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[1988] ZASCA 160
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S v Skoularikis and Another (248/87) [1988] ZASCA 160 (30 November 1988)
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248/87
N v H
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between
DIMITRIOS SKOULARIKIS First Appellant
FREDRICH WILHELM BRENNER Second Appellant
and
THE STATE Respondent
CORAM: JOUBERT, SMALBERGER, JJA,
et VILJOEN, AJA
HEARD: 7 NOVEMBER 1988
DELIVERED: 30 NOVEMBER 1988
JUDGMENT SMALBERGER, JA :-
Shortly before 4 p m on the afternoon of Saturday 21 June 1986 the bodies of Mr Alfons Talpa (Talpa), Mr Costas Phakos (Phakos) and his wife, Mrs Anna Maria Phakos (Mrs Phakos) were found in the upstairs section of Talpa's house at 6 Jane Lane, Klippoortjie in the district
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2
of Germiston. They had been the victims of a gruesome
killing. Mrs Phakos
was lying face downwards on the
upstairs landing; Phakos was lying on his
back in the
doorway between the landing and the main bedroom; Talpa was
lying face downwards in the bathroom in a pool of blood -
his hands were
manacled behind his back with a pair of
handcuffs, and there was masking tape over his mouth and
around his right foot.
The subsequent post-mortem examinations on the
bodies of the three deceased revealed the following: Mrs
Phakos had been shot six times and stabbed five times. The
injuries were inflicted to her head and upper part of her
body. The cause of her death was a bullet wound of the
brain and penetrating incised wounds of the lungs.
Phakos had been shot three times in the head and right upper
arm, and had three stab wounds of the right chest. The
cause of his death was found to be two bullet wounds of the
brain. Talpa had been shot once in the head and stabbed
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3 twice in the chest. He also had six lacerations of his head. The
cause of his death was a bullet wound of the brain. All three deceased
had
apparently first been shot and then stabbed. The injuries sustained by the three
deceased indicate that they had been subjected
to a vicious and brutal assault,
and permit of no doubt that they were unlawfully and intentionally killed by
their assailant or
assailants.
Arising from the deaths of the three deceased the two appellants appeared before VAN DYK, J, and two assessors in the Witwatersrand Local Division on three counts of murder. Their pleas of not guilty notwithstanding they were both convicted on all three counts. No extenuating circumstances were found, and a triple death sentence was imposed on each appellant. With leave of the court a quo they now appeal against their convictions and sentences on all three counts.
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4 The hearing of the appeal was preceded by an
application for leave to re-open the trial to hear further
evidence. The
application is the subject of a separate
judgment. This judgment is concerned solely with the
appeal, and is therefore confined to a consideration of the
evidence which was led at the trial.
The two appellants were 33 and 21 years old
respectively at the time of their trial. The first
appellant is of Greek extraction; the second appellant is
an Austrian national. They were friends, and had certain
business dealings with each other. The first appellant,
who was engaged i a in the amusement machine business, lived
in his own house at 10 Sinclair Road, Lambton, Germiston;
the second appellant occupied a house belonging to the first
appellant which he shared with others at 4 Lens Road,
Delville, Germiston. The second appellant was the owner of
a Ford Fairlane motor car (the Fairlane) which the first
appellant had helped him acquire. At the time of the
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killings the first and second appellants were each the
licensed owner of a
.38 Special Astra revolver. The first
appellant's father was the owner of a 9
mm short Walther
pistol. There is no direct evidence linking the
two
appellants with the killing of the three deceased; the
State's case against them was based purely on circumstantial
evidence. What follows is a resumé of the State evidence.
I have endeavoured to retain the chronological sequence of
events as far as possible.
On the morning of 21 June 1986, at about 9.30, one
Michael Horianos, who was employed by the first appellant,
went to the first appellant's home in connection with the
duties he had to perform. In the office he found the first
and second appellants together. He observed three firearms
on the table in the office - two pistols and one revolver.
The revolver was similar to the .38 Special Astra revolver
which was exhibit 3 at the trial; the one pistol was
similar to the 9 mm short Walther pistol which was exhibit 4
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at the trial. He and the first appellant later left
the
office. On leaving the first appellant picked up one of the
pistols to
take with him. En route from the office to the
first appellant's bedroom he
noticed the first appellant
looking "a bit anxious". He enquired what was
wrong, and
whether the first appellant was in need of any help. To
this
the first appellant responded "I have got three behind
me, you will not be
needed". In his bedroom the first
appellant gave Horianos R900-00 to hand
over to a certain Mr
Angelo. Before doing so he cocked the pistol in
his
possession and said "Today is the day". Horianos left
shortly
afterwards, and did not see either of the two
appellants again that day.
(Horianos also testified to an
incident which occurred at the first
appellant's house the
preceding Monday night when certain shots were fired.
It
is not necessary to deal with this evidence in detail.
Suffice it to
say that the first appellant was in possession
of a pistol on that occasion, and the second appellant had a
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7 revolver.)
At about 1.30 p m on 21 June 1986 the two
appellants arrived
unexpectedly at the home of Mr
Ioannis Phakos, the father of Phakos. The
Phakos family
was also involved in the amusement machine business.
The
first appellant asked Mr Phakos to arrange a meeting the
same day
between himself, Phakos, Mr Phakos and Mr George
Gyltydis (the first
appellant's uncle) at the home of Talpa.
The first appellant declined to
state the purpose of the
meeting, but indicated that there was something he
wished to
discuss. He appeared to be quite normal. The two
appellants left
without any definite time for a meeting
being set. It was then approximately
1.50 pm. It appears
from Mr Phakos' evidence that the first appellant and
Phakos
were friends, having grown up together. The first
appellant had
been the master of ceremonies at the wedding
of Phakos and Mrs Phakos. At
about 6.45 that evening the
first appellant telephoned Mr Phakos to offer his
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condolences on Phakos' death. He professed to be
speaking from Mafikeng,
and claimed to have heard the news
from his sister.
I move on to the evidence of the witness Gernot
Lachner. He shared the house at 4 Lens Road with the
second appellant and
a certain Gudelius. He was employed as
a technician by the first appellant.
He did not work on
the morning of the 21st as he was in bed with a cold.
He
got up at about 2 p m as he had work to do that afternoon.
He left the house for the first time that day at between 3
and 3.30 p m. On walking towards his car he heard someone
call him. He turned round and observed the first
appellant. He was standing at the corner of the house next
to the Fairlane which was parked in the driveway. The first
appellant asked Lachner to help him. Lachner turned and
went towards him, but the first appellant then indicated
that Lachner's help was not necessary, and that he could
manage on his own. Lachner did not see any of the first
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appellant's cars in the vicinity. Lachner then left, and
did not return
home until sometime after 1 a m the
following morning. On his return he was
arrested by Lt
Vlok as a possible suspect in the killing of the three
deceased. Before the police left with him he was taken to
the bathroom. There was blood on the wall and in the
washbasin, and there was a bloodstained towel lying next to
the washbasin. The bathroom had been clean and free from
blood when he had vacated it earlier that afternoon.
Lachner also testified to the incident on the Monday evening
at the first appellant's house when certain shots had been
fired, and confirmed Horianos' evidence that the first
appellant had a pistol and the second appellant a revolver
on that occasion.
At 3.45 p m the witness Mrs Steward went to
Talpa's house. She had arranged to see him earlier that
afternoon. She rang the front door bell. There was no
immediate reply, so she tried the door handle and the door
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10 opened. She observed what she referred to as "a lot
of
bloodstains" on the mirrors in the entrance hall. The two
young
daughters of Phakos and Mrs Phakos (the Phakos
children) came running down
the stairs. They were aged
five and three respectively. They made a report to her.
She telephoned her son-in-law to come to the house, which he
did. Eventually her son-in-law and a certain Swanepoel
entered the house and discovered the bodies. The police and
an ambulance were summoned. The police arrived in due
course. As it was feared that the killer or killers might
still be on the premises the police Reaction Unit was sent
for . They arrived at 5.15 p m and duly secured the house
before handing it over to Lt Vlok of the East Rand Murder
and Robbery Unit who headed the police investigation team.
A member of the Reaction Unit took a video depicting the
situation in the house. On entering the house Vlok noticed
blood spots on the mirrors in the entrance hall. There
were various blood spots in the passage. In the laundry
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there was a washing machine with blood on the door. From
the laundry a
trail of blood led up the stairs to the
bathroom. On the landing were the
bodies of Mrs Phakos and
Phakos, and in the bathroom that of Talpa, lying as
I have
previously described them. The bodies were still warm.
The bathroom window
was broken. On the washbasin there was
a roll of masking tape (the tape) identical to the masking
tape over Talpa's mouth; there was also a pair of handcuffs
identical to those with which Talpa's hands were manacled.
In the washbasin there was a spent 9 mm short cartridge
case. There were various bullet holes in the bathroom
door, as well as in certain doors and door frames leading
off the landing. There were also two bullet holes in the
ceiling of the landing. He also observed a number of other
spent cartridge cases and bullet heads in the area where the
shooting had occurred. In the course of that evening and
the following morning various photographs were taken, and
fingerprint, ballistics and forensic experts combed the
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house for clues. I shall in due course detail the more
salient features
that emerged from their investigation.
Before proceeding with Vlok's further
investigation it will be convenient to recount certain
events that occurred earlier in the afternoon. At 4.18 p m
a call was received at the Germiston Ambulance department to
send an ambulance to 4 Lens Road. The caller gave his name
as Holmes. An ambulance was duly dispatched to that
address. On arrival the ambulance attendants were met by
the first appellant. He took them to the bathroom where
they found the second appellant dressed only in his
underpants. He had a bullet wound in his chest. He was in
a shocked condition. When asked what had happened the
first appellant replied that there had been "an argument".
The second appellant was rushed to the Willem Cruywagen
Hospital in Germiston. The first appellant did not accompany
the ambulance. On arrival at the hospital, however, the
first appellant was seen to enter the hospital from the
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13 admissions side. On examination at the hospital the second appellant was found to have an entrance bullet wound in the chest. He had a massive haematoma of the left arm, above
the left elbow, which when operated upon produced a bullet
which had lodged in his upper arm after penetrating his
chest. The bullet was later handed over to Vlok.
According to Dr Laubser,
who treated the second appellant,
none of the second appellant's large blood vessels were
damaged by the bullet. He would have become incapacitated
some fifteen to thirty minutes after being wounded.
This brings me back to the evidence of Vlok. At
11 p m he went to the hospital where he found the second
appellant in the intensive care unit. He appeared to be
somewhat confused, and all he said when questioned about his
injury was "almost an accident". Vlok formally placed the
second appellant under arrest, and left him under police
guard. He then proceeded to 4 Lens Road. According to
him Lachner and Gudelius arrived at the house together at
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approximtely 2 a m. He arrested them both on suspicion of
murder. In the
second appellant's bedroom he found a
shoebox containing five empty handcuff
containers. He saw
the blood in the bathroom and took possession of the
bloodstained towel. The police apparently did not find any
bloodstained clothes of the second appellant. Shortly after
leaving the house the police observed the Fairlane in Scott
Street. They forced it to stop. The first appellant was
the driver. Asked how he came to be in possession of the
Fairlane the first appellant explained that one Andreas had
brought it to him at the home of a friend where he was
visiting. On searching the Fairlane Vlok found a small
open clasp knife in the door panel on the right hand side.
On the passengers side of the vehicle he found bloodspots on
the rubber and wool mats. Between the console and the right
front seat he found a pair of handcuffs similar to those
with which Talpa's hands had been manacled. Between the
front passengers seat and the back seat there were three .38
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Special bullets. When asked to provide an explanation for
what had been
found the first appellant refused to give an
answer. The first appellant was
then placed in a police
vehicle and taken to his home. There a search of
his
bedroom was conducted. In an ashtray on the dressing
table Vlok found two 9 mm short cartridge cases. He also
found a box containing 9 mm short bullets. When questioned
about the cartridge cases the first appellant stated that he
did not know where they came from. He told Vlok, however,
that his father possessed a 9 mm short pistol, and he a .38
Special Astra revolver. When asked where his revolver was
the first appellant stated that he had given both it and his
father's pistol to his sister. The first appellant's sister
later arrived at the house. When asked about the firearms,
in the first appellant's presence, she stated that the first
appellant's revolver was in her wardrobe. She unlocked the
wardrobe, and then stated that she recalled having returned
the first appellant's revolver to him. She made no mention
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of her father's pistol. A search of the first appellant's house revealed no firearms. The only other aspect of Vlok's investigtion that need be mentioned is that on 3 September 1986 he returned to Talpa's house. He cut open the carpet - on the landing underneath the spot where the body of Mrs Phakos had lain. There were five holes in the cement. He managed to probe out two .38 Special and one 9 mm short bullet heads.
I previously made mention of the fact that on the evening of the killings, as well as the following morning, photographs were taken at Talpa's house, and certain fingerprint, ballistics and forensic investigation done. The outcome of these investigations, and certain further tests and investigations done in consequence thereof, was as follows:-
1) On the inside (or sticky side) of the loose flap of the tape found in Talpa's bathroom a bloodied fingerprint was discovered. The fingerprint turned out to be that of the left
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index finger of the first appellant.
2) On the outside of the bathroom door, on the top left hand corner, a palmprint was found. This turned out to be the right palmprint of the second appellant.
3) From an examination of the spent bullets and cartridge cases found on the scene, the bullet taken from the second appellant's arm, and a bullet recovered from Phakos' head during the post-mortem examination it was established that :
(a) Shots were fired from at least three weapons at the scene of the killings (the origin of the two shots that went through the ceiling is unknown);
(b) Two of the weapons concerned were of .38 calibre; the other was a 9 mm calibre;
(c) Six shots were fired from the one .38 calibre firearm including the bullet taken from Phakos' head;
(d) At least four shots were fired from the other .38 calibre firearm, including the bullet found in the second appellant's arm, and one of the bullets found under the mat where Mrs Phakos' body had been lying; (e) At least five shots had been fired from the 9 mm calibre firearm; (f) The four spent 9 mm cartridge cases found at the scene, and the two spent 9 mm cartridge cases found in the ashtray on the first appellant's dressing table were fired from the same firearm.
4) Primer residue was found on both hands of all three deceased. Primer residue is emitted
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from a firearm when it is fired. The presence of primer residue on their hands showed that each deceased had either discharged a firearm, or their hands had been in the immediate vicinity of a firearm or firearms when discharged.
5) No primer residue was found on the hands of the second appellant. This result was apparently inconclusive because of the delay that occurred before primer residue tests on his hands were done. (The lapse of time between the killings and the detention of the first appellant was apparently the reason why no primer residue tests were done on the first appellant's hands.)
6) The blood found in the laundry, and between the laundry and the bathroom, matched Talpa's blood group.
7) No blood was discovered on the clasp knife found in the Fairlane. The bloodstains on the rubber mat and the wool carpet (in the Fairlane) came from a blood group which matched that of the second appellant.
In September 1986 the witness Solomon Nkosi was
walking in the veld with a friend. Just inside a fence
running alongside a gravel road, at a point some 350 metres
from the tarred road leading to the Rand Airport, they came
across a partly burnt out bag or briefcase. Inside the
bag there were five firearms which had been damaged by fire,
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some handcuffs and two "jungle" knives. They took the
firearms, handcuffs
and knives. The firearms were
distributed to various people. After Nkosi was
arrested in
January 1987 for unlawful possession of one of the firearms
the police managed to trace four of the five firearms that
had been found.
Vlok was taken to the spot where the find
was made. There were signs that
there had been a veld fire
in the area. The remains of the bag were still there. Vlok
found some exploded .38 special bullets, two sections of the
grip of an Astra revolver (one of the firearms recovered had
its grip missing) and some partly burnt out masking tape
similar to that found in Talpa's bathroom. The four
firearms recovered consisted of three .38 Astra Special
revolvers and one 9 mm short pistol, and included Exhibits 3
and 4. On further investigation it was established that
two of the .38 Astra Special revolvers were those licenced
in the names of the first and second appellants: the third
was licensed in the name of Phakos. The 9 mm short pistol
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was the one licensed in the name of the first appellant's
father. Although it was possible to fire shots from the
recovered firearms after they had been properly cleaned,
their generally neglected state and the fire damage they had
suffered made it impossible ballistically to determine
whether any of the spent bullets or cartridge cases found at
the scene of the killings were fired from them.
The first appellant, who was represented by both
senior and junior counsel, closed his case without himself
giving evidence, or calling any witnesses. The second
appellant testified in his own defence. His evidence was
to the following effect: He went to the first appellant's
house on the morning of 21 June 1986 to borrow money for
extensions to a night club which he had recently opened.
They were together in the first appellant's office when
Horianos arrived. There were no firearms on the table in
the office. The second appellant had his .38 Special Astra
revolver with him in a holster at his side. Horianos and
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the first appellant then left the office. He did not see
Horianos after
that. He and the first appellant lunched
together at a restaurant before returning to the first
appellant's house
for coffee. At approximately 1.30 p m, at
the first appellant's request, he
took the first appellant
in the Fairlane to Mr Phakos' house. He did not follow the
conversation between Mr Phakos and the first appellant as
they spoke to each other in Greek. He then took the first
appellant back to his home at about 2 p m. They arranged
to meet each other again that evening for supper, whereafter
he left, and went to his club. A little while later the
first appellant telephoned him. He asked the second
appellant to meet him at the home of a friend to discuss the
financing of the extension to the club. He gave the
address as 6 Jane Lane. (I omitted to mention earlier that
the houses occupied by Talpa, Mr Phakos and first and second
appellants respectively are all situated in reasonably close
proximity to each other.) The second appellant went to the
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address he had been given, arriving there at about 3 p m.
He had never
been to the house before. He parked the
Fairlane outside the house and went
to the front door. It
was slightly ajar. He rang the bell, but no one
answered.
He waited awhile, and then opened the door further and went
in. He first called out the name of the first appellant,
and then generally, but received no response. He heard a
noise coming from upstairs. He went up the stairs. On
the landing he found the bodies of Phakos and Mrs Phakos.
He then heard a noise behind him. He pulled out his
firearm and turned around. As he was turning he heard a
shot. He felt a pain in his chest and lost consciousness.
When he came to he was lying on the floor. He felt very
thirsty. He got up and pushed open the bathroom door,
holding onto the top left hand portion with his right hand.
He saw another body on the floor of the bathroom. He must
have lost consciousness again. When he next came to he
was sitting in the front passenger seat of the Fairlane.
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It was still parked where he had left it. The first
appellant was standing
next to him. The wound in his chest
was bleeding. The first appellant drove
him home in the
Fairlane. There the first appellanb helped him to his
bedroom, where, with the first appellant's assistance, he
stripped to his underpants. He felt very weak, and went to
the bathroom. He pressed a towel to the wound to stop the
bleeding. An ambulance arrived later, and he was taken to
hospital where a bullet was removed from his left arm. He
was placed under police guard until his discharge from
hospital, after which he was detained in custody. He
explained the presence of the .38 bullets found in his car
on the basis that he always carried loose bullets with him.
He admitted having bought handcuffs. He denied having
killed or assaulted any of the deceased.
There was no cross-examination of the second
appellant by the first appellant's counsel. Under cross-
examination by counsel for the State, the second appellant
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stated that he had not observed any blood in the entrance
hall when he
entered the house. He noticed blood, however,
on the staircase. Although he
heard a shot being fired he
did not see who fired it. He agreed that after he had
passed out for the second time someone must have assisted
him downstairs, but could not say who. According to him
the first appellant would not have been able to carry him
downstairs unaided. He refused to answer, when asked, what
the first appellant had told him he had observed at Talpa's
house.
The trial court held that the only reasonable
inference to be drawn from the above facts, coupled with the
first appellant's failure to testify, was that the first
appellant had been party to the unlawful and intentional
killing of the three deceased. It rejected the evidence of
the second appellant as being "completely untrue". In
doing so it made certain adverse credibility findings
against the second appellant. It concluded that the second
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appellant had been associated with the first appellant in
the unlawful
killing of the three deceased. It accordingly
found them both guilty on all
three counts of murder, and in
the absence of extenuating circumstances,
sentenced them to
death.
Before I proceed to consider various arguments
advanced on behalf of the first appellant against his
conviction it is necessary to deal with certain events which
occurred after the two appellants were convicted of murder
and before the trial court's finding on extenuating
circumstances. Counsel for the first appellant informed
the trial court that he had explained fully to the first
appellant the possible consequences that might flow from his
failure to testify in regard to extenuating circumstances.
He stated that the first appellant had initially intimated
that he did not wish to testify, but had at the last moment
changed his mind and now requested an opportunity to
"address the court". Counsel indicated that he was not
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aware of what the first appellant intended to say. The
first appellant was
then sworn in, and after certain
introductory questions were put to him and certain personal
details elicited from him, the following exchange between
counsel and the first appellant took place:
"Now your instructions have also been that you are
innocent of these offences? - That is
correct.
But you decided not to testify? - That is
true.
That was your decision? - That was my
decision and mine alone.
Although you knew the implications? - Yes I
knew that the death penalty could be imposed and
would be imposed.
Now yesterday you heard the verdict in this case?
- I did.
And it is correct that I instructed you what the legal position is? - Yes you did.
Did you understand my instruction to you? -
Yes I did.
And at that stage is it correct that you did not
wish to
testify in relation to the issue of
extenuating circumstances? - That is
correct.
Did you instruct me this morning that you wished
to make a statement? - That is correct.
Did I explain the difficulties about making a
statement at this stage? - Correct.
Is it your desire to make a statement at this
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stage? - Correct.
Is it your decision? - My decision.
Your decision to go into the witness box now?
My decision to go into the witness box now.
Do you wish to make that statement still to the
Court? - If I may be allowed to do so."
What followed thereafter appears from the judgment
of the trial judge on the State's application to have the
statement made by the first appellant struck from the
record, where he
said:
"Accused 1 then proceeded to make a statement criticising the decision of the Court and criticising the evidence at great length. The Court allowed him to proceed until the tea adjournment and then asked him to possibly leave out criticism against the decision and the various witnesses' evidence because that would be tantamount to an appeal against the judgment. He then proceeded to explain to the Court what according to him has happened at the scene of the murders and what he believed was of importance.
During such statement the accused cast certain slurs on the police and made certain derogatory remarks about the police in general and also referred to two police officers by name suggesting that he and No 2 had been framed by the police for some unknown reason. Mr Von Lieres strongly objected to the contents of this 'statement' and submitted that it is completely irrelevant and
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solely aimed at defaming the police. Because nothing had been placed before the Court which can even remotely be regarded as extenuating factors, and because that is the only matter to be considered and to be decided by the Court at this stage, I have come to the conclusion that what the accused hed told the Court by way of this 'statement' is completely irrelevant to the issue before the Court.
That being so, it follows that the Court should rule that on the basis of its being irrelevant it ought not to be admissible, and should not form part of the record before the Court. For these reasons I rule that the 'evidence' tendered by accused 1 on the basis that it has nothing to do whatsoever with the issue before the Court, has been proved to be completely irrelevant and therefore inadmissible, and that the Court record should not unnecessarily be burdened therewith.
I therefore order that the evidence given by this accused should be struck from the record.
This does not include the introductory evidence led by Counsel for No 1 accused."
The reason why I have recounted these events is
that one of the arguments advanced on appeal was that the
trial judge
should have permitted the first appellant, even
at that late stage, to give evidence relative to the merits
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and to be cross-examined thereon. For this argument
reliance was placed on
the decision of this Court in S v
Mavhungu 1981(1) SA 56 (A). In terms
of Mavhungu's case
(at 64 H - 65 H) evidence given for the first time in
extenuation, if found to be credible, may be taken into
account on appeal in considering the correctness of the
conviction. It was contended that by striking the first
appellant's evidence relative to the merits from the record,
and not allowing it to be tested under cross-examination,
the trial judge precluded a finding on the first appellant's
credibility which may have had a bearing on his prospects of
success on appeal.
I do not propose to burden this judgment with the
facts of Mavhungu's case. The appeal was desoribed as an
"unusual appeal", which indeed it was. This may in some
measure account for the conclusion reached in the passage in
the judgment on which the first appellant relies, where the
following was said (at 65 D - H):-
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"Section 330(1) of the prior, now repealed Criminal Procedure Act 56 of 1955, as amended, provided that, where the Court 'in convicting the accused of murder' was of the opinion that there were extenuating circumstances, it could impose any sentence other than the death sentence. In S v Shabalala 1966(2) SA 297 (A) this Court held that the sub-section involved a twofold procedure: first an inquiry into the accused's innocence or guilt of the alleged murder, and, if his guilt was found proved, then a further inquiry into the presence or absence of extenuating circumstances. But, despltc that procedural dichotomy, this Court (through RUMPFF, JA) at 300 B of that case, and through HOLMES, JA in S v Sparks and Another 1972(3) SA 396 (A) at 404 E, affirmed that in reality, where the accused is convicted of murder, there is only one overall proceeding and a single, albeit composite, verdict of guilty of murder with or without extenuating circumstances, as the case may be. The trial only ends when such a verdict is delivered. That also applies now under the corresponding s 277 (2) of the present Act, since its relevant wording remains substantially the same. It follows that, for the purpose of an appeal against that verdict, the record of the evidence of the entire proceedings must be laid before this Court for its consideration. And in considering whether the verdict was right or wrong this Court can also have regard to the evidence adduced in extenuation. Thus where, for example, an issue on appeal is the identity of the murderer, it would be quite unrealistic and wrong for this Court in considering the verdict of guilty to ignore
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credible testimony given by the accused in extenuation admitting that he was the murderer. Similarly, there is no reason why that should not also be done where credible testimony is so given by the accused proving that he was innocent. Hence, in the present case we can, I think, have regard to appellant's evidence given in extenuation in determining what offence he was guilty of."
The principle underlying the conclusion (at 65 G)
that "in considering whether the verdict was right or wrong
this Court can
also have regard to the evidence adduced in
extenuation" is based on the
premise (at 65 F) that in a
murder trial "there is oníy one overall
proceeding and a
single, albeit composite, verdict of guilty of murder with
or without
extenuating circumstances, as the case may be".
The correctness of this
latter statement was doubted in S v
Theron 1984(2) SA 868 (A)
at 879 D - H, where cogent and
convincing reasons against this view are expressed. This in
turn casts doubt on the correctness of the passage at 65 G.
Be that as it may, I do not think that Mavhungu's case ever
contemplated, or was intended to apply to, the situation
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32
where an accused person deliberately refrains from
testifying on the merits in a murder trial and then seeks,
after conviction, in the guise of evidence in extenuation,
to give evidence on the merits (having ascertained from the
court's judgment where the shoe pinches) in the hope of
being found to be a credible witness - a situation akin to
that which has arisen in the present case. This would
amount to an abuse of the normal trial procedure, and could
encourage fraudulent practices. It would also offend
against the general principle that when considering the
question of extenuation the tríal court ís bound by the
factual findings on which it based its conviction (S v
Vonsteen 1972(4) SA 551 (A) at 558 B - D; S v Sephuti
1985(1) SA 9 (A) at 18 E - F). This general principle
justifies the decision of the trial judge to strike the
first appellant's "statement" or "evidence" from the record
as irrelevant, as it could have had no bearing on the trial
court's findings in relation to extenuation during the
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second phase of the trial. Even if in view of what was
said in
Mavhungu's case there was technically an
irregularity the first
appellant has not been prejudiced
thereby. Not only was he given the opportunity to bring an
application to
re-open the trial but in any event, for
reasons which will become apparent later in this judgment,
there was never any reasonable likelihood of his being found
to be a credible witness in respect of his denial of any
involvement in the killing of the chree deceased.
The most incriminating evidence against the first
appellant relates to his fingerprint that was found on the
tape in Talpa's bathroom, the two 9 mm cartridge cases
allegedly found in the ashtray in his bedroom, the evidence
of Horianos and the later finding of the firearms. Despite
the fact that voluminous heads of argument were filed on
behalf of the first appellant in which every conceivable
argument was raised, the argument on appeal centred mainly
on the matters I have mentioned. I take cognisance of all
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34
the arguments that were raised in the heads of argument.
Many of them are
lacking in substance, factual or legal.
It is neither possible nor necessary to deal with every
argument. I shall largely confine myself to what I
consider to have been the main arguments.
At the outset of his argument Dr Yutar, for the
first appellant, emphasised that the State had not proved
any motive on the part of the first appellant for the
killing of the three deceased. It is true that no motive
is apparent from the record. The first appellant appears to
have had a fairly close and harmonious relationship with the
Phakos family generally. The presence or absence of a
motive in any particular case may be relevant to the general
probabilities. However, many instances of motiveless
killings have been recorded, and while the absence of motive
is a relevant consideration, it is not a matter to which
undue weight should be attached.
It is not disputed that the fingerprint which
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Terblanche claims was found on the sticky side of the
tape
was that of the first appeliant. It was submitted, however,
that the first appellant's fingerprint may have been
"placed" on the tape some time after his detention on the
morning after the killings, the implication being that the
police (and more particularly the investigating officer
Vlok), fabricated this evldence against him. There is no
factual substratum for such submission. Terblanche took
possession of the tape on the Saturday evening, and it
remained in his possession or under his control thereafter,
at least until the origin of the fingerprint thereon was
established. Terblanche's evidence in this regard was never
challenged at the trial; nor was it ever put to Vlok that
he had, somehow or other, procured the first appellant's
fingerprint on the tape later. Any fabrication of evidence
must necessarily have involved both Terblanche and Vlok.
They must have been party to a conspiracy against the first
appellant. However, no suggestion of this kind was ever
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made to them under cross-examination. There is in my view
no reason to
doubt the police evidence to the effect that
when the investigating team
first entered Talpa's house the
tape with the first appellant's fingerprint on it was found
in the
bathroom. It was also argued, in the alternative,
that the first appellant may have entered Talpa's house
after the killings and innocently handled the tape. This
amounts to pure
speculation. The first appellant never saw
fit to go into the witness box to provide an innocent
explanation for the presence of his fingerprint on the tape.
In any event it seems highly unlikely that had he discovered
the bodies after the killings he would have had any need to
touch the tape in the bathroom. Furthermore, the position
of the fingerprint on the tape is more consistent with it
having come there in the course of a piece of the tape being
torn off than with the tape merely being picked up.
In support of the suggestion that the police may
have fabricated evidence against the first appellant our
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attention was drawn to the photograph Exhibit 44 (a) which
depicts the
palmprint of the second appellant on the outside
of the bathroom door. A copy
of this photograph in the
possession of the first appellant's counsel was
handed to
us. On this copy a section of the bathroom can more
clearly be
seen. I shall assume that this copy is a
duplicate of Exhibit 44 (a). This photograph was contrasted
with the
photograph Exhibit B 18 which shows Talpa lying on
the bathroom floor in a pool of blood. A comparison of
these photographs indicates that the blood visible on the
bathroom floor in Exhibit B 18 is not apparent on Exhibit 44
(a). The conclusion to be drawn from this is that Exhibit
44 (a) was taken after the bathroom floor had been cleaned.
This, it was argued, established that Exhibit 44 (a) could
not have been taken the night of the killings or the
following morning as testified to by Terblanche. It must
have been taken at some later stage. The suggestion
flowing from all this is that the second appellant's
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palmprint was probably only "placed" on the bathroom
door at
some later stage and was not present on it the night of
the
killings. Reference was also made in argument to a copy of
the
close-up Polaroid photograph taken of the palmprint
which, it was argued,
showed that the palmprint was on the
right and not the left hand side of the door as shown on
Exhibit 44 (a).
Interesting though all this may be, it does not
take the first appellant's appeal anywhere. None of these
speculative theories were ever canvassed with the police
witnesses. It is not at all clear from the Polaroid
photograph where exactly the palmprint on the door was. It
could have been on the left or the right hand side. It
certainly cannot serve to refute the unchallenged police
evidence at the trial that it was on the left hand side.
It may well be that Terblanche was mistaken and that the
photograph Exhibit 44 (a) was not taken when he said it was,
But this does not detract from the fact that the second
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appellant's palmprint was found on the door, as depicted on
the
photograph, in the course of the investigations that
followed immediately
upon the killings. And any suggestion
that the palmprint on the door was
falsely "manufactured" by
the police is conclusively refuted by the second appellant's
evidence that
he had gripped the top of the bathroom door
when going to the bathroom in search of water, and his
acceptance that the palmprint was his. Any attempt
therefore to found an argument of fabricated evidence on the
photographs to which I have referred is a totally damp
squib.
The suggestion in argument that evidence had been
fabricated against the first appellant was pursued further
in relation to the cartridge cases. According to the
evidence four 9 mm short cartridge cases were found at the
scene of the killings, and two in the first appellant's
bedroom. The witness Visser testified that at least five,
and possibly more, shots were fired in Talpa's house from a
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9mm short pistol. It was contended that more than four
cartridge cases
should therefore have been found.
Reference was made to certain photographs
in an attempt to
show that at least six cartridge cases are visible on
them.
It was suggested that the other two cartridge cases were
probably those that Vlok claimed were found in the first
appellant's bedroom. Once again there is no proper factual
foundation for these submissions. I am unable to say from
the photographs that there are more cartridge cases visible
than the police say were found at the scene. Vlok's
evidence that despite a diligent search only four cartridge
cases were found in the house, and that later two cartridge
cases were found in the first appellant's bedroom, was never
challenged; nor was any suggestion of fabricated evidence
in this respect put to him in cross-examination. There is
admittedly one misdirection in the trial court's judgment
which relates to the two cartrldge cases found in the first
appellant's bedroom. It held that Lachner had testified
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that after shots had been fired on the Monday night the
first appellant
had stooped to pick up what the witness
believed to be cartridge cases from
the ground. This is
incorrect. Lachner did not testify to that effect.
What
the trial court presumably had in mind was the uncontested
evidence of Horianos, referring to the same event, that he
saw the first appellant looking for a cartridge case on the
ground. Although a misdirection, it was clearly not
material, and it cannot in any way detract from the trial
court's findings.
It was further argued that the evidence relating
to the finding of the firearms should be treated with
suspicion. Why this should be so is not clear. There is no
reason to doubt Nkosi's evidence that he found the firearms
where he says he did. They must have been dumped there by
someone - the only question is by whom. This is a matter
of inference. Any suggestion that the police dumped them
there is totally without foundation. Where would the police
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have got hold of them, and why would they have caused them to be damaged, or run the risk of their being damaged, thereby preventing the firearms being linked directly to the shots fired at Talpa's house which resulted in the death of the three deceased.
I turn now to the evidence of Horianos. Aspects of his evidence were challenged in cross-examination, but the first appellant did not see fit to testify in relation to the disputed matters. Horianos' evidence therefore stands largely uncontradicted, although it does not necessarily follow that it should be accepted. To the extent that his evidence was in conflict with that of the second appellant his evidence was preferred by the trial court, and for good reason. His evidence that the first appellant handed money to him that morning in his bedroom for payment to "Mr Angelo" finds support in the evidence of Mr Angelo Mafilas who confirmed that the money was paid over
to him by Horianos that same day. There appears to be no
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cogent reason why Horianos should have wished to implicate
the first
appellant falsely. Had he wished to do so he
could clearly have gone much
further than he did. Horianos
impressed the trial court as an honest and
reliable witness,
and there is nothing which arises either from a study of his
evidence, or the arguments advanced, which leads me to doubt
the correctness of that assessment.
The State's failure to call the Phakos children as
witnesses does not justify an adverse inference being drawn
against it. It is not apparent from the record that they in
fact witnessed the killing of their parents. In view of
their extreme youth they are not likely to have been
reliable witnesses, particularly if regard is had to the
emotional trauma they must have suffered if they witnessed
the killings. At best for the appellants the failure to
call them means that the State ran the risk of not proving
its case against the appellants if the remaining evidence
was not sufficient.
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The second appellant's evidence was in my view
rightly
rejected by the trial court. He was found to be an
unimpressive witness;
hesitant, evasive and ill at ease in
the witness box. He was apparently not
prepared to take
the court fully into his confidence, hence his refusal
to
disclose what the first appellant had told him had happened
at Talpa's
house. For reasons which will appear later the
overwhelming probabilities are
that he and the first
appellant travelled together in the Fairlane to
Talpa's
house - thus giving the lie to his evidence that the
first
appellant telephoned him and asked him to meet him there.
His
version of what occurred is highly improbable. To
mention but some
considerations. Why did he venture into a
strange house? There was no sign,
on his version, of the
first appellant being there, and the occupants of the
house
were not known to him. He failed to see the blood in the
entrance
hall which was clearly visible to all the later
witnesses who arrived at the scene. He followed a trail of
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blood up the stairs when the reaction of a normal person would have been to beat a hasty retreat and summon the police. His explanation of how he was shot is unconvincing. His subsequent conduct is inconsistent with his having been shot when innocently coming across the bodies of the three deceased.
In the circumstances the guilt or innocence of the appellants falls to be determined on the basis of the State evidence as outlined above. What does that evidence establish? On the morning of 21 June the two appellants were together at the first appellant's house. There are indications that they were planning something if regard is had to the remarks made by the first appellant to Horianos, and the presence of three firearms on the table. The second appellant's revolver, according to him, was in a holster at his side. They later travelled together in the Fairlane to go and see Mr Phakos. When they left his house it was
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nearly 2 p m. The first appellant was seen by Lachner
alongside the
Fairlane at 4 Lens Road at between 3 and 3.30
pm. On the evidence this must
have been after their return
from Talpa's house, where both had been present.
By then
the killings had already occurred. The probabilitíes are
overwhelming that the first and second appellants travelled
to Talpa's house together in the Fairlane. They had
travelled together earlier; the first appellant drove the
second appellant from Talpa's house back to 4 Lens Road in
the Fairlane (evidenced by the first appellant's presence
next to the Fairlane when seen by Lachner, coupled with the
fact that blood was only found on the front passenger side
of the Fairlane, which indicates that the second appellant
was a passenger in the vehicle); no car of the first
appellant was seen at 4 Lens Road, nor found outside 6 Jane
Lane - he could therefore not have left a car there when
taking the secohd appellant back to 4 Lens Road. The
presence of both appellants in Talpa's house is established
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by the first appellant's bloodied fingerprint on the tape,
and the second
appellant's palmprint on the bathroom door.
Furthermore, the second appellant
must have been on the
scene when the shooting occurred to have sustained
the
injury he did. The four 9 mm cartridge cases found in
Talpa's house,
and the two found in the first appellant's
bedroom, were both fired from the same pistol - thereby
linking the first appellant to the shots fired in Talpa's
house. On the morning of 21 June the first appellant was
in possession of three firearms, and the second appellant
one, a total of four. When the first appellant's house was
searched in the early hours of the following day no firearms
could be found. Nor could the second appellant's firearm
be traced. There is no evidence to suggest that they could
have been stolen in the interim. The first appellant had
ample opportunity to dispose of them between the time of the
second appellant's admission to hospital and his (the first
appellant's) arrest. The five firearms found by Nkosi were
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48 those of the two appellants, the first appellant's father, Phakos and one other. The unexplained presence of Phakos' firearm with the others, more particularly those of the two appellants, is a strong pointer to the others being connected with the killings. The connection is strengthened by the finding of the two knives at the same time, as well as the later finding at the spot by Vlok of a piece of masking tape similar to the tape found in Talpa's bathroom. Moreover, the calibres of the firearms of the two appellants, and that of the first appellant's father, coincide with those of the firearms fired at Talpa's house. The disappearance of the second appellant's bloodstained clothes cannot be attributed to the second appellant. The only other person who knew about them, and had both reason to dispose of them, and the opportunity to do so, was the first appellant. A further factor is that the pair of handcuffs found in the Fairlane were similar to those found
in the bathroom in Talpa's house, and used to manacle his
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hands. Apart from these considerations, the subsequent
conduct of the
appellants, particularly the first appellant,
excites grave suspicion, to say
the least. Why was the
second appellant not taken straight to hospital if
the
appellants had not been involved in anything unlawful at 6
Jane Lane?
Why did the first appellant use an assumed name
when telephoning for an ambulance - for only he could have
done so? Why did he falsely pretend to be calling from
Mafikeng when he telephoned Mr Phakos that evening? Why
did he lie to the police about how he came to be in
possession of the Fairlane? Why did neither appellant
vigorously protest his innocence when detained?
The case against the two appellants is based
entirely on circumstantial evidence. The question is
whether the only reasonable inference to be drawn from such
evidence is that they were party to the unlawful killing of
the three deceased. When reasoning by inference one must
have regard to the cumulative effect of all relevant facts
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and probabilities. The considerations to which I have
referred point
inexorably to the involvement of the two
appellants in the events that
occurred at Talpa's house
leading to the deaths of the three deceased. What
precisely
happened there we do not know, but the evidence, coupled
with
the first appellant's failure to testify to rebut the
strong prima facie case against him, can lead in my view to
only one conclusion, viz., that the first appellant was
party to the killing of the three deceased. The nature of
the killings was such that once responsibility therefor is
proved the inference is irresistible that such killings were
unlawful and intentional. In the case of the second
appellant, he was found to be an untruthful witness and his
evidence was rejected. This places him in the same
position as if he had not testified - a position akin to
that of the first appellant. He too therefore failed to
answer the strong prima facie case against him. In his
case as well the only reasonable inference to be drawn is
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that he participated in the unlawful and intentional killing
of the three
deceased. In the result hoth appellants were
correctly convicted of murder on
all three counts.
There remains the question of extenuation. The
trial court held that both appellants had acted with dolus
directus, and that neither had discharged the onus of
establishing the existence of extenuating circumstances.
The first appellant did not even attempt to discharge that
onus. This court cannot speculate as to the likely reason
for the killings. If such a reason existed, the appellants
deliberately refrained from revealing it. In the case of
the first appellant there is no basis whatsoever for a
finding of extenuating circumstances.
The second appellant was 20 years of age at the
time of the commission of the offences. It was argued that
he was young and immature, and susceptible to influence by
the first appellant. However, I find no reason to differ
from the finding of the trial court that at the time of the
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killings the second appellant was a mature and independent young man with a will of his own and that his relative youthfulness played no role whatsoever in the killings. He too therefore failed to establish the existence of extenuating circumstances.
In the result the appeals of both appellants against their convictions and sentences are dismissed.
JUDGE OF APPEAL
JOUBERT, JA )
CONCUR
VILJOEN, AJA )