Standard practice for a party to put to each opposing witness so much of his case or defence as it concerns that witness

S v Diya [2018] 2 All SA 488 (ECM)

Criminal law and procedure – Alibi defence – Onus of proof – Effect of failure to call witnesses to corroborate alibi.

Criminal law and procedure – Evidence – Cross-examination – Standard practice for a party to put to each opposing witness so much of his case or defence as it concerns that witness – If a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness’ testimony is accepted as correct.

Criminal law and procedure – Murder – Assessment of evidence – Confession –Admissibility of confession is provided for in section 217 of the Criminal Procedure Act 51 of 1977, which provides that evidence of any confession made by any person in relation to the commission of any offence shall, if such confession is proved to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto be admissible in evidence against such person at criminal proceedings relating to such offence.

The accused was charged with the murder of an 86-year-old woman, who was the mother of a relative (“Thembekile”) of the accused. It was alleged by the State that Thembekile had entered into an agreement with the accused, to pay him R10 000 to kill his mother. The accused pleaded not guilty to the charge and elected not to tender a plea explanation.

A key witness for the State was someone who had stayed in the accused’s home while looking for a job in 2016. He testified that during that time, he had seen two text messages on the accused’s phone, both from Thembekile. The messages spoke of the intention for the deceased to be killed by the accused at the request of Thembekile. The witness (“Mr Khowa”) did not disclose his knowledge of the messages to anyone due to his fear of reprisal.

Some time passed without any breakthrough in the case. Eventually the husband of the deceased went to the police to report that the community was threatening to kill the accused and another young man who were staying at the home of the deceased. It was reported that the accused had complained to an informer about not having been paid by Thembekile for the murder of Thembekile’s mother. That caused the police to go to the house in question to speak to the accused. According to the investigating officer, the accused was emotional and made it clear that he wanted to co-operate with the police and to tell all he knew about the death of the deceased.

The State indicated their intention to have the confession admitted as part of the record and requested that there be a trial-within-a-trial to determine its admissibility. However, the accused denied that he made the statement voluntarily and said that he was told what to say by the investigating officer who took the statement. He also alleged that the statement was induced by sustained torture by the police.

Held – Mr Khowa’s evidence-in-chief, under cross-examination and when compared to what he said to the police when his statement was taken did not change. His evidence was consistent throughout in most material respects and there were no contradictions even under cross-examination. His evidence was credible.

The version of the accused regarding the conduct of the police in taking his statement was not supported by the evidence. The testimony to the contrary by the investigating officer was corroborated by numerous other police officials, and it became clear to the Court that the accused was putting together a clumsy combination of lies, half-truths and fabrications.

The admissibility of confessions is provided for in section 217 of the Criminal Procedure Act 51 of 1977, which provides that evidence of any confession made by any person in relation to the commission of any offence shall, if such confession is proved to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto be admissible in evidence against such person at criminal proceedings relating to such offence. Section 35(5) of the Constitution provides that evidence obtained in a manner that violates any rights in the Bill of Rights must be excluded if the admission of the evidence would render the trial unfair or otherwise be detrimental to the administration of justice. On the facts of this case, the Court found not even the slightest objective evidence of anything having been done by the police that would have resulted in the accused making the statement in any way other than as provided for in section 217. It was thus concluded that the confession was made freely and voluntarily by the accused in his sound and sober senses and without being unduly influenced.

In the wake of that ruling, the statement of the accused was read into evidence. The accused, in his court testimony however, raised an alibi defence, alleging that he was in another location, at his home at the time of the murder. That allegation was contradicted by two witnesses who placed him at the deceased’s homestead on the day of the murder. The accused attempted to cast doubt on the facts alleged by those witnesses, but in numerous instances his version was not put to the State witnesses. That led the Court to explain the law in that regard. It is standard practice for a party to put to each opposing witness so much of his case or defence as it concerns that witness. If a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness’ testimony is accepted as correct.

Another unsatisfactory feature of the defence case was its case was closed without calling any witnesses to corroborate the alibi defence.

The Court found that the accused’s evidence was riddled with outright lies and inconsistencies and was so full of inherent improbabilities as to be false.

Section 209 of the Criminal Procedure Act provides that an accused may be convicted of any offence on the single evidence of a confession by such accused that he committed the offence in question, if such confession is confirmed in a material respect or, where the confession is not so confirmed, if the offence is proved by evidence other than such confession, to have been actually committed. The Court concluded that the guilt of the accused had been proved beyond reasonable doubt and the accused was accordingly found guilty of murder as charged.

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FAILURE TO APPEAR IN COURT – PROCEDURE

COOPER v DISTRICT MAGISTRATE, CAPE TOWN 2018 (1) SACR 369 (WCC)

Trial — Accused — Failure to appear in court — Enquiry in terms of s 170 of Criminal Procedure Act 51 of 1977 — Procedure at — Magistrate conducting summary enquiry without informing accused of nature of proceedings, charge or his rights — Furthermore, ignoring fact that accused was represented and not involving legal representative at all — Proceedings not in accordance with justice and set aside.

Trial — Accused — Failure to appear in court — Enquiry in terms of s 170 of Criminal Procedure Act 51 of 1977 — Magistrate convicting accused of contravention of s 55 of Act instead of s 170(1) where accused out on warning.

 

The applicant was summoned to appear in court and duly appeared. The case was then postponed on more than one occasion, and he was warned to appear in court on 1 March 2017. On that day, suffering from chest pain, the applicant went for a consultation with a medical practitioner instead of appearing in court. His attorney appeared in court and explained his absence. It was not clear whether a warrant of arrest was authorised to be held over as the inscriptions on the record were inconsistent, the final endorsement indicating that the warrant of arrest was to be held over. When the appellant appeared in court on the next occasion, although once again represented by his attorney, he was instead told by the presiding officer to enter the witness box. The magistrate then held a warrant enquiry and sentenced him to a fine of R3000 for his failure to appear in court in contravention of s 55 of the Criminal Procedure Act 51 of 1977 (the CPA). This conviction was entered, despite the applicant not having been informed of the charge, the nature of the proceedings or his rights. In an application for the review of this conviction and sentence,

Held, that the manner in which the enquiry into the applicant’s failure to attend court was conducted amounted to a substantial injustice since it infringed his constitutionally entrenched rights to a fair trial. His right to access to justice was curtailed when his legal representative was ignored, and his presence not even acknowledged during the enquiry. The court had furthermore erred in finding him guilty of contravening s 55 of the CPA instead of s 170(1), as he was on a warning to appear in court and at that stage had not been summoned to appear. The proceedings were not in accordance with justice and therefore had to be set aside.

Rule requiring accused to put version to prosecution witness — Not requiring whole of accused’s version to be put to such witness, only material parts thereof.

S v RM 2018 (1) SACR 357 (GP)

Evidence — Witness — Cross-examination — Rule requiring accused to put version to prosecution witness — Not requiring whole of accused’s version to be put to such witness, only material parts thereof.

Evidence — Expert witness — Duty of — Witness to present evidence that was independent product of expert, uninfluenced as to form and content by exigencies of litigation — Expert not hired gun.

General principles of liability — Criminal capacity — Sane automatism — What constitutes — Hallmark of definition of automatism was absence of evidence of premeditation — Conduct of accused indicative of voluntary goal-directed behaviour and accordingly criminally liable.

 

The accused stood trial in the High Court on, inter alia, two counts of murder, the deceased being her two sons aged 6 and 2, respectively. She admitted shooting her sons but claimed that she had been acting in a state of sane automatism, caused by the taking of a combination of different types of prescription and over-the-counter medication, together with a glass of wine and a popular energy drink, as well as her feelings at the time of melancholia and suicide.

During the course of the cross-examination of the first state witness, counsel for the accused insisted on putting the whole version of the accused’s defence to said witness, even matters of which he would have had no knowledge at all.

The court held that there was indeed a rule that required an accused to put his or her version to prosecution witnesses. The rationale was that, if it were intended to argue that the evidence of the witness was to be rejected, he ought to be cross-examined to afford him an opportunity of answering points supposedly unfavourable to him. It did not demand, or even imply, however, that a version had to be put to a witness who in the nature of things was unable to comment thereon, because it was obviously outside his field of knowledge. Any mechanical application of the rule ought not result in an absurdity. (See [6].)

The major points of contention between the state and defence were in relation to the differing opinions of the respective expert witnesses. As to expert witnesses in general, the court remarked that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form and content by the exigencies of litigation. They should provide independent assistance to the court by way of objective, unbiased opinion in relation to matters within their expertise. They should never assume the role of advocate and should make it clear when a particular question or issue fell outside such expertise. An expert was not a hired gun who dispensed expertise for the purposes of a particular case. They did not give evidence which went beyond the logic which was dictated by the scientific knowledge which that expert claimed to possess. The expert witness called by the defence fell short of this standard.

As to the merits of the case, the court held that it was a hallmark of the definition of sane automatism that there should be no evidence of premeditation, as there was in the present case. After the event the accused had explained what had happened, what she had done, and even why. She explained where her vehicle could be found, how she had tried to kill herself, and was then mainly concerned with the fact that her husband would kill her. There was no explanation why she had shot the eldest son twice if she was in a state of sane automatism. If there had been automatism at the time of the shooting, she would not have known the details of her incident nor would she have known that there were not enough bullets to shoot herself. Her actions were indicative of voluntary goal-directed behaviour and not automatic behaviour at all. In the circumstances, the state had proved the necessary intent for murder and she had to be convicted of both counts.

ROBBERY COMMITTED BY THEFT OF INCORPOREAL THING THROUGH VIOLENCE OR FORCE

S v Sishuba [2018] 1 All SA 866 (ECLD, Mossel Bay)

Criminal law and procedure – Murder – Robbery with aggravating circumstances – Assessment of evidence – Inferences to be draw from common cause facts – Only reasonable inference that the court could draw from the surrounding facts and circumstances, was that the accused had prior knowledge of the incident and that he formed an association with an accomplice to commit the offences.

Criminal law and procedure – Robbery – Electronic transfer of money from victim’s account by victim, under threat of harm – Crime of robbery can be committed by the theft of an incorporeal thing through violence or force.

In June 2016, an elderly couple were attacked, robbed and killed in their home. It was common cause that a worker (“Steven”) employed by the male deceased in his business was involved in the murder and robbery, and later fled to Lesotho.

The accused was arrested by the police after a palm print of his was found at the scene of the crime. He was charged with two counts of robbery with aggravating circumstances and two counts of murder. Pleading not guilty to all the charges, he alleged that Steven had asked him to accompany him to his employer’s home because the employer needed extra help. He stated that when they were at the employer’s property, Steven attacked the employer. He alleged further that Steven had instructed him, under threat of violence, to help hit the deceased. The accused denied that he, himself, murdered or robbed the deceased or was involved with Steven in the murder and robbery of the deceased – or that he voluntarily took part in the attack on the first deceased. He further denied that he attacked or was present or assisted in the murder of the second deceased (the wife of the first deceased).

Held – The only portion of the accused’s version which could be accepted was that he had been on the scene where the first deceased was attacked. His version as to what really and truly happened on the scene was untruthful. In his initial statement to the police, he created the impression that he did not have any knowledge about this incident. He only told the police about how he accompanied Steven to the bus station and how Steven had left the keys of his house in his possession. However, he clearly knew what had happened to both deceased persons and that Steven was responsible for what happened. It was only at a later stage, when it emerged that a palm print of his was found at the scene and when he was required to give an explanation as to how his palm print could have been found on the scene, that he told the police that he himself was present at the scene when the first deceased was attacked. He gave different versions as to what really happened at the scene with regard to his involvement. He tried to mislead not only the investigating officer, but also the court by disavowing the various versions he gave to the police as well as the version that was given to the court in his explanation of plea. He was a poor witness who failed to take the court into his confidence. He was extremely evasive and argumentative during cross-examination when confronted with these different versions. Although at first denying that he was involved in the assault of the first deceased, in court during his explanation of plea, he admitted that he had assaulted the first deceased, albeit under duress from Steven.

The conduct of the accused after the incident was not consistent with that of an innocent bystander who was merely at the wrong place and at the wrong time. The only reasonable inference that the Court could draw from the surrounding facts and circumstances, was that the accused had prior knowledge of the incident and that he formed an association with Steven to commit the offences. The Court set out the various bits of evidence pointing to two people perpetrating the attack on each of the deceased.

The accused’s version was rejected as not reasonably possibly true. The Court found that he had formed a common purpose with Steven to murder both the deceased and rob them of their possessions.

In the course of the crime, the second deceased was forced to electronically transfer from her bank account an amount of R14 000 to the robbers. The question raised was whether that constituted the crime of robbery. The Court confirmed that the crime of robbery can be committed by the theft of an incorporeal thing through violence or force. Even though there was no physical handling of the money, the accused and Steven got the deceased through violent means, to transfer the money.

The accused was convicted on all four charges.

IRREGULARITY NOT FATAL UNLESS FAILURE OF JUSTICE OCCURRED

Randell v S [2018] 1 All SA 845 (ECG)

Criminal law and procedure – Fraud – Conviction and sentence – Appeal – Alleged irregularity and misdirection – Section 322(1)(c) of the Criminal Procedure Act 51 of 1977 sets out the powers of a court of appeal – Court of appeal may make such other order as justice may require provided that “notwithstanding that the court of appeal is of the opinion that any point raised might be decided in favour of the accused, no conviction or sentence shall be set aside or altered by reason of any irregularity or defect in the record or proceedings, unless it appears to the court of appeal that a failure of justice has in fact resulted from such irregularity or defect”.

On being convicted on a charge of fraud, the appellant was sentenced to an effective term of four years’ imprisonment. The present appeal was based on certain alleged irregularities and misdirections committed by the court a quo.

Held – At issue was whether the irregularities and misdirections, if any, resulted in a failure of justice which vitiated the proceedings. But for the irregularities and misdirections contended for by the appellant, it is not contested that the State proved beyond reasonable doubt that his actions amounted to fraud.

Section 322(1)(c) of the Criminal Procedure Act 51 of 1977 sets out the powers of a court of appeal. In the case of an appeal against a conviction or on any question of law reserved, the court of appeal may make such other order as justice may require – provided that “notwithstanding that the court of appeal is of the opinion that any point raised might be decided in favour of the accused, no conviction or sentence shall be set aside or altered by reason of any irregularity or defect in the record or proceedings, unless it appears to the court of appeal that a failure of justice has in fact resulted from such irregularity or defect”.

The ground of appeal was premised on the provisions of section 35(3)(a) of the Constitution. The appellant contended that the extensive reference by the magistrate in his judgment to a certain judgment, without prior notice to the appellant that considerable reliance would be placed thereon, went to the core of what constitutes a fair trial. It was stated that the appellant did not receive a fair trial because he was not forewarned that the findings in the judgment referred to could be used against him resulting in the audi alteram partem rule not being adhered to. It was also argued that the trial court, in applying the judgment referred to, displayed bias against the appellant, and committed the same mistake as the court in the case in question.

The credibility findings and/or characterisation of the appellant as dishonest by the court a quo before reference to the judgment referred to by the appellant, dispelled the argument that the magistrate relied on the judgment in its findings. Even if the references to the other judgment were to be excised from the judgment, the conviction of the appellant would remain correct.

The appeal was dismissed.

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.

APPEAL RECORD INCOMPLETE – EFFECT

S v PHAKANE 2018 (1) SACR 300 (CC)

Appeal — Record — Lost, destroyed or incomplete — Effect of on appeal — Transcript of evidence of crucial witness not on record and unclear whether conflict between police statement and evidence in court ever put to witness or clarified — No indication in judgment of this — Record not adequate for proper assessment of appeal — Proceedings set aside.

 

The applicant, a prisoner serving a sentence of 20 years’ imprisonment for his conviction in the High Court on a charge of murdering his girlfriend, brought an application for leave to appeal against his conviction, the full court having dismissed his appeal to it. He contended that the court a quo had erred in finding that the appeal could be determined, despite the absence from the record of the transcript of the evidence of a crucial witness for the state. The court held that the issue raised by the applicant was an important one, there were reasonable prospects of success and that leave had to be granted. The court accordingly considered the written submissions provided by the parties at its request.

Held, that, in the absence of a transcript of the trial proceedings or any reconstruction of the record of the trial proceedings, a court could not know whether the witness, whose evidence was crucial, had ever explained the conflict between her evidence in court and her statement to the police. In the trial court’s judgment there was no mention of whether the witness had been confronted with the conflict and this was a glaring omission on the part of the court. (See [35] – [36].)

Held, further, that in the present case the full court did not have before it a record on which it could fairly assess whether the trial court’s conviction of the applicant was correct. His right of appeal was frustrated by the fact that material evidence was missing from the record. It was so compromised that his appeal could not be fairly determined, and the proper remedy was to set aside the trial proceedings in their entirety. (See [40] – [41].)

Held, per Cameron J (Mbha AJ concurring), that the proper remedy would be to convict the applicant of the offence of assault, a competent verdict on a charge of murder, as such conviction was justified by the evidence available to the court. The fact that this might close the door to the state reinstituting the murder charge was not a serious consideration; that was an unlikely prospect given the time that had elapsed since the murder. (See [57] – [58].)

Held, per Froneman J, that justice to the deceased and her family demanded that a retrial should be ordered. (See [62].)