IN THE HIGH COURT OF SWAZILAND JUDGMENT

Transcription

1 1 In the matter between IN THE HIGH COURT OF SWAZILAND JUDGMENT REPORTABLE Criminal Case No. 350/2012 Rex And Sizwe Mzwandile Makama Neutral citation: Rex v Sizwe Mzwandile Makama (350/2012) [2017] SZHC 161 (27 July 2017) Coram: MAMBA J Heard: 20, 22, 23, 27 & 30 March May 2017 Delivered: 27 July 2017

2 2 [1] The accused stands charged with the crime of attempted murder. It is alleged that the crime was committed at Ngomane village in the Lubombo region on or about 28 November The Crown alleges that the accused, who was and still is a Police Officer at the time, intentionally and unlawfully shot at one Artwell Shabangu. It is alleged that he did so with intent to kill him. [2] The complainant, Mr. Artwell Shabangu was at all times material hereto also a policeman. At the time of the incident he had visited his girlfriend PW1, Nonhlanhla Sibandze, also a police officer and was in her house at the Ngomane village. This was her official house allocated to her as a police officer. The complainant on the other hand was based at the Operational Services Support Unit (OSSU) at Ngonini, in the Manzini region. [3] PW1 had been previously married to the accused. There were 2 children born of the marriage and these were in the custody of PW1. The couple divorced in June 2012 but were, it is common cause, talking about a possible reconciliation and reunion. The divorce had been granted in favour of PW1 who had apparently complained, inter alia, that the accused was being violent towards her.

3 3 [4] On 28 November, 2012 the accused who was stationed at Simunye Police Station went to the house of PW1. He was driving a police vehicle which had to be used at the Ngomane Police Post. He was in the company of another Police Officer, Mr. Groening. His mission, he said, was to leave the motor vehicle with PW1, who, however, had to transport him and his companion back to Simunye. [5] PW1 testified that whilst busy in her kitchen with her boyfriend, PW2, she heard a knock at her door. The time was above 7:00PM. She went to answer the knock and found the accused standing outside. He told her of his mission and when PW1 told him that she had to go into the house to dress properly for the trip to Simunye, the accused indicated that he wanted to go inside her house. PW1 refused to allow him in stating that she had a visitor inside the house. The accused forced his way in, first going into the bedroom to see who the visitor was and later going into the kitchen where he found the complainant. [6] PW1, stated that upon seeing the complainant in the kitchen, the accused asked him what he was doing with his wife. In response Pw2 asked the accused why he alleged that PW1 was his wife. The accused repeated the said question and he immediately retreated and stood about 6 metres away

4 4 from PW2. He drew his service pistol from his hip, cocked or bridged it and pointed it straight to PW2. PW1 came in between them and tried to stop the accused from shooting at the complainant. The accused stepped aside and fired a shot, hitting the complainant on the left upper arm. PW1 ran out of the kitchen and took refuge in Police Officer Mr. Matsebula s house nearby. When she eventually emerged from that house both the accused and Groening had left the scene. [7] The evidence of PW1, is substantially the same as that of PW2. One notes though that PW2 does not state that the accused first went into the bedroom of PW1 on entering the house. PW2 also stated that he had tried to stop PW1 from trying to prevent the accused from firing the gun. [8] PW2 stated that when the accused fired the shot, he was about 4 metres away from him. After being shot, PW2 said he went down and started bleeding profusely. The accused still holding the firearm in his hand, advanced towards him; looked at him before going out of the kitchen. [9] PW2 managed to get out of the house after the accused had left the scene. He was eventually conveyed to hospital where he was admitted or booked in for about 3 days.

5 5 [10] PW2 stated that he first got to know PW1 in 2011 and they fell in love at the end of July He also confirmed that during the subsistence of the marriage between PW1 and the accused, the latter had accused him of having a love affair with PW1. The complainant had, however, denied this. He said it was not true. The rumours or allegations had persisted and had resulted in the complainant being transferred from the Simunye Police Station. [11] The medical report and ballistics report were handed in by consent as exhibit A and B respectively. The gun used during the incident had been lawfully issued to the accused. It was handed in as exhibit 1. [12] The accused gave evidence on oath in his defence. He admitted that he shot the complainant at the material time. He said he did not intend to do so though. He said it was accidental. The accused stated that he did not force his way into PW1 s house but merely followed her into the kitchen when she went in there taking some vegetables. [13] The accused testified of the many steps he and PW1 had taken in an attempt to reconcile after their divorce. He stated that these moves had been initiated by PW1. He also revealed that he had visited PW1 and spent the night in her house on 26 November 2012 and they had had

6 6 consentual sex. This was part of the reconciliation process, he said. (PW1 said the sexual intercourse was not consentual. She had merely submitted to the accused s demands). The accused stated that he had been taken by surprise and was shocked to find PW2 in PW1 s house. He testified further that when he asked PW2 what he was doing with his wife, PW2 insulted him and told him that he was not going to do anything about it. It was at that stage, the accused said, that he heard the sound of gunfire. He saw PW2 staggering towards the wall. The accused said he moved towards the complainant to prevent him from falling down, but had to stop immediately as he realized that his gun may go off again as there was another bullet in the chamber that posed a danger to both of them in the kitchen. He immediately went out and discharged the bullet in the chamber and also removed the magazine. He then instructed Mr. Groening to go into the house and help PW2 as he was bleeding profusely. These, then are the essential elements of the defence proffered by the accused. [14] There were of course more witnesses led by the defence. These were, however, largely irrelevant to the central issue which is the shooting of the complainant on 28 November There was a lot of rabbit chasing by the defence in this regard. I shall not burden this judgment with these testimonies or other issues. Suffice to say that the accused sought to

7 7 show that the love affair between PW1 and PW2 started before July 2012 and that despite the divorce, he still regarded PW1 as his wife and they were on the path to reconciliation. That much, I think, is common cause and I accept it. But does it constitute a defence to the charge? That is the question I deal with in the next segment of this judgment. [15] As already stated above, the accused states that he did not deliberately or consciously or intentionally shoot at the complainant. He says he cannot remember even pulling or squeezing the trigger. He, rather curiously though, remembers everything else. What he does not remember is the very act of pulling the trigger and shooting at the complainant. This is what is generally known in our law as sane automatism. [16] S v Eadie 2002 (1) SACR 663 (SCA), is what is commonly known as Road rage. There, the accused, a hockey player was driving a motor vehicle late at night. He had attended a function and had taken a large amount of alcohol. On the way, the accused was overtaken by another car that was driving at high speed but suddenly slowed down after overtaking him making it difficult for the accused to overtake. After a while the accused managed to overtake but the driver following him started driving at high speed with his head lights on bright. This angered the accused who stopped his car, got out of his car and assaulted the

8 8 deceased with his hockey stick, which broke into pieces. He assaulted the deceased on several occasions and left him lying on the road and later died. [17] The accused was charged with the murder of the deceased. He raised the defence of non-pathological criminal incapacity. This defence was rejected by the court. After reviewing previous decisions on the topic or defence raised, the court ruled that there was no distinction between nonpathological criminal incapacity owing to provocation on the one hand, and the defence of sane automatism, on the other hand. The court held that if the accused alleged that as a result of the provocation, his cognitive powers had disintegrated to such an extent that he could no longer control himself and thus acted involuntary, this plea was nothing else than the plea or defence of sane automatism. Finally, the court held that such a defence was rarely raised and rarely succeeded. It emphasized that expert or scientific evidence was necessary to sustain it. In the present matter, there is no evidence in support of this defence. [18] I must hasten to state of course that the accused does not bear any onus to establish or prove his innocence. The duty lies with the Crown to prove his guilt beyond a reasonable doubt. But where the accused admits or the Crown proves that the actions by the accused were prima facie unlawful,

9 9 the accused has a responsibility, at least, to lead evidence in rebuttal. (See Eadie at para 36) [19] Again, in Humphreys v The State (424/12) [2013] ZASCA 20 (22 March 2013), the court stated: [8] This submission I think, demonstrates confused reasoning. If the appellant was indeed not conscious of his actions, the defence available to him would be that he did not act voluntarily. Since it is a trite principle of our law that a voluntary act is an essential element of criminal responsibility, the appellant would indeed be entitled to an acquittal if his actions were attributable to mechanical behavior or muscular movements of which he was unaware and over which he had no control. Since this type of involuntary behavior is more reminiscent of the activities of an automatism rather than a human being, the defence has become known as one of automatism (see eg C R Snyman Criminal Law 5 ed (2008) at 55 and the cases there cited). [9] When the defence of automatism is raised, the onus is on the State to establish the element of voluntariness beyond reasonable doubt (see eg S v Potgieter 1994 (1) SACR 61 (A)

10 10 at 72j-73g; S v Cunningham 1996 (1) SACR 631 (a) at 635i). However, as was pointed out in Cunningham, the State is assisted (in discharging this onus) by the inference dictated by common experience that a sane person who becomes involved in conduct which attracts the attention of the criminal law ordinarily does so consciously and voluntarily. In order to disturb this natural inference, an accused person who seeks to rely on the defence of automatism is thus required to establish a factual foundation, sufficient at least to raise reasonable doubt as to the voluntary nature of the alleged criminal conduct. [10] By its very nature, only the accused person can give direct evidence as to his or her level of consciousness at the relevant time. However, if the mere say-so of the accused person that the act was unconsciously committed were to be accepted without circumspection, it would tend to bring the criminal justice system into disrepute. After all, an accused person who has no other defence is likely to resort to this one in a last attempt to escape the consequences of his or her criminal behavior. Hence it has been emphasized in earlier cases that the defence of automatism must be carefully

11 11 scrutinized (see eg S v Potgieter supra at 73c). Generally speaking, expert medical evidence will be required (see eg S v Cunningham supra at 636A-B). But absent such evidence, the court will require some indication of an emotional nature that could serve as a trigger mechanism for the unusual condition of sudden absence of cognitive control. Such trigger has been found in circumstances giving rise to stress, provocation, frustration, fatigue and so forth (see eg S v Potgieter supra at 74a; S v Henry 1999 (1) SACR 13 (SCA) at 21b-g; S v Eadie 2002 (1) SACR 663 (SCA) para 16). Another consideration that comes into play is that subconscious repression of an unacceptable memory, described as amnesia, does not mean that the accused person acted involuntarily and the defence of automatism is thus not available in these circumstances (see eg S v Henry supra at 20g-i). I, with due respect, am in agreement with this exposition of the law. [20] In the present matter, the accused deliberately or conscientiously reached for his firearm, cocked it, took aim and fired it at the complainant. It is totally false that he did not fire the shot knowingly or voluntarily. I have said above that the only thing he does not recall, is him pulling the

12 12 trigger. He is obviously lying. The evidence by both PW2 and PW1 proves that he did so voluntarily. After injuring the complainant, he again had the presence of mind to remove the bullet that was already in the chamber and also removed the magazine from the firearm. These are all the actions of a man acting consciously or voluntarily. [21] In firing at and injuring the complainant as he did, the accused had a settled intention to kill him. That he did not achieve his aim or that he did not fire a second shot does not detract from the said central intention to kill. The accused appreciated that there was some risk to the life involved in the action he embarked upon, but he was reckless as to whether or not the risk was fulfilled in death. That is all that is necessary or required to sustain a conviction on a charge of attempted murder. (vide R v Taylor 1949 (4) SA 702 at (AD) [22] Just for the sake of completeness, the Homicide Act 44 of 1959 does not apply in this case. Both Counsel were in agreement in this respect. The complainant was not killed and in any event, that Act does provide a complete defence. It provides what may be called a partial defence inasmuch as it only reduces the crime from murder to culpable homicide; where of course the necessary facts are present. In Lee Chun-Chuen v

13 13 The Queen [1963] A. C 220, the Privy Council confirmed the ruling of the Ceylon (now Sri Lanka) court of appeal that: In English land --- the defence of provocation may arise where a person does intend to kill or inflict grievous bodily harm but his intention to do so arises from a sudden passion involving loss of self-control by reason of provocation. An illustration is so found in the case of a man finding his wife in the act of adultery who kills her or her paramour, and the law has always regarded that, although an intentional act as amounting to manslaughter by reason of provocation received, although no doubt the accused person intended to cause death or grievous bodily harm. [23] Our Homicide Act is modelled on English law. In England provocation can be raised as a defence only to a charge of murder. If the defence is successful X escapes a conviction of murder, but is convicted of the less serious offence of voluntary manslaughter. In voluntary manslaughter there is indeed an intention to kill, but because of provocation X is not convicted of murder. The general approach in English law is not that provocation excludes X s intention to kill or his criminal capacity (a concept which is unknown in English Law) but that a concession is made to human weakness in that X s intention is partially

14 14 excused and he is convicted of the less serious crime of voluntary manslaughter. (J.R. Snyman, Criminal Law (4 th ed.) at 354). Hence, although the law recognizes the need to make concessions to human frailty under stress, provocation is not regarded lightly and is not permitted as a complete defence (THE NATURE OF PROVOCATION IN SOUTHERN AFRICAN LAW, by D.A. DAWES). [24] For the above reasons, the accused is found guilty as charged. FOR THE CROWN: MR. P. MKHATSHWA FOR THE DEFENCE: MR. G. MHLANGA