55 In the result on count 1 in the indictment the accused ought to have been

55 in the result on count 1 in the indictment the

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[55]In the result, on count 1 in the indictment the accused ought to have been found guilty of murder on the basisthat he had fired the fatal shots with criminal intent in the form ofdolus eventualis. As a result of the errors of lawreferred to, and on a proper appraisal of the facts, he ought to have been convicted not of culpable homicide onthat count but of murder. In the interests of justice the conviction and the sentence imposed in respect thereofmust be set aside and the conviction substituted with a conviction of the correct offence.[56]Of course the accused has now served a portion of the sentence imposed upon him in respect of the lesseroffence of culpable homicide. But the issue of what would be an appropriate sentence was not debated before thisCourt, quite properly, particularly in the light of the Constitutional Court's judgments inNabolisa32andBogaards33as the matter must be sent back to the trial court forPage 31 of [2016] JOL 34806 (SCA)sentence to be imposed afresh. In doing so, obviously whatever punishment has already been served by theaccused in respect of the incorrect conviction of culpable homicide will be taken into account.[57]Before closing, it is necessary to make a final comment. The trial was conducted in the glare of internationalattention and the focus of television cameras which must have added to the inherently heavy rigors that arebrought to bear upon trial courts in conducting lengthy and complicated trials. The trial judge conducted the hearingwith a degree of dignity and patience that is a credit to the judiciary. The fact that this Court has determined thatcertain mistakes were made should not be seen as an adverse comment upon her competence and ability. The factis that different judges reach different conclusions and, in the light of an appeal structure, those of the appellatecourt prevail. But the fact that the appeal has succeeded is not to be regarded as a slight upon the trial judge whois to be congratulated for the manner in which she conducted the proceedings.[58]The following order is made:1.The first two questions of law reserved are answered in favour of the Director of Public Prosecutions.2.The accused's conviction and sentence on count 1 are set aside and replaced with the following:
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"Guilty of murder with the accused having had criminal intent in the form ofdolus eventualis."3.The matter is referred back to the trial court to consider an appropriate sentence afresh in the light of thecomments in this judgment.(Mpati P, Mhlantla, Majiedt JJA and Baartman AJA concurred in the judgment of Leach JA.)Footnotes1The reference to the Appellate Division in the section must for present purposes be taken as an appeal to this Court.
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  • Fall '18
  • Trial court, SCA

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