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Once an alibi has been raised, the alibi has to be accepted, unless it can be proven as false beyond a reasonable doubt - (01 Dec 2022)

Criminal

On 3 July 2016, in the early evening at approximately 18h00, a group of men arrived at the Mall of Africa taxi rank in Midrand in a white VW Polo motor vehicle and fired gunshots at the taxi drivers/owners who were waiting to load passengers. The Appellant was alleged to be amongst the four occupants of that VW Polo and was the one who purportedly fired gunshots at the witnesses and the deceased. The state witnesses testified that the appellant was the one who fired gunshots at them and that they were certain about his identity, as they were not seeing him for the first time on the day of the shooting. The Appellant pleaded not guilty to all the charges and proffered a plea explanation of an alibi, contending that he was nowhere near the scene of crime on the day as alleged, but was at his home with his girlfriend. He was convicted on all counts as charged and, effectively, the appellant was to serve a term of life imprisonment.

The issues to be decided in the appeal were whether the witnesses’ identification of the Appellant was credible and reliable; whether the Appellant’s alibi and his denial of complicity in the commission of the offences were true.

The court below ought to have entertained serious reservations as to the reliability of the identification of the appellant as the perpetrator, especially where the identifying witnesses had initially indicated their inability to identify the perpetrator. Their bald statements that the appellant was the person who committed the crime was not enough. The state witnesses’ credibility was destroyed when they admitted to knowing the appellant as well as 2 his name prior to the incident on 3 July 2016 and yet failed to disclose his identity at the earliest opportunity to the police. That, in the SCA’s view, was fatal to the State’s case. The SCA found further that there was no justification for the rejection by the trial and the full court of the appellant’s alibi, purely from the alleged failure to disclose the presence of the tracking device in the appellant’s vehicle. The appellant had disclosed his defence timeously. There was no duty on him to prove his alibi.

The SCA found that in the light of the uncontroverted evidence that the police had knowledge of the fact that a white VW Polo was involved and that the Appellant owned a white VW Polo, it was then incumbent upon them to properly investigate this aspect so as to exclude the appellant’s alibi defence. Moreover, they were informed about this tracking device, yet they did nothing to investigate this aspect. This Court in Musiker v S, held that once an alibi has been raised, the alibi has to be accepted, unless it can be proven that it is false beyond a reasonable doubt. Accordingly, the State failed to discharge the burden of proof beyond reasonable doubt that the appellant was the one who fired gunshots at the deceased and the witnesses. There was, thus, no justification for rejecting the appellant’s alibi. It also could not be said that the Appellant’s alibi was not reasonably possibly true. The accused had to be given the benefit of doubt and the appeal succeeded.

Tags : CHARGES   CONVICTION   LEGALITY  

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