IN THE SUPREME COURT OF SWAZILAND
CRIMINAL APPEAL NO.39/2010
HELD AT MBABANE
In the matter between:
SIBUSISO KUKUZA DLAMINI: APPELLANT
AND
REX : RESPONDENT
CORAM : EBRAHIM, JA
: DR. S. TWUM, JA
: MAPHALALA, JA
FOR THE APPELLANT : MR. S. SIMELANE
FOR THE RESPONDENT : MR. S. MDLULI
HEARD : 2 NOVEMBER 2011
DELIVERED : 30 NOVEMBER 2011
SUMMARY
Criminal Appeal – attempted murder – appeal dismissed – legal intention – dolus eventualis – principles explained
EBRAHIM J.A.
[1] The appellant was charged and convicted of attempted murder, it being alleged that he wrongfully and unlawfully stabbed the deceased with a spear with the intention of killing him. He was sentenced to five years imprisonment. The period he spent in custody (03/6/08 – 12/12/08) is to be taken into account.”
[2] The appellant pleaded not guilty to the charge of attempted murder but pleaded guilty to assault with intent to do grievous bodily harm. Crown counsel declined to accept this lesser plea and the trial proceeded on the charge of attempted murder.
[3] In support of its case the prosecution led three witnesses, the complainant Mphumelelo Gamedze, the investigating officer, Detective Sergeant Mamba, and Doctor Gessessi who attended to the complainant in this matter.
[4] It is apparent that by tendering a plea of assault with intent to do grievous bodily harm the appellant signified his acceptance that he was responsible for the injury sustained by the deceased but it was his contention that the stab wound inflicted to the deceased was accidental.
[5] The learned trial Judge states in his judgment that at the commencement of the appellant’s trial he explained to the appellant his rights in conducting his defence and outlined to him how the trial would proceed. In particular, he advised the appellant how to deal with the witnesses, the Crown was going to call, and also told him of his rights relating to cross-examination. The learned Judge also states in his judgment that the appellant’s rights were explained to him as and when it became necessary to do so, during the proceedings as the need arose. I am satisfied on reading the record that the learned Judge did in fact do just that.
[6] It was the case for the Crown that the complainant went to a place called Kamelusi which is adjacent to the appellant’s premises. He went there to buy some refreshment and arrived there at about 10pm. Whilst there the complainant sat down in a room where he watched television. It was there that the complainant was first attacked by the appellant, who threw a stone at him from outside the window of that room. The stone missed him.
[7] Thereafter the appellant entered the room accompanied by a young lady and berated the complainant for having assaulted this young lady and also accused him of having forcefully deprived another lady of one of her cigarettes. The complainant denied these allegations.
[8] The appellant left the room leaving the complainant with the two women but warned the complainant to leave his premises before he came back. On his return, the appellant was armed with a spear. He took hold of the complainant and dragged him outside.
[9] The complainant refused to leave the precincts of the appellant’s homestead and an argument ensued between them. It was during the course of this fracas that the deceased received a stab wound which ultimately led to him being hospitalized.
[10] The learned Judge a quo in his judgment correctly observed that not much of the complainant’s evidence was put in issue by the appellant but that the appellant did put to the complainant that had he left his premises on being directed to do so he would not have been stabbed. It is apparent, therefore, that he did not put in issue the fact that he was the person responsible for the injury to the complainant, it being his evidence that the injury to the complainant had been inflicted accidentally.
[11] The learned Judge did not find favour with this assertion made by the appellant. I am satisfied that his conclusion in this regard has merit, this emerges from the evidence of the next two witnesses called by the Crown.
[12] It was the evidence of Detective Sergeant Mamba that he recovered a spear from the appellant which was the weapon with which the complainant had been stabbed. The spear is about 2.5 metres in length, and has a very sharp tip on the blade, 15cms in length. Mamba also deposed that when he saw the complainant he observed that the injury suffered by him was in the vicinity of his chest and not to the stomach as deposed to by the appellant.
[13] Doctor Gessesse deposed that he observed that the complainant had suffered a stab wound on the chest and not on the stomach and that he also observed a bruise to the right side of the complainant’s head. It was his opinion that the injury relating to the stab wound was a “serious or very serious one” – and that “strong” force had been used to inflict the stab wound.
[14] When regard is had to the weapon used, and the evidence of the Doctor, and the fact that the appellant tendered a plea to assault with intent to do grievous bodily harm which was repeated by his Counsel when he came in to represent the appellant during the course of the trial, it seems to me, that the appellant’s assertion that the complainant was accidentally stabbed is without merit and was thus properly rejected by the learned Judge a quo.
[15] The appellant’s evidence that the stabbing of the complainant took place accidentally is inherently improbable. The spear with which the injury was inflicted is 2.5cm in length and from my observation of the appellant, who was in this Court, he is certainly no more than 2 metres in height. How then could he have been stabbed accidentally, and with “strong” force as deposed to by the Doctor, in the vicinity of the chest. It is my view that the appellant’s version of events does not bear scrutiny.
[16] Before I turn to deal with the issue of whether attempted murder was established on the evidence I propose to deal with two issues raised by the appellant’s Counsel in his submissions to this Court.
[17] Counsel for the appellant takes issue with the ruling made by the trial judge refusing him to recall the complainant in this case in order that he could be further cross-examined. He made this application at the appellant’s trial after the complainant had already completed giving his evidence and had been stood down.
[18] It is Counsel’s submission that the appellant was “not properly advised that he had to put his version of events of the day to the Crown witnesses, neither was he warned of the consequences of the failure to cross-examine properly.” Counsel submits that this amounted to a miscarriage of justice.
[19] In my view this criticism of the learned Judge is without merit. A reading of the record shows that the learned Judge a quo did all he was required to do to guide the appellant on what he needed to do to properly defend himself. It is therefore, my view, the learned Judge cannot be said to have exercised his discretion improperly in refusing to recall the complainant.
[20] Crown Counsel at the appellant’s trial called a witness Muzi Mbongiseni but after he had been sworn in immediately thereafter, withdrew him as a witness before he had given evidence. Appellant’s Counsel in this Court submits –
“The court allowed the Crown’s application to withdraw the witness and did not advise the appellant of his right to cross-examine the witness, neither was he afforded the opportunity to do so.
It is therefore submitted that the court’s failure to do so constituted a gross irregularity resulting in a failure of justice.”
[21] This witness did however give evidence for the defence as part of the defence case. He appears to have deposed along the lines wanted by the defence. He was not declared a hostile witness on application by the defence and appears to have satisfied the requirements of the defence Counsel for the purpose he was called. In my view, there is no sound basis for holding that the approach adopted by the learned Judge a quo constituted a gross irregularity as is submitted by his Counsel in this Court.
[22] I turn now to deal with the question of whether the offence of attempted murder was established on the facts of this case. It was the case for the appellant that there was insufficient evidence to establish a constructive intent to kill (dolus eventualis) and consequently it was inappropriate for a verdict of attempted murder to be returned.
[23] I cannot agree. In the case of R V TAZWINGA 1968(2) S.A. 590 at 591 (R.A.O.)paragraph B to D Beadle C.J. stated:-
“The law on this subject I had thought had been finally settled in the case of R V POTERADZAYI 1959 (1) R. & N. 31 at page 34, where Briggs, F.J., stated (quoting from the case of R V DU RANDT, 1954 (1) S.A. 313(A.D.):
‘It is sufficient if there is “an appreciation that there is some risk to life involved in the action contemplated, coupled with recklessness as to whether or not the risk is fulfilled in death’. (my underlining)
In a recent judgment Macdonald, J.A. (see the case of R V NEMASHAKWE AND OTHERS, 1967 (3) S.A. 520 at page 523), summed up the law thus:
‘In considering the issue of intention to kill, the test is whether the socius foresaw the possibility that the act in question in the prosecution of the common purpose involved some risk to life and was reckless as to whether or not the risk might be fulfilled in death.’
It is not necessary, therefore, for the Crown to prove that the accused appreciated that the act contemplated involved a probable risk to life. It is enough if the Crown goes no further than establishing that the accused must have appreciated that there was a reasonable possibility of risk of life involved in the action contemplated.” (my underlining)
[24] I am satisfied that on the basis of this approach the Crown proved its case against the appellant on the attempted murder charge. The appellant used an inherently dangerous weapon to stab the deceased with and used “strong force” to inflict the injury. He clearly must have appreciated that there was a reasonable possibility of risk of life involved in his actions and was reckless as to the consequences.
[25] In my view, the sentence imposed on the appellant cannot be said to be excessive so as to induce a sense of shock. The learned Judge a quo has not misdirected himself in any way.
[26] The appeal is dismissed both against conviction and sentence.
_______________________
A.M. EBRAHIM
JUSTICE OF APPEAL
I agree : ________________________
DR. S. TWUM
JUSTICE OF APPEAL
I agree : _________________________
M.C.B. MAPHALALA
JUSTICE OF APPEAL
IN THE SUPREME COURT OF SWAZILAND
CRIMINAL APPEAL NO.39/2010
HELD AT MBABANE
In the matter between:
SIBUSISO KUKUZA DLAMINI: APPELLANT
AND
REX : RESPONDENT
CORAM : EBRAHIM, JA
: DR. S. TWUM, JA
: MAPHALALA, JA
FOR THE APPELLANT : MR. S. SIMELANE
FOR THE RESPONDENT : MR. S. MDLULI
HEARD : 2 NOVEMBER 2011
DELIVERED : 30 NOVEMBER 2011
SUMMARY
Criminal Appeal – attempted murder – appeal dismissed – legal intention – dolus eventualis – principles explained
EBRAHIM J.A.
[1] The appellant was charged and convicted of attempted murder, it being alleged that he wrongfully and unlawfully stabbed the deceased with a spear with the intention of killing him. He was sentenced to five years imprisonment. The period he spent in custody (03/6/08 – 12/12/08) is to be taken into account.”
[2] The appellant pleaded not guilty to the charge of attempted murder but pleaded guilty to assault with intent to do grievous bodily harm. Crown counsel declined to accept this lesser plea and the trial proceeded on the charge of attempted murder.
[3] In support of its case the prosecution led three witnesses, the complainant Mphumelelo Gamedze, the investigating officer, Detective Sergeant Mamba, and Doctor Gessessi who attended to the complainant in this matter.
[4] It is apparent that by tendering a plea of assault with intent to do grievous bodily harm the appellant signified his acceptance that he was responsible for the injury sustained by the deceased but it was his contention that the stab wound inflicted to the deceased was accidental.
[5] The learned trial Judge states in his judgment that at the commencement of the appellant’s trial he explained to the appellant his rights in conducting his defence and outlined to him how the trial would proceed. In particular, he advised the appellant how to deal with the witnesses, the Crown was going to call, and also told him of his rights relating to cross-examination. The learned Judge also states in his judgment that the appellant’s rights were explained to him as and when it became necessary to do so, during the proceedings as the need arose. I am satisfied on reading the record that the learned Judge did in fact do just that.
[6] It was the case for the Crown that the complainant went to a place called Kamelusi which is adjacent to the appellant’s premises. He went there to buy some refreshment and arrived there at about 10pm. Whilst there the complainant sat down in a room where he watched television. It was there that the complainant was first attacked by the appellant, who threw a stone at him from outside the window of that room. The stone missed him.
[7] Thereafter the appellant entered the room accompanied by a young lady and berated the complainant for having assaulted this young lady and also accused him of having forcefully deprived another lady of one of her cigarettes. The complainant denied these allegations.
[8] The appellant left the room leaving the complainant with the two women but warned the complainant to leave his premises before he came back. On his return, the appellant was armed with a spear. He took hold of the complainant and dragged him outside.
[9] The complainant refused to leave the precincts of the appellant’s homestead and an argument ensued between them. It was during the course of this fracas that the deceased received a stab wound which ultimately led to him being hospitalized.
[10] The learned Judge a quo in his judgment correctly observed that not much of the complainant’s evidence was put in issue by the appellant but that the appellant did put to the complainant that had he left his premises on being directed to do so he would not have been stabbed. It is apparent, therefore, that he did not put in issue the fact that he was the person responsible for the injury to the complainant, it being his evidence that the injury to the complainant had been inflicted accidentally.
[11] The learned Judge did not find favour with this assertion made by the appellant. I am satisfied that his conclusion in this regard has merit, this emerges from the evidence of the next two witnesses called by the Crown.
[12] It was the evidence of Detective Sergeant Mamba that he recovered a spear from the appellant which was the weapon with which the complainant had been stabbed. The spear is about 2.5 metres in length, and has a very sharp tip on the blade, 15cms in length. Mamba also deposed that when he saw the complainant he observed that the injury suffered by him was in the vicinity of his chest and not to the stomach as deposed to by the appellant.
[13] Doctor Gessesse deposed that he observed that the complainant had suffered a stab wound on the chest and not on the stomach and that he also observed a bruise to the right side of the complainant’s head. It was his opinion that the injury relating to the stab wound was a “serious or very serious one” – and that “strong” force had been used to inflict the stab wound.
[14] When regard is had to the weapon used, and the evidence of the Doctor, and the fact that the appellant tendered a plea to assault with intent to do grievous bodily harm which was repeated by his Counsel when he came in to represent the appellant during the course of the trial, it seems to me, that the appellant’s assertion that the complainant was accidentally stabbed is without merit and was thus properly rejected by the learned Judge a quo.
[15] The appellant’s evidence that the stabbing of the complainant took place accidentally is inherently improbable. The spear with which the injury was inflicted is 2.5cm in length and from my observation of the appellant, who was in this Court, he is certainly no more than 2 metres in height. How then could he have been stabbed accidentally, and with “strong” force as deposed to by the Doctor, in the vicinity of the chest. It is my view that the appellant’s version of events does not bear scrutiny.
[16] Before I turn to deal with the issue of whether attempted murder was established on the evidence I propose to deal with two issues raised by the appellant’s Counsel in his submissions to this Court.
[17] Counsel for the appellant takes issue with the ruling made by the trial judge refusing him to recall the complainant in this case in order that he could be further cross-examined. He made this application at the appellant’s trial after the complainant had already completed giving his evidence and had been stood down.
[18] It is Counsel’s submission that the appellant was “not properly advised that he had to put his version of events of the day to the Crown witnesses, neither was he warned of the consequences of the failure to cross-examine properly.” Counsel submits that this amounted to a miscarriage of justice.
[19] In my view this criticism of the learned Judge is without merit. A reading of the record shows that the learned Judge a quo did all he was required to do to guide the appellant on what he needed to do to properly defend himself. It is therefore, my view, the learned Judge cannot be said to have exercised his discretion improperly in refusing to recall the complainant.
[20] Crown Counsel at the appellant’s trial called a witness Muzi Mbongiseni but after he had been sworn in immediately thereafter, withdrew him as a witness before he had given evidence. Appellant’s Counsel in this Court submits –
“The court allowed the Crown’s application to withdraw the witness and did not advise the appellant of his right to cross-examine the witness, neither was he afforded the opportunity to do so.
It is therefore submitted that the court’s failure to do so constituted a gross irregularity resulting in a failure of justice.”
[21] This witness did however give evidence for the defence as part of the defence case. He appears to have deposed along the lines wanted by the defence. He was not declared a hostile witness on application by the defence and appears to have satisfied the requirements of the defence Counsel for the purpose he was called. In my view, there is no sound basis for holding that the approach adopted by the learned Judge a quo constituted a gross irregularity as is submitted by his Counsel in this Court.
[22] I turn now to deal with the question of whether the offence of attempted murder was established on the facts of this case. It was the case for the appellant that there was insufficient evidence to establish a constructive intent to kill (dolus eventualis) and consequently it was inappropriate for a verdict of attempted murder to be returned.
[23] I cannot agree. In the case of R V TAZWINGA 1968(2) S.A. 590 at 591 (R.A.O.)paragraph B to D Beadle C.J. stated:-
“The law on this subject I had thought had been finally settled in the case of R V POTERADZAYI 1959 (1) R. & N. 31 at page 34, where Briggs, F.J., stated (quoting from the case of R V DU RANDT, 1954 (1) S.A. 313(A.D.):
‘It is sufficient if there is “an appreciation that there is some risk to life involved in the action contemplated, coupled with recklessness as to whether or not the risk is fulfilled in death’. (my underlining)
In a recent judgment Macdonald, J.A. (see the case of R V NEMASHAKWE AND OTHERS, 1967 (3) S.A. 520 at page 523), summed up the law thus:
‘In considering the issue of intention to kill, the test is whether the socius foresaw the possibility that the act in question in the prosecution of the common purpose involved some risk to life and was reckless as to whether or not the risk might be fulfilled in death.’
It is not necessary, therefore, for the Crown to prove that the accused appreciated that the act contemplated involved a probable risk to life. It is enough if the Crown goes no further than establishing that the accused must have appreciated that there was a reasonable possibility of risk of life involved in the action contemplated.” (my underlining)
[24] I am satisfied that on the basis of this approach the Crown proved its case against the appellant on the attempted murder charge. The appellant used an inherently dangerous weapon to stab the deceased with and used “strong force” to inflict the injury. He clearly must have appreciated that there was a reasonable possibility of risk of life involved in his actions and was reckless as to the consequences.
[25] In my view, the sentence imposed on the appellant cannot be said to be excessive so as to induce a sense of shock. The learned Judge a quo has not misdirected himself in any way.
[26] The appeal is dismissed both against conviction and sentence.
_______________________
A.M. EBRAHIM
JUSTICE OF APPEAL
I agree : ________________________
DR. S. TWUM
JUSTICE OF APPEAL
I agree : _________________________
M.C.B. MAPHALALA
JUSTICE OF APPEAL
IN THE SUPREME COURT OF SWAZILAND
CRIMINAL APPEAL NO.39/2010
HELD AT MBABANE
In the matter between:
SIBUSISO KUKUZA DLAMINI: APPELLANT
AND
REX : RESPONDENT
CORAM : EBRAHIM, JA
: DR. S. TWUM, JA
: MAPHALALA, JA
FOR THE APPELLANT : MR. S. SIMELANE
FOR THE RESPONDENT : MR. S. MDLULI
HEARD : 2 NOVEMBER 2011
DELIVERED : 30 NOVEMBER 2011
SUMMARY
Criminal Appeal – attempted murder – appeal dismissed – legal intention – dolus eventualis – principles explained
EBRAHIM J.A.
[1] The appellant was charged and convicted of attempted murder, it being alleged that he wrongfully and unlawfully stabbed the deceased with a spear with the intention of killing him. He was sentenced to five years imprisonment. The period he spent in custody (03/6/08 – 12/12/08) is to be taken into account.”
[2] The appellant pleaded not guilty to the charge of attempted murder but pleaded guilty to assault with intent to do grievous bodily harm. Crown counsel declined to accept this lesser plea and the trial proceeded on the charge of attempted murder.
[3] In support of its case the prosecution led three witnesses, the complainant Mphumelelo Gamedze, the investigating officer, Detective Sergeant Mamba, and Doctor Gessessi who attended to the complainant in this matter.
[4] It is apparent that by tendering a plea of assault with intent to do grievous bodily harm the appellant signified his acceptance that he was responsible for the injury sustained by the deceased but it was his contention that the stab wound inflicted to the deceased was accidental.
[5] The learned trial Judge states in his judgment that at the commencement of the appellant’s trial he explained to the appellant his rights in conducting his defence and outlined to him how the trial would proceed. In particular, he advised the appellant how to deal with the witnesses, the Crown was going to call, and also told him of his rights relating to cross-examination. The learned Judge also states in his judgment that the appellant’s rights were explained to him as and when it became necessary to do so, during the proceedings as the need arose. I am satisfied on reading the record that the learned Judge did in fact do just that.
[6] It was the case for the Crown that the complainant went to a place called Kamelusi which is adjacent to the appellant’s premises. He went there to buy some refreshment and arrived there at about 10pm. Whilst there the complainant sat down in a room where he watched television. It was there that the complainant was first attacked by the appellant, who threw a stone at him from outside the window of that room. The stone missed him.
[7] Thereafter the appellant entered the room accompanied by a young lady and berated the complainant for having assaulted this young lady and also accused him of having forcefully deprived another lady of one of her cigarettes. The complainant denied these allegations.
[8] The appellant left the room leaving the complainant with the two women but warned the complainant to leave his premises before he came back. On his return, the appellant was armed with a spear. He took hold of the complainant and dragged him outside.
[9] The complainant refused to leave the precincts of the appellant’s homestead and an argument ensued between them. It was during the course of this fracas that the deceased received a stab wound which ultimately led to him being hospitalized.
[10] The learned Judge a quo in his judgment correctly observed that not much of the complainant’s evidence was put in issue by the appellant but that the appellant did put to the complainant that had he left his premises on being directed to do so he would not have been stabbed. It is apparent, therefore, that he did not put in issue the fact that he was the person responsible for the injury to the complainant, it being his evidence that the injury to the complainant had been inflicted accidentally.
[11] The learned Judge did not find favour with this assertion made by the appellant. I am satisfied that his conclusion in this regard has merit, this emerges from the evidence of the next two witnesses called by the Crown.
[12] It was the evidence of Detective Sergeant Mamba that he recovered a spear from the appellant which was the weapon with which the complainant had been stabbed. The spear is about 2.5 metres in length, and has a very sharp tip on the blade, 15cms in length. Mamba also deposed that when he saw the complainant he observed that the injury suffered by him was in the vicinity of his chest and not to the stomach as deposed to by the appellant.
[13] Doctor Gessesse deposed that he observed that the complainant had suffered a stab wound on the chest and not on the stomach and that he also observed a bruise to the right side of the complainant’s head. It was his opinion that the injury relating to the stab wound was a “serious or very serious one” – and that “strong” force had been used to inflict the stab wound.
[14] When regard is had to the weapon used, and the evidence of the Doctor, and the fact that the appellant tendered a plea to assault with intent to do grievous bodily harm which was repeated by his Counsel when he came in to represent the appellant during the course of the trial, it seems to me, that the appellant’s assertion that the complainant was accidentally stabbed is without merit and was thus properly rejected by the learned Judge a quo.
[15] The appellant’s evidence that the stabbing of the complainant took place accidentally is inherently improbable. The spear with which the injury was inflicted is 2.5cm in length and from my observation of the appellant, who was in this Court, he is certainly no more than 2 metres in height. How then could he have been stabbed accidentally, and with “strong” force as deposed to by the Doctor, in the vicinity of the chest. It is my view that the appellant’s version of events does not bear scrutiny.
[16] Before I turn to deal with the issue of whether attempted murder was established on the evidence I propose to deal with two issues raised by the appellant’s Counsel in his submissions to this Court.
[17] Counsel for the appellant takes issue with the ruling made by the trial judge refusing him to recall the complainant in this case in order that he could be further cross-examined. He made this application at the appellant’s trial after the complainant had already completed giving his evidence and had been stood down.
[18] It is Counsel’s submission that the appellant was “not properly advised that he had to put his version of events of the day to the Crown witnesses, neither was he warned of the consequences of the failure to cross-examine properly.” Counsel submits that this amounted to a miscarriage of justice.
[19] In my view this criticism of the learned Judge is without merit. A reading of the record shows that the learned Judge a quo did all he was required to do to guide the appellant on what he needed to do to properly defend himself. It is therefore, my view, the learned Judge cannot be said to have exercised his discretion improperly in refusing to recall the complainant.
[20] Crown Counsel at the appellant’s trial called a witness Muzi Mbongiseni but after he had been sworn in immediately thereafter, withdrew him as a witness before he had given evidence. Appellant’s Counsel in this Court submits –
“The court allowed the Crown’s application to withdraw the witness and did not advise the appellant of his right to cross-examine the witness, neither was he afforded the opportunity to do so.
It is therefore submitted that the court’s failure to do so constituted a gross irregularity resulting in a failure of justice.”
[21] This witness did however give evidence for the defence as part of the defence case. He appears to have deposed along the lines wanted by the defence. He was not declared a hostile witness on application by the defence and appears to have satisfied the requirements of the defence Counsel for the purpose he was called. In my view, there is no sound basis for holding that the approach adopted by the learned Judge a quo constituted a gross irregularity as is submitted by his Counsel in this Court.
[22] I turn now to deal with the question of whether the offence of attempted murder was established on the facts of this case. It was the case for the appellant that there was insufficient evidence to establish a constructive intent to kill (dolus eventualis) and consequently it was inappropriate for a verdict of attempted murder to be returned.
[23] I cannot agree. In the case of R V TAZWINGA 1968(2) S.A. 590 at 591 (R.A.O.)paragraph B to D Beadle C.J. stated:-
“The law on this subject I had thought had been finally settled in the case of R V POTERADZAYI 1959 (1) R. & N. 31 at page 34, where Briggs, F.J., stated (quoting from the case of R V DU RANDT, 1954 (1) S.A. 313(A.D.):
‘It is sufficient if there is “an appreciation that there is some risk to life involved in the action contemplated, coupled with recklessness as to whether or not the risk is fulfilled in death’. (my underlining)
In a recent judgment Macdonald, J.A. (see the case of R V NEMASHAKWE AND OTHERS, 1967 (3) S.A. 520 at page 523), summed up the law thus:
‘In considering the issue of intention to kill, the test is whether the socius foresaw the possibility that the act in question in the prosecution of the common purpose involved some risk to life and was reckless as to whether or not the risk might be fulfilled in death.’
It is not necessary, therefore, for the Crown to prove that the accused appreciated that the act contemplated involved a probable risk to life. It is enough if the Crown goes no further than establishing that the accused must have appreciated that there was a reasonable possibility of risk of life involved in the action contemplated.” (my underlining)
[24] I am satisfied that on the basis of this approach the Crown proved its case against the appellant on the attempted murder charge. The appellant used an inherently dangerous weapon to stab the deceased with and used “strong force” to inflict the injury. He clearly must have appreciated that there was a reasonable possibility of risk of life involved in his actions and was reckless as to the consequences.
[25] In my view, the sentence imposed on the appellant cannot be said to be excessive so as to induce a sense of shock. The learned Judge a quo has not misdirected himself in any way.
[26] The appeal is dismissed both against conviction and sentence.
_______________________
A.M. EBRAHIM
JUSTICE OF APPEAL
I agree : ________________________
DR. S. TWUM
JUSTICE OF APPEAL
I agree : _________________________
M.C.B. MAPHALALA
JUSTICE OF APPEAL
IN THE SUPREME COURT OF SWAZILAND
CRIMINAL APPEAL NO.39/2010
HELD AT MBABANE
In the matter between:
SIBUSISO KUKUZA DLAMINI: APPELLANT
AND
REX : RESPONDENT
CORAM : EBRAHIM, JA
: DR. S. TWUM, JA
: MAPHALALA, JA
FOR THE APPELLANT : MR. S. SIMELANE
FOR THE RESPONDENT : MR. S. MDLULI
HEARD : 2 NOVEMBER 2011
DELIVERED : 30 NOVEMBER 2011
SUMMARY
Criminal Appeal – attempted murder – appeal dismissed – legal intention – dolus eventualis – principles explained
EBRAHIM J.A.
[1] The appellant was charged and convicted of attempted murder, it being alleged that he wrongfully and unlawfully stabbed the deceased with a spear with the intention of killing him. He was sentenced to five years imprisonment. The period he spent in custody (03/6/08 – 12/12/08) is to be taken into account.”
[2] The appellant pleaded not guilty to the charge of attempted murder but pleaded guilty to assault with intent to do grievous bodily harm. Crown counsel declined to accept this lesser plea and the trial proceeded on the charge of attempted murder.
[3] In support of its case the prosecution led three witnesses, the complainant Mphumelelo Gamedze, the investigating officer, Detective Sergeant Mamba, and Doctor Gessessi who attended to the complainant in this matter.
[4] It is apparent that by tendering a plea of assault with intent to do grievous bodily harm the appellant signified his acceptance that he was responsible for the injury sustained by the deceased but it was his contention that the stab wound inflicted to the deceased was accidental.
[5] The learned trial Judge states in his judgment that at the commencement of the appellant’s trial he explained to the appellant his rights in conducting his defence and outlined to him how the trial would proceed. In particular, he advised the appellant how to deal with the witnesses, the Crown was going to call, and also told him of his rights relating to cross-examination. The learned Judge also states in his judgment that the appellant’s rights were explained to him as and when it became necessary to do so, during the proceedings as the need arose. I am satisfied on reading the record that the learned Judge did in fact do just that.
[6] It was the case for the Crown that the complainant went to a place called Kamelusi which is adjacent to the appellant’s premises. He went there to buy some refreshment and arrived there at about 10pm. Whilst there the complainant sat down in a room where he watched television. It was there that the complainant was first attacked by the appellant, who threw a stone at him from outside the window of that room. The stone missed him.
[7] Thereafter the appellant entered the room accompanied by a young lady and berated the complainant for having assaulted this young lady and also accused him of having forcefully deprived another lady of one of her cigarettes. The complainant denied these allegations.
[8] The appellant left the room leaving the complainant with the two women but warned the complainant to leave his premises before he came back. On his return, the appellant was armed with a spear. He took hold of the complainant and dragged him outside.
[9] The complainant refused to leave the precincts of the appellant’s homestead and an argument ensued between them. It was during the course of this fracas that the deceased received a stab wound which ultimately led to him being hospitalized.
[10] The learned Judge a quo in his judgment correctly observed that not much of the complainant’s evidence was put in issue by the appellant but that the appellant did put to the complainant that had he left his premises on being directed to do so he would not have been stabbed. It is apparent, therefore, that he did not put in issue the fact that he was the person responsible for the injury to the complainant, it being his evidence that the injury to the complainant had been inflicted accidentally.
[11] The learned Judge did not find favour with this assertion made by the appellant. I am satisfied that his conclusion in this regard has merit, this emerges from the evidence of the next two witnesses called by the Crown.
[12] It was the evidence of Detective Sergeant Mamba that he recovered a spear from the appellant which was the weapon with which the complainant had been stabbed. The spear is about 2.5 metres in length, and has a very sharp tip on the blade, 15cms in length. Mamba also deposed that when he saw the complainant he observed that the injury suffered by him was in the vicinity of his chest and not to the stomach as deposed to by the appellant.
[13] Doctor Gessesse deposed that he observed that the complainant had suffered a stab wound on the chest and not on the stomach and that he also observed a bruise to the right side of the complainant’s head. It was his opinion that the injury relating to the stab wound was a “serious or very serious one” – and that “strong” force had been used to inflict the stab wound.
[14] When regard is had to the weapon used, and the evidence of the Doctor, and the fact that the appellant tendered a plea to assault with intent to do grievous bodily harm which was repeated by his Counsel when he came in to represent the appellant during the course of the trial, it seems to me, that the appellant’s assertion that the complainant was accidentally stabbed is without merit and was thus properly rejected by the learned Judge a quo.
[15] The appellant’s evidence that the stabbing of the complainant took place accidentally is inherently improbable. The spear with which the injury was inflicted is 2.5cm in length and from my observation of the appellant, who was in this Court, he is certainly no more than 2 metres in height. How then could he have been stabbed accidentally, and with “strong” force as deposed to by the Doctor, in the vicinity of the chest. It is my view that the appellant’s version of events does not bear scrutiny.
[16] Before I turn to deal with the issue of whether attempted murder was established on the evidence I propose to deal with two issues raised by the appellant’s Counsel in his submissions to this Court.
[17] Counsel for the appellant takes issue with the ruling made by the trial judge refusing him to recall the complainant in this case in order that he could be further cross-examined. He made this application at the appellant’s trial after the complainant had already completed giving his evidence and had been stood down.
[18] It is Counsel’s submission that the appellant was “not properly advised that he had to put his version of events of the day to the Crown witnesses, neither was he warned of the consequences of the failure to cross-examine properly.” Counsel submits that this amounted to a miscarriage of justice.
[19] In my view this criticism of the learned Judge is without merit. A reading of the record shows that the learned Judge a quo did all he was required to do to guide the appellant on what he needed to do to properly defend himself. It is therefore, my view, the learned Judge cannot be said to have exercised his discretion improperly in refusing to recall the complainant.
[20] Crown Counsel at the appellant’s trial called a witness Muzi Mbongiseni but after he had been sworn in immediately thereafter, withdrew him as a witness before he had given evidence. Appellant’s Counsel in this Court submits –
“The court allowed the Crown’s application to withdraw the witness and did not advise the appellant of his right to cross-examine the witness, neither was he afforded the opportunity to do so.
It is therefore submitted that the court’s failure to do so constituted a gross irregularity resulting in a failure of justice.”
[21] This witness did however give evidence for the defence as part of the defence case. He appears to have deposed along the lines wanted by the defence. He was not declared a hostile witness on application by the defence and appears to have satisfied the requirements of the defence Counsel for the purpose he was called. In my view, there is no sound basis for holding that the approach adopted by the learned Judge a quo constituted a gross irregularity as is submitted by his Counsel in this Court.
[22] I turn now to deal with the question of whether the offence of attempted murder was established on the facts of this case. It was the case for the appellant that there was insufficient evidence to establish a constructive intent to kill (dolus eventualis) and consequently it was inappropriate for a verdict of attempted murder to be returned.
[23] I cannot agree. In the case of R V TAZWINGA 1968(2) S.A. 590 at 591 (R.A.O.)paragraph B to D Beadle C.J. stated:-
“The law on this subject I had thought had been finally settled in the case of R V POTERADZAYI 1959 (1) R. & N. 31 at page 34, where Briggs, F.J., stated (quoting from the case of R V DU RANDT, 1954 (1) S.A. 313(A.D.):
‘It is sufficient if there is “an appreciation that there is some risk to life involved in the action contemplated, coupled with recklessness as to whether or not the risk is fulfilled in death’. (my underlining)
In a recent judgment Macdonald, J.A. (see the case of R V NEMASHAKWE AND OTHERS, 1967 (3) S.A. 520 at page 523), summed up the law thus:
‘In considering the issue of intention to kill, the test is whether the socius foresaw the possibility that the act in question in the prosecution of the common purpose involved some risk to life and was reckless as to whether or not the risk might be fulfilled in death.’
It is not necessary, therefore, for the Crown to prove that the accused appreciated that the act contemplated involved a probable risk to life. It is enough if the Crown goes no further than establishing that the accused must have appreciated that there was a reasonable possibility of risk of life involved in the action contemplated.” (my underlining)
[24] I am satisfied that on the basis of this approach the Crown proved its case against the appellant on the attempted murder charge. The appellant used an inherently dangerous weapon to stab the deceased with and used “strong force” to inflict the injury. He clearly must have appreciated that there was a reasonable possibility of risk of life involved in his actions and was reckless as to the consequences.
[25] In my view, the sentence imposed on the appellant cannot be said to be excessive so as to induce a sense of shock. The learned Judge a quo has not misdirected himself in any way.
[26] The appeal is dismissed both against conviction and sentence.
_______________________
A.M. EBRAHIM
JUSTICE OF APPEAL
I agree : ________________________
DR. S. TWUM
JUSTICE OF APPEAL
I agree : _________________________
M.C.B. MAPHALALA
JUSTICE OF APPEAL
IN THE SUPREME COURT OF SWAZILAND
CRIMINAL APPEAL NO.39/2010
HELD AT MBABANE
In the matter between:
SIBUSISO KUKUZA DLAMINI: APPELLANT
AND
REX : RESPONDENT
CORAM : EBRAHIM, JA
: DR. S. TWUM, JA
: MAPHALALA, JA
FOR THE APPELLANT : MR. S. SIMELANE
FOR THE RESPONDENT : MR. S. MDLULI
HEARD : 2 NOVEMBER 2011
DELIVERED : 30 NOVEMBER 2011
SUMMARY
Criminal Appeal – attempted murder – appeal dismissed – legal intention – dolus eventualis – principles explained
EBRAHIM J.A.
[1] The appellant was charged and convicted of attempted murder, it being alleged that he wrongfully and unlawfully stabbed the deceased with a spear with the intention of killing him. He was sentenced to five years imprisonment. The period he spent in custody (03/6/08 – 12/12/08) is to be taken into account.”
[2] The appellant pleaded not guilty to the charge of attempted murder but pleaded guilty to assault with intent to do grievous bodily harm. Crown counsel declined to accept this lesser plea and the trial proceeded on the charge of attempted murder.
[3] In support of its case the prosecution led three witnesses, the complainant Mphumelelo Gamedze, the investigating officer, Detective Sergeant Mamba, and Doctor Gessessi who attended to the complainant in this matter.
[4] It is apparent that by tendering a plea of assault with intent to do grievous bodily harm the appellant signified his acceptance that he was responsible for the injury sustained by the deceased but it was his contention that the stab wound inflicted to the deceased was accidental.
[5] The learned trial Judge states in his judgment that at the commencement of the appellant’s trial he explained to the appellant his rights in conducting his defence and outlined to him how the trial would proceed. In particular, he advised the appellant how to deal with the witnesses, the Crown was going to call, and also told him of his rights relating to cross-examination. The learned Judge also states in his judgment that the appellant’s rights were explained to him as and when it became necessary to do so, during the proceedings as the need arose. I am satisfied on reading the record that the learned Judge did in fact do just that.
[6] It was the case for the Crown that the complainant went to a place called Kamelusi which is adjacent to the appellant’s premises. He went there to buy some refreshment and arrived there at about 10pm. Whilst there the complainant sat down in a room where he watched television. It was there that the complainant was first attacked by the appellant, who threw a stone at him from outside the window of that room. The stone missed him.
[7] Thereafter the appellant entered the room accompanied by a young lady and berated the complainant for having assaulted this young lady and also accused him of having forcefully deprived another lady of one of her cigarettes. The complainant denied these allegations.
[8] The appellant left the room leaving the complainant with the two women but warned the complainant to leave his premises before he came back. On his return, the appellant was armed with a spear. He took hold of the complainant and dragged him outside.
[9] The complainant refused to leave the precincts of the appellant’s homestead and an argument ensued between them. It was during the course of this fracas that the deceased received a stab wound which ultimately led to him being hospitalized.
[10] The learned Judge a quo in his judgment correctly observed that not much of the complainant’s evidence was put in issue by the appellant but that the appellant did put to the complainant that had he left his premises on being directed to do so he would not have been stabbed. It is apparent, therefore, that he did not put in issue the fact that he was the person responsible for the injury to the complainant, it being his evidence that the injury to the complainant had been inflicted accidentally.
[11] The learned Judge did not find favour with this assertion made by the appellant. I am satisfied that his conclusion in this regard has merit, this emerges from the evidence of the next two witnesses called by the Crown.
[12] It was the evidence of Detective Sergeant Mamba that he recovered a spear from the appellant which was the weapon with which the complainant had been stabbed. The spear is about 2.5 metres in length, and has a very sharp tip on the blade, 15cms in length. Mamba also deposed that when he saw the complainant he observed that the injury suffered by him was in the vicinity of his chest and not to the stomach as deposed to by the appellant.
[13] Doctor Gessesse deposed that he observed that the complainant had suffered a stab wound on the chest and not on the stomach and that he also observed a bruise to the right side of the complainant’s head. It was his opinion that the injury relating to the stab wound was a “serious or very serious one” – and that “strong” force had been used to inflict the stab wound.
[14] When regard is had to the weapon used, and the evidence of the Doctor, and the fact that the appellant tendered a plea to assault with intent to do grievous bodily harm which was repeated by his Counsel when he came in to represent the appellant during the course of the trial, it seems to me, that the appellant’s assertion that the complainant was accidentally stabbed is without merit and was thus properly rejected by the learned Judge a quo.
[15] The appellant’s evidence that the stabbing of the complainant took place accidentally is inherently improbable. The spear with which the injury was inflicted is 2.5cm in length and from my observation of the appellant, who was in this Court, he is certainly no more than 2 metres in height. How then could he have been stabbed accidentally, and with “strong” force as deposed to by the Doctor, in the vicinity of the chest. It is my view that the appellant’s version of events does not bear scrutiny.
[16] Before I turn to deal with the issue of whether attempted murder was established on the evidence I propose to deal with two issues raised by the appellant’s Counsel in his submissions to this Court.
[17] Counsel for the appellant takes issue with the ruling made by the trial judge refusing him to recall the complainant in this case in order that he could be further cross-examined. He made this application at the appellant’s trial after the complainant had already completed giving his evidence and had been stood down.
[18] It is Counsel’s submission that the appellant was “not properly advised that he had to put his version of events of the day to the Crown witnesses, neither was he warned of the consequences of the failure to cross-examine properly.” Counsel submits that this amounted to a miscarriage of justice.
[19] In my view this criticism of the learned Judge is without merit. A reading of the record shows that the learned Judge a quo did all he was required to do to guide the appellant on what he needed to do to properly defend himself. It is therefore, my view, the learned Judge cannot be said to have exercised his discretion improperly in refusing to recall the complainant.
[20] Crown Counsel at the appellant’s trial called a witness Muzi Mbongiseni but after he had been sworn in immediately thereafter, withdrew him as a witness before he had given evidence. Appellant’s Counsel in this Court submits –
“The court allowed the Crown’s application to withdraw the witness and did not advise the appellant of his right to cross-examine the witness, neither was he afforded the opportunity to do so.
It is therefore submitted that the court’s failure to do so constituted a gross irregularity resulting in a failure of justice.”
[21] This witness did however give evidence for the defence as part of the defence case. He appears to have deposed along the lines wanted by the defence. He was not declared a hostile witness on application by the defence and appears to have satisfied the requirements of the defence Counsel for the purpose he was called. In my view, there is no sound basis for holding that the approach adopted by the learned Judge a quo constituted a gross irregularity as is submitted by his Counsel in this Court.
[22] I turn now to deal with the question of whether the offence of attempted murder was established on the facts of this case. It was the case for the appellant that there was insufficient evidence to establish a constructive intent to kill (dolus eventualis) and consequently it was inappropriate for a verdict of attempted murder to be returned.
[23] I cannot agree. In the case of R V TAZWINGA 1968(2) S.A. 590 at 591 (R.A.O.)paragraph B to D Beadle C.J. stated:-
“The law on this subject I had thought had been finally settled in the case of R V POTERADZAYI 1959 (1) R. & N. 31 at page 34, where Briggs, F.J., stated (quoting from the case of R V DU RANDT, 1954 (1) S.A. 313(A.D.):
‘It is sufficient if there is “an appreciation that there is some risk to life involved in the action contemplated, coupled with recklessness as to whether or not the risk is fulfilled in death’. (my underlining)
In a recent judgment Macdonald, J.A. (see the case of R V NEMASHAKWE AND OTHERS, 1967 (3) S.A. 520 at page 523), summed up the law thus:
‘In considering the issue of intention to kill, the test is whether the socius foresaw the possibility that the act in question in the prosecution of the common purpose involved some risk to life and was reckless as to whether or not the risk might be fulfilled in death.’
It is not necessary, therefore, for the Crown to prove that the accused appreciated that the act contemplated involved a probable risk to life. It is enough if the Crown goes no further than establishing that the accused must have appreciated that there was a reasonable possibility of risk of life involved in the action contemplated.” (my underlining)
[24] I am satisfied that on the basis of this approach the Crown proved its case against the appellant on the attempted murder charge. The appellant used an inherently dangerous weapon to stab the deceased with and used “strong force” to inflict the injury. He clearly must have appreciated that there was a reasonable possibility of risk of life involved in his actions and was reckless as to the consequences.
[25] In my view, the sentence imposed on the appellant cannot be said to be excessive so as to induce a sense of shock. The learned Judge a quo has not misdirected himself in any way.
[26] The appeal is dismissed both against conviction and sentence.
_______________________
A.M. EBRAHIM
JUSTICE OF APPEAL
I agree : ________________________
DR. S. TWUM
JUSTICE OF APPEAL
I agree : _________________________
M.C.B. MAPHALALA
JUSTICE OF APPEAL
