Reportable south gauteng high court, johannesburg



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REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG


CASE NO: SS 154/2009

DATE: 25/11/2010


In the matter between:

THE STATE

and

NORBERT GLENN AGLIOTTI.............................................................Accused
______________________________________________________________
J U D G M E N T

______________________________________________________________

KGOMO, J:
[1] At the close of the State case hereinafter a long and/or protracted hearing, the accused herein is applying for his discharge in terms of section 174 of the Criminal Procedure Act, 1977 (Act 51 of 1977), as amended (the Criminal Procedure Act).
[2] The basis of the application is:


    1. that the accused did not receive a fair trial in that the prosecution, while in possession of statements and other evidential material, failed or neglected or refused to act in accordance with their duty or legal obligation to make same available to the court and/or the defence, as well as manipulated or attempted to manipulate the witnesses’ evidence so as to ensure that they testified in chief about matters that were not covered by their statements, more particularly, those statements that the witnesses made in terms of section 204 of the Criminal Procedure Act, thereby rendering the whole process unconstitutional and the trial unfair; and/or




    1. that the State has not made out a prima facie case against the accused at the close of its case and that, to put the accused on his defence when there is no evidence on record upon which a person, acting carefully, can convict the accused, would be tantamount to making or causing him to make a case against himself where none existed before.


[3] Both the defence and the prosecution have submitted copious and comprehensive heads of argument and I am indebted to them for the efforts they put in to compile same. Counsels on both sides, Adv L Hodes SC on behalf of the defence and Adv Dakana on behalf of the prosecution also argued and submitted viva voce for and against the granting of the application, accentuating points in their heads they reckoned were important or in addition to the points mentioned in the heads.
[4] The prosecution team consisted of Adv Dakana, duly assisted by Advocates Gcaleka and Mashiane from the Gauteng Director of Public Prosecution’s Office (DPP) in Johannesburg and the defence was handled by Adv L Hodes SC duly assisted only at the arguments stage by Adv Mokotedi.
[5] The indictment herein sets out the following four (4) charges against the accused:


    1. Count 1 – Contravention of section 18(2)(a) of the Riotous Assemblies Act, 1956 (Act 17 of 1956) as amended (the Riotous Assemblies Act) namely, conspiracy to murder Mark Bristow, Jean Daniel Nortier, Mark Wellesley-Woods and Stephen Mildenhall; the allegations being that during or about July to August 2005 and at or near Rondebosch in the district of Cape Town as well as at Illovo and Inanda in the district of Johannesburg and/or at places unknown to the prosecution, the accused conspired with Roger Brett Kebble, Clinton Ronald Nassif, Michael Donovan Schultz, Nigel Mc Gurg Faizel Smith and certain other persons whose particulars are unknown to the State, to aid or procure the murders of the said Mark Bristow, Jean Daniel Nortier, Mark Wellesley-Woods and Stephen Mildenhall;




    1. Count 2 – Attempted murder of Stephen Mildenhall, the allegations being that upon or about 31 August 2005 and at or near Claremont in the district of Cape Town, the accused did unlawfully and intentionally attempt to kill Stephen Mildenhall by shooting him with a firearm(s);




    1. Count 3 – Contravention of section 18(2)(a) of the Riotous Assemblies Act, No. 17 of 1956 – conspiracy to murder Roger Brett Kebble; the allegations being that during the period August to September 2005 and at or near Illovo and Inanda, in the district of Johannesburg and/or at places unknown to the State or Prosecution, the accused conspired with the said Roger Brett Kebble, Clinton Ronald Nassif, Michael Donovan Schultz, Nigel Mc Gurg, Faizel Smith and certain other persons, whose further particulars are unknown to the State, to aid or procure the murder of Roger Brett Kebble; and




    1. Count 4 – Murder of Roger Brett Kebble – the allegations being that upon or about 27 September 2005 and at or near Birdhaven in the district of Johannesburg, the accused did unlawfully and intentionally kill the said Roger Brett Kebble.


[6] The Prosecution had duly sought and was granted leave to prosecute even charges that occurred outside the jurisdiction of this Court together with those that were committed within the court’s jurisdiction.
[7] Accused pleaded not guilty to all the charges on 26 July 2010 and put the State to the proof of all the allegations. He further recorded that his version would appear from his counsel’s cross-examination of the state witnesses.
[8] The accused also made formal admissions in terms of section 220 of the Criminal Procedure Act relating to the identity of the deceased, his date, place and causes of death, the results of the post mortem examination on the deceased’s body as well as the relevant photos contained in a photo-album depicting the scene of crime and the post mortem examination. Various exhibits of photos depicting the various crime scenes as well as some of the state witnesses making some pointings out were also admitted as evidence by mutual agreement.
[9] In order for the evidence led herein to be understood in its correct context, it is necessary that I set out what the various descriptions of the prohibitions or crimes are as well as what the requirements of each crime is:

    1. Conspiracy


Section 18(2)(a) of the Riotous Assemblies Act describes conspiracy to commit a crime as follows:
18(2)(a) Any person who … conspires with any other person to aid or procure the commission of or to commit … any offence, whether at common law or against a statute or statutory regulation, shall be guilty of an offence and liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable.



    1. This section does not differentiate between a successful conspiracy (that is, one followed by the actual commission of the offence) and one not followed by any further steps towards the commission of the crime. Our courts have held that this provision ought to be utilised only if the envisaged crime has not yet been committed.


See: S v Milne and Erleigh (7) 1951 (1) SA 791 (A) at 823.

S v Njenje 1966 (1) SA 369 (RA) at 376-377.

S v Khoza 1973 (4) SA 23 (O) at 25.


    1. On the other hand, there is no absolute prohibition on the State to charge somebody with conspiracy even when the main crime has in fact been committed. It would of course be wrong to convict a person of both the conspiracy and the main crime since the two in fact merge, just like where a successful attempt to commit a crime merges with the completed crime.


See: S v Basson 2001 (1) SACR 1 (T).


    1. The requirements for this crime are, The Act, Intention, More than one party and Punishment.




      1. The Act


There should be at least two people for the crime of conspiracy to be committed.
See: S v Sibiya 1993 (1) SACR 235 (A) at 249e.

S v S 1959 (1) SA 680 (C) at 683.

S v Cooper 1976 (2) SA 875 (T) at 879.


      1. Before there can be a conspiracy, X and Y or more people must agree with one another to commit a crime. The act thus consists of the entering into an agreement which is often expressed by the statement –


“ … there must be a meeting of minds … ”
See: S v B 1956 (3) SA 363 (E) at 365.

S v Moumbaris 1974 (1) SA 681 (T) at 687.


      1. The conspiracy need not be express : it may be tacit. In the last instance there will be a conspiracy only if other party(ies) agree to the scheme.




      1. A court may infer a conspiracy from a person’s conduct, provided that the inference is the only reasonable one to be drawn from the proven facts.


See: S v Khoza (supra).

S v Heyne 1958 (1) SA 607 (W) at 609.

S v Cooper and S v B (supra).


      1. The conspirators need not agree about the exact manner in which the crime or crimes is to be committed.


See: S v Adams 1959 (1) SA 646 (Sp Court).

S v Cooper (supra) at 879H.


    1. Intention


A co-conspirator must have the intention to conspire with another. He/she must intend to commit that crime or to assist in its commission. A conspiracy may only be construed once a court is satisfied that a conspirator was also aware of his/her co-conspirators’ knowledge of the conspiracy. Only then will there be talk of “… a meeting of minds”.


    1. More than one party


As stated above there must be at least more than one person for a conspiracy to be formed. One person cannot conspire with himself/herself to commit a crime. Equally, it is also accepted that there can be no conspiracy between a company consisting of a single person and that single person controlling it.
See: Mc Donnel [1966] 1 QB 233 All ER 193 (as discussed by Beuthin 1966 SALJ 224-226).


    1. Punishment


A conspirator is liable to the same punishment as the person convicted of committing the crime itself. Normally, if a crime has a minimum prescribed sentence, the court may not be obliged to impose that minimum sentence for a conviction for conspiracy because a conspiracy mostly does not result in the same harmful consequences as the main offence. A lighter sentence than a prescribed minimum sentence may be imposed.

See: S v Nel 1987 (4) SA 950 (T) at 961D-E.
MURDER AND ATTEMPTED MURDER
[10]

10.1 Murder is the unlawful and intentional causing of the death of another human being. The elements thereof are – (a) causing the death; (b) of another person; (c) unlawfully; and (d) intentionally. Murder may be caused through an act or omission which causes that death.


    1. Attempted murder is an attempt to do or commit the above. A person is guilty of attempting to commit a crime if, he/she intending to do so, unlawfully engages in conduct that is not merely preparatory but has also reached at least the commencement of the execution of the intended crime. A person is equally guilty of attempting to commit a crime even though the commission of the crime is impossible, if it would have been possible in the factual circumstances which he/she believes exist or will exist at the relevant time. A person will also be guilty of an attempt even when he/she voluntarily withdraws from its commission after his/her conduct has reached the commencement of the execution of the intended crime. The stage of commencement of execution is also called the stage of consummation. Once this stage is reached, “attempt” as a crime is complete.


[11] In their opening address as well as in the indictment the prosecution alluded to the accused having taken part in an assisted suicide of the deceased herein. Although nothing further was said about this in the prosecution’s heads of argument or their address in opposition of the application for the discharge of the accused in terms of section 174, it is my considered view that something needs to be said about it in this judgment, more so that the witness Clinton Nassif mentioned it during his testimony and it featured now an then during the evidence and/or cross-examination of other witnesses, notably, Minaar, the butler at Brett Kebble’s house and Dominic Ntsele, Brett’s image consultant.
[12] Assisted suicide has at times been confused with or equated to euthanasia. It is also generally accepted that euthanasia takes place within the medical or patient world where mostly a terminally ill patient either asks somebody, mostly a medical practitioner to help him/her out of his/her misery by administering to that patient a fatal dose of something or gives such patient medication or poisonous stuff for the latter to end his/her life. Euthanasia is also divided into active and passive euthanasia as well as voluntary and involuntary euthanasia.

[13] On the other hand, assisted suicide occurs when a person having emotional problems or stress requests another person to kill him by any means. Assisted suicide is described in other circles as a better test of the voluntariness of the choice to die or the patient’s resolve to end his/her life.
[14] Whereas euthanasia is believed to be practised within the patient world, albeit not so openly or with clear-cut lawful and/or legal authority, assisted suicide is still a very fluid situation in South Africa as well as in other parts of the world where countries are still trying to grapple with what it is or whether it should be permitted or not.
[15] In Great Britain the British Suicide Act, 1961 decrees that aiding, abetting and assisting suicide is punishable with a maximum of 14 years imprisonment. In Canada, The Canadian Penal Code – section 241, decrees that everyone who counsels a person to commit suicide or who aids, or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence, the penalty being 14 years imprisonment. The strict interpretation of this Act was relaxed in June 1995 when the Canadian Special Senate Select Committee on Euthanasia and Assisted Suicides recommended that the laws relating to assisted suicide and euthanasia be re-visited. What happened in practice was that the attitude towards assisted suicide was not relaxed but in relation to euthanasia the Canadian Parliament cautioned that voluntary euthanasia may be allowed under very special circumstances but care must be taken that adequate safeguards are put in place to ensure that the patient’s consent is given and received freely and voluntarily if it is practised.
[16] In Australia, the Australian Criminal Code makes assisted suicide punishable. In terms of that Code it is also a crime for a doctor to put poison in the hands of a patient well knowing that the patient may ingest it and if so ingested it may cause death.
[17] In the Netherlands the current position is that section 293 of the Dutch Criminal Code makes it an offence for any person to assist or aid another to commit suicide. However a Commission has been set up to investigate the need to legalise it and if so, under what circumstances.
[18] In the United States of America, until November 1994, assisted suicide was outlawed in all the States. However, in November 1994 the voters of the State of Oregon voted narrowly (51% to 49%) to allow it. Subsequent or pursuant to that vote the Death with Dignity Act was passed in Oregon allowing terminally ill people to obtain a doctor’s prescription for a fatal drug dosage to end their lives. The doctor however was not permitted to administer the dosage. If he/she did so, he/she was liable or culpable. This Act was challenged in the Federal District Court of Oregon the same year and its use was suspended pending a rule on its constitutionality. In 1995 the US Federal Court of Oregon State ruled this Act to be unconstitutional and a permanent injunction against its use granted. An appeal against this ruling to the US Court of Appeals for the North Circuit was dismissed. As such, until further notice euthanasia and assisted suicide is still a crime in the USA.
[19] In South Africa the situation is still fluid and confusing. Different functionaries have differing views about euthanasia especially as well as assisted suicide. Civil society of times holds views opposed by the religious adherents who in turn are wont to differ inter se.
[20] Our courts have also in the past sent out inconsistent views in contradictory judgments about assisted suicide and euthanasia. When one traces the development of this phenomenon the confusion increases. The initial view was that a person who knowingly supplied any drugs to a patient for use in a suicide or who hands another a weapon to kill himself/herself was guilty of an offence. However, other courts gave verdicts that were inimical to the above view. For example –


    1. In R v Peveret 1940 AD 213 the accused therein concluded a suicide pact with his mistress – a Mrs Saunders. They both sat inside a car whose doors and windows were closed. Peveret introduced the exhaust fumes of the car, whose engine was running, into the interior through a hosepipe. They were later discovered inside, unconscious. Fortunately they did not die. Peveret was found guilty of attempted murder of Mrs Saunders. His conviction was confirmed on appeal.




    1. The opposite view was expressed in R v Nbakwa 1956 (2) SA 557 (SR) wherein a man living according to the old style customs and traditions of his tribe in Zimbabwe suspected his own mother of having caused the death of his child by occult means. When he confronted her his mother requested him to kill her. She was sickly. Nbakwa entered her hut where she lay, tied a rope to a rafter in the hut and also fashioned a noose at the rope’s other end. He then told his mother to hang herself. She asked him to lift her up and give her something to stand on. He propped up a block of wood under the noose. His mother put the noose around her neck, kicked away the block of wood and started hanging until she died while Nbakwa stood there watching. Nbakwa was acquitted of murder in his eventual trial, the court finding that there was no chain of causation between Nbakwa’s act and his mother’s subsequent death. The court ruled that the mother killed herself. The court also refused to convict Nbakwa of attempted murder which was a competent verdict. Beadle J reasoned as follows:


The accused did not actually kill the deceased himself, but if his acts could be construed as an attempt to do so … In my view the acts of the accused … do not go far enough to constitute an attempt; they go no further than what are commonly called acts of preparation. The accused provided a means for causing death and he persuaded the woman to kill herself, but the actual act which caused the death of the woman was the act of the woman herself. There was, to use a common legal expression, a novus actus interveniens between the actions of the accused and the death of the deceased …
I come to the conclusion, therefore, that the accused's acts did not go far enough to constitute an attempt to murder; at most his acts went no further than acts of preparation.



    1. The above rationale in


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