Brief Summary

Criminal Law — Self-defence — Appellant convicted of murder, attempted murder, and pointing a firearm — Appellant claimed self-defence during confrontation with deceased and complainant — Evidence presented by State witnesses contradicted appellant's version — Magistrate found State evidence credible and rejected appellant's defence — Appeal against conviction and sentence dismissed, but leave to appeal granted based on potential misdirection regarding medical evidence — Court held that the magistrate's reliance on the State's medical evidence was flawed, particularly concerning the nature of the wounds sustained by the deceased, which could support the appellant's claim of self-defence.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were a criminal appeal in the Supreme Court of South Africa (Appellate Division) against convictions and sentence imposed in the Regional Court, Klerksdorp. The appellant, Keith Marshall, had been convicted on three counts, namely murder, attempted murder, and pointing a firearm. The respondent was the State.

After conviction and sentence in the Regional Court, the appellant appealed to the Transvaal Provincial Division of the Supreme Court of South Africa against both conviction and sentence. In that court he also applied for leave to lead further evidence from a witness, Swartz. The application to lead further evidence was dismissed and the appeal was dismissed.

Leave to appeal to the Appellate Division was granted on a limited basis, namely the prospect that a different view might be taken of medical evidence led by the State, and in relation to the refusal of the application to lead further evidence. The Appellate Division ultimately disposed of the matter on the convictions and did not find it necessary to determine the further-evidence point.

The dispute concerned the lawfulness of a shooting in a street confrontation in Alabama, Klerksdorp on 2 April 1993, and in particular whether the appellant’s admitted shooting of the deceased was justified as self-defence, or whether the State had proved beyond reasonable doubt that it was unlawful.

2. Material Facts

It was common cause that a confrontation occurred in a public street in Alabama, Klerksdorp involving the appellant (accused 1), his brother-in-law (accused 2), the deceased, and the deceased’s cousin Booysen (the complainant on the attempted murder count). It was also common cause that the appellant had a .357 Magnum revolver tucked into his waist and also had a 9 mm pistol in a holster, and that during a scuffle the .357 revolver fell to the ground and came into the possession of the deceased, who fired shots with it before the appellant fired his pistol.

It was further undisputed that the appellant fired six shots at the deceased with the 9 mm pistol and that all struck the deceased, and that he also fired a shot at Booysen which struck him in the leg. The deceased died on the scene within minutes; the most significant injury was a bullet wound to the heart. The revolver was later handed in at the police station.

Beyond these common-cause features, the central factual dispute concerned who was the aggressor, whether the deceased was unarmed at the time the appellant fired, and whether the appellant’s shooting was a defensive response to an imminent threat.

On the State’s version (principally through Booysen and corroborated in material respects by Moses), the appellant attacked Booysen “for no apparent reason,” leading to a physical struggle in which the appellant fell onto the road with Booysen on top of him. The deceased picked up the .357 revolver and fired at least two shots into the air. Thereafter, according to Booysen, the deceased threw the revolver towards the appellant’s car and then turned to bystanders to tell them to stand back, ostensibly so that the fist-fight could continue. The appellant then stood up, drew his 9 mm pistol, and fired at the deceased, striking him in the back while the deceased was unarmed. As the deceased turned and approached asking why he had been shot, the appellant fired further shots into his chest, after which the deceased sank to his knees. The appellant then shot Booysen in the leg, and thereafter returned to the deceased and fired additional shots at close range while the deceased was still kneeling. On this account, the shooting was not a response to an ongoing armed threat by the deceased.

Moses’s evidence, as summarised by the appellate court, placed him inside a house with Venda immediately before the shooting; after hearing two shots he emerged and saw the deceased being shot in the back while the deceased faced Moses and the appellant stood behind him, and Moses likewise stated that at that stage the deceased was unarmed.

On the defence version, the deceased and Booysen were the aggressors. The revolver fell as the appellant evaded a blow, and Booysen tackled the appellant, pinning him. The deceased then picked up the revolver, instructed Booysen to move away so he could shoot the appellant, and the appellant heard two shots which he believed were fired at him. The appellant escaped and drew the 9 mm pistol, then observed the deceased holding accused 2 and pointing the revolver at the appellant. At that point the deceased fired a third shot, and the appellant fired in response, believing his life was in danger. The appellant also stated that after the deceased fell, accused 2 warned him and he saw Booysen advancing with a sharpened iron weapon, leading to the shot that struck Booysen’s leg. The defence version was said to be corroborated substantially by accused 2 and an eyewitness, Nagel.

A further factual feature treated by the appellate court as incontestable was that the deceased fired three shots from the revolver before the appellant fired, because the police found three spent cartridge cases in the revolver’s chamber. The appellate court treated the State eyewitnesses’ failure to mention the third shot as a significant weakness in the State case.

The magistrate accepted the State’s version and rejected the defence version, in part on the basis of perceived corroboration from medical evidence about a wound on the deceased’s back.

3. Legal Issues

The central legal question was whether the State proved beyond reasonable doubt that the appellant’s shooting of the deceased was unlawful, which in this case required the State to exclude, beyond reasonable doubt, that the appellant acted in self-defence. The dispute therefore involved the application of legal standards (reasonable doubt and self-defence) to sharply disputed facts, coupled with credibility assessments and the evaluation of circumstantial and expert evidence.

A closely related issue was whether the trial court committed a material misdirection of fact in its treatment of the evidence, particularly in its reliance on the district surgeon’s evidence concerning whether a wound on the deceased’s back was an entry wound inconsistent with the defence version. This implicated the appellate court’s powers and limits when asked to interfere with credibility findings and factual conclusions of a trial court.

Although leave to appeal was also granted in relation to the refusal to admit further evidence (Swartz), the appellate court found it unnecessary to decide that question once it concluded that the convictions could not stand.

4. Court’s Reasoning

The appellate court emphasised the established principle that an appeal court will not lightly interfere with a trial court’s credibility findings, but it will do so where there has been a material misdirection, including where the court a quo failed to take account of material circumstances or probabilities, or gave credence to testimony that is substantially inconsistent with itself or with indisputable facts.

The appellant had argued that the magistrate decided the matter on a balance of probabilities because the judgment used language of “waarskynlikhede”. The appellate court rejected that submission on an overall reading of the judgment, holding that the magistrate accepted the State’s evidence as true beyond reasonable doubt and rejected the defence evidence as false, and that the use of probability language did not, on its own, establish application of the wrong standard.

The appellate court located the decisive misdirection in the magistrate’s treatment of the medical evidence of the district surgeon, Dr Wentzel, regarding a wound on the deceased’s back. The magistrate treated that wound as an entry wound and used it to reject the defence version. The appellate court, however, found that a careful reading of Dr Wentzel’s evidence together with the post-mortem report showed the position to be, at best for the State, equivocal. The court highlighted that in chief Dr Wentzel stated that the wound was one they could not specifically identify as an entry wound and that multiple wounds and movement made directional conclusions difficult. In cross-examination he was not prepared to state with complete certainty that it was an entry wound and explained the difficulty of matching multiple tracts. Only in re-examination, in response to a leading question, did he assert more certainty.

From this, the appellate court concluded that there was at least a reasonable doubt about whether the wound could safely be relied upon as an entry wound inconsistent with the defence version. The appellant was entitled to the benefit of that doubt. The medical evidence could not legitimately be used as a decisive justification for rejecting the defence version as false, nor as reliable positive corroboration sufficient to show beyond reasonable doubt that the defence account was false. This constituted a material misdirection of fact.

The court added that even if there had been an entry wound on the back, that fact was not necessarily inconsistent with the defence version because it was possible that the deceased “wheeled around” during the confrontation and was struck by a shot fired by the appellant.

The appellate court further identified additional weaknesses and unsatisfactory aspects in the State case that the magistrate had not adequately weighed. It considered it highly unlikely that all State eyewitnesses would coincidentally fail to mention the third shot fired by the deceased, given that the physical evidence established it had occurred. The court treated this as supporting the possibility that the State witnesses were minimising the deceased’s role and portraying the appellant as the aggressor.

The court also regarded as material the State’s failure to call potentially independent eyewitnesses, including persons in a nearby kombi-taxi and, importantly, Venda, who had been subpoenaed by the State, was present at court, and was made available to the defence but refused to consult with the defence attorneys. The court held that, with the onus on the State, any adverse inference from not calling such a witness operated against the State, not against the defence.

Other aspects noted by the appellate court included the lack of explanation for why the deceased would have thrown the revolver under a car (on the State’s version) and why he began firing the revolver at all. The court also treated with caution the evidence of police witnesses about what the appellant allegedly said at the scene, noting the circumstances (pouring rain, their non-investigative role, conversations being “en passant,” the passage of time, and internal inconsistencies), and concluded that this aspect carried little weight against the appellant.

While the appellate court acknowledged shortcomings in the defence version, such as difficulty explaining stab wounds on the deceased, it held that it remained reasonably possible that such injuries were inflicted after the appellant and his witnesses left the scene, and it noted that the location of the stab wounds was not consistent with the State witnesses’ account of how they were inflicted.

The court also cautioned against evaluating self-defence conduct with “armchair criticism” from the security of the courtroom, indicating that the assessment must be sensitive to the emergency context in which the accused claimed to have acted.

Having found a material misdirection, the appellate court held it was obliged to consider the matter afresh on the record. Applying the standard that a conviction can only stand if the appellate court is satisfied that, absent the misdirection, the accused would inevitably have been convicted, the court concluded that it could not safely find the defence explanation for the admitted killing to be not reasonably possibly true. The suspicious circumstances and credibility reservations did not justify outright rejection of the defence version on the record alone. Accordingly, the convictions could not be sustained.

Because the appeal succeeded on the merits, the court found it unnecessary to consider the refusal of the application to lead further evidence.

5. Outcome and Relief

The appeal was allowed. The appellant’s convictions and sentences were set aside. The judgment, as provided, does not record a separate order as to costs.

Cases Cited

R v Dhlumayo and Another 1948 (2) SA 677 (A)

S v Robinson and Others 1968 (1) SA 666 (A)

Parkes v Parkes 1921 AD 69

R v Zikalala 1953 (2) SA 568 (A)

R v Patel 1959 (3) SA 121 (A)

S v Van Tellingen 1992 (2) SACK 104(C)

Legislation Cited

No legislation is cited in the judgment as provided.

Rules of Court Cited

No rules of court are cited in the judgment as provided.

Held

The Appellate Division held that the regional magistrate committed a material misdirection of fact by treating the district surgeon’s evidence as strong corroboration of the State case on a crucial factual issue, when that medical evidence was equivocal and did not exclude the defence version beyond reasonable doubt.

The court held further that, once the matter was reconsidered afresh on the record, the State had not proved beyond reasonable doubt that the appellant’s version of self-defence was false; the appellant’s account remained reasonably possibly true. The convictions and sentences accordingly could not stand and were set aside.

LEGAL PRINCIPLES

The State bears the onus to prove guilt beyond reasonable doubt, which in cases where self-defence is raised entails proving beyond reasonable doubt that the accused did not act in lawful self-defence; if the accused’s version is reasonably possibly true, an acquittal must follow.

An appellate court will not readily interfere with credibility findings, but will do so where there has been a material misdirection of fact, including where a trial court gives decisive weight to evidence that does not reliably bear the conclusion drawn from it, or fails to consider material circumstances or probabilities affecting the evaluation of evidence.

Where a trial court has materially misdirected itself, the appellate court must reconsider the matter afresh on the record, and a conviction may be sustained only if the appellate court is satisfied that, absent the misdirection, conviction was inevitable on the evidence.

In assessing conduct said to constitute self-defence, care must be taken not to evaluate the accused’s actions as an “armchair critic” with the benefit of hindsight and the safety of the courtroom; the assessment must be sensitive to the exigencies of the moment described in the evidence.

S v Marshall (460/95) [1996] ZASCA 47 (29 March 1996)