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[2011] ZAECGHC 30
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Ching v S (436/2009, CC80/05) [2011] ZAECGHC 30 (10 June 2011)
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE GRAHAMSTOWN)
APPEAL CASE NO: 436/2009
CC80/05
DATE HEARD: 28/02/2011
DATE DELIVERED: 10/02/2011
In the matter between
FAEEZ CHING …........................................................................................APPELLANT
and
THE STATE ….........................................................................................RESPONDENT
JUDGMENT
ROBERSON J:-
[1] The appellant was convicted by Chetty J in the Port Elizabeth High Court of murder and two counts of assault. He was alleged to have murdered his wife, Yan Huo-Ching (the deceased), by shooting her with a firearm, and to have assaulted the deceased’s son Jason Qin (Jason) on two occasions, the first by slapping him with an open hand and the second by threatening to shoot him with a firearm. The appellant was sentenced to 18 years’ imprisonment for the murder, and 6 months’ imprisonment for the assaults (they were taken as one for the purpose of sentence). The sentences were ordered to run concurrently. Leave to appeal against convictions and sentences was refused by the trial court but granted by the Supreme Court of Appeal.
[2] The appellant came to South Africa from China in 1995 and met the deceased in 2002. They began a relationship and in due course lived together and opened a clothing shop. In 2003 they decided to marry, and after the deceased had travelled to China to divorce her first husband, one Wong, who is Jason’s father, she and the appellant were married in May 2003.
[3] In the meanwhile the deceased had gone into business with one Steynberg in Graaff Reinet and spent most of her time there. Wong then came to South Africa from China and joined the deceased and Steynberg in their business. The deceased and the appellant became estranged for a while but she returned to live with him in Port Elizabeth during April 2004, although from time to time she would spend the night in Graaff Reinet. The deceased died on 16 December 2004, at the property of one Anthony Halbert. The appellant was renting a flat on the property at the time. The deceased died of gunshot wounds to the head and neck.
[4] The appellant pleaded not guilty to all the charges. According to his written plea explanation, which he confirmed when he testified, on the night of the 15 December 2004 he and the deceased had a peaceful and amicable discussion about their future business plans and their personal relationship. The deceased tried to persuade him to sell the clothing business to an unnamed businessman but he was not prepared to at that stage. On the morning of 16 December 2004 the deceased continued to try to persuade him to sell the clothing business and he again declined to do so. An argument and a physical struggle ensued and the deceased started breaking items in the flat. He pushed her outside while they were still arguing and struggling, and she attempted to grab the car keys which were in his hand. He said the following at paragraphs 28 and 29 of the plea explanation:
“At this point in time she was striking at me with her hands and I was covering up with my left hand. Whilst we were wrestling and she was aiming blows at me, she grabbed my licensed 9 millimetre pistol from its holster. I can recall attempting to stop her. I cannot recall if I got the gun away from her or if she had the gun in her hand, but we wrestled over the gun and I heard one shot, but was later told that two shots had gone off. I just remember her falling. At that point in time I was absolutely confused as to what happened.
The next thing I can recall is making phone calls and I can recall phoning my attorney Anne Swanepoel. My attorney told me I must call the SAPS and the ambulance services and that I must hand the firearm over to the police. I cannot recall where the firearm was at this point in time but I do remember handing it over to my landlord Mr. Bert Halbert.”
At paragraph 31 of the plea explanation he said:
“It is therefore my defence that I did not mean or intend to shoot my wife. In my view it was an accident and it happened on the spur of the moment and I am deeply regretful that it had in fact happened.”
The appellant denied ever assaulting Jason and attributed the charges to a figment of Jason’s imagination.
[5] The appellant formally admitted the contents of the post mortem report, a photograph album, and a ballistics report, the latter reflecting that two cartridges found on the scene had been fired from his firearm.
[6] Jason was the first witness to testify. The charges of assault related to events which allegedly took place on 22 January 2003 and 14 March 2003. At the time he testified, on 20 June 2008, he was 15 years old. He came to South Africa from China during 2002 and got to know the appellant through the deceased. On 22 January 2003 he was a passenger in a vehicle driven by the appellant. On arrival at the Mynx restaurant in Uitenhage, the appellant asked Jason to open the door to the restaurant, but Jason declined to do so because he had food on his lap and he could not get out of the vehicle easily. The appellant became angry and slapped him on his cheek, causing his cheek to become red and swollen. The deceased was at the door of the restaurant and Jason told her what had happened. The deceased and the appellant then argued about the assault and other issues. Jason did not report the assault to the police and thought that the deceased had probably done so. He did not insist on going to the police because the deceased did not like him to interfere with her actions.
[7] On 14 March 2003 Jason accompanied the deceased to the appellant’s home in Port Elizabeth. The visit concerned a vehicle, a cellphone, and money which the appellant allegedly owed the deceased relating to the sale of a business. Jason did not know the details concerning the vehicle and the cellphone. An argument ensued and the appellant became aggressive and drew a firearm and threatened Jason and the deceased. The appellant pointed the firearm at the deceased’s head and said to Jason that once he had killed the deceased he would also kill him. The appellant then calmed down and Jason and the deceased left. Jason also related another later incident which took place at the clothing shop in Uitenhage, when the appellant had drawn his firearm and threatened him and the deceased, after an argument about the selling of the business, the vehicle and the cellphone. He related yet another incident when he had been left by the deceased in the care of the appellant. He had refused to switch off the lights at the appellant’s request whereupon the appellant slapped and kicked him. The deceased had entrusted his care to the appellant on this occasion because there was nowhere else to leave him. He did not go to the police after this assault and again thought that the deceased had probably done so. He agreed that he had sometimes stayed with the appellant for more than a few days, but the deceased had felt it was better for him to be with her rather than with Wong, his biological father, because he (Jason) had some problems at school at the time.
[8] Jason agreed that during arguments between the appellant and the deceased, the deceased would argue as strongly as the appellant, and that she often shouted at the appellant, insulted him and swore at him. He never saw the deceased grab the appellant by his clothes and only saw the appellant grab the deceased. He had also seen the appellant assaulting the deceased by slapping her. He was confronted with two statements he had made to the police on 17 December 2004 and 7 May 2005 respectively. In the first statement he did not mention that the appellant had slapped him. In the second statement he mentioned that there were two occasions when the appellant had threatened the deceased with a firearm. These two statements were however not proved.
[9] Halbert testified about the events of 16 December 2004. The appellant had been renting the flat on his property for about two years and the deceased resided there for a few months during that period. She then moved out and the appellant told Halbert not to allow her back on the premises. She, however, did come back from time to time with Steynberg. While the deceased lived there she and the appellant argued occasionally but the deceased did not complain to him about the appellant and he never saw any aggressive behaviour on the part of the appellant. Jason also stayed at the flat occasionally. Steynberg got the feeling that Jason did not like the appellant. At about 07h45 on 16 December Halbert’s wife asked him to investigate an argument which was taking place in the flat. He approached the flat and heard the appellant and the deceased arguing in the Chinese language. The deceased then called out to Halbert’s son in English, asking him to come and help. Halbert did not want his son to go so he himself went. He stood at the door of the flat and saw signs of a struggle, in that crockery was broken, a fan had been knocked over and the furniture had been disrupted. The deceased and the appellant were still struggling, about one and a half to two metres from the door. The appellant had his hands in the air, holding keys in one hand and a cellphone in the other, and the deceased was holding his wrists. The deceased wanted the keys and cellphone and the appellant said he would not give them to her until she packed her bags and left. At this stage they were speaking English. The appellant had a firearm, which he regularly carried, tucked into his belt, just behind his right hip. The deceased asked Halbert to call the police and he told her to take her things and calm down. She did not heed him. One of them lost their balance and the two of them fell towards Halbert, causing him to move out of the doorway. They both fell against the door, landing in the patio area outside the door. Up to this point the deceased was the aggressor and the one who was shouting. The appellant showed no aggression and was just keeping the cellphone and keys out of reach of the deceased.
[10] The deceased was still holding the appellant’s wrists, then let go of his left wrist and with her right hand reached across him, towards the firearm. Up to this point the appellant had made no attempt to draw his firearm. As the deceased reached for the firearm, the appellant turned her around so that she was facing away from him, drew the firearm, pointed it at the back of the deceased’s head (he indicated the middle of the deceased’s head towards the top),and shot the deceased in the back of the head at close range. Halbert described the manner in which the appellant performed this manoeuvre as clinical. He did not see what the appellant did with the keys and cellphone in his hands, but assumed he must have dropped them. After the shot the deceased immediately fell to the ground. Halbert moved a metre or two away in order to avoid being shot, and was going back to the main house, but within a second or so after the first shot, the appellant again pointed the firearm and pulled the trigger. Halbert could not see clearly what position the deceased was in but he saw the appellant aiming at what appeared to be the deceased’s head, from a standing position, with his arm extended. The firearm would have been about a metre from the deceased.
[11] During all this time the deceased never had possession of the firearm and Halbert did not take his eyes off the appellant because if the appellant had pointed the firearm at him he would have needed to take evasive action. He disagreed when it was put to him in cross examination that the deceased had pulled the firearm out and the appellant had then grabbed her hand. He also disagreed when it was put to him that the appellant and the deceased both had their hands on the firearm. His words were “she did not get close to handling that weapon”.
[12] After the second shot he ran towards the main house and a few seconds after the second shot he heard a third shot. He entered the main house, locked the front door, and his wife called the police. The appellant then appeared at the door of the main house, calling for Halbert. Halbert went out of the house and found the appellant speaking to his attorney on his cellphone, and still in possession of the firearm. The appellant said to Halbert “I am sorry Berta, she made me mad”. The appellant appeared calm. Halbert spoke to the appellant’s attorney who wanted to know the address of the house and he also asked her to ask the appellant to dismantle his firearm. The appellant dismantled the firearm and Halbert took one of the pieces so that it could not be re-assembled. At this stage the appellant was telephoning people on his cellphone.
[13] Halbert later inspected the flat and observed a lot of broken items belonging to him and the appellant. He also saw a bullet hole through the curtain and a piece of the wall dislodged, but was unable to say which bullet caused that damage. He agreed that the appellant’s behaviour that day was out of character.
[14] Halbert made a written statement to the police the following day. It was proved and admitted as an exhibit. In it he said, inter alia:
“Suddenly deceased tried to grab a firearm which Faeez Ching had in his belt. Immediately I moved few meters away fearing that in that struggle they might shoot me. Deceased could not manage to get the firearm and at that point Faeez drew the firearm and fired a shot at the deceased. Deceased then fell down.
I then ran towards my front door in an attempt to protect my family. When I ran I heard further two shots being fired. I then locked my front door and my wife phoned the police.”
It was put to him that there was a difference between his statement and his evidence with regard to the second shot, because in his statement he did not say that he saw the second shot being fired. He explained this discrepancy by saying:
“When I say running, I was moving at a pace away from the appellant who had already fired one shot, but at no point in time did I take my eye away from him at all.”
With specific reference to the words “when I ran I heard a further two shots”, he said that he did not elaborate as he should have in that paragraph.
[15] Dr. Greg Ochabski, who performed the post mortem examination on the deceased, testified. His chief post mortem findings were two close range gunshot wounds, one penetrating the head and one perforating through the neck and face; disruption of the brain; and multiple fractures of the skull. There was only one exit wound and the other bullet was found in the deceased’s brain. The gunshot which passed inside the brain was fatal, and would have caused instant incapacitation, and the other gunshot was likely to have caused a fatal injury, but not necessarily. He could not say which wound was inflicted first. The cause of death was gunshots to the head and neck. The two gunshot wounds were one centimetre in size and one centimetre apart. Each had a burnt skin ring 0,5 centimetres in size. The wounds were situated on the right suboccipital upper neck 7 centimetres behind the right external ear canal (later indicated as the right side of the back of the head). The track of the wound was horizontal if the deceased had been standing and the gun would have been aimed from the back towards the front. The wounds were regarded as close range because of the burnt skin rings, which are invariably evidence of a close range wound. It is generally accepted that, depending on the type of the firearm, the burn indicates close contact of up to 4 to 5 centimetres distance. The shots could definitely not have been fired from a distance of a metre. It was possible that if two persons were struggling over a firearm and one turned their head away, that the wounds could have been caused in that manner, because the head and the neck are mobile parts of the body.
[16] Certified copies of a record of proceedings in the Graaff Reinet Magistrate’s Court were admitted in terms of s 235 of the Criminal Procedure Act 51 of 1977. These proceedings were an application made by the deceased on 15 December 2003, in terms of the Domestic Violence Act 116 of 1998, for a protection order against the appellant. The record reflected that an interim protection order was granted by the magistrate on the same day, with a return date of 16 January 2004. Thereafter the application was postponed from time to time until it was struck off the roll on 1 February 2005, the record reflecting “Applicant deceased”. In her affidavit in support of her application, the deceased was recorded as alleging seven acts of domestic violence committed on various dates, including 22 January 2003 and 14 March 2003.
[17] The appellant testified in chief that on 16 December 2004 he was to travel to Cape Town. He had loaded his vehicle and while preparing breakfast the deceased continued a conversation that they had had the previous night, concerning the sale of the shop to Wong. He only found out later that the deceased had been married to Wong. The deceased was trying to persuade him to sell the clothing shop to Wong, saying that with the proceeds they could join one Lu in a business venture. The appellant tried unsuccessfully to telephone Lu, for confirmation of what the deceased had said. The deceased then became agitated and went to Halbert’s house saying that the appellant was trying to hit or kill her and that he should call the police. The deceased returned and started throwing kettles around and causing damage, and the appellant tried to grab her hands from behind her. Halbert arrived shortly thereafter and stood in the doorway. At this stage the deceased was threatening that if he did not co-operate and sell the business to Wong, she would report to the police that he was threatening to kill her.
[18] The appellant managed to get the deceased out of the flat and tried to force her further away from the door. They were wrestling with each other and Halbert told him to let the deceased go. The deceased tried to grab his firearm which was in a holster on his right side. He was carrying the firearm because he travelled long distances and had been robbed before. He had previously fired the firearm during a practice session and during a robbery. He heard the holster being unbuckled and immediately put his right hand behind him to stop the deceased. He forced her away but she tried to grab the firearm with both hands. The firearm was at no point in the deceased’s hand. In order to prevent the deceased from getting hold of the firearm, he took it out of the holster so that it would be out of her reach. At this point Halbert ran away. The deceased was grabbing the firearm with both hands and he was unable to resist her with only one hand. Somehow, in the midst of the struggling, he fired. He was not sure if her hands were on the gun. He could not remember if he fired deliberately or accidentally, but during the struggle the trigger was pulled because both of them were using force. He then said, in answer to a direct question from his counsel, that he did not shoot the deceased deliberately. He could not remember how many shots were fired.
[19] After the shooting he immediately dismantled the firearm and called for Halbert, who was inside the house. Halbert only opened the door about half an hour later. He also telephoned his attorney after the shooting. He handed the dismantled firearm to Halbert because he was concerned that Halbert was afraid of him. He was later arrested by the police.
[20] With regard to the assault charges, he denied ever assaulting Jason. Jason used to be left in his care from time to time, and he tried to have a good relationship with him, although at times Jason misbehaved. He was of the view that Jason fabricated the charges in order to establish a history of family violence.
[21] Cross-examination of the appellant revealed many more details about the events of 16 December 2004. He confirmed that he and the deceased were arguing over the proposed sale of the clothing business to Wong. She had mentioned the previous night that she wanted to sell the business to Wong, but was satisfied with his response that he was not prepared to do so. When reminded of his plea statement where he said she had told him she wanted to sell the business to an unnamed businessman, he said she had mentioned she wanted to sell the business to a friend. He then said he could not remember clearly whether she told him on the 15th or 16th that it was Wong. He did not know why the next morning she was angry at his refusal to sell, although he agreed that it was apparently a matter of urgency to her. He agreed that the deceased was asking him for the keys and the cellphone and he said he was not going to give them to her until she had packed her bags and left.
[22] With regard to the firearm, which was a Glock pistol, he initially said that one did not have to pull the trigger after each shot, and that if one holds on the trigger the firearm will shoot automatically. When it was pointed out to him that according to the ballistics report the firearm was self-loading but was not capable of discharging more than one shot with a single depression of the trigger, he agreed. The pistol was always loaded and cocked.
[23] After he phoned Lu, the deceased went into another room and also phoned Lu, using her cellphone. After the call she became aggressive and said she wanted to sue him, so he took the phone away from her. He also said that he took the phone from her because she wanted to call the police. Later he said he took the phone from the table because usually after calls they would put the phone on the table. The deceased was not aggressive at that stage because she did not notice that he had taken the cellphone from the table. Later he said at that stage there was a big argument because she had told him that if he did not agree to the sale of the business she would phone the police. He then told her she should pack her belongings and leave. When asked why he took her phone and keys from her if he wanted her to leave, he said there was a prior incident when she was learning to drive and had been involved in an accident and she had phoned him and told him to stop the insurance. He did not wish a repeat of such an incident. The keys were for a Corsa vehicle which belonged to him but which was used by the deceased. When he was asked how she would have been able to leave without the car keys, he said she could have called a taxi or a friend. When asked how she would have done that without a cellphone he said she had money on her and could have used a callbox. He agreed with Halbert’s evidence that he had said to the deceased that he would not give her the cellphone and the keys until she packed her bags and left, but he thought to himself that he would only give her the cellphone. He also said that he did not intend to return the cellphone and car keys to her until they had settled the divorce case, if there was one. He said the deceased was not angry because he did not want to give her the cellphone and keys, but because he did not want to sell the business to Wong.
[24] After he took the cellphone away from the deceased she went to call Halbert and returned with Halbert following her. She was shouting that the appellant wanted to kill her or threaten her with the gun. While the appellant was holding the cellphone and keys he told her that he was not going to sell the business to Wong and Halbert was present at this stage. When he saw Halbert he was holding the deceased from behind, holding her wrists. He was unable to restrain her because she was very “sporty”. Halbert told him to let her go and he tried to take her through the door, holding her and dragging her. Sometimes her back was towards him and sometimes her front. When reminded of Halbert’s evidence that the deceased was holding his wrists and he was holding the keys and cellphone up in his hands, he said he did not know when Halbert came into the room and said sometimes his hands were holding her hands and sometimes he held items in his hands up in the air. His main purpose was to get her out of the flat. He did not let go of her because he did not want her to continue to damage the flat. In addition she did not want to leave and wanted to phone the police to arrest him.
[25] With regard to Halbert’s evidence that one of them had lost their balance, he said it could have been him because he was trying to grab hold of her. Because the deceased was stronger than him he probably did not have enough strength to push her out of the door. In the patio area outside the door she was struggling over the cellphone and keys in his hand. He did not remember when he dropped the cellphone and keys from his hands. When the deceased was outside he blocked the doorway to prevent her from entering and he closed the door. When he turned around from doing so, she was in front of him and began shouting in English that he should give her the cellphone and keys, and tried to grab them from his hands. He then put these items behind his back and up in the air in order to hide them from her. The deceased jumped forwards and he thought that she was trying to reach for the cellphone and keys and that is when he felt her touch the gun. He moved backwards in case the gun went off and to get away from her hand. When he backed away she moved towards him with both hands in the direction of the gun and unbuckled the holster to try to pull the gun out. He tried to push her away and put his hands on the gun to prevent it from being drawn. Because she was coming towards him with two hands, he pulled the gun out and held it in midair towards his back, so it was difficult to reach. Both her hands followed the gun and there was a time when both their hands were on the gun but he kept it out of reach hoping that she would not get hold of it.
[26] When it was put to him that he had said in evidence in chief that she had never had possession of the gun he said that when he felt her touch the gun he moved backwards and his body was arched forward. She then moved her other hand towards the gun and he tried to push her away and then the gun started sliding out of the holster. The gun was halfway out of the holster and he tried to push it back into the holster. She had unbuckled the holster and pulled the gun halfway out of the holster. At the time he was holding the gun in midair Halbert ran away. Not only Halbert, but his wife, daughter and son had been on the patio prior to the shooting, and they all ran away after they saw him pull out the gun. He had not mentioned this detail in his plea explanation because he did not want to involve them.
[27] During the struggle with the deceased somehow the gun went off. The gun was in his possession at the time but she was continuously trying to reach for the gun. He did not know if he fired the shot because they were struggling and he did not know who pulled the trigger. He was holding the gun but did not have full control over it. Her hand somehow reached the gun and he did not know what happened, but the gun fired. At this stage the deceased had the front part of her body towards him and was bending forward so he could see her back, but he did not remember if she was in this position when the gun went off. He could only remember that the gun fired and the deceased was on the floor. He could not remember how the gun went off because he and the deceased were struggling. He did not know what the deceased’s position was or the position of his hand when the gun fired. He did not know how the gun fired. He thought because of the loudness of the gun he did not hear the second shot, although he agreed he would have had to pull the trigger again to fire the second shot.
[28] The next he remembered was the deceased bleeding on the floor and the firearm was still in his hand. He did not remember how many shots had gone off and he assumed that he had fired the gun. He put the gun back in its holster. He went to find Halbert but he had locked himself in the house. He then phoned his attorney. He could not remember what he said to Halbert but remembered that he was apologetic and tried to calm him down so that he would not be scared. He dismantled his gun to reassure Halbert and gave him the headpiece of the gun. He denied that Halbert had requested his attorney to ask him to dismantle the gun.
[29] The appellant agreed that a report by Ian Meyer, a clinical psychologist, contained the information he had provided to Meyer. It appeared from the record that it was originally intended to call Meyer as a defence witness. He confirmed that, as indicated in Meyer’s report, he had suffered some amnesia concerning the first shot. He confirmed telling Meyer that he had pushed the deceased on her right shoulder with his left arm outstretched, and his weapon had been pointed to the right side of the deceased’s neck, with the barrel of the weapon parallel to the deceased’s neck. He demonstrated in court the position of the gun with his right hand outstretched.
[30] Steynberg testified that he had had a romantic relationship with the deceased who he said was a friendly but very aggressive person. There was an incident when she was angry and tried to jump out of the flat but he and Jason pulled her back. She then banged her head against the wall. The appellant was a very friendly person and was never aggressive in his presence. The deceased had once complained to him that the appellant was aggressive towards her but in his presence the appellant always treated the deceased well and with respect. Jason was ill-mannered towards him (Steynberg) but he was not aware of any problem between the appellant and Jason. The appellant was good to Jason. Steynberg was not upset at the fact that the deceased had a relationship with the appellant at the same time nor was he angry when he found out that Wong was Jason’s father.
[31] The court a quo found Halbert and Jason to be honest and reliable witnesses, and found the appellant to be a “thoroughly unimpressive witness, one particularly adroit at evading rather simple questions put to him. Straightforward questions elicited a lengthy convoluted response and the general tenor of his evidence unequivocally demonstrates that it is a fabricated version in order to present a credible explanation for the death of the deceased.”
[32] In S v Monyane and others 2008 (1) SACR 543 (SCA) at 547i – 548b Ponnan JA said the following:
“The court’s powers to interfere on appeal with the findings of fact of a trial court are limited. It has not been suggested that the trial court misdirected itself in any respect. 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 (S v Hadebe and others 1997 (2) SACR 641 (SCA) at 645e-f). This, in my view, is certainly not a case in which a thorough reading of the record leaves me in any doubt as to the correctness of the trial court’s factual findings. Bearing in mind the advantage that a trial court has of seeing, hearing and appraising a witness, it is only in exceptional cases that this court will be entitled to interfere with a trial court’s evaluation of oral testimony (S v Francis 1991 (1) SACR 198 (A) at 204e).”
[33] In the present case the court a quo’s findings are in my view borne out by the record. Halbert’s evidence was clear and flowed logically. He displayed no bias towards the appellant. On the contrary he conceded factors in the appellant’s favour, for example that he had not witnessed aggressive behaviour on the part of the appellant in the past, that the deceased had not previously complained about the appellant, that the appellant’s conduct that day had been out of character, and that the deceased was the aggressor up to the point when she reached for the firearm. It was submitted that he was malicious in describing the appellant’s conduct in shooting the deceased as “clinical” but in my view this was simply his observation, and in general his evidence was utterly impartial. With regard to the difference between his evidence and his statement to the police regarding the second shot, as well as the medical evidence that both shots had been at close range, the court a quo said the following:
“It is no doubt correct that Mr. Halbert under cross-examination stated that the deceased was on the ground when the second shot was fired but that tittle of evidence must be adjudged against his earlier testimony that he was unsure of the deceased’s exact position when the second shot was fired.
It must be remembered that the interval between the firing of the two shots was minimal. That factor, coupled to the obvious trauma of the rapidly unfolding drama must undoubtedly have had some effect on Mr. Halbert, but not, to my mind, to the extent that he would have manufactured that evidence. Those events he recalled were indelibly imprinted on his mind which the passage of time has not eroded. The essence of his evidence that the two shots were fired in rapid succession in the manner described by him, namely, that the accused was behind the deceased, finds corroboration in the medical evidence. That testimony conclusively established that the entrance wounds were at the rear of the deceased’s head and accords fully with Mr. Halbert’s observation. The mere fact that his description of the area on the deceased’s head where the shots were fired into varied somewhat to the precise position evidenced by the post-mortem report does not deleteriously impact upon his reliability as a witness. In a rapidly unfolding scene it would be unreasonable to expect a witness to remember precisely the exact position where the bullet entered the deceased’s head.”
I am unable to find fault with this reasoning.
[34] It was submitted on behalf of the appellant that the evidence of Ochabski contradicted that of Halbert and corroborated that of the appellant. Specifically, it was submitted that Halbert’s evidence was not that the two shots were fired at close range simultaneously and very quickly one after the other, but rather that after the first shot was fired from almost contact range, the deceased fell, whereupon the appellant stood back and straightened his arm and fired from a distance of a metre. On the other hand, so it was submitted, Ochabski’s evidence was that the two shots were so close to each other that they tracked the same direction. If one added to this evidence the evidence that the wounds were contact wounds, it meant that the two shots went off so close together that they sounded like one shot. The almost simultaneous shooting from the same angle therefore corroborated the appellant’s version. Presumably this was a reference to his evidence that he only heard one shot, because otherwise he gave no comprehensible evidence of how the gun went off or at what angle the gun was when the shots were fired. Nowhere in the evidence of Ochabski could I find that the two wounds tracked the same direction. On the contrary, the post mortem report gave details of two bullet tracks, as follows:
“one anterior under the skull through the neck muscles, posterior pharynx, right maxillary bone and exited on the right cheek where bullet exit wound size 2x2cm was present.
second track could be followed through the right occipital bone, cerebellum, brain stem and fragments of bullet were found scattered in the left brain hemisphere.”
[35] In my view this submission was speculative, and did not do any damage to the court a quo’s reasoning referred to above. I would add that Ochabski’s evidence of the position of the gun when it fired, namely from back to front, corroborated Halbert’s evidence of at least the first shot.
[36] Jason too appeared to be an unbiased witness, even though he was giving evidence against the person who had shot his mother. He did not appear to exaggerate his evidence and said there were details he could not remember concerning the reason why the deceased had gone to see the appellant on the occasion of the second assault. He also agreed that during arguments between the deceased and the appellant, the deceased would argue as strongly as the appellant, and raised her voice and insulted and swore at the appellant. The fact that he had not made a complaint to the police at the time of the assaults is not significant, bearing in mind that he was only 13 years’ old at the time. He also agreed that there were times he stayed with the appellant but he explained the reasons for these visits. It was submitted that he would not have stayed with the appellant if he had been assaulted and threatened by the appellant, but again his youthfulness at the time must be borne in mind, as well as the fact that he was under the deceased’s control. The court a quo said the following about Jason:
“Despite his relative youthfulness, Jason is a mature young man. He readily admitted to his mother’s imperfections and her errant behaviour. There is nothing to suggest that his mother’s death acted as a catalyst for him to fabricate evidence against the accused.”
The court a quo also found corroboration for Jason’s evidence in the record of proceedings which were admitted in terms of s 235 of the Criminal Procedure Act. I shall deal with this aspect later in this judgment.
[37] The court a quo referred to the contradictions (evident from the summary above) between the appellant’s evidence in chief, his evidence in cross-examination, his plea explanation, and what was put to Halbert, concerning the critical moment when the shots were fired. These material contradictions strongly supported an adverse credibility finding. Added to these contradictions was the appellant’s agreement with the detail in Meyer’s report that the gun had been pointed towards the right side of the deceased’s neck, with the barrel parallel to her neck. This was yet another attempted explanation of how the deceased was shot. I fully agree with the court a quo that the tenor of the appellant’s evidence demonstrated that it was fabricated in order to explain how the deceased met her death. I have struggled to understand how, on any of the versions, and particularly the one where the deceased was bending forward so the appellant could see her back, the deceased could have been shot in the back of her head.
[38] There were other unsatisfactory features of the appellant’s evidence. In my view, he deliberately tried to mislead the court when describing the firing mechanism of his firearm. His evidence that the trigger did not need to be pulled after each shot, was clearly false, and an attempt to fortify his evidence that he only heard one shot. He had fired the firearm on previous occasions and must have known that a single depression of the trigger only discharged one shot.
[39] Halbert’s evidence that he had requested the appellant’s attorney to ask the appellant to dismantle his firearm was not disputed. However, when the appellant testified, he said he had dismantled the firearm immediately after the shooting, (he also said he had put the firearm in its holster) while Halbert was in his house. In my view, this evidence was a dishonest attempt to minimise Halbert’s involvement in the events. It is far more probable that the appellant would have dismantled the firearm on request, rather that dismantling it immediately after the shooting.
[40] It was put to Halbert that the appellant would deny saying to him “I am sorry Berta she made me mad”, and that he did not remember saying anything to anyone. However, under cross-examination the appellant said that he did not remember what phrases he had used to Halbert, but remembered that he tried to apologise. Not only was his evidence contradictory on this aspect, but his attempt to apologise to Halbert corroborated Halbert’s evidence that he had said he was sorry. If he said these words to Halbert, then it is highly improbable that the shooting was an accident.
[41] The appellant also contradicted himself concerning the events leading up to the shooting, namely the argument about the sale of the business and when he learned that the deceased wanted to sell to Wong. In my view these contradictions demonstrated that the appellant was trying to play down the struggle over the cellphone and keys, which was common cause, and to suggest unprovoked aggression on the part of the deceased. It was clear from Halbert’s evidence that the appellant was to some extent inflaming the situation by not giving the deceased the cellphone and keys. The appellant himself said that he wanted her to leave but that he was not going to give her the cellphone and keys.
[42] Counsel for the appellant referred to the case of S v Larsen 1994 (2) SACR 149 (AD) in support of the appellant’s version that the shooting was an accident during a struggle for the firearm. In Larsen the question of the appellant’s guilt was approached on the basis of the following scenario: the appellant had pointed a firearm at the deceased, who grabbed the appellant’s hand holding the firearm and tried to disarm her. In the course of a struggle two shots went off and hit the floor. A third shot struck the deceased when the muzzle of the firearm was in contact with his forehead. Bruising on the back of the deceased’s hand was consistent with a struggle for the firearm. It was found that the probabilities favoured the fatal shot being fired in the course of the struggle for possession of the firearm.
[43] In Larsen there were no eye-witnesses to the shooting and the State relied on circumstantial evidence. In the present case there was an eye witness and the appellant’s evidence of how the shots were fired was contradictory and improbable. I am therefore of the view that Larsen does not afford support for the appellant’s case.
[44] It was accepted at the trial that a gun residue test on the appellant was negative. However there was no evidence of when the test was done and the negative result, considered in the context of the evidence as a whole, does not in my view assist the appellant.
[45] Chetty J’s judgment reflected that he was aware of the provisions of s 235 of the Criminal Procedure Act, namely that the certified copy of the record of the proceedings in the Graaff Reinet Magistrate’s Court constituted prima facie proof that what was contained in the record was correctly recorded. However, as already mentioned, he said that Jason’s evidence was corroborated by the record of proceedings, in that the record corroborated Jason’s evidence concerning the events of 22 January 2003 and 14 March 2004. If by this it was meant that Jason’s evidence was corroborated by the truth of the contents of the application, then I respectfully disagree. In this judgment I pay no regard to the contents of the documents relating to the protection order, and in considering Jason’s credibility I have had regard to the content of his evidence only, in the context of the evidence as a whole, and the court a quo’s impressions of him as a witness.
[46] The court a quo was of the view that Steynberg’s evidence did not advance the case of the appellant, except to state that the deceased acted aggressively at times. Such conduct on the deceased’s part was not in dispute. Steynberg’s evidence that the appellant was friendly, and treated the deceased well and with respect, did not, in my view, have any bearing on the events of 16 December 2004. It was not in dispute that the deceased was the initial aggressor that day, or that there had been arguments in the past. It was submitted on behalf of the appellant that the court a quo did not take into account Steynberg’s evidence that the appellant had treated Jason well and that Jason had never alleged that the appellant had assaulted him or threatened him. I do not think that Steynberg’s evidence had a material effect on the probabilities of the events testified to by Jason. As already mentioned Jason admitted that he had stayed with the appellant on occasions and explained why this was so. There was also no apparent reason why Jason would have confided in Steynberg about the appellant’s conduct towards him.
[47] In the result, I am of the view that the trial court was correct in accepting the evidence of Halbert and Jason, and rejecting that of the appellant, and the appellant was accordingly correctly convicted on all the charges.
Sentence
[48] In sentencing the appellant, Chetty J began by referring to the fact that the appellant telephoned his attorney after the shooting and dismantled his firearm on request, and said to Halbert “I am sorry Berta, she made me mad”. He then said:
“This unsolicited remark, uttered immediately after the shooting, constitutes the real reason for this senseless act of violence in which the deceased lost her life and it is against this factual matrix and no other against which sentence is to be determined.”
He considered the appellant’s previous resorts to violence, as testified to by Jason, as an aggravating factor. He also referred to the contents of the deceased’s application for a protection order, where it was recorded that she had alleged seven acts of violence on the part of the appellant. He acknowledged that the information contained in the record of the application did not establish that the appellant had committed those acts of violence, but established that the deceased had complained of such conduct. However, he said that the deceased’s allegation of violence on 14 March 2003 was corroborated by Jason’s evidence. He then went on to say that such information had to be contrasted with the appellant’s evidence that he was a peaceful individual who would never resort to such conduct, and having found Jason to be an honest and reliable witness, he accepted that the appellant was not as meek and mild as he sought to portray himself. If, by this reference to the deceased’s allegations in the application for a protection order, he was accepting that her allegations were true, I am respectfully of the view that such acceptance would amount to a misdirection. It was proper to have regard to Jason’s evidence but not to the deceased’s allegations, and in this judgment the sentence will be considered accordingly.
[49] The court a quo also took into account that the appellant had a direct intention to kill, that he had shown no concern for the deceased after shooting her but had merely telephoned his attorney, and had never expressed remorse. He also referred to the prevalence of murders in a domestic setting. He was of the view that imprisonment was the only appropriate sentence for a crime of such magnitude.
[50] After careful consideration, the court a quo was of the view that correctional supervision was not an appropriate sentence. A correctional supervision report had been obtained and the conclusion of the correctional officer was that the appellant was not a suitable candidate for correctional supervision, in that he did not take responsibility for his actions, which indicated a lack of insight into his wrongdoing. The court a quo referred to Larsen but concluded that the circumstances of the present case were quite dissimilar and that correctional supervision would not reflect the gravity of the offence and the necessity to account for the prevalence of violent crimes committed with firearms. In Larsen the trial court had sentenced the appellant to 5 years’ imprisonment half of which was suspended conditionally for 5 years. On appeal the sentence was set aside and remitted to the trial court to consider sentence afresh, after obtaining a correctional supervision report. The appellant was a 38 year old mother of 3 children, the youngest of whom was 8 years. She was in full time employment, and had no relevant previous convictions. There was a history of assaults on the appellant by the deceased (her husband), and a taunting and abusive attitude on his part. The Appellate Division was of the view that the appellant may not have fallen into the category of persons who should be removed from society. I respectfully agree that the two cases are markedly different and that in the circumstances of the present case correctional supervision would be inappropriate, and indeed trivialise the offence.
[51] The court a quo took into account the appellant’s personal circumstances including the fact that he was a first offender, was self employed and employed a number of other persons, and was a useful member of society.
[52] In terms of s 51 (2) of the Criminal Law Amendment Act 105 of 1997, a minimum sentence of 15 years’ imprisonment applied to the murder charge, unless substantial and compelling circumstances were found to exist. It was submitted on behalf of the appellant that there were substantial and compelling circumstances. The court a quo did not deal with the existence or otherwise of substantial and compelling circumstances and this Court is therefore at large to consider the existence or otherwise of substantial and compelling circumstances. Having considered the offence itself, the appellant’s personal circumstances, and the interests of society, the court a quo was obviously of the view that a sentence of less than 15 years was not suitable. I am of the view that the sentence of 18 years imprisonment was in all the circumstances an appropriate one. It is correct, as was submitted, that the deceased was the aggressor up to the point that she reached for the firearm; she had been breaking objects in the flat; and if she had not reached for the firearm the incident may well not have happened. On the other hand when the appellant shot the deceased, he did so with the direct intention to kill, and shot her not only once but twice in the head. When he shot her for the first time, he was in control of her, and even more so when he shot her the second time. When she was shot, she was defenceless and posed no threat. Although not premeditated, this was still a brutal killing. A relatively young life was taken (the deceased was 35) and a teenaged child lost his mother. The appellant played a part in fuelling the situation, by withholding the cellphone and keys from the deceased, when he could have easily given them to her. Even if, as was submitted, the deceased had been a violent and spoiled wife in the past, and even if the appellant had not displayed violent behaviour before, her murder could not be seen as a culmination of events which drove the appellant to do what he did. He was not a battered husband. In my view, the crime itself and the interests of society outweighed the personal circumstances of the appellant and there were no grounds for finding substantial and compelling circumstances. In my view, a sentence of 18 years’ imprisonment properly met the circumstances of the offence.
Bias
[53] It was submitted that the court a quo was biased against the appellant, and approached his evidence as if he bore an onus. In support of this submission reference was made to questions put to the appellant by the court a quo. I have considered every question specifically referred to by Counsel for the appellant in his heads of argument and can find no such approach. The questions appear to have been for clarification and did not amount to cross-examination. Counsel for the appellant also referred to poor treatment of him (Counsel) by the court a quo. The record reflects one unpleasant exchange between the court a quo and Counsel for the appellant, as well as several occasions when Counsel’s objections were overruled. On the other hand there were several occasions when Counsel for the State was overruled by the court a quo, and in some instances the court a quo stopped a line of questioning by Counsel for the State or corrected her, even when there was no objection. The court a quo’s judgment revealed a proper consideration of the evidence, which spoke for itself, and I am of the view that no irregularity took place which could have vitiated the proceedings.
[54] In the result, the appeal is dismissed.
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J M ROBERSON
JUDGE OF THE HIGH COURT
PAKADE ADJP
I agree and it is so ordered.
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L P PAKADE
ACTING DEPUTY JUDGE PRESIDENT
ANDREWS AJ
I agree
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A ANDREWS
JUDGE OF THE HIGH COURT (ACTING)
Appearances:
Appellant: Advocate T Price, instructed by Legal Aid Board
Respondent: Advocate M Moodley, instructed by DDPP