IN
THE COURT OF APPEAL OF SWAZILAND
CRIM.
APPEAL
CASE NO.26/2000
In
the matter between:
GENERAL
M. MSIBI APPELLANT
VS
THE
KING RESPONDENT
CORAM: J.
BROWDE, J.A.
J.H.
STEYN, J.A.
C.
E.
L.
BECK, J.A.
FOR
THE APPELLANT: E. TWALA
FOR
THE RESPONDENT: J.M. MASEKO
JUDGMENT
BECK
J.A.
The
appellant was charged in the High Court with having committed
attempted murder on 8th November 1997.
Two
further charges were also preferred against him for having had in his
possession, on 9 December 1997, and in contravention of sections
11(1) and 11 (2) of the Arms and Ammunitions Act 24 of 1964, a 9 mm
pistol, and one round of live ammunition for use in it without
holding a licence or permit to possess the pistol. These two
last-mentioned charges were withdrawn
2
against
him before plea in the High Court because, so the trial judge was
informed by Crown counsel, the appellant had already been charged,
tried, convicted and sentenced in a magistrate's court for his
unlicensed possession of the pistol and ammunition.
The
appellant, who was represented by Mr Twala in the High Court, as well
as before us in this appeal, pleaded not guilty to the charge of
attempted murder. He was however, convicted of attempted murder and
was sentenced to imprisonment for a period of 7 years, of which 2
years were suspended for 3 years on appropriate conditions,
whereafter an appeal was noted against both conviction and sentence.
The evidence established that the offence was committed on 8 December
1997, and not on 8 November 1997 as alleged in the indictment, but it
is clear that the appellant was not in any way prejudiced by this
error in the charge.
In
his argument before us Mr Twala contended firstly that it was most
irregular for the trial judge to have been informed, before the trial
commenced, that the reason for withdrawing counts 2 and 3 was that
the appellant had already been convicted and sentenced for his
unlicensed possession of the pistol and the round of ammunition. He
submitted that this information prejudiced the appellant before the
trial judge and he made the extravagant submission in his Heads of
Argument that the splitting between the Magistrate's court and the
High Court of the trial of the appellant on the charges laid under
the Arms and Ammunition Act and on the charge of attempted murder
"was carefully planned by the Crown in order to prejudice the
accused. They wanted the convictions in the Magistrate's court to
count as previous convictions when he finally appears in the High
Court on the attempted murder charge."
There
exists absolutely no reason for advancing so scandalous an
allegation. It later emerged, after the conviction of the appellant
on the charge of attempted murder, that the reason why he had been
tried in the Magistrate's court with the Arms and Ammunition Act
offences was that the appellant had in addition been charged in the
Magistrate's court, and convicted, of an assault with intent to do
grievous bodily harm, with which offence his possession of the pistol
and its ammunition was associated. Those charges in the Magistrate's
court had nothing at all to do with the events that gave rise to the
charge in the High Court of attempted murder. It is in
3
order
that no vestige of stigma should attach to the office of the Director
of Public Prosecutions arising from the unwarranted aspersion cast
upon it in this appeal by Mr Twala that these facts are recorded. It
only remains to say that Mr Twala readily apologised in open court to
Crown counsel when the court taxed Mr Twala with the impropriety of
having made so baseless an assertion.
With
regard to Mr Twala's submission that the appellant was actually
prejudiced by Crown counsel's revelation before the trial judge of
the reason why counts 2 and 3 were being withdrawn, it is in the
first place quite clear from the record that the learned trial judge
(Masuku J.) was in fact not in any way influenced against the
appellant by that disclosure. In the second place, as Mr Twala was
constrained to concede, it is obvious that if the appellant had not
previously been convicted of his unlawful possession of the
unlicensed pistol and ammunition, so that counts 2 and 3 would not
have been withdrawn against him in the High Court, he would
inevitably have had to plead guilty to those two charges. His
physical possession of the pistol and its ammunition, and his use
thereof as an alleged act of self-preservation, formed the very
essence of his defence against the charge of attempted murder; and
since, on his own admission in the course of his evidence before the
High Court, he had no licence or permit for his possession of the
pistol, he would have had no choice but to plead guilty to those two
charges at the commencement of his trial in the High Court. In these
circumstances there was nothing irregular in having prosecuted the
appellant under the Arms and Ammunition Act in the Magistrate's court
before his trial in the High Court on the charge of attempted murder;
nor was the appellant in any way prejudiced in his trial before the
High Court by the revelation at the outset of the trial that he had
already been tried, convicted and sentenced for the unlicensed
possession of the pistol and its round of ammunition.
Mr
Twala did not direct any oral argument against the merits of the
conviction of the appellant on the charge of attempted murder. In a
characteristically careful and exhaustive judgment the learned trial
judge analysed the evidence of the witnesses for the prosecution and
that of the appellant. While fully aware of discrepancies on some
points of detail in the evidence of the Crown witnesses, he found
them truthful and reliable, and I can find no reason to differ from
that conclusion. The appellant's evidence on the other hand he found
to be unreliable and false. In particular, the
4
learned
trial judge correctly emphasised that the very nub of the appellant's
defence, namely that he allegedly fell on his back while retreating
from a threatened knife attack by two companions of the appellant and
thereupon fired a warning shot in the air that accidentally, and
unbeknown to the appellant, hit the complainant in the head, all
emerged for the first time when the appellant himself gave evidence
after the Crown had closed its case. Not only had these averments
never been put to the complainant in cross-examination, nor to two
Crown witnesses who, so the defence suggested, were the ones in the
deceased's company when he was shot, but the appellant, when giving
this crucial part of his evidence, was said by the trial judge to
have exhibited obvious hesitation and discomfort and to become
"highly fidgety." The learned judge referred to S v Kelly
1980 (3) S.A. 301(A.D.) at 308 C and warned himself that demeanour
can be "most misleading" and that it "is, at best, a
tricky horse to ride," but he was nevertheless satisfied that
the appellant's "hesitation and uncomfortableness gave him
away."
As
I have already indicated, Mr Twala did not argue that we should come
to any different conclusion on the merits of the conviction from that
which was reached by the trial judge. I am entirely satisfied that it
would have been purposeless for Mr Twala to have submitted otherwise
- the conviction of the appellant of attempted murder was clearly
correct.
Mr
Twala did submit that the sentence of 7 years imprisonment, of which
2 years were suspended, creates a sense of shock. He further
submitted that the sentence, which was imposed on 26 July, 2000,
should have been backdated to the day of the appellant's arrest on 9
December 1997, and also that it should have been ordered to run
concurrently with whatever prison sentence for the contravention of
the Arms and Ammunitions Act the appellant may still have been
serving.
I
do not consider that the sentence of 7 years of which 2 years were
suspended, is in the least excessive. The evidence established that
the appellant produced the pistol and without any justification
pursued the complainant as the latter fled from the threat of the
firearm. The chase continued as far as a nearby house which the
complainant attempted to enter but could not as the door was locked,
whereupon the complainant continued to flee by running around the
house only to find, upon returning to the front
5
of
it, that the appellant had not pursued him around the house but had
remained outside the front door. The appellant then shot the
approaching complainant in the head, fracturing his skull, rupturing
the brain and causing a 4 cm dural tear. Only immediate and skilful
medical attention saved the complainant's life.
The
learned trial judge gave careful consideration to the question of
backdating the sentence but decided not to do so because the
appellant had not been kept in custody awaiting his trial in the High
Court, but had been in custody because he was serving sentences
imposed on him for other offences. Consideration was also given by
the trial judge as to whether or not the sentence should be ordered
to run concurrently with the sentences imposed in the magistrate's
court for the contravention under the Arms and Ammunition Act, and he
decided not to direct that his sentence should run concurrently with
those imposed in the lower court for possession of the loaded firearm
because that possession was associated, not with the attempted
murder, but with an assault with intent to do grievous bodily harm
that was in no way related to the offence on which the appellant was
tried in the High Court.
In
my view the learned judge did not misdirect himself in any respect
with regard to sentence. He gave well considered attention to the
circumstances of the offence, to the interests of society and to the
personal circumstances of the appellant, and there is no ground upon
which his sentence can be interfered with.
Accordingly
the appeal against both conviction and sentence is dismissed.
C.
E.
L.
BECK J.A.
I
agree
J.
BROWDE
J.A.
I
agree
6
J.H.
STEYN J.A.
Delivered
in open Court on this 13th
day
of December 2000
