S v Skoularikis and Another (248/87) [1988] ZASCA 160 (30 November 1988)

248/87N v H

IN THE SUPREME COURT OF SOUTH AFRICA

(APPELLATE DIVISION)

In the matter between

DIMITRIOS SKOULARIKIS First Appellant

FREDRICH WILHELM BRENNER Second Appellant

and

THE STATE Respondent

CORAM: JOUBERT, SMALBERGER, JJA,

et VILJOEN, AJA

HEARD: 7 NOVEMBER 1988

DELIVERED: 30 NOVEMBER 1988

JUDGMENT SMALBERGER, JA :-

Shortly before 4 p m on the afternoon of Saturday 21 June 1986 the bodies of Mr Alfons Talpa (Talpa), Mr Costas Phakos (Phakos) and his wife, Mrs Anna Maria Phakos (Mrs Phakos) were found in the upstairs section of Talpa's house at 6 Jane Lane, Klippoortjie in the district

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of Germiston. They had been the victims of a gruesomekilling. Mrs Phakos was lying face downwards on theupstairs landing; Phakos was lying on his back in thedoorway between the landing and the main bedroom; Talpa was

lying face downwards in the bathroom in a pool of blood -his hands were manacled behind his back with a pair of

handcuffs, and there was masking tape over his mouth and

around his right foot.

The subsequent post-mortem examinations on the

bodies of the three deceased revealed the following: Mrs

Phakos had been shot six times and stabbed five times. The

injuries were inflicted to her head and upper part of her

body. The cause of her death was a bullet wound of the

brain and penetrating incised wounds of the lungs.

Phakos had been shot three times in the head and right upper

arm, and had three stab wounds of the right chest. The

cause of his death was found to be two bullet wounds of the

brain. Talpa had been shot once in the head and stabbed

/33 twice in the chest. He also had six lacerations of his head. The cause of his death was a bullet wound of the brain. All three deceased had apparently first been shot and then stabbed. The injuries sustained by the three deceased indicate that they had been subjected to a vicious and brutal assault, and permit of no doubt that they were unlawfully and intentionally killed by their assailant or assailants.

Arising from the deaths of the three deceased the two appellants appeared before VAN DYK, J, and two assessors in the Witwatersrand Local Division on three counts of murder. Their pleas of not guilty notwithstanding they were both convicted on all three counts. No extenuating circumstances were found, and a triple death sentence was imposed on each appellant. With leave of the court a quo they now appeal against their convictions and sentences on all three counts.

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4 The hearing of the appeal was preceded by an

application for leave to re-open the trial to hear furtherevidence. The application is the subject of a separate

judgment. This judgment is concerned solely with the

appeal, and is therefore confined to a consideration of the

evidence which was led at the trial.

The two appellants were 33 and 21 years old

respectively at the time of their trial. The first

appellant is of Greek extraction; the second appellant is

an Austrian national. They were friends, and had certain

business dealings with each other. The first appellant,

who was engaged i a in the amusement machine business, lived

in his own house at 10 Sinclair Road, Lambton, Germiston;

the second appellant occupied a house belonging to the first

appellant which he shared with others at 4 Lens Road,

Delville, Germiston. The second appellant was the owner of

a Ford Fairlane motor car (the Fairlane) which the first

appellant had helped him acquire. At the time of the

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killings the first and second appellants were each thelicensed owner of a .38 Special Astra revolver. The firstappellant's father was the owner of a 9 mm short Waltherpistol. There is no direct evidence linking the twoappellants with the killing of the three deceased; the

State's case against them was based purely on circumstantial

evidence. What follows is a resumé of the State evidence.

I have endeavoured to retain the chronological sequence of

events as far as possible.

On the morning of 21 June 1986, at about 9.30, one

Michael Horianos, who was employed by the first appellant,

went to the first appellant's home in connection with the

duties he had to perform. In the office he found the first

and second appellants together. He observed three firearms

on the table in the office - two pistols and one revolver.

The revolver was similar to the .38 Special Astra revolver

which was exhibit 3 at the trial; the one pistol was

similar to the 9 mm short Walther pistol which was exhibit 4

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at the trial. He and the first appellant later left theoffice. On leaving the first appellant picked up one of thepistols to take with him. En route from the office to thefirst appellant's bedroom he noticed the first appellantlooking "a bit anxious". He enquired what was wrong, andwhether the first appellant was in need of any help. Tothis the first appellant responded "I have got three behindme, you will not be needed". In his bedroom the firstappellant gave Horianos R900-00 to hand over to a certain MrAngelo. Before doing so he cocked the pistol in hispossession and said "Today is the day". Horianos leftshortly afterwards, and did not see either of the twoappellants again that day. (Horianos also testified to anincident which occurred at the first appellant's house thepreceding Monday night when certain shots were fired. Itis not necessary to deal with this evidence in detail.Suffice it to say that the first appellant was in possession

of a pistol on that occasion, and the second appellant had a

/77 revolver.)

At about 1.30 p m on 21 June 1986 the twoappellants arrived unexpectedly at the home of MrIoannis Phakos, the father of Phakos. The Phakos familywas also involved in the amusement machine business. Thefirst appellant asked Mr Phakos to arrange a meeting thesame day between himself, Phakos, Mr Phakos and Mr GeorgeGyltydis (the first appellant's uncle) at the home of Talpa.The first appellant declined to state the purpose of themeeting, but indicated that there was something he wished todiscuss. He appeared to be quite normal. The twoappellants left without any definite time for a meetingbeing set. It was then approximately 1.50 pm. It appearsfrom Mr Phakos' evidence that the first appellant and Phakoswere friends, having grown up together. The firstappellant had been the master of ceremonies at the weddingof Phakos and Mrs Phakos. At about 6.45 that evening the

first appellant telephoned Mr Phakos to offer his

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condolences on Phakos' death. He professed to bespeaking from Mafikeng, and claimed to have heard the newsfrom his sister.

I move on to the evidence of the witness Gernot

Lachner. He shared the house at 4 Lens Road with thesecond appellant and a certain Gudelius. He was employed asa technician by the first appellant. He did not work onthe morning of the 21st as he was in bed with a cold. He

got up at about 2 p m as he had work to do that afternoon.

He left the house for the first time that day at between 3

and 3.30 p m. On walking towards his car he heard someone

call him. He turned round and observed the first

appellant. He was standing at the corner of the house next

to the Fairlane which was parked in the driveway. The first

appellant asked Lachner to help him. Lachner turned and

went towards him, but the first appellant then indicated

that Lachner's help was not necessary, and that he could

manage on his own. Lachner did not see any of the first

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appellant's cars in the vicinity. Lachner then left, anddid not return home until sometime after 1 a m thefollowing morning. On his return he was arrested by LtVlok as a possible suspect in the killing of the three

deceased. Before the police left with him he was taken to

the bathroom. There was blood on the wall and in the

washbasin, and there was a bloodstained towel lying next to

the washbasin. The bathroom had been clean and free from

blood when he had vacated it earlier that afternoon.

Lachner also testified to the incident on the Monday evening

at the first appellant's house when certain shots had been

fired, and confirmed Horianos' evidence that the first

appellant had a pistol and the second appellant a revolver

on that occasion.

At 3.45 p m the witness Mrs Steward went to

Talpa's house. She had arranged to see him earlier that

afternoon. She rang the front door bell. There was no

immediate reply, so she tried the door handle and the door

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10 opened. She observed what she referred to as "a lot ofbloodstains" on the mirrors in the entrance hall. The twoyoung daughters of Phakos and Mrs Phakos (the Phakoschildren) came running down the stairs. They were aged

five and three respectively. They made a report to her.

She telephoned her son-in-law to come to the house, which he

did. Eventually her son-in-law and a certain Swanepoel

entered the house and discovered the bodies. The police and

an ambulance were summoned. The police arrived in due

course. As it was feared that the killer or killers might

still be on the premises the police Reaction Unit was sent

for . They arrived at 5.15 p m and duly secured the house

before handing it over to Lt Vlok of the East Rand Murder

and Robbery Unit who headed the police investigation team.

A member of the Reaction Unit took a video depicting the

situation in the house. On entering the house Vlok noticed

blood spots on the mirrors in the entrance hall. There

were various blood spots in the passage. In the laundry

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there was a washing machine with blood on the door. Fromthe laundry a trail of blood led up the stairs to thebathroom. On the landing were the bodies of Mrs Phakos andPhakos, and in the bathroom that of Talpa, lying as I have

previously described them. The bodies were still warm.The bathroom window was broken. On the washbasin there was

a roll of masking tape (the tape) identical to the masking

tape over Talpa's mouth; there was also a pair of handcuffs

identical to those with which Talpa's hands were manacled.

In the washbasin there was a spent 9 mm short cartridge

case. There were various bullet holes in the bathroom

door, as well as in certain doors and door frames leading

off the landing. There were also two bullet holes in the

ceiling of the landing. He also observed a number of other

spent cartridge cases and bullet heads in the area where the

shooting had occurred. In the course of that evening and

the following morning various photographs were taken, and

fingerprint, ballistics and forensic experts combed the

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house for clues. I shall in due course detail the moresalient features that emerged from their investigation.

Before proceeding with Vlok's further

investigation it will be convenient to recount certain

events that occurred earlier in the afternoon. At 4.18 p m

a call was received at the Germiston Ambulance department to

send an ambulance to 4 Lens Road. The caller gave his name

as Holmes. An ambulance was duly dispatched to that

address. On arrival the ambulance attendants were met by

the first appellant. He took them to the bathroom where

they found the second appellant dressed only in his

underpants. He had a bullet wound in his chest. He was in

a shocked condition. When asked what had happened the

first appellant replied that there had been "an argument".

The second appellant was rushed to the Willem Cruywagen

Hospital in Germiston. The first appellant did not accompany

the ambulance. On arrival at the hospital, however, the

first appellant was seen to enter the hospital from the

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13 admissions side. On examination at the hospital the second appellant was found to have an entrance bullet wound in the chest. He had a massive haematoma of the left arm, above

the left elbow, which when operated upon produced a bullet

which had lodged in his upper arm after penetrating his

chest. The bullet was later handed over to Vlok.According to Dr Laubser, who treated the second appellant,

none of the second appellant's large blood vessels were

damaged by the bullet. He would have become incapacitated

some fifteen to thirty minutes after being wounded.

This brings me back to the evidence of Vlok. At

11 p m he went to the hospital where he found the second

appellant in the intensive care unit. He appeared to be

somewhat confused, and all he said when questioned about his

injury was "almost an accident". Vlok formally placed the

second appellant under arrest, and left him under police

guard. He then proceeded to 4 Lens Road. According to

him Lachner and Gudelius arrived at the house together at

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approximtely 2 a m. He arrested them both on suspicion ofmurder. In the second appellant's bedroom he found ashoebox containing five empty handcuff containers. He sawthe blood in the bathroom and took possession of the

bloodstained towel. The police apparently did not find any

bloodstained clothes of the second appellant. Shortly after

leaving the house the police observed the Fairlane in Scott

Street. They forced it to stop. The first appellant was

the driver. Asked how he came to be in possession of the

Fairlane the first appellant explained that one Andreas had

brought it to him at the home of a friend where he was

visiting. On searching the Fairlane Vlok found a small

open clasp knife in the door panel on the right hand side.

On the passengers side of the vehicle he found bloodspots on

the rubber and wool mats. Between the console and the right

front seat he found a pair of handcuffs similar to those

with which Talpa's hands had been manacled. Between the

front passengers seat and the back seat there were three .38

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Special bullets. When asked to provide an explanation forwhat had been found the first appellant refused to give ananswer. The first appellant was then placed in a policevehicle and taken to his home. There a search of his

bedroom was conducted. In an ashtray on the dressing

table Vlok found two 9 mm short cartridge cases. He also

found a box containing 9 mm short bullets. When questioned

about the cartridge cases the first appellant stated that he

did not know where they came from. He told Vlok, however,

that his father possessed a 9 mm short pistol, and he a .38

Special Astra revolver. When asked where his revolver was

the first appellant stated that he had given both it and his

father's pistol to his sister. The first appellant's sister

later arrived at the house. When asked about the firearms,

in the first appellant's presence, she stated that the first

appellant's revolver was in her wardrobe. She unlocked the

wardrobe, and then stated that she recalled having returned

the first appellant's revolver to him. She made no mention

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of her father's pistol. A search of the first appellant's house revealed no firearms. The only other aspect of Vlok's investigtion that need be mentioned is that on 3 September 1986 he returned to Talpa's house. He cut open the carpet - on the landing underneath the spot where the body of Mrs Phakos had lain. There were five holes in the cement. He managed to probe out two .38 Special and one 9 mm short bullet heads.

I previously made mention of the fact that on the evening of the killings, as well as the following morning, photographs were taken at Talpa's house, and certain fingerprint, ballistics and forensic investigation done. The outcome of these investigations, and certain further tests and investigations done in consequence thereof, was as follows:-

1) On the inside (or sticky side) of the loose flap of the tape found in Talpa's bathroom a bloodied fingerprint was discovered. The fingerprint turned out to be that of the left

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index finger of the first appellant. 2) On the outside of the bathroom door, on the top left hand corner, a palmprint was found. This turned out to be the right palmprint of the second appellant. 3) From an examination of the spent bullets and cartridge cases found on the scene, the bullet taken from the second appellant's arm, and a bullet recovered from Phakos' head during the post-mortem examination it was established that :

(a) Shots were fired from at least three weapons at the scene of the killings (the origin of the two shots that went through the ceiling is unknown); (b) Two of the weapons concerned were of .38 calibre; the other was a 9 mm calibre;

(c) Six shots were fired from the one .38 calibre firearm including the bullet taken from Phakos' head;

(d) At least four shots were fired from the other .38 calibre firearm, including the bullet found in the second appellant's arm, and one of the bullets found under the mat where Mrs Phakos' body had been lying; (e) At least five shots had been fired from the 9 mm calibre firearm; (f) The four spent 9 mm cartridge cases found at the scene, and the two spent 9 mm cartridge cases found in the ashtray on the first appellant's dressing table were fired from the same firearm.

4) Primer residue was found on both hands of all three deceased. Primer residue is emitted

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from a firearm when it is fired. The presence of primer residue on their hands showed that each deceased had either discharged a firearm, or their hands had been in the immediate vicinity of a firearm or firearms when discharged. 5) No primer residue was found on the hands of the second appellant. This result was apparently inconclusive because of the delay that occurred before primer residue tests on his hands were done. (The lapse of time between the killings and the detention of the first appellant was apparently the reason why no primer residue tests were done on the first appellant's hands.) 6) The blood found in the laundry, and between the laundry and the bathroom, matched Talpa's blood group. 7) No blood was discovered on the clasp knife found in the Fairlane. The bloodstains on the rubber mat and the wool carpet (in the Fairlane) came from a blood group which matched that of the second appellant.

In September 1986 the witness Solomon Nkosi was

walking in the veld with a friend. Just inside a fence

running alongside a gravel road, at a point some 350 metres

from the tarred road leading to the Rand Airport, they came

across a partly burnt out bag or briefcase. Inside the

bag there were five firearms which had been damaged by fire,

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some handcuffs and two "jungle" knives. They took thefirearms, handcuffs and knives. The firearms weredistributed to various people. After Nkosi was arrested inJanuary 1987 for unlawful possession of one of the firearms

the police managed to trace four of the five firearms thathad been found. Vlok was taken to the spot where the findwas made. There were signs that there had been a veld fire

in the area. The remains of the bag were still there. Vlok

found some exploded .38 special bullets, two sections of the

grip of an Astra revolver (one of the firearms recovered had

its grip missing) and some partly burnt out masking tape

similar to that found in Talpa's bathroom. The four

firearms recovered consisted of three .38 Astra Special

revolvers and one 9 mm short pistol, and included Exhibits 3

and 4. On further investigation it was established that

two of the .38 Astra Special revolvers were those licenced

in the names of the first and second appellants: the third

was licensed in the name of Phakos. The 9 mm short pistol

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was the one licensed in the name of the first appellant's

father. Although it was possible to fire shots from the

recovered firearms after they had been properly cleaned,

their generally neglected state and the fire damage they had

suffered made it impossible ballistically to determine

whether any of the spent bullets or cartridge cases found at

the scene of the killings were fired from them.

The first appellant, who was represented by both

senior and junior counsel, closed his case without himself

giving evidence, or calling any witnesses. The second

appellant testified in his own defence. His evidence was

to the following effect: He went to the first appellant's

house on the morning of 21 June 1986 to borrow money for

extensions to a night club which he had recently opened.

They were together in the first appellant's office when

Horianos arrived. There were no firearms on the table in

the office. The second appellant had his .38 Special Astra

revolver with him in a holster at his side. Horianos and

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the first appellant then left the office. He did not seeHorianos after that. He and the first appellant lunched

together at a restaurant before returning to the firstappellant's house for coffee. At approximately 1.30 p m, atthe first appellant's request, he took the first appellant

in the Fairlane to Mr Phakos' house. He did not follow the

conversation between Mr Phakos and the first appellant as

they spoke to each other in Greek. He then took the first

appellant back to his home at about 2 p m. They arranged

to meet each other again that evening for supper, whereafter

he left, and went to his club. A little while later the

first appellant telephoned him. He asked the second

appellant to meet him at the home of a friend to discuss the

financing of the extension to the club. He gave the

address as 6 Jane Lane. (I omitted to mention earlier that

the houses occupied by Talpa, Mr Phakos and first and second

appellants respectively are all situated in reasonably close

proximity to each other.) The second appellant went to the

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address he had been given, arriving there at about 3 p m.He had never been to the house before. He parked theFairlane outside the house and went to the front door. Itwas slightly ajar. He rang the bell, but no one answered.He waited awhile, and then opened the door further and went

in. He first called out the name of the first appellant,

and then generally, but received no response. He heard a

noise coming from upstairs. He went up the stairs. On

the landing he found the bodies of Phakos and Mrs Phakos.

He then heard a noise behind him. He pulled out his

firearm and turned around. As he was turning he heard a

shot. He felt a pain in his chest and lost consciousness.

When he came to he was lying on the floor. He felt very

thirsty. He got up and pushed open the bathroom door,

holding onto the top left hand portion with his right hand.

He saw another body on the floor of the bathroom. He must

have lost consciousness again. When he next came to he

was sitting in the front passenger seat of the Fairlane.

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It was still parked where he had left it. The firstappellant was standing next to him. The wound in his chestwas bleeding. The first appellant drove him home in theFairlane. There the first appellanb helped him to his

bedroom, where, with the first appellant's assistance, he

stripped to his underpants. He felt very weak, and went to

the bathroom. He pressed a towel to the wound to stop the

bleeding. An ambulance arrived later, and he was taken to

hospital where a bullet was removed from his left arm. He

was placed under police guard until his discharge from

hospital, after which he was detained in custody. He

explained the presence of the .38 bullets found in his car

on the basis that he always carried loose bullets with him.

He admitted having bought handcuffs. He denied having

killed or assaulted any of the deceased.

There was no cross-examination of the second

appellant by the first appellant's counsel. Under cross-

examination by counsel for the State, the second appellant

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stated that he had not observed any blood in the entrancehall when he entered the house. He noticed blood, however,on the staircase. Although he heard a shot being fired he

did not see who fired it. He agreed that after he had

passed out for the second time someone must have assisted

him downstairs, but could not say who. According to him

the first appellant would not have been able to carry him

downstairs unaided. He refused to answer, when asked, what

the first appellant had told him he had observed at Talpa's

house.

The trial court held that the only reasonable

inference to be drawn from the above facts, coupled with the

first appellant's failure to testify, was that the first

appellant had been party to the unlawful and intentional

killing of the three deceased. It rejected the evidence of

the second appellant as being "completely untrue". In

doing so it made certain adverse credibility findings

against the second appellant. It concluded that the second

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appellant had been associated with the first appellant inthe unlawful killing of the three deceased. It accordinglyfound them both guilty on all three counts of murder, and inthe absence of extenuating circumstances, sentenced them todeath.

Before I proceed to consider various arguments

advanced on behalf of the first appellant against his

conviction it is necessary to deal with certain events which

occurred after the two appellants were convicted of murder

and before the trial court's finding on extenuating

circumstances. Counsel for the first appellant informed

the trial court that he had explained fully to the first

appellant the possible consequences that might flow from his

failure to testify in regard to extenuating circumstances.

He stated that the first appellant had initially intimated

that he did not wish to testify, but had at the last moment

changed his mind and now requested an opportunity to

"address the court". Counsel indicated that he was not

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aware of what the first appellant intended to say. Thefirst appellant was then sworn in, and after certain

introductory questions were put to him and certain personal

details elicited from him, the following exchange between

counsel and the first appellant took place:

"Now your instructions have also been that you are

innocent of these offences? - That is

correct.

But you decided not to testify? - That is

true.

That was your decision? - That was my

decision and mine alone.

Although you knew the implications? - Yes I

knew that the death penalty could be imposed and

would be imposed.

Now yesterday you heard the verdict in this case?

- I did.

And it is correct that I instructed you what the legal position is? - Yes you did.

Did you understand my instruction to you? -

Yes I did.

And at that stage is it correct that you did notwish to testify in relation to the issue of

extenuating circumstances? - That is

Did you instruct me this morning that you wished

to make a statement? - That is correct.

Did I explain the difficulties about making a

statement at this stage? - Correct.

Is it your desire to make a statement at this

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stage? - Correct.

Is it your decision? - My decision.

Your decision to go into the witness box now? My decision to go into the witness box now. Do you wish to make that statement still to the Court? - If I may be allowed to do so."

What followed thereafter appears from the judgment

of the trial judge on the State's application to have the

statement made by the first appellant struck from therecord, where he said:

"Accused 1 then proceeded to make a statement criticising the decision of the Court and criticising the evidence at great length. The Court allowed him to proceed until the tea adjournment and then asked him to possibly leave out criticism against the decision and the various witnesses' evidence because that would be tantamount to an appeal against the judgment. He then proceeded to explain to the Court what according to him has happened at the scene of the murders and what he believed was of importance.

During such statement the accused cast certain slurs on the police and made certain derogatory remarks about the police in general and also referred to two police officers by name suggesting that he and No 2 had been framed by the police for some unknown reason. Mr Von Lieres strongly objected to the contents of this 'statement' and submitted that it is completely irrelevant and

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solely aimed at defaming the police. Because nothing had been placed before the Court which can even remotely be regarded as extenuating factors, and because that is the only matter to be considered and to be decided by the Court at this stage, I have come to the conclusion that what the accused hed told the Court by way of this 'statement' is completely irrelevant to the issue before the Court.

That being so, it follows that the Court should rule that on the basis of its being irrelevant it ought not to be admissible, and should not form part of the record before the Court. For these reasons I rule that the 'evidence' tendered by accused 1 on the basis that it has nothing to do whatsoever with the issue before the Court, has been proved to be completely irrelevant and therefore inadmissible, and that the Court record should not unnecessarily be burdened therewith. I therefore order that the evidence given by this accused should be struck from the record. This does not include the introductory evidence led by Counsel for No 1 accused."

The reason why I have recounted these events is

that one of the arguments advanced on appeal was that thetrial judge should have permitted the first appellant, even

at that late stage, to give evidence relative to the merits

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and to be cross-examined thereon. For this argumentreliance was placed on the decision of this Court in S vMavhungu 1981(1) SA 56 (A). In terms of Mavhungu's case

(at 64 H - 65 H) evidence given for the first time in

extenuation, if found to be credible, may be taken into

account on appeal in considering the correctness of the

conviction. It was contended that by striking the first

appellant's evidence relative to the merits from the record,

and not allowing it to be tested under cross-examination,

the trial judge precluded a finding on the first appellant's

credibility which may have had a bearing on his prospects of

success on appeal.

I do not propose to burden this judgment with the

facts of Mavhungu's case. The appeal was desoribed as an

"unusual appeal", which indeed it was. This may in some

measure account for the conclusion reached in the passage in

the judgment on which the first appellant relies, where the

following was said (at 65 D - H):-

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"Section 330(1) of the prior, now repealed Criminal Procedure Act 56 of 1955, as amended, provided that, where the Court 'in convicting the accused of murder' was of the opinion that there were extenuating circumstances, it could impose any sentence other than the death sentence. In S v Shabalala 1966(2) SA 297 (A) this Court held that the sub-section involved a twofold procedure: first an inquiry into the accused's innocence or guilt of the alleged murder, and, if his guilt was found proved, then a further inquiry into the presence or absence of extenuating circumstances. But, despltc that procedural dichotomy, this Court (through RUMPFF, JA) at 300 B of that case, and through HOLMES, JA in S v Sparks and Another 1972(3) SA 396 (A) at 404 E, affirmed that in reality, where the accused is convicted of murder, there is only one overall proceeding and a single, albeit composite, verdict of guilty of murder with or without extenuating circumstances, as the case may be. The trial only ends when such a verdict is delivered. That also applies now under the corresponding s 277 (2) of the present Act, since its relevant wording remains substantially the same. It follows that, for the purpose of an appeal against that verdict, the record of the evidence of the entire proceedings must be laid before this Court for its consideration. And in considering whether the verdict was right or wrong this Court can also have regard to the evidence adduced in extenuation. Thus where, for example, an issue on appeal is the identity of the murderer, it would be quite unrealistic and wrong for this Court in considering the verdict of guilty to ignore

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credible testimony given by the accused in extenuation admitting that he was the murderer. Similarly, there is no reason why that should not also be done where credible testimony is so given by the accused proving that he was innocent. Hence, in the present case we can, I think, have regard to appellant's evidence given in extenuation in determining what offence he was guilty of."

The principle underlying the conclusion (at 65 G)

that "in considering whether the verdict was right or wrongthis Court can also have regard to the evidence adduced inextenuation" is based on the premise (at 65 F) that in amurder trial "there is oníy one overall proceeding and a

single, albeit composite, verdict of guilty of murder withor without extenuating circumstances, as the case may be".The correctness of this latter statement was doubted in S vTheron 1984(2) SA 868 (A) at 879 D - H, where cogent and

convincing reasons against this view are expressed. This in

turn casts doubt on the correctness of the passage at 65 G.

Be that as it may, I do not think that Mavhungu's case ever

contemplated, or was intended to apply to, the situation

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where an accused person deliberately refrains from

testifying on the merits in a murder trial and then seeks,

after conviction, in the guise of evidence in extenuation,

to give evidence on the merits (having ascertained from the

court's judgment where the shoe pinches) in the hope of

being found to be a credible witness - a situation akin to

that which has arisen in the present case. This would

amount to an abuse of the normal trial procedure, and could

encourage fraudulent practices. It would also offend

against the general principle that when considering the

question of extenuation the tríal court ís bound by the

factual findings on which it based its conviction (S v

Vonsteen 1972(4) SA 551 (A) at 558 B - D; S v Sephuti

1985(1) SA 9 (A) at 18 E - F). This general principle

justifies the decision of the trial judge to strike the

first appellant's "statement" or "evidence" from the record

as irrelevant, as it could have had no bearing on the trial

court's findings in relation to extenuation during the

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second phase of the trial. Even if in view of what wassaid in Mavhungu's case there was technically anirregularity the first appellant has not been prejudiced

thereby. Not only was he given the opportunity to bring anapplication to re-open the trial but in any event, for

reasons which will become apparent later in this judgment,

there was never any reasonable likelihood of his being found

to be a credible witness in respect of his denial of any

involvement in the killing of the chree deceased.

The most incriminating evidence against the first

appellant relates to his fingerprint that was found on the

tape in Talpa's bathroom, the two 9 mm cartridge cases

allegedly found in the ashtray in his bedroom, the evidence

of Horianos and the later finding of the firearms. Despite

the fact that voluminous heads of argument were filed on

behalf of the first appellant in which every conceivable

argument was raised, the argument on appeal centred mainly

on the matters I have mentioned. I take cognisance of all

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the arguments that were raised in the heads of argument.Many of them are lacking in substance, factual or legal.

It is neither possible nor necessary to deal with every

argument. I shall largely confine myself to what I

consider to have been the main arguments.

At the outset of his argument Dr Yutar, for the

first appellant, emphasised that the State had not proved

any motive on the part of the first appellant for the

killing of the three deceased. It is true that no motive

is apparent from the record. The first appellant appears to

have had a fairly close and harmonious relationship with the

Phakos family generally. The presence or absence of a

motive in any particular case may be relevant to the general

probabilities. However, many instances of motiveless

killings have been recorded, and while the absence of motive

is a relevant consideration, it is not a matter to which

undue weight should be attached.

It is not disputed that the fingerprint which

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35Terblanche claims was found on the sticky side of the tapewas that of the first appeliant. It was submitted, however,

that the first appellant's fingerprint may have been

"placed" on the tape some time after his detention on the

morning after the killings, the implication being that the

police (and more particularly the investigating officer

Vlok), fabricated this evldence against him. There is no

factual substratum for such submission. Terblanche took

possession of the tape on the Saturday evening, and it

remained in his possession or under his control thereafter,

at least until the origin of the fingerprint thereon was

established. Terblanche's evidence in this regard was never

challenged at the trial; nor was it ever put to Vlok that

he had, somehow or other, procured the first appellant's

fingerprint on the tape later. Any fabrication of evidence

must necessarily have involved both Terblanche and Vlok.

They must have been party to a conspiracy against the first

appellant. However, no suggestion of this kind was ever

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made to them under cross-examination. There is in my viewno reason to doubt the police evidence to the effect thatwhen the investigating team first entered Talpa's house the

tape with the first appellant's fingerprint on it was foundin the bathroom. It was also argued, in the alternative,

that the first appellant may have entered Talpa's house

after the killings and innocently handled the tape. Thisamounts to pure speculation. The first appellant never saw

fit to go into the witness box to provide an innocent

explanation for the presence of his fingerprint on the tape.

In any event it seems highly unlikely that had he discovered

the bodies after the killings he would have had any need to

touch the tape in the bathroom. Furthermore, the position

of the fingerprint on the tape is more consistent with it

having come there in the course of a piece of the tape being

torn off than with the tape merely being picked up.

In support of the suggestion that the police may

have fabricated evidence against the first appellant our

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attention was drawn to the photograph Exhibit 44 (a) whichdepicts the palmprint of the second appellant on the outsideof the bathroom door. A copy of this photograph in thepossession of the first appellant's counsel was handed tous. On this copy a section of the bathroom can moreclearly be seen. I shall assume that this copy is a

duplicate of Exhibit 44 (a). This photograph was contrastedwith the photograph Exhibit B 18 which shows Talpa lying on

the bathroom floor in a pool of blood. A comparison of

these photographs indicates that the blood visible on the

bathroom floor in Exhibit B 18 is not apparent on Exhibit 44

(a). The conclusion to be drawn from this is that Exhibit

44 (a) was taken after the bathroom floor had been cleaned.

This, it was argued, established that Exhibit 44 (a) could

not have been taken the night of the killings or the

following morning as testified to by Terblanche. It must

have been taken at some later stage. The suggestion

flowing from all this is that the second appellant's

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38palmprint was probably only "placed" on the bathroom door atsome later stage and was not present on it the night of thekillings. Reference was also made in argument to a copy ofthe close-up Polaroid photograph taken of the palmprintwhich, it was argued, showed that the palmprint was on the

right and not the left hand side of the door as shown on

Exhibit 44 (a).

Interesting though all this may be, it does not

take the first appellant's appeal anywhere. None of these

speculative theories were ever canvassed with the police

witnesses. It is not at all clear from the Polaroid

photograph where exactly the palmprint on the door was. It

could have been on the left or the right hand side. It

certainly cannot serve to refute the unchallenged police

evidence at the trial that it was on the left hand side.

It may well be that Terblanche was mistaken and that the

photograph Exhibit 44 (a) was not taken when he said it was,

But this does not detract from the fact that the second

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appellant's palmprint was found on the door, as depicted onthe photograph, in the course of the investigations thatfollowed immediately upon the killings. And any suggestionthat the palmprint on the door was falsely "manufactured" by

the police is conclusively refuted by the second appellant'sevidence that he had gripped the top of the bathroom door

when going to the bathroom in search of water, and his

acceptance that the palmprint was his. Any attempt

therefore to found an argument of fabricated evidence on the

photographs to which I have referred is a totally damp

squib.

The suggestion in argument that evidence had been

fabricated against the first appellant was pursued further

in relation to the cartridge cases. According to the

evidence four 9 mm short cartridge cases were found at the

scene of the killings, and two in the first appellant's

bedroom. The witness Visser testified that at least five,

and possibly more, shots were fired in Talpa's house from a

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9mm short pistol. It was contended that more than fourcartridge cases should therefore have been found.Reference was made to certain photographs in an attempt toshow that at least six cartridge cases are visible on them.

It was suggested that the other two cartridge cases were

probably those that Vlok claimed were found in the first

appellant's bedroom. Once again there is no proper factual

foundation for these submissions. I am unable to say from

the photographs that there are more cartridge cases visible

than the police say were found at the scene. Vlok's

evidence that despite a diligent search only four cartridge

cases were found in the house, and that later two cartridge

cases were found in the first appellant's bedroom, was never

challenged; nor was any suggestion of fabricated evidence

in this respect put to him in cross-examination. There is

admittedly one misdirection in the trial court's judgment

which relates to the two cartrldge cases found in the first

appellant's bedroom. It held that Lachner had testified

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that after shots had been fired on the Monday night thefirst appellant had stooped to pick up what the witnessbelieved to be cartridge cases from the ground. This isincorrect. Lachner did not testify to that effect. Whatthe trial court presumably had in mind was the uncontested

evidence of Horianos, referring to the same event, that he

saw the first appellant looking for a cartridge case on the

ground. Although a misdirection, it was clearly not

material, and it cannot in any way detract from the trial

court's findings.

It was further argued that the evidence relating

to the finding of the firearms should be treated with

suspicion. Why this should be so is not clear. There is no

reason to doubt Nkosi's evidence that he found the firearms

where he says he did. They must have been dumped there by

someone - the only question is by whom. This is a matter

of inference. Any suggestion that the police dumped them

there is totally without foundation. Where would the police

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have got hold of them, and why would they have caused them to be damaged, or run the risk of their being damaged, thereby preventing the firearms being linked directly to the shots fired at Talpa's house which resulted in the death of the three deceased.

I turn now to the evidence of Horianos. Aspects of his evidence were challenged in cross-examination, but the first appellant did not see fit to testify in relation to the disputed matters. Horianos' evidence therefore stands largely uncontradicted, although it does not necessarily follow that it should be accepted. To the extent that his evidence was in conflict with that of the second appellant his evidence was preferred by the trial court, and for good reason. His evidence that the first appellant handed money to him that morning in his bedroom for payment to "Mr Angelo" finds support in the evidence of Mr Angelo Mafilas who confirmed that the money was paid over

to him by Horianos that same day. There appears to be no

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cogent reason why Horianos should have wished to implicatethe first appellant falsely. Had he wished to do so hecould clearly have gone much further than he did. Horianosimpressed the trial court as an honest and reliable witness,

and there is nothing which arises either from a study of his

evidence, or the arguments advanced, which leads me to doubt

the correctness of that assessment.

The State's failure to call the Phakos children as

witnesses does not justify an adverse inference being drawn

against it. It is not apparent from the record that they in

fact witnessed the killing of their parents. In view of

their extreme youth they are not likely to have been

reliable witnesses, particularly if regard is had to the

emotional trauma they must have suffered if they witnessed

the killings. At best for the appellants the failure to

call them means that the State ran the risk of not proving

its case against the appellants if the remaining evidence

was not sufficient.

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The second appellant's evidence was in my viewrightly rejected by the trial court. He was found to be anunimpressive witness; hesitant, evasive and ill at ease inthe witness box. He was apparently not prepared to takethe court fully into his confidence, hence his refusal todisclose what the first appellant had told him had happenedat Talpa's house. For reasons which will appear later theoverwhelming probabilities are that he and the firstappellant travelled together in the Fairlane to Talpa'shouse - thus giving the lie to his evidence that the firstappellant telephoned him and asked him to meet him there.His version of what occurred is highly improbable. Tomention but some considerations. Why did he venture into astrange house? There was no sign, on his version, of thefirst appellant being there, and the occupants of the housewere not known to him. He failed to see the blood in theentrance hall which was clearly visible to all the later

witnesses who arrived at the scene. He followed a trail of

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blood up the stairs when the reaction of a normal person would have been to beat a hasty retreat and summon the police. His explanation of how he was shot is unconvincing. His subsequent conduct is inconsistent with his having been shot when innocently coming across the bodies of the three deceased.

In the circumstances the guilt or innocence of the appellants falls to be determined on the basis of the State evidence as outlined above. What does that evidence establish? On the morning of 21 June the two appellants were together at the first appellant's house. There are indications that they were planning something if regard is had to the remarks made by the first appellant to Horianos, and the presence of three firearms on the table. The second appellant's revolver, according to him, was in a holster at his side. They later travelled together in the Fairlane to go and see Mr Phakos. When they left his house it was

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nearly 2 p m. The first appellant was seen by Lachneralongside the Fairlane at 4 Lens Road at between 3 and 3.30pm. On the evidence this must have been after their returnfrom Talpa's house, where both had been present. By then

the killings had already occurred. The probabilitíes are

overwhelming that the first and second appellants travelled

to Talpa's house together in the Fairlane. They had

travelled together earlier; the first appellant drove the

second appellant from Talpa's house back to 4 Lens Road in

the Fairlane (evidenced by the first appellant's presence

next to the Fairlane when seen by Lachner, coupled with the

fact that blood was only found on the front passenger side

of the Fairlane, which indicates that the second appellant

was a passenger in the vehicle); no car of the first

appellant was seen at 4 Lens Road, nor found outside 6 Jane

Lane - he could therefore not have left a car there when

taking the secohd appellant back to 4 Lens Road. The

presence of both appellants in Talpa's house is established

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by the first appellant's bloodied fingerprint on the tape,and the second appellant's palmprint on the bathroom door.Furthermore, the second appellant must have been on thescene when the shooting occurred to have sustained theinjury he did. The four 9 mm cartridge cases found inTalpa's house, and the two found in the first appellant's

bedroom, were both fired from the same pistol - thereby

linking the first appellant to the shots fired in Talpa's

house. On the morning of 21 June the first appellant was

in possession of three firearms, and the second appellant

one, a total of four. When the first appellant's house was

searched in the early hours of the following day no firearms

could be found. Nor could the second appellant's firearm

be traced. There is no evidence to suggest that they could

have been stolen in the interim. The first appellant had

ample opportunity to dispose of them between the time of the

second appellant's admission to hospital and his (the first

appellant's) arrest. The five firearms found by Nkosi were

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48 those of the two appellants, the first appellant's father, Phakos and one other. The unexplained presence of Phakos' firearm with the others, more particularly those of the two appellants, is a strong pointer to the others being connected with the killings. The connection is strengthened by the finding of the two knives at the same time, as well as the later finding at the spot by Vlok of a piece of masking tape similar to the tape found in Talpa's bathroom. Moreover, the calibres of the firearms of the two appellants, and that of the first appellant's father, coincide with those of the firearms fired at Talpa's house. The disappearance of the second appellant's bloodstained clothes cannot be attributed to the second appellant. The only other person who knew about them, and had both reason to dispose of them, and the opportunity to do so, was the first appellant. A further factor is that the pair of handcuffs found in the Fairlane were similar to those found

in the bathroom in Talpa's house, and used to manacle his

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hands. Apart from these considerations, the subsequentconduct of the appellants, particularly the first appellant,excites grave suspicion, to say the least. Why was thesecond appellant not taken straight to hospital if theappellants had not been involved in anything unlawful at 6Jane Lane? Why did the first appellant use an assumed name

when telephoning for an ambulance - for only he could have

done so? Why did he falsely pretend to be calling from

Mafikeng when he telephoned Mr Phakos that evening? Why

did he lie to the police about how he came to be in

possession of the Fairlane? Why did neither appellant

vigorously protest his innocence when detained?

The case against the two appellants is based

entirely on circumstantial evidence. The question is

whether the only reasonable inference to be drawn from such

evidence is that they were party to the unlawful killing of

the three deceased. When reasoning by inference one must

have regard to the cumulative effect of all relevant facts

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and probabilities. The considerations to which I havereferred point inexorably to the involvement of the twoappellants in the events that occurred at Talpa's houseleading to the deaths of the three deceased. What preciselyhappened there we do not know, but the evidence, coupledwith the first appellant's failure to testify to rebut the

strong prima facie case against him, can lead in my view to

only one conclusion, viz., that the first appellant was

party to the killing of the three deceased. The nature of

the killings was such that once responsibility therefor is

proved the inference is irresistible that such killings were

unlawful and intentional. In the case of the second

appellant, he was found to be an untruthful witness and his

evidence was rejected. This places him in the same

position as if he had not testified - a position akin to

that of the first appellant. He too therefore failed to

answer the strong prima facie case against him. In his

case as well the only reasonable inference to be drawn is

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that he participated in the unlawful and intentional killingof the three deceased. In the result hoth appellants werecorrectly convicted of murder on all three counts.

There remains the question of extenuation. The

trial court held that both appellants had acted with dolus

directus, and that neither had discharged the onus of

establishing the existence of extenuating circumstances.

The first appellant did not even attempt to discharge that

onus. This court cannot speculate as to the likely reason

for the killings. If such a reason existed, the appellants

deliberately refrained from revealing it. In the case of

the first appellant there is no basis whatsoever for a

finding of extenuating circumstances.

The second appellant was 20 years of age at the

time of the commission of the offences. It was argued that

he was young and immature, and susceptible to influence by

the first appellant. However, I find no reason to differ

from the finding of the trial court that at the time of the

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killings the second appellant was a mature and independent young man with a will of his own and that his relative youthfulness played no role whatsoever in the killings. He too therefore failed to establish the existence of extenuating circumstances.

In the result the appeals of both appellants against their convictions and sentences are dismissed.

JUDGE OF APPEAL

JOUBERT, JA )

CONCUR

VILJOEN, AJA )