S v WITBOOI AND OTHERS 2018 (1) SACR 670 (ECG)
Theft — Proof of — Doctrine of recent possession — Nature of objects stolen relative to time lapse from theft important.
Evidence — Admissibility — Pointing-out — Pointing out in circumstances which would not have aided investigation of crime other than to obtain self-incriminating evidence — Tantamount to confession in guise of pointing-out.
In an appeal against convictions in a regional magistrates’ court for attempted murder and robbery with aggravating circumstances, it appeared that the convictions were based on the doctrine of recent possession; and, in the case of the third appellant, on the basis of certain pointings-out that he had made.
The first appellant was found in possession of a rifle 15 days after it had been taken from the victims of the robbery. The second appellant was found in possession of a briefcase, a revolver and pepper spray 16 days after they had been taken in the same robbery. Although the third appellant admitted that the contents of the pointing-out document had been correctly recorded, he testified that he had been assaulted and threatened with assault if he did not do the pointing-out. In his warning statement he had indicated that he was prepared to point out what he knew about the incident.
Held, as to the discovery of the rifle in the possession of the first appellant, that there were contradictions between the state witnesses as to the circumstances in which the rifle was found in a shack belonging to the first appellant. Although there was a great deal of suspicion concerning the first appellant’s involvement in the crime, that suspicion was insufficient to find that the state had proved his guilt beyond a reasonable doubt, and his appeal had to succeed. (See  – .) The appeal against the conviction was accordingly upheld.
Held, further, that, in the case of the revolver found in the possession of the second appellant, it was an item which could quickly be disposed of and the lapse of time between the crime, and the finding was not very short. However, the briefcase, which was described as being exceptional, was not something which would lend itself to quick disposal, and the lapse of time was therefore short. The appellant’s possession of the articles indicated that he must have acquired all of them at the same time and place, and his possession of them at different times and places suggested an intention to keep them for his own use. Furthermore, his explanation that he had picked them up on a railway line was grossly improbable. The magistrate had not erred in drawing the inference that he was one of the perpetrators of the crime. (See  – .) The appeal was dismissed in respect of the conviction.
Held, further, that the circumstances of the pointing-out suggested a willingness to provide information rather than do a pointing-out. By that time the police knew the details of the crimes and the first and second appellants were already implicated. A pointing-out would not have aided the investigation of the crimes, other than to obtain self-incriminating evidence from the third appellant. In the circumstances, the suggestion of a pointing-out did not make sense and was tantamount to a confession in the guise of a pointing-out. It was furthermore not proved that the pointing-out and subsequent confession were voluntary. The appeal against his conviction therefore had to succeed.