STATE APPEAL ON CONVICTION SUCCEEDED

Director of Public Prosecutions, Gauteng v Pistorius [2016] 1 All SA 346 (SCA)
Criminal law – Murder – Defence – Putative private defence – A defence of putative private defence implies rational but mistaken thought – Respondent failing to establish a factual foundation for his alleged genuine belief of an imminent attack upon himself.
Criminal law – Murder – Intention – Dolus eventualis – Whether, on the primary proven facts, considering all of the evidence relevant to the issue, and applying the correct legal test, the inference had to be drawn that the respondent had acted with dolus eventualis when he fired fatal shots – Court was satisfied that in firing the fatal shots, respondent must have foreseen, and therefore did foresee, that whoever was behind door through which shots were fired might die, but reconciled himself to that event occurring – Shooting in such circumstances establishing dolus eventualis on his part, and identity of victim was irrelevant to his guilt.
Criminal law – Murder – Intention – Whether perpetrator must know or appreciate the identity of the victim at relevant time – Although a perpetrator’s intention to kill must relate to the person killed, that does not mean that a perpetrator must know or appreciate the identity of the victim – Incorrect appreciation of identity of victim not determinative of whether perpetrator had the requisite criminal intent.
Criminal procedure – Appeal – Reserved points of law – Section 319 of the Criminal Procedure Act 51 of 1977 – State can only have a question of law reserved should there be an acquittal – Previous limitation on the State’s right to appeal on a point of law as applying only where there has been a total acquittal no longer considered to be good law.
What was common cause in this case was that the respondent had shot and killed his girlfriend at his home in a secured complex. What was at issue was whether in doing so, he had committed the crime of murder (involving the intentional killing of another), or the lesser offence of culpable homicide (involving the negligent killing of another). The trial court found him guilty of the lesser offence.

The appellant contended that the trial court erred on certain legal issues, and appealed on reserved questions of law. The appeal related solely to count 1 of the indictment, viz the alleged murder of the deceased.
In terms of section 258 of the Criminal Procedure Act 51 of 1977 (the “Act”), culpable homicide is a competent verdict on a charge of murder. Therefore, having found that the State had not proved that the accused was guilty of murder but had shown that he was guilty of culpable homicide, the trial court relied on section 258 to convict him on the latter charge.
The reserved questions of law were whether the principles of dolus eventualis were correctly applied to the accepted facts and the conduct of the accused, including error in objecto; whether the court correctly conceived and applied the legal principles pertaining to circumstantial evidence and/or pertaining to multiple defences by an accused; and whether the court was correct in its construction and reliance on an alternative version of the accused – and that such alternative version was reasonably possibly true.

Held – Section 319 of the Act provides for the reservation of a question of law for consideration by the Appellate Division. The section makes it clear that the State can only have a question of law reserved should there be an acquittal. The court has previously held that the acquittal envisaged by the section must be a total acquittal, and did not include a case in which a competent verdict had been entered in place of the charge upon which the accused had been arraigned. The respondent in this case was convicted on the competent verdict, with the result that there was no total acquittal. However, the limitation on the State’s right to appeal on a point of law as referred to above was held by the Constitutional Court not to be good law. There was therefore no objection to the appeal proceeding on the points of law reserved by the trial court.

Turning to the issues in the appeal, the Court stated the need to have regard to the factual background to the points of law debated on appeal. The respondent was a double amputee, relying on prosthetics for mobility. He and the deceased had been involved romantically for just over three months when the fatal incident occurred. On the night in question, the deceased was sleeping over at the respondent’s home. She was fatally injured when the respondent fired four shots, with a pistol, through the door of a toilet cubicle in the bathroom adjacent to his bedroom. The State alleged that the respondent had threatened the deceased during the course of an argument, that she had locked herself into the toilet cubicle in the bathroom to escape from him, and that he had then fired the fatal shots through the door and killed her. The respondent’s version, on the other hand, was that he had risen from bed in the early hours of the morning, and was aware that the deceased was awake in the bed next to him as she had spoken to him. He got out of bed to switch off two fans which had been left running, and had just drawn the curtains when he heard the sound of a window opening in the bathroom. He alleged that he had immediately thought that there was an intruder who had entered the house through the bathroom window, and grabbed his gun, whispered to the deceased to get down and call the police, before proceeding to the bathroom door. He stated that he was overcome with fear, and was screaming at the intruder to get out of his house, and to the deceased to get down on the floor and to phone the police. He saw that the door to the toilet was closed, and hearing a noise coming from inside the toilet, promptly fired four shots at the door. It was only then that he retreated into the bedroom and realised that the deceased was not there, and it dawned on him that it could be her in the toilet. However, the respondent’s explanation for having fired at the toilet door did vary during his testimony.
The Court explained the ambit of the appeal. As a general rule, an appeal is a complete rehearing, without the leading of evidence, in which a trial court’s conclusions of both fact and law may be challenged by having regard to the evidence on record. The considerations differ somewhat in a case such as this, where the State seeks to appeal against the acquittal of an accused and the appeal is brought under the provisions of section 319 of the Criminal Procedure Act. As opposed to an accused who has the benefit of appealing against a conviction based on alleged incorrect factual findings, the State may not appeal against an acquittal based solely on findings of fact. The State has no right to appeal except where there is a statutory right bestowed on it to do so. In this instance, its right was limited to the three questions of law reserved. Thus, the main issue before the present Court was whether the trial court had erred in regard to the issue of dolus eventualis.
In order to prove murder, the State had to establish that the perpetrator committed the act that led to the death of the deceased with the necessary intention to kill, known as dolus. Mere negligence would be insufficient. The two forms of intention which apply to murder are dolus directus and dolus eventualis. Dolus directus is present where a person committed the offence with the object and purpose of killing the deceased.Dolus eventualis arises if the perpetrator foresees the risk of death occurring, but nevertheless continues to act appreciating that death might well occur. Significantly, the wrongdoer does not have to foresee death as a probable consequence of his actions. It is sufficient that the possibility of death is foreseen, and is coupled with a disregard of that consequence.
On the first question of law, it had to be determined whether the trial court properly applied the above principles to the facts that it had found had been proved. The trial court questioned how the respondent could reasonably have foreseen that the shots he fired would kill the deceased or whoever was behind the door. The present Court held that the trial court’s question wrongly applied an objective rather than a subjective approach to the question of dolus. The issue was not what was reasonably foreseeable when the respondent fired at the toilet door, but whether he actually foresaw that death might occur when he did so. Thus, the critical distinction was between subject foresight (what actually went on in the mind of the accused) and objective foreseeability (what would have gone on in the mind of a reasonable person in the position of the accused). That distinction must not be blurred. The Court held that the trial court’s conclusion that the respondent had not foreseen the possibility of death occurring as he had not had the direct intent to kill stemmed from the application of the incorrect test.
A further error identified in the trial court’s conclusions related to whether the respondent knew that the person in the toilet was the deceased. The trial court’s conclusion that dolus eventualis had not been established was premised upon an acceptance that the respondent, believing the deceased to be in bed, did not foresee that she was the person in the toilet. The reasoning was that as the respondent did not foresee that the person in the toilet was the deceased, he could not have foreseen that his action in shooting could cause her death and he could not be held guilty of her murder. Although a perpetrator’s intention to kill must relate to the person killed, that does not mean that a perpetrator must know or appreciate the identity of the victim. The respondent’s incorrect appreciation of who was in the cubicle was not determinative of whether he had the requisite criminal intent. Therefore, in confining its assessment of dolus eventualis to whether the respondent had foreseen that it was the deceased behind the door, the trial court misdirected itself as to the appropriate legal issue. The first point of law reserved was determined in favour of the State.
On the question of the trial court’s assessment of the circumstantial evidence, the appeal court held that in a case such as the present one, while the subjective state of mind of an accused person often only be inferred from the circumstances surrounding the infliction of the fatal injury, the inference to be properly drawn must be consistent with all the proven facts. The trial court must consider the totality of the evidence led to determine whether the essential elements of a crime have been proved. In the present case, the trial court’s assessment of material evidence was criticised. An important instance of the trial court’s disregarding of material evidence was evident in its handling of the testimony of the police forensic expert who reconstructed the crime scene. His testimony was circumstantial evidence crucial to a decision on whether the respondent, at the time he fired the fatal four shots, must have foreseen, and therefore did foresee, the potentially fatal consequences of his action. The second question of law was accordingly also answered in favour of the prosecution.
In light of the above findings, the Court had to decide on what the proper course of action should be. In terms of section 324 of the Criminal Procedure Act 51 of 1977, where there has been a misdirection of law, as was found to have occurred in this case, proceedings may be commenced afresh before another judge. That was not considered an appropriate course in this case. Instead, the Court found it to be in the interests of justice to consider whether on the facts found proved, the trial court erred in drawing the inference it did as to dolus eventualis. The question then, was whether, on the primary proven facts, considering all of the evidence relevant to the issue, and applying the correct legal test, the inference had to be drawn that the respondent had acted with dolus eventualis when he fired the fatal shots. The Court was satisfied that in firing the fatal shots, the respondent must have foreseen, and therefore did foresee, that whoever was behind the toilet door might die, but reconciled himself to that event occurring. That constituted dolus eventualis on his part, and the identity of his victim was irrelevant to his guilt.
Addressing the respondent’s reliance on putative private defence and his assertion that he had believed himself to be under threat because of the presence of an intruder in the toilet, the Court again pointed to the respondent’s contradictory explanations for having fired four shots through the door. A defence of putative private defence implies rational but mistaken thought. Although the respondent, believing that someone was behind the door, might have been anxious, the Court found it inconceivable that a rational person could have believed he was entitled to fire at such person with a heavy calibre firearm, without taking even the most elementary precaution of firing a warning shot. The respondent failed to establish a factual foundation for his alleged genuine belief of an imminent attack upon himself. He therefore acted with dolus eventualis in causing the death of the deceased.
The conclusion was that the conviction and sentence for culpable homicide were set aside and replaced with a conviction of murder. The case was remitted to the trial court for sentencing afresh.

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