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Admissibility of pointing
out
CRIM. CASE NO. 31/99
In
the matter between
REX
Vs
PATRICK PAT LUKHELE AND THREE OTHERS
Coram S.B. MAPHALALA – J
For the Crown MR.
M.SIBANDZE
For Accused 1 & 2 MR. Z. MAGAGULA
For Accused 3 &
4 MR. MAGONGO
RULING AT THE CLOSE OF THE CROWN CASE
(17/05/2000)
Maphalala J:
Accused no. 1 to 4 are charged with two counts of
contravening the provisions of the Theft of Motor Vehicles Act 1991 (as
amended) as follows:
The accused persons are guilty of contravening Section 3 (1) of the
Theft of Motor Vehicles Act (as amended) in that upon or about the
6th day of May 1998 and at or near Mbabane in the District of Hhohho,
the accused persons acting jointly with a common purpose did wrongfully
and
unlawfully steal one motor vehicle registration number SD 952 VM a Toyota valued
at E16, 000 – 00 the property or in the
lawful possession of Simon
Ngwenya.
Accused no. 1 and 4 are guilty of contravening Section 3 (1) of the
Theft of Motor Vehicles Act, 1991 (as amended) in that upon or
about
12th May 1998, and at or near Hlathikulu area in the Shiselweni
District the said accused persons acting jointly and in furtherance of
a common
purpose did receive a motor vehicle registration number SD 952 VM knowing the
same to be stolen.
The accused persons pleaded not guilty to the charges.
A total of seven witnesses were led by the crown in support of the indictment.
At the conclusion of the crown’s case an application was made by both Mr.
Magagula and Mr. Magongo representing accused no1
and 2, accused no. 3 and 4
respectively, in terms of Section 174 (4) of the Criminal
Procedure and Evidence Act No. 67 of 1938 (as amended), for the
discharge of the accused persons on the ground that the crown has failed to
establish a prima facie case to place the accused persons on their
defence. Mr. Sibandze for the crown opposed the application advancing reasons
for such
opposition.
Section 174 (4) in terms of which the present
application has been made reads as follows:
“If at the close of the
case for the prosecution the court considers that there is no evidence that the
accused committed the
offence charged or any other offence of which he might be
convicted thereon, it may acquit and discharge him”.
This section
is similar in effect to Section 174 (4) of the South African
Criminal Procedure Act No. 51 of 1972. The test to be applied it has
been stated as whether there is evidence on which a reasonable man acting
carefully might convict. (See R vs Sikhumba 1955 (3) S.A. 125; R
vs Augustus 1998 (1) S.A. 75, not should convict (see
Gascoyne vs Pal and Hunter 1917 T.P.D 170 and R vs Stein 1925 A.D.
6).
Defence counsel advanced a number of arguments in support of
this application and for the sake of brevity I shall fuse the arguments
of both
defence counsel into one as they are in the main complimentary. I shall only
indicate points of differences as they relate
to their respective
clients.
The opening salvo by the defence is that the accused persons are
charged under the doctrine of common purpose but it has not been
proved by the
crown that the accused persons conspired with each other in the commission of
the offence. Mr. Magagula for accused
no. 1 and 2 contended that evidence which
purports to implicate accused no. 1 with the commission of the offence comes
from two sources
that is the evidence of PW4 Phillip Chumba and that of PW7
Sergeant John Dlamini. PW4 was commissioned by accused no. 1 to spray
paint a
motor vehicle and he did his job in broad daylight. There is no evidence that
PW4 was warned not to tell anybody that he
had spray painted the motor vehicle.
It cannot be inferred that accused no. 1 knew that the motor vehicle was stolen.
There is also
no evidence to show that accused no. 1 knew that the motor vehicle
was stolen but he proceed to receive it in his possession. There
was no
suggestion that the said motor vehicle being spray painted was hidden by PW4
from the public to suggest that there was something
wrong with the motor
vehicle.
The second attack on the evidence of the crown is directed
against the evidence of PW7 Sergeant John Dlamini where Mr. Magagula pointed
out
three difficulties with his evidence. Firstly, that he deposed that he warned
the accused persons in terms of the Judges Rules,
however, contends Mr. Magagula
the caution fell short of the requirement of the law. In that the police
officer failed to tell the
court what warning he gave to the accused persons.
The court cannot surmise that the caution was a proper caution. To support this
contention the court’s attention was drawn to the case of Rex vs
July Mhlongo and another Criminal Case No. 185/92 (unreported
case).
The second difficulty highlighted by Mr. Magagula against
the evidence of PW7 is that the officer did not tell the court that the
accused
freely and voluntarily pointed out the glasses to him (see the case of
July Mhlongo and another (supra). There is no indication or
allegation that accused no. 1 and accused no. 2 freely and voluntarily pointed
out the glasses. Mr. Magagula
urged the court to view this evidence as
inadmissible and thus of no legal consequence. The crown cannot assume that
anything that
the accused will say in their defence will cure the evidence of
the pointing out. Thirdly, he argued that PW7 failed to identify
to the court
the glasses, or windows retrieved from accused no. 1’s homestead. The
court cannot surmise that they are the
same glasses. The fourth and last
difficulty experienced by Mr. Magagula on the evidence of PW 7 is that he
admitted before court
that it has been some time since the commission of the
offence that his memory was very bad. He could not recall any pertinent dates
or the sequence of events in a month as it related to this case. That,
therefore his evidence is not trustworthy and should not
be relied upon. To
buttress this proposition I was directed to the case of Rex vs Govu Dladla
and others Criminal Case No. 168/98.
When dealing with accused
no. 2 Mr. Magagula pointed to the evidence of PW6 2639 Constable M.
Ndlangamandla who told the court that
he stopped a certain motor vehicle driven
by accused no. 2 and ordered that it be driven to the police station at
Hlathikulu. That
is all that is said in respect of accused no. 2 when he was
asked who was the owner of the motor vehicle he said it belonged to accused
no.
4. The evidence of Ndlangamandla does not prove that accused no. 2 stole the
motor vehicle which is the subject matter of this
case. There is no suggestion
that accused no. 2 knew that the motor vehicle was stolen by the way he was
driving it.
Mr. Magongo for accused no. 3 and 4 dealing with accused no.
3 contended that the only evidence that purports to implicate him is
that of
PW6. That accused 3 was seated in the motor vehicle. The court has to answer
whether this evidence is prima facie that he stole the motor
vehicle.
As regard accused no. 4 the crown has not proved common purpose
as per the indictment (see S v Nkwanyane 1978 (3) S.A. 404. On
the question of pointing out he argued on the same lines as Mr. Magagula did.
He urged the court to dismiss the evidence of
pointing out in view of the
dicta in the case of Alfred Shekwa and another
(supra).
Mr. Magongo further challenges the ownership of the
motor vehicle that it cannot be said with certainty that the motor vehicle
belonged
to PW1 the complainant. He further argued that accused no. 3 and 4
cannot even been called to their defence in respect of the alternative
charge.
It was also argued that there is no evidence to show that any of the accused
persons were in Mbabane on the day of the theft
at New Checkers.
The
crown as represented by Mr. Sibandze argued per contra. He argued
that there is sufficient evidence that portions of the motor vehicle which was
exhibited before court belonged to the
complainant’s (PW1) motor vehicle.
The motor vehicle was found in the possession of accused no. 1 and accused no.
2. If they
did not steal the motor vehicle where did they find the portion of
the motor vehicle? Accused no. 1 took the police to his home
where he pointed
out other parts of the motor vehicle, which was stolen from the complainant.
Accused no. 4 took the police next
to Mkhondo river to show them the bakkie of
the motor vehicle stolen from the complainant. Mr. Sibandze submitted that
proof beyond
a reasonable doubt does not mean proof beyond a shadow of doubt.
The body of the chassis belonged to the complainant. The manner
in which the
accused persons dealt with the motor vehicle showed that it belonged to them.
The engine number had been tampered with.
The visible numbers of the engine
number are traceable to the original number. PW1 pointed out things which are
peculiar to his
car. The identification of the bakkie is sufficient. Further
in terms of Section 4 of the Act a presumption is created that the
onus of proof
shift to a person who is found in possession of a stolen motor vehicle to show
that he did not commit the theft. Accused
no. 1 and 2 were found in possession
of the motor vehicle and when the police asked who the owner was. They left the
motor vehicle
at the police station and disappeared.
Mr. Sibandze during
the heat of his submissions when quizzed by the court as to whether the crown in
the face of the evidence had
proved common purpose and also how was the court to
treat the evidence of PW7 that of pointing out. Mr. Sibandze conceded that the
crown has not proved that the accused persons were acting in concert and thus
the indictment on both the main count and the alternative
count cannot stand,
however, the accused person may be found guilty of theft
simpliciter which according to the crown is a competent verdict in
the circumstances. On the evidence of pointing out deposed by PW7 the crown
also conceded that in terms of the law that evidence is inadmissible. On the
evidence of common purpose the crown told the court
that the witness who was to
be introduced as an accomplice witness who was to link each accused to the
commission of the offence
died last year.
These are the issues before me.
I have considered the evidence of the crown in view of Section 174 of the
Criminal Procedure and Evidence Act (as amended). I have also
considered the submissions made by both sides. It is without question that the
complainant had his motor vehicle stolen
on the night in question. It is common
ground that both counts cannot be sustained in view of the fact that the crown
on its own
admission has not proved common purpose. This state of affairs has
been caused by the death of one of the crown witnesses who has
dealt a death
knell to the crown’s case.
The motor vehicle which is the subject
matter of this case as we have seen on several occasions when we conducted an
inspection “in loco” has been mutilated beyond
description. However, it appears to me that a large portion of this motor
vehicle belongs to the complainant
who I am convinced has shown to the court
peculiar marks which he could identify his motor vehicle with. It is further
common ground
that the evidence of pointing out made by accused persons as
conceded by the crown is inadmissible. In the case of Alfred Shekwa and
another vs Rex Criminal Appeal No. 21/1994 (unreported). A warning had
been given in terms of the Judges Rules to an accused by a police officer
subsequently the accused pointed out certain
items linking him to the crime
which he was charged to another police officer, detective Sergeant Mamba, who
did not give him a similar
warning prior to the pointing out to be inadmissible.
Browde JA who gave the judgement of the court referred to the case of July
Petros Mhlongo and others vs Rex Case No. 155/92 where this court
approved the decision of the Appellate Division in S vs Sheehama 1991 (2)
S.A. 860 (AD) where the following was expressed:
“A pointing out is essentially a communication by conduct and, as such, is a statement by the person pointing out. If it is a relevant pointing out unaccompanied by any exculpatory explanation by the accused, it amounts to a statement by the accused that he has knowledge of relevant facts which prima facie operates to his disadvantage and it can thus in an appropriate case constitute in extra-judicial admission. As such, the common law, as confirmed by the provisions of Section 219 of The Criminal Procedure Act 51 of 1997, requires that it be made freely and voluntarily”.
For a pointing out to be made freely
and voluntarily, a warning to the accused in terms of the Judges Rules would be
necessary. In
the case in casu the warning given by PW7 was
lacking in this respect and thus renders all the evidence, which might have
implicated the accused persons
with the commission of the offence inadmissible.
The crown in any event conceded the shortcomings of PW7’s evidence. The
court may perhaps be left with evidence which tends to associate the accused
with the said motor, but the court has to be satisfied
that these remaining
pieces of evidence prove a “prima facie” a case to put
the accused to their defence. It appears this is not possible if one has regard
to the totality of the crown evidence.
The two counts the accused persons are
faced with they cannot be called to their defence as the crown itself has
conceded. Further
for the presumption in terms of Section 4 of the Act to come
in to operation the crown need to have laid a “prima
facie” case and I agree with Mr. Magagula for accused no 1 and 2
in his submissions in this regard. On the point of finding the accused
guilty
of the competent verdict of theft it appears to me that the Act itself has
created competence verdicts for offences under
Section 3, 8. 11and these are
spelt out in Section 5 (1) (a) – (d). The evidence of the crown in the
present case cannot be
slotted in any of the listed competent
verdicts.
Finally, it appears to me that the crown case was torn asunder
by the evidence of the witness who had died who might have linked the
accused
persons with the commission of the offence. In the circumstances I rule that
the crown has not prove a prima facie case in terms of the
Criminal Procedure and Evidence Act (as amended) and they are therefore, in law,
entitled to their discharge.
As I have found earlier on that the bulk of
the motor vehicle belongs to the complainant in law he is entitled to its
return.
JUDGE
+
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