IN THE HIGH COURT OF SWAZILAND
Crim. Case No. 115/93
In the matter between:
CORAM : Hull, CJ.
FOR CROWN Mr. Nduma
FOR ACCUSED Mr. Lukhele
The accused Elliot Johnson is charged on this indictment with the attempted murder of his nephew Richard Johnson on 5th April, 1993, at Sicunusa.
He has pleaded not guilty to the charge.
The nature of the allegation is that the accused first pointed and then fired a shotgun at his nephew in the course of an altercation.
On the evidence there is a measure of common ground as to the course of events that led up to the incident.
Richard 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 homestead.
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 dipping tank.
Shortly 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.
what 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 and 3).
The 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.
In 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.
In 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.
The 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 first
pointed 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 murder.
I am not satisfied beyond reasonable doubt that the Crown has proved this charge.
During 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.
The 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 unlawfully.
There 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
accused 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.
This 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.
The 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.
In 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.
As 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.
The 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 downwards.
I 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.
The 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.
Nevertheless, 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
to 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 attempted murder.
There 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.
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.
The 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.
Milton 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.
There 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.