Brief Summary

Criminal Law — Appeal against conviction and sentence — Right to a speedy and fair trial — Delay in appeal process infringing on appellant's rights — Evidence of State witnesses riddled with improbabilities — Failure to prove guilt beyond reasonable doubt — Appeal upheld, conviction and sentence set aside. The appellant was convicted of murder based primarily on the testimony of two eyewitnesses, but the appeal revealed significant inconsistencies in their accounts and a lack of ballistic evidence. The lengthy delays in the trial and appeal processes raised concerns about the appellant's right to a fair trial, ultimately leading to the conclusion that the State failed to prove the appellant's guilt beyond a reasonable doubt.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerns a criminal appeal to the Supreme Court of Appeal against a conviction and sentence for murder. The appellant was Jose Pedro Morais Carneiro, and the respondent was the State.

The matter originated in the Johannesburg Regional Court, where the appellant was charged with murder read with the provisions of the Criminal Law Amendment Act 105 of 1997. He pleaded not guilty. After a protracted trial during which he remained on bail, he was convicted on 31 May 2006 and, on 20 November 2006, sentenced to seven years’ imprisonment, the regional court having found substantial and compelling circumstances justifying a lesser sentence than the statutory minimum. Leave to appeal against conviction was granted and the appellant’s bail was extended pending appeal.

The appeal was first heard by the South Gauteng High Court, Johannesburg (sitting as a court of appeal from the regional court), which dismissed the appeal on 1 December 2010. What followed was a lengthy and irregular procedural course relating to an application for leave to appeal further, including a petition process and a prior Supreme Court of Appeal decision concerning whether the appellant’s leave-to-appeal application had been properly dealt with. Ultimately, leave to appeal to the Supreme Court of Appeal was granted, and the present appeal was heard in March 2019, almost two decades after the incident.

The general subject-matter of the dispute was the identity of the person who fired the fatal shot and whether the State had proved the appellant’s guilt beyond reasonable doubt, in circumstances where the State relied primarily on two eyewitnesses and where ballistic and scene evidence that could have clarified the central issue was not produced.

2. Material Facts

On 3 September 1999 in the early hours of the morning, Vuzumuzi Herry Bongolo (the deceased) was walking along Pretoria Street in Hillbrow, Johannesburg with friends. He was fatally shot. Two of those friends later testified for the State and identified the appellant as the person who shot the deceased. The appellant was arrested later that evening.

Certain core facts were treated as undisputed in the proceedings. The deceased died from a gunshot wound, and the appellant made admissions in terms of section 220 of the Criminal Procedure Act 51 of 1977 that the deceased died of a gunshot wound to the mouth, consistent with the post-mortem report. It was also common cause (as noted by the Supreme Court of Appeal) that the rear window of the appellant’s motor vehicle had been smashed.

The central facts were disputed. The State witnesses’ version was that, while walking along Pretoria Street, they saw the appellant near the traffic lights, dressed in black trousers and a white T-shirt, and that he pointed a firearm first toward a group of people sitting around a fire and then, without any provocation from the deceased’s group, pointed the firearm in the direction of the deceased and his friends. They said the deceased did not run away and was then shot. They also gave evidence about the appellant returning to the scene and, in one witness’s version, changing clothing by putting on a beige jersey.

The appellant’s version differed materially. He testified that he encountered persons breaking into his motor vehicle in Claim Street (near where his bottle store was located) and that he fired three warning shots directed toward the ground near the front of his vehicle. He denied firing at the deceased or his friends and denied that the fatal shot came from his firearm. A significant aspect of the appellant’s case, as presented in argument, was that his shots were fired in Claim Street, while the deceased was shot in Pretoria Street, and that the State had not produced evidence showing how the fatal bullet could have been fired from the appellant’s position to the deceased’s location.

Material to the outcome was the fact that, despite the centrality of the identity question and despite the State having sought a postponement to obtain it, ballistic evidence, a sketch plan, and a map that could establish the positions of the parties and the relationship between the shots fired and the fatal wound were not ultimately produced. The Supreme Court of Appeal treated these omissions as significant to whether the State had discharged the burden of proof.

3. Legal Issues

The principal legal issue was whether the State had proved, beyond reasonable doubt, that the appellant fired the shot that killed the deceased, given the inconsistencies and improbabilities in the eyewitness testimony and the absence of supporting forensic or reconstruction evidence.

The dispute primarily concerned the application of law to fact, namely whether the evidence as a whole met the criminal standard of proof, and whether the appellant’s version could properly be rejected as false beyond reasonable doubt. It also involved questions of fact, particularly the reliability of identification evidence and the plausibility of the competing versions.

A further issue, raised by the Supreme Court of Appeal on its own assessment of the record, concerned the impact of extreme delay in the prosecution of the matter and the appeal process on the fairness of the proceedings. The court expressed the view that the delay might have vitiated the appellant’s right to a fair trial and appeal, but did not make a determinative constitutional finding because the parties argued the appeal solely on the merits of the conviction.

4. Court’s Reasoning

The Supreme Court of Appeal expressed strong disquiet about the extraordinary delays spanning the period from offence to final appeal determination. It emphasised that the right to a speedy and fair trial requires reasonable expedition and that this concern extends to the appeal process. It also highlighted the practical consequences of delay for the quality of adjudication, including the diminished ability of a trial court to make reliable credibility findings long after witnesses testify, and noted that delays had tangible prejudicial effects, including the appellant’s arrest and imprisonment for fifteen months due to administrative errors while the appeal process stalled.

Notwithstanding these concerns, the court decided it was unnecessary to determine whether the process was unconstitutional, because the appeal had been argued on the merits. The court nonetheless treated the delays as context for evaluating whether the trial court’s credibility findings could safely be relied upon, and it considered that the delays likely undermined the reliability of those findings.

On appellate approach, the court reaffirmed that an appellate court’s power to interfere with factual findings is limited absent material misdirection, but that where there are demonstrable and material misdirections a court of appeal may disregard credibility-based factual findings and make its own assessment on the record. The court concluded that the trial court’s evaluation of the evidence involved misdirections and inadequate analysis, and that the high court’s reasoning similarly suffered from significant shortcomings.

In assessing the merits, the court treated identity as the decisive question. It held that the State’s case depended almost entirely on the two eyewitnesses, yet their evidence contained material weaknesses. In particular, the court noted that both witnesses conceded they did not see the appellant pull the trigger, with their attribution of responsibility depending substantially on inference from having last seen the appellant with a firearm. The court also noted contradictions between the witnesses, including on whether other shots were fired in the vicinity at the relevant time and whether one witness truly observed the appellant entering a bottle store, an assertion later conceded to be incorrect.

A central improbability identified by the court was the discrepancy between the eyewitness claim that the deceased was shot from behind (or behind the ear) and the post-mortem findings, which described a gunshot wound of entrance involving the upper right frontal incisor tooth, with a track passing downwards, backwards and to the left, exiting at the nape of the neck. The court regarded this as a serious discrepancy that warranted closer scrutiny. It considered that the trial court dealt with the discrepancy in a perfunctory manner and did not call the pathologist to clarify it, notwithstanding its importance to the direction and trajectory of the fatal shot.

The court further reasoned that the appellant’s version could not properly be rejected as false beyond reasonable doubt on the grounds relied upon by the courts below. It criticised the high court’s reliance on perceived improbabilities in the appellant’s explanation for being alone with cash and for not reporting the vehicle break-in, noting that the smashed window was common cause and that the appellant had testified to having telephoned the flying squad. In the Supreme Court of Appeal’s assessment, no material inconsistencies were revealed in the appellant’s evidence under cross-examination, even if some aspects might invite questions of plausibility.

A major pillar of the court’s reasoning was the absence of ballistics and scene evidence. The court held that the State’s failure to obtain and present ballistic analysis of the firearm and cartridges, and its failure to produce a sketch plan or map showing relevant positions and lines of fire, left the trial court without a proper evidential foundation to determine whether the fatal bullet came from the appellant’s firearm. The court regarded it as unacceptable that the police did not secure the necessary forensic evidence, especially given that the calibre of the fatal firearm was unknown and had been placed in issue, and given that the State was aware of the appellant’s defence from the time of arrest.

The court stressed that the admission of the post-mortem report in terms of section 220 did not relieve the State of proving the other elements necessary to establish guilt, and that the admissions related only to the cause of death and not to the identity of the shooter. The cumulative effect of unreliable eyewitness evidence, unresolved medical and trajectory issues, and an inadequate investigation meant that the State had not excluded the reasonable possibility that the fatal shot could have been fired by someone else.

Approaching the evidence as a whole, the court held that it was not conclusively proved beyond reasonable doubt that the deceased died as a result of a shot fired from the appellant’s firearm. It concluded that the State had failed to discharge the burden of proof and that the conviction could not stand.

5. Outcome and Relief

The Supreme Court of Appeal upheld the appeal. It set aside the order of the South Gauteng High Court and replaced it with an order upholding the appeal and setting aside the appellant’s conviction and sentence. The effect of the order was that the appellant was acquitted. The judgment did not contain a separate costs order.

Cases Cited

Chauke & another v S [2012] ZASCA 143 (28 September 2012).

Carneiro v The State [2017] ZASCA 154.

R v Dhlumayo & another 1948 (2) SA 677 (A).

S v Hadebe 1997 (2) SACR 641 (SCA).

S v MM 2012 (2) SACR 18 (SCA).

Legislation Cited

Criminal Law Amendment Act 105 of 1997.

Criminal Procedure Act 51 of 1977 (including section 220 and section 309(c)).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Supreme Court of Appeal held that the appeal process was marked by unjustifiable and regrettable delay, which undermined the administration of justice and the reliability of credibility findings, although it was unnecessary to make a definitive constitutional determination because the parties argued the case on the merits.

On the merits, the court held that the State failed to prove beyond reasonable doubt that the appellant fired the fatal shot. The eyewitness identification evidence was materially weakened by improbabilities, contradictions, and concessions that neither witness actually saw the appellant pull the trigger. The medical evidence, particularly the post-mortem description of the entrance wound and wound track, was not satisfactorily reconciled with the eyewitness account of the deceased being shot from behind.

The court further held that the State’s failure to obtain and present ballistic evidence and adequate scene or reconstruction evidence was a critical omission that left a reasonable possibility consistent with the appellant’s version. In those circumstances, the conviction and sentence were set aside.

LEGAL PRINCIPLES

The judgment applied the principle that an accused person’s guilt must be proved beyond reasonable doubt, and that where the evidence leaves open a reasonable possibility consistent with innocence, a conviction cannot stand. The burden remained on the State throughout, and admissions in terms of section 220 of the Criminal Procedure Act 51 of 1977 were confined to the matters admitted and did not relieve the State of proving the remaining elements necessary for conviction.

The judgment applied established appellate principles that factual and credibility findings by a trial court are not lightly disturbed, but that where there are demonstrable and material misdirections, an appellate court may reassess the record and reach its own conclusions on whether the standard of proof was satisfied, as reflected in the authorities cited.

The judgment also affirmed, as a matter of principle, that the requirement of a speedy and fair trial entails reasonable expedition and extends to the appeal process. Although no final constitutional ruling was made on that basis, the court treated systemic delay as a serious failing with potential to impair fairness and the reliability of adjudication.

Carneiro v S (425/18) [2019] ZASCA 45; 2019 (1) SACR 675 (SCA) (29 March 2019)