Antonio Van Willing and Fareez Mohamed v The State

On 27 June 2012, Lance Harrison (the deceased) was shot and fatally wounded at his residence in Steenberg, Cape Town. Ms Petersen, the landlady, witnessed two men arrive at the property calling for the deceased. She recognized the voices and identified them as "Tony" (the first appellant Antonio van Willing) and "Fareez" (the second appellant Fareez Mohamed). After calling the deceased to come outside, shots were fired. The deceased told Ms Petersen that Tony and Fareez were present but that Fareez had shot him. Constable Ndyamara, the first police officer on scene, testified that the deceased told him "Tony" (also referred to as "Antonio") and "Raez" were involved, and that Antonio lived at Wicht Court. The deceased sustained four gunshot wounds, two of which were fatal. Both appellants were arrested. Neither testified at trial, but each called witnesses to support their alibis. The trial court convicted both of murder (finding common purpose), and the second appellant was additionally convicted of illegal possession of a firearm and ammunition. Both received life sentences for murder. The trial court granted leave to appeal to the Supreme Court of Appeal.

• Whether the hearsay evidence of the deceased's statements identifying his assailants was admissible under section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988
• Whether the identification evidence of Ms Petersen as a single identifying witness was credible and reliable, and whether the cautionary rules were properly applied
• Whether the photographic identity parade conducted after arrest was proper and reliable
• Whether the State proved that the first appellant acted with common purpose in the murder
• Whether the failure of the appellants to testify could be used adversely against them
• Whether substantial and compelling circumstances existed to justify a departure from the prescribed minimum sentence of life imprisonment under section 51 of the Criminal Law Amendment Act 105 of 1997

The appeal against both conviction and sentence was dismissed for both appellants. The convictions for murder (both appellants) and illegal possession of firearm and ammunition (second appellant) were upheld. The sentence of life imprisonment for murder imposed on both appellants was confirmed, as were the additional sentences imposed on the second appellant (two years for illegal possession of firearm and one year for illegal possession of ammunition).

1. Hearsay evidence of a deceased's statement identifying perpetrators is admissible under section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988 where, considering all seven statutory factors, it is in the interests of justice, particularly where the statement was made shortly after the incident, is corroborated by other credible evidence, and has high probative value due to the deceased's personal knowledge of the perpetrators. 2. A photographic identity parade conducted after arrest may be proper and reliable where there are valid reasons for not conducting a physical parade, such as genuine witness fear of gang reprisals in the area. 3. Common purpose in murder can be established in the absence of prior agreement where the accused: (a) was present at the scene; (b) was aware of the assault; (c) intended to make common cause; (d) manifested sharing of common purpose by performing an act of association (such as jointly calling the victim out, making statements together, and fleeing together without rendering assistance); and (e) had the requisite mens rea. 4. Where the State establishes a prima facie case, an accused who fails to testify runs the risk that the prosecution's evidence may be sufficient to prove guilt beyond reasonable doubt, and the failure to rebut the evidence may justify conviction. 5. Youth (early twenties) and drug use do not constitute substantial and compelling circumstances to depart from prescribed minimum sentences under section 51 of the Criminal Law Amendment Act unless there is evidence that immaturity or addiction impaired judgment in relation to the commission of the offense.

The court noted that the view in S v Moti that a photo-identification would be improper if conducted after arrest was obiter dicta, as that issue did not arise in that case. The court also observed that it could be argued on the same facts that the appellants went to the deceased's home with a pre-meditated plan to kill him, though such a finding was unnecessary given the finding of common purpose. The court remarked on the improbability that the coincidence of someone named Fareez being identified as a perpetrator and Ms Petersen pointing out an innocent person also named Fareez would be "too remote and improbable." The court characterized the murder as having "all the characteristics of an assassination" despite the appellants not providing any motive. The court also noted that contradictions between witnesses do not automatically lead to rejection of evidence, citing S v Oosthuizen, and that the mere fact of contradiction proves only that one statement is erroneous, not which one, acquiring probative value only if the contradicting witness is believed.

This case is significant in South African criminal law for: (1) its application of the section 3(1)(c) hearsay admissibility test where the deceased made statements identifying perpetrators shortly before death, confirming that such evidence can be admitted where probative value is high and corroborated; (2) its confirmation that photographic identity parades may be conducted post-arrest where there are valid reasons such as witness fear of gang reprisal; (3) its clear articulation of the common purpose doctrine in the absence of prior agreement, particularly the requirement of an "act of association" and the significance of flight without rendering assistance; (4) its application of the principle that failure to testify may justify conviction where the State establishes a prima facie case; and (5) its restrictive approach to finding substantial and compelling circumstances based on youth and drug use absent evidence of impaired judgment or maturity. The case demonstrates the proper application of cautionary rules for single witness and identification evidence while affirming that such evidence may be accepted where credibility is established and corroboration exists.