S v GCAM-GCAM 2015 (2) SACR 501 (SCA)

Evidence — Confession — Admissibility of — Approach of court to assessment of confessions made by suspects in police custody — Courts need to be especially vigilant — In addition courts need to be sceptical when suspect repudiates confession at first opportunity.

General principles of liability — Common purpose — Common purpose arising from agreement — Requirements — Explicitly abandoned plan to rob first paypoint — Appellant not aware of and played no role in decision to rob second paypoint — Could not have foreseen robbery of second paypoint and loss of lives during course of robbery.

The appellant appealed against his conviction in the High Court on a charge of conspiracy to commit robbery in contravention of s 29 of the Transkei Penal Code Act 9 of 1983; robbery; five counts of murder; and the unlawful possession of automatic firearms, other firearms and ammunition. He was one of four accused at the trial, all of whom were convicted on all counts. He was, however, the only appellant. The convictions arose from the robbery at a paypoint for social grants and pensions, and the deaths of four fellow conspirators and a police official in a subsequent shoot-out in a forest. The evidence against the appellant was that of a co-conspirator who became a state witness, and a confession made by the appellant. The admissibility of this confession was challenged in a trial-within-a-trial, but the presiding judge admitted the confession. From the evidence of the co-conspirator it appeared that the 10 conspirators (allegedly including the appellant) met on the evening before the robbery and put the finishing touches to the plan to rob the pension paypoint after two of the conspirators had reconnoitred it. The next morning the conspirators travelled to the selected paypoint in two vehicles. When they arrived at the scene, those in the leading vehicle became alarmed by the presence of police at the paypoint and abandoned the plans to commit the robbery. They then decided to return home, but fortuitously came across another paypoint, which they robbed. They fled from the scene and drove to a forest, where they split up into two groups of four each. The appellant was allegedly in the other vehicle and had no role in this robbery. The police pursued the conspirators into the forest and fired on them, killing four robbers who were in one group. One police official was shot and killed in the shoot-out. The other group emerged from the forest later that evening and called the appellant to fetch them, which he did. The state argued that, even though the first paypoint was the agreed target of the robbery, the second paypoint was located in the same area and was robbed at about the same time. In the circumstances it was submitted that the second robbery fell within the ambit of the original common purpose to rob. The court also requested the parties on appeal to make written representations on whether the appellant should nevertheless have been convicted as an accessory after the fact, either on the robbery count or the five counts of murder, on the ground that he may unlawfully and intentionally, after the completion of the crimes, have associated himself with the commission of the crimes by helping the perpetrators to evade justice.
Held, as to the convictions on the robbery and murder counts, that the submission of the state in regard to the common purpose was devoid of merit, as the state had not established that the second paypoint was anywhere near the first one. Furthermore, even if they were in the same vicinity, the group’s mandate was to rob the first paypoint and not any other one: that group explicitly abandoned the plan to rob the first one and the appellant was not aware of and played no role in the decision to rob the second paypoint, or in any way actively associated with the group in carrying out the robbery, much less the events later in the forest when the police officer and the four robbery suspects lost their lives. The convictions on the robbery and murder counts therefore could not stand.
Held, further, as to the possession of the ammunition, that it was not alleged in the indictment that the group had a common purpose to possess the arms and ammunition, and the common purpose or conspiracy pertained to the robbery. The fact that parties planning a robbery shared a common state of mind that some of them would carry or use arms to achieve their objective, was not sufficient to make them joint possessors under the Firearms Control Act 60 of 2000. This could only be established by inference, and it had to be the only reasonable inference. This had not been established in the present case.
Held, further, that the judge a quo misdirected himself by approaching the evidence of the appellant, as regards the admissibility of the confession, on the basis that he needed ‘to put up credible versions’ to refute the ‘overwhelmingly strong and convincing evidence’ of the police. All that was required of the appellant was to present a version that was reasonably possibly true, even if it contained demonstrable falsehoods.
Held, further, that, when confronted with confessions made by suspects to police officers while in custody — even when those officers were said to be performing their duties independently of the investigating team — courts had to be especially vigilant. This was because such persons were subject to the authority of the police, vulnerable to the abuse of such authority, and often not able to exercise their constitutional rights before implicating themselves in crimes.
The experience of courts with police investigations of serious crimes had shown that police officers were sometimes known to succumb to the temptation to extract confessions from suspects through physical violence or threats of violence rather than engage in the painstaking task of thoroughly investigating the case. This was why there were safeguards against compelling an accused to make admissions and confessions that could be used against him in a trial. In addition courts had to be sceptical when the state sought to use a confession against an accused where he repudiated it at the first opportunity he was given. This was because ordinary human experience showed that it was counter-intuitive for a person facing serious charges to voluntarily be conscripted against himself. Often it was said that the accused confessed because he was overcome with remorse and penitence, ‘a desire which vanishes as soon as he appears in a court of justice’. That was sometimes true, but was usually not.
Held, further, that the appellant had raised a concrete verifiable alibi, the details of which he disclosed during the state case. The prosecution failed to adduce any evidence to disprove the alibi and it could and should have applied for an adjournment to investigate it and, if necessary, it could have applied to reopen the state case once the appellant had furnished more detail of the alibi during his cross-examination. Its failure to do so meant that the appellant’s alibi could not have been summarily rejected and the court erred in doing so. The conspiracy conviction therefore also fell to be set aside.