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[2013] ZAWCHC 198
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Adams v S (A325/13) [2013] ZAWCHC 198 (21 October 2013)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT)
Case
No: A 325/13
In the matter
between:
LEEVI
ADAMS Appellant
THE
STATE Respondent
JUDGMENT
DELIVERED ON 21 OCTOBER 2013
BOQWANA AJ
Introduction
[1]
The appellant was charged with murder and robbery with aggravating
circumstances of J.P.S.
{‘the deceased’). He appeared
before the K […] Regional Court and pleaded not guilty to both
charges. On 27
July 2011 he was convicted of murder and theft with
the magistrate finding that an inference could not be drawn from the
facts
that the appellant robbed the deceased of her cell phone and
two bankcards but it could be inferred that he stole the two items.
He was sentenced to 15 years imprisonment for murder and two years
for theft, with the latter sentence to run concurrently with
the
sentence in respect of the murder charge. With the leave of this
Court on petition, the appellant appeals against his conviction
and
sentence.
Factual background
[2]
On the morning of 20 March 2009, the deceased
was found murdered in her flatlet at H [….] old age home in K
[…..]
by a caregiver C.D.L. She was […] years old at
the time of her death. The deceased was last seen alive by her son,
J.S.
who had visited her the night before. J.S. left the deceased’s
home at approximately 22:00 on 19 March 2009.
[3]
The deceased body was discovered by C.D.L. at approximately 09:30
whilst she was doing her
rounds, checking on the elderly. When she
reached the deceased fiat, she knocked but there was no response. She
opened the door
and found it unlocked. She found the deceased lying
on her bed which was full of blood. There appeared to be no forced
entry to
her flat as the key was still hanging inside the lock of the
door. Everything appeared to be in an orderly state, except cupboards
that were opened.
[4]
A brick covered in knitted wool was found on
the scene and a blue Nokia 3100 cell phone and bank cards belonging
to the deceased
were reportedly missing. The brick was taken to the
forensic laboratory for testing. No evidence regarding the DNA test
results
found on this brick was led during the trial.
[5]
Investigations revealed that the deceased’s
phone was used with a cell phone number belonging to one Moses Muller
{‘Muller’).
Muller told the police that he bought the
cell phone from Mirza Naseer (‘Naseer’) an owner of a
cell phone shop known
as Cell &Leather Emporium on 27 March 2009.
The investigating officer, Frank Bailey {‘Bailey’)
visited Naseer who
alleged that he had bought the cell phone from the
appellant and sold it to Muller. Naseer gave Bailey a copy of the
appellant’s
identity document. The cell phone was positively
identified by the deceased’s son, D.S. as the one that belonged
to the deceased.
[6]
According to both Muller and Naseer there was
no sim card in the phone, when it was sold to them. Forensic
investigations revealed
that certain transactions were made between
the appellant’s and deceased’ cell phone. The cell phone
still had the
photograph of J.P.S. niece and a few telephone numbers
that he recognised. An analysis of the records from MTN revealed that
there
was an exchange of sim cards between the appellant’s hand
set and the one belonging to the deceased. An internet connection
was
made at various intervals during the early hours of 20 March 2009. No
telephone numbers were dialed.
[7]
In May 2009 the appellant was arrested on
charges of murder and robbery with aggravating circumstances. The
appellant admitted to
have been in possession of the deceased’s
cell phone during the alleged period of 20 March 2009. He however
denied that he
murdered and robbed the deceased. His version was that
the cell phone was sold to him by three coloured men whom he met
outside
Dungeon's Sports Bar where he had drinks at approximately
1:20 in the morning.
[8]
The appellant also admitted that he had visited
his girlfriend Zinzi Marco (‘Marco’), who is a caregiver
at H [….]
old age home on the night of 19 March 2009. He
however denied that he remained in her room when Marco left for her
night shift.
His version was that he left at the same time as Marco
and proceeded to Nicole’s Pub. He left Nicole’s Pub at
approximately
21:00 to Dungeon’s Bar where he bought the Nokia
cell phone from the three coloured guys.
[9]
According to the appellant, these three men
looked suspicious and it did cross his mind that the cell phone might
be stolen. He
bought it anyway with an intention to sell it later as
he needed extra cash. He spent a considerable amount of time at the
parking
lot, trying to kill time as he waited for Marco to return
from work. He went to Marco in the morning but did not stay for long
because she wanted to sleep. This version was different to what the
appellant had told the police in the warning statement. There
were
also numerous contradictions between Marco and the appellant’s
testimony in many respects.
The trial
court ultimately rejected the appellant’s version as not being
reasonably possibly true.
[10]
It is submitted on behalf of the appellant that
murder was not proved by the state beyond a reasonable doubt and the
magistrate
misdirected himself when he found that that murder was
proven. The state could not exclude the possibility that the deceased
was
killed by someone else. The appellant’s counsel has however
conceded that the theft conviction was correct as theft was a
continuous crime.
[11]
With regards to sentence, it is the appellant’s
submission that the magistrate misdirected himself by not taking into
account
the appellant's youth, the fact that he had no previous
convictions in relation to the crime in question, the period of
incarceration
whilst awaiting trial and other personal factors. It is
submitted on behalf of the appellant that he is a perfect candidate
for
rehabilitation.
Evaluation
[12]
The state's case rests on circumstantial and
real evidence. The manner in which a court deals with circumstantial
evidence particularly,
when in a case such as the present, it is
central to the disposition of the case, is by way of inferential
reasoning. The two cardinal
principles in this connection are:
‘(1)
The inference sought to be drawn must be consistent with all the
proved facts, if it is not, the inference cannot be
drawn. (2) The
proved facts should be such that they exclude every reasonable
inference from them, save the one sought to be drawn.
If they do not
exclude other reasonable inferences, then there must be doubt whether
the inference sought to be drawn is correct.’
(See R v Biom
1939 AD 188
at 202 to 203).
[13]
Furthermore, the Court must take into account
the cumulative effect of the evidence as a whole and not treat
evidence in a piece-meal
fashion. See S v Reddy 1996(2) SACR 1 (A) at
10B to D.
[14]
A distinction must be made between speculation
and inference which can be reasonably drawn. In S v Essak and another
1974 (1) SA
(A), at 16D referring to the remarks of Lord Wright in
Casweli v Poweii Duffryn Associated Collieries (1939) 3 Ail ER 722 at
p733
169 Muller, JA said the following:
‘Inference
must be carefully distinguished from conjecture or speculation. There
can be no inference unless there are objective
facts from which to
infer the other facts which it is sought to establish. In some cases
the other facts can be inferred with as
much practical certainty as
if they had been actually observed. In other cases the inference does
not go beyond reasonable probability.
But if there are no positive
proved facts from which the inference can be made, the method of
inference fails and what is left
is mere speculation or conjecture.’
[15]
In my view, the state was obliged to present
facts from which an inference as set out in Biom supra could be drawn
that the appellant
killed and robbed the deceased. There are missing
links in the state’s case in my view. Apart from the proven
facts that
the appellant was at the old age home visiting his
girlfriend on the evening of 19 March 2009 and the deceased’s
cell phone
was in his possession on the morning of 20 March 2009
shortly before the deceased’s body was found, no evidence
linking him
to the scene of the crime was presented; for example his
being seen around the fiat of the deceased at a particular time that
evening.
There were no DNA test results presented to place him on the
scene.
[16]
In my view, the conclusion drawn by the
magistrate from the proven facts was not the only reasonable
inference that could be drawn
from the prevailing circumstances.
There was a reasonable possibility that the deceased was murdered by
someone else.
[17]
I am mindful of the fact that the appellant's
version had inherent contradictions. The Court however does not have
to believe the
appellant’s version inclusive of ail its
details, it suffices for the Court to find that the version of the
accused is reasonably
possibly true. Most importantly though is that
the onus of proof rests on the state to prove the guilt of the
accused beyond a
reasonable doubt, it is not on the accused. This
entails proving all the elements of the crime with which the accused
is charged.
This applies even where the evidence is circumstantial.
This must be done having regard to at) the evidence before the Court.
The
established test as set out in S v Van der Meyden
1999 (1) SACR
447
(W) at449j-450b, is as follows:
‘The
proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond reasonable doubt,
and the
logical corollary is that he must be acquitted if it is reasonably
possible that he might be innocent. The process of reasoning
which is
appropriate to the application of that test in any particular case
will depend on the nature of the evidence which the
court has before
it. What must be borne in mind, however, is that the conclusion which
is reached (whether it be to convict or
to acquit) must account for
all the evidence. Some of the evidence might be found to be false;
some of it might be found to be
unreliable; and some of it might be
found to be only possibly false or unreliable, but none of it may
simply be ignored.’
[18]
When faced with two diametrically opposed versions the Court ought to
give the accused benefit
of doubt. Whilst it was proved that the
appellant visited his girlfriend at H […] the night before the
body of the deceased
was found and the deceased phone was in his
possession, no other evidence was tendered placing him on the scene
of crime on 19
or 20 March 2009. The Court cannot speculate in the
absence of such evidence. In R v Ndhlovu
1945 AD 369
at 386, the
Court stated as follows:
'the
jury should not speculate on possible existence of matters upon which
there is no evidence or the existence of which cannot
reasonably be
inferred from the evidence.
[19]
The magistrate spent a considerable amount of time pointing out the
shortcomings and discrepancies found
in the appellant’s version
without looking at whether the elements of murder were proved by the
state beyond reasonable doubt
in the first instance.
[20]
The Court is sympathetic to the fact that the
question of who murdered the deceased still needs to be answered. I
however cannot
convict an accused person where such conviction is not
supported by evidence, in this case there is a reasonable possibility
that
the deceased could have been murdered by someone else other than
the appellant. Taking into account the test established on how
circumstantial evidence should be treated, I am not satisfied that
the state has proved its case beyond reasonable doubt.
[21]
It follows therefore that the conviction of
murder cannot stand, in light of the findings on conviction, it is
not necessary to
deal with sentence in relation to that charge. The
conviction of theft has been accepted on behalf of the appellant, in
light of
this, the conviction would stand. I deem the two year term
of imprisonment imposed by the magistrate in relation to the theft
charge
to be appropriate in the circumstances, it should accordingly
be left undisturbed.
[22]
For these reasons the following order is made:
1.
The appeal against conviction and
sentence of the appellant in relation to murder is upheld and the
magistrate’s order in
that regard is accordingly set aside and
replaced with the following order;
‘the accused is acquitted of the murder
charge’
2.
Conviction and sentence on the theft
charge are confirmed.
N P BOQWANA
I
agree.
D
M DAVIS