect of alcohol and
drugs on the mental state of a person; the views and possibilities put
forward
by her in this regard are no more than mere theories, unsubstantiated by
expertise or evidence. Another reason - which is
in itself fatal to the argument
- is
14.
that the appellant himself at no stage in his
evidence
suggested that he had been affected by the medicine and
the
alcohol that he had taken on the day in question.
Any such suggestion would
in any event have run
directly counter to the observations of his
condition
deposed to by the witnesses who saw him shortly before
the
shooting. Counsel's argument accordingly rests on
nothing but pure
speculation. There is simply no room
for criticising the trial Judge for not
having given
attention to an enqúiry of that nature. So counsel's
second point fails, too.
The third point was that the trial Judge had
committed an irregularity by allowing one of his assessors to "descend into the
arena",
by questioning the appellant and the witness Mrs Labuschagne at
inordinate length and in an improper manner. I do not agree with
counsel's
description of either the length or the nature of the assessor's questioning.
The questions put by the assessor were probing
and somehwat
15. extensive, to
be sure, but on a perusal of the record I am quite satisfied that the
questioning did not exceed the bounds of propriety.
There was consequently no
irregularity. The third point also fails.
Counsel's fourth point (which did
not really relate to an irregularity) was that the trial Court's reasoning, as
reflected in the
judgment of the trial Judge, was flawed because of a failure to
address itself to the vital question as to whether the appellant's
version of
how the shooting occurred could reasonably possibly be true. The point is
without substance. It is founded upon mere form:
that the trial Judge failed to
state in so many words that that was the criterion applied by the trial Court in
assessing the evidence
of the appellant. The omission to do so is of no
consequence, when regard is had to the reasoning of the trial Court, as set out
by the trial Judge. As was mentioned earlier, the trial Court rejected the vital
part of the appellant's explanation
16. of how the shooting occurred as being
"not credible". The trial Judge's judgment sets out the reasons why the
appellant's evidence
was so rejected. It is not necessary to go into the
details. It is plainly implicit in the judgment that the trial Court considered
that it was not a reasonable possibility that the evidence was true. This point
is also rejected.
I turn next to the merits of the conviction. This aspect of
the appeal I propose to dispose of very briefly. Despite the earnest efforts
of
counsel for the appellant, I remain unpersuaded that there is any warrant for
this Court to take a different view of the facts
from that of the trial Court. A
perusal of the record reveals that the trial Court had every reason to reject as
false beyond reasonable
doubt the evidence of the appellant that he did not
intend to shoot at the deceased when the first shot that struck the deceased
was
fired. That being so, the only reasonable
17. inference to be drawn f rom the
facts is that the
appellant had the intention to kill which was regnisite for
the conviction of murder.
The appeal against the conviction must be
dismissed.
Finally, I turn to the sentence imposed on the appellant. In
arguing this part of the appeal counsel for the appellant did not contend
(wisely, in my opinion) that the trial Judge had misdirected himself in any way
when passing sentence, but he urged us nevertheless
to reconsider and to
interfere with the sentence on the ground that it was unduly severe.
There
are undoubtedly a number of weighty considerations of a mitigating nature
present in this case. The appellant had long suffered
bullying and humiliating
treatment meted out to him by the deceased. On a number of occasions the
deceased, incensed at the sound
of the music the appellant was accustomed to
play in his room, assaulted the appellant by striking and
18.
kicking him. On such occasions the appellant just ran away. He never
retaliated, never objected. The
evidence is clear that he is indeed a person
of a meek disposition, and of a wholly non-aggressive nature. The picture of the
appellant
emerging from the evidence is a rather pathetic one. One witness
likened him to "a bird with a broken wing". Then, shortly before
the murder, the
appellant was subjected to particularly humiliating treatment at the hands of
the deceased. He was told that his
TV set had been pawned, and that his hi-fi
set would be pawned or sold. He was ordered to go to a centre for treatment of
his drinking
problem, and the deceased insisted, threateningly, that he should
stay there until he had been cured. The deceased threatened to
beat him up. It
must be accepted that the appellant was in an emotional turmoil when he was
awaiting the deceased's arrival at the
house. He had the intention to shoot the
deceased, but his act in doing so was wholly out of character.
The
19.
past history of the relationship between the appellant
and the
deceased and the immediately preceding
provocation suffered by the appellant
serve to lessen
his moral culpability considerably. Mr Segal, a clinical
psychologist, examined the appellant and gave evidence on his behalf, confirming
the impact that all the confluencing factors had on the appellant. Mr Segal
testified further that, since the commission of the crime,
the appellant had
succeeded remarkably well in rehabilitating himself;
inter alia
, he had
found fixed employment, in which he was performing well, and he had overcome his
drinking problem. He showed genuine remorse
for what he had done. He had become
a much more mature person.
The crime was a serious one, of course, and the
interests of society cannot be disregarded. In all the circumstances, however,
this
Court is of the view that there is good cause for reducing the period of
imprisonment which the appellant must undergo to make
20.
amends for his crime. If this Court had been entrusted
with the task of
sentencing the appellant in the first
instance, it would have imposed an effective sentence
of imprisonment of 4
years. The disparity between such
a sentence and the sentence imposed by the
trial Judge
is sufficiently pronounced to warrant interference by
this
Court. The sentence will therefore be amended
accordingly.
The order of the Court is as
follows:
1 The appeal against the
conviction is
dismissed.
2. The appeal
against the sentence is
allowed. The sentence imposed by the
trial Judge
is set aside and there is
substituted for it the following
sentence:
"8 years' imprisonment, of
which 4 years is suspended for 5 years on condition that the accused is not
convicted of a crime involving
violence to the person of another.
21.
committed during the period of suspension, and in respect of which he is
sentenced to imprisonment without the option of a fine."
A.S. BOTHA JA
VIVIER AR
CONCUR
F H GROSSKOPF JA