Brief Summary

Criminal law — Accessory after the fact — Conviction of police officers for murder — Seventeen police officers detained a suspect, Samuel Magano, who died in their custody — The trial court found that the deceased died from an unnatural cause, likely suffocation, but could not determine which officer was responsible — Accused convicted as accessories after the fact to murder — Appeal against conviction and sentence — Legal principles regarding proof beyond reasonable doubt and the role of expert evidence considered — Conviction upheld, sentences adjusted.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerns a criminal appeal in the Supreme Court of Appeal against convictions and sentences imposed on seventeen members of the South African Police Service stationed in the North West Province at Mmbatho. The appellants were, at the relevant time, drawn from police components including the murder-and-robbery squad and the tracing unit, and comprised both sergeants and constables. The respondent was the State.

The proceedings originated as a murder prosecution in the trial court before Friedman JP (sitting with assessors). The appellants were arraigned on a charge of murder arising from the death of a detainee, Samuel Magano, while in their custody. The trial court found that the deceased died of unnatural causes while in police custody, but held that it could not be established which appellant(s) actually committed the killing. In the absence of a request by the prosecution for a conviction on the basis of common purpose to murder, the trial court convicted all appellants of being accessories after the fact to murder, relying on appellate authority addressing cases where the principal perpetrator cannot be identified.

Each sergeant was initially sentenced to ten years’ imprisonment and each constable to eight years’ imprisonment. An appeal to a Full Bench of the High Court was dismissed in respect of the convictions, but the Full Bench reduced the sergeants’ sentences to eight years, leaving the constables’ sentences unchanged. The Supreme Court of Appeal granted leave for a further appeal against both convictions and sentences.

The general subject matter of the dispute was whether the State had proved beyond reasonable doubt that the deceased was unlawfully killed while in the exclusive custody of the appellants, and—critically—whether, despite the inability to identify the murderer, the appellants could properly be convicted as accessories after the fact to murder, particularly having regard to their conduct as police officers after the death.

2. Material Facts

It was common cause that on the morning of 3 July 1995 Samuel Magano was healthy and was detained at about 07:30 by police on suspicion of involvement in a robbery at the Molopo Sun Hotel. From the moment of his detention until his death later that day, he was in the company only of the appellants. At approximately 16:00, Magano was dead.

The principal disputed factual issue at trial concerned the cause and circumstances of death. The State’s case was that the deceased died from an unnatural cause, namely acute anoxia associated with an aggressive act (the evidence indicating a probable mechanism consistent with suffocation), inflicted by one or more of the appellants while he was in their custody. The appellants’ version was that the deceased died of natural causes while being taken in a police kombi to point out where allegedly stolen cash had been buried: they claimed he got out of the vehicle, walked a short distance, collapsed, and died despite attempts at first aid.

The medical evidence relied upon by the court was that of two forensic pathologists, Professor Fosseus and Dr Saayman, who conducted the post-mortem examination. They found no evidence of a natural disease process that could explain sudden death, and concluded that the findings indicated probable terminal acute anoxia of unnatural origin, with signs of blunt force application to the neck, and with suffocation included within the plausible causes. This conclusion was supported by the evidence of the deceased’s treating doctor, Dr Manyaapelo, who testified that during the period he treated the deceased there had been no symptoms suggesting asthma, epilepsy, or cardiovascular disease.

The appellants relied on expert opinion from Professor Isaacson, an anatomical (not forensic) pathologist, who did not perform or observe the post-mortem and who accepted the appellants’ version before suggesting possible natural causes of death, including an ultimately emphasised possibility of acute myocarditis detectable only microscopically. The court treated this as speculative when weighed against the post-mortem findings and other medical evidence, including the absence of clinical manifestations ordinarily associated with such conditions.

A further important factual issue concerned the location and timing of death. The trial court rejected the appellants’ account that death occurred at the spot they identified. Evidence regarded as cogent and not disputed in its essentials was that the deceased’s clothing, initially clean and light-coloured, was later found heavily stained with red, muddy soil when Colonel Segone saw the body on the floor of a police kombi. The soil at the alleged collapse scene was described as sandy and greyish/blackish, and no trace of that soil was found on the deceased’s clothing. A professional natural scientist, Mr Dixon, testified that the soil staining on the clothing indicated repeated contact with fine red sand, including wet mud adherence, with patterns consistent with repeated kneeling and pulling. He was adamant that the red soil on the clothing could not have come from the spot alleged by the appellants and that, if the incident occurred as described, traces of the scene’s soil would have been present. Soil samples from the kombi floor were similar to the red soil found on the deceased’s clothing.

On the facts accepted, the court drew the implication that the appellants’ version about the place and manner of death was false, and that the deceased must have died earlier and at another place, after which his body was conveyed in the kombi to the location where it was shown to Colonel Segone.

After the death, the appellants collectively told Colonel Segone that the deceased had not been assaulted and had collapsed and died naturally. Additionally, each appellant made a warned statement during the investigation; these statements were in virtually identical terms, and were exculpatory in content. The prosecution relied on the removal of the body, the failure to disclose the true circumstances, and the falsehoods conveyed to superiors and investigators as conduct intended to shield the perpetrator(s) from accountability.

3. Legal Issues

The appeal required determination of several connected legal questions. Central among them was whether the State had proved beyond reasonable doubt that the deceased died of unnatural causes while in the exclusive custody of the appellants, and thus that his death was caused by one or more of them.

A further central issue was a question of legal characterisation and application of law to proven facts: whether, in circumstances where the court could not identify the principal murderer and where common purpose to murder was not relied upon by the prosecution, all appellants could nevertheless be convicted of being accessories after the fact to murder. This included consideration of the so-called “Schreiner doctrine” arising from R v Gani and Others and its subsequent approval in S v Jonathan en Andere.

Additional issues concerned (i) what conduct suffices to constitute the actus reus of being an accessory after the fact, including whether an omission by police officers to report a crime may be unlawful and sufficient; (ii) whether the appellants’ warned statements and false accounts were admissible and capable of being used in evaluating accessory liability; (iii) whether the conviction based on failure to report was unconstitutional in light of the asserted right to silence; (iv) whether the required intention (dolus) for accessory liability was proved; (v) whether the appellants ought at most to have been convicted as accessories after the fact to culpable homicide rather than murder; and (vi) whether the sentences warranted appellate interference.

These issues included disputes of fact (cause and place of death), law (scope of accessory-after-the-fact liability when the principal perpetrator is not identified; admissibility principles), and application of law to fact (whether the proven conduct amounted to assistance intended to help the perpetrator evade justice; whether intention was established by inference).

4. Court’s Reasoning

The court approached the question of the cause of death primarily through the medical evidence and the criminal standard of proof. It considered the contention that, because acute myocarditis could not be categorically excluded without histological examination, the State had not proved an unnatural death beyond reasonable doubt. In rejecting that argument, the court reiterated established South African authority on proof beyond reasonable doubt, particularly R v Mlambo, emphasising that the prosecution is not required to eliminate every speculative possibility consistent with innocence. The court aligned this approach with English authority (Miller v Minister of Pensions), noting that fanciful or remote possibilities do not create reasonable doubt.

Applying these principles, the court accepted the forensic pathologists’ opinions that the post-mortem findings indicated acute anoxia caused by an aggressive or unnatural act, with no evidence of natural disease. The court treated the appellants’ expert’s alternative theories as having been advanced from a premise that accepted the appellants’ version of events and as largely speculative, especially where the State’s experts explained why such rare conditions would usually present macroscopic or clinical indicators. The evidence of the deceased’s treating doctor further reduced the plausibility of the suggested natural causes.

From the accepted fact that the deceased was in exclusive contact with the appellants from detention until death, the court reasoned that his death must have been caused by one or more of the appellants. It then evaluated whether the appellants’ narrative about where and how the death occurred could be true. The court regarded the soil evidence as particularly cogent: the heavy red-soil staining on the deceased’s clothing and the matching soil in the kombi could not be reconciled with the alleged collapse site’s soil characteristics. This evidence, together with the improbabilities in the appellants’ account, justified the trial court’s rejection of their version that the deceased died naturally at the indicated spot. The court considered attempts to explain away the contamination (mortuary or post-release handling of clothing) untenable because the red stains were present when the body was first observed by Colonel Segone.

Having accepted that the deceased died unnaturally while in custody and that the appellants’ account was false, the court turned to the correctness of the accessory-after-the-fact convictions. It addressed the appellants’ principal legal objection that an accessory presupposes a known principal, and that if the murderer cannot be identified no accessory conviction can stand. The court treated this as a settled issue in South African law, tracing the doctrine to R v Gani and Others and noting that, despite academic criticism, the doctrine was upheld by the Appellate Division in S v Jonathan en Andere, with agreement on the point by both majority and minority judgments. The court also noted subsequent application of the doctrine in S v Munonjo en ’n Ander. It therefore applied the rule that, in cases where several persons may include the principal perpetrator, and where the group acts to conceal the crime, all may be convicted as accessories after the fact: those who were not the murderer are accessories; the actual murderer may be guilty as an accomplice to the accessory conduct of the others.

The remaining question was whether, on the proven facts, the State established that each appellant performed an act (or omission) intended to assist the principal offender(s) to evade justice. The court identified the conduct relied upon by the prosecution: the failure to disclose the true facts to a superior officer, the collective removal of the body, the false explanation given to Colonel Segone, and the identical exculpatory warned statements. It applied the principle that while mere failure to report a crime is ordinarily not unlawful, the position differs for police officers, who have legal duties to report and record crimes and to disclose perpetrators; a failure to do so may be unlawful and can found accessory-after-the-fact liability if done with the requisite intention. The court relied in this connection on S v Williams and Others.

On these facts, the court inferred a deliberate common intention to assist the killer(s) to evade justice, particularly in light of the body’s movement, the unified false narrative to a senior officer, and the subsequent statements. It held that this inference, grounded in the proven facts and circumstances, established the required dolus. The court further held that if the omission of a police officer to report a crime can suffice, then false statements intended to mislead an investigation constitute, a fortiori, positive conduct meeting the requirement.

The court then considered the admissibility of the appellants’ warned statements. It acknowledged the general rule that extra-curial statements are admissible only against their maker and noted the difficulty identified in R v Victor and Another, namely the risk of circularity where the only proof of a conspiracy lies in the statements themselves. The court nevertheless held the statements admissible on two grounds. First, it characterised the statements as exculpatory and not being used to prove the truth of their content against co-accused; rather, their similarity and proven falsity were treated as relevant features of the statements as “objects” evidencing a coordinated attempt to mislead. Second, the court held they were admissible under the principle that acts and declarations by each accused are admissible against others if made in furtherance of a common purpose, as stated in R v Miller and Another and R v Mayet. The court considered that the appellants’ collective omission and falsehoods provided evidence of a common purpose to assist the murderer(s), which in turn rendered the statements admissible as part of that purpose.

The court rejected the constitutional argument that convicting based on failure to report infringed a right to silence. It reasoned that, by virtue of their position as police officers, the appellants had no right not to report a crime committed in their presence, and it regarded it as untenable that the Constitution had implicitly abrogated the duty of police officers to perform lawful duties and to act honestly.

On the submission that the appellants should have been convicted, if at all, as accessories after the fact to culpable homicide, the court held that the only reasonable inference from the manner of death and the appellants’ false version was that the deceased was murdered, not negligently killed. The court noted that negligent killing was never alleged or supported by testimony, and treated the culpable homicide submission as speculative and lacking a factual foundation.

Finally, on sentence, the court applied the appellate restraint applicable where no misdirection is shown and where the sentence is within the bounds a reasonable court could impose. It found no misdirection and held that eight years’ imprisonment for each appellant was reasonable, justified, and particularly appropriate given the seriousness of criminal conduct by police officers and the need to protect public confidence in law enforcement. The court endorsed the sentiment expressed in S v Van Dyk concerning the crisis of public trust and the importance of severe sentences for misconduct within the justice system.

5. Outcome and Relief

The Supreme Court of Appeal dismissed the appeal by each appellant against both conviction and sentence. The convictions for being accessories after the fact to murder were upheld. The sentence of eight years’ imprisonment imposed on each appellant (as adjusted by the court below in respect of sergeants) was confirmed.

No separate costs order is reflected; the matter was disposed of as a criminal appeal with the appeals dismissed.

Cases Cited

R v Gani and Others 1957 (2) SA 212 (A)

S v Jonathan en Andere 1987 (1) SA 633 (A)

R v Mlambo 1957 (4) SA 727 (A)

S v Sauls and Others 1981 (3) SA 172 (A)

S v Rama 1996 (2) SA 395 (SCA)

S v Ntsele 1998 (2) SACR 178 (SCA)

Miller v Minister of Pensions [1947] 2 All ER 372 (KB)

S v Reddy and Others 1996 (2) SACR 1 (A)

S v Munonjo en ’n Ander 1990 (1) SACR 360 (A)

S v Williams and Others 1998 (2) SACR 191 (SCA)

R v Victor and Another 1965 (1) SA 249 (RA)

R v Miller and Another 1939 AD 106

R v Mayet 1957 (1) SA 492 (A)

S v Morgan and Others 1993 (2) SACR 134 (A)

S v Van Dyk 1998 (2) SACR 363 (W)

Legislation Cited

The Constitution of the Republic of South Africa, 1996 (referred to generally in argument)

Rules of Court Cited

No rules of court are cited in the judgment.

Held

The court held that the State proved beyond reasonable doubt that the deceased died from acute anoxia caused by an aggressive or unnatural act, and not from natural causes, and that because the deceased was at all relevant times in the exclusive custody of the appellants, his death was caused by one or more of them.

The court held further that, notwithstanding the inability to identify the principal perpetrator of the murder and in the absence of a conviction based on common purpose to murder, the appellants were properly convicted as accessories after the fact to murder under the doctrine endorsed in R v Gani and Others and reaffirmed in S v Jonathan en Andere.

It held that the appellants, as police officers, unlawfully failed to disclose the true facts and made false statements intended to mislead investigation and assist the perpetrator(s) to evade justice; this conduct established the required intention for accessory-after-the-fact liability. The court rejected constitutional and evidential objections raised against reliance on the appellants’ omission and statements. It also held that the facts supported accessory liability to murder, not culpable homicide.

The court held that the sentence of eight years’ imprisonment for each appellant was appropriate and warranted no interference.

LEGAL PRINCIPLES

A conviction beyond reasonable doubt does not require the prosecution to eliminate every speculative hypothesis consistent with innocence; it requires evidence that raises such a high degree of probability that a reasonable person concludes there is no reasonable doubt, consistent with the approach in R v Mlambo 1957 (4) SA 727 (A) and the articulation in Miller v Minister of Pensions [1947] 2 All ER 372 (KB).

Where a group is implicated in a crime but the principal perpetrator cannot be identified, all may nevertheless be convicted as accessories after the fact if the evidence proves that those who were not the principal assisted in the concealment, and the principal may be liable as an accomplice to the accessory conduct of the others; this doctrine is drawn from R v Gani and Others 1957 (2) SA 212 (A) and confirmed in S v Jonathan en Andere 1987 (1) SA 633 (A).

While mere failure to report a crime is ordinarily not unlawful, a police officer’s omission to report or disclose crimes and perpetrators may be unlawful and may constitute the requisite conduct for accessory-after-the-fact liability where accompanied by an intention to assist the offender to evade justice, as recognised in S v Williams and Others 1998 (2) SACR 191 (SCA).

Acts and declarations made in furtherance of a common purpose may be admissible against co-accused once a common purpose to commit the relevant ancillary wrongdoing is established on the facts, consistent with R v Miller and Another 1939 AD 106 and R v Mayet 1957 (1) SA 492 (A), as applied to coordinated conduct aimed at misleading an investigation.

Sentencing courts may impose severe custodial sentences where offences involve abuse of public office by police officers, especially where such conduct undermines public confidence in the administration of justice; absent misdirection or disproportionality, appellate interference is not warranted, and the court endorsed the policy emphasis reflected in S v Van Dyk 1998 (2) SACR 363 (W).

S v Phallo and Others (354/98) [1999] ZASCA 84 (19 November 1999)