COMMON PURPOSE – FAILURE TO STATE IN CHARGE NOT FATAL IN CASU

Ntuli and another v S [2018] 1 All SA 780 (GJ)

Criminal law and procedure – Doctrine of common purpose – Failure to state in charge sheet that State would rely on doctrine of common purpose not fatal.

Criminal law and procedure – Presiding judge – Application for recusal – Allegation of bias and judge’s prior dealing with appeal not leading to reasonable apprehension of prejudice, with result that recusal application was refused.

Criminal law and procedure – Unlawful possession of firearms – Section 3(1) of the Firearms Control Act 60 of 2000 provides that no person may possess a firearm without holding a licence for it – Term “possess” for the purposes of section 3(1) can include joint possession of a weapon by one of the perpetrators of a crime on behalf of another.

The appellants were convicted on one count of robbery with aggravating circumstances arising from a housebreak; four counts of the unlawful possession of firearms; and three counts of attempted murder. The first appellant was sentenced to an effective twenty years’ imprisonment, while the second appellant was sentenced to an effective twenty five years’ imprisonment. They obtained special leave to appeal to the Full Court against the whole of the convictions and the sentences imposed.

The convictions arose from a house robbery in which the complainant was held up and robbed as he entered his home.

The second appellant brought an application for the recusal of the judge (Monama J) hearing the appeal on the grounds that the judge had presided in the appeal of the second appellant’s co-accused, and that at that hearing the second appellant’s appeal was struck from the roll after an ill-tempered attitude adopted by the judges.

Held – The second appellant had perceived Monama J to have been biased by refusing to hear his appeal at the time it was enrolled together with that of the co-accused. It emerged that the second appellant’s Counsel had not advised him of the true reasons for his appeal being struck from the roll. The present Court explained that the striking of the second appellant’s appeal from the roll was done in his own best interests. Furthermore, the court’s robust dealing with the second appellant’s advocate was due to the advocate’s unacceptable manner in addressing members of the court. The allegation of bias was therefore unfounded. The next question was whether a judge who presided in an appeal of one accused ought to sit in a later appeal brought by a co-accused. Monama J was one of the presiding judges at the previous set down of the second appellant’s and his co-accused’s appeal. There was nothing in the judgment with which Monama J concurred, when upholding the co-accused’s appeal to create any inference in respect of the court’s attitude towards the merits of the case vis a vis the second appellant. It was for those reasons that the application for recusal was dismissed.

In his grounds of appeal, the first appellant submitted that the trial court could not have found that the State had proved its case beyond a reasonable doubt because the complainant was unable to identify him. He also submitted that the only identification was by a police officer who came on the scene just after three suspects were observed exiting the house but he could not identify any of them by their facial characteristics. However, the first appellant was found hiding among the shrubs inside the complainant’s property, and right next to where he was found the police retrieved a firearm and a set of keys for the motor car the robbers had been driving. The car was still on the premises near to where the first appellant had concealed himself. He could only have been on the complainant’s property because he was one of the robbers. No other inference was possible and the first appellant’s version was not reasonably possibly true.

The Court also found no merit in the grounds of appeal advanced by the second appellant.

The convictions on the charge of attempted murder were based on the fact that at least two of the robbers had fired at the policemen while in the process of fleeing the complainant’s house. The magistrate found that the robbers fired the shots in order to avoid arrest. Although the magistrate did not expressly make a finding as to which accused had fired the shots, it was evident that he relied on common purpose to cover the situation of any accused who had not personally fired at the police. The application of the doctrine of common purpose was justified on the facts. An aspect that had to be addressed was that the charge sheet did not state that the prosecution would rely on the doctrine of common purpose, nor did it appear that the prosecution mentioned it by the time the appellants were asked to plead. Nevertheless, it was evident from the charge sheet that the State was relying on common purpose, and Counsel certainly understood that the case his clients had to meet was one based on common purpose. Moreover a failure to allege common purpose cannot per se be fatal. Accordingly, while the grounds for culpability differed, both appellants were correctly convicted of the attempted murder charges.

On the counts of unlawful possession of firearms, the appellants were each found with different firearms traceable to the robbery. The magistrate found that each appellant had the common purpose to possess the four firearms. Section 3(1) of the Firearms Control Act 60 of 2000provides that no person may possess a firearm without holding a licence for it. The term “possess” for the purposes of section 3(1) can include joint possession of a weapon by one of the perpetrators of a crime on behalf of another. The Court found that the Act contemplates the situation of more than one person deciding to rob another of a firearm. It cannot just be the person who physically holds the firearm for the benefit of the group of robbers who is culpable if it is the robbers’ intention that he holds for their benefit as well.

In their appeal against sentence, the appellants argued that the magistrate should have found substantial and compelling circumstances present and that the sentences imposed induced a sense of shock and were startlingly inappropriate. The second appellant contended that the sentences should not have run concurrently. The Court found that the court below considered all relevant factors, and did not err in finding that substantial and compelling reasons were absent, with the result that the prescribed minimum sentence had to be imposed. The magistrate also could not be faulted for treating the attempted murder convictions in relation to police officers who were engaged in their duty, as justifying concurrent sentences.

The appeal was thus dismissed.

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