The Doctrine of Common Purpose Does not Apply to Criminal Conduct Consisting only of Circumstance Crimes
December 18, 2017
Makhubela v The State; Matjeke v The State
The Constitutional Court of South Africa
Cases CCT 216/15 and 221/16
Mogoeng CJ, Nkabinde ADCJ, Cameron, Froneman, Jafta, Khampepe, Madlanga, Mhlantla, Zondo JJ and Mojapelo, Pretorius AJJ
September 29, 2017
Reported by Linda Awuor & Faith Wanjiku
Evidence Law-hearsay evidence-extra-curial admissions-admissibility of extra-curial admissions on the basis of the doctrine of common purpose-whether there was sufficient evidence outside the extra-curial statements made by the Applicants’ co-accused to warrant their convictions for the offences of murder, robbery with aggravating circumstances and unlawful possession of firearms and ammunition in accordance with the doctrine of common purpose-Law of Evidence Amendment Act, 1988, section 3 (1) (c)
The Applicants (Matjeke and Makhubela), who were the 1st and 3rd Accused respectively in the Trial Court, and their 5 co-accused, were convicted of the murder of a police officer, robbery with aggravating circumstances and unlawful possession of firearms and ammunition. After their arrests, some of the accused persons, including the Applicants in the matter, had made out-of-court statements which were incriminating. A trial-within-a-trial was held in order to determine the veracity of those statements. At the end of the trial-within-a-trial, the statements were admitted as evidence and were held to be admissible against those who made them and the other accused persons who were incriminated by the statements.
They were sentenced to life imprisonment for murder, 15 years’ imprisonment for robbery and six years’ imprisonment for possession of firearms and ammunition. Those convictions were based on the doctrine of common purpose. The two Applicants then sought leave to appeal against an order of the High Court of South Africa, North West Division, Mahikeng (Full Court). The Full Court dismissed their appeal against their convictions and sentences. They then proceeded to the Supreme Court of Appeal for an application for leave to appeal against the decision of the Full Court. Those applications were also dismissed. They filed an application before the Constitutional Court for grant of leave to appeal to have their convictions quashed based on the doctrine of common purpose.
i. Whether there was sufficient evidence outside the extra-curial statements made by the Applicants’ co-accused to warrant their convictionsfor the offences of murder, robbery with aggravating circumstances and unlawful possession of firearms and ammunition in accordance with the doctrine of common purpose under section 3 (1) (c) of the Law of Evidence Amendment Act.
ii. Whether the Applicants could be granted condonation for late filing of their Appeals.
iii. Whether it was in the interests of justice to grant the Applicants leave to appeal at the Constitutional Court.
Relevant Provisions of the Law
Law of Evidence Amendment Act, 1988
Section 3-Hearsay evidence
(1) Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless-
(a) each party against whom the evidence is to be adduced agrees to the admission thereof as evidence at such proceedings;
(b) the person upon whose credibility the probative value of such evidence depends, himself testifies at such proceedings; or
(c) the court, having regard to —
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends;
(vi) any prejudice to a party which the admission of such evidence might entail; and
(vii) any other factor which should in the opinion of the court be taken into account, is of the opinion that such evidence should be admitted in the interests of justice.
- An Applicant seeking condonation for the late filing of his application had to provide a full explanation for the non-compliance with the Court’s Rules. That included a reasonable explanation for the delay before the Court could grant condonation. The explanation for the delay provided by both Applicants was not satisfactory. However, it had to be borne in mind that they were sentenced prisoners and that it was not easy for them to access the services of a legal representative. The 3rd Accused even attempted to seek assistance from the Legal Aid Board but without success.
- Another factor to be considered was whether it would be in the interests of justice to grant condonation. Notwithstanding the paucity of the explanation for the delay, it would be in the interests of justice to grant condonation. The State would not suffer any prejudice if condonation was granted. Condonation was therefore granted.
- The Court, in S v Mhlongo, granted leave to appeal to two people who had been convicted of murder in respect of the same incident that was the subject of the present applications. In S v Molaudzi, the Court granted leave to a 3rd Accused convicted in the trial, and the Court granted leave to a 4th Accused in S v Khanye. The 4 appeals were upheld and the Accused in question were released from prison. The Applicants were their co-accused. It was in the interests of justice that leave to appeal be granted and that the Court entertains their cases.
- The matter concerned the proper application of the doctrine of common purpose. The doctrine of common purpose involved the attribution of criminal liability to a person who undertook jointly with another person or persons to commit a crime, even though only one of the parties to the undertaking may have committed the criminal conduct itself. Its effect was therefore far-reaching, and implicated the constitutional rights of freedom of the person and the right to a fair trial, including the right to be presumed innocent.
- The Supreme Court of Appeal in S v Mgedezi held that operation of the doctrine of common purpose did not require each participant to know or foresee in detail the exact manner in which the unlawful act and consequence would occur but:
(i) He had to have been present at the scene where the violence was being committed.
(ii) He had to have been aware of the assault on the inmates.
(iii) He had to have intended to have common cause with those who were actually perpetrating the assault.
(iv)He had to have manifested his sharing of a common purpose with the perpetrators of the assault by himself performing some act of association with the conduct of others.
(v) He had to have had the requisite mens rea.
- If the prosecution relied on common purpose, it had to prove beyond a reasonable doubt that each accused had the requisite mens rea concerning the unlawful outcome at the time the offence was committed. That meant that he must have intended that criminal result or must have foreseen the possibility of the criminal result ensuing and he nonetheless actively associated recklessly as to whether the result was to ensue.
- The most critical requirement of active association was to curb too wide a liability. Current jurisprudence made it clear that:
(i) There had to be a close proximity in fact between the conduct considered to be active association and the result.
(ii) Such active association had to be significant and not a limited participation removed from the actual execution of the crime.
- The evidence showed that the requirements for a conviction on the basis of common purpose had been met in relation to the charge of armed robbery. It was clear that the Applicants were present at the scene of the crime and were aware of the armed robbery. They, therefore, made common cause with those committing the armed robbery. The Applicants manifested their sharing of a common purpose with the perpetrators of the armed robbery by performing an act of association with the conduct of the others in the form of travelling with them to and away from the scene of the crime, and they had the requisite mens rea to commit the armed robbery. It followed that their convictions in respect of the robbery charge had to stand.
- The same applied in the case of the murder charge. On the issue of mens rea in the case of the murder charge, the requirement that the Accused must have had the requisite mens rea had been met. The Applicants may not have intended the criminal result of murder, but they must have foreseen the possibility of the criminal result of murder ensuing. That was by virtue of the fact that the other perpetrators were carrying firearms, which they must have known would be used if the plan went awry, yet they nonetheless actively associated themselves with the criminal acts. It followed that their convictions in respect of the murder charge had to also stand. The Appeal against those convictions failed.
- In convicting the Applicants for unlawful possession of firearms and ammunition on the basis of the doctrine of common purpose, the Trial Court departed from settled jurisprudence. The test for establishing liability for the possession of firearms and ammunition was established in S v Nkosi. The issues which arose in deciding whether the group (and hence the Appellant) possessed the guns had to be decided with reference to the answer to the question whether the State had established facts from which it could properly be inferred by a Court that:
(i) the group had the intention (animus) to exercise possession of the guns through the actual detentor
(ii) the actual detentors had the intention to hold the guns on behalf of the group
Only if both requirements were fulfilled could there be joint possession involving the group as a whole and the detentors, or common purpose between the members of the group to possess all the guns.
- The test took into account the fact that the application of the doctrine of common purpose differed in relation to consequence crimes, such as murder, and in relation to circumstance crimes, such as possession. The common-purpose rule was invoked in the context of consequence crimes in order to overcome prosecutorial problems of proving the normal causal contribution between the conduct of each and every participant and the unlawful consequence. Strictly speaking, the rule had no application in the context of criminal conduct consisting only of circumstances.
- Unlawful possession of a firearm was punished under section 2 of the Firearms Control Act. Unlawful possession of a firearm was a circumstance (or state of affairs) crime, that possession had to be personal or joint and that it was not enough to establish joint possession that the firearm was possessed by only one member in a criminal group in furtherance of a criminal purpose with others. A common intention to possess a firearm intentionally could only be inferred when the group had the intention (animus) to exercise possession of the firearm through the actual detentor and the actual detentor had the intention to hold the firearm on behalf of the group. The test had been followed in a number of Supreme Court of Appeal cases.
- The mere fact that an Appellant conspired with his co-perpetrators to commit robbery and was aware that some of them were armed with firearms in order to commit the robbery did not lead to the inference that he possessed such firearms jointly with his co-accused. On the basis of those authorities it appeared that the magistrate erred in his approach to the issue before him. He decided that because all of the Accused knew that one of them possessed a firearm and all were in agreement that it should be used in the robbery, all of them were joint possessors. There was no evidence to show who had physical possession of the firearm, so it could not be established whether the actual possessor had the intention to possess it on behalf of the group. There was also no evidence from which it could be inferred that the members of the group intended to possess the firearm jointly with the unknown physical possessor.
- There would be very few factual scenarios which met the requirements to establish joint possession set out in Nkosi. That was because of the difficulty inherent in proving that the possessor had the intention of possessing a firearm on behalf of a group. It was clear that, according to established precedent, awareness alone was not sufficient to establish intention of jointly possessing a firearm or the intention of holding a firearm on behalf of another in the law. There was no evidence from which it could be inferred that the Applicants had the intention to exercise possession of the firearms through the perpetrators who had firearms in their possession, or that those persons had the intention to hold the firearms on behalf of all of the co-accused. It followed that the fact that the Applicants conspired with others to commit armed robbery, even if they were aware that some of their co-accused possessed firearms, did not lead to the conclusion beyond reasonable doubt that they possessed the firearms jointly with their co-accused.
- There was insufficient factual basis to sustain the conviction of unlawful possession of firearms and ammunition on the basis of the doctrine of common purpose. The Trial Court erred in finding the Applicants guilty on those counts. It followed that the convictions in respect of the unlawful possession of the firearms and ammunition could not stand and had to be set aside. The appeal against those convictions (counts 4 and 5) therefore succeeded, though given the life sentences meted out for murder that had no practical effect on the Applicants’ incarceration.
Appeals partially allowed.
On appeal from the Full Court of the High Court of South Africa, North West Division, Mahikeng:
i. Condonation was granted.
ii. Leave to appeal was granted.
iii. The order of the High Court of South Africa, North West Division, Mahikeng was set aside only to the extent set out below:
(a) The Appeal by the Applicants against their convictions on counts 4 and 5 was upheld.
(b) Their convictions and sentences on those counts were set aside.
Relevance to the Kenyan Situation
The Penal Code, Cap 63 Laws of Kenya provides for joint offenders in prosecution of common purpose in section 21. It goes ahead to state that when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
The Evidence Act, Cap 80 Laws of Kenya provides forstatements and actions referring to common intention in section 10. It provides that where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.
There has also been case law regarding common intention based on criminal activity. In Roba Galma Wario v Republic  the Court echoed as was held in Dickson Mwangi Munene & Another  that for common intention to be proved, one had to show:
i. criminal intention to commit the offence jointly with others;
ii. the act by one or more of the perpetrators in respect of which it is sought to hold an accused guilty, even though it was outside the common design, was a natural and foreseeable consequence of effecting that common purpose; and
iii. that the parties were aware of that when they agreed to participate in the criminal act.
In R v Tabulayenka s/o Kirya  it was held that the common intention may be inferred from their presence, their actions and the omission of either of them to disassociate himself from the assault.
In Antony Muchai Kibuika v Republic , the Court stated section 21 of the Penal Code on common intention and also stated as was provided in Wanjiro d/o Wamario versus republic 22 EACA by theEastern African Court of Appeal that the doctrine of common intention generally implied a premeditated plan but that did not rule out the possibility of a common intention developing in the course of events though it might not have been present to start with.
The above South African case will be an important precedent in establishing the doctrine of common purpose in criminal conduct through extra-curial statements by co-accused against each otherin Kenyan case law.