Judge: We are now dealing with count 3, the summary of the evidence. In January 2013, the accused went to lunch with friends. A firearm was handed to the accused. A shot went off and the bullet narrowing missed his friend. The state called two witnesses Mr. Fresco and Samantha Taylor.
I will have to rephrase, I am talking about count 2.
On a separate occasion, the accused fired a shot through a sunroof while travelling on a public road. The state calls two witnesses in this matter. Darren Fresco and ex-girlfriend Samantha Taylor, both these witnesses were present in the vehicle.
Fresco was the driver at the time. They were pulled off by the police. The officer saw a firearm in the vehicle. He asked whose firearm it was. While the officer picked the firearm up, he discharged a bullet. The accused then approached the vehicle and the officer and there was a verbal altercation.
When they drove off from the officers, the accused and Mr. Fresco laughed about the incident and discussed whether they should shot at robots. Without warning the accused took out his firearm and fired a shot into the air through a sunroof of the vehicle.
The version of Fresco was that he was very angry at what the accused had done. The accused also denied that he had fired a shot through the sunroof.
It was confirmed that they were stopped twice for speeding.
The assessment of the evidence on count 2 was that it was pointed out by the defense that both the witnesses had contradicted their statements. The state counsel disagreed submitting that there was no reason why Fresco or Taylor would want to do this.
Both Fresco and Taylor gave evidence implicating the accused, that he fired a shot through the sunroof. However that is where the similarities ended. Their versions on the incident as to how, where and why it happened were so irregular.
Fresco was not an impressive witness at all; in fact he was proved to be a dishonest witness. Caution is warranted. In this case, however there is more reason for caution. Fresco could not with certainty say where the incident happened.
Taylor was a former girlfriend of the accused. It is common cause that the relationship did not end amicably. It was clear from the evidence that she gave. It does however not mean that she was out to harm the accused.
According to Taylor after they had left the scene where they had been stopped by the police, Fresco and the accused talked about shooting at a robot. Then out of the blue the accused simply shot out of the roof.
The accused denied the incident. This court does not have to believe the accused version. It is the state that has to prove that the accused is guilty beyond reasonable doubt of a crime. The state has contradicted itself. Namely, when and where the shots were fired. This falls short of the standard of this court. The state has failed to establish that the accused is guilty of this charge and has to be acquitted.
I am now dealing with count 3, paragraph 7, in terms of section 1.
In January 2013, while having lunch with friends, the accused was handed a firearm in a restaurant and the there was a shot that went off. It is not in dispute that the firearm in question belongs to Mr. Fresco. Lerena, a witness to this matter, gave evidence that he heard Fresco telling the accused that there was one up in the barrel. The accused denies hearing this. The shot caused damaged to the floor of the restaurant.
Fresco confirmed that he had handed his firearm to the accused and that he told the accused about the one up. Fresco also confirmed that the accused asked him to take the blame for the bullet going off. When the owners of the restaurant approached the table, Fresco told them that the firearm had got caught on his tracksuit pants.
Mr. Lopis owner of the restaurant went an approached the table. Fresco told him that it had got hooked on his pants causing the firearm to go off. Soon afterwards the table paid for their bill.
The accused stated that he had asked to look at the firearm, as he was looking at buying the same type of firearm.
No-one has submitted that there was intention on the part of the accused. What is relevant is that the accused asked for the firearm in a restaurant full of patrons. He may not have intentionally pulled the trigger; it does however create a risk of safety. The version of Fresco was supported in the testimony of Lerena.
After the firearm had discharged Lerena also heard the accused ask Fresco to take the blame for the firearm going off. The accused’s version was that he was angry at Fresco for handing him a loaded firearm.
Lerena was a good witness and I did not detect any indication of bias against the accused. The court was not given any reason to not accept his version. The court also accepts the version of Fresco in this regard.
In count 1 the accused was sufficiently trained in the use of the firearm. He should not have asked for the firearm in a public place. The accused contravened this act.
In respect of count 4 the accused unlawfully had ammunition in his regard without any right to possess this ammunition.
A person who fails to comply with any of this act the person shall then be guilty.
It is clear that the state must prove that the accused had the necessary intention before there can be a conviction.
In the present case, counsel for the state made the submission that the father of the accused failed to make a statement to state that the ammunition belonged to him. The fact that there is no collaboration to this makes no sense at all. The state has failed to prove that the accused had the necessary intention to have this in his possession. The accused can then not be found guilty.
Count 1 – Evidence led by the state in this case was purely circumstantial. All evidence from witnesses proved to be unreliably. The accused gave a version that could be true. The version of the accused was that he fired shots at the toilet door because he thought there was an intruder in the toilet. The screams for help, the sounds of the cricket bat against the door, the calls to other people for help are more in line of the accused story. In addition there is objective evidence in the form of phone records; this too supports the version of the accused. The conduct of the accused shortly after the incident is inconsistent with the conduct with someone who wanted to commit murder.
He shouted, he called Stander, he called 911 and he called security even though he could not get through. He was seen to be praying for the accused’ life.
This court has already found that the accused cannot be found guilty of pre-meditated murder. It also cannot be said that he accepted the possibility.
Evidential material before this court however shows that the accused acted negligently when he fired the shots through the toilet door. Another person with similar disabilities would have seen that they would have injured the person behind the door.
Count 2 the state alleged that the accused while driving with two other passengers discharged his firearm through an open sunroof. The alternative charge is that he had no disregard for the other passengers in the vehicle. In this count the state failed to proof beyond a reasonable doubt.
Count 3 – The state alleged that the accused fired a firearm in a public place. Luckily to endanger the people at the table and the other patrons. The accused showed a reckless disregard for the patrons and the property of the restaurant.
Count 4 – The accused was unlawfully in the possession of ammunition without being the owner of a firearm for that ammunition. The state failed to prove all the elements of this charge.
OP please stand up, the court’s decision is the following.
The accused is found not guilty and is discharged. He is found guilty of culpable homicide.
The accused is found not guilty and is discharged.
The accused is found guilty of the second alternative that is the contravention
The accused is found not guilty and is discharged.
You may take a seat.
Before I even ask counsel to address me. I need to address the charge of Mr. Fresco.
I need to tell you that both Mr. Nel and Mr. Roux have already addressed me on this issue.
It is convenient at this stage to deal with whether Mr. Fresco is entitled to indemnity.
It is important to state that Mr. Fresco was warned in respect of count 3 on him. Counsel for the defense submitted that he was not entitled to a discharge.
Fresco may have been an accomplice as he handed a firearm to the accused without a warning. Fresco had given false evidence to count 2 of the firearm and the sunroof.
Fresco had failed to mention that the accused had asked him to take the blame for the discharging of the firearm in the restaurant.
State counsel made the submission to the contrary. It is so that Fresco may have been an accomplice. The weight to be attached would depend on the nature of the contradictions.
There is a possibility that a witness may be mistaken and failing to have regard to the evidence given in this regard.
The contradictions relating to count 3 were minor and very little. He merely stated a fact that the firearm went off in the restaurant. Counsel for the defense correctly pointed out that Fresco on a number of times stated that the accused was shocked by the firearm going off.
No-one is infallible not even lawyers. It is the opinion of this court that Fresco answered all questions put to him. He is discharged from all charges put against him.
The discharge of Fresco shall be entered in the records of these proceedings.
Court is back in session.
Roux: In terms of the provisions in terms of sections 58. The bail shall remain in until such time of sentencing.
Roux: Provided that where a court convicts the accused.
Roux: We submit in any event that the accused on bail. He compiled with his bail conditions.
Roux: We believe that there are a lot of facts put to you.
Nel: I have indicated that I will put some factors to the court. It was done after consultation with mr. Roux.
Nel: If that becomes important, then I will do so.
Nel: I disagree with Mr. Roux. This is a very serious crime.
Nel: That changed before today, the accused thought he may be acquitted. Now today he knows that he may face jail time.
Nel: Factors have changed. The accused sold his properties. He lives with families. Whilst out on bail, he was involved in an incident at a night club early hours of the morning.
Nel: The family then, of the accused. Admitted that there was an incident and indicated to the media in a press release that "Whilst OP venturing out with his cousin....."
Nel: "This we believe is underlying of his self-harming nature". Taking that into account, one cannot but also refer to Prof. Scholtz's report.
Nel: That just maybe he commits suicide.
Nel: Culpable homicide, if one takes into account the obligations, one can also refer to section 54.
Nel: My lady, my understanding of the extension of bail. Would be that the court would take into account that factors that were present during the bail application.
Nel: Also the factors that are now present.
Nel: With that my lady, my argument is that it is not in respect of judgement that the accused be released on bail.
Roux: My lady, I did not suggest and never will that capable homicide is not a serious crime.
Roux: The self-harming statement followed after his visit to the night club. Putting himself back in the public eye.
Roux: My lady it is indeed correct that he had disposed of his property.
Roux: It was not to accumulate money to go abroad.
Roux: It rather shows respect for the legal system. There was reference to the accused committing suicide. But my lady the accused would not do that.
Roux: We submit that all the factors in the bail application are still present today.
Judge: Mr. Nel is there dispute as to why the property was sold?
Nel: My lady, I am saying that it is the accused version that he wanted to pay his legal fees. I have no proof of that. I make a different inference into that.
Judge: Where is the accuses staying Mr. Roux?
Roux: He is staying with his uncle, for the last 18 months.
Judge: We will be back at 12:30