WHEREAS the accused persons were found not guilty of the murder of Shanon Wasserfall, the High Court discussed the applicable legal principles and evidence relating to murder as follows:
Discussion – Count 1 – Murder
‘[86] …the state’s case on the murder charge primarily rests entirely on the testimony of accused 1. As admitted by the accused, she made false statements in an attempt to explain the deceased’s disappearance, and to divert attention away from her. In the state’s view, this makes her the proverbial ‘self-confessed liar’.’
The problem for the state with its reasoning is that, if the evidence of accused 1 on this score is rejected as false, then the entire state’s case on the murder charge equally plunges into falsehood as no other evidence was presented from which the alleged criminality of accused 1’s actions could remotely be inferred. In the absence of evidence other than that of accused 1
which, as argued by the state, must be rejected, the court would be required to speculate in vacua on possible circumstances which could or might have caused the deceased’s death. To do so is obviously impermissible…Both accused in the present matter testified in their defence. The approach proposed by the state is to selectively accept as truthful some parts of the defence’s evidence favourable to the state’s case – including their confessed false extra-curial statements and contradictions – from which the court is then required to draw inferences to prove the accused’s criminal responsibility. But, at the same time, to disregard their evidence as false and reject it.
There is no basis in law that would justify a selective acceptance or rejection of the same witness’s evidence in the absence of other compelling evidence justifying such course…in this instance, there is no aliunde evidence that either corroborates or refutes the evidence of accused 1 on the interaction between her and the deceased. To this end, the testimony of accused 1 stands unchallenged.
Although the accused persons’ offering of false information in their extra-curial statements pertaining to crimes they stand charged with would, in itself, be sufficient reason to approach their evidence with a measure of caution, there would be no legal basis for rejecting it entirely. The Latin maxim of falsus in uno falsus in omnibus finds no application in our law. This means that the testimonies of the accused persons cannot be made out as being untruthful merely because of false statements made by each in the past…The court at the same time must equally consider the corroborative evidence of accused 2 as regards certain aspects of accused 1’s evidence, albeit to show some form of consistency in her narrative shortly after the incident of what happened. It then seems settled that the criminal responsibility of the accused persons will primarily turn on their own evidence.
‘[90]The undisputed evidence is that the deceased’s death was consequential to a physical altercation between her and accused 1. Accused 1 maintained her position that she did not assault the deceased in any manner other than pushing her away from her during the ongoing struggle. In doing so, she had no intent to kill or did she foresee that pushing the deceased under these circumstances could likely result in death. It is, however, not in dispute that there is a causal link between the final push causing the deceased to fall over and her ensuing death. The cause of her death however, to this day, remains unknown.
[91]In deciding whether the final push is culpable, the following surrounding circumstances are taken into account: The physical altercation was started by the deceased, who first started pushing the accused, and she then reacted by pushing her back. This was followed by further pushing between the two, which does not appear to have been serious or violent. The situation was one of two friends disagreeing and neither wanting to budge; even when it became physical. It would thus appear that this was not an instance where accused 1 came under attack and acted in self-defence; neither was it raised in her defence. The state’s argument that the complainant during the altercation – when moving from the lounge/kitchen area into the bedroom – should have ‘fled’ the scene to find help, in my view, ignores the existence of a friendly relationship between them and exaggerates the nature of the altercation. Another fact is that both girls consumed liquor during the day, prompting accused 1 to realise that both of them actually had too much to drink, a factor which probably impacted on the mindset and actions of both.
[92]In light of the cause of death not having been determined, it cannot be said that the act of pushing, per se, was of such serious nature that it caused the deceased’s death. There is simply no evidence proving that the force used to push the deceased away and her falling onto the bed was such that the accused must have foreseen her ensuing death.
[93] The state’s contention that a conviction for murder may still follow where the cause of death was undetermined, is based on the fact that the deceased was buried (and therefore must have been dead). It was not submitted that the deceased was still alive when buried; neither is there evidence to that effect…Counsel for the defence countered by pointing out that in each of those cases referred to by the state, the court was able to deduce from the proved facts that the death of the victim was consequential to an unlawful act by the accused.
[94]Although a court in principle may convict an accused for murder in circumstances where the cause of death is undetermined, the elements of the offence must still be proved to wit: (a) causing the death (b) of another person (c) unlawfully and (d) intentionally.’
State v Orina CC12/2010 (NAHCNLD) delivered on 28 April 2011, S v Pieterson CC 12/2019 delivered on 20 April 2021, and S v M A Case no 082/2017 delivered on 19 December 2018 (Gauteng Local Division).
[98]Based on the facts of each, the above-stated cases are clearly distinguishable from the present matter in that in each of these cases, the circumstantial evidence was such that the court could infer from the established facts that the victim died as a result of an intentional, unlawful act on the part of the accused.
[99]In the present instance, there is no clear evidence from which the court could justifiably infer that the killing of the deceased was intentional. The state submits that the intention of accused 1 could be inferred from her feeling of guilt and the accused persons’ actions subsequent to the passing of the deceased by keeping it a secret, and by getting rid of the body. For the court to draw this inference, it must be satisfied that the cardinal principles as set out in R v Blom 1939 AD 188 have been met i.e. firstly, that the inference sought to be drawn is consistent with all the proved facts. Secondly, the inference drawn must be the only inference to be drawn and exclude every other reasonable inference from the one sought to be drawn.
Accused 1 testified that she was shocked when she realised that the deceased was dead after falling onto the floor and went into a panic, calling on the assistance of her brother. The evidence is that she was not in a clear state of mind, and simply accepted culpability. Also that she acted irrationally by fearing that she would not be believed when saying that it was an accident, and would be arrested if the body were to be discovered in her flat.
‘[101] It appears to me that the circumstances that led to the death of the deceased could be described as a freak accident, and not something accused 1 could likely have foreseen. Her reaction thereto appears to be reasonable in the circumstances and, as admitted, prompted the making of wrong decisions to keep it a secret and to rather dispose of the body. When applying the principles set out in Blom to these facts, I am not convinced that the only inference reasonably to be drawn is that accused 1 unlawfully and intentionally killed the deceased. Thus, I am not persuaded that the accused persons’ actions and intent after the passing of the deceased translates into proof that accused 1 acted with intent to kill.’
On the same basis, neither does the evidence support a finding that accused 1 should reasonably have foreseen the possibility of the deceased’s ensuing death when pushing her away when bitten on her finger. Her actions could therefore neither be found to have been negligent. As regards the competent verdicts to murder, there is no evidence from which it may be inferred that the accused either acted with the intent to cause grievous bodily harm or common assault.
In the absence of evidence to the contrary, it seems to me that this is an instance where there is a reasonable possibility that the version of accused 1 may be substantially true, and that the state failed to prove beyond reasonable doubt the charge of murder against accused 1, or any of the competent verdicts as provided for in s 258 of the CPA.
With regards to accused 2 being charged with the same offence of murder, having acted with common purpose with accused 1, there is no evidence that either proves his presence or involvement in the incident that led to the death of the deceased. Divergent arguments were advanced in this regard by both sides. When deciding whether accused 2 was an accessory after the fact to murder, based on his assistance to accused 1 to dispose of the body, his culpability depends on (a) whether a crime was committed by accused 1; (b) his knowledge about it at the time; and (c) notwithstanding, assisting her to escape justice.
CR Snyman Criminal Law Sixth edition at 437, on the liability of an accessory after the fact, states that ‘There can only be an accessory after the fact if somebody else has committed the crime as perpetrator’. The court having found that accused 1 was not liable for the death of the deceased, it then follows that the principle of an accessory after the fact finds no application as regards accused 2. Consequently, the guilt of both accused on the charge of murder has not been proved beyond reasonable doubt, and they stand to be acquitted.
As a result, both accused persons were found not guilty on the count of murder and were discharged.
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