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[2013] ZAECGHC 108
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Callvert v S (CA&R 117/2013) [2013] ZAECGHC 108 (31 October 2013)
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NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE, GRAHAMSTOWN
C.A& R.: 117/2013
Date Heard: 23 October 2013
Date Delivered: 31 October 2013
In the matter between:
RANDALL CALLVERT ......................................................................................Appellant
and
THE STATE ...................................................................................................Respondent
JUDGMENT
EKSTEEN J:
[1] The appellant in this matter was charged with and convicted of attempted murder in that he had fired shots from a firearm at Ashwell Hilpert and Simone Jacobs on 29 June 2009 at Gelvandale, Port Elizabeth. Leave to appeal was initially refused by the trial court, however, on petition the appellant was granted leave to appeal against the conviction only.
[2] At the trial the appellant pleaded not guilty. He offered no explanation of his plea and exercised his right to silence. Hilpert and Jacobs both testified for the State at the trial. On the evening of 29 June 2009 Hilpert was the driver of a motor vehicle as they drove up Stanford Road in Gelvandale at approximately 19h00 in the evening. Jacobs was a passenger in the front passenger seat with a small child on her lap. The events occurred during the evening and it was already dark. They turned into Hartebees Street and there, according to their evidence, as they rounded a bend, they saw the appellant standing in the middle of the road in the headlights of the vehicle. Hilpert states that he first saw the appellant when the appellant was approximately 20 metres from his vehicle and his headlights were on dim. Jacobs said that she only saw the appellant later and she estimates that he was approximately 5 metres from her at that time. Upon seeing the appellant, Hilpert says, he turned his headlights onto bright and saw that the appellant had a firearm in his hand. When the appellant lifted the firearm to point it in the direction of the vehicle Hilpert accelerated directly at the appellant. The appellant jumped to the left to avoid the vehicle and they passed the appellant at a distance of no more than 5 metres. Both Hilpert and Jacobs testified that they saw the appellant shoot at the vehicle and the bullet penetrated the passenger door where Jacobs was sitting. After they had passed the appellant, so Hilpert and Jacobs testified, he fired a further five shots from behind the vehicle in the direction of their vehicle. None of these shots struck the vehicle.
[3] The appellant, for his part denies that he was present at the scene and denies that he fired any shots at the vehicle of Hilpert.
[4] The central issue in dispute in the trial was the identification of the appellant as the attacker who had fired at the vehicle. In the present case it turns exclusively on the recollections of Hilpert and Jacobs of the appellant’s appearance. Our courts have recognised repeatedly over many years that evidence of this nature is dangerously unreliable unless approached with due caution. This is so because of the fallibility of human observation and therefore it is not enough for the identifying witness to be honest. It is the reliability of the observation which has to be tested against various factors such as lighting, visibility, the proximity of the witness, the opportunity for observation, both as to time and situation, the extent of the witnesses prior knowledge of the accused, the mobility of the scene, corroboration and suggestibility. The list is not exhaustive. (Compare S v Mthetwa 1972 (3) SA 766 (A) at 768.)
[5] At the trial the appellant was originally represented by Ms Visagie. After both Hilpert and Jacobs had testified and the trial had been postponed the appellant obtained new legal representation. Ms Spence took over his defence and applied to recall both Hilpert and Jacobs for further cross-examination. At this stage the evidence of both Hilpert and Jacobs was substantially different to their original testimony. In the further cross-examination of Hilpert he acknowledged, contrary to his earlier evidence that he had in fact not seen the shots being fired at him. He intimated that he had ducked at the time that the shots were fired and did not see the person who fired the shots. The magistrate, in his judgment, held that Hilpert had nevertheless persisted in his evidence that it was the appellant who was in the road ahead of him and that it was indeed the appellant who had the firearm. This finding requires closer scrutiny.
[6] In re-examination he was specifically asked by the prosecution whether the appellant had shot at him or not. His reply was: “Ek kan nie met sekerheid sê nie”. I think it must therefore be accepted that HIlpert does not know who fired at him. Further, during the cross-examination by Ms Spence it was suggested to the witness Hilpert that the appellant had been in Steyterville on the day in issue. His response was: “Hy was in die omgewing daar waar die skietery gebeur het”. It is true that in re-examination he reverted to his initial evidence in this regard and again asserted that the appellant was the person in the road ahead of him. I shall revert to the re-examination later herein.
[7] I think that the magistrate has misdirected himself entirely as to Jacobs’ evidence when she was recalled. In cross-examination by Ms Spence she stated that as they approached the scene the shots had already been fired and she only heard the shots going off. Later she explained that when the shots went off she ducked. The inescapable conclusion from the line of cross-examination followed was that she had not seen the appellant in front of the vehicle at all. Later, however, the following exchange occurred between the witness Jacobs and Ms Spence:
“’Okay’, so u het dan nie wel gesien wie het geskiet op julle nie ? --- Ek het gesien.
Maar jy het dan nou afgebuk? Jy het dan nou self gesê. --- Ek het omgekyk. Is met my terugkyk mos nou, want toe loop die person mos agter ons.”
[8] And still later:
‘Nee, maar luister nou na die vraag. Was dit so of was dit 1,2,3,4,5,6 hoe vinnig was die skote? --- Dit was aaneen gewees.
Was dit aaneen? “Okay”. So definitief was dit meer as 6-10 sekondes wat jy afgebuig het, is dit korrek? --- Jy kan maar so sê.
‘Okay’, so toe het jy, na dit toe het jy nog teurggekyk. --- Ja ek het teruggekyk.
Opgelig en teruggekyk. Daar was nou nie ligte agter jou nie, want jy onthou die ligte skyn mos voor jou. --- Ja.
Toe wat het jy gesien? --- Ek het hom gesien, want die persoon het ‘n wit, hy het ‘n wit “jacket” aangehad.
Die persoon het ‘n wit “jacket” aan gehad? --- Wat ek gesien het.
En wat het die persoon gedoen? Het u net een persoon gesien staan? --- Ek het net een persoon gesien.
Waar het die persoon gestaan? --- Soos aan my kant van die kar. Aan die linkerkant.’
[9] And, finally, still later she proceeded as follows:
‘Hoe ver was julle van daardie plek af toe jy nou omkyk en kyk wie het eintlik nou op jou geskiet? --- Dit was ver gewees.
Was dit ver? --- Ja.
So toe jy nou terugkyk en jy sien en jy sien net iemand met ‘n wit (tussenkoms). --- Wit “jacket” het ek gesien.
“Jacket” aan. “Okay” het hy ‘n “cap” aan gehad? --- Ek kon nie nou gesien het nie.
Het jy nie gesien nie? --- Hy het ‘n kappie, die kappie was op sy kop gewees.
Was dit ‘n “jacket” kappie? --- Was dit ‘n kappie top ja.’
[10] I think that this evidence is clear and unequivocal that she did not see the appellant in front of the vehicle in the headlights of the motor car at all. She observed him behind the vehicle far back. It is in this context and in the light of her evidence in respect of the hood which he had over his head that it was suggested to her in cross-examination that she did not see his face at all. She confirmed that.
[11] After the re-examination was completed the magistrate raised certain questions in clarification. The following exchange occurred:
‘Netnou toe mej Spence vir jou sê, maar, so jy het nie eintlik die persoon se gesig gesien nie, toe sê jy ja. --- Ja. Ek het gesê ja.
Hoekom? --- Omdat ek nie seker was nie.
Jy het mos sy gesig gesien, volgens jou. --- Ja.
Ja. Want hoekom sê u vir mej Spence, Prokureur, jy het nie die persoon se gesig gesien nie? --- Nie regtig nie., hy het mos ‘n kappie op sy kop gehad, ‘n wit kappie “jacket”.
Nou hoe het jy geweet dit is Tjommie? --- Ek het aan sy staan gedink, soos hy nou gestaan het, ek het mos nou al geken al.’
[12] At best , on a conclusion of this passage, it is the evidence of Jacobs that she did not really see the appellant’s face but she recognised him at a distance by his posture.
[13] It is necessary to refer briefly to some of the re-examination upon which the magistrate relies for the assertion that the witnesses Hilpert and Jacobs reaffirmed their original position. After Hilpert had acknowledged that he did not see the appellant shoot at him and that he could not say with any certainty that it was the appellant who had shot at him the following exchange occurred between the prosecutor and Hilpert:
‘Sien mnr Calvert is hier, want jy het vir die Hof gesê, jy het in jou verklaring gesê, jy het vir die Hof ook gesê hy het geskiet op jou en dit is waarom hy die beskuldigde is in die saak, omdat jy so gesê het. --- Een sal mos nou aanneem hy het geskiet, want hy het daar by die kar gestaan met ‘n vuurwapen.
Net ‘n oomblik Edeleagbare. Jy het gesê vir die Hof vantevore die voorval tussen jouself en Roysten, is McKock né, wat in die jaar 2006 het daardie voorval afgespeel. Lank voor die voorval. --- Die eerste keer ja.
Hm? --- Die eerste keer.
“Okay”. Ek wil net seker maak, jy sê nou vandag vir die Hof jy het maar aanvaar dit is die beskuldigde wat daar geskiet het? Jy kan nie met sekerheid sê dit is hy nie. --- Ek het so aanvaar, want hy (tussenkoms)
Is dit wat jy vandag vir die Hof sê? --- Ja.
Alhoewel jy al vantevore doodseker was dit is hy? --- Hy was mos in die pad gewees.”
[14] I think that the magistrate has erred in seeking to make his factual findings on the strength of this kind of re-examination. The re-examination set out above should never have been admitted as it constituted cross-examination by the prosecution of its own witness. In R v Wellers 1918 TPD 234-237 Wessels J set out the rationale for the rule that a party may not cross-examination his own witness as follows:
“It appears to me that the first principle as to why a party is not entitled to cross-examine his own witness as being adverse is that if this were allowed, a party may find that a witness is not giving evidence in accordance with his anticipation and then in order to bring the witness back to what he conceives to be the true statement, or the statement he happens to have before him, he may put leading questions and so get the witness to give evidence in accordance with counsel’s brief. This the court cannot allow. On the other hand, you may have a case where the witness in the box is giving the true statement but the counsel examining him is disappointed at the trend of his evidence, and wishes to bring him away from the true story which he is actually telling, in order, either by brow beating or confusing him, to throw doubt on his evidence. If therefore, counsel were allowed to cross-examine his own witness the court might be led to doubt evidence which is really true.”
[15] I think that these comments are pertinently apposite in the present case. Clearly the prosecutor was disappointed at the evidence now being given by Hilpert and sought to brow beat him into reverting to his original position. The same criticism, I fear, is appropriate in respect of the re-examination of the witness Jacobs. When her re-examination commenced, after she was recalled, and she had not given evidence in accordance with the prosecutor’s anticipation, he embarked on an endeavour to lead her to revert to her original statement. In response to the first twelve questions put to her amounting to one and a half pages of transcript she once replied: “Ek kan nie meer onthou nie”, for the remainder she could only say “yes” repeatedly as the prosecutor prompted her to confirm her earlier evidence. This was not admissible and can have very little evidentiary value.
[16] Reverting then to the question of identification. I have recorded earlier that I think that the true position which emerges from the record is that the witness Jacobs is unable to cast any light on the identification of their assailant save that upon looking back into the darkness behind the motor vehicle she saw a figure at some distance which she thought looked like the posture of the appellant. Whilst this evidence of identification is not inadmissible I do not think that great weight can be attached to it.
[17] In respect of Hilpert, his evidence establishes that as he was driving he noticed a person standing in the road approximately 20 metres in front of him in his headlights, which were on dim at the time. He thereafter accelerated. The evidence does not establish at what speed Hilpert was travelling however, if one were to assume, by way of illustration, that he was travelling at 60km/h, being the speed limit commonly imposed in built-up areas, a simple mathematical calculation reveals that he would have travelled at approximately 16,66 metres per second. I am alive to the fact that the 20 metre estimate is no more than an estimate and that there is no evidence as to the speed at which he was travelling. I am alive too to the dangers which lurk in this kind of mathematical exercise, however, on the facts of the present matter I think that it can safely be assumed, without relying on any calculation, that Hilpert would have had no more than a few seconds, at best, to observe the person in the road. Moreover on the evidence of Jacobs his face was not readily visible by virtue of the fact that he wore a hood over his head. To compound the difficulty the assailant was taking evasive action contributing further to the moving scene.
[18] It follows that I think that the magistrate has misdirected himself in his reliance upon the identification by Jacobs. Hilpert is therefore, for all practical purposes a single witness on this aspect. In respect of Hilpert, he does not appear to have taken cognisance of the limited opportunity for observation in respect of the time which was available. He did, in his judgment, consider the opportunity for observation in respect of the situation, but does not appear to have taken cognisance of Jacobs’s evidence that the appellant’s face was not readily visible by virtue of the hood which he wore.
[19] In all the circumstances I do not think that the evidence relating to the identification of the appellant meets the requirements to overcome the cautionary rule and I am constrained to conclude that the magistrate erred in this regard.
[21] In the result:
1. The appeal against the conviction is allowed.
2. The conviction and sentence imposed are set aside.
J W EKSTEEN
JUDGE OF THE HIGH COURT
MJALI J:
I agree.
G N Z MJALI
JUDGE OF THE HIGH COURT
Appearances:
For Appellant: Adv Geldenhuys instructed by Justice Centre, Grahamstown
For Respondent: Adv Mdolomba instructed by the National Director of Public Prosecutions, Grahamstown