Nghipandulwa v S (SA 39 of 2008) [2009] NASC 14 (26 October 2009);
REPORTABLE
CASE
NO.: SA 39/2008
IN
THE SUPREME COURT OF NAMIBIA
In
the matter between:
ELIFAS | APPELLANT |
and
THE | RESPONDENT |
CORAM: Chomba,
AJA, Mtambanengwe, AJA, et
Damaseb,
AJA
Heard
on: 29/06/2009
Delivered
on: 26/10/2009
APPEAL JUDGMENT
DAMASEB, AJA:
The appellant is
represented
by Mr Z Grobler while the respondent is represented by Mr A Muvirimi
of the Prosecutor General’s Office. The appellant was one of
three accused who stood charged in the Regional Court, Windhoek,
with aggravated robbery, negligent discharge of a firearm, and
discharging a firearm in a public place. He was accused 2 at the
trial in the Regional Court (“the trial court”) where it
was alleged that he participated in the commission of the offences
acting with common purpose with his co-accused. I will in this
judgment refer to him as accused 2. The trial court convicted all
three accused only of aggravated robbery committed with common
purpose. Accused 2 who had a relevant previous conviction was
sentenced to 20 years imprisonment.1
The trio appealed to the High Court (“the Court a
quo”)
which dismissed the appeals against both conviction and sentence.
That Court also refused them leave to appeal to the Supreme Court.
Accused 1 and 3 were equally unsuccessful in their petitions to the
Chief Justice, but this Court granted accused 2 leave to appeal to
it. The present appeal is therefore in consequence of the leave to
appeal so granted accused 2.
The facts are
tolerably straightforward:
On 9 December 2001, two Zimbawean nationals, Archibald Matangi and
Morgan Matangi (father and son in reverse order) set about what
turned out to be an ill-fated journey to Zimbabwe, commencing the
trip from Soweto Township in Katutura. The journey was to take them
by taxi from Soweto to Klein Windhoek and thence to Gobabis en
route
to Zimbabwe. They made it to Klein Windhoek alright and there were
offered a lift to Gobabis by accused 1 who was in a Volks Wagen (VW)
with accused 2 and 3. Accused 1 was the driver (and it appears
owner) of the VW. He offered to transport the two Matangis to
Gobabis for the fee of N$30 per person. The deal was struck and the
father and son boarded the VW. On the pretext of collecting more
fee-paying passengers in a bigger vehicle which had to be fetched in
Nubuamis, accused 1 drove in the general direction of Katutura.
Somewhere along the way, he parked the VW under a tree in the bush
as accused 3 said he needed to smoke dagga which he proceeded to
look for; first inside the VW and then, accompanied by accused 1, in
the boot of the VW. It was when these two accused persons went in
the direction of the VW’s boot that Archibald, suspicious of
their intentions, followed them. Accused 3 then removed a firearm
which was on the person of accused 1 and advanced with it towards
Archibald. In legitimate self-defence, Archibald pounced on accused
3 and in the process accused 3 lost control of the firearm which was
then grabbed by Morgan. Acting in concert, accused 1 and 3 later
dispossessed Morgan of the firearm and, having chased after him
about 150 meters from the VW , robbed Morgan of a substantial sum of
cash – in the process discharging the firearm with the
intention of frightening Morgan into submission. It is apparent
therefore, that the actual robbery (and the shooting) happened near
a road about 150 meters away from the VW in which accused 2 was
sleeping. Accused 3, having committed the robbery (using the
firearm belonging to accused 1), ran away leaving accused 1 and 2 at
the scene. It is common cause that accused 2 was asleep in the VW
when the robbery took place. Accused 2 then woke up and prevented
the Matangis from removing their bags which they had placed in the
boot when they boarded the VW in Klein Windhoek. Archibald somehow
managed to find his way to the Katutura police station where he
summoned the help of a police officer and returned to the scene with
the officer. It was at the scene of the crime that accused 1 and 2
were then arrested while they were still with Morgan. It appears
these two accused remained there as the vehicle was still there
after accused 3 ran away and the key to the VW had somehow
disappeared.
Both Matangis
testified at
the trial. Archibald testified that when they boarded the VW in
Klein Windhoek accused 2 was asleep and remained in that state until
after the robbery had been completed. That much is clear from the
following exchange between accused 2 and Archibald when the former
cross-examined the latter:
“Accused
2:
Now, what shows to you that I was half asleep?
Archibald:
You was just lying like somebody who is sleeping, closing your eyes.
Accused
2:
Just like I am sleeping?
Archibald:
Yes.
Accused
2:
Okay, now after you found me half asleep, did I then ever spoke
either to you or to my co-accused 1 and 3 here?
Archibald:
No.
Accused
2:
Now is that what you want to imply that one can decide while you are
sleeping?
Archibald:
When
accused 3 said he want to smoke ‘ganja’ you were asleep,
so it was me and my father and the accused no. 1 and accused no. 3.
Accused
2:
Now I further want you to tell this Court that from
the time you got into the VW up to the time where you were robbed of
your items, now were I sleeping all he time?
Archibald:
Yes.
Accused
2:
Now
is there anything which can link me to this offence up to the time
that you came there regarding this offence?
Archibald:
No.”
(My
underlining for emphasis)
Morgan who
corroborated Archibald’s account of the conduct of accused 1
and 3 in the robbery
also corroborated Archibald to the extent that accused 2 was asleep
at all material times. Morgan testified as follows in his evidence
in-chief:
“They
said no we want to go and leave this one there, I
think it’s the second accused, they want to drop him because he
is drunk and they want to drop him there.
Then they drove. When we were now on our way they started asking us
where are all those people at the hiking point, where are they going.
Then I told them no, the people are going to the border. Then they
said if we can get the combi, I think we can make money. Then “how
much did you used to pay to the border”. Then told them, no,
we pay N$50-00 to the border. Then they said, no let us go and
collect the combi. Then I asked them where is the combi. They said
it is in Katutura then I said no, there is no problem. Then they
drove back (intervention) …” (My
underlining)
When
cross-examined by accused 2 Morgan confirmed that the former never
spoke from the moment they boarded the VW and was asleep at all
material times. He also confirmed that accused 2 never participated
in the actual robbery.
Both Archibald and
Morgan testified that at some point after the robbery had been
committed by accused 1 and 3 ( while accused 2 was asleep) and after
accused 3 had fled from the scene of crime, accused 2 – upon
emerging from his sleep (which
the trial Court aptly characterised as a ”drunken stupor”)
- prevented the Matangis from removing their bags from the boot of
the VW; that he demanded to know why the father and son had taken
the gun (”our gun”); and that he assaulted them.
Accused 2 had of course denied that he assaulted the Matangis or
that he acted in furtherance of the robbery – maintaining that
he acted in the way he did (i.e. telling Archibald not to remove the
bags) in the belief that he and the co-accused were in fact the
victims of criminal conduct by the Matangis.
Accused 2
testified on his own behalf and said under oath that he and others
had been drinking at a party at the home of accused 3 the night
before 9 December 2001 and that he had a lot to drink. The next day
he learned that accused 1 and 3 wanted to go to Gobabis with a
vehicle belonging to accused 1. He testified that he met accused 1
for the first time at the home of accused 3 and did not know accused
1 before that. Accused 2 testified that he declined the invitation
to accompany accused 3 to Gobabis as he had a lot to drink and was
tired – clearly a euphemism that he was very drunk. (This
evidence corroborates the evidence elicited by the State that
accused 2 was very drunk). He asked instead to be taken home and in
that way got into the VW. According to accused 2, while waiting in
the VW for accused 3 (who was then trying to trace his girlfriend)
he fell asleep and only remembered waking up in the bush in a
strange place amongst strangers to find that accused 1 and 3 were
not present and that a strange man was removing things from the boot
of the VW. Accused 2 testified that he then concluded that this
stranger (which must have been Archibald) was removing bags from the
VW and tried to stop him from doing so. He stated in very clear
terms that he thought Archibald was stealing from the VW. When
cross-examined accused 2 denied that he associated himself with the
gun as alleged by the Matangis.
Accused
1 did not testify in his own defence. In his testimony, accused 3
corroborated accused 2’s version that he was taking him home
as he was drunk. After describing how he was invited by accused 1
to accompany him to Gobabis, accused 3 testified:
“[We]
were supposed to drop accused no. 2 in Nubuamis…because that’s
where he to stays. Before
he got into the VW he asked me if we cannot drop him there…So,
when we came into the VW with my girlfriend we found accused no.2
sleeping.
After we dropped my girlfriend Your Worship we just decided to drive
to Gobabis …and
accused no. 2 was also in the VW sleeping”.
(My
underlining)
And then, after
describing how they came to offer a lift to the Matangis who then
boarded after paying the fee demanded by accused 1, accused 3
continued to testify thus:
“We
turned and accused
no. 1 asked me if we can just drop accused no. 2, then we can just
drive straight to Gobabis from there, after dropping him.”
(My
underlining)
The trial Court
reasoned
in justification of its conviction of accused 2 that he was part of
a modus
operandi
consisting of all the accused persons setting about offering lifts
to Gobabis to the unsuspecting victims, loading them on the vehicle
and then robbing them of their property. The learned magistrate
specifically held that the three accused persons planned the robbery
beforehand and that accused 2 was part of its planning and
execution. The trial Court accepted the version of the Matangis
that accused 2 was violent towards them and was satisfied that
accused 2 knew that the father and son had taken possession of the
firearm used in the robbery by accused 1 and 3 (presumably with
accused 2’s knowledge) and that it was that firearm that
accused 2 wanted back from the Matangis.
This approach to
the evidence (and the consequential inference of guilt in respect of
accused
2 flowing therefrom) apparently found favour with the Court a
quo
when it upheld accused 2’s conviction for aggravated robbery
acting in common purpose with accused 1 and 3. The Court a
quo
came to the following conclusion in respect of accused 2:
”However
it is clear that the second appellant knew much more of what was
happening around him while he appeared to be sleeping than he was
willing to admit in his testimony.
The record reflects that when the second appellant woke up he
immediately wanted to know where the gun (“our gun”) was
and he physically prevented Archibald from leaving the scene with
their luggage. Whether he was carrying a half brick and empty beer
bottle, or hurled these at Morgan and missed, is neither here nor
there. It
suffices that when Morgan came to the rescue of Archibald, the second
appellant told him to leave the bags alone until he explained why he
took “our gun” as the second appellant put it.
For this reason I take the view that the conduct of the first and
third appellants was also correctly imputed to the second appellant.
See also S
v Mgedezi and Others
1989 (1) SA 687 at 607).” (My underlining for emphasis)
In drawing the
inference that accused
2 was complicit in common purpose with accused 1 and 3, both the
trial court and the Court a
quo
appear to have been swayed by the fact that accused 2 associated
himself with the gun at some point by demanding back “our
gun”, held back the bags belonging to the two victims; and
assaulted them. Mr Muvirimi relies substantially on this
circumstance in support of the conviction. Although the trial court
for its part found that there was a prior agreement between accused
2 and his co-accused to commit the armed robbery, Mr Muvirimi
suggests in his heads of argument (relying on S
v Mgedezi
1989 (1) SA 687 (A) at 705 I-J and 706 A-B 2
) that the trial court was entitled to convict accused 2 based on
the doctrine of common purpose even where there is no evidence of
prior agreement between him and the co-accused. Curiously, Mr
Muvirimi also relies on those very same facts and circumstances for
the inference that accused 2 knew about the robbery prior to its
commission. He also suggests, rather courageously, that accused 2
pretended to be asleep as part of the scheme to rob the Matangis and
was fully aware throughout that a robbery was underway.
Contrary to Mr
Grobler’s suggestion otherwise,
the Matangis were very impressive, if fair witnesses. In my view
they made no unfair accusations against accused 2. Although I
prefer the version of the Matangis that accused 2 was aggressive
towards them and in fact demanded the gun (”our gun”)
back from them - nothing should turn on this because, even if
accused 2 lied on this aspect, it does not automatically follow that
his account that he had not knowingly participated in the robbery
and did not associate himself therewith after it had been committed,
is not reasonably possibly true3.
Because a man tells lies at his trial he is not necessarily guilty.
It is judicially recognised that innocent people do tell lies at
times because they think that telling the truth might put them in
trouble4.
The present appears to me to be such a case. Or, to put it
differently, a Court properly directing itself cannot be satisfied
beyond reasonable doubt that it is not the case.
Accused 2
had made it clear under oath that when he emerged from his ”drunken
stupor”, the person he saw around the VW was Archibald who
was a complete stranger to him and who was then removing bags from
the VW. As he put it under oath:
‘’ So
when I woke up …from my sleep I just found myself in an open
space in the car…Now I was alone in the car, I was now
wondering where
are my co-accused persons, my friends with whom I was in the car. I
got off from the car, so on my left side of the car …outside
the car I found a strange man…whom I never saw in my life
before. So
I approached him and I asked … where are the people with whom
I was in the car.
This person responded in English, so he
was aggressive and he just said I just want my bag…So,
I
was now surprised how he came there… To me it looks like this
person was trying to steal…
So I told him okay leave those bags so that these people with whom I
was in the car can come.
(My underlining for emphasis)
Accused 2 also
testified that he later met accused 1 who, when he asked him what
was going on, said that it was only a misunderstanding which would
be cleared up when the police came. This undisputed evidence shows
that accused 2 was not aware that the Matangis had been the victims
of an armed robbery at the hands of accused 1 and 3; that he
believed (mistakenly as it happens) that they were in fact the
villains and that Archibald did not tell him that his associates had
just robbed them. Even if, therefore, accused 2 lied on the aspect
of the gun, or acted aggressively towards the Matangis, that is not
consistent only with guilt. The State bore the onus
to prove beyond reasonable doubt that when accused 2 did these
things he did so well-knowing that the Matangis had been the victims
of a robbery at the hands of accused 1 and 3 and that in so acting
he was acting in furtherance of the robbery. When it is said that
an accused is presumed to be innocent until proven guilty, what is
really meant is that the burden of proving his guilt is on the
prosecution. This requires a clear conviction of guilt and not
merely a suspicion, however strong that suspicion. A mere fanciful
doubt where it is not in the least likely to be true, would not
prevent conviction. As I understand the law, a Court of law is not
entitled to draw an inference of guilt from a set of facts, if the
same facts are capable of an inference inconsistent with guilt, or
are consistent with an inference that the accused’s version is
reasonably possibly true. In that event, the State would have
failed to discharge the burden of proof beyond reasonable doubt and
the accused would be entitled to his acquittal.
I find it
significant that counsel for the State submitted at the trial that
the presiding magistrate could (in the alternative) convict accused
2 of assault with intent to cause grievous bodily harm.
It must have been apparent to counsel for the State that the
evidence raised a reasonable doubt that accused 2 might be innocent
of the crime of aggravated robbery. To counsel’s submission,
the trial court commented:
‘’Although
the State Prosecutor in his address was prepared to accept that if
accused no.
2 is not convicted of armed robbery, at least he must be convicted of
the crime of assault with intent to do grievous bodily harm in that
he threw a brick or a stone at the second State witness Mr Morgan,
but the Court is of another opinion and I am not prepared to accept
the concession by the prosecutor in this regard. The prosecutor is
also of the opinion that the Court must accept the evidence of the
two State witnesses. Being that so, it
is clear to the Court that the three accused persons acted in
concert, they worked together.
The Court finds it as a fact that the
three of them worked with common purpose to rob the two complainants.
It is the experience of the Court that robbers and also many other
criminals have what we name a modus
operandi,
they have a way in which they operate, and in
the mind of the Court the modus
operandi
of the three accused persons before the Court was to go to that scene
… where the people are gathering to take a hike to Zimbabwe to
rob them. They decided to do so and they planned to do so.’’
(My
underlining for emphasis)
The trial court then proceeded to find
that accused 2 was aware of the pistol which was in the possession of
accused 1 because that is the first thing he challenged the Matangis
about when he got out of the vehicle.
It is a cardinal
rule of our criminal adjudicatory process that every item of
relevant evidence led at the trial and every inference naturally and
reasonably arising therefrom must be weighed in the scale in
deciding the outcome of a case; and no single item of evidence or
inference must be considered in isolation in the process. As was
put by Nugent, J (as he then was) in S
v Van der Meyden51999
(1) SACR 447 at 449J – 450A-B:
“The
proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond reasonable doubt, and
the logical corollary is that he must be acquitted if it is possible
that he might be innocent.
The process of reasoning which is appropriate to the application of
that test in any particular case will depend on the nature of the
evidence which the Court has before it. What must be borne in mind,
however, is that the conclusion which is reached (whether it be to
convict or to acquit) must
account for all the evidence.
Some of the evidence might be found to be false; some of it might be
found to be unreliable; and some of it might be found to be only
possibly false or unreliable; but none of it may simply be ignored.”
[My underlining for emphasis]
As an appeal court
we are entitled to interfere if we are satisfied that the trial
court’s evaluation of the evidence was
clearly wrong having regard to the totality of the evidence on the
record.6
I have come to the conclusion that the trial court’s
evaluation of the evidence is clearly wrong. That Court failed to
place the following evidence and inferences in the scale in favour
of accused 2: He had not met accused 1 before the 9th
of December. Accused 1 (then a stranger to accused 2) was in
possession of the firearm at the time it was used in the robbery.
There is no evidence accused 2 was aware that accused 1 had a gun on
his person when they met at the home of accused 3. When accused 1,
3 and the latter’s girlfriend got into the VW, accused 2 was
already asleep. Accused 1 was the owner of the VW. Accused 2
declined the invitation by accused 3 to accompany them to Gobabis.
If there was a prior plan (”modus
operandi”
as the trial court called it) to go to Klein Windhoek and offer
lifts to strangers in order to rob them, there is not a scintilla of
evidence to show accused 2 was aware (let alone part) of it. He
asked instead to be taken home – a fact that is inconsistent
with the finding that he was part of a modus
operandi
to go to Klein Windhoek to lure hikers into the car and then robbing
them. Accused 2 was still asleep when the Matangis boarded in Klein
Windhoek. He never participated in any discussion that led to the
Matangis boarding the VW. After they loaded the Matangis in Klein
Windhoek, accused 1 and 3 were on their way to drop accused 2 (then
still sleeping) at home when they executed the robbery. After the
robbery had been committed by accused 1 and 3, accused 2 who was
asleep when it happened, was informed by accused 1 (upon his asking
what the matter was) that it was only a misunderstanding which would
be cleared up when the police arrived.
It is hardly
surprising that accused 2 did not leave the scene of crime and was
found at the scene by the police.
Had he been part of a robbery, I do not think he would have
remained at the scene of crime. If, as is suggested, accused 2 only
pretended to be asleep and was aware throughout of the robbery, it
is inconceivable that he would have remained at the scene of the
crime while accused 3 ran away. Such conduct is inconsistent with
guilt. The same cannot be said of accused 1. It is obvious from
the evidence that the key of the VW belonging to accused 1 could not
be found. He was therefore unable to drive the car away; and even
if he had run away, the car was an item of potent physical evidence
which linked him to the crime and by reference to which his identity
could be established with ease. His presence at the scene of crime
after the robbery can therefore not be equated with that of accused
2. Could on these facts and inferences, the trial Court, properly
directing itself, have found that accused 2 was party to a
pre-planned modus
operandi
to offer lifts to people and to rob them? I think not.
Looking at the
evidence in its totality, accused
2’s version (and the inference it raises) that he did not
participate in robbing the Matangis; and that he honestly but
mistakenly believed that the Matangis meant him and his co-accused
harm at the time he emerged from his ”drunken stupor”,
is reasonably possibly true. His violent behaviour towards the
Matangis and his demanding back ”our gun” upon waking up
(and also his false denial that he did so) must not be taken in
isolation but must be seen against the backdrop of him waking up and
seeing people he had not met before removing bags from the vehicle
in which he was being conveyed. It is so probable that when he woke
up from his sleep accused 2 heard an argument over a gun between
accused 1 and the Matangis and decided to side with accused 1 in
demanding back “our gun”. In view of his explanation
that he woke up and saw strangers removing bags from the car, it is
a possibility that ought to have been put to the Matangis because,
on the facts of this case, such an inference is not fanciful. Sight
should not be lost of the fact that accused 2 was not legally
represented and that, as a result, his case was not presented with
appropriate forensic finesse.
On
the facts as I have set out, the trial court, if it had directed
itself properly, should have found that the State had failed to
prove the guilt of accused 2 beyond reasonable doubt and should have
acquitted him of aggravated robbery. It is unclear to me on what
evidence the trial Court based its finding that accused 2 was part
of the planning of the robbery and a ‘’modus
operandi".
What is abundantly clear to me is that the trial court completely
disregarded the evidence of the Matangis7
and that of accused 38
- evidence which is clearly exculpatory of accused 2 and points to
the possibility that he might be innocent.
I have
serious reservations about the Court a
quo’s conclusion
that accused 2’s cross-examination of the Matangis and his own
testimony ”dwelt on peripheral issues and left intact”
the evidence of the prosecution that “while the robbery was in
progress the second appellant stayed in the VW but emerged therefrom
in time to prevent Archibald from removing his and Morgan’s
bag from the VW and, in the process, uttered words to the effect
that the gun used in the robbery either belonged to him or to the
first or third appellants.” On the contrary, through his
cross-examination of State witnesses, accused 2 challenged the
State’s case that his stopping the Matangis from removing the
bags from the boot of the VW was knowingly in furtherance of the
robbery perpetrated by accused 1 and 3.
Accused 2
who was legally unrepresented, and received no assistance whatsoever
from the presiding magistrate when he conducted his
cross-examination, remarkably succeeded in raising a reasonable
doubt that his conduct towards the Matangis after the robbery had
been committed was done with the necessary mens
rea
to commit robbery in common purpose with accused 1 and 3.
For the reasons I
have given, I
have come to the conclusion that the appeal must succeed and
therefore make the following order:
The judgment and
order of the Court a
quo
are set aside and there is substituted the following order: “The
appeal of appellant Eliphas Nghipandulwa succeeds and the conviction
and sentence against him are set aside”.
__________________
DAMASEB, AJA
I agree
________________________
CHOMBA,
AJA
COUNSEL Instructed | Mr Legal |
ON Instructed | Mr Prosecutor-General |
1
Accused 1 received 10 years while accused 3
received 20 years as he, like accused 2, had relevant previous
convictions
2
In the absence of a prior agreement to commit a crime, a conviction
based on common purpose is only justified if (a) the accused was
present at the scene of the crime , (b) he was aware of the
commission of the crime , (c) intended to make common cause with
those who were actually committing the crime ,(d) and manifested his
sharing of a common purpose with the perpetrators of the crime by
himself performing some act or association with the conduct of the
perpetrators with (e) the requisite mens rea to commit the crime.
3
False testimony by an accused is a factor in
favour of the State’s case, but excessive weight should not be
given to it: S v M 2006
(1) SACR 135 and also S v Engelbrecht
1993 NR 154 to the effect that false evidence by the accused is not
decisive of guilt.