S v Crossberg

JurisdictionSouth Africa
Citation2008 (2) SACR 317 (SCA)

S v Crossberg
2008 (2) SACR 317 (SCA)

2008 (2) SACR p317


Citation

2008 (2) SACR 317 (SCA)

Case No

440/07

Court

Supreme Court of Appeal

Judge

Navsa JA, Brand JA, Ponnan JA, Mlambo JA and Malan AJA

Heard

November 21, 2007

Judgment

March 20, 2008

Counsel

JG Cilliers SC (with JP Nel) for the appellant.
HS Ngobeni for the respondent.

Flynote : Sleutelwoorde

Culpable homicide — Sentence — Appellant shooting at baboons and B accidentally killing employee — Appellant having record of involvement in charitable and developmental work — Clearly valuable member of society — However, his conduct directed at imposing authority over farm and farm workers in cavalier fashion — Could easily have scared off baboons in C different way, with due regard to people's safety — Degree of negligence high — Appropriate sentence five years' imprisonment, two of which conditionally suspended.

Murder — Mens rea — Intention to kill — Appellant shooting into bush to scare away baboons, but fatally wounding farm worker — State's version of events totally at odds with objective facts — Points shown to photographer D by three main witnesses inconsistent with their testimony — witness emphatic that appellant firing seven shots in quick succession, which impossible with revolver in question — Various other improbabilities in witness's behaviour — Highly improbable that appellant behaving in blatantly murderous fashion in full view of witnesses, and almost immediately E thereafter reporting matter to police, well knowing his version to be false — Trial court erring in accepting testimony of three main witnesses — Convictions for murder and attempted murder set aside — Appellant convicted of culpable homicide.

Trial — Irregularity in — What constitutes — Witness statements missing — At F least 13 statements not disclosed to defence — Investigation diary not properly maintained — Clear that missing statements highly relevant to outcome and to issue of fair trial — No reasonable explanation as to why some statements retaken and as to why so many missing — Conclusion that first set of statements not suiting State's case, and that they were missing by design rather than misfortune, compelling. G

2008 (2) SACR p318

Headnote : Kopnota

A The appellant was convicted in the High Court of murder and on four counts of attempted murder. It was alleged that he had intentionally, and at close range, shot and killed the deceased, and that he had fired shots in the direction of four of the deceased's co-workers. On appeal, he contended that the destruction or loss of 13 witness statements in the police docket constituted a fundamental irregularity that had deprived him of his right to a B fair trial. He further contended that, on each of the counts, the State had failed to prove his guilt beyond reasonable doubt. The appellant's version was that he had fired two shots into the bush on his farm in an attempt to scare off baboons that had been damaging certain structures; he had been unaware that certain temporary workers, including the deceased, had been in the vicinity at the time. It was conceded on behalf of the appellant C that, on his own version, he fell to be convicted of culpable homicide.

Held, the court having set out the details of the State and the accused's versions, that it was clear that at least 13 statements had not been disclosed by the police to the prosecutor and in turn, therefore, not to the appellant, including the first statements made by all the workers. In addition, the investigation diary had not been properly maintained: proper entries D concerning the taking of statements had not been made, and entries had been made of statements even before they had been taken. (Paragraphs [50] - [56] at 330f-331e.)

Held, further, that the State's version of events was totally at odds with the objective facts. The relevant points shown to the photographer by the three main witnesses, and reflected on the photographs presented in evidence, at E were inconsistent with their own testimony of how the shooting had occurred. The description by the witnesses M and N of how the appellant had deliberately shot at the deceased and at O must be rejected. M was emphatic that the appellant had fired seven shots in quick succession, which was impossible with the revolver in question. There were also various other improbabilities: it was highly unlikely that two people who were being shot F at, and who had the opportunity of fleeing into dense vegetation, would choose rather to run towards the barrel of a gun; it was as unlikely that one of them, O, would thereafter board the appellant's vehicle, seemingly without fear; and the workers had also, on the State's version, continued to prepare for work as they had been instructed, none of them saying anything about the horrible deed they had just witnessed. It was also highly G improbable that the appellant would have behaved in this most blatantly murderous fashion in full view of witnesses, and almost immediately thereafter report the matter to the police, well knowing that his version was false and would probably be contradicted. Clearly, the court below erred in accepting the testimony of the three main witnesses; their evidence lacked credibility, was improbable, at odds with the objective evidence, and was H wholly unreliable. Accordingly, the convictions on the murder charge and the four counts of attempted murder must be set aside. (Paragraphs [60] - [72] at 332a-334b.)

Held, further, regarding the State's duty to make full disclosure, that while the missing statements themselves were not available for scrutiny, it was clear from the evidence adduced by the State that they were highly relevant to the I outcome and to the issue of a fair trial in relation to the murder charge. Dubious reasons had been presented for the retaking of the statements and no reasonable explanation had been given as to why so many were missing. Furthermore, the disclosure that numerous statements had been taken and then gone missing had come only after certain State witnesses had been 'caught out' regarding the number of statements they had made. In the J circumstances, the conclusion that the first set of statements had not suited

2008 (2) SACR p319

the State's case, and that they were missing by design rather than A misfortune, was compelling. The conduct of the police in the case fell far short of what was required of the criminal justice system. (Paragraph [80] at 336b-f.)

Held, further, that these irregularities did not intrude upon the question of whether the appellant was - as he himself conceded - guilty of culpable homicide. For a conviction of culpable homicide it must be shown beyond B a reasonable doubt that a reasonable person, in the same circumstances as the accused, would have foreseen the death of a victim as a consequence of his or her conduct, and that a reasonable person would have taken steps to guard against the foreseeable death. In casu a reasonable person in the appellant's position would have foreseen the death of the deceased as a result of discharging a firearm in the manner and circumstances in which he C had done. Notwithstanding this, the appellant had taken no steps to guard against such a death, and he was therefore guilty of culpable homicide. (Paragraphs [82] - [84] at 336h-337b.)

Held, further, regarding sentence, that there was sufficient material before the court to inform a proper sentence, and that it was not necessary to refer the matter back to the trial court. (The court proceeded to compare the D sentences imposed in a large number of culpable homicide convictions.) The appellant was 46 years old, married, and had three dependants. He had paid the funeral expenses of the deceased and for the transport of the deceased's body back to Zimbabwe. He had a record of involvement in charitable and developmental work, and was clearly a valuable member of society. His conduct had been directed at imposing his authority over the E farm and the temporary workers in a cavalier fashion. He could easily have scared off the baboons in a different way, with due regard to the safety of the people on the farm. The firearm in question, to the appellant's knowledge, was deadly over a long distance. The degree of negligence, considering that the appellant ought to have been more concerned about the safety of the employees entrusted to him, was high. His conduct had been deliberately F aggressive and without due regard to the danger to human life. An appropriate sentence would be five years' imprisonment, two of which would be conditionally suspended. (Paragraphs [85] - [114] at 337c-341d.)

Appeal upheld. Convictions for murder and attempted murder set aside and appellant convicted of culpable homicide. Sentence of five years' imprisonment, of which two conditionally suspended, imposed. G

Annotations:

Cases cited

Reported cases

Southern African cases

Louwrens v Oldwage 2006 (2) SA 161 (SCA) ([2006] 1 All SA 197): referred H to

President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) (1999 (10) BCLR 1059): referred to

R v Karg 1961 (1) SA 231 (A): dictum at 236B - C applied

S v Birkenfield 2000 (1) SACR 325 (SCA): compared I

S v Cunningham 1996 (1) SACR 631 (A): compared

S v De Bruin 1991 (2) SACR 158 (W): compared

S v Eadie 2002 (1) SACR 663 (SCA) (2002 (3) SA 719): referred to

S v Francis 1991 (1) SACR 198 (A) ([1991] 2 All SA 9): referred to

S v Gentle 2005 (1) SACR 420 (SCA): referred to

S v Greyling 1990 (1) SACR 49 (A): compared J

2008 (2) SACR p320

S v Hadebe and Others 1997 (2) SACR 641 (SCA): referred to A

S v Heslop 2007 (1) SACR 461 (SCA) (2007 (4) SA 38; [2007] 4 All SA 955): referred to

S v Kalogoropoulos 1993 (1) SACR 12 (A): referred...

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11 practice notes
  • Law of Evidence
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    • Juta Yearbook of South African Law No. , March 2021
    • 10 March 2021
    ...(ECG).26 1999 (1) SACR 447 (W). See also S v Van Aswegen 2001 (2) SACR 97 (SCA); S v Trainor 2003 (1) SACR 35 (SCA); S v Crossberg 2008 (2) SACR 317 (SCA).27 Van der Meyden (note 26) 448f–g.28 2019 (2) SACR 216 (FB) para 6.© Juta and Company (Pty) LAW OF EvIdENCE 947https://doi.org/10.47348......
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    ...toR v Hepworth 1928 AD 265: referred toS v Charzen and Another 2006 (2) SACR 143 (SCA) ([2006] 2 All SA 371):consideredS v Crossberg 2008 (2) SACR 317 (SCA) ([2008] 3 All SA 329): comparedS v Jackson and Others 2008 (2) SACR 274 (C): referred toS v Kebana [2010] 1 All SA 310 (SCA): compared......
  • Author index
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    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...281S v Crossberg [2008] 3 All SA 329 (SCA) .............................................. 254S v Crossberg 2008 2 SACR 317 (SCA) ................................................. 136-137S v Crossberg 2008 2 SACR 317 (SCA) ................................................. 89S v De Blom 1977 ......
  • Director of Public Prosecutions, Gauteng v Pistorius
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    • Invalid date
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7 cases
  • S v Steward
    • South Africa
    • Invalid date
    ...toR v Hepworth 1928 AD 265: referred toS v Charzen and Another 2006 (2) SACR 143 (SCA) ([2006] 2 All SA 371):consideredS v Crossberg 2008 (2) SACR 317 (SCA) ([2008] 3 All SA 329): comparedS v Jackson and Others 2008 (2) SACR 274 (C): referred toS v Kebana [2010] 1 All SA 310 (SCA): compared......
  • Director of Public Prosecutions, Gauteng v Pistorius
    • South Africa
    • Invalid date
    ...BCLR 1192; [2005] ZACC 10): followed S v Bogaards 2013 (1) SACR 1 (CC) (2012 (12) BCLR 1261; [2012] ZACC 23): followed S v Crossberg 2008 (2) SACR 317 (SCA) ([2008] 3 All SA 329): referred S v De Oliveira 1993 (2) SACR 59 (A): dictum at 63i applied H S v Dlodlo 1966 (2) SA 401 (A): dictum a......
  • Director of Public Prosecutions, Gauteng v Pistorius
    • South Africa
    • Invalid date
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  • S v Kopsani and Another
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    • Invalid date
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4 books & journal articles
  • Law of Evidence
    • South Africa
    • Juta Yearbook of South African Law No. , March 2021
    • 10 March 2021
    ...(ECG).26 1999 (1) SACR 447 (W). See also S v Van Aswegen 2001 (2) SACR 97 (SCA); S v Trainor 2003 (1) SACR 35 (SCA); S v Crossberg 2008 (2) SACR 317 (SCA).27 Van der Meyden (note 26) 448f–g.28 2019 (2) SACR 216 (FB) para 6.© Juta and Company (Pty) LAW OF EvIdENCE 947https://doi.org/10.47348......
  • Author index
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    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...281S v Crossberg [2008] 3 All SA 329 (SCA) .............................................. 254S v Crossberg 2008 2 SACR 317 (SCA) ................................................. 136-137S v Crossberg 2008 2 SACR 317 (SCA) ................................................. 89S v De Blom 1977 ......
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