GANG OF ARMED ROBBERS FORSAW DEATH OF MEMBER AS RESULT OF RESISTANCE

S v NKOSI 2016 (1) SACR 301 (SCA)

Murder — Proof of — Intention to kill — Gang of robbers, armed with firearms, foreseeing likelihood of resistance — In course of shoot-out, victim of robbery managing to shoot and kill one of robbers — Robber correctly convicted of murder of fellow robber.

The appellant was a member of a gang of five which set out to rob business premises where the owner was busy cashing up after the working day. Two of the robbers, armed with firearms, entered the office and demanded money from the owner, who suggested that they take the cash lying on the desk and placed his cellphones and wristwatch on the desk, and also suggested that they search him. The deceased (another member of the gang of robbers) then entered the office, waving his gun around, issuing threats and eventually firing a shot which hit one of the employees of the business in the elbow. The owner, who was lying down as he had been instructed to do, managed to grab the deceased’s wrist and a shot went off from the deceased’s firearm which passed the owner’s left side. The owner of the business was able to draw his firearm and then shot the deceased twice in his chest and shot back at the three robbers who were firing at him in what became a wild shoot-out. In the end, the deceased was fatally wounded, one of the robbers was shot in the pelvis and the owner suffered a gunshot wound to the leg. The appellant was convicted on one count of murder, two counts of robbery with aggravating circumstances, and one count each for the unlawful possession of a firearm and ammunition. On appeal the only issue before the court was whether the trial court had correctly convicted the appellant of the murder of his fellow robber, the contention being advanced on his behalf that the deceased had embarked on a ‘frolic of his own’ which caused his own death and that the state had failed to prove that the appellant had had the requisite intent for murder.

Held, that on the common-cause and proven facts, the appellant and his fellow robbers reasonably foresaw the likelihood of resistance and a shoot-out, hence the need to arm themselves with loaded firearms. The shoot-out between the owner and the deceased occurred in the same room where the robbery was being perpetrated and occurred in the course thereof. It did not count in the appellant’s favour that the robbers accosted the owner while under the impression that he was unarmed. They foolishly ignored, to their peril, his suggestion at the time that they search him and they foresaw the very real possibility of there being other employees and customers present at the premises, even though it was almost closing time.
Held, further, that on the facts of the case, the appellant was well aware that the fact of him and his fellow robbers being armed with loaded firearms might result in a shoot-out or that they might encounter ‘dangerous resistance’. He reasonably foresaw subjectively that, in the course of encountering such dangerous resistance, the firearms might be used with possible fatal consequences. He was thus correctly convicted of murder and the appeal had to fail.

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SENTENCE FOR YOUTH FOR MURDER OF TWELVE YEARS EFFECTIVELY CONFIRMED

S v SD 2015 (2) SACR 363 (SCA)

Murder — Sentence — Imposition of — Factors to be taken into account — Young offender convicted on two counts of murder of adoptive parents and theft — Substance dependence problem mitigating factor — Youthfulness and influence of drugs — However, cannot fail to recognise severity of offences — Sentencing judge committed no misdirections — Well-considered balance of all interests involved — Interference on appeal unwarranted.

The appellant was 17 years and 8 months old when he killed his adoptive parents by brutally assaulting them. He was intoxicated at the time and had spent the day drinking and smoking crack cocaine. After he had hit them on the head with a cricket bat, he called a friend and asked him to help with disposal of the bodies. The friend did not want to assist him unless his parents were definitely dead, so the appellant then stabbed his parents approximately 20 times in the chest. The appellant also slit his father’s throat and they dumped the bodies in the veld. The High Court convicted the appellant of two counts of murder and sentenced him to 12 years’ imprisonment on each of the counts and to two years’ imprisonment in respect of theft, but ordered that the sentences were to run concurrently. On appeal the appellant contended that the sentence was shockingly inappropriate.
Held, that, when one looks at the offences and the interests of society, the court could come to only one conclusion, namely that the offences were so severe that incarceration could not be avoided. The cruel and savage way in which the appellant had killed two people who were kind to him, who sustained him from birth, who had tried to deal with his drug addiction, and who treated him as their own child, filled one with revulsion. Any sentence which failed to recognise the severity of the crimes could lead to society losing its confidence in the criminal justice system. Especially in a society where violence had become prevalent and endemic, one could simply not afford that risk.
Held, further, that it was clearly a mitigating factor that the appellant had a substance dependence problem and that at the crucial time he was under the influence of narcotic drugs. The diagnosis by some of the appellant’s experts who tended to blame it all on the influence of drugs, and their recommendation that the appellant should be committed for treatment, had to be considered from their perspective. Their purpose was to diagnose, to heal and to rehabilitate their patients and, as a rule, they did not have to consider the perspectives which the courts were obliged to keep in view. The courts’ functioning was quite different and, apart from rehabilitation, they needed to have regard to other interests, such as prevention and rehabilitation. To focus exclusively on the wellbeing of the accused was likely to result in a distorted and warped sentence.
Held, further, that the sentencing judge had committed no misdirections

MURDER AND ROAD ACCIDENT

S v HUMPHREYS 2015 (1) SA 491 (SCA) 

 

Criminal law — Murder — Mens rea — Dolus eventualis — Foresight and reconciliation — Whether driver reconciled himself with foreseen possibility of death of his passengers — Not where there was no indication that he had taken his own death into bargain.

 

Humphreys was convicted on ten counts of murder and four counts of attempted murder arising from the death and injury to his passengers when the minibus he was driving collided with a train. The high court found that he had both foreseen and reconciled himself with the possibility of fatal injury to his passengers when he entered a boom-controlled level crossing with booms down and warning signals flashing. On appeal the Supreme Court of Appeal (the SCA) agreed with the high court’s finding that Humphreys had subjectively foreseen the possibility of fatal injuries but disagreed with the high court that the second part of the dolus eventualis test had been met — that he had reconciled himself with the possibility that his passengers could get killed.

Held: The true enquiry was whether Humphreys took the consequences that he foresaw into the bargain. Dolus eventualis would be established if it could reasonably be inferred that it was immaterial to him whether these consequences would flow from his actions. Conversely, it would not be established if he may have thought that the possible collision he subjectively foresaw would not actually occur.

On the facts of the case the latter inference was not only reasonable, but also the most probable one. Firstly, if Humphreys foresaw the possibility of fatal injury to one or more of his passengers — as he did — he must by the same token have foreseen fatal injury to himself. An inference that he took their death into the bargain when he proceeded with his action would unavoidably require the further necessary inference that he also took his own death into the bargain. There was, however, no indication on the evidence that Humphreys valued his own life any less than the average person or that it was immaterial to him whether or not he would lose his life. In consequence it could not be said that he had reconciled himself with the possibility of his own death, and it followed that he had not reconciled himself with the occurrence of the collision or the death of his passengers either.

This conclusion also followed from the evidence that it was practically possible to avoid a collision by clearing the level crossing within the one- minute gap between the boom coming down and the train arriving, and that he had done so on previous occasions. Humphreys probably thought that he could do so again. Self-evidently, the fact that his confidence was misplaced did not detract from the absence of reconciliation with the consequences he subjectively foresaw. While he foresaw the possibility of the collision, he thought it would not happen; he took a risk which he thought would not materialise. It followed that the court a quo’s finding of dolus eventualis was not justified.

THE STATE VERSUS OSCAR PISTORIUS

GAUTENG DIVISION, PRETORIA

CASE NO: CC113-2013

DATE: 2014-09-11, 12

THE HONOURABLE MS JUSTICE MASIPA found as follows-

On page 36:

The conclusion, that because an accused is untruthful he is therefore probably guilty, must be guided against, as a false statement does not always justify the most extreme conclusion. In the present case the deceased was killed under very peculiar circumstances.

On page 40:

There is also the question of onus. No onus rest on the accused to convince this court of the truth of any explanation that he gives. If he gives an explanation, even if that explanation be improbable, the court is not entitled to convict, unless it is satisfied not only that the explanation is improbable but that beyond any reasonable doubt it is false.

If there is any possibility therefore of his explanation being true then he is entitled to his acquittal.   (See Diffort 1937 (AD) 370). The onus is on the state throughout to prove beyond reasonable doubt that the accused is guilty of the offence with which he has been charged. Should the accused’s version or evidence be found to be reasonably possibly true, he would be entitled to his acquittal.

The simple explanation from the accused is that shooting the deceased dead was a genuine mistake, as he thought he was shooting at an intruder behind the toilet door.

The timelines as set out in the chronology of events tip the scales in favour of the accused’s version in general. Viewed in its totality the evidence failed to establish that the accused had the requisite intention to kill the deceased, let alone with premeditation. I am here talking about direct intention.

The state clearly has not proved beyond reasonable doubt that the accused is guilty of premeditated murder. There are just not enough facts to support such a finding.

On page 43:

We are clearly dealing with error in objecto or error in persona, in that the blow was meant for the person behind the toilet door, who the accused believed was an intruder.       The blow struck and killed the person behind the door. The fact that the person behind the door turned out to be the deceased and not an intruder, is irrelevant.

The starting point however, once more is whether the accused had the intention to kill the person behind the toilet door whom he mistook for an intruder.

The accused had intention to shoot at the person in the toilet but states that he never intended to kill that person. In other words he raised the defence of putative private defence.

In S v Adair Oliveira 1993 (2) SACR 59(A) at 63 and 64 a distinction was drawn between private defence as a defence, excluding unlawfulness, which is judged objectively and putative private defence which relates to the mental state of the accused. In that case Smalberger JA stated:

“From a juristic point of view the difference between these two defences is significant. A person who acts in private defence, acts lawfully provided his conduct satisfies the requirements laid down for such a defence and does not exceed its limit. The test for private defence is objective: Would a reasonable man in the position of the accused have acted in the same way? In putative private defence it is not lawfulness that is in issue but culpability…

If any accused honestly believes his life or property is in danger but objectively viewed they are not, the defensive steps he takes cannot constitute private defence. If, in those circumstances, he kills someone, his conduct is unlawful. His erroneous belief that his life or property was in danger may well (depending on the precise circumstances) exclude dolus in which case the liability for the persons death based on intention will also be excluded. At worst for him, he can then be convicted of culpable homicide.”

On page 44:

In murder the form of culpability required intention, the test to determine intention is subjective. In the present case the accused is the only person who can say what his state of mind was at the time he fired the shots that killed the deceased.

The accused has not admitted that he had the intention to shoot and kill the deceased or any other person for that matter. On the contrary, he stated that he had no intention to shoot and kill the deceased. The court is however entitled to look at the evidence as a whole and the circumstances of the case to determine the presence or absence of intention at the time of the incident.

In the present case, on his own version the accused suspected that an intruder had entered his house through the bathroom window. His version was that he genuinely, though erroneously, believed that his life and that of the deceased was in danger.

There is nothing in the evidence to suggest that this belief was not honestly entertained. I say this for the following reasons: The bathroom window was indeed open, so it was not his imagination at work when he thought he heard the window slide open. He armed himself with a loaded firearm and went to the direction of the noise. He heard a door slam shut. The door toilet was indeed shut when he fired four shots at it, after he heard a movement inside the toilet. On his version he was scared as he thought the intruder was coming out to attack him.       There is no doubt that when the accused fired shots through the toilet door, he acted unlawfully. There was no intruder. In fact, the person behind the door was the deceased and she was dead.

I now deal with dolus eventualis or legal intent. The question is:

  1. Did the accused subjectively foresee that it could be the deceased behind the toilet door and
  2. Notwithstanding the foresight did he then fire the shots, thereby reconciling himself to the possibility that it could be the deceased in the toilet. On the contrary the evidence shows that from the onset the accused believed that, at the time he fired shots into the toilet door, the deceased was in the bedroom while the intruders were in the toilet. This belief was communicated to a number of people shortly after the incident.                                            The evidence before this court does not support the state’s contention that this could be a case of dolus eventualis.                                                         On page 46:

The question is: Did the accused foresee the possibility of the resultant death, yet persisted in his deed reckless whether death ensued or not? In the circumstances of this case the answer has to be no.

How could the accused reasonably have foreseen that the shots he fired would kill the deceased? Clearly he did not subjectively foresee this as a possibility that he would kill the person behind the door, let alone the deceased, as he thought she was in the bedroom at the time.

To find otherwise would be tantamount to saying that the accused’s reaction after he realised that he had shot the deceased was faked; that he was play acting merely to delude the onlookers at the time.

On page 51:

The accused had reasonable time to reflect, to think and to conduct himself reasonably.

On the facts of this case I am not persuaded that a reasonable person with the accused’s disabilities in the same circumstances, would have fired four shots into that small toilet cubicle. Having regard to the size of the toilet and the calibre of the ammunition used in the firearm, a reasonable person with the accused’s disability and in his position, would have foreseen that if he fired shots at the door, the person inside the toilet might be struck and might die as a result.

On page 52:

The accused knew that there was a person behind the toilet door and chose to use a firearm which was a legal weapon. He was competent in the use of firearms as he had undergone some training.                                                                                                                                                                                      I now revert to the relevant questions.

First: Would a reasonable person in the same circumstances as the accused, have foreseen the reasonable possibility that, if he fired four shots at the door of the toilet, whoever was behind the door, might be struck by a bullet and die as a result?

The second question is:   Would a reasonable person have taken steps to guard against that possibility?

The answer to both questions is yes.

The last question is: Did the accused fail to take steps which he should reasonably have taken to guard against the consequence?

Again the answer is, yes. He failed to take any step to avoid the resultant death

I am of the view that the accused acted too hastily and used excessive force.   In the circumstances it is clear that his conduct was negligent.

On page 64:

From the above it cannot be said that the accused did not entertain a genuine belief that there was an intruder in the toilet, who posed a threat to him. Therefore he could not be found guilty of murder dolus directus. This court has already found that the accused cannot be guilty of murder dolus eventualis either, on the basis that from his belief and his conduct, it could not be said that he foresaw that either the deceased or anyone else, for that matter, might be killed when he fired the shots at the toilet door. It also cannot be said that he accepted that possibility into the bargain.

On page 65:

Evidential material before this court however, show that the accused acted negligently when he fired shots into the toilet door, knowing that there is someone behind the door and that there was very little room in which to manoeuvre.

A reasonable person therefore in the position of the accused, with similar disability would have foreseen that possibility, that whoever was behind the door might be killed by the shots and would have taken steps to avoid the consequences and the accused in this matter failed to take those consequences.

S V OSCAR PRETORIUS