THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 96/2015
In the matter between:
DIRECTOR OF PUBLIC PROSECUTIONS,
GAUTENG APPELLANT
and
OSCAR LEONARD CARL PISTORIUS RESPONDENT
Neutral citation: Director of Public Prosecutions,
Gauteng v Pistorius (96/2015) [2015] ZASCA 204 (3
December 2015)
Coram: Mpati P, Mhlantla, Leach and Majiedt JJA and Baartman AJA
Heard: 03
November 2015
Delivered: 03 December 2015
Summary: Criminal Law and Procedure ─ appeal under s 319 of Criminal Procedure
Act 51 of 1977 ─ conviction on a competent verdict to be regarded as an
acquittal on the main count and does not debar an appeal on a question of law
reserved.
Legal intention in the form of dolus eventualis ─ trial court
incorrectly applying the principles thereof ─ constitutes an error of law.
Inference of fact to be drawn from
the totality of the evidence ─ trial court not taking all the relevant evidence
into account in determining the presence or otherwise of dolus eventualis ─ this also constitutes an error of law.
On a proper conspectus of all the
evidence, the trial court ought to have found that the accused had been guilty
of murder and not culpable homicide, and that his defence of putative private
defence could not be sustained. Conviction of culpable homicide and the
sentence imposed for that offence set aside under s 322 of CPA and the
matter remitted to the trial court to impose sentence afresh.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from: Gauteng
Division, Pretoria (Masipa J with two assessors sitting as court of first
instance):
1 The first two questions of law reserved are
answered in favour of the Director of Public Prosecutions.
2 The accused’s conviction and sentence on count
1 are set aside and replaced with the following:
‘Guilty of murder with the accused having had
criminal intent in the form of dolus
eventualis.’
3 The matter
is referred back to the trial court to consider an appropriate sentence afresh
in the light of the comments in this judgment.
_______________________________________________________________
JUDGMENT
________________________________________________________________
Leach JA (Mpati P,
Mhlantla and Majiedt JJA and Baartman AJA concurring)
[1] This case involves a human
tragedy of Shakespearean proportions: a young man overcomes huge physical
disabilities to reach Olympian heights as an athlete; in doing so he becomes an
international celebrity; he meets a young woman of great natural beauty and a
successful model; romance blossoms; and then, ironically on Valentine’s Day,
all is destroyed when he takes her life. The issue before this court is whether
in doing so he committed the crime of murder, the intentional killing of a
human being, or the lesser offence of culpable homicide, the negligent killing
of another.
[2] It is common cause that in
the early hours of 14 February 2013 the respondent, Mr Oscar Pistorius, shot
and killed the 29 year old Miss Reeva Steenkamp at his home in a secured
complex known as Silver Woods Country Estate in the district of Pretoria.
Pursuant to this, he was tried in the Gauteng Division of the High Court,
Pretoria on several charges, including one of the murder of Miss
Steenkamp. Throughout the proceedings in
the trial court, the respondent was referred to as ‘the accused’ and, for
convenience, I intend to do so as well. I trust that those near and dear to her
will forgive me if I refer to Miss Steenkamp at times by her given name of
Reeva, although I shall endeavour to do so only where it is necessary to
emphasize her identity. I shall otherwise refer to her simply as ‘the
deceased’.
[3] The proceedings in the trial
court were attended by unprecedented publicity. As far as I am aware, for the
first time in the history of this country the trial was covered on live
television (as was the appeal in this court). Although I did not follow the
proceedings closely, it was impossible not to learn that although it was common
cause that the accused had shot and killed the deceased, the trial court had
found him not guilty of her murder but guilty of culpable homicide. Contending
that the trial court erred on certain legal issues, the Director of Public
Prosecutions, with leave of the trial court, now appeals to this court on
questions of law reserved, arguing that the appropriate conviction would be one
of murder.
[4] It is necessary at the
outset to clear a technical issue out of the way. The appeal to this court
relates solely to count 1 of the indictment, namely, the alleged murder of the
deceased. The accused was not charged in
the alternative with the lesser offence of culpable homicide. It was
unnecessary for the State to do so as s 258 of the Criminal Procedure Act 51 of
1977 (the CPA) provides that if the evidence led on a charge of murder does not
prove that offence but the offence of culpable homicide (or numerous other
offences unnecessary to mention for present purposes) ‘the accused may be found
guilty of the offences so proved’. That is what happened in the present case.
The trial court held that the State had not proved that the accused was guilty
of the murder but had shown that he was guilty of culpable homicide. Relying on
s 258 it accordingly found him guilty of the latter offence.
[5] The appeal to this court
relating to this conviction is brought in respect of questions of law reserved
under s 319 of the CPA. That section provides:
‘(1) If any question of law arises on
the trial in a superior court of any person for any offence, that court may of
its own motion or at the request either of the prosecutor or the accused
reserve that question for the consideration of the Appellate Division, and
thereupon the first-mentioned court shall state the question reserved and shall
direct that it be specially entered in the record and that a copy thereof be
transmitted to the registrar of the Appellate Division.
(2) The grounds upon which any
objection to an indictment is taken shall, for the purposes of this section, be
deemed to be questions of law.’[1]
[6] Section
322 of the CPA prescribes the powers that may be exercised by a court of appeal
hearing an appeal relating to any question of law reserved under s 319. I shall
deal with these provisions in more detail in due course, but it suffices to
mention at this stage that s 322(4) provides that in an appeal by the
prosecutor where a question of law has been reserved in the case
of an acquittal, ‘and the court of appeal has given a decision in favour of the
prosecutor, the court of appeal may order that such of the steps referred to in
s 324 be taken as the court may direct’. This corresponds with the provisions of s 369 of the CPA’s
predecessor, Act 56 of 1955, which in turn reflected the wording of its
predecessor s 374 of Act 31 of 1917. In Solomons,[2]
following the decision in Gani,[3] this
court held that the effect of s 369 of the 1955 Act was that the State can only
have a question of law reserved should there be an acquittal of the accused.
[7]
After Solomons and Gani, this court held that an acquittal
envisaged by s 322(4) had to be a total acquittal, and that did not include a
case in which a competent verdict had been entered in place of the charge upon
which the accused had been arraigned in the charge sheet. Thus in Seekoei,[4] where an
accused had been charged with housebreaking with intent to rob and robbery with
aggravating circumstances, but convicted on the competent verdict of the lesser
offence of housebreaking with intent to steal and theft with aggravating
circumstances, it was held there had not been an ‘acquittal’ as intended by
s 322(4). The court went on to hold that in consequence of there having
been no acquittal, the trial court had impermissibly reserved a question of law
for determination under s 319.
[8] At first blush this
decision seems to provide an obstacle to the State’s appeal on points of law in
the present matter as, although the accused was not convicted of the murder
with which he had been charged, he was convicted on the competent verdict of
culpable homicide – and thus there was not a ‘total acquittal’ on the murder
charge making it permissible for the trial court to reserve points of law as it
did. However, the matter does not end there. As was argued by the State, the
accused could quite easily have been charged with culpable homicide as an
alternative charge to that of murder. If that had been done, and the accused
found guilty of culpable homicide, the court would have been obliged to acquit
him on the murder charge, and in that event the ratio of the decision in Seekoei would not operate to bar an
appeal on a point of law in respect of that charge.
[9] The decision in Seekoei has been a matter of
controversy, and doubt has been expressed in this court on the correctness of the
reasoning.[5]
It is after all somewhat artificial to regard an accused found guilty of the
lesser offence of culpable homicide not to have been acquitted of the more
serious charge of murder. But any dispute on this has been resolved by the
decision of the Constitutional Court in Basson.[6] In that
matter, after considering the legislative history of s 319(2) of the CPA, the
court held that there is ‘nothing in this language to suggest that the State
may only request the reservation of questions directed at the conviction or
acquittal of the accused’.[7] In the
light of this, counsel for the accused accepted that the limitation upon the
State’s right to appeal on a point of law as prescribed in Seekoei could no longer be regarded as good law and that there
could be no objection to the appeal proceeding in respect of the points of law
reserved in the trial court, notwithstanding the conviction of the accused on
the competent verdict of culpable homicide. This concession was correctly made.
[10] In the light of this, I turn
to the issues raised in the appeal. In order to do so it is necessary to paint
the factual backdrop to the points of law debated before us.
[11] The accused was born with
deformed legs, the fibula on each side having been missing. Consequently, before
his first birthday, both of his legs were surgically amputated below the knee
and, since then, he has had to rely on prosthetics. Despite such a severe
physical handicap, he made his way bravely into the world and, at school,
although he described himself in evidence as having been ‘never really much of
an academic’, he participated in various sports. It was during the course of
rehabilitation from a knee injury sustained playing rugby that, in early 2004,
he started training with a biokineticist at the University of Pretoria who
encouraged him to participate in a disabled athletics meeting. He did and the
rest, as they say, is history. It is unnecessary to detail the accused’s
spectacular athletic career which followed. Suffice it to say that he was awarded
a sports bursary by the University of Pretoria and competed at an international
level in both disabled and able-bodied athletic events. He won numerous international medals,
including gold medals at the Paralympics. Having persuaded the International
Athletic Federation that he enjoyed no advantage by using prosthetic legs, the
accused represented South Africa in both the Olympic and the Paralympic Games of
2012. His athletic achievements not only brought him international fame but
also into contact with charities, and for his humanitarian work in the world of
prosthetic and prosthetic developments he was awarded an honorary doctorate
from the University of Strathclyde in Glasgow.
[12] The accused met the
deceased on 4 November 2012 when they were separately invited by a mutual
friend to lunch at a motorcar track-day event. She agreed to accompany him to
the South African Sports Awards function that evening. Romance quickly
blossomed and they became intimate. As so often happens with romantic relationships,
especially in their youthful stages, theirs was attended by petty conflict and
tensions as evidenced by a transcript of text messages that had passed between
them that was handed in as an exhibit at the trial. But despite these hiccups,
the deceased at times slept over at the accused’s home.
[13] She did so on the night of
13 February 2013. In the early hours of the following morning, screams,
gunshots, loud noises and cries for help were heard, emanating from the
accused’s house. Within minutes, a Mr Stander and a Dr Stipp, the latter a
medical practitioner, arrived at the accused’s home. There they found the
accused in a highly emotional state, kneeling alongside the deceased who was
lying on the floor at the foot of the stairs leading to the sleeping quarters
of the house. She had been carried there by the accused from an upstairs
bathroom where the shooting had taken place.
She had been shot several times and was mortally wounded. The severity
of her injuries was such that she was not breathing and Dr Stipp was unable to
find a pulse. If she was still alive at
that time, she died soon after. In due course the accused was charged with her
murder in the Pretoria High Court.
[14] It was common cause at his
trial that the accused was responsible for the death of the deceased in that he
had fatally injured her when he fired four shots with a 9mm pistol through the
door of a toilet cubicle in the bathroom adjacent to his bedroom. Relying upon
a web of circumstantial evidence, including the screams that had been heard
before the sound of the shots that the accused had fired, the State attempted
to persuade the trial court that the accused had threatened the deceased during
the course of an argument, that she had locked herself into the toilet cubicle
in the bathroom to escape from him, and that he had thereupon fired the fatal
shots through the door and killed her.
[15] The accused, on the other
hand, alleged that he had awoken from his sleep in the early hours of the
morning. It was very warm and, when he sat up, he noticed that two fans he had
earlier positioned near the sliding door in the room leading onto a balcony were
still running and the door was still open. Although it was dark in the room, he
was aware that the deceased was awake in the bed next to him as she rolled over
and spoke to him. He got out of bed, brought the two fans into the room, closed
and locked the sliding doors, and drew the curtains. It was very dark in the
room, the only light being from a small LED on an amplifier at the TV cabinet.
He noticed a pair of jeans lying on the floor, and had just picked them up in
order to place them over the amplifier to cover the light when he heard the
sound of a window opening in the bathroom. The bathroom is situated not
directly adjacent to the bedroom but down a short passage lined with cupboards.
He immediately thought that there was an intruder who had entered the house
through the bathroom window, possibly by climbing up a ladder. He quickly moved
back to his bed and grabbed his 9mm pistol from where he kept it under the bed.
As he did so, he whispered to Reeva to ‘get down and phone the police’ before
proceeding to the passage leading to the bathroom. He was not wearing his
prosthetic legs at that stage and, overcome with fear, he started screaming and
shouting both for the intruder to get out of his house and for Reeva to get
down on the floor and to phone the police. When he reached the entrance to the
bathroom, he stopped shouting as he was worried that the intruder would know
exactly where he was. As he neared the bathroom he heard the toilet door slam.
Photographs of the bathroom showed that facing the passageway entrance there is
a shower cubicle immediately adjacent to a toilet cubicle, the latter having an
external window. The toilet cubicle is fitted with a door, and is very small.
Also in the bathroom is a triangular built-in corner bath, immediately to the
left as one enters.
[16] According to the accused, he
had his pistol raised in a firing position with his arm extended ahead of him.
Peering around the wall at the end of the passage, he saw that there was no one
in the bathroom itself but that the toilet door was closed. He alleged that at
that point he started screaming again, telling Reeva, who he presumed was in
the bedroom, to phone the police. He then heard a noise coming from inside the
toilet and promptly fired four shots at the door. After that he retreated to
the bedroom where he found that Reeva was no longer there. It then dawned on
him that it could be her in the toilet. In panic he went back to the bathroom
and tried to open the door, but found it to be locked. He then started screaming
for help, put on his prosthetic legs, and unsuccessfully tried to kick open the
door. He then grabbed a cricket bat which he used to bash out a piece from the
door, and seeing the key lying on the toilet floor, he unlocked the door and
found Reeva slumped with her weight on the toilet bowl. She was not breathing.
He held her, and at some point thought he heard her breathing. And so he pulled
her into the bathroom before telephoning another resident of the estate, Mr
Stander, (the phone call was made at 3:19) followed by the emergency number of
Netcare 911, a paramedic organisation (at 3:20), and then the estate’s security
(some 90 seconds later). He thereafter carried Reeva down the stairs where he
was found, first by Mr Stander and shortly thereafter by Dr Stipp, when they
arrived at the house.
[17] With ample justification, the court found the accused to have been
‘a very poor witness’. His version varied substantially. At the outset he
stated that he had fired the four shots ‘before I knew it’ and at a time when
he was not sure if there was somebody in the toilet. This soon changed to a
version that he had fired as he believed that whoever was in the toilet was
going to come out to attack him. He later changed this to say that he had never
intended to shoot at all; that he had not fired at the door on purpose and that
he had not wanted to shoot at any intruder coming out of the toilet. In the
light of these contradictions, one really does not know what his explanation is
for having fired the fatal shots, an issue to which I shall revert in due
course. There were other inherent improbabilities in his version, some of which
were mentioned by the trial court in its judgment.
[18] It is not necessary to
examine the accused’s credibility in any greater detail for purposes of this
judgment as, despite these deficiencies, the trial court concluded that it had
not been shown that the State’s version ─ that there had been an argument between the
accused and the deceased which had led to her fleeing to lock herself into the
toilet and him then shooting her through the door ─ was true beyond a
reasonable doubt; and that the State had not shown that the accused had fired
at the toilet door for any reason other he had thought there was an intruder
behind it. It therefore concluded that it could not 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, and therefore ‘he cannot be found guilty of murder dolus directus’. Although it is not
clear from the judgment, this finding appears to have been based on the
reasoning that the accused could not be found guilty of murder with direct
intent as he had not known Reeva was in the toilet (the correctness of this
latter conclusion was not an issue raised in this appeal).
[19] Importantly, the trial
court went on to find that the accused, in shooting as he did, had not done so
with so-called legal intent or dolus
eventualis (an issue that lies at the heart of this appeal). However, it
found that the shooting had been unlawful and that, although the accused had
not had the necessary intention to kill the deceased, he had done so
negligently and was therefore guilty of culpable homicide. The accused was thereupon
sentenced to five years’ imprisonment capable of being converted to
correctional supervision under s 276(1)(i)
of the CPA.
[20] It was pursuant to this finding
that the State sought, and obtained, the trial court’s leave to appeal to this
court in respect of questions of law reserved under s 319 of the CPA. The
questions, so reserved, were the following:
‘1.Whether the principles of dolus
eventualis were correctly applied to the accepted facts and the conduct of the accused,
including error in objecto.
2.
Whether the court correctly conceived and applied the legal principles
pertaining to circumstantial evidence and/or pertaining to multiple defences by
an accused.
3.
Whether the court was correct in its construction and reliance on an
alternative version of the accused and that this alternative version was
reasonably possibly true.’
[21] It is probably wise at this
stage to briefly explain the ambit of this appeal and what this court may
consider. As a general rule, an appeal is a complete rehearing, without the
leading of evidence, in which a trial court’s conclusions of both fact and law
may be challenged by having regard to the evidence on record. As a general
rule, then, a person convicted of a crime may, on appeal, challenge the
credibility of the witnesses who testified at the trial as well as the factual
findings made by the trial court upon which the conviction was based. The trial
court’s conclusions on matters of law relevant to the conviction may also be
disputed.
[22] However, in a case such as
this, where effectively the State seeks to appeal against the acquittal of the
accused (in this instance on the charge of murder) and the appeal is brought
under the provisions of s 319 of the CPA, different considerations apply. Of
course the State may well feel justifiably aggrieved by a trial court
acquitting an accused person when, on the facts of the case, a conviction
should have followed, but in such a case, as was observed by Corbett CJ in Magmoed[8] ‘the traditional policy and practice of
our law’ is that an acquittal by a competent court in a criminal case is final
and conclusive and may not be questioned in any subsequent proceeding.
[23] Consequently, as opposed to
an accused who has the benefit of appealing against a conviction based on
alleged incorrect factual findings, the State may not appeal against an
acquittal based solely on findings of fact. And as Chaskalson CJ pointed out in
Basson:[9]
‘Prior to 1948 [the State] could also not appeal against a finding of law
made in a trial before a Judge which resulted in the acquittal of an accused
person. In 1948 the Criminal Procedure Act then in force was amended to make
provision for the reservation of questions of law at the instance of the State in
terms substantially similar to s 319 of the present Act.’
[24] In the light of these
decisions, the State has no right to appeal save where there is a statutory
right bestowed on it to do so. In this instance its right is limited to the
three questions of law reserved, quoted above. This court cannot interfere, for
example, with the factual decision made by the trial court rejecting the
State’s version that there had been a disagreement between the appellant and the
deceased that led the deceased to hide herself in the toilet to escape from him,
before being shot. The matter must therefore proceed, as was accepted by the
State, on the basis both that its rejected version cannot be reconsidered and
that it has not been shown that the
accused had acted with the direct intention to kill the deceased. The
State’s case before this court therefore revolved primarily on whether the
trial court had erred in regard to the issue of dolus eventualis.
[25] It is necessary to explain
certain of the issues that arise for consideration in a murder case. Over the
years jurists have developed what has been referred to as the ‘grammar of
criminal liability’.[10]
As already mentioned, murder is the unlawful and intentional killing of another
person. In order to prove the guilt of an accused on a charge of murder, the
State must therefore establish that the perpetrator committed the act that led
to the death of the deceased with the necessary intention to kill, known as dolus. Negligence, or culpa, on the part of
the perpetrator is insufficient.
[26] In cases of murder, there
are principally two forms of dolus
which arise: dolus directus and dolus eventualis. These terms are
nothing more than labels used by lawyers to connote a particular form of
intention on the part of a person who commits a criminal act. In the case of
murder, a person acts with dolus directus
if he or she committed the offence with the object and purpose of killing
the deceased. Dolus eventualis, on
the other hand, although a relatively straightforward concept, is somewhat
different. In contrast to dolus directus,
in a case of murder where the object and purpose of the perpetrator is
specifically to cause death, a person’s intention in the form of dolus eventualis arises if the
perpetrator foresees the risk of death occurring, but nevertheless continues to
act appreciating that death might well occur, therefore ‘gambling’ as it were
with the life of the person against whom the act is directed. It therefore
consists of two parts: (1) foresight of the possibility of death occurring, and
(2) reconciliation with that foreseen possibility. This second element has been
expressed in various ways. For example, it has been said that the person must act
‘reckless as to the consequences’ (a phrase that has caused some confusion as
some have interpreted it to mean with gross negligence) or must have been
‘reconciled’ with the foreseeable outcome. Terminology aside, it is necessary
to stress that the wrongdoer does not have to foresee death as a probable
consequence of his or her actions. It is sufficient that the possibility of
death is foreseen which, coupled with a disregard of that consequence, is
sufficient to constitute the necessary criminal intent.
[27] These are the basic principles to be borne
in mind in considering the first of the three legal questions reserved for
decision in this appeal. The first relates specifically to whether the trial
court properly applied these principles to the facts that it had found had been
proved. In considering whether it did, it is necessary to quote fairly fully
the trial court’s reasoning relevant to whether the accused had acted with dolus eventualis when he fired the fatal
shots through the door of the toilet cubicle. In this regard it said the
following:
‘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?
The evidence
before this court does not support the state’s contention that this could be a
case of dolus eventualis.
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.’
After recording that the accused had told the persons
who first arrived on the scene, including Dr Stipp and the police, that he had
shot the deceased believing that she was an intruder, the court continued:
‘Counsel for the defence correctly argued that
it was highly improbable that the accused would have made this up so quickly
and be consistent in his version, even at the bail application before he had
access to the police docket and before he was privy to the evidence on behalf
of the State at the bail application.
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. Although during argument counsel for the state
referred to “a good grouping” of bullets fired at the door as proof that there
was intention to kill the person behind the door there was nothing in the
evidence to support this.
How could the accused reasonably have foreseen
that the shots he fired would kill the deceased or whoever was behind the door?
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. The version of the accused was that had he intended
to kill the person behind the door he would have aimed higher at chest level.
This was not contradicted.
To find an
intention to kill the deceased, in particular, would be tantamount to saying,
inter alia, 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.
Doctor Stipp, an
independent witness who was at the accused’s house minutes after the incident
had occurred, stated that the accused looked genuinely distraught, as he prayed
to God and as he pleaded with him to help save the deceased.
There was nothing
to gainsay that observation and this court has not been given any reason to
reject it and we accept it as true and reliable. This court also accepts that there was no intention to kill the
person behind the door. It follows
that the accused’s erroneous belief that his life was in danger excludes dolus. The accused, therefore cannot be
found guilty of murder dolus eventualis.’
(The italicised
emphasis is mine.)
[28] I find the reasoning in this
passage to be confusing in various respects. The rhetorical question ‘How could
the accused reasonably have foreseen that the shots he fired would kill the
deceased or whoever was behind the door?’ wrongly applies an objective rather
than a subjective approach to the question of dolus. The issue was not what was reasonably foreseeable when the
accused fired at the toilet door but whether he actually foresaw that death
might occur when he did so. As Holmes JA emphasised in Sigwahla:[11]
‘The
distinction must be observed between what actually went on in the mind of the
accused and what would have gone on in the mind of a [reasonable person] in the
position of the accused. In other words, the distinction between subjective
foresight and objective foreseeability must not become blurred.’
Moreover, the question indicates that the court found the presence of a
person behind the door not to have been reasonably foreseeable; but this is at
odds with its subsequent conclusion that the accused was guilty of culpable
homicide on the basis that a reasonable person in the same circumstances would
have foreseen the reasonable possibility that the shots fired at the door of
the toilet might kill whoever was in the toilet.
[29] Furthermore, the finding that
the accused had not subjectively foreseen that he would kill whoever was behind the door and that if he had he
intended to do so he would have aimed higher than he did, conflates the test of
what is required to establish dolus
directus with the assessment of dolus
eventualis. The issue was not whether the accused had as his direct
objective the death of the person behind the door. What was required in
considering the presence or otherwise of dolus
eventualis was whether he had foreseen the possible death of the person
behind the door and reconciled himself with that event. The conclusion of the
trial court that the accused had not foreseen the possibility of death
occurring as he had not had the direct intent to kill, shows that an incorrect
test was applied.
[30] There was a further
fundamental error. It is apparent from the extract of the judgment quoted
above, in particular the two questions posed at the outset and the passages
that I have emphasized, that the trial court’s consideration of dolus eventualis centred upon whether
the accused knew that the person in the toilet cubicle was Reeva, and its
conclusion that dolus eventualis had
not been proved was premised upon an acceptance that, as he had thought Reeva
was in the bedroom, he did not foresee that she was the person in the toilet.
Simply put, the finding was that as the accused did not realise that it was
Reeva in the toilet, he did not foresee that his action in shooting could cause
her death and he could not be held guilty of her murder.
[31] This finding goes to the
heart of the first question of law reserved ie whether the principles of dolus eventualis, including so-called ‘error in objecto’, were properly
applied. In this regard, it is necessary to stress that although a
perpetrator’s intention to kill must relate to the person killed, this does not
mean that a perpetrator must know or appreciate the identity of the victim. A
person who causes a bomb to explode in a crowded place will probably be ignorant
of the identity of his or her victims, but will nevertheless have the intention
to kill those who might die in the resultant explosion. Reverting to the lexicon
of a lawyer, this is known as intent in the form of so-called ‘dolus indeterminatus’ ie the killing of
an indeterminate person.[12]
It is not a form of intention apart from dolus
directus or dolus eventualis; it is
merely a label meaning that the perpetrator’s intention is directed at a person
or persons of unknown identity. A perpetrator can therefore act with dolus indeterminatus simultaneously with
dolus eventualis. For example, as
Snyman points out,[13]
and as this court has recently observed,[14] our
courts have consistently held persons engaged in a wild shootout in the course
of an armed robbery to be liable for murder on the basis of their having acted
with both dolus eventualis and dolus indeterminatus where persons were
killed as a result.[15]
[32] What was in issue,
therefore, was not whether the accused had foreseen that Reeva might be in the
cubicle when he fired the fatal shots at the toilet door but whether there was
a person behind the door who might possibly be killed by his actions. The
accused’s incorrect appreciation as to who was in the cubicle is not
determinative of whether he had the requisite criminal intent. Consequently, by
confining its assessment of dolus
eventualis to whether the accused had foreseen that it was Reeva behind the
door, the trial court misdirected itself as to the appropriate legal issue.
[33] This conclusion shows the fallacy
in the submission of counsel for the accused that the first question of law
raised solely a question of fact. Since the question as to the form of the
intention of an accused in a case of murder invokes a factual enquiry, at best
for the accused the first question reserved invokes an issue of mixed fact and
law. As there was an incorrect application of the legal issue, the first point
of law reserved must be determined in favour of the State.
[34] A further issue which arises
in respect of dolus eventualis overlaps
with the second point of law reserved for decision, namely whether the legal
principles relating to circumstantial evidence were correctly applied. As
this court has pointed out,[16]
while the subjective state of mind of an accused person in a case such as this is
an issue of fact that can often only be inferred from the circumstances
surrounding the infliction of the fatal injury, the inference to be properly
drawn must be consistent with all the proved fact. It is thus trite that a trial court must consider
the totality of the evidence led to determine whether the essential elements of
a crime have been proved.[17]
As Nugent J stated in Van der Meyden,[18] a
passage oft cited with approval in this court:[19]
‘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 reasonably 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.’
[35] In Magmoed one of the parties had been an
accused in previous criminal proceedings during which he had made certain vital
admissions relevant to the issues in the subsequent proceedings. An application
to use the evidence in the previous proceedings was ruled inadmissible, and the
issue arose whether this ruling was an issue of fact or of law. Corbett CJ held
that the trial court, which had ruled the evidence to be inadmissible, had
erred as a matter of law, and that ‘it would have served the due administration
of justice’ for the evidence to have been admitted.[20]
[36] There
seems to me to be no difference in principle between the exclusion of relevant
evidence by ruling it inadmissible and excluding such evidence, once admitted,
by not taking it into account to decide the issues in dispute. In either event
the judicial process becomes flawed by regard not being had to material which
might affect the outcome. As much as excluding evidence on the basis of admissibility
is a legal issue, it seems to me to also be a legal issue should account not be
taken of any evidence placed before court which ought to be weighed in the
scales.
[37] Illustrative of this, is the
decision of the Canadian Supreme Court in R v B,[21] to
which counsel for both sides referred us. The accused in that case had been
charged with assault, an allegation they denied. The trial judge acquitted them
but the Court of Appeal allowed the Crown’s appeal and ordered a new trial. In
doing so, it acknowledged that under the Canadian Criminal Code, similar to the
position in this country, it was not open to an appellate court to consider the
reasonableness of a trial judge’s findings of fact, but stated it could
determine whether the trial court had properly directed itself to all the
relevant evidence bearing on the relevant issues. It held that the trial judge
had ignored certain evidence, or failed to mention it and, in doing so,
displayed a lack of appreciation of the relevant evidence which could have had
a bearing on the result. This justified an appeal court interfering with the
decision. In a further appeal, this time by the accused, the Supreme Court of
Canada confirmed the order of the Court of Appeal. In doing so, Wilson J stated that although it
had not been open for the Court of Appeal to overturn the acquittal if it found
it to be unreasonable or unsupported by the evidence, it could do so on
questions of law and that an appeal would lie where the question of law
originates from the trial judge’s conclusion that he or she is not convinced of
the guilt of the accused because of an erroneous approach to, or treatment of,
the evidence adduced at trial.[22]
After referring to the judgment of the majority of the Canadian Supreme Court
in Harper[23] in which the court had held that where
the record, including the reasons for judgment, discloses ‘a lack of
appreciation of relevant evidence and more particularly the complete disregard
of such evidence’ a court of appeal could intervene, Wilson J cited with
approval[24]
the following comment of Marshall JA in a judgment of the Newfoundland Court of
Appeal in R v Roman,[25] a case
also involving an acquittal (a passage which counsel for the accused conceded
in this court would also amount to an accurate reflection of our law):
‘There
is a distinction between reassessment by an appeal court of evidence for the
purpose of weighing its credibility to determine culpability on the one hand
and, on the other, reviewing the record to ascertain if there has been an absence
of appreciation of relevant evidence. The former requires addressing questions
of fact and is placed outside the purview of an appellate tribunal . . . the
latter enquiry is one of law because if the proceedings indicate a lack of
appreciation of relevant evidence, it becomes a reviewable question of law as
to whether this lack precluded the trial judge from effectively interpreting
and applying the law.’
[38] In the present instance, although the question of the accused’s intention
at the relevant time is one of fact to be determined by inference, there
regrettably does appear to have been such ‘an absence of appreciation of
material evidence’ relevant to that issue. In this regard, the failure of the
court to take into account the evidence of Capt Mangena , a police forensic
expert, whose evidence as to the reconstruction of the crime scene was found by
the court to have been ‘particularly useful’, is of particular importance.
Having regard to the position of the bullet holes in the door, the marks the
bullets left in the toilet cubicle and the position of the injuries on the
deceased’s body, and after making use, inter alia, of laser technology, he
determined that the deceased must have been standing behind the door when she
was first shot and then collapsed down towards the toilet bowl. Although the
precise dimensions of the toilet cubicle do not appear from the record, it is
clear from the photographs that it is extremely small. And it is also apparent
from the reconstruction and the photographs, demonstrating with laser beams and
steel rods the path each bullet had travelled, that all the shots fired through
the door would almost inevitably have struck a person behind it. There had
effectively been nowhere for the deceased to hide.
[39] In addition, Capt Mangena
testified that the Black Talon ammunition the accused had used was specifically
designed for the purpose of self-defence. It would penetrate a wooden door without
disintegrating but would mushroom on striking a soft, moist target such as
human flesh, causing devastating wounds to any person who might be hit. The
veracity of this is borne out by the photographs depicting the injuries the
deceased sustained, correctly described by the trial court as being
‘horrendous’.
[40] All of this was
circumstantial evidence crucial to a decision on whether the accused, at the
time he fired the fatal four shots, must have foreseen, and therefore did
foresee, the potentially fatal consequences of his action. And yet this
evidence was seemingly ignored by the trial court in its assessment of the
presence of dolus eventualis. Had it
been taken into account, the decision in regard to the absence of dolus eventualis may well have been
different. In the light of the authorities I have mentioned, to seemingly
disregard it must be regarded as an error in law.
[41] Consequently, the first two
questions reserved for decision must be answered in favour of the prosecution
to the extent that I have indicated. I thus turn to the third question, namely,
whether the trial court was correct ‘in its construction and reliance of an
alternative version of the accused and that this alternative version was
reasonably possibly true’. The question as posed is vague. Questions reserved
for decision under s 319 of the CPA should be clearly formulated so that this
court can identify with precision the legal issue it is called upon to decide.
At best for the State, the question asks no more than whether the accused’s
version accepted by the trial court was reasonably possibly true. This is a
factual decision. As already set out, and on the strength of the authorities to
which I have referred, a finding of fact falls beyond the scope of what this
court may decide under s 319. In any event, in the light of my findings in regard
to the first two questions, the third question, even if it can be construed as
being a point of law, seems superfluous.
[42] To summarise, in regard to
the questions of law reserved for decision of this court:
(1) The principles of dolus
eventualis, including error in
objecto, were incorrectly applied to the facts found to be proved relevant
to the conduct of the accused; and
(2) The trial court did not
correctly conceive and apply the legal principles pertaining to circumstantial
evidence.
[43] The question then becomes,
what should this court do in the light of these findings? The powers of a court
in the case of an appeal on a question of law reserved are set out in s 322 of
the CPA as follows:
‘(1) In the case of an appeal
against a conviction or of any question of law reserved, the court of appeal
may-
(a) allow the appeal if it thinks that the judgment of the
trial court should be set aside on the ground of a wrong decision of any
question of law or that on any ground there was a failure of justice; or
(b) give such judgment as ought to have been given at the
trial or impose such punishment as ought to have been imposed at the trial; or
(c) make such other order as justice may require:
Provided that, notwithstanding that
the court of appeal is of 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.
. . . .
(4) Where a question of law has been reserved
on the application of a prosecutor in the case of an acquittal, and the court
of appeal has given a decision in favour of the prosecutor, the court of appeal
may order that such of the steps referred to in section 324 be taken as the
court may direct.’
[44] Under s 324 of the CPA, referred to in s 322(4), where there has
been a misdirection of law, as has occurred in this case, proceedings in
respect to the same offence may again be instituted before another judge and
assessors. Accordingly, it is a permissible option for this court to set aside
the conviction of culpable homicide on count one of the indictment and order
that the accused be tried de novo on
that count. However, given the protracted nature of the trial that has already
taken place, the issues that were involved, the time that has already elapsed
and the unfairness that may result if witnesses have once again to testify,[26] it
would seem to me to be wholly impracticable and not in the public interest to
follow that course. Indeed neither side pressed for such an order.
[45] Counsel for the accused drew
our attention to the fact that the accused has already served the period of
direct imprisonment envisaged by the period of correctional supervision imposed
upon him by the trial court, and argued that apart from answering the questions
of law, this court should exercise its discretion under s 322 to make no
further order. However, in my view, that
too is undesirable. The interests of justice require that persons should be
convicted of the actual crimes they have committed, and not of lesser offences.
That is particularly so in crimes of violence. It would be wrong to effectively
think away the fact that an accused person is guilty of murder if he ought to
have been convicted of that offence.
[46] In my
view, the option which most readily presents itself as being in the interests
of justice is to consider whether on the facts found proved, the trial court
erred in drawing the inference it did as to dolus
eventualis. This is so as in an appeal of this nature this court is in as
good a position as the trial court in drawing inferences of fact from proven
facts.[27] In
my view, then, the interests of justice require this court on an acceptance of the
facts found proved, if of the view that the incorrect conclusion was reached in
respect of dolus, to set aside the
conviction of culpable homicide on count 1.
[47] The pertinent
issue then becomes whether, on the primary facts found proved, considering all
of the evidence relevant to the issue, and applying the correct legal test, the
inference has to be drawn that the accused acted with dolus eventualis when he fired the fatal shots. In this regard the
following observation of Brand JA in Humphreys
is to the point:[28]
‘[L]ike
any other fact, subjective foresight can be proved by inference. Moreover,
common sense dictates that the process of inferential reasoning may start out
from the premise that, in accordance with common human experience, the
possibility of the consequences that ensued would have been obvious to any
person of normal intelligence. The next logical step would then be to ask
whether, in the light of all the facts and circumstances of this case, there is
any reason to think that the appellant would not have shared this foresight,
derived from common human experience, with other members of the general
population.’
[48] In
arguing that the State had failed to show that the accused lacked the necessary
subjective intention in respect of both elements of dolus eventualis, counsel for the accused emphasised the accused’s
physical disabilities, the fact that he had not been wearing his prostheses at
the time and that he had thus been particularly vulnerable to any aggression
directed at him by an intruder. He also placed considerable emphasis on the
psychiatric evidence that the accused suffers from a general anxiety disorder,
and would become anxious very easily in a situation of danger, although he also
has a ‘fight rather than flight’ reaction. The argument appears to have been
that in the circumstances that prevailed, the accused may well have fired
without thinking of the consequences of his actions.
[49] In my
view this cannot be accepted. On his own version, when he thought there was an
intruder in the toilet, the accused armed himself with a heavy calibre firearm
loaded with ammunition specifically designed for self-defence, screamed at the
intruder to get out of his house, and proceeded forward to the bathroom in
order to confront whoever might be there. He is a person well-trained in the
use of firearms and was holding his weapon at the ready in order to shoot. He
paused at the entrance to the bathroom and when he became aware that there was
a person in the toilet cubicle, he fired four shots through the door. And he
never offered an acceptable explanation for having done so.
[50] As a
matter of common sense, at the time the fatal shots were fired, the possibility
of the death of the person behind the door was clearly an obvious result. And
in firing not one, but four shots, such a result became even more likely. But
that is exactly what the accused did. A court, blessed with the wisdom of
hindsight, should always be cautious of determining that because an accused
ought to have foreseen a consequence, he or she must have done so. But in the
present case that inference is irresistible. A person is far more likely to
foresee the possibility of death occurring where the weapon used is a lethal
firearm (as in the present case) than, say, a pellet gun unlikely to do serious
harm. Indeed, in this court, counsel for
the accused, while not conceding that the trial court had erred when it
concluded that the accused had not subjectively foreseen the possibility of the
death of the person in the toilet, was unable to actively support that finding.
In the light of the nature of the firearm and the ammunition used and the
extremely limited space into which the shots were fired, his diffidence is
understandable.
[51] In these
circumstances I have no doubt that in firing the fatal shots the accused must
have foreseen, and therefore did foresee, that whoever was behind the toilet door
might die, but reconciled himself to that event occurring and gambled with that
person’s life. This constituted dolus
eventualis on his part, and the identity of his victim is irrelevant to his
guilt.
[52] As a final counter to the State’s case, it
was argued that although the accused had not acted in private or so called
‘self-defence’ ─ there had in fact been
no attack upon him that he had acted to ward off ─ he had genuinely but
erroneously believed that his life was in danger when he fired the fatal shots.
As opposed to what is commonly known as self-defence, this is so-called
‘putative’ private or self-defence. The principles relevant to these two
defences were authoritatively dealt with by this court in De Oliveira,[29]
and were explained by Smalberger JA as follows:
‘The test for private defence is
objective ─ would a reasonable man in the position of the accused have acted in
the same way (S v Ntuli 1975 (1) SA
429 (A) at 436E). In putative private defence it is not lawfulness that is in
issue but culpability (‘skuld’). If an accused honestly believes his life or
property to be 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 upon the precise circumstances)
exclude dolus in which case liability
for the person’s death based on intention will also be excluded; at worst for
him he can then be convicted of culpable homicide.
On
appeal the unlawfulness of the appellant’s conduct was not in issue.
Accordingly the only issue was whether the State had proved beyond all
reasonable doubt that the appellant subjectively had the necessary intent to
commit the crimes of which he was convicted, in other words, that he did not
entertain an honest belief that he was entitled to act in private defence . . .’
[53] The
immediate difficulty that I have with the accused’s reliance upon putative
private defence is that when he testified, he stated that he had not intended
to shoot the person whom he felt was an intruder. This immediately placed
himself beyond the ambit of the defence, although as I have said, his evidence
is so contradictory that one does just not know his true explanation for firing
the weapon. His counsel argued that it had to be inferred that he must have viewed
whoever was in the toilet as a danger. But as was pointed out in De Oliviera,[30]
the defence of putative private defence implies rational but mistaken thought.
Even if the accused believed that there was someone else in the toilet, his
expressed fear that such a person was a danger to his life was not the product
of any rational thought. The person concerned was behind a door and although
the accused stated that he had heard a noise which he thought might be caused
by the door being opened, it did not open. Thus not only did he not know who
was behind the door, he did not know whether that person in fact constituted
any threat to him. In these circumstances, although he may have been anxious,
it is inconceivable that a rational person could have believed he was entitled
to fire at this person with a heavy calibre firearm, without taking even that
most elementary precaution of firing a warning shot (which the accused said he
elected not to fire as he thought the ricochet might harm him). This
constituted prima facie proof that the accused did not entertain an honest and
genuine belief that he was acting lawfully, which was in no way disturbed by his
vacillating and untruthful evidence in regard to his state of mind when he
fired his weapon.[31]
[54] In order
to disturb the natural inference that a person intends the probable
consequences of his actions, the accused was required to establish at least a
factual foundation for his alleged genuine belief of an imminent attack upon him.
This the accused did not do. Consequently, although frightened, the accused
armed himself to shoot if there was someone in the bathroom and when there was,
he did. In doing so he must have foreseen, and therefore did foresee that the
person he was firing at behind the door might be fatally injured, yet he fired
without having a rational or genuine fear that his life was in danger. The
defence of putative private or self-defence cannot be sustained and is no bar
to a finding that he acted with dolus
eventualis in causing the death of the deceased.
[55] In the
result, on count 1 in the indictment the accused ought to have been found
guilty of murder on the basis that he had fired the fatal shots with criminal
intent in the form of dolus eventualis.
As a result of the errors of law referred to, and on a proper appraisal of the
facts, he ought to have been convicted not of culpable homicide on that count
but of murder. In the interests of justice the conviction and the sentence
imposed in respect thereof must be set aside and the conviction substituted
with a conviction of the correct offence.
[56] Of course
the accused has now served a portion of the sentence imposed upon him in
respect of the lesser offence of culpable homicide. But the issue of what would
be an appropriate sentence was not debated before this court, quite properly,
particularly in the light of the Constitutional Court’s judgments in Nabolisa[32] and Bogaards[33] as the matter must be sent back to the
trial court for sentence to be imposed afresh. In doing so, obviously whatever punishment
has already been served by the accused in respect of the incorrect conviction
of culpable homicide will be taken into account.
[57] Before
closing, it is necessary to make a final comment. The trial was conducted in the
glare of international attention and the focus of television cameras which must
have added to the inherently heavy rigors that are brought to bear upon trial
courts in conducting lengthy and complicated trials. The trial judge conducted
the hearing with a degree of dignity and patience that is a credit to the
judiciary. The fact that this court has determined that certain mistakes were
made should not be seen as an adverse comment upon her competence and ability.
The fact is that different judges reach different conclusions and, in the light
of an appeal structure, those of the appellate court prevail. But the fact that
the appeal has succeeded is not to be regarded as a slight upon the trial judge
who is to be congratulated for the manner in which she conducted the
proceedings.
[58] The following order is made:
1 The first two questions of law reserved are
answered in favour of the Director of Public Prosecutions.
2 The accused’s conviction and sentence on
count 1 are set aside and replaced with the following:
‘Guilty of murder with the accused having had
criminal intent in the form of dolus
eventualis.’
3 The matter
is referred back to the trial court to consider an appropriate sentence afresh
in the light of the comments in this judgment.
_______________________
L E
Leach
Judge
of Appeal
Appearances:
For the Appellant: G
C Nel (with him A Johnson, DWM Broughton
and JS Grant)
Instructed by: Director
of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein
For the Respondent: B
Roux SC (with him S Jackson and R Adams
Instructed by: Barnard
Inc, c/o Pretorius Le Roux Attorneys, Pretoria
McIntyre
& Van der Post, Bloemfontein
[1] The reference to the Appellate
Division in the section must for present purposes be taken as an appeal to this
court.
[5] See S v Mene 1978 (1) SA 832 (A) at 838A-C.
[7]
Para 148.
[8] Magmoed v Janse van Rensburg & others 1993 (1) SACR 67 (A) at
101g-i.
[10] See CR Snyman Criminal Law 5th ed (2008) at
29.
[11] S v Sigwahla 1967 (4) SA 566 (A) at 570C-E.
[12] Compare eg S v Mavhungu 1981 (1) SA 56 (A) at 66H.
[13] CR Snyman, Criminal Law 5ed (2008) at 200 - 201.
[14] Nkosi v The State (20727/14) [2015] ZASCA 125 (22 September 2015)
para 5.
[15] See eg S v Nhlapo & another 1981 (2) SA 744 (A).
[16] Inter alia, in S v Dlodlo 1966 (2) SA 401 (A) at 405G-H.
[17] S v Libazi & another 2010 (2) SACR 233 (SCA) para 17.
[19] Eg S v Mdlongwa 2010 (2) SACR 419 (SCA) para 11.
[20] At 827G.
[22] Para 28.
[24] Para 34.
[26] Compare Magmoed at 827I-J.
[27] R v Dhlumayo 1948 (2) SA 677 (A) at 705-6, S v Crossberg 2008 (2) SACR 317 (SCA) para 149 and Minister of Safety and Security & others
v Craig & others NNO 2011 (1)
SACR 469 (SCA) para 58.
[28] S
v Humphreys 2015 (1) SA 491 (SCA) para 13.
[29] S v De Oliveira 1993 (2) SACR 59 (A) 63i-64b.
[30] S v De Oliveira 1993 (2) SACR 59 (A).
[31] Compare De Oliveira at 64H-65C.
[32] S v Nabolisa 2013 (2) SACR 221 (CC) para 82.
[33] S v Bogaards 2013 (1)
SACR 1 (CC) paras 74 and 75.
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