CORAM:
VAN
NIEKERK, J
Heard:
8 February 2011 Delivered: 22 March 2011
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
VAN NIEKERK, J:
[1]
After a criminal trial the respondent, to
whom
I shall refer as "the accused", was acquitted on a count
of murder, read with the provisions of the Combating of Domestic
Violence Act, 2003 (Act 4 of 2003), but convicted on the competent
verdict of culpable homicide in relation to his wife, the deceased.
He was also convicted on a second charge of attempting to defeat or
obstruct the course of justice. On the first count he was sentenced
to a fine of N$25 000 or 1 year imprisonment. On the second
conviction he was sentence to a fine of N$2000 or 2 months
imprisonment.
[2]
The State is seeking leave to appeal against the acquittal on the
murder count. It further seeks leave to appeal against both the
sentences imposed. The application is opposed.
[3]
The well known test to be applied in applications of this kind is
that set out in R
v Ngubane 1945
AD 185 at 187, where the Court said that it is for the applicant to
satisfy the Court that, if leave to appeal be granted, he has a
reasonable prospect of success on appeal. In reaffirming this
test, the Appellate Division stated in S v
Shabalala 1966
(2)
SA
297 (AA) at 299D:
"
die 'moontlikheid' dat die Hof van Appel 'n 'moontlike' fout in die
beredenering
sou kon vind en 'miskien' tot die konklusie kon kom dat die verhaal
van die beskuldigde waar kan wees, is so 'n anemiese toets dat 'n
aansoek vir verlof in enige saak daarop sou kon slaag. Alleen dan
wanneer die Verhoorregter tot 'n weloorwoe konklusie kom dat daar
gronde is waarop die Hof van Appel tot 'n ander afleiding van die
feite kan kom as wat hy gekom het, en daar dus 'n redelike
moontlikheid van sukses vir die applikant bestaan, behoort verlof
toegestaan te word. Bestaan daardie moontlikheid, behoort verlof ook
toegestaan te word sonder huiwering of teesin."
[my
translation follows]:
"...the
'possibility' that the Court of Appeal may find a 'possible' error
in the reasoning and may perhaps come to the conclusion that the
story of the accused may be true, is such an anaemic test that an
application for leave in every case could succeed thereon. Only when
the trial Judge comes to a well-considered conclusion that there are
grounds on which the Court of Appeal can come to a different
conclusion on the facts to the one to which he has come, and that
the applicant thus has a reasonable possibility of success on
appeal, ought leave to appeal to be granted. If that possibility
exists, leave ought to be granted without hesitation or reluctance."
[4]
This approach was confirmed in S
v Ackerman 1973
(1) SA 765 (AA) at 768B-D. See also S v
Tcoeib 1992
NR 198 (HC) at 199G-H. The test is not whether the appeal will
succeed, but whether there is a reasonable possibility that it may
succeed (S v
Ackerman (supra) at
767H).
[5]
In R
v Muller 1957
(4) SA 642 (A) the following was emphasised (at 645D-F):
"In
determining whether or not to grant a convicted person leave to
appeal
the dominant criterion is whether or not the applicant will
have
a reasonable prospect of success on appeal (Rex v
Baloi, 1949
(1) SA 523 (AD)). The mere circumstance that a case is 'arguable' is
insufficient; unless the term 'arguable' be used 'in the sense that
there is substance in the argument advanced on behalf of the
applicant' (Baloi's
case,
supra
at
p. 524). From the very nature of things it is always somewhat
invidious for a Judge to have to determine whether a judgment which
he has himself given may be considered by a higher Court to be
wrong; but that is a duty imposed by the Legislature upon Judges in
both civil and criminal matters. As regards the latter, difficult
though it may be for a trial Judge to disabuse his mind of the fact
that he has himself found the Crown case to be proved beyond
reasonable doubt, he must, both in relation to questions of fact and
of law, direct himself specifically to the enquiry of 'whether there
is a reasonable prospect that the Judges of Appeal will take a
different view' (per
CENTLIVRES,
J.A., in Rex
v Kuzwayo, 1949
(3) SA 761 (AD) at p. 765). In borderline cases the gravity of the
crime and the consequences to the applicant are doubtless elements
to be taken into account but, even in capital cases, the primary
consideration for decision is whether or not there is a reasonable
prospect of success (Rex v
Shaffee, 1952
(2) SA 484 (AD)).
[6]
The State lists several grounds of appeal against the conviction on
culpable homicide. They are as follows:
"That
the Honourable Judge misdirected herself and/or erred in law and/or
in fact by:
1.
Not
rejecting the accused's defence of an accidental shooting
in
totality as:
The
reason why the respondent pulled the trigger remains totally
unexplained as the court rejected the respondent's version that the
deceased fell back onto the firearm;
The
reason why the respondent did not activate the safety catch of the
firearm remains wholly unexplained;
The
reason why the respondent did not point the firearm away from the
deceased remains totally unexplained;
The
reason why the respondent pressed a loaded, cocked firearm against
the body of the deceased remains totally unexplained.
2.
Not
finding that the only reasonable inference to be drawn from the
evidence and the probabilities in the case is that the
respondent
acted with dolus
when
he pulled the trigger of the firearm as:
The
respondent was correctly found to be a lying witness who gave
contradictory explanations to explain his wife's death;
The
respondent and the deceased had a troubled marriage with a history
of domestic violence and the respondent in the past threatened to
kill the deceased;
It
is so improbable that it can be rejected as false beyond a
reasonable doubt that the deceased would have played with the
firearm and cocked it for no apparent reason;
The
warning statement of the respondent does not support a defence of
accidental shooting as it refers to the firearm itself
that
went off and respondent does not admit pulling the trigger in his
warning statement;
The
firearm is a deadly weapon which the respondent fired at close
range into the upper body of the deceased with fatal consequences.
3.
Not considering, alternatively not properly considering that to
constitute in law an intention to kill there need not be a set
purpose to cause death or even a desire to cause death as a person
in law intends to kill if he deliberately does an unlawful act which
he in fact appreciates might result in the death of another and he
acts recklessly as to whether such death results or not and by not
finding that the respondent at least acted with dolus
eventualis when
he pulled the trigger.
4.
Wrongly relying on the majority judgment in S v
Mlambo 1957
(4) SA 727 (AD) which is not applicable to this case as it is
applicable to cases where the Court cannot draw an inference of
dolus
due
to the absence of indications of an intent to kill, e.g. the absence
of evidence of a deadly weapon used, absence of a cause of death,
and absence of a history of animosity between an accused and
deceased."
[7]
Mrs Wantenaar
who
appears for the State, filed heads of argument in which she deals
collectively with these grounds and expressly indicates that none of
the grounds are abandoned. At the hearing she stood by the heads of
argument, highlighting some aspects and making additional
submissions on the issue of the sentence on the second conviction.
[8]
As far as the conviction is concerned, I also find it convenient to
approach the grounds of appeal collectively. They are essentially
aimed at one ultimate finding, namely that the State did not prove
beyond a reasonable doubt that the accused acted with intention to
kill.
[9]
Although paragraph 2 of the grounds of appeal states that the Court
should have found that the accused "at least" acted with
dolus
eventualis, as
such leaving open the possibility for an argument that the deceased
acted with dolus
directus, I
do not understand the actual focus of the State's complaint to be
(as shown by the heads of argument and the oral submissions made)
that the Court should have found that the accused acted with direct
intent. In oral submissions Mrs Wantenaar
submitted
that the Court did not consider the issue of dolus
eventualis as
such. As Mr Strydom
for
the accused pointed out and State counsel acknowledged, the State
did not present its case during the trial on the basis of legal
intention, but squarely on the basis of a direct intention to kill.
However, I do agree with counsel for the State that it is open to
argue for the purposes of this application that the Court should
have made a finding of the presence of dolus
eventualis.
[10]
The State takes issue with the fact that the Court had regard to the
majority judgment in S
v Mlambo 1957
(4) SA 727 (AD). The State is correct when it points out that the
case is distinguishable on the facts. In the Mlambo
case,
unlike in the present case, the cause of death and the instrument
used were not known. However, to my mind it does not matter, as the
principle on which the Court relied can be applied in
casu. I
intended to focus at that stage of the judgment (at para. [45]) on
the issue of "inferring murder or culpable homicide from
conduct showing consciousness of guilt." (cf
Mlambo at
p728B). The accused, by lying at Paramount about his own involvement
in the deceased's death, acted in a manner showing consciousness of
guilt. The point I wished to make at that stage is that the fact
that the accused showed consciousness of guilt by lying does not
necessarily mean that he had intention to kill. Of course this is
not the end of the enquiry. One must also consider other aspects
such as the weapon used, the location and nature of the injury
inflicted and the further conduct and statements of the accused,
etc., as the Court indeed did.
[11]
Nevertheless, even if the dictum
of
the minority judgment relied on by the State is followed, the
ultimate finding of the Court, namely that the State proved
negligence and not intention, would still have been the same. In
view of the State's grounds of appeal it is necessary to look more
closely at this dictum
(hereinafter
"the Mlambo
dictum") (at
738B-D), which reads as follows:
"
[I]f an accused deliberately takes the risk of giving false evidence
in
the hope of being convicted of a less serious crime or even,
perchance, escaping conviction altogether and his evidence is
declared to be false and irreconcilable with the proved facts a
court will, in suitable cases, be fully justified in rejecting an
argument that, notwithstanding that the accused did not avail
himself of the opportunity to mitigate the gravity of the offence,
he should nevertheless receive the same benefits as if he had done
so."
[12]
The Mlambo
dictum has
often been followed with approval, but was also placed in
perspective, as it has at times wrongly been used against a lying
accused (see S v
Steynberg 1983
(3) SA 140 (AA) 146A-148E). In the course of the discussion in
Steynberg,
the
Appellate Division referred to the following statement in Goodrich
v Goodrich 1946
AD 390 at 396 and held that its point of departure is completely
reconcilable with the line of thought in the Mlambo
dictum:
"...
in each case one has to ask oneself whether the fact that a party
has sought to strengthen his case by perjured evidence proves or
tends to prove that his case is ill-founded, and one should be
careful to guard against the intrusion of any idea that a party
should lose his case as a penalty for perjury."
[13]
The Steynberg
judgment
is in Afrikaans, but the English head note sets out the gist of the
wider discussion adequately enough:
"The
application of the Mlambo
approach
often has satisfactory and correct results. But the application
thereof obviously does not mean that, when an accused gives a false
explanation about a fatal assault he perpetrated on someone about
which he alone is able to give evidence, the inference must be made
that he had the intention to kill the deceased. That was not what
was decided in the Mlambo
case.
In the nature of things it is, in general, impossible to devise an
exhaustive formula according to which it can be judged whether the
particular approach is applicable or not. That depends on the
particular circumstances of each case. The nature and extent of the
accused's lies are of great importance. In addition, all the other
factors which appear, from the evidence, to be relevant to the
adjudication of the question whether the inference that the accused
had the intention to kill is justified should be placed in the
scale; and this adjudication should be undertaken with due
observance of the established rules of logic in connection with
circumstantial evidence formulated in R
v Blom 1939
AD 188 at 202 - 3."
[14]
The application of the Steynberg
dictum to
the facts of that case on appeal (at p148F-150A) is insightful,
especially as it also concerns a case in which the deceased was shot
in circumstances where he and the accused were alone and the accused
lied about what had transpired. (See also the approach and facts in
S v
Van As 1991
(2) SACR 74 (W)).
[15]
As I understand the State's application, it is not based thereon
that this Court erred in making any finding on the facts. There is
the following statement in paragraph 2 of the notice of application
for leave which sets out the factual basis on which the State says
dolus eventualis should have been found: "It is so improbable
that it can be rejected as false beyond a reasonable doubt that the
deceased would have played with the firearm and cocked it for no
apparent reason." The fact is that in para. [18] of the
judgment on sentence the Court held that it could not reject the
accused's evidence on this issue as false beyond a reasonable doubt.
In any event, I see no basis on which this finding can be attacked.
[16]
Applying the Steynberg
dictum to
the facts as found in the instant case, the available evidence to my
mind does not lead to the result that the only reasonable inference
that can be drawn is that the accused acted with intention. The
aspects of the evidence which remain unexplained and which are
listed by the State, taken with the other evidence, do not lead to
only one conclusion. They are just as compatible with an inference
of intention as they are compatible with an inference of negligence.
For instance, even if the accused pulled the trigger this action
could have been done either with intention or with negligence. A
further example can be cited: The fact that the accused did not
activate the safety pin does not necessarily lead to a conclusion
that he could only have acted with subjective foresight that his
actions could result in fatality and that he reconciled himself with
that possibility, as was submitted by Mrs Wantenaar.
In
this regard the following dictum
in
S v
Sigwahla 1967
(4) SA 566 (AD) at 570E-F is important to bear in mind:
"Subjective
foresight, like any other factual issue, may be proved by inference.
To constitute proof beyond reasonable doubt the inference must be
the only one which can reasonably be drawn. It cannot be so drawn if
there is a reasonable possibility that subjectively the accused did
not foresee, even if he ought reasonably to have done so, and even
if he probably did do so."
[17]
In my view the insistence by the State that the Court should make a
finding of subjective foresight and reconciliation with the foreseen
result requires of the Court to make a leap in logic across a chasm
that is just too wide.
[18]
As far as the sentences are concerned, the State seeks leave to
appeal on the grounds that the Court erred by:
"5.
Not finding that the respondent's unexplained actions of pressing a
loaded cocked deadly weapon (firearm) against the body of the
deceased and then pulling the trigger amounts to reckless
negligence.
6.
Not imposing a sentence of direct imprisonment but imposing a fine
on the conviction of culpable homicide and thereby imposing a
sentence which is so lenient that it induces a sense of shock and
which is grossly inadequate in the circumstances as it does not
serve a deterrent purpose at all but puts a stamp of triviality on
the crime committed by the respondent;
7.
Overemphasizing the personal interests of the respondent and the
mitigating factors;
8.
Underemphasizing the high degree of moral blameworthiness of the
respondent and the fact that the consequences of his conduct were
totally foreseeable and of his own making and that the respondent's
awareness of the risk involved is an aggravating circumstance:
9.
Underemphasizing the interest of the society and not properly
considering that this interest of society ties up with the deterrent
purpose of punishment and that the punishment must not only deter
the respondent but must also deter the public in general from acting
in a similar way;
10.
Not imposing a term of direct imprisonment but imposing a fine on
the conviction of an attempt to defeat or obstruct
the...........[course] of justice and thereby overemphasizing the
personal circumstances of the respondent and the mitigating factors
and thereby putting a stamp of triviality on this offence;
11.
Describing
the crime of an attempt to defeat or obstruct the [course]
of
justice in the circumstances of the case as technical and thereby
not considering that the respondent's deliberate and
callous........[course] of conduct to defeat or obstruct justice
after killing of the deceased is an aggravating factor." [my
omissions and insertions]
[19]
The State did not expand in argument upon the fifth ground of
appeal. In the context of negligence, recklessness is considered to
be gross negligence, in which case the ground of appeal is semantic.
I shall not consider it further.
[20]
The gist of the State's complaint about the sentences imposed is
that the imposition of a fine for each of the offences is too light
- effective imprisonment should have been imposed. In the heads of
argument the State highlighted the need to punish commensurate with
the accused's degree of moral blameworthiness and placed emphasis on
retribution and the need for deterring others. For all the reasons
set out in the judgment on sentence, the sentence imposed for the
culpable homicide conviction is in my view not too lenient in
circumstances where no assault was proved and where the accused has
already been in custody for two years awaiting trial. The amount of
the fine is by no means light.
[21]
On the issue of the attempt to obstruct the course of justice State
counsel relied to the case of S
v Andhee 1996
(1) SACR 419 (A) for the proposition that the appropriate sentence
for such a crime is effective imprisonment. In this case the
Appellate Division stated (at 423j):
"The
offence of attempting to defeat or obstruct the ends of justice is
rightly regarded as a serious one which may, and frequently does,
warrant severe punishment (S
v Mene and Another 1988
(3) SA 641 (A) at 665J-666A; S v
W 1995
(1) SACR 606 (A) at 608i)."
[22]
I have, with respect, no quarrel with this statement, which
certainly does not lay down any general rule as to punishment in
such cases. It would, clearly, depend on the circumstances of each
case whether severe punishment is warranted. In the Mene
case
the accused were experienced policemen who made false reports and
laid false charges against others to cover up their own complicity
in damaging a police vehicle. The case of W
involved
a prosecutor who withdrew a criminal case against an accused in
exchange for sexual intercourse. Clearly the fact that the accused
were in positions of trust requiring a high degree of integrity was
an aggravating factor in each of these cases. This is not the
position in the instant case. In the Andhee
case
the accused was a medical doctor who ran over and fatally injured a
13 year old pedestrian. The accused left the scene without
attempting to ascertain the nature and extent of her injuries. In
order to escape detection and avoid the consequences of his unlawful
conduct, he claimed that his car had been stolen and that he was at
a party at the time of the collision. He later spun an intricate web
of deception which included persuading other persons to give false
testimony on his behalf in court. These aspects were considered to
be aggravating. Clearly all these cases are distinguishable on the
facts. They are far more serious than the case of the accused in
casu.
[23]
In conclusion on the issue of sentence I am of the view that,
bearing in mind that sentence is pre-eminently in the discretion of
the trial Court, there are no reasonable prospects that another
Court will find that any misdirection was committed in weighing the
different relevant interests or that the sentences were glaringly
inadequate in the circumstances of this case.
[24]
The result is therefore that the application for leave to appeal is
refused.
VAN
NIEKERK, J
Appearance
for the parties:
For
the applicant: Mrs
B Wantenaar
Office
of the Prosecutor General
For
the respondent:
Adv
J A N Strydom
Instr.
by Hennie Barnard & Partners
S v Shaduka (CC 1/2009) [2011] NAHC 88 (22 March 2011);