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[2014] ZAWCHC 34
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Fillieks and Others v S (A330/13) [2014] ZAWCHC 34 (11 February 2014)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE division, CAPE TOWN)
Case No A330/13
DATE: 11 FEBRUARY
2014
In the matter
between:
Willem
fillieks
.......................................
Appellant
.........................
(Accused
No 2 in the court a quo)
And
the
state
...........................................
Respondent
Court:
griesel, meer & samela jJ
Heard:
27 January 2014
Delivered:
11 February 2014
JUDGMENT
Samela
J:
[1]
The appellant (as the erstwhile accused 2)
and two co-accused appeared in the Worcester Regional Court on
charges of murder, rape
and indecent assault. They all pleaded not
guilty. After evidence was led, they were all found guilty of murder,
whereas accused
no 3 was also convicted of indecent assault. The
matter was thereupon referred to the High Court for sentencing in
terms of s 52(1)
of Act 105 of 1977, where the convictions were
confirmed by Hlophe JP. The appellant was sentenced to 18 years
imprisonment. With
the leave of the court a quo, he now appeals
against his conviction.
Factual
background
[2]
From the record of the regional court
proceedings, the following facts are common cause: During the evening
of the 24 February 2004,
the appellant was a passenger in a motor
vehicle driven by accused 1. In the motor vehicle there were also
accused 3, one Jerome
(accused 1’s cousin) and three females.
The female passengers were the deceased, E.......... W..... and J....
A....., both
of whom became State witnesses.
[3]
The motor vehicle was driven to a deserted
area on the outskirts of Worcester where accused 1 informed the
others that they were
looking for dagga, which had been hidden there
on a previous occasion. The motor vehicle was stopped in the vicinity
of a dam where
they all got out. The appellant together with his two
co-accused walked up the dam wall where they stood talking for
approximately
5 to 10 minutes. They returned to the vehicle. Accused
3 called the deceased, put his arm around her neck and she willingly
accompanied
him in the direction of the dam. Approximately five
minutes later, the appellant followed them. These three were out of
sight,
whilst the rest of the group waited at the motor vehicle.
[4]
After approximately 15 to 20 minutes, the
group at the vehicle heard the deceased calling in distress: ‘Eina,
my kop!’
She also called accused 1’s name, ‘Niel,
Niel, Niel’. Accused 1 got out of the motor vehicle and walked
in the
direction of the dam. After approximately 10 to 15 minutes he
returned to the motor vehicle. His clothes were wet. A short while
later, the appellant and accused 3 also returned to the motor
vehicle. Their clothes were also wet (‘sopnat’). The
deceased did not return to the motor vehicle. The group thereupon
left the scene and drove back to Worcester. When one of the females
enquired as to the whereabouts of the deceased, accused 1 abruptly
informed them: ‘enigeen wat praat, gaan ook verdwyn’.
[5]
Some two weeks later the body of the
deceased was discovered in the dam amongst the reeds after E....
W.... had reported the matter
to the police and pointed out the scene
to them. There was a 7cm gaping wound on the left of the neck,
posterior, with maggot infestation.
Due to decomposition of the body,
Dr Erasmus, the pathologist who conducted the post-mortem, was unable
to determine whether the
cause of the deceased’s death was the
wound on the neck or drowning.
[6]
None of the state witnesses observed what
took place in the vicinity of the dam. It is thus apparent that the
State was unable to
present any direct evidence as to the commission
of the crime, relying only on circumstantial evidence. The
appellant and
his co-accused did not give evidence, although each of
them made exculpatory statements to the police, incriminating
one or
more of their co-accused.
Legal
principles
[7]
In drawing inferences from the
circumstantial evidence the court was required to apply the well
known test in
R v Blom
1939 AD 188
at 202 203.
[8]
The
doctrine of common purpose has been summarised by Snyman,
[1]
as follows:
‘
1.
If two or more people, having a common purpose to commit a crime, act
together
in order to achieve that purpose, the conduct of each of
them in the execution of that purpose is imputed to the others.
2.
In a charge of having committed a crime which involves the causing
of
a certain result (such as murder), the conduct imputed includes the
causing of such result.
.
. .
4.
A finding that a person acted together with one or more other persons
in a common purpose is not dependent upon proof of a prior
conspiracy. Such a finding may be inferred from the conduct of
a person or persons.
.
. .
5.
A finding that a person acted together with one or more other persons
in a common purpose may be based upon the first-mentioned person’s
active association in the execution of the common purpose.
However,
in a charge of murder this rule applies only if the active
association took place while the deceased was still alive and
a
mortal wound or mortal wounds had been inflicted by the person or
persons with whose conduct such first-mentioned person associated
himself.’
[9]
Regarding
prima
facie
evidence, the court in
Ex
parte Minister of Justice: In Re R v Jacobson & Levy
,
[2]
said:
‘“
Prima
facie
” evidence in its more usual
sense, is used to mean
prima facie
proof of an issue the burden of proving which is upon the party
giving that evidence. In the absence of further evidence from the
other side, the
prima facie
proof becomes conclusive and the party giving it discharge his
onus
.
If the party, on whom lies the burden of proof, goes as far as he
reasonably can in producing evidence and that evidence “calls
for an answer” then, in such case, he has produced
prima
facie
proof, and, in the absence of an
answer from the other side, it becomes conclusive proof and he
completely discharges his
onus
of proof’.
[10]
Regarding
the failure of an accused to rebut a
prima
facie
case,
the Supreme Court of Appeal, in
S
v Boesak
,
[3]
held:
‘
But
one of the main and acknowledged instances where it can be said that
a
prima facie
case becomes conclusive in the absence of rebuttal is where it lies
exclusively within the power of the other party to show what
the true
facts were and he or she fails to give an acceptable explanation.’
[11]
On
further appeal to the Constitutional Court,
[4]
Langa DP, writing for a unanimous court, followed a similar approach:
‘
The
fact that an accused person is under no obligation to testify does
not mean that there are no consequences attaching to a decision
to
remain silent during the trial. If there is evidence calling
for an answer, and an accused person chooses to remain silent
in the
face of such evidence, a court may well be entitled to conclude that
the evidence is sufficient in the absence of an explanation
to prove
the guilt of the accused. Whether such a conclusion is justified will
depend on the weight of the evidence. What is stated
above is
consistent with the remarks of Madala J, writing for the Court, in
Osman
and Another v Attorney-General, Transvaal
[5]
,
when he said the following:
“
Our
legal system is an adversarial one. Once the prosecution has
produced evidence sufficient to establish a
prima
facie
case, an accused who fails to produce evidence to rebut that case is
at risk. The failure to testify does not relieve the
prosecution of its duty to prove guilt beyond reasonable doubt.
An accused, however, always runs the risk that, absent any
rebuttal,
the prosecution’s case may be sufficient to prove the elements
of the offence. The fact that an accused has
to make such an
election is not a breach of the right to silence. If the right
to silence were to be so interpreted, it would
destroy the
fundamental nature of our adversarial system of criminal
justice.”
[6]
’
Discussion
[12]
I am of the view that the State succeeded
in producing sufficient evidence to establish a
prima
facie
case. On the facts found proved
by the regional magistrate, it was common cause that the appellant
and his two co-accused had walked
to the dam wall where they stood
talking for approximately 5 to 10 minutes, after which accused 3
disappeared with the deceased
in the direction of the dam. In the
absence of contradictory evidence, we agree with the finding of the
regional magistrate that
the only inference to be drawn is that the
three accused discussed and planned the sequence of events which
followed immediately
thereafter and which led to the murdering of the
deceased. It seems to us that the discussion which took place at the
dam wall
was correctly found by the regional magistrate to constitute
a common purpose to carry out the plan. The conduct of the appellant
and his co-accused in talking at the dam; accused 3 disappearing with
the deceased; the appellant following them; the distress
screams by
the deceased requesting assistance from accused 1; the
appellant placing himself on the scene while the deceased
was alive
and the stabbing of the deceased; all this conduct makes it perfectly
clear that there was a common purpose amongst the
accused to kill the
deceased.
[13]
The ball was therefore in appellant’s
court to answer the overwhelming evidence against him. The appellant,
on the other hand,
was at risk as he failed to produce evidence that
rebut the State’s case. The appellant, though not
constitutionally compelled
to give evidence in rebuttal of the
prosecution’s case, put himself at a disadvantage. In short, he
had a case to answer.
Consequently, I am of the view that the
appellant ran the risk that, absent any rebuttal, the state’s
case was sufficient
to prove the elements of the offence.
[14]
I am of the view that the regional
magistrate correctly applied the common purpose doctrine principles
as well as the circumstantial
evidence principles. Looking at the
totality of the evidence produced in this matter, I am unable to find
any fault with the regional
magistrate convicting the appellant, nor
with the confirmation of such conviction by the court a quo.
Order
[15]
For the reasons set out above, the appeal
is dismissed.
M
I Samela
Judge
of the High Court
Griesel
J:
I agree. It is so ordered.
B
M Griesel
Judge
of the High Court
Meer
J:
I agree.
Y
S Meer
Judge
of the High Court
[1]
CR
Snyman,
Criminal
Law
5ed at 264 265.
[2]
1931
AD 466
at 478 9.
[3]
[2000] ZASCA 112
;
2000
(3) SA 381
(SCA) para 47.
[4]
S
v Boesak
[2000] ZACC 25
;
2001 (1) BCLR 36
;
2001 (1) SA 912
para 24.
[5]
1998
(11) BCLR 1362 (CC); 1998 (4) SA 1224 (CC).
[6]
Id
at para 22.