COURT’S DUTY IN ASSESSING EVIDENCE

Shange and others v S [2017] 3 All SA 289 (KZP)

Criminal procedure – Criminal trial – Assessment of evidence – Court’s duties – A court must neither look at evidence implicating the accused in isolation to determine whether there is proof beyond reasonable doubt, nor should it look at exculpatory evidence in isolation to determine whether an accused’s version is reasonably possibly true – Correct approach is to consider all the evidence in the light of the totality of the evidence of the case – A court of appeal, shall not interfere in the findings of the trial court in regard to conviction unless there is a material misdirection which resulted in an incorrect conclusion being reached.

Evidence – Circumstantial evidence – In drawing any inferences from circumstantial evidence, the inference sought to be drawn must be consistent with all the proven facts; and the proven facts must be such that they exclude every other reasonable inference.

In October 2006, two cash-in-transit vehicles were ambushed at two separate places. The incidents gave rise to a plethora of charges being brought against the appellants, and the appellants’ conviction and sentencing on a range of charges.

In argument before the present Court on appeal, the appellants made numerous concessions. The Court, accordingly, clarified the convictions remaining in issue on appeal.

Held – The issues for determination were whether any of the appellants should have been convicted on the counts relating to the theft of motor vehicles; whether the accused who were convicted on four counts of possession of firearms and ammunition should have been convicted in that regard; whether eight of the appellants who had conceded the correctness of their conviction on counts relating to one of the incidents should also be convicted on counts relating to the attempted robbery and attempted murders in the other incident; whether eight of the appellants, who had made no concessions, should have been convicted on the basis of common purpose; and whether any of the appellants should have been convicted of certain further subsidiary offences – which would entail a consideration of the terms of any alleged prior agreement amongst the appellants and whether the State had proved a common purpose in respect of those offences beyond reasonable doubt. Finally, the Court would consider the appeal against the sentence of life imprisonment on a count of murder, and if so which determinate sentences should be directed to run concurrently.

The evidence against the appellants was entirely circumstantial, being based largely on records of cell phone numbers used by the appellants and/or items found in their possession after their arrest. A court is enjoined to examine all the evidence. It must neither look at evidence implicating the accused in isolation to determine whether there is proof beyond reasonable doubt, nor should it look at exculpatory evidence in isolation to determine whether an accused’s version is reasonably possibly true. The correct approach is to consider all the evidence in the light of the totality of the evidence of the case. A Court of Appeal shall not interfere in the findings of the trial court in regard to conviction unless there is a material misdirection which resulted in an incorrect conclusion being reached. An appeal lies against the conclusions reached and not against the trial court’s reasons for convicting.

In drawing any inferences from circumstantial evidence, the inference sought to be drawn must be consistent with all the proven facts; and the proven facts must be such that they exclude every other reasonable inference.

In examining the offences, the Court began with four counts of the theft of motor vehicles. The State alleged that the vehicles were stolen to be used in the primary robberies and were thereafter abandoned at the respective scenes. It was argued that with theft being a continuous crime, it made no difference that the appellants were not involved in the original stealing of the motor vehicles but that their subsequent participation in permanently depriving the owners of their vehicles made them just as guilty as the original thief. The Court found that reasonable doubt existed as to how the appellants came to be in possession of the vehicles. The appellants had to benefit from such doubt, and the convictions and sentences on the four counts were set aside.

Next the Court examined the counts relating to contravention of the Firearms Control Act 60 of 2000. The issue was whether joint possession of the firearms found in one of the vehicles was proved on the part of the relevant appellants. The Court held that the bag containing the rifles could have been carried into the vehicle by a single but unidentified accused. The convictions and sentences in respect of the counts of joint possession were thus also set aside.

The next question addressed was whether the appellants who had admitted liability in respect of the robbery and the secondary offences at one location (Charters) and whose cell phone records place them at or near Charters (which meant they could not simultaneously have been at the other location) could be guilty of the attempted robbery at the other location (Penicuik) when they could not have been present physically. The only possible basis upon which criminal liability can be imputed to them would be common purpose. The Court set out the factual matrix, and held that it pointed to an interwoven web of association in the robberies which in turn pointed to the guilt of the appellants, unless they could advance an explanation which could be said to be reasonably possibly true. They failed to do so and, accordingly, their guilt in respect of both robberies was established.

On the issue of the convictions of a number of the appellants on charges of attempted robbery with aggravating circumstances and attempted murder, the Court examined the facts in respect of each of the affected appellants and found no grounds upon which to interfere with any of the convictions and sentences other than for one of the appellants.

Leave to appeal against sentence was granted only in respect of the murder of a security guard near Penicuik. As the Court had concluded that all the appellants should be acquitted on that count, the sentence of life imprisonment fell away and the only issue remaining to be considered was which sentences should be directed to run concurrently. The Court held that the cumulative effect of the sentences imposed in respect of the secondary offences at each of the scenes was best ameliorated by directing that a portion thereof run concurrently with sentence imposed in respect of the primary offences. The effective sentences imposed in respect of each of the appellants was 25 years’ imprisonment. The fourteenth appellant was given an additional three months on top of the 25 years’ imprisonment.

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