THE HIGH COURT OF SWAZILAND
Case No. 115/93
the matter between:
CROWN Mr. Nduma
ACCUSED Mr. Lukhele
accused Elliot Johnson is charged on this indictment with the
attempted murder of his nephew Richard Johnson on 5th April, 1993, at
has pleaded not guilty to the charge.
nature of the allegation is that the accused first pointed and then
fired a shotgun at his nephew in the course of an altercation.
the evidence there is a measure of common ground as to the course of
events that led up to the incident.
Johnson, accompanied by his relative Leonard Johnson and others, were
driving cattle from their homestead to a dipping tank on a dipping
day. As they did so, the accused, his brothers Shadrack and Milton
and two younger persons came upon them. They began to follow them
towards the dipping tank. At a certain point, however, Richard's
party turned and began to drive the animals back again towards the
accused then got out of his vehicle and claimed certain of the beasts
as his own. He separated them and began to drive them towards the
after this, Richard's party stopped him from proceeding. They in turn
sought to drive those animals back to the herd. A confrontation
occurred. In the course of it, the accused fired his shotgun. One
shot only was fired and neither Richard nor anyone else was injured.
happened after that was not covered to any real extent in the
evidence but it is clear that the incident, so far as it has led to
these criminal proceedings, ended with the firing of the shotgun. It
is however pertinent to add that the accused, when subsequently
warned to attend a police station, did so voluntarily, taking and
surrendering the shotgun (produced by consent as Exhibit 1), his
licence for it, and two stock removal permits (produced as Exhibits 2
Crown bears the onus of proving the charge and of doing so beyond
reasonable doubt. So that everyone understands what that means, here,
the Court's duty is to convict the accused if the Court is sure that
the charge is proved but to acquit him either if it is not sure or if
it does not believe the allegation.
order to prove the charge, the Crown must prove either that the
accused fired the weapon at Richard Johnson actually intending to
kill him or alternatively - which is sufficient in law that he fired
at Richard intentionally, appreciating that there was a risk that he
might thereby kill him but nevertheless firing recklessly, i.e. not
caring whether or not he did kill him.
addition to proving the necessary intention, the Crown must also
prove that he was acting unlawfully. In particular it must negative
any reasonable possibility that he was acting in private defence.
Crown' s case is that the accused was the instigator of the
confrontation - in other words that he was the aggressor throughout
-and that in the course of it he threatened to shoot and, having
his gun at Leonard Johnson, then pointed it deliberately at Richard
Johnson at a distance of some three and a half or four metres, and
then fired at him. If that were so, it could be readily inferred
(subject to the issue of unlawfulness) from his action that he
attempted to murder him because to fire at a person in those
circumstances with a shotgun is as a matter of fact undoubtedly an
extremely dangerous thing to do. It could be inferred readily, from
such an act, that the person firing the weapon intended actually to
kill him or, in any event, that the necessary degree of appreciation
and recklessness existed to sustain a conviction for attempted
am not satisfied beyond reasonable doubt that the Crown has proved
the course of the trial, evidence was led by the Crown, and opposing
evidence was subsequently led by the defence, as to the merits of the
admitted dispute over the rights to the cattle of the accused and of
the persons on whose behalf Richard Johnson and his companions were
driving them towards the dipping tank.
real issues in the case are not the ownership of the cattle as such
but the intention and lawfulness of the action of the accused in
discharging the shotgun. The alleged merits of the dispute might, it
appeared to me, be relevant to the credibility of the conflicting
accounts of the witnesses for the two sides. In his closing
submissions, Crown Counsel went further, contending that the evidence
in that regard supported its case by showing that the accused had no
right to the cattle he claimed, and showing further that because of
that he had a motive for unlawfully attacking Richard Johnson.
Counsel did not expressly describe the motive but I took him to be
saying, clearly enough, that it was to gain possession of the cattle
are however in my view certain improbabilities in the way in which
this alleged motive was advanced. Crown Counsel submitted that the
accused had deliberately waylaid Richard Johnson's party away -"far
away" to use his words - from the homestead from which the party
had come, on the way to the dipping tank. He also submitted that the
had taken his shotgun with him in the first place in order to obtain
the cattle by force. None of this was put in terms to the accused or
his brother Milton, who also gave evidence for the defence. There was
no evidence that the incident occurred "far away" from the
homestead. On the other hand the accused testified that he had
arranged, on an earlier occasion at the dipping tank, to take the
cattle from the persons in whose care they were. He and Milton
Johnson also gave evidence that on 5th April they had gone to the
dipping tent itself and waited there for a time, intending to obtain
the animals there when the cattle arrived. There was also evidence
that the transfer was to have been effected thereof under the
auspices of a veterinary assistant. The defence witnesses also said
that when after a time, the cattle did not arrive, they then drove
towards the homestead to look for them and that it was in this way
that they met Richard Johnson's party.
evidence was uncontradicted. I cannot say that I found the accused to
be obviously uncreditworthy or his account in these respects
implausible. If he had intended, initially, to obtain the cattle at
the dipping tank on dipping day, then it seems to me to be very
unlikely that he would have brought his shotgun along for the purpose
of ensuring that he did so. It seems to me improbable too that if he
knew he had no right to the cattle, he would have chosen to dipping
tank as the place at which he would claim them.
evidence of the defence witnesses was that when they came upon
Richard Johnson's party they greeted them and then turned and, in
their vehicle, followed them for a time toward the dipping tank. The
prosecution witnesses agreed that they greeted each other.
the course of the evidence, the reasons why Richard Johnson' s party
eventually turned back were not really explained. I am left with the
impression that in this family dispute, more may have occurred along
the way than was brought out by either side at the trial. There was
some evidence that there had been previous differences within the
family over cattle, and that may have had something to do with it.
But that is to speculate.
far as the shooting incident itself is concerned, there is a conflict
of evidence. Richard and Leonard said that the accused, having
threatened them, first pointed the gun at Leonard, and then aimed it
at Richard and then fired once at him. Leornard was also saying,
however, that at the moment of firing he heard the explosion rather
than that he actually saw at that point where the accused was
pointing the gun.
accused said that he fired it to one side of Richard. He admitted
that he meant to scare Richard. Milton said that he fired it
am not satisfied, on the issue of intention itself, that the accused
had the necessary mens rea (i.e. intention) for attempted murder. He
did not hit Richard at all, even though he fired at close quarters.
He only fired one shot. The weapon is a double-barrelled shotgun. He
testified that there were cartridges in it at the time. There is no
evidence that he persisted in his action after the shot was fired or
against any of Richard's companions.
fact that a person only fires one shot at another person, even if his
gun does hold more than one cartridge, does not necessarily mean that
he is not guilty of attempted murder. He may have acted impetuously
and then immediately thought better of it. The fact that he misses at
short range, even with a shotgun, does not necessarily exonerate him
either. The Detective Inspector who gave evidence for the Crown, and
who was familiar from professional experience with shotguns,
testified both that at close range the cluster of shotgun pellets
would still be compact and that a person might well miss another if
his aim were unsteady, as for example if the gun were not properly
held. The evidence for the prosecution was that the accused fired
more or less from just above the hip.
the accused did not strike me as a person of obviously aggressive
disposition. He seemed to me to be a man of some maturity. The
complainant is his nephew. In all the circumstances, and taking into
account that he did not in fact hit Richard and did not press his
actions, I am not satisfied so that I am sure that his own version as
where he aimed the gun is untrue, and I am not satisfied that he had
the actual or legal intention necessary to sustain a charge of
is however a question as to whether he was guilty of the lesser
criminal act of common assault. Under the Criminal Procedure and
Evidence Act 1938, that is a competent alternative verdict if the
evidence substantiates it.
is a more difficult question. A person assaults another, inter alia,
if he unlawfully and intentionally inspires a belief in that other
person that force is about to be applied to him. Mr. Lukhele
submitted that there was here no express evidence that Richard had
that belief, but with great respect, it can in my view be clearly
inferred from the evidence that he must have done so.
accused's own evidence, and that of Milton Johnson, was that in the
course of the incident, Richard Johnson and the other men in his
group, who were armed with knob sticks, began to advance
threateningly on the accused. At that stage he was unarmed, except
for a stick with which he had been driving the cattle. He said that
he retreated towards his vehicle and took out his shotgun to defend
himself. He could not drive away because Shadrack, who had been
driving, was some distance away from the vehicle. He continued to
retreat until he backed up into a small culvert, and it was at that
point that he used the shotgun defensively.
told a similar story. Richard and Leonard Johnson contradicted this .
They said they had only been carrying whips, and that they had not
threatened to assault the accused.
are aspects of the defence's version of events that I do find rather
improbable. Once the accused reached his vehicle and took out his
shotgun, he might well on his own version have made his stand then
and there. It also seems to me rather unlikely, if Shadrack were
indeed the driver, that he would have left the vehicle to help drive
the cattle back towards the dipping station. It seems to me, too, a
little unlikely that the keys would not been left in the vehicle.