Arlow v S (A68 /2022) [2023] ZAMPMBHC 27; 2023 (2) SACR 102 (MM) (15 May 2023)

FLYNOTES: CRIMINAL – Conviction – Attempted murder – Contradictions between witnesses – Whether material and affecting credibility – Background with hindrances and limitations of the parties involved must be considered –

Police captain shooting through vehicle and wounding complainant in ankle – Improbabilities in appellant’s version that driver tried to bump him with vehicle and that firearm was defective and discharged – Appeal against conviction and sentence dismissed.

THE

HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION, MBOMBELA MAIN SEAT

CASE NO: A68 / 2022

(1) REPORTABLE: YES

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED.

DATE: 15 May 2023

SIGNATURE:

In the matter between:

QUENTIN

ARLOW

APPELLANT

and

THE

STATE

RESPONDENT

JUDGMENT

RATSHIBVUMO J:

Delivered: This judgment was handed down electronically by circulation to the parties' representatives by email. The date and time for hand-down is deemed to be 10H00 on 15 May 2023.

[1] Introduction.

The Appellant was tried and convicted on a charge of attempted murder, at the Mhala Regional Court (court a quo). The attempted murder was alleged to have taken place on 16 July 2016 at Mkhuhlu. On 07 April 2022, he was sentenced to 5 (five) years imprisonment in terms of section 276(1)(i) of the Criminal Procedure Act, no. 51 of 1977 (the Criminal Procedure Act). The application for leave to appeal was refused by the court a quo. He now appeals against both the conviction and the sentence after leave to appeal was granted by this court on petition, on 23 September 2022.

[2] Background facts

The facts upon which the Appellant was convicted are to a large extent undisputed. The Appellant, a captain in the South African Police Services (SAPS), attached to the dog unit, was deployed to the Kruger National Park, Skukuza, where he conducted searches on motor vehicles leaving the park with the help of sniffer dogs. This was in an attempt to curb the challenge associated with rhino poaching. He was conducting these services at the Kruger Gate on the date of the incident when Mr. Last Nkosi, the complainant, came driving a white BMW X5, around 18h00. Mr. Mhlongo, a security officer at the park, was working alongside him. His duties that day entailed opening the gate for each motor vehicle after it was searched by the Appellant.

[3] Once Mr. Mhlongo was convinced that the Appellant had finished searching the complainant’s motor vehicle (which was done by looking through the window), he opened the gate for him and he drove off. Almost immediately thereafter, the Appellant got into a marked police motor vehicle and chased after the complainant without a word to Mr. Mhlongo. It was only about 30 to 40 minutes later that according to Mr. Mhlongo, the Appellant came back from the chase and informed him that the complainant did not respond

well to him when he was exiting.

[4] The evidence led revealed that at the time the Appellant was away, he followed the complainant’s motor vehicle for some 50 or so kilometres away from the gate. He caught up with it at Mkhuhlu and stopped next to it. He alighted and proceeded to the complainant’s motor vehicle armed with a firearm. The same firearm was discharged while in his hand, and a bullet from it hit the complainant’s motor vehicle on the driver’s door. It penetrated the door and hit the complainant’s leg on the ankle, while he was seated on the driver’s seat. When people in the vicinity started shouting, questioning why the Appellant shot the complainant, he walked back to his motor vehicle and drove away.

[5] The court a quo determined issues in dispute for purposes of its judgment as follows: “whether the Appellant pulled the firearm trigger; whether he had the intention to shoot and injure the complainant and if he did; whether he was justified in doing so.” The reason for this approach was that the Appellant’s version was to the effect that after alighting from his motor vehicle and while he held the firearm in his hand, the complainant moved his motor vehicle with the intention to bump him with it. It was in the process of avoiding being bumped by the complainant’s motor vehicle that he was pulled down by the weight of the bulletproof vest and his firearm got discharged without him intending to fire a shot. He could not explain how this happened except that his firearm was not in good working condition since 1994.

[6] The court a quo rejected the Appellant’s version and convicted him of attempted murder. It found that the State witnesses corroborated each other and that there were no material contradictions

[7] Appeal on merits.

The grounds of appeal are mainly premised on contradictions, discrepancies and improbabilities in the evidence given by the State witnesses. According to the notice of appeal, these would include:

a. The complainant testified that upon exiting the Kruger Gate, his motor vehicle was not searched and he did not see the Appellant there. This was contradicted by Mr. Maseko, a State witness who was a passenger in a motor vehicle driven by the complainant, seated on the front passenger seat. Mr. Maseko testified that the complainant’s motor vehicle was searched by a security officer who even opened the motor vehicle doors in the process.

b. The complainant testified that after being shot, the Appellant opened his (driver’s) door and he stepped out. Once outside, he realised that he was too injured to stand on his own. He grabbed the Appellant by his clothes. Mr. Maseko did not give evidence to this effect. According to Mr. Maseko, after being shot, the complainant could not drive anymore. He had to swap seats with him and he (Mr. Maseko) drove the motor vehicle from there, to the police station.

c. The complainant testified that he did not observe if the motor vehicle driven by the Appellant was a marked police motor vehicle. This, so it was argued, was improbable as he had an ample opportunity to observe it.

[8] The Appellant submitted further that the court a quo erred in finding that the Appellant had the requisite intention to kill the complainant. Instead of convicting him, it should have found that the discharge of a firearm was accidental and not planned. According to the Appellant, this version is reasonably possibly true. In support of this contention, he argues that if he wanted to kill the complainant, he could have aimed for his upper body as he was only three meters away from him when the firearm got discharged. He also submitted that he could not be guilty of attempted murder as the injury sustained by the complainant, being an entry and exit wound on the ankle, was not dangerous or life-threatening.

[9] Lastly, the Appellant submitted that the court a quo erred in holding that his version was improbable or riddled with improbabilities as it failed to tabulate them. In so doing, he

submitted that the court a quo paid lip service in evaluating his evidence. For this reason, he submitted that there were no improbabilities in his version and that this court should set aside his conviction.

[10] In its opposition of the appeal, the Respondent submitted that the court a quo considered the discrepancies and perceived contradictions properly and found no contradictions and that if they were there, they were immaterial. As a result, the Respondent submitted that the court a quo was correct to find that the State’s case was proved beyond a reasonable doubt.

[11] Applicable principles on appeal.

The approach to be adopted by a court of appeal when dealing with the factual findings of a trial court is guided by the collective

principles laid down in R v Dhlumayo[1]. A court of appeal will not disturb the factual finding of a trial court unless the latter misdirected itself. Where there has been no misdirection on fact by the trial court, the presumption is that its conclusion is correct. The appeal court will only reverse it where it is convinced that it is wrong. If the appeal court is merely left in doubt as to the correctness of the conclusion, then it will uphold it.[2]

[12] Just as Marais JA puts it in S v Hadebe[3],

“[B]efore considering these submissions, it would be as well to recall yet again that there are well-established principles governing the hearing of appeals against findings of fact. In short, in the absence of demonstrable and material misdirection by the trial Court, its findings of fact are presumed to be correct and will only be disregarded if the recorded evidence shows them to be clearly wrong. The reasons why this deference is shown by appellate Courts to factual findings of the trial court are so well known that restatement is unnecessary.”

[13] In applying the principles above, our call is to consider if there was any misdirection by the court a quo, to warrant our interference with its findings. A number of what appear to be contradictions were raised in this appeal. It is important to highlight at this stage that some of what was raised as contradictions are not actually contradictions but different observations by different witnesses. For example, there is no contradiction in the statement made by the complainant to the effect that upon exiting the gate, he did not see the Appellant; and that made by a witness who was a passenger in the his motor vehicle to the effect that he did see the Appellant at the gate. This simply signifies different observations by different people which may be influenced by various aspects such as what took their attention at the particular time, dual responsibilities such as observing while driving and others.

[14] Equally, it is not a contradiction for one person to hear utterances made by any individual while another person in the same vicinity does not hear them. For example, the complainant testified that he did not hear anything uttered by the Appellant before firing a shot at him. A passenger in the same motor vehicle testified that he heard the Appellant shout a “K” word before firing a shot. A contradiction is when parties observe, hear or experience an occasion, expression or object, from the same angle,

view or position; and the expression of such happens to vary drastically.

[15] Before one reaches a conclusion that there is a contradiction between the two versions, hindrances and limitations of the parties involved, such as their eyesight strengths or hearing abilities and disabilities need to be considered. Thus when the complainant stated that he did not observe the make of a motor vehicle the Appellant was driving, his statement does not contradict that of his passenger who may have observed it.

[16] There is however, no doubt that when these different observations and experiences by people who were together are numerous, and without any explanation, the court may be justified in questioning the credibility of the persons who made them. In casu, the complainant explained that he concentrated on the firearm that the Appellant carried in his hand while approaching him. He also explained that he was in great pain after he was injured to the extent that his mind closed up on observing the make of a motor vehicle the Appellant was driving. In my view, this should suffice.

[17] From the above elaboration regarding contradictions, it is clear therefore, that when the complainant testified that his motor vehicle was not searched at all at the exit gate, he contradicted the evidence given by his passenger to the effect that the motor vehicle was searched by a security officer. The position will be the same on evidence by the complainant to the effect that after being shot, he stepped out of a motor vehicle, while his passenger says they merely swapped the seats. Lastly, it is also a contradiction when a witness testified that they were three in the motor vehicle whereas the complainant testified that they were four. With these contradictions, the question should then be whether they are material and affect the credibility of the witnesses.

[18] As Nestadt JA observed in S v Mkohle,[4]

“Contradictions per se do not lead to the rejection of a witness' evidence. As Nicholas J, as he then was, observed in S v Oosthuizen 1982 (3) SA 571 (T) at 576B-C, they may simply be indicative of an error. And (at 576G-H) it is stated that not every error made by a witness affects his credibility; in each case the trier of fact has to make an evaluation; taking into account such matters as the nature of the contradictions, their number and importance, and their bearing on other parts of the witness' evidence. Williamson J obviously did this. In my view, no fault can be found with his conclusion that what inconsistencies and differences there were, were 'of a relatively minor nature and the sort of thing to be expected from honest but imperfect recollection, observation and reconstruction'. One could add that, if anything, the contradictions point away from the conspiracy relied on.”

[19] These contradictions should be viewed in light of the following background. At the time these witnesses gave evidence in the court a quo, over three years had lapsed from the date of the incident. It is natural to forget the details of how things happened with the passage of time. Moreover, there are many aspects that the complainant wanted to place on record, but was stopped by the public prosecutor, who displayed some levels of impatience, going to the extent of almost cross-examining his own witnesses.

[20] When the complainant wanted to give details on how he, as an attorney frequented the Kruger National Park for the sake of consulting his clients arrested at the police station situated within the park, the public prosecutor stopped him saying it was irrelevant. In so doing, he limited him to give evidence by way of answering his questions and he obliged. The public prosecutor was obviously wrong in his view that the evidence was irrelevant. Had the complainant testified as he attempted to, we could be having an explanation for some of these contradictions. In other words, one would understand a mistake on whether the motor vehicle was searched on a particular date if he is a regular visitor who frequented that gate and whose motor vehicle gets searched on other dates and not

searched on others. Now that we do not know, we are left to speculate on what he would have said.

[21] While the complainant was contradicted by his passenger on whether he stepped out of the motor vehicle after he was shot, it does not follow that the witness was not telling the truth when he testified that they swapped the seats for him to drive the motor vehicle further. Evidence is clear that the witness did drive the motor vehicle thereafter, while the complainant was a passenger. The swapping of the seats may have happened after the complainant had stepped out of the motor vehicle and returned following the departure of the Appellant. For a passenger who was terrified that they could all get killed, failure by him to remember the details, should be acceptable in my view.

[22] The important issue to be decided is whether these contradictions are material. This question should be answered in light of the fact that there is no dispute that the Appellant chased the complainant in his motor vehicle from the Kruger Gate up to a spot in Mkhuhlu when he stopped next to his (complainant’s) motor vehicle and approached him armed with a firearm. It was at this stage that a firearm got discharged and a bullet penetrated through the driver’s door and hit the complainant on the ankle.

[23] To decide on issues that the court a quo rightly formulated as issues in dispute (whether the Appellant pulled a trigger, whether he had the intention to injure the complainant, and if he did, whether he was justified in doing so), has absolutely nothing to do with the contradictions highlighted above. Whether there were four or three passengers in the motor vehicle, whether the said motor vehicle was searched or not and whether the complainant stepped out of his motor vehicle after he was injured, cannot help answer the issues in dispute or determine the Appellant’s guilt.

[24] The argument to the effect that the court a quo failed to table the improbabilities in the Appellant’s evidence is not supported by the trial record. The record reflects that the court a quo went to great lengths to demonstrate in its judgment that it was improbable for a firearm to discharge itself without the Appellant pulling a trigger. As the court a quo reasoned, this was after the Appellant had lifted his firearm and aimed at the driver or the driver’s door. One may also add that as the complainant remarked, this firearm should have discharged itself throughout when the Appellant walked from his motor vehicle via the front of his (complainant’s) motor vehicle and to the driver’s door if it was defective. It was improbable that it had to wait until he was on the driver’s side and had lifted it and aimed at him or at his door for its defectiveness to kick in, causing it to discharge without pulling the trigger.

[25] The complainant’s remarks should also answer the argument to the effect that if the Appellant wanted to kill him, he could have aimed on his upper body than to aim at his lower part. To give credence to this argument, the Appellant suggested that being a police officer of 25 years, that would have been easy for him to do. It is clear that for the Appellant to walk around the motor vehicle from its front to the driver’s side, he had no issues with the passengers therein, but the driver. Aiming his firearm at the upper body of the driver could easily have placed the passengers whom he had no issues against, at risk of being killed too. Aiming at a lower part of the complainant’s body ensured that the driver would be the only one at that risk.

[26] The position from which a shot was fired, also makes the Appellant’s version to the effect that the complainant wanted to bump him with his motor vehicle, very improbable. Just as the complainant reasoned with the Appellant’s legal representative during cross- examination, if he wanted to drive over him, the shooting should have taken place from the front of the motor vehicle, not on the side (the driver’s door). It is therefore improbable that the Appellant could have been avoiding being bumped by a motor vehicle while he stood by its driver’s side; unless we are to presume that the said motor vehicle is capable of driving sideways.

[27] I cannot find any misdirection on the part of the court a quo in accepting the version by the State witnesses and rejecting the Appellant’s as being improbable and not reasonably possibly

true. In the worst case scenario, the Appellant’s version may make sense if it is the only account presented to the court.

Unfortunately, his evidence needs not be evaluated in isolation. It must be weighed against that presented by the State.

[28] Proving a case beyond a reasonable doubt is not a separate and independent test from the one stating that when the version of the accused is reasonably possibly true, he is entitled to an acquittal. It is the expression of the same test when viewed from opposite perspectives. There is only one test in a criminal matter and that is whether the evidence establishes the guilt of the accused beyond a reasonable doubt. For evidence to establish the guilt of the accused beyond reasonable doubt, it will be so only if there is at the same time no reasonable possibility that an innocent explanation has been put forward that might be true. The two are inseparable, each being the logical corollary of the other. In whichever form the test is expressed, it must be satisfied upon a consideration of all the evidence.[5]

[29] The finding by the court a quo that the evidence presented by the Appellant is improbable and not reasonably possibly true cannot, therefore, be faulted. The Appeal against the conviction should as such be dismissed.

[30] Appeal on Sentence.

As indicated above, the Appellant was sentenced to 5 (five) years imprisonment in terms of section 276(1)(i) of the Criminal Procedure Act. In terms of section 73(7)(a) of the Correctional Services Act, no. 111 of 1998, a prisoner sentenced in terms of this provision qualifies to be considered to be released on correctional supervision after serving at least one-sixth of the sentence imposed. In this case, it would be 10 months. At the time of writing this judgment, the Appellant had already qualified to be released on correctional supervision. It is possible that he may have been released already if he was found deserving.

[31] The Appellant does not suggest that the sentence imposed on him is disturbingly inappropriate, harsh or induces shock. The appropriateness of the sentence is not questioned. He however submitted that the court a quo erred in not following the recommendations put forward by Ms. Van den Berg, a clinical psychologist who testified on his behalf in mitigation for sentence. Ms. Van den Berg had recommended that the Appellant be sentenced to a suspended sentence. This recommendation was not acceded to by the court a quo. The Appellant now submits that her evidence was not placed in dispute by the State and that it presented no evidence to justify the court a quo to ignore her recommendation.

[32] In the words of Binns-Ward J (Riley AJ concurring), “an appellate court's powers to interfere [with the sentence] are circumscribed. In determining an appropriate sentence, a trial court exercises a power that allows it to choose from a wide range of equally

permissible options. It cannot be found to be wrong simply because the appeal court might, had it been the first-instance decision-maker, have selected a different one.”[6] In S v BP[7], Bosielo JA said, “it remains an established principle of our criminal law that sentencing discretion lies pre-eminently with the sentencing court and must be exercised judiciously and in line with established and valid principles governing sentencing, as enunciated in a long line of cases which includes S v Zinn 1969 (2) SA 537 (A)…”

[33] It is not clear what the Appellant meant by the submission to the effect that evidence by the clinical psychologist was not placed in dispute. I find this submission puzzling in that cross- examination of this witness by the public prosecutor reflected on pages 433 to 447 of the trial record, reflects that the State placed in dispute the conclusions reached by the clinical psychologist. At one stage the clinical psychologist conceded that her view that the Appellant could die if sentenced to direct imprisonment, fell outside her field of expertise; and she indicated that it was based on common sense.

[34] It is wrong to conclude that if the State wishes to dispute evidence by the clinical psychologist (or any expert witness for that matter), this could only be achieved through calling another expert witness to counter it. The State can place in dispute such evidence and conclusions reached through cross examination as was done in casu. To expect the State to always counter expert evidence through another expert witness may be unnecessarily expensive, resulting in lengthy trials and sometimes impractical and defeating the purpose.

[35] While expert evidence is important to guide the court to understand all the factors to be taken into consideration for purposes of sentence, it remains the duty of the court to impose the sentence on an accused person. It is the court that knows all the dynamics relevant for sentence including the legal provisions that otherwise fall outside the ambit of the field of expertise of the witnesses.

[36] Recommendations are therefore not meant to bind but to guide the court, and should be considered as such. In light of the above, there was therefore no misdirection on the part of the court a quo in not following the recommendation by the clinical psychologist when it imposed the sentence. There is however a duty on the trial court to at least give reasons as to why the recommendations by the expert witnesses, are rejected. This would include witnesses such as social workers or probation officers who often make recommendations on suitable sentences before the trial courts.

[37] We observed one aspect of some concern. Whereas the Appellant was charged with a crime of attempted murder read with the provisions of section 51(2) of Act 105 of 1997, nothing was made of this throughout the trial including the sentencing stage. In terms of this provision, a person convicted of an offence involving an assault, when a dangerous wound is inflicted with a firearm, should be sentenced to a minimum sentence of 5 years’ imprisonment, if he is a first offender. The court can only deviate from the prescribed minimum sentence if there are substantial and compelling circumstances that justify a lesser sentence.

[38] It would appear that both the presiding officer and the public prosecutor may have forgotten about the reference made to this Act as no mention or reference was made to it except being written in the charge sheet. Upon handing down a judgment, a trial court that has been referred to the minimum sentences applicable upon conviction, has to make a pronouncement on whether the alleged prescribed sentence would be applicable. This helps the accused to be prepared to adduce evidence that evinces substantial and compelling circumstances that may justify the imposition of a lesser sentence than the prescribed minimum. In casu, this was not done. Failure to do this however does not result in any misdirection as the accused was not sentenced in terms of Act 105 of 1997.

[39] Without any suggestion by the Appellant that the sentence imposed was shockingly inappropriate, harsh or induces a sense of shock, there is no basis to evaluate the appropriateness of the sentence any further. The appeal on sentence is also bound to fail.

[40] Consequently, the following order is made:

Appeal against the conviction and the sentence is dismissed.

TV RATSHIBVUMO

JUDGE OF THE HIGH

COURT

MPUMALANGA DIVISION,

MBOMBELA

I agree

AM KGOELE

FOR THE APPELLANT: ADV.

NJ DU PLESSIS

INSTRUCTED BY: DU TOIT SMUTS & PARTNERS

NELSPRUIT FOR THE RESPONDENT: ADV.

TS MSIBI

INSTRUCTED BY:

OFFICE

OF THE DPP

MBOMBELA

DATE HEARD: 21

APRIL 2023

JUDGMENT DELIVERED: 15 MAY 2023

[1] 1948 (2) SA 677 (A)

[2] See also DPP v S 2000 (2) SA 711 (T); S v Leve 2011 (1) SACR 87 (ECG); and Minister of Safety and Security and Others v Graig and Another NNO 2011 (1) SACR 469 (SCA)

[3] 1997 (2) SACR 641 (SCA) at 645E-F.

[4] 1990 (1) SACR 95 (A) at 98F-I. See also S v Liesching and Otheres 2019 (4) SA 219 (CC) para 96, where Kathree-Setiloane AJ said, “[T]wo witnesses seldom give identical accounts of the same incident, so not all errors or contradictions between their evidence will affect their credibility.”

[5] S v Van der Meyden 1999 (1) SACR 447 (W) at 448F-G.

[6] S v Tafeni 2016 (2) SACR 720 (WCC) para 3.

[7] 2013 (2) SACR 533 (SCA) at para 19.