STATEMENT IN TERMS OF SECTION 112(2) CPA DOESN’T BOUND COURT

S v ASELE 2016 (1) SACR 13 (NCK)
Plea-Plea of guilty — Written statement in terms of s 112(2) of CPA — Concession by state that statement correct — Effect of — Accused conceding he had dolus eventualis but claiming he lacked intention to kill — Court inferring dolus directus, despite state’s concession accused had only dolus eventualis — Court not bound by statement — Inference that accused had dolus directus only reasonable inference to be drawn in circumstances.

The appellant was convicted in the High Court on his plea of guilty to charges of kidnapping, robbery with aggravating circumstances, and murder. He was sentenced to 10 years’ imprisonment for the kidnapping; 15 years’ imprisonment for the robbery; and to life imprisonment for the murder. The sentences were ordered to run concurrently. He appealed only against the sentence of life imprisonment. The evidence was to the effect that the appellant and three other men were hitchhiking when they saw the deceased alight from his vehicle to relieve himself. They decided to rob the deceased. The deceased tried to escape but fell and was kicked against the head by his attackers, one of whom produced a knife (of which the appellant until then had been unaware), and stabbed him. They bound the deceased’s arms and feet and loaded him into the trunk of his vehicle which they then drove off in. They stopped a while later and the attacker with the knife took the deceased and stabbed him in his chest. He fell down and lay there while the four of them took all his belongings from the vehicle and left the scene. They returned later to take his vehicle, at which stage the deceased was still where they had left him. His body was only found sometime later in an advanced state of decomposition.
It was contended for the appellant on appeal that the trial judge had misdirected herself in that, in his statement in terms of s 112(2) of the Criminal Procedure Act 51 of 1977, the I appellant denied having had the direct intention to kill the deceased but admitted having foreseen that the kick to the head and the stab wounds could result in the death of the deceased, and that he had nevertheless assisted in taking the deceased and associated himself with the knife attack. The prosecutor had accepted the appellant’s plea of guilty, together with his factual version in his statement, and the trial judge therefore had no right to find that the appellant had formed the direct intent to kill the deceased.

It was contended that the trial judge had furthermore misdirected herself in finding that she was not convinced that the appellant had not promised to cooperate with the prosecution and to testify against his brother and one other accused in the trial, with the ulterior motive of actually eventually helping his brother. In these circumstances the trial judge had erred in imposing a sentence of life imprisonment in respect of the murder.

Held, per the majority, that the fact that state counsel admitted the appellant’s plea as it stood did not assist the appellant. The trial court did not read into the plea more than what the appellant admitted. His statement that he was guilty of dolus eventualis was a legal conclusion which he was not competent to make. That fell within the competency of the court and, to the extent that state counsel conceded that only dolus eventualis had been established, that erroneous concession did not bind the court on appeal.
Held, further, on the evidence, the appellant already knew one of his colleagues was armed with a knife and was bloodthirsty, and the irresistible inference, which was the only one on the facts, was that the deceased must have died almost instantly when he was stabbed. By leaving him bound, it fortified the conclusion that the appellant and his partners in crime desired the deceased’s death. How it could be suggested or argued that there was no premeditation or direct intention to murder the deceased was difficult to fathom.The appeal was dismissed.

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