Canterbury and Another v S

On 29 May 2019, at a house in Kalksteenfontein, the first appellant entered a bedroom where the deceased (Gavin Barnes) and Will Smith were present, pointed a firearm, and fired shots. The deceased died from gunshot wounds and Will Smith was wounded. The first appellant and Will Smith wrestled over the firearm, which jammed. The second appellant later approached, took the firearm from the first appellant, cocked it, and returned it. The first appellant had a prior murder conviction. Both appellants were alleged to be members of the Terrible Josters gang. The first appellant raised an alibi, claiming he was in Parklands at the time, and called his brother as a witness. The second appellant also denied being at the scene. Will Smith, the surviving victim, died before trial and his two statements were admitted as hearsay evidence.

• Whether the State proved the identity of the perpetrators beyond reasonable doubt, particularly given that the main eyewitness was a single witness.
• Whether the trial court correctly admitted the two hearsay statements of the deceased victim Will Smith under section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988.
• Whether the doctrine of common purpose was correctly applied to convict the second appellant on charges of murder and attempted murder.
• Whether the State proved the elements of the offences under section 9(1)(a) and section 9(2)(a) of the Prevention of Organised Crime Act 21 of 1998 (POCA), including gang membership and a pattern of criminal gang activity.
• Whether the trial court complied with its duties under section 274(1) of the Criminal Procedure Act 51 of 1977 to gather sufficient evidence before imposing sentence.
• Whether substantial and compelling circumstances existed to deviate from the prescribed minimum sentence of life imprisonment.

1. The first appellant's conviction on count 2 (POCA section 9(2)(a)) was set aside. 2. The first appellant's convictions on counts 4 (murder), 5 (attempted murder), 6 (unlawful possession of a firearm), and 7 (unlawful possession of ammunition) were confirmed. 3. The sentences imposed on the first appellant on counts 4, 5, 6, and 7 were set aside. 4. The second appellant's convictions on all counts were set aside. 5. The first appellant's sentence was remitted to the trial court for fresh sentencing proceedings. 6. The trial court was ordered to comply with sections 274(1) and 274(2) of the CPA, inviting the State and defence to lead evidence in aggravation and mitigation. 7. The first appellant had to be brought before the trial court for sentencing within 15 days.

1. Where a single eyewitness has long-standing prior knowledge of an accused and ample opportunity for observation in good visibility, the identification evidence may be accepted as reliable and unimpeachable. 2. Hearsay evidence may be admitted under section 3(1)(c) of the Law of Evidence Amendment Act if its probative value, considered together with all other evidence, justifies admission in the interests of justice, and the inability to cross-examine does not automatically constitute prejudice. 3. The doctrine of common purpose requires either a prior agreement (express or implied) or active association and participation in a common criminal design. A person who arrives at the scene only after a shooting has taken place and briefly handles the firearm before returning it does not share common purpose for the murder and attempted murder. 4. For a conviction under section 9(1)(a) of POCA, the aiding and abetting must occur before or during the commission of the crime, not after. Gang membership must be proved beyond reasonable doubt under section 11 of POCA. 5. A trial court has a statutory duty under section 274(1) of the CPA to invite both parties to present evidence before sentence, and failure to do so constitutes an irregularity warranting setting aside the sentence.

The court stressed that, as a matter of principle and precedent, in cases attracting life or long-term imprisonment, a thorough Probation Officer's report must be obtained regarding the accused's background and psycho-social circumstances for consideration by the court. The court further stated that an accused should not be sentenced unless and until all facts and circumstances necessary for the responsible exercise of the sentencing discretion have been placed before the court. If there is insufficient evidence, the court must call for such evidence. The usage of the word 'may' in section 274(1) of the CPA should not be construed as limiting the right to call for evidence, which has been established as correct procedure through usage and judicial practice.

This judgment reinforces strict requirements for proving common purpose and POCA gang-related offences. It clarifies that a person not present during the commission of a crime cannot be a co-perpetrator through common purpose, and that gang membership must be proved with sufficient evidence, not speculation. The case also affirms the trial court's inquisitorial duty during sentencing, especially in cases attracting life imprisonment, requiring the court to actively call for evidence (including probation reports) under section 274(1) of the CPA before imposing sentence. Failure to do so constitutes a material irregularity.